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CAND-ECF
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:20-cv-02731-VC

ADRMOP,APPEAL

Zepeda Rivas et al v. Jennings et al Assigned to: Judge Vince Chhabria Relate Case Case: 3:20-cv-02864-VC Case in other court: USCA, 20-16276
USCA, 20-16690 Cause: 42:1981 Civil Rights
Plaintiff
Angel de Jesus Zepeda Rivas

Date Filed: 04/20/2020 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant
represented by Martin S. Schenker Cooley LLP 101 California Street 5th Floor San Francisco, CA 94111 (415) 693-2000 Fax: (415) 693-2222 Email: mschenker@cooley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amalia Margarete Wille Lakin & Wille LLP 1939 Harrison Street, Suite 420 Oakland, CA 94612 510-379-9216 Fax: 510-379-9219 Email: amalia@lakinwille.com ATTORNEY TO BE NOTICED
Angelica Salceda ACLU of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 (415) 621-2493 Fax: (415) 255-8437 Email: asalceda@aclunc.org ATTORNEY TO BE NOTICED
Bree Ann Bernwanger Lawyers' Committee for Civil Rights of the San Francisc 131 Steuart Street Ste 400 San Francisco, CA 94105 415-543-9444 Email: bbernwanger@lccrsf.org PRO HAC VICE

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CAND-ECF
ATTORNEY TO BE NOTICED
Emilou MacLean 555 Seventh Street San Francisco, CA 94103 510-473-6343 Fax: 415-553-9810 Email: emi.maclean@sfgov.org ATTORNEY TO BE NOTICED
Francisco Ugarte SF Public Defender's Ofﬁce 555 7th Street San Francisco, CA 94103 415-553-9319 Fax: 415-553-9810 Email: francisco.ugarte@sfgov.org ATTORNEY TO BE NOTICED
Francisco Unger Cooley LLP 500 Boylston Street Boston, MA 02116 617-937-2478 Email: funger@cooley.com PRO HAC VICE ATTORNEY TO BE NOTICED
Genna Ellis Beier San Francisco Ofﬁce of the Public Defender 555 7th Street San Francisco, CA 94103 703-470-8111 Email: genna.beier@sfgov.org ATTORNEY TO BE NOTICED
Hayden Miles Rodarte Lawyers' Committee for Civil Rights, San Francisco 131 Steuart Street, Suite 400 San Francisco, CA 94105 415-814-7631 Fax: 415-543-0296 Email: hrodarte@lccrsf.org ATTORNEY TO BE NOTICED
Jennifer Taylor Friedman San Francisco Public Defenders Ofﬁce Immigration Defense Unit 555 7th Street San Francisco, CA 94609 415-734-3065 Fax: 415-553-9810 Email: jennifer.friedman@sfgov.org
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CAND-ECF
ATTORNEY TO BE NOTICED
Jordan Samuel Wells ACLU of Southern California 1313 West Eighth Street Los Angeles, CA 90017 661-426-7867 Email: jwells@aclusocal.org ATTORNEY TO BE NOTICED
Judah Ben Lakin Lakin & Wille LLP 1939 Harrison Street Suite 420 Oakland, CA 94612 United Sta 510-379-9216 Email: judah@lakinwille.com ATTORNEY TO BE NOTICED
Kelly Engel Wells San Francisco Public Defender Immigration Unit 555 7th St San Francisco, CA 94103 415-553-9350 Fax: 415-553-9810 Email: kelly.wells@sfgov.org PRO HAC VICE ATTORNEY TO BE NOTICED
Sean Connor Riordan ACLU Foundation of Northern California 39 Drumm Street San Francisco, CA 94105 (415) 621-2493 Fax: (415) 255-1478 Email: sriordan@aclunc.org ATTORNEY TO BE NOTICED
Stephanie Padilla ACLU of Southern California 1430 Truxtun Ave., Ste. 707 Bakersﬁeld, CA 93301 (661) 426-7868 Email: spadilla@aclusocal.org ATTORNEY TO BE NOTICED
Timothy W. Cook Cooley LLP 500 Boylston Street 14th Floor Boston, MA 02116 617-937-2433
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Email: tcook@cooley.com PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Brenda Rubi Ruiz Tovar

William S. Freeman ACLU Foundation of Northern California 39 Drumm St. San Francisco, CA 94111 415 621-2493 Fax: 415 255-1478 Email: wfreeman@aclunc.org ATTORNEY TO BE NOTICED
represented by Martin S. Schenker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amalia Margarete Wille (See above for address) ATTORNEY TO BE NOTICED

Angelica Salceda (See above for address) ATTORNEY TO BE NOTICED

Bree Ann Bernwanger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Emilou MacLean (See above for address) ATTORNEY TO BE NOTICED

Francisco Ugarte (See above for address) ATTORNEY TO BE NOTICED

Francisco Unger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Genna Ellis Beier (See above for address) ATTORNEY TO BE NOTICED

Hayden Miles Rodarte (See above for address) ATTORNEY TO BE NOTICED

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Jennifer Taylor Friedman
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CAND-ECF
(See above for address) ATTORNEY TO BE NOTICED

Jordan Samuel Wells (See above for address) ATTORNEY TO BE NOTICED

Judah Ben Lakin (See above for address) ATTORNEY TO BE NOTICED

Kelly Engel Wells (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Sean Connor Riordan (See above for address) ATTORNEY TO BE NOTICED

Stephanie Padilla (See above for address) ATTORNEY TO BE NOTICED

Timothy W. Cook (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Lawrence Kuria Mwaura

William S. Freeman (See above for address) ATTORNEY TO BE NOTICED
represented by Martin S. Schenker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amalia Margarete Wille (See above for address) ATTORNEY TO BE NOTICED

Angelica Salceda (See above for address) ATTORNEY TO BE NOTICED

Bree Ann Bernwanger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

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Emilou MacLean (See above for address)
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CAND-ECF
ATTORNEY TO BE NOTICED

Francisco Ugarte (See above for address) ATTORNEY TO BE NOTICED

Francisco Unger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Genna Ellis Beier (See above for address) ATTORNEY TO BE NOTICED

Hayden Miles Rodarte (See above for address) ATTORNEY TO BE NOTICED

Jennifer Taylor Friedman (See above for address) ATTORNEY TO BE NOTICED

Jordan Samuel Wells (See above for address) ATTORNEY TO BE NOTICED

Judah Ben Lakin (See above for address) ATTORNEY TO BE NOTICED

Kelly Engel Wells (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Sean Connor Riordan (See above for address) ATTORNEY TO BE NOTICED

Stephanie Padilla (See above for address) ATTORNEY TO BE NOTICED

Timothy W. Cook (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff

William S. Freeman (See above for address) ATTORNEY TO BE NOTICED

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Luciano Gonzalo Mendoza Jeronimo

CAND-ECF
represented by Martin S. Schenker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amalia Margarete Wille (See above for address) ATTORNEY TO BE NOTICED

Angelica Salceda (See above for address) ATTORNEY TO BE NOTICED

Bree Ann Bernwanger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Emilou MacLean (See above for address) ATTORNEY TO BE NOTICED

Francisco Ugarte (See above for address) ATTORNEY TO BE NOTICED

Francisco Unger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Genna Ellis Beier (See above for address) ATTORNEY TO BE NOTICED

Hayden Miles Rodarte (See above for address) ATTORNEY TO BE NOTICED

Jennifer Taylor Friedman (See above for address) ATTORNEY TO BE NOTICED

Jordan Samuel Wells (See above for address) ATTORNEY TO BE NOTICED

Judah Ben Lakin (See above for address) ATTORNEY TO BE NOTICED

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Kelly Engel Wells (See above for address) PRO HAC VICE
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CAND-ECF
ATTORNEY TO BE NOTICED

Sean Connor Riordan (See above for address) ATTORNEY TO BE NOTICED

Stephanie Padilla (See above for address) ATTORNEY TO BE NOTICED

Timothy W. Cook (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Coraima Yaritza Sanchez Nunez

William S. Freeman (See above for address) ATTORNEY TO BE NOTICED
represented by Martin S. Schenker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amalia Margarete Wille (See above for address) ATTORNEY TO BE NOTICED

Angelica Salceda (See above for address) ATTORNEY TO BE NOTICED

Bree Ann Bernwanger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Emilou MacLean (See above for address) ATTORNEY TO BE NOTICED

Francisco Ugarte (See above for address) ATTORNEY TO BE NOTICED

Francisco Unger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

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Genna Ellis Beier (See above for address) ATTORNEY TO BE NOTICED
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CAND-ECF

Hayden Miles Rodarte (See above for address) ATTORNEY TO BE NOTICED

Jennifer Taylor Friedman (See above for address) ATTORNEY TO BE NOTICED

Jordan Samuel Wells (See above for address) ATTORNEY TO BE NOTICED

Judah Ben Lakin (See above for address) ATTORNEY TO BE NOTICED

Kelly Engel Wells (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Sean Connor Riordan (See above for address) ATTORNEY TO BE NOTICED

Stephanie Padilla (See above for address) ATTORNEY TO BE NOTICED

Timothy W. Cook (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Javier Alfaro

William S. Freeman (See above for address) ATTORNEY TO BE NOTICED
represented by Martin S. Schenker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amalia Margarete Wille (See above for address) ATTORNEY TO BE NOTICED

Angelica Salceda (See above for address) ATTORNEY TO BE NOTICED

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Bree Ann Bernwanger
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CAND-ECF
(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Emilou MacLean (See above for address) ATTORNEY TO BE NOTICED

Francisco Ugarte (See above for address) ATTORNEY TO BE NOTICED

Francisco Unger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Genna Ellis Beier (See above for address) ATTORNEY TO BE NOTICED

Hayden Miles Rodarte (See above for address) ATTORNEY TO BE NOTICED

Jennifer Taylor Friedman (See above for address) ATTORNEY TO BE NOTICED

Jordan Samuel Wells (See above for address) ATTORNEY TO BE NOTICED

Judah Ben Lakin (See above for address) ATTORNEY TO BE NOTICED

Kelly Engel Wells (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Sean Connor Riordan (See above for address) ATTORNEY TO BE NOTICED

Stephanie Padilla (See above for address) ATTORNEY TO BE NOTICED

https://ecf.cand.uscourts.gov/cgi-bin/DktRpt.pl?872274752824394-L_1_0-1

Timothy W. Cook (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
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CAND-ECF

Plaintiff Dung Tuan Dang

William S. Freeman (See above for address) ATTORNEY TO BE NOTICED
represented by Martin S. Schenker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amalia Margarete Wille (See above for address) ATTORNEY TO BE NOTICED

Angelica Salceda (See above for address) ATTORNEY TO BE NOTICED

Bree Ann Bernwanger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Emilou MacLean (See above for address) ATTORNEY TO BE NOTICED

Francisco Ugarte (See above for address) ATTORNEY TO BE NOTICED

Francisco Unger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Genna Ellis Beier (See above for address) ATTORNEY TO BE NOTICED

Hayden Miles Rodarte (See above for address) ATTORNEY TO BE NOTICED

Jennifer Taylor Friedman (See above for address) ATTORNEY TO BE NOTICED

Jordan Samuel Wells (See above for address) ATTORNEY TO BE NOTICED

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Judah Ben Lakin

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Plaintiff Rajnish Rajnish

CAND-ECF
(See above for address) ATTORNEY TO BE NOTICED
Kelly Engel Wells (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sean Connor Riordan (See above for address) ATTORNEY TO BE NOTICED
Stephanie Padilla (See above for address) ATTORNEY TO BE NOTICED
Timothy W. Cook (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
William S. Freeman (See above for address) ATTORNEY TO BE NOTICED
represented by Emilou MacLean (See above for address) ATTORNEY TO BE NOTICED
Jennifer Taylor Friedman (See above for address) ATTORNEY TO BE NOTICED
Jordan Samuel Wells (See above for address) ATTORNEY TO BE NOTICED
Kelly Engel Wells (See above for address) ATTORNEY TO BE NOTICED
Martin S. Schenker (See above for address) ATTORNEY TO BE NOTICED
Timothy W. Cook (See above for address) ATTORNEY TO BE NOTICED
William S. Freeman (See above for address) ATTORNEY TO BE NOTICED

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Plaintiff Willian Matias Rauda
Plaintiff Juan Jose Erazo Herrera

CAND-ECF
Sean Connor Riordan (See above for address) ATTORNEY TO BE NOTICED
represented by Emilou MacLean (See above for address) ATTORNEY TO BE NOTICED
Jennifer Taylor Friedman (See above for address) ATTORNEY TO BE NOTICED
Jordan Samuel Wells (See above for address) ATTORNEY TO BE NOTICED
Kelly Engel Wells (See above for address) ATTORNEY TO BE NOTICED
Martin S. Schenker (See above for address) ATTORNEY TO BE NOTICED
Timothy W. Cook (See above for address) ATTORNEY TO BE NOTICED
William S. Freeman (See above for address) ATTORNEY TO BE NOTICED
Sean Connor Riordan (See above for address) ATTORNEY TO BE NOTICED
represented by Emilou MacLean (See above for address) ATTORNEY TO BE NOTICED
Jennifer Taylor Friedman (See above for address) ATTORNEY TO BE NOTICED
Jordan Samuel Wells (See above for address) ATTORNEY TO BE NOTICED
Kelly Engel Wells (See above for address) ATTORNEY TO BE NOTICED

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CAND-ECF
Martin S. Schenker (See above for address) ATTORNEY TO BE NOTICED
Timothy W. Cook (See above for address) ATTORNEY TO BE NOTICED
William S. Freeman (See above for address) ATTORNEY TO BE NOTICED
Sean Connor Riordan (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
David Jennings Acting Field Ofﬁcer Director

represented by Adrienne Zack United States Attorney's Ofﬁce Northern District of California 450 Golden Gate Avenue P.O. Box 36055 San Francsico, CA 94102-3495 415-436-7031 Fax: 415-436-6748 Email: adrienne.zack@usdoj.gov ATTORNEY TO BE NOTICED

Neal Cho Hong United States Attorney's Ofﬁce Criminal 450 Golden Gate Ave. San Francsico, CA 94102 415-436-7246 Email: neal.hong@usdoj.gov ATTORNEY TO BE NOTICED

Sara Winslow United States Attorney's Ofﬁce Northern District of California 450 Golden Gate Avenue, 9th Floor Box 36055 San Francisco, CA 94102 (415) 436-6925 Fax: (415) 436-6748 Email: sara.winslow@usdoj.gov ATTORNEY TO BE NOTICED
Shining J. Hsu Ofﬁce of the U.S. Attorney Northern District of California

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Defendant Matthew T. Albence Deputy Director TERMINATED: 11/02/2020
Defendant US Immigration and Customs Enforcement

CAND-ECF
450 Golden Gate Avenue, Box 36055 San Francisco, CA 94102 (415) 436-7022 Email: shining.hsu@usdoj.gov ATTORNEY TO BE NOTICED
Shiwon Choe United States Attorney's Ofﬁce Northern District of California 450 Golden Gate Avenue San Francisco, CA 94102 415-436-6967 Email: shiwon.choe@usdoj.gov ATTORNEY TO BE NOTICED
Wendy M. Garbers United States Attorney's Ofﬁce Northern District of California 450 Golden Gate Ave., 9th Floor San Francisco, CA 94102 (415) 436-6475 Email: wendy.garbers@usdoj.gov ATTORNEY TO BE NOTICED
represented by Adrienne Zack (See above for address) ATTORNEY TO BE NOTICED
Neal Cho Hong (See above for address) ATTORNEY TO BE NOTICED
Sara Winslow (See above for address) ATTORNEY TO BE NOTICED
Shining J. Hsu (See above for address) ATTORNEY TO BE NOTICED
Shiwon Choe (See above for address) ATTORNEY TO BE NOTICED
Wendy M. Garbers (See above for address) ATTORNEY TO BE NOTICED
represented by Adrienne Zack (See above for address) ATTORNEY TO BE NOTICED

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CAND-ECF
Neal Cho Hong (See above for address) ATTORNEY TO BE NOTICED

Sara Winslow (See above for address) ATTORNEY TO BE NOTICED

Shining J. Hsu (See above for address) ATTORNEY TO BE NOTICED

Shiwon Choe (See above for address) ATTORNEY TO BE NOTICED

Defendant Geo Group, Inc.

Wendy M. Garbers (See above for address) ATTORNEY TO BE NOTICED
represented by Royal Forest Oakes Hinshaw & Culbertson LLP 633 West 5th Street 47th Floor Los Angeles, CA 90071 213-680-2800 Fax: 213-614-7399 Email: roakes@mail.hinshawlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan Eileen Coleman Burke, Williams & Sorensen LLP 444 South Flower Street, Suite 2400 Los Angeles, CA 90071-2953 213-236-0600 Fax: 213-236-2700 Email: scoleman@bwslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

David S Weinstein Hinshaw and Culbertson LLP 2525 Ponce de Leon Blvd 4th Floor Coral Gables, FL 33134 305-428-5038 Email: dweinstein@hinshawlaw.com PRO HAC VICE ATTORNEY TO BE NOTICED

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Michael A.S. Newman Hinshaw & Culbertson LLP
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Defendant Nathan Allen Warden
Defendant Tony H. Pham Senior Ofﬁcial Perfoming the Duties of the Director of the U.S. Customs and Immigration Enforcement
Miscellaneous Rachana Duong
Miscellaneous

CAND-ECF
350 S. Grand Avenue, Suite 3600 Los Angeles, CA 90071 213-680-2800 Fax: 213-614-7399 Email: mnewman@hinshawlaw.com ATTORNEY TO BE NOTICED
represented by Royal Forest Oakes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Eileen Coleman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David S Weinstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael A.S. Newman (See above for address) ATTORNEY TO BE NOTICED
represented by Adrienne Zack (See above for address) ATTORNEY TO BE NOTICED
Sara Winslow (See above for address) ATTORNEY TO BE NOTICED
Shiwon Choe (See above for address) ATTORNEY TO BE NOTICED
represented by Willis Hon Nossaman LLP 50 California Street 34th Floor San Francisco, CA 94111 415-398-3600 Fax: 415-398-2438 Email: whon@nossaman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Kethikoun Keo
Miscellaneous Jose Eduardo Guerra

CAND-ECF
represented by Willis Hon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Allison Marie Day Munger Tolles and Olson LLP 560 Mission Street 27th Floor San Francisco, CA 94105 415-512-4079 Fax: 415-512-4077 Email: allison.day@mto.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/20/2020
04/20/2020 04/20/2020 04/20/2020 04/20/2020
04/20/2020

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 400, receipt number 097114393143.). Filed byJAVIER ALFARO, LAWRENCE KURIA MWAURA, DUNG TUAN DANG, BRENDA RUBI RUIZ TOVAR, LUCIANO GONZALO MENDOZA JERONIMO, ANGEL DE JESUS ZEPEDA RIVAS, CORAIMA YARITZA SANCHEZ NUEZ. (Attachments: # 1 Civil Cover Sheet)(Freeman, William) (Filed on 4/20/2020) Modiﬁed on 4/21/2020 (mclS, COURT STAFF). (Entered: 04/20/2020)
2 Proposed Summons. (Freeman, William) (Filed on 4/20/2020) (Entered: 04/20/2020)
3 Proposed Summons. (Freeman, William) (Filed on 4/20/2020) (Entered: 04/20/2020)
4 Proposed Summons. (Freeman, William) (Filed on 4/20/2020) (Entered: 04/20/2020)
5 First MOTION for Temporary Restraining Order ﬁled by JAVIER ALFARO, DUNG TUAN DANG, LUCIANO GONZALO MENDOZA JERONIMO, LAWRENCE KURIA MWAURA, BRENDA RUBI RUIZ TOVAR, CORAIMA YARITZA SANCHEZ NUEZ, ANGEL DE JESUS ZEPEDA RIVAS. (Attachments: # 1 *** ERRONEOUS ENTRY SEE 35 *** Declaration of Sandra Hernandez, # 2 Declaration of Robert B. Greiﬁnger, MD, # 3 Declaration of Dr. Ranit Mishori (MD, MHS, FAAFP), # 4 Declaration of Lisa Knox Regarding Conditions of Conﬁnement at the Mesa Verde ICE Processing Facility, # 5 Declaration of Attorney Kathleen Anne Kavanagh Regarding Conditions of Conﬁnement at Yuba County Jail, # 6 Declaration of Sean Riordan in Support of Petitioners-Plaintiffs' Motion for Temporary Restraining Order, # 7 Proposed Temporary Restraining Order)(Freeman, William) (Filed on 4/20/2020) Modiﬁed on 4/27/2020 (mclS, COURT STAFF). (Entered: 04/20/2020)
6 First MOTION to Certify Class ﬁled by JAVIER ALFARO, DUNG TUAN DANG, LUCIANO GONZALO MENDOZA JERONIMO, LAWRENCE KURIA MWAURA, BRENDA RUBI RUIZ TOVAR, CORAIMA YARITZA SANCHEZ NUEZ, ANGEL DE JESUS ZEPEDA RIVAS. Responses due by 4/24/2020. Replies due by 4/27/2020. (Attachments: # 1 Declaration Declaration of Angel Zepeda, # 2 Declaration Declaration of Brenda Rubi Ruiz Tovar, # 3 Declaration Declaration of Lawrence Kuria Mwaura, # 4 Declaration Declaration of Luciano Gonzalo Mendoza Joronimo, # 5 Declaration Declaration of Coraima Yaritza Sanchez Nuez, # 6 Declaration Declaration of Javier Alfaro, # 7 Declaration Declaration Dung Tuan Dang, # 8 Declaration Declaration of William S. Freeman in Support of Motion for Class Certiﬁcation, # 9 Declaration

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04/20/2020
04/21/2020
04/21/2020 04/21/2020 04/21/2020 04/21/2020 04/21/2020 04/21/2020 04/21/2020 04/21/2020

CAND-ECF
Declaration of Bree Bernwanger in Support of Motion for Class Certiﬁcation, # 10 Declaration Declaration of Martin S. Schenker in Support of Motion for Class Certiﬁcation, # 11 Declaration Declaration of Genna Ellis Beier in Support of Motion for Class Certiﬁcation, # 12 Declaration Declaration of Jordan Wells in Support of Motion for Class Certiﬁcation, # 13 Declaration Declaration of Judah Lakin in Support of Motion for Class Certiﬁcation, # 14 Proposed Order [Proposed] Order Granting PetitionersPlaintiffs' Motion for Provisional Class Certiﬁcation)(Freeman, William) (Filed on 4/20/2020) (Entered: 04/20/2020)
7 CERTIFICATE OF SERVICE by JAVIER ALFARO, DUNG TUAN DANG, LUCIANO GONZALO MENDOZA JERONIMO, LAWRENCE KURIA MWAURA, BRENDA RUBI RUIZ TOVAR, CORAIMA YARITZA SANCHEZ NUEZ, ANGEL DE JESUS ZEPEDA RIVAS re 6 First MOTION to Certify Class , 2 Proposed Summons, 5 First MOTION for Temporary Restraining Order , 3 Proposed Summons, 4 Proposed Summons, 1 Complaint, (Freeman, William) (Filed on 4/20/2020) (Entered: 04/20/2020)
8 Case assigned to Magistrate Judge Sallie Kim.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E-Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5-1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. Consent/Declination due by 5/5/2020. (ajsS, COURT STAFF) (Filed on 4/21/2020) (Entered: 04/21/2020)
9 NOTICE of Appearance by Genna Ellis Beier (Beier, Genna) (Filed on 4/21/2020) (Entered: 04/21/2020)
10 NOTICE of Appearance by Jordan Samuel Wells FOR PETITIONERS-PLAINTIFFS (Wells, Jordan) (Filed on 4/21/2020) (Entered: 04/21/2020)
11 NOTICE of Appearance by Hayden Miles Rodarte (Rodarte, Hayden) (Filed on 4/21/2020) (Entered: 04/21/2020)
12 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 7/13/2020. Initial Case Management Conference set for 7/20/2020 01:30 PM. (mclS, COURT STAFF) (Filed on 4/21/2020) (Entered: 04/21/2020)
13 Summons Issued as to Matthew T. Albence, David Jennings, US Immigration and Customs Enforcement. (mclS, COURT STAFF) (Filed on 4/21/2020) (Entered: 04/21/2020)
14 Summons Issued as to Geo Group, Inc. (mclS, COURT STAFF) (Filed on 4/21/2020) (Entered: 04/21/2020)
15 Summons Issued as to Nathan Allen. (mclS, COURT STAFF) (Filed on 4/21/2020) (Entered: 04/21/2020)
16 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Matthew T. Albence, David Jennings, US Immigration and Customs Enforcement.. (Garbers, Wendy) (Filed on 4/21/2020) (Entered: 04/21/2020)

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17 CLERK'S NOTICE OF IMPENDING REASSIGNMENT TO A U.S. DISTRICT COURT JUDGE: The Clerk of this Court will now randomly reassign this case to a District Judge because either (1) a party has not consented to the jurisdiction of a Magistrate Judge, or (2) time is of the essence in deciding a pending judicial action for which the necessary consents to Magistrate Judge jurisdiction have not been secured. You will be informed by separate notice of the district judge to whom this case is reassigned.

ALL HEARING DATES PRESENTLY SCHEDULED BEFORE THE CURRENT MAGISTRATE JUDGE ARE VACATED AND SHOULD BE RE-NOTICED FOR HEARING BEFORE THE JUDGE TO WHOM THIS CASE IS REASSIGNED.

This is a text only docket entry; there is no document associated with this notice. (mklS, COURT STAFF) (Filed on 4/22/2020) (Entered: 04/22/2020)

04/22/2020

18 ORDER REASSIGNING CASE. Case reassigned using a proportionate, random, and blind system pursuant to General Order No. 44 to Judge Vince Chhabria for all further proceedings. Magistrate Judge Sallie Kim no longer assigned to case, Notice: The assigned judge participates in the Cameras in the Courtroom Pilot Project. See General Order No. 65 and http://cand.uscourts.gov/cameras.. Signed by Clerk on 04/22/2020. (Attachments: # 1 Notice of Eligibility for Video Recording)(mbcS, COURT STAFF) (Filed on 4/22/2020) (Entered: 04/22/2020)

04/22/2020

19 NOTICE of Appearance by Judah Ben Lakin (Lakin, Judah) (Filed on 4/22/2020) (Entered: 04/22/2020)

04/22/2020

20 *** DUPLICATE ENTRY *** NOTICE of Appearance by Judah Ben Lakin (Lakin, Judah) (Filed on 4/22/2020) Modiﬁed on 4/22/2020 (mclS, COURT STAFF). (Entered: 04/22/2020)

04/22/2020

21 NOTICE of Appearance by Martin S. Schenker (Schenker, Martin) (Filed on 4/22/2020) (Entered: 04/22/2020)

04/22/2020

22 NOTICE of Appearance by Adrienne Zack (Zack, Adrienne) (Filed on 4/22/2020) (Entered: 04/22/2020)

04/22/2020

23 ORDER REQUIRING RESPONSE TO TRO APPLICATION. Signed by Judge Vince Chhabria on 4/22/2020. (vclc1S, COURT STAFF) (Filed on 4/22/2020) (Entered: 04/22/2020)

04/22/2020

24 NOTICE of Appearance by Sean Connor Riordan (Riordan, Sean) (Filed on 4/22/2020) (Entered: 04/22/2020)

04/22/2020

25 NOTICE of Appearance by Angelica Salceda (Salceda, Angelica) (Filed on 4/22/2020) (Entered: 04/22/2020)

04/22/2020

26 ADMINISTRATIVE MOTION for Additional Time to Respond to TRO re 23 Order ﬁled by Matthew T. Albence, David Jennings, US Immigration and Customs Enforcement. Responses due by 4/27/2020. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Proposed Order)(Zack, Adrienne) (Filed on 4/22/2020) (Entered: 04/22/2020)

04/22/2020

27 ORDER Requiring Response to Motion for Provisional Class Certiﬁcation. Signed by Judge Vince Chhabria on 4/22/2020. (vclc2S, COURT STAFF) (Filed on 4/22/2020) (Entered: 04/22/2020)

04/22/2020

28 ORDER Extending Response Deadlines. Signed by Judge Vince Chhabria. (vclc2S, COURT STAFF) (Filed on 4/22/2020) (Entered: 04/22/2020)

04/23/2020

29 STIPULATION WITH PROPOSED ORDER To Increase Page Limit ﬁled by Matthew T. Albence, David Jennings, US Immigration and Customs Enforcement. (Zack, Adrienne)

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(Filed on 4/23/2020) (Entered: 04/23/2020)
30 NOTICE of Appearance by Emilou MacLean (MacLean, Emilou) (Filed on 4/23/2020) (Entered: 04/23/2020)
31 REASSIGNED CASE - NOTICE OF NEW HEARING DATE: You are notiﬁed that the Court has scheduled an Initial Case Management Conference before Judge Vince Chhabria upon reassignment. For a copy of Judge Chhabria's Standing Order and other information, please refer to the Court's website at www.cand.uscourts.gov.

Case Management Statement due by 7/15/2020. Initial Case Management Conference set for 7/22/2020 10:00 AM in San Francisco, Courtroom 04, 17th Floor.

(This is a text-only entry generated by the court. There is no document associated with this entry.) (knm, COURT STAFF) (Filed on 4/24/2020) (Entered: 04/24/2020)

04/24/2020

32 ORDER by Judge Vince Chhabria granting 29 Stipulation to Extend Page Limits. (vclc2S, COURT STAFF) (Filed on 4/24/2020) (Entered: 04/24/2020)

04/24/2020

33 ORDER re Filings. Signed by Judge Vince Chhabria on 4/24/2020. (vclc2S, COURT STAFF) (Filed on 4/24/2020) (Entered: 04/24/2020)

04/24/2020

34 NOTICE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas re 5 First MOTION for Temporary Restraining Order Notice of Withdrawal of Declaration of Dr. Ranit Mishori (ECF 5-3) (Freeman, William) (Filed on 4/24/2020) (Entered: 04/24/2020)

04/25/2020

35 Declaration of Sandra Hernandez in Support of 5 First MOTION for Temporary Restraining Order CORRECTION OF DOCKET # [5-1] ﬁled byJavier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas. (Related document(s) 5 ) (Freeman, William) (Filed on 4/25/2020) (Entered: 04/25/2020)

04/25/2020

36 NOTICE of Appearance by Francisco Ugarte (Ugarte, Francisco) (Filed on 4/25/2020) (Entered: 04/25/2020)

04/25/2020

37 OPPOSITION/RESPONSE (re 5 First MOTION for Temporary Restraining Order , 6 First MOTION to Certify Class ) and Memorandum in Support of Motion to Stay ﬁled byMatthew T. Albence, David Jennings, US Immigration and Customs Enforcement. (Attachments: # 1 Declaration of Erik Bonnar, # 2 Exhibit A, # 3 Declaration of Polly Kaiser, # 4 Exhibit A, # 5 Declaration of Dana Fishburn, First, # 6 Declaration of Alexander Pham, # 7 Exhibit 1, # 8 Exhibit 2, # 9 Exhibit 3, # 10 Exhibit 4, # 11 Exhibit 5, # 12 Exhibit 6, # 13 Exhibit 7, # 14 Declaration of Dana Fishburn, Second, # 15 Exhibit 1, # 16 Exhibit 2, # 17 Exhibit 3, # 18 Exhibit 4, # 19 Exhibit 5, # 20 Exhibit 6) (Zack, Adrienne) (Filed on 4/25/2020) (Entered: 04/25/2020)

04/25/2020

38 MOTION to Stay re 37 Opposition/Response to Motion,,, ﬁled by Matthew T. Albence, David Jennings, US Immigration and Customs Enforcement. Responses due by 5/11/2020. Replies due by 5/18/2020. (Zack, Adrienne) (Filed on 4/25/2020) (Entered: 04/25/2020)

04/27/2020

39 REPLY (re 5 First MOTION for Temporary Restraining Order ) ﬁled byJavier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas. (Attachments: # 1 Supplemental Declaration of Greiﬁnger, MD ISO of Motion for Temporary Restraining Order, # 2 Declaration of Hayden Rodarte ISO of Motion for Temporary Restraining Order, # 3 Rodarte Declaration Exh. A, # 4 Rodarte Declaration

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Exh. B, # 5 Rodarte Declaration Exh. C)(Freeman, William) (Filed on 4/27/2020) Modiﬁed on 4/27/2020 (mclS, COURT STAFF). (Entered: 04/27/2020)
40 OPPOSITION/RESPONSE (re 38 MOTION to Stay re 37 Opposition/Response to Motion,,, ) ﬁled byJavier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas. (Freeman, William) (Filed on 4/27/2020) (Entered: 04/27/2020)
41 REPLY (re 6 First MOTION to Certify Class ) ﬁled byJavier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas. (Freeman, William) (Filed on 4/27/2020) (Entered: 04/27/2020)
42 CERTIFICATE OF SERVICE by Angel de Jesus Zepeda Rivas re 39 Reply to Opposition/Response,, 40 Opposition/Response to Motion, 41 Reply to Opposition/Response, (Freeman, William) (Filed on 4/27/2020) (Entered: 04/27/2020)
43 MOTION for leave to appear in Pro Hac Vice Timothy W. Cook ( Filing fee $ 310, receipt number 0971-14412537.) ﬁled by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas. (Cook, Timothy) (Filed on 4/27/2020) (Entered: 04/27/2020)
44 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 097114412259.) ﬁled by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas. (Attachments: # 1 Certiﬁcate of Good Standing) (Unger, Francisco) (Filed on 4/27/2020) Modiﬁed on 4/27/2020 (mclS, COURT STAFF). (Entered: 04/27/2020)
45 NOTICE of Appearance by Amalia Margarete Wille (Wille, Amalia) (Filed on 4/27/2020) (Entered: 04/27/2020)
46 ORDER re Hearing. Signed by Judge Vince Chhabria on 4/27/2020. (vclc2S, COURT STAFF) (Filed on 4/27/2020) (Entered: 04/27/2020)
47 CLERK'S NOTICE REGARDING THE ZOOM WEBINAR HEARING ON 4/28/2020; REGISTRATION OF COUNSEL IN ADVANCE REQUIRED, SEE BELOW.

Pre-registration by counsel with the clerk in advance of the hearings must be done by emailing a list of names of counsel who will be participating in the hearing to vccrd@cand.uscourts.gov by no later than Tuesday, April 28, 2020, at 10:00 AM PST.

All counsel, public, and press will join the webinar as attendees and be able to see and hear what is going on throughout all of the proceedings, but will not be able to actually participate in the proceedings until the Court switches them over to a participant. Before each case is called, counsel who have pre-registered with the clerk in advance of the hearing will be converted from attendee to participant. Once the hearing ends for their case, they will be switched back to attendee.

The links below are for all counsel, members of the public and press to use for accessing the hearing on Tuesday, April 28, 2020, at 2:00 PM PST.

Please click the link below to join the webinar: https://us02web.zoom.us/j/81447675132?pwd=K21iUjhjR1FWa2t6cG93cTgrelc5Zz09 Password: 271367

https://ecf.cand.uscourts.gov/cgi-bin/DktRpt.pl?872274752824394-L_1_0-1

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Or iPhone one-tap : US: +12532158782,,81447675132# or +13017158592,,81447675132# Or Telephone: Dial(for higher quality, dial a number based on your current location): US: +1 253 215 8782 or +1 301 715 8592 or +1 312 626 6799 or +1 346 248 7799 or +1 669 900 6833 or +1 929 205 6099 Webinar ID: 814 4767 5132 Password: 271367 International numbers available: https://us02web.zoom.us/u/kdLygkbga3

Or an H.323/SIP room system: H.323: 162.255.37.11 (US West) or 162.255.36.11 (US East) Meeting ID: 814 4767 5132 Password: 271367 SIP: 81447675132@zoomcrc.com Password: 271367

04/27/2020 04/27/2020 04/27/2020 04/27/2020
04/28/2020 04/28/2020

(This is a text-only entry generated by the court. There is no document associated with this entry.) (vclc1S, COURT STAFF) (Filed on 4/27/2020) (Entered: 04/27/2020)
48 Order by Judge Vince Chhabria granting 43 Motion for Pro Hac Vice - Cook.(knm, COURT STAFF) (Filed on 4/27/2020) (Entered: 04/27/2020)
49 Order by Judge Vince Chhabria granting 44 Motion for Pro Hac Vice - Unger.(knm, COURT STAFF) (Filed on 4/27/2020) (Entered: 04/27/2020)
50 REPLY (re 38 MOTION to Stay re 37 Opposition/Response to Motion,,, ) ﬁled byMatthew T. Albence, David Jennings, US Immigration and Customs Enforcement. (Zack, Adrienne) (Filed on 4/27/2020) (Entered: 04/27/2020)
Set Hearing as to 6 First MOTION to Certify Class , 38 MOTION to Stay re 37 Opposition/Response to Motion , 5 First MOTION for Temporary Restraining Order . Motion Hearing set for 4/28/2020 02:00 PM in San Francisco, Chambers before Judge Vince Chhabria. (knm, COURT STAFF) (Filed on 4/27/2020) (Entered: 04/27/2020)
51 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7-3.d ﬁled byMatthew T. Albence, Nathan Allen, David Jennings, US Immigration and Customs Enforcement. (Garbers, Wendy) (Filed on 4/28/2020) (Entered: 04/28/2020)
55 Minute Entry for proceedings held before Judge Vince Chhabria: Motion Hearing held via Zoom Webinar on 4/28/2020 re 38 MOTION to Stay; 6 First MOTION to Certify Class; and 5 First MOTION for Temporary Restraining Order.

The Court heard oral argument and will issue a written order.

Total Time in Court: 1 hour 45 minutes. Court Reporter: Hearing recorded via Zoom Webinar. Plaintiff Attorney: Emilou Maclean, Sean Riordan, Jordan Wells, Judah Lakin, Martin Schenker, Timothy Cook. Defendant Attorney: Adrienne Zack, Wendy Garbers.

(This is a text-only entry generated by the court. There is no document associated with this entry.) (knm, COURT STAFF) (Date Filed: 4/28/2020) Modiﬁed on 5/6/2020: Matter was not transcribed (see Docket #110). (rjdS, COURT STAFF). Modiﬁed on 7/7/2020: Matter transcribed by Pam Hebel. (rjdS, COURT STAFF). (Entered: 04/29/2020)

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52 STIPULATION WITH PROPOSED ORDER for Protective Order ﬁled by Matthew T. Albence, David Jennings, US Immigration and Customs Enforcement. (Attachments: # 1 Proposed Protective Order)(Zack, Adrienne) (Filed on 4/29/2020) (Entered: 04/29/2020)
53 ORDER by Judge Vince Chhabria denying 38 Motion to Stay; granting 5 Motion for TRO; granting 6 Motion to Certify Class. (vclc2S, COURT STAFF) (Filed on 4/29/2020) (Entered: 04/29/2020)
54 ORDER by Judge Vince Chhabria granting 52 Stipulated Protective Order. (vclc2S, COURT STAFF) (Filed on 4/29/2020) (Entered: 04/29/2020)
CLERK'S NOTICE REGARDING THE ZOOM WEBINAR CASE MANAGEMENT CONFERENCE ON 4/30/2020; REGISTRATION OF COUNSEL IN ADVANCE REQUIRED, SEE BELOW.

Case Management Conference set for 4/30/2020 at 4:00 PM by Zoom Webinar.

Pre-registration by counsel with the clerk in advance of the hearings must be done by emailing a list of names of counsel who will be participating in the hearing to vccrd@cand.uscourts.gov by no later than Thursday, April 30, 2020, at 11:00 AM PST.

The public and press will join the webinar as attendees and be able to see and hear what is going on throughout all of the proceedings, but will not be able to actually participate in the proceedings. Counsel who have pre-registered with the clerk in advance will receive individualized invitations to participate.

The links below are for members of the public and press to use for accessing the hearing on Thursday, April 30, 2020, at 4:00 PM.

Please click the link below to join the webinar: https://us02web.zoom.us/j/84908264880?pwd=UzZ0ajBlcHdtRkNBOTJPVFVPallFdz09 Password: 725800

Or iPhone one-tap : US: +12532158782,,84908264880# or +13017158592,,84908264880# Or Telephone: Dial(for higher quality, dial a number based on your current location): US: +1 253 215 8782 or +1 301 715 8592 or +1 312 626 6799 or +1 346 248 7799 or +1 669 900 6833 or +1 929 205 6099

Webinar ID: 849 0826 4880 Password: 725800

International numbers available: https://us02web.zoom.us/u/kce0pNWcpo

Or an H.323/SIP room system: H.323: 162.255.37.11 (US West) or 162.255.36.11 (US East) Meeting ID: 849 0826 4880 Password: 725800 SIP: 84908264880@zoomcrc.com Password: 725800 (vclc1S, COURT STAFF) (Filed on 4/29/2020) (Entered: 04/29/2020)

04/29/2020

56 MOTION for leave to appear in Pro Hac Vice of Bree Bernwanger ( Filing fee $ 310, receipt number 0971-14423129.) ﬁled by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima

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Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas. (Bernwanger, Bree) (Filed on 4/29/2020) (Entered: 04/29/2020)
57 ORDER re Case Management Conference. Signed by Judge Vince Chhabria on 4/30/2020. (vclc2S, COURT STAFF) (Filed on 4/30/2020) (Entered: 04/30/2020)
58 CASE MANAGEMENT STATEMENT ﬁled by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas. (Freeman, William) (Filed on 4/30/2020) (Entered: 04/30/2020)
59 Order by Judge Vince Chhabria granting 56 Motion for Pro Hac Vice - Bernwanger. (knm, COURT STAFF) (Filed on 4/30/2020) (Entered: 04/30/2020)
60 CLERK'S NOTICE SETTING ZOOM WEBINAR CASE MANAGEMENT CONFERENCE ON 5/1/2020. ADVANCE REGISTRATION OF PARTICIPATING COUNSEL REQUIRED -- SEE BELOW.
A case management conference is set for 3:00 PM PDT on May 1, 2020.
Pre-registration by counsel with the clerk in advance of the hearings must be done by emailing a list of names of counsel who will be participating in the hearing to vccrd@cand.uscourts.gov by no later than Friday, May 1, 2020, at 11:00 AM PDT.
The public and press will join the webinar as attendees and be able to see and hear what is going on throughout all of the proceedings, but will not be able to actually participate in the proceedings. Counsel who have pre-registered with the clerk in advance will receive individualized invitations to participate.
The links below are for members of the public and press to use for accessing the hearing on Friday, May 1, 2020, at 3:00 PM.
Please click the link below to join the webinar: https://us02web.zoom.us/j/82623464991? pwd=SXNYbnVlNEI4WUt0TFl0QmFYajZpQT09 Password: 228548
Or iPhone one-tap : US: +13462487799,,82623464991# or +16699006833,,82623464991# Or Telephone: Dial(for higher quality, dial a number based on your current location): US: +1 346 248 7799 or +1 669 900 6833 or +1 929 205 6099 or +1 253 215 8782 or +1 301 715 8592 or +1 312 626 6799
Webinar ID: 826 2346 4991 Password: 228548
International numbers available: https://us02web.zoom.us/u/khr20rXOu
Or an H.323/SIP room system: H.323: 162.255.37.11 (US West) or 162.255.36.11 (US East) Meeting ID: 826 2346 4991 Password: 228548 SIP: 82623464991@zoomcrc.com Password: 228548

https://ecf.cand.uscourts.gov/cgi-bin/DktRpt.pl?872274752824394-L_1_0-1

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(This is a text-only entry generated by the court. There is no document associated with this entry.). (vclc1S, COURT STAFF) (Filed on 4/30/2020) (Entered: 04/30/2020)
91 Minute Entry for proceedings held before Judge Vince Chhabria: Case Management Conference held on 4/30/2020.

Plaintiffs may ﬁle requests for bond on behalf of detainees with medical vulnerabilities and minimal criminal histories Friday, May 1. The government may ﬁle responses by Monday, May 4. Although multiple requests can and should be ﬁled at one time, the parties are asked to attach a separate pdf document for each detainee. Compare Dkt. No. 79 (correct) with Dkt. No. 85 (incorrect).

The Court grants advance permission to ﬁle redacted versions of documents publicly, with unredacted versions under seal. Only extraordinarily sensitive medical information should be redacted and sealed.

The parties were ordered to ﬁle a stipulated brieﬁng schedule for the preliminary injunction phase as discussed in the hearing.

The government was ordered to provide information regarding each detainee's dorm unit and individual attorney by no later than Monday, May 4 at 10:00 AM, and preferably in the spreadsheet to be produced Friday, May 1.

The parties were ordered to ﬁle a stipulated class notice, or competing class notices, by Friday, May 1 at 2:00 PM.

The plaintiffs were ordered to ﬁle a brief by noon on Friday, May 1 regarding the necessity of consent to magistrate judge jurisdiction over bail determinations.

The plaintiffs were ordered to ﬁle a brief by noon on Friday, May 1 regarding the applicable standard for bail determinations. The government's response brief was due Sunday, May 3 at noon.

An additional case management conference was scheduled for Friday, May 1, 2020, at 3:00 PM PDT.

Total Time in Court: 2:39. Court Reporter: Zoom Webinar.

Plaintiff Attorneys: Emilou Maclean, Angelica Salceda, and Marty Schenker. Defendant Attorneys: Adrienne Zack and Wendy Garbers.

05/01/2020 05/01/2020

(This is a text-only entry generated by the court. There is no document associated with this entry.) (vclc1S, COURT STAFF) (Date Filed: 5/5/2020) Modiﬁed on 5/5/2020 (knm, COURT STAFF). Modiﬁed on 5/6/2020: Matter was not transcribed (see Docket #110). (rjdS, COURT STAFF). Modiﬁed on 7/7/2020: Matter transcribed by Pam Hebel. (rjdS, COURT STAFF). (Entered: 05/05/2020)
61 Brief Supplemental Brief on Burden in Bail Assessments ﬁled byJavier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas. (Riordan, Sean) (Filed on 5/1/2020) (Entered: 05/01/2020)
62 Brief PETITIONERS-PLAINTIFFS MEMORANDUM OF LAW REGARDING STATUTORY AUTHORITY OF MAGISTRATE JUDGES ﬁled byJavier Alfaro, Dung Tuan

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05/01/2020 05/01/2020 05/01/2020 05/01/2020 05/01/2020
05/01/2020 05/01/2020

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Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas. (Freeman, William) (Filed on 5/1/2020) (Entered: 05/01/2020)
63 Tentative Uniform Conditions of Release. Signed by Judge Vince Chhabria on 5/1/2020. (vclc2S, COURT STAFF) (Filed on 5/1/2020) (Entered: 05/01/2020)
64 NOTICE by Matthew T. Albence, David Jennings, US Immigration and Customs Enforcement of Proposed Class Notice (Attachments: # 1 Proposed Class Notice)(Zack, Adrienne) (Filed on 5/1/2020) (Entered: 05/01/2020)
65 Draft Short Form Bail Application Template. Signed by Judge Vince Chhabria on 5/1/2020. (vclc2S, COURT STAFF) (Filed on 5/1/2020) (Entered: 05/01/2020)
66 NOTICE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas NOTICE OF REQUEST FOR RELEASE OF JOSE LUIS LOPEZ-GUEVARA (Salceda, Angelica) (Filed on 5/1/2020) (Entered: 05/01/2020)
67 Proposed Order JOINT [PROPOSED] ORDER RE BRIEFING AND HEARING SCHEDULE FOR MOTION FOR PRELIMINARY INJUNCTION by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas. (Freeman, William) (Filed on 5/1/2020) (Entered: 05/01/2020)
68 NOTICE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas PETITIONERS-PLAINTIFFS PROPOSED CLASS NOTICE (Freeman, William) (Filed on 5/1/2020) (Entered: 05/01/2020)
69 CLERK'S NOTICE SETTING ZOOM WEBINAR CASE MANAGEMENT CONFERENCE ON 5/5/2020. ADVANCE REGISTRATION OF PARTICIPATING COUNSEL REQUIRED -- SEE BELOW.

A case management conference is set for 1:00 PM PDT on Tuesday, May 5, 2020.

Pre-registration by counsel with the clerk in advance of the CMC must be done by sending a list of names & emails of participating counsel to vccrd@cand.uscourts.gov no later than noon on Monday, May 4, 2020.

The public and press will join the webinar as attendees and be able to see and hear what is going on throughout all of the proceedings, but will not be able to actually participate in the proceedings. Counsel who have pre-registered with the clerk in advance will receive individualized invitations to participate.

The links below are for members of the public and press to use for accessing the hearing on Tuesday, May 5, 2020, at 1:00 PM.

Please click the link below to join the webinar: https://us02web.zoom.us/j/86116111630? pwd=d1J1N2pidXBoVlFMUkVqWklHcDQ3UT09 Password: 971651

Or iPhone one-tap : US: +13126266799,,86116111630# or +13462487799,,86116111630# Or Telephone: Dial(for higher quality, dial a number based on your current location):

https://ecf.cand.uscourts.gov/cgi-bin/DktRpt.pl?872274752824394-L_1_0-1

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US: +1 312 626 6799 or +1 346 248 7799 or +1 669 900 6833 or +1 929 205 6099 or +1 253 215 8782 or +1 301 715 8592 Webinar ID: 861 1611 1630 Password: 971651 International numbers available: https://us02web.zoom.us/u/kc5AohRVIr

Or an H.323/SIP room system: H.323: 162.255.37.11 (US West) or 162.255.36.11 (US East) Meeting ID: 861 1611 1630 Password: 971651 SIP: 86116111630@zoomcrc.com Password: 971651

05/01/2020 05/01/2020 05/01/2020
05/01/2020 05/01/2020

(This is a text-only entry generated by the court. There is no document associated with this entry.). (vclc1S, COURT STAFF) (Filed on 5/1/2020) (Entered: 05/01/2020)
70 ORDER Approving Class Notice. Signed by Judge Vince Chhabria on 5/1/2020. (vclc2S, COURT STAFF) (Filed on 5/1/2020) (Entered: 05/01/2020)
71 ORDER re I-213 Form Redactions. Signed by Judge Vince Chhabria on 5/1/2020. (vclc2S, COURT STAFF) (Filed on 5/1/2020) (Entered: 05/01/2020)
72 NOTICE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas NOTICE OF REQUEST FOR RELEASE (Attachments: # 1 Exhibit Request Application for Release for Maria Elena Luna Estrada (AKA Alejandra Martinez Valdepena), # 2 Exhibit Request Application for Release for Armando Aguilar Ceja, # 3 Exhibit Request Application for Release for Delﬁna Soto Soto, # 4 Exhibit Request Application for Release for Jennifer Lara Plascencia, # 5 Exhibit Request Application for Release for Maria del Carmen Carrillo de Varela, # 6 Exhibit Request Application for Release for Willian Maria Rauda)(Salceda, Angelica) (Filed on 5/1/2020) (Entered: 05/01/2020)
73 NOTICE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas NOTICE OF REQUEST FOR RELEASE (Attachments: # 1 Exhibit Request Application for Release for Juan Jose Erazo Herrera, # 2 Exhibit Request Application for Release for Livia Pinheiro)(Salceda, Angelica) (Filed on 5/1/2020) (Entered: 05/01/2020)
92 Minute Entry for proceedings held before Judge Vince Chhabria: Case Management Conference held on 5/1/2020.

The government was ordered to ﬁle a brief addressing magistrate judge jurisdiction over bail applications by Sunday, May 3 at noon.

The government was ordered to provide the Court and plaintiffs counsel with updated detainee spreadsheets next Friday, May 8. The government should also provide daily updates on any detainees who have been released. And the government was ordered to provide by Monday, May 4 a list of all detainees who have been ordered released on bond by an immigration judge and who remain in detention because they cannot pay the bond.

For now, bail applications are limited to detainees with medical vulnerabilities, detainees with no criminal history, and female detainees. The plaintiffs may ﬁle 30 applications per weekday, which the government may respond to within 48 hours.

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For the ﬁrst ten applications ﬁled on May 1, the government must respond by Monday, May 4. It must respond to any additional applications by Tuesday, May 5. The plaintiffs may not ﬁle reply briefs, but bail determinations will be without prejudice.

Although multiple requests can and should be ﬁled at one time, the parties are asked to attach a separate pdf document for each detainee. Compare Dkt. No. 79 (correct) with Dkt. No. 85 (incorrect).

The government is ordered to provide information about its capacity to test for Covid-19 at the facilities, and about the length of time needed to obtain test results.

The government is ordered to respond to the plaintiffs' discovery requests, and provide responsive documents, by Friday, May 8. If there are any disputes, the parties must meet and confer.

An additional case management conference was scheduled for Tuesday, May 5, 2020, at 1:00 PM PDT. {This conference was later rescheduled for 3:00 PM. See Dkt. No. 82.)

Total Time in Court: 1:28. Court Reporter: Hearing recorded via Zoom Webinar, 3:07 PM - 4:35 PM.

Plaintiff Attorneys: Emi Maclean, Angelica Salceda, and Marty Schenker. Defendant Attorneys: Adrienne Zack and Wendy Garbers.

(This is a text-only entry generated by the court. There is no document associated with this entry.) (vclc1S, COURT STAFF) (Date Filed: 5/5/2020) Modiﬁed on 5/5/2020 (knm, COURT STAFF). Modiﬁed on 5/6/2020: Matter was not transcribed (see Docket #110). (rjdS, COURT STAFF). Modiﬁed on 7/7/2020: Matter transcribed by Pam Hebel. (rjdS, COURT STAFF). (Entered: 05/05/2020)

05/02/2020

74 First Administrative Motion to File Under Seal Unredacted Release Requests ﬁled by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas. (Attachments: # 1 Exhibit Unredacted Request of Alejandra Martinez Valdepena, # 2 Exhibit Unredacted Request of Armando Aguilar Ceja, # 3 Exhibit Unredacted Request of Delﬁna Soto, # 4 Exhibit Unredacted Request of Jennifer Lara Plascencia, # 5 Exhibit Unredacted Request of Maria del Carmen, # 6 Exhibit Unredacted Request of Willian Matias Rauda)(Salceda, Angelica) (Filed on 5/2/2020) (Entered: 05/02/2020)

05/02/2020

75 Second Administrative Motion to File Under Seal Unredacted Release Requests ﬁled by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas. (Attachments: # 1 Exhibit Unredacted Release Request for Juan Jose Erazo Herrera, # 2 Unredacted Release Request for Livia Pinheiro)(Salceda, Angelica) (Filed on 5/2/2020) (Entered: 05/02/2020)

05/03/2020

76 RESPONSE re 62 Brief, 61 Brief, Regarding (1) Burden of Proof for Bail Applications and (2) Magistrate-Judge Authority by Matthew T. Albence, David Jennings, US Immigration and Customs Enforcement. (Choe, Shiwon) (Filed on 5/3/2020) (Entered: 05/03/2020)

05/03/2020

77 NOTICE by Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus

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Zepeda Rivas Notice of Request for Release (Attachments: # 1 Exhibit Release Request for Armando Parra-Rojas, # 2 Exhibit Release Request for Brenda Ruiz Tovar, # 3 Exhibit Release Request for Juan Fredy Montoya, # 4 Exhibit Release Request for Lawrence Kuria Mwaura, # 5 Exhibit Release Request for Pravindar Singh, # 6 Exhibit Release Request for Ruby Joy Acita Buenaventura)(Salceda, Angelica) (Filed on 5/3/2020) (Entered: 05/03/2020)
78 NOTICE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas Request for Release (Attachments: # 1 Exhibit Release Request for Aylaliya Birru, # 2 Exhibit Release Request for Eleazar Porcayo Garcia, # 3 Exhibit Release Request for Lillian Marquez, # 4 Exhibit Release Request for Maria Ayala, # 5 Exhibit Release Request for Ricardo Vasquez)(Salceda, Angelica) (Filed on 5/3/2020) (Entered: 05/03/2020)
79 Third Administrative Motion to File Under Seal Unredacted Release Requests ﬁled by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas. (Attachments: # 1 Exhibit Unredacted Release Request for Armando Parra-Rojas, # 2 Exhibit Unredacted Release Request for Brenda Ruiz Tovar, # 3 Exhibit Unredacted Release Request for Juan Fredy Montoya, # 4 Exhibit Unredacted Release Request for Lawrence Kuria Mwaura, # 5 Exhibit Unredacted Release Request for Pravindar Singh, # 6 Exhibit Unredacted Release Request for Ruby Joy Acita Buenaventura)(Salceda, Angelica) (Filed on 5/3/2020) (Entered: 05/03/2020)
80 Fourth Administrative Motion to File Under Seal Unredacted Release Requests ﬁled by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas. (Attachments: # 1 Exhibit Unredacted Release Request for Eleazar Porcayo Garcia, # 2 Exhibit Unredacted Release Request for Lillian Marquez, # 3 Exhibit Unredacted Release Request for Maria Ayala, # 4 Exhibit Unredacted Release Request for Ricardo Vasquez)(Salceda, Angelica) (Filed on 5/3/2020) (Entered: 05/03/2020)
81 ORDER re 67 Joint Proposed Order Re Brieﬁng and Hearing Schedule for Preliminary Injunction. Motion for preliminary injunction due by 5/15/2020 5:00 PM. Responses due by 5/20/2020 5:00 PM. Replies due by 5/22/2020 5:00 PM. Preliminary Injunction Hearing set for 5/26/2020 10:00 AM. Signed by Judge Vince Chhabria on 5/4/2020. (vclc1S, COURT STAFF) (Filed on 5/4/2020) (Entered: 05/04/2020)
82 CLERK'S NOTICE RESETTING CASE MANAGEMENT CONFERENCE. Tuesday's Case Management Conference, previously set for 1:00 PM PDT, is now set for 3:00 PM PDT, still on 5/5/2020. The information to access the Zoom videoconference has not changed.

Case participants have been sent individualized invitations to participate. Members of the public and press should click the link or use the information below to join the webinar:

https://us02web.zoom.us/j/86116111630? pwd=d1J1N2pidXBoVlFMUkVqWklHcDQ3UT09

Meeting ID: 861 1611 1630 Password: 971651

Dial by your location +1 929 205 6099 US (New York)

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+1 253 215 8782 US +1 301 715 8592 US +1 312 626 6799 US (Chicago) +1 346 248 7799 US (Houston) +1 669 900 6833 US (San Jose) Find your local number: https://zoom.us/u/ac4JkPfcjo

For important information and guidance on technical preparation, please see https://www.cand.uscourts.gov/zo om/.

(This is a text-only entry generated by the court. There is no document associated with this entry.) (vclc1S, COURT STAFF) (Filed on 5/4/2020) (Entered: 05/04/2020)

05/04/2020

83 Judicial Referral for Purpose of Determining Relationship of Cases. (hsglc1S, COURT STAFF) (Filed on 5/4/2020) (Entered: 05/04/2020)

05/04/2020

84 *** ERRONEOUS ENTRY-DOCUMENT LOCKED. SEE 114 *** NOTICE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas NOTICE OF REQUEST FOR RELEASE (Salceda, Angelica) (Filed on 5/4/2020) Modiﬁed on 5/7/2020 (mclS, COURT STAFF). (Entered: 05/04/2020)

05/04/2020

85 *** ERRONEOUS ENTRY. SEE 116 *** Fifth Administrative Motion to File Under Seal NOTICE OF REQUEST TO FILE UNDER SEAL ﬁled by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas. (Salceda, Angelica) (Filed on 5/4/2020) Modiﬁed on 5/8/2020 (mclS, COURT STAFF). (Entered: 05/04/2020)

05/04/2020

86 NOTICE by Matthew T. Albence, David Jennings, US Immigration and Customs Enforcement re 66 Notice (Other), Response to Bail Application (Zack, Adrienne) (Filed on 5/4/2020) (Entered: 05/04/2020)

05/04/2020

87 NOTICE by Matthew T. Albence, David Jennings, US Immigration and Customs Enforcement re 72 Notice (Other),,, Response to Bail Applications (Attachments: # 1 Response to ECF 72-2, Aguilar Ceja, # 2 Response to ECF 72-3, Soto Soto, # 3 Response to ECF 72-4, Lara Plascencia, # 4 Response to ECF 72-5, Carrillo de Varela, # 5 Response to ECF 72-6, Matias Rauda)(Zack, Adrienne) (Filed on 5/4/2020) (Entered: 05/04/2020)

05/04/2020

88 NOTICE by Matthew T. Albence, David Jennings, US Immigration and Customs Enforcement re 73 Notice (Other), Response to Bail Applications (Attachments: # 1 Response to ECF 73-1, Erazo Herrera, # 2 Response to ECF 73-2, Pinheiro)(Zack, Adrienne) (Filed on 5/4/2020) (Entered: 05/04/2020)

05/04/2020

89 Administrative Motion to File Under Seal Response to Bail Application ﬁled by Matthew T. Albence, David Jennings, US Immigration and Customs Enforcement. (Attachments: # 1 Unredacted Response to ECF 73-1, Erazo Herrera)(Zack, Adrienne) (Filed on 5/4/2020) (Entered: 05/04/2020)

05/04/2020

90 STANDARD FOR CONSIDERING BAIL REQUESTS. Signed by Judge Vince Chhabria on 5/4/2020. (vclc2S, COURT STAFF) (Filed on 5/4/2020) (Entered: 05/04/2020)

05/04/2020

93 ***DISREGARD. DUPLICATE FILING, SEE DOCKET NO. 83.***Judicial Referral for Purpose of Determining Relationship of Cases re 20-cv- 2966-HSG. Signed by Judge Haywood S. Gilliam, Jr. on 5/4/2020. (ndrS, COURT STAFF) (Filed on 5/4/2020) Modiﬁed on 5/5/2020 (ndrS, COURT STAFF). (Entered: 05/05/2020)

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94 SHORT-FORM BAIL APPLICATION (Final Version). Signed by Judge Vince Chhabria on 5/5/2020. (vclc2S, COURT STAFF) (Filed on 5/5/2020) (Entered: 05/05/2020)
95 BAIL ORDER NO. 1. Signed by Judge Vince Chhabria on 5/5/2020. (vclc2S, COURT STAFF) (Filed on 5/5/2020) (Entered: 05/05/2020)
96 STIPULATION WITH PROPOSED ORDER JOINT [PROPOSED] SEALING ORDER RE ALL BAIL APPLICATIONS ﬁled by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas. (Freeman, William) (Filed on 5/5/2020) (Entered: 05/05/2020)
97 BAIL ORDER NO. 2. Signed by Judge Vince Chhabria on 5/5/2020. (vclc2S, COURT STAFF) (Filed on 5/5/2020) (Entered: 05/05/2020)
98 *** DISREGARD - FILED IN ERROR (See Docket # 110 ) *** TRANSCRIPT ORDER for proceedings held on 4/28/20, 4/30/20, 5/1/20 before Judge Vince Chhabria by Matthew T. Albence, Nathan Allen, David Jennings, for Court Reporter FTR - San Francisco. (Garbers, Wendy) (Filed on 5/5/2020) Modiﬁed on 5/6/2020 (rjdS, COURT STAFF). (Entered: 05/05/2020)
99 STIPULATION WITH PROPOSED ORDER for Further Protective Order ﬁled by Matthew T. Albence, David Jennings, US Immigration and Customs Enforcement. (Attachments: # 1 Proposed Further Stipulated Protective Order)(Zack, Adrienne) (Filed on 5/5/2020) (Entered: 05/05/2020)
100 CLERK'S NOTICE SETTING ZOOM WEBINAR STATUS CONFERENCE ON 5/7/2020. ADVANCE REGISTRATION OF PARTICIPATING COUNSEL REQUIRED - SEE BELOW.
A status conference is set for 3:00 PM PDT on Thursday, May 7, 2020. For Zoom connection, see: https://apps.cand.uscourts.gov/telhrg/.
Pre-registration by counsel with the clerk must be done by emailing a list of names and emails of counsel who will be participating in the hearing to vccrd@cand.uscourts.gov no later than May 6, 2020, at 12:00 PM PDT. Case participants will sent individualized invitations to participate.
Members of the public and press, please click the link or use the information below to join the webinar:
https://us02web.zoom.us/j/87368284240? pwd=SVlyTEtQaHBVOGlHNkRhRkZySVZVdz09
Meeting ID: 873 6828 4240 Password: 971651
Dial by your location: +1 929 205 6099 US (New York) +1 253 215 8782 US +1 301 715 8592 US +1 312 626 6799 US (Chicago) +1 346 248 7799 US (Houston) +1 669 900 6833 US (San Jose)

https://ecf.cand.uscourts.gov/cgi-bin/DktRpt.pl?872274752824394-L_1_0-1

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Find your local number: https://zoom.us/u/ac4JkPfcjo

For important information and guidance on technical preparation, please see https://www.cand.usco urts.gov/zoom/.

05/05/2020

(This is a text-only entry generated by the court. There is no document associated with this entry.),(vclc1S, COURT STAFF) (Filed on 5/5/2020) (Entered: 05/05/2020)
101 Minute Entry for proceedings held before Judge Vince Chhabria: Case Management Conference held on 5/5/2020 via Zoom Webinar.

The Court ordered that bail applications, and responses to bail applications, must be signed by the litigating attorney most responsible for verifying the accuracy of the representations contained in the document. This does not preclude attorneys from making representations on information and belief when necessary.

Going forward, bail applications ﬁled after 7:00 PM will be treated as having been ﬁled the following day. Responses to bail applications are due two days after the application was ﬁled, at 5:00 PM. Responses to bail applications ﬁled Friday (or after 7:00 PM on Thursday) are due Monday. Responses to bail applications ﬁled Saturday and Sunday are due Tuesday.

ICE is ordered to continue providing, by 5:00 PM every day, a list of all individuals who have been released that day from each facility. That list must specify whether the individual was transferred, deported, released into the community, or discharged in some other way. ICE is also ordered to provide, in that same list, information regarding any individuals whom ICE is in the process of transferring, deporting, releasing, or otherwise discharging from the facilities.

The Court will issue orders regarding sealing and standard conditions of release.

Contrary to the ﬁnalized short-form bail application previously ﬁled, bail applicants do not need to provide information regarding spouses or children, as discussed on the record.

Rap sheets and I-213 forms do not need to be transmitted to the Court except in individual circumstances if a party believes the documents are necessary to adjudicate a bail request.

The government is ordered to ﬁle a report by Thursday, May 7, at 5:00 PM, providing information about any people detained in the facilities as of the date of the TRO hearing who were eligible for release on bond and were kept detained because bond hadnt posted. For each person, the report should include as much relevant information as possible, including how long the person has been detained.

Regarding any disputes relating to access to counsel and telephones at the facilities, the parties are ordered to meet and confer, and if necessary they may submit a joint 5-page letter by Thursday in accordance with Judge Chhabria's Civil Standing Order.

The Court ordered that ICE is prohibited from seeking information from potential custodians regarding the immigration status of any person in the household. Any of this information provided to the government through the bail process should be designated Attorney's Eyes Only, a designation which also excludes agency counsel

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from viewing the information. If the parties disagree about the need for a further protective order regarding this information, they may submit a joint 5-page letter.

The government is ordered to prioritize providing the medical records for all pro se detainees.

Class counsel may ﬁle a brief if it wishes regarding common issues that arise in the bail applications. Class counsel should provide the government as much advance notice as possible of the issues it intends to address in the brief. The government may ﬁle a response.

A further status conference is scheduled for Thursday, May 7, at 3:00 PM.

Total Time in Court: 1:43. Court Reporter: Zoom Webinar, 3:06 PM - 4:49 PM.

Plaintiff Attorneys: Emilou Maclean, Anglica Salceda, Marty Schenker, and Sean Riordan. Defendant Attorneys: Adrienne Zack, Wendy Garbers, and Shiwon Choe.

05/05/2020 05/05/2020 05/05/2020 05/05/2020 05/06/2020

(This is a text-only entry generated by the court. There is no document associated with this entry.) (vclc1S, COURT STAFF) (Date Filed: 5/5/2020) Modiﬁed on 7/7/2020: Matter transcribed by Pam Hebel. (rjdS, COURT STAFF). (Entered: 05/05/2020)
102 RESPONSE re 95 Order PETITIONERS-PLAINTIFFS COMMENTS RE STANDARD CONDITIONS OF RELEASE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas. (Freeman, William) (Filed on 5/5/2020) (Entered: 05/05/2020)
103 NOTICE by Matthew T. Albence, David Jennings, US Immigration and Customs Enforcement re 77 Notice (Other),, Response to Bail Applications (Attachments: # 1 Response to ECF 77-1, Parra Rojas, # 2 Response to ECF 77-2, Ruiz Tovar, # 3 Response to ECF 77-3, Montoya Echeverria, # 4 Response to ECF 77-4, Mwaura, # 5 Response to ECF 77-5, Singh, # 6 Response to ECF 77-6, Buenaventura)(Zack, Adrienne) (Filed on 5/5/2020) (Entered: 05/05/2020)
104 NOTICE by Matthew T. Albence, David Jennings, US Immigration and Customs Enforcement re 78 Notice (Other),, Response to Bail Applications (Attachments: # 1 Response to ECF 78-1, Birru, # 2 Response to ECF 78-2, Porcayo Garcia, # 3 Response to ECF 78-3, Marquez, # 4 Response to ECF 78-4, Ayala Alonso, # 5 Response to ECF 78-5, Vasquez Cruz)(Zack, Adrienne) (Filed on 5/5/2020) (Entered: 05/05/2020)
105 Administrative Motion to File Under Seal Response to Bail Application ﬁled by Matthew T. Albence, David Jennings, US Immigration and Customs Enforcement. (Attachments: # 1 Unredacted Response to ECF 77-4, Mwaura)(Zack, Adrienne) (Filed on 5/5/2020) (Entered: 05/05/2020)
106 *** FILED IN ERROR. PLEASE SEE DOCKET # 107 ***

05/06/2020

BAIL ORDER NO. 3. Signed by Judge Vince Chhabria on 5/6/2020. (vclc1S, COURT STAFF) (Filed on 5/6/2020) Modiﬁed on 5/6/2020 (vclc1S, COURT STAFF). (Entered: 05/06/2020)
107 BAIL ORDER NO. 3. Signed by Judge Vince Chhabria on 5/6/2020. (vclc1S, COURT STAFF) (Filed on 5/6/2020) (Entered: 05/06/2020)

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108 STANDARD CONDITIONS OF RELEASE. Signed by Judge Vince Chhabria on 5/6/2020. (vclc1S, COURT STAFF) (Filed on 5/6/2020) (Entered: 05/06/2020)
109 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7-3.d ﬁled byMatthew T. Albence, David Jennings, US Immigration and Customs Enforcement. (Garbers, Wendy) (Filed on 5/6/2020) (Entered: 05/06/2020)
110 AUDIO RECORDINGS ORDER (re: 92 Case Management Conference - Further,,,,,,,,,, 91 Case Management Conference - Further,,,,,,,, 55 Motion Hearing,,, ), by David Jennings. Court will send to Lucy Rollins at lucy.rollins@usdoj.gov a link to the ﬁles requested in this order. Fee waived because ﬁler is USAO, FPD or CJA counsel on this case. (Garbers, Wendy) (Filed on 5/6/2020) (Entered: 05/06/2020)
111 NOTICE by Matthew T. Albence, David Jennings, US Immigration and Customs Enforcement re 84 Notice (Other), Response to Bail Applications (Attachments: # 1 Response to ECF 84-A, De Jesus Hernandez, # 2 Response to ECF 84-B, Soto Aguilar, # 3 Response to ECF 84-C, Rivera, # 4 Response to ECF 84-D, Chavez Cos, # 5 Response to ECF 84-E, Cruz Flores, # 6 Response to ECF 84-F, Singh)(Zack, Adrienne) (Filed on 5/6/2020) (Entered: 05/06/2020)
112 NOTICE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas Notice of Request for Release (Attachments: # 1 Exhibit Request Application for Release for Belkin Peralta Madrid, # 2 Exhibit Request Application for Release for Gustavo Raudales Banegas, # 3 Exhibit Request Application for Release for Sonia Commandant)(Beier, Genna) (Filed on 5/6/2020) (Entered: 05/06/2020)
113 Sixth Administrative Motion to File Under Seal Unredacted Release Requests ﬁled by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas. (Attachments: # 1 Exhibit Unredacted Request of Belkin Peralta Madrid, # 2 Exhibit Unredacted Request of Gustavo Raudales Banegas, # 3 Exhibit Unredacted Request of Sonia Commandant)(Beier, Genna) (Filed on 5/6/2020) (Entered: 05/06/2020)
114 NOTICE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas NOTICE OF REQUEST FOR RELEASE CORRECTION OF DOCKET # 84 (Salceda, Angelica) (Filed on 5/6/2020) (Entered: 05/06/2020)
115 BAIL ORDER NO. 4. Signed by Judge Vince Chhabria on 5/7/2020. (vclc1S, COURT STAFF) (Filed on 5/7/2020) (Entered: 05/07/2020)
116 Administrative Motion to File Under Seal NOTICE OF REQUEST FOR RELEASE CORRECTION OF DOCKET # 85 ﬁled by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas. (Salceda, Angelica) (Filed on 5/7/2020) (Entered: 05/07/2020)
117 ORDER by Judge Vince Chhabria granting Stipulation regarding Sealing and Administrative Motions to File under Seal.(vclc2S, COURT STAFF) (Filed on 5/7/2020) (Entered: 05/07/2020)
118 ORDER granting Stipulated Further Protective Order. Signed by Judge Vince Chhabria on 5/7/2020. (vclc2S, COURT STAFF) (Filed on 5/7/2020) (Entered: 05/07/2020)
119 NOTICE by Matthew T. Albence, David Jennings, US Immigration and Customs

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Enforcement of Report of Bond Information (Attachments: # 1 Exhibit A)(Zack, Adrienne) (Filed on 5/7/2020) (Entered: 05/07/2020)
120 NOTICE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas Request for Release (Attachments: # 1 Exhibit Release Request for Jose Medina, # 2 Exhibit Release Request for Roselia Aguirre Torres) (Salceda, Angelica) (Filed on 5/7/2020) (Entered: 05/07/2020)
121 DOCUMENT E-FILED UNDER SEAL re 117 Order on Administrative Motion to File Under Seal,,,,,, Order on Stipulation,,, Request for Release by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas. (Attachments: # 1 Exhibit Sealed Request for Release for Jose Medina, # 2 Exhibit Sealed Request for Release for Roselia Aguirre)(Salceda, Angelica) (Filed on 5/7/2020) (Entered: 05/07/2020)
122 Brief on Common Issues in Bail Review Process ﬁled byJavier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas. (Riordan, Sean) (Filed on 5/7/2020) (Entered: 05/07/2020)
123 Minute Entry for proceedings held before Judge Vince Chhabria: Status Conference held via Zoom Webinar on 5/7/2020.
The parties are asked to use fewer non-obvious acronyms in future bail applications. ICE is ordered to provide information regarding the reasons for releases from the facilities since the TRO hearing. Class counsel may ﬁle a short reply brief by midnight on the day of the government's response to a bail application if counsel already possess information relevant to assertions made in the government's response. The parties are ordered to ﬁle information about the criminal histories of proposed custodians under seal.
A further status conference is scheduled for Monday, May 11, at 3:00 PM.
Total Time in Court: 49 minutes Court Reporter: Hearing recorded via Zoom Webinar, 3:03 PM - 3:52 PM.
Plaintiff Attorneys: Emilou Maclean and Angelica Salceda. Defendant Attorneys: Wendy Garbers and Shiwon Choe.
(This is a text-only entry generated by the court. There is no document associated with this entry.)(vclc1S, COURT STAFF) (Date Filed: 5/7/2020) Modiﬁed on 7/7/2020: Matter transcribed by Pam Hebel. (rjdS, COURT STAFF). (Entered: 05/07/2020)
CLERK'S NOTICE REGARDING THE ZOOM STATUS CONFERENCE ON 5/11/2020. This proceeding will be a Zoom video conferencing webinar. For Zoom connection information, see: https://apps.cand.uscourts.gov/telhrg/.
ADVANCE REGISTRATION OF PARTICIPATING COUNSEL IS REQUIRED and must be done by emailing a list of names and emails of counsel who will be participating in the hearing to vccrd@cand.uscourts.gov no later than Monday, May 11 at 10:00 AM PDT.
Counsel who have pre-registered will receive individualized invitations to participate.

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Members of the public and press, please click the link or use the information below to join the webinar:
https://us02web.zoom.us/j/88329985083? pwd=TEtXRWM4Tk9UckkrNndCbDlYa1Jldz09
Meeting ID: 883-2998-5083 Password: 971651
Dial by your location +1 929 205 6099 US (New York) +1 253 215 8782 US +1 301 715 8592 US +1 312 626 6799 US (Chicago) +1 346 248 7799 US (Houston) +1 669 900 6833 US (San Jose) Find your local number: https://zoom.us/u/ac4JkPfcjo

For important information and guidance on technical preparation, please see https://www.cand.uscourts.gov/zoom/.

(Thi s is a text-only entry generated by the court. There is no document associated with this entry.) (vclc1S, COURT STAFF) (Filed on 5/7/2020) (Entered: 05/07/2020)

05/08/2020

124 Judicial Referral for Purpose of Determining Relationship of Cases re 20-cv-03145KAW. Signed by Judge Kandis A. Westmore on 5/8/2020. (kawlc1, COURT STAFF) (Filed on 5/8/2020) (Entered: 05/08/2020)

05/08/2020

125 Letter Brief Brief re Protective Order for Undocumented Sponsors ﬁled byJavier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas. (Attachments: # 1 Declaration of Genna Ellis Beier in Support of Brief re Protective Order for, # 2 Proposed Order)(Lakin, Judah) (Filed on 5/8/2020) Modiﬁed on 5/11/2020 (mclS, COURT STAFF). (Entered: 05/08/2020)

05/08/2020

126 Judicial Referral for Purpose of Determining Relationship of Cases re 1:20-cv02864-RMI. Signed by Judge Robert M. Illman on 05/08/2020. (rmilc2S, COURT STAFF) (Filed on 5/8/2020) (Entered: 05/08/2020)

05/08/2020

127 NOTICE by Matthew T. Albence, David Jennings, US Immigration and Customs Enforcement re 112 Notice (Other), Response to Bail Applications (Attachments: # 1 Response to ECF 112-2, Raudales-Banegas)(Zack, Adrienne) (Filed on 5/8/2020) (Entered: 05/08/2020)

05/08/2020

128 NOTICE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas Request for Release (Attachments: # 1 Exhibit Release Request for Roberto Antonio Ramirez Pineda, # 2 Exhibit Release Request for Yao Xeng Saeturn, # 3 Exhibit Release Request for Jaswinder Singh, # 4 Exhibit Release Request for Victor Fierros Hurtado, # 5 Exhibit Release Request for Esgar Lopez Lucas, # 6 Exhibit Release Request for Walter Maldonado)(Salceda, Angelica) (Filed on 5/8/2020) (Entered: 05/08/2020)

05/08/2020

129 DOCUMENT E-FILED UNDER SEAL re 117 Order on Administrative Motion to File Under Seal,,,,,, Order on Stipulation,,, Request for Release by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz

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Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas. (Attachments: # 1 Exhibit Sealed Request for Release Roberto Antonio Ramirez Pineda, # 2 Exhibit Sealed Request for Release Yao Xeng Saeturn, # 3 Exhibit Sealed Request for Release Jaswinder Singh, # 4 Exhibit Sealed Request for Release Victor Fierros Hurtado, # 5 Exhibit Sealed Request for Release Esgar Lopez Lucas, # 6 Exhibit Sealed Request for Release Walter Maldonado)(Salceda, Angelica) (Filed on 5/8/2020) (Entered: 05/08/2020)
130 NOTICE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas re 127 Notice (Other), Reply to Dfts Response (Attachments: # 1 Exhibit Reply to Dfts' Response to Bail Application for Gustavo Raudales Benegas)(MacLean, Emilou) (Filed on 5/8/2020) (Entered: 05/08/2020)
131 CLERK'S NOTICE REGARDING STATUS CONFERENCE for 5/11/2020 03:00 PM by Zoom Webinar. For Zoom connection, see: https://apps.cand.uscourts.gov/telhrg/.
ADVANCE REGISTRATION OF PARTICIPATING COUNSEL IS REQUIRED. Please register by sending the the names and emails of counsel who will be participating in the conference to vccrd@cand.uscourts.gov no later than Monday, May 11 at 10:00 AM PDT. Counsel who have pre-registered will receive individualized invitations to participate.
Members of the public and press, please click the link or use the information below to join the webinar:
https://us02web.zoom.us/j/88329985083? pwd=TEtXRWM4Tk9UckkrNndCbDlYa1Jldz09
Meeting ID: 883 2998 5083 Password: 971651
Dial by your location +1 929 205 6099 US (New York) +1 253 215 8782 US +1 301 715 8592 US +1 312 626 6799 US (Chicago) +1 346 248 7799 US (Houston) +1 669 900 6833 US (San Jose) Find your local number: https://zoom.us/u/ac4JkPfcjo

For important information and guidance on technical preparation, please see https://www.cand.uscourts.gov/zoom/.

05/09/2020 05/09/2020

(This is a text-only entry generated by the court. There is no document associated with this entry.) (vclc1S, COURT STAFF) (Filed on 5/9/2020) (Entered: 05/09/2020)
132 BAIL ORDER NO. 5. Signed by Judge Vince Chhabria on 5/9/2020. (vclc1S, COURT STAFF) (Filed on 5/9/2020) (Entered: 05/09/2020)
133 NOTICE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas NOTICE OF REQUEST FOR RELEASE (Attachments: # 1 Exhibit Request Application for Release for Carlos Solis Manzanilla, # 2 Exhibit Request Application for Release for Choung Woohn Ahn, # 3 Exhibit Request Application for Release for Leonidez Mendez Hinojosa)(Beier, Genna) (Filed on 5/9/2020) (Entered: 05/09/2020)

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134 DOCUMENT E-FILED UNDER SEAL re 117 Order on Administrative Motion to File Under Seal,,,,,, Order on Stipulation,,, Request for Release by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas. (Attachments: # 1 Exhibit Sealed Request for Release for Carlos Solis Manzanilla, # 2 Exhibit Sealed Request for Release for Choung Woohn Ahn, # 3 Exhibit Sealed Request for Release for Leonidez Mendez Hinojosa)(Beier, Genna) (Filed on 5/9/2020) (Entered: 05/09/2020)
135 Letter Brief ﬁled byMatthew T. Albence, David Jennings, US Immigration and Customs Enforcement. (Garbers, Wendy) (Filed on 5/11/2020) (Entered: 05/11/2020)
136 NOTICE by Matthew T. Albence, David Jennings, US Immigration and Customs Enforcement re 120 Notice (Other), Response to Bail Applications (Attachments: # 1 Response to ECF 120-1, Medina Molina, # 2 Response to ECF 120-2, Aguirre-Torres) (Zack, Adrienne) (Filed on 5/11/2020) (Entered: 05/11/2020)
137 NOTICE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas NOTICE OF REQUEST FOR RELEASE (Attachments: # 1 Exhibit Request Application for Release for Maximo Martinez-Juan, # 2 Exhibit Request Application for Release for Julio Cesar Buendia Alas, # 3 Exhibit Request Application for Release for Fermin Trujillo-Lopez, # 4 Exhibit Request Application for Release for Osvaldo Mohamed Lopez, # 5 Exhibit Letter from Sun Street Medical Centers Men's Residential in Support of Osvaldo Mohamed Lopez)(Beier, Genna) (Filed on 5/11/2020) (Entered: 05/11/2020)
138 DOCUMENT E-FILED UNDER SEAL re 117 Order on Administrative Motion to File Under Seal,,,,,, Order on Stipulation,,, REQUEST FOR RELEASE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas. (Attachments: # 1 Exhibit Sealed Request for Release for Maximo Martinez-Juan, # 2 Exhibit Sealed Request for Release for Julio Cesar Buendia Alas, # 3 Exhibit Sealed Request for Release for Fermin Trujillo-Lopez, # 4 Exhibit Sealed Request for Release for Osvaldo Mohamed Lopez, # 5 Exhibit Letter from Sun Street Medical Centers Men's Residential in Support of Osvaldo Mohamed Lopez)(Beier, Genna) (Filed on 5/11/2020) (Entered: 05/11/2020)
139 NOTICE by Matthew T. Albence, David Jennings, US Immigration and Customs Enforcement re 128 Notice (Other),, Response to Bail Applications (Attachments: # 1 Response to ECF 128-1, Ramirez Pineda, # 2 Response to ECF 128-2, Saeturn, # 3 Response to ECF 128-3, Singh, # 4 Response to ECF 128-4, Fierros Hurtado, # 5 Response to ECF 128-5, Lopez Lucas, # 6 Response to ECF 128-6, Maldonado Mancia) (Zack, Adrienne) (Filed on 5/11/2020) (Entered: 05/11/2020)
140 CLERK'S NOTICE SETTING ZOOM STATUS CONFERENCE. Status Conference set for 5/15/2020 02:00 PM by Zoom Webinar. For Zoom connection information, see: https://apps.cand.uscourts.gov/telhrg/.
ADVANCE REGISTRATION OF PARTICIPATING COUNSEL IS REQUIRED. Please register by sending the the names and emails of counsel who will be participating in the conference to vccrd@cand.uscourts.gov no later than noon on Thursday, May 14. Counsel who have pre-registered will receive individualized invitations to participate.
Members of the public and press, please click the link or use the information below to join the webinar:

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https://us02web.zoom.us/j/85332374575? pwd=eWIxbEptUFJvVVYvYlBUaFZVdnhDUT09

Meeting ID: 853 3237 4575 Password: 971651

Dial by your location +1 929 205 6099 US (New York) +1 253 215 8782 US +1 301 715 8592 US +1 312 626 6799 US (Chicago) +1 346 248 7799 US (Houston) +1 669 900 6833 US (San Jose) Find your local number: https://zoom.us/u/ac4JkPfcjo

For important information and guidance on technical preparation, please see https://www.cand.uscourts.gov/zoom/. (This is a text-only entry g enerated by the court. There is no document associated with this entry.) (vclc1S, COURT STAFF) (Filed on 5/11/2020) (Entered: 05/11/2020)

05/11/2020

141 DOCUMENT E-FILED UNDER SEAL re 117 Order on Administrative Motion to File Under Seal,,,,,, Order on Stipulation,,, Unredacted Response to Bail Application ECF 128-1, Ramirez Pineda by Matthew T. Albence, David Jennings, US Immigration and Customs Enforcement. (Zack, Adrienne) (Filed on 5/11/2020) (Entered: 05/11/2020)

05/11/2020

142 RESPONSE re 122 Brief, on Common Issues in Bail Review Process by Matthew T. Albence, David Jennings, US Immigration and Customs Enforcement. (Attachments: # 1 Appendix Torres Murillo v. Barr)(Choe, Shiwon) (Filed on 5/11/2020) (Entered: 05/11/2020)

05/11/2020

143 NOTICE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas re 139 Notice (Other), Reply to Dfts Response (Attachments: # 1 Exhibit Reply to Dfts Opp of Roberto Antonio Ramirez Pineda, # 2 Exhibit Reply to Dfts Opp of Jaswinder Singh)(Salceda, Angelica) (Filed on 5/11/2020) (Entered: 05/11/2020)

05/12/2020

144 Statement re 126 Judicial Referral for Purpose of Determining Relationship of Cases; [PROPOSED] Order by Matthew T. Albence, David Jennings, US Immigration and Customs Enforcement. (Hsu, Shining) (Filed on 5/12/2020) Modiﬁed on 5/12/2020 (mclS, COURT STAFF). (Entered: 05/12/2020)

05/12/2020 145 BAIL ORDER NO. 6. Signed by Judge Vince Chhabria on 5/12/2020. (vclc1S, COURT STAFF) (Filed on 5/12/2020) (Entered: 05/12/2020)

05/12/2020 146 Letter (Reply Letter Brief). (Attachments: # 1 Exhibit A (Order Granting Protective Order))(Lakin, Judah) (Filed on 5/12/2020) (Entered: 05/12/2020)

05/12/2020 147 Letter Brief ﬁled byMatthew T. Albence, David Jennings, US Immigration and Customs Enforcement. (Garbers, Wendy) (Filed on 5/12/2020) (Entered: 05/12/2020)

05/12/2020

148 ORDER RE PRELIMINARY INJUNCTION SCHEDULE. Signed by Judge Vince Chhabria on 5/12/2020. (vclc1S, COURT STAFF) (Filed on 5/12/2020) (Entered: 05/12/2020)

05/12/2020

Set Deadlines/Hearings: Motions due by 5/22/2020. Responses due by 5/27/2020. Replies due by 5/29/2020. Preliminary Injunction Hearing set for 6/2/2020 10:00 AM. (vclc1S, COURT STAFF) (Filed on 5/12/2020) (Entered: 05/12/2020)

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149 Minute Entry for proceedings held before Judge Vince Chhabria: Status Conference held via Zoom Webinar on 5/11/2020.

The parties may ﬁle additional 2-page briefs by May 12 at 10:00 a.m. addressing additional caselaw and providing further factual background on the provision of custodian information and use-restrictions for that information in normal bond proceedings.

The Court took under consideration the plaintiffs' request for an extension of the brieﬁng schedule for a preliminary injunction.

ICE is ordered to include in their daily updates information about any detainees taken into custody (or transferred into) the two facilities on the previous day.

The plaintiffs may now ﬁle applications for any detainees. Regarding deferred applications, the Court will provide further guidance in the coming days about information needed to adjudicate those applications. Regarding denied applications, the plaintiffs may ﬁle renewed applications (marked as such), but the Court will prioritize adjudicating new applications.

Detainees with ERO or IJ bonds may apply for bail like other detainees.

The parties are ordered to meet and confer further regarding detainee phone access at the facilities. If disputes remain, a joint letter should be ﬁled by May 13 at 5:00 p.m.

ICE is ordered to provide an explanation at the next status conference for why the overall detainee numbers at Yuba County Jail have decreased less than the numbers at Mesa Verde.

A further status conference is scheduled for Friday, May 15, at 2:00 PM.

Total Time in Court: 1:41 Court Reporter: Hearing recorded via Zoom Webinar, 3:01 PM - 4:42 PM.

Plaintiff Attorneys: Emilou MacLean, Angelica Salceda, Martin Schenker, Sean Riordan, and Judah Lakin. Defendant Attorneys: Wendy Garbers, Adrienne Zack, and Shiwon Choe.

(This is a text-only entry generated by the court. There is no document associated with this entry.)(vclc1S, COURT STAFF) (Date Filed: 5/12/2020) Modiﬁed on 7/7/2020: Matter transcribed by Pam Hebel. (rjdS, COURT STAFF). (Entered: 05/12/2020)

05/12/2020

150 Statement of Opposition re 126 Judicial Referral for Purpose of Determining Relationship of Cases ; [PROPOSED] Order by Rachana Duong, Kethikoun Keo. (Hon, Willis) (Filed on 5/12/2020) Modiﬁed on 5/13/2020 (mclS, COURT STAFF). (Entered: 05/12/2020)

05/12/2020

151 NOTICE by Matthew T. Albence, David Jennings, US Immigration and Customs Enforcement re 133 Notice (Other), Response to Bail Applications (Attachments: # 1 Response to ECF 133-1, Manzanilla, # 2 Response to ECF 133-2, Ahn, # 3 Response to ECF 133-3, Mendez Hinojosa)(Zack, Adrienne) (Filed on 5/12/2020) (Entered: 05/12/2020)

05/12/2020 152 DOCUMENT E-FILED UNDER SEAL re 117 Order on Administrative Motion to File Under Seal,,,,,, Order on Stipulation,,, Unredacted Response to Bail Application ECF

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133-3, Mendez Hinojosa by Matthew T. Albence, David Jennings, US Immigration and Customs Enforcement. (Zack, Adrienne) (Filed on 5/12/2020) (Entered: 05/12/2020)

05/12/2020

153 NOTICE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez NOTICE OF REQUEST FOR RELEASE (Attachments: # 1 Notice of Request for Release for Raleigh Figueras, # 2 Notice of Request for Release for Maria Andres Salgado, # 3 Notice of Request for Release for Gilberto Pablo Perez, # 4 Notice of Request for Release for Hung Tien Nguyen, # 5 Notice of Request for Release for Wildson Tol-Morales, # 6 Notice of Request for Release for Mariano Aguilar Domingo, # 7 Notice of Request for Release for Edgar Mejia)(MacLean, Emilou) (Filed on 5/12/2020) (Entered: 05/12/2020)

05/12/2020

154 DOCUMENT E-FILED UNDER SEAL re 117 Order on Administrative Motion to File Under Seal,,,,,, Order on Stipulation,,, NOTICE OF REQUEST FOR RELEASE (UNDER SEAL) by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas. (Attachments: # 1 Sealed Request for Release for Raleigh Figueras, # 2 Sealed Request for Release for Maria Andres Salgado, # 3 Sealed Request for Release for Gilberto Pablo Perez, # 4 Sealed Request for Release for Hung Tien Nguyen, # 5 Sealed Request for Release for Wildson Tol-Morales, # 6 Sealed Request for Release for Mariano Aguilar Domingo, # 7 Sealed Request for Release for Edgar Mejia) (MacLean, Emilou) (Filed on 5/12/2020) (Entered: 05/12/2020)

05/12/2020

155 NOTICE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas re 151 Notice (Other), Reply to Dfts Responses (Attachments: # 1 Exhibit Reply to Dfts' Response to Bail Application for Carlos Solis Manzanilla, # 2 Exhibit Reply to Dfts' Response to Bail Application for Choung Woohn Ahn, # 3 Exhibit Reply to Dfts' Response to Bail Application for Leonidez Mendez Hinojosa)(Salceda, Angelica) (Filed on 5/12/2020) (Entered: 05/12/2020)

05/12/2020

156 NOTICE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas re 72 Notice (Other),,, 87 Notice (Other), 97 Order of Released Class Member's Transfer and Request for Adjudication of Bail Application (Beier, Genna) (Filed on 5/12/2020) (Entered: 05/12/2020)

05/13/2020

157 NOTICE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas re 137 Notice (Other),, NOTICE OF IMMIGRATION JUDGE ORDER RELEASING BAIL APPLICANT (Riordan, Sean) (Filed on 5/13/2020) (Entered: 05/13/2020)

05/13/2020 158 ORDER for Response to Docket No. 156. Signed by Judge Vince Chhabria on 5/13/2020. (vclc2S, COURT STAFF) (Filed on 5/13/2020) (Entered: 05/13/2020)

05/13/2020 159 BAIL ORDER NO. 7. Signed by Judge Vince Chhabria on 5/13/2020. (vclc1S, COURT STAFF) (Filed on 5/13/2020) (Entered: 05/13/2020)

05/13/2020

160 Declaration of Deportation Ofﬁcer Nancy Gonzalez in Support of 147 Letter Brief ﬁled byMatthew T. Albence, David Jennings, US Immigration and Customs Enforcement. (Related document(s) 147 ) (Garbers, Wendy) (Filed on 5/13/2020) (Entered: 05/13/2020)

05/13/2020 161 ORDER Granting Protective Order. Signed by Judge Vince Chhabria on 5/13/2020. (vclc2S, COURT STAFF) (Filed on 5/13/2020) (Entered: 05/13/2020)

05/13/2020 162 DOCUMENT E-FILED UNDER SEAL re 117 Order on Administrative Motion to File Under Seal,,,,,, Order on Stipulation,,, Response to ECF 156 by Matthew T. Albence,

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David Jennings, US Immigration and Customs Enforcement. (Attachments: # 1 Declaration Pham, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Declaration)(Zack, Adrienne) (Filed on 5/13/2020) (Entered: 05/13/2020)

05/13/2020

163 NOTICE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas NOTICE OF REQUEST FOR RELEASE (Attachments: # 1 Exhibit Request for Release for Luis Erasmo Castro Ramos, # 2 Exhibit Request for Release for Edgar Ismael Rodriguez Rojas, # 3 Exhibit Request for Release of Alex Rivera-Giorges, # 4 Exhibit Request for Release of Bhutta Mohammad Abbas, # 5 Exhibit Request for Release of Francisco Antonio Mendoza Canales, # 6 Exhibit Request for Release of Oscar Humberto Perrusquia Palomares)(Bernwanger, Bree) (Filed on 5/13/2020) (Entered: 05/13/2020)

05/13/2020

164 DOCUMENT E-FILED UNDER SEAL re 117 Order on Administrative Motion to File Under Seal,,,,,, Order on Stipulation,,, REQUEST FOR RELEASE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas. (Attachments: # 1 Exhibit Sealed Request for Release for Luis Erasmo Castro Ramos, # 2 Exhibit Sealed Request for Release for Edgar Ismael Rodriguez Rojas, # 3 Exhibit Sealed Request for Release for Alex Rivera-Giorges, # 4 Exhibit Sealed Request for Release for Bhutta Mohammad Abbas, # 5 Exhibit Sealed Request for Release for Francisco Antonio Mendoza Canales, # 6 Exhibit Sealed Request for Release for Oscar Humberto Perrusquia Palomares)(Bernwanger, Bree) (Filed on 5/13/2020) (Entered: 05/13/2020)

05/13/2020

165 NOTICE by Matthew T. Albence, David Jennings, US Immigration and Customs Enforcement re 137 Notice (Other),, Response to Bail Applications (Attachments: # 1 Response to ECF 137-1, Martinez Juan, # 2 Response to ECF 137-2, Buendia Alas, # 3 Response to ECF 137-3, Trujillo-Lopez)(Zack, Adrienne) (Filed on 5/13/2020) (Entered: 05/13/2020)

05/13/2020

166 NOTICE by Matthew T. Albence, David Jennings, US Immigration and Customs Enforcement re 156 Notice (Other), Redacted Response to ECF 156 (Attachments: # 1 Declaration of AFOD Pham, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Declaration of Davies) (Zack, Adrienne) (Filed on 5/13/2020) (Entered: 05/13/2020)

05/13/2020

167 NOTICE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas re 165 Notice (Other), Reply to Dfts Responses (Attachments: # 1 Exhibit Reply to Dfts' Response to Bail Application for Julio Buendia Alas, # 2 Exhibit Reply to Dfts' Response to Bail Application for Maximo Martinez-Juan) (Beier, Genna) (Filed on 5/13/2020) (Entered: 05/13/2020)

05/13/2020

168 Declaration of Attorney Hector Vega in Support of 156 Notice (Other), ﬁled byJavier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas. (Related document(s) 156 ) (Beier, Genna) (Filed on 5/13/2020) (Entered: 05/13/2020)

05/14/2020

169 NOTICE by Matthew T. Albence, David Jennings, US Immigration and Customs Enforcement re 153 Notice (Other),, Response to Bail Applications (Attachments: # 1 Response to ECF 153-1, Figueras, # 2 Response to ECF 153-2, Andres Salgado, # 3 Response to ECF 153-3, Pablo Perez, # 4 Response to ECF 153-4, Nguyen, # 5 Response to ECF 153-5, Tol-Morales, # 6 Response to ECF 153-6, Aguilar Domingo, # 7 Response to ECF 153-7, Mejia)(Zack, Adrienne) (Filed on 5/14/2020) (Entered: 05/14/2020)

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170 DOCUMENT E-FILED UNDER SEAL re 117 Order on Administrative Motion to File Under Seal,,,,,, Order on Stipulation,,, Unredacted Response to Bail Applications in ECF 153 by Matthew T. Albence, David Jennings, US Immigration and Customs Enforcement. (Attachments: # 1 Unredacted Response to ECF 153-1, Figueras, # 2 Unredacted Response to ECF 153-7, Mejia)(Zack, Adrienne) (Filed on 5/14/2020) (Entered: 05/14/2020)
171 NOTICE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas NOTICE OF REQUEST FOR RELEASE (Attachments: # 1 Exhibit Request Application for Release for Ernesto Rodriguez Magana, # 2 Exhibit Request Application for Release for Chunye Raymond So, # 3 Exhibit Request Application for Release for Dikshat Dikshat, # 4 Exhibit Request Application for Release for Mariano Ramos Lopez, # 5 Exhibit Request Application for Release for Gustavo Pureco Calderon, # 6 Exhibit Request Application for Release for Asif Masoom Qazi, # 7 Exhibit Letter from Atty Filloy in Support of Asif Masoom Qazi, # 8 Exhibit Request Application for Release for Jose Eduardo Guerra, # 9 Exhibit Letter from Elohim Guerra Huerta in Support of Jose Eduardo Guerra, # 10 Exhibit Letter from Kern Regional Center in Support of Jose Eduardo Guerra)(Beier, Genna) (Filed on 5/14/2020) (Entered: 05/14/2020)
172 DOCUMENT E-FILED UNDER SEAL re 117 Order on Administrative Motion to File Under Seal,,,,,, Order on Stipulation,,, REQUEST FOR RELEASE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas. (Attachments: # 1 Exhibit Request Application for Release for Ernesto Rodriguez Magana, # 2 Exhibit Request Application for Release for Chunye Raymond So, # 3 Exhibit Request Application for Release for Dikshat Dikshat, # 4 Exhibit Request Application for Release for Mariano Ramos Lopez, # 5 Exhibit Request Application for Release for Gustavo Pureco Calderon, # 6 Exhibit Request Application for Release for Asif Masoom Qazi, # 7 Exhibit Letter from Atty Filloy in Support of Asif Masoom Qazi, # 8 Exhibit Request Application for Release for Jose Eduardo Guerra, # 9 Exhibit Letter from Elohim Guerra Huerta in Support of Jose Eduardo Guerra, # 10 Exhibit Letter from Kern Regional Center in Support of Jose Eduardo Guerra)(Beier, Genna) (Filed on 5/14/2020) (Entered: 05/14/2020)
173 BAIL ORDER NO. 8. Signed by Judge Vince Chhabria on 5/14/2020. (vclc2S, COURT STAFF) (Filed on 5/14/2020) (Entered: 05/14/2020)
174 NOTICE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas re 169 Notice (Other), Replies to Defendants' Responses (Attachments: # 1 Exhibit Figueras Reply, # 2 Exhibit Andres Salgado Reply, # 3 Exhibit Pablo Perez Reply, # 4 Exhibit Nguyen Reply)(Riordan, Sean) (Filed on 5/14/2020) (Entered: 05/14/2020)
175 Letter Brief Regarding (1) Page Limits and (2) Federal Defendants' Right to Submit Reply in Support of Their Motion to Dissolve the Temporary Restraining Order and to Stay ﬁled byMatthew T. Albence, David Jennings, US Immigration and Customs Enforcement. (Attachments: # 1 Proposed Order)(Choe, Shiwon) (Filed on 5/15/2020) (Entered: 05/15/2020)
176 ORDER Regarding Related Cases. Signed by Judge Vince Chhabria on 5/15/2020. (vclc2S, COURT STAFF) (Filed on 5/15/2020) (Entered: 05/15/2020)
177 BAIL ORDER NO. 9. Signed by Judge Vince Chhabria on 5/15/2020. (vclc2S,

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COURT STAFF) (Filed on 5/15/2020) (Entered: 05/15/2020)
178 NOTICE by Matthew T. Albence, David Jennings, US Immigration and Customs Enforcement re 163 Notice (Other),, Response to Bail Applications (Attachments: # 1 Response to ECF 163-1, Castro Ramos, # 2 Response to ECF 163-2, Rodriguez Rojas, # 3 Response to ECF 163-3, Rivera Giorges, # 4 Response to ECF 163-4, Bhutta, # 5 Response to ECF 163-5, Mendoza Canales, # 6 Response to ECF 163-6, Perrusquia Palomares)(Zack, Adrienne) (Filed on 5/15/2020) (Entered: 05/15/2020)
179 ORDER for Further Information re Deferred Bail Applications. Signed by Judge Vince Chhabria on 5/15/2020. (vclc2S, COURT STAFF) (Filed on 5/15/2020) (Entered: 05/15/2020)
180 NOTICE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas Notice of Request for Release (Attachments: # 1 Exhibit Request for Release for Abdul Ghaffar Mirzada, # 2 Exhibit Request for Release for Dilbagh Singh, # 3 Exhibit Request for Release for Egide Ntawangundi, # 4 Exhibit Request for Release for Jianhong Ke, # 5 Exhibit Request for Release for Junzhen He, # 6 Exhibit Request for Release for Myke Jonathan Cux-Jocop, # 7 Exhibit Request for Release for Maria Cardenas, # 8 Exhibit Request for Release for Mario Joyo Lazo, # 9 Exhibit Request for Release for Nuan Ponce-Maradiaga, # 10 Exhibit Request for Release for Rajnish Rajnish)(Riordan, Sean) (Filed on 5/15/2020) (Entered: 05/15/2020)
181 DOCUMENT E-FILED UNDER SEAL re 117 Order on Administrative Motion to File Under Seal,,,,,, Order on Stipulation,,, Notice of Request for Release (Under Seal) by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas. (Attachments: # 1 Exhibit Request for Release for Abdul Ghaffar Mirzada, # 2 Exhibit Request for Release for Dilbagh Singh, # 3 Exhibit Request for Release for Egide Ntawangundi, # 4 Exhibit Request for Release for Jianhong Ke, # 5 Exhibit Request for Release for Junzhen He, # 6 Exhibit Request for Release for Myke Jonathan Cux-Jocop, # 7 Exhibit Request for Release for Maria Cardenas, # 8 Exhibit Request for Release for Mario Joyo Lazo, # 9 Exhibit Request for Release for Nuan PonceMaradiaga, # 10 Exhibit Request for Release for Rajnish Rajnish)(Riordan, Sean) (Filed on 5/15/2020) (Entered: 05/15/2020)
182 NOTICE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas re 163 Notice (Other),, Reply to Dfts Responses (Attachments: # 1 Exhibit Reply to Defs Opp to Rivera-Giorges, # 2 Exhibit Reply to Defs Opp to Abbas, # 3 Exhibit Reply to Defs Opp to FRANCISCO ANTONIO MENDOZA CANALES)(Wells, Jordan) (Filed on 5/15/2020) (Entered: 05/15/2020)
190 Minute Entry for proceedings held before Judge Vince Chhabria: Status Conference held via Zoom Webinar on 5/15/2020.
By Monday, May 18, the government should produce to the plaintiffs information about what the "transferred for removal" status means, as discussed during the status conference.
The Court adopted the brieﬁng schedule and page limits described in the defendant's proposed order at Docket No. 175.
A further status conference is scheduled for Tuesday, May 19, at 2:00 PM.

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Total Time in Court: 31 minutes Court Reporter: Hearing recorded via Zoom Webinar, 2:21 PM - 2:52 PM.

Plaintiff Attorneys: Emilou Maclean, Angelica Salceda, Martin Schenker, and Genna Beier. Defendant Attorneys: Wendy Garbers, Adrienne Zack, and Shiwon Choe.

(This is a text-only entry generated by the court. There is no document associated with this entry.)(vclc1S, COURT STAFF) (Date Filed: 5/18/2020) Modiﬁed on 7/7/2020: Matter transcribed by Pam Hebel. (rjdS, COURT STAFF). (Entered: 05/18/2020)

05/16/2020 183 BAIL ORDER NO. 10. Signed by Judge Vince Chhabria on 5/16/2020. (vclc2S, COURT STAFF) (Filed on 5/16/2020) (Entered: 05/16/2020)

05/16/2020

184 NOTICE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas NOTICE OF REQUEST FOR RELEASE (Attachments: # 1 Exhibit Request Application for Release for Carlos Zarazua Blancas, # 2 Exhibit Request Application for Release for Donis Armando Salguero Aguilar, # 3 Exhibit Request Application for Release for Hoan Van Tran, # 4 Exhibit Request Application for Release for Marcos Alejandro Reyes, # 5 Exhibit Request Application for Release for Mikhail Sergeyevich Sokol, # 6 Exhibit Request Application for Release for Levi Antonio Cruz Menjivar, # 7 Exhibit Request Application for Release for Paul Batinas, # 8 Exhibit Request Application for Release for Walter Cruz-Zavala)(Salceda, Angelica) (Filed on 5/16/2020) (Entered: 05/16/2020)

05/16/2020

185 DOCUMENT E-FILED UNDER SEAL re 117 Order on Administrative Motion to File Under Seal,,,,,, Order on Stipulation,,, Request for Release by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas. (Attachments: # 1 Exhibit Sealed Request for Release for Carlos Zarazua Blancas, # 2 Exhibit Sealed Request for Release for Donis Armando Salguero Aguilar, # 3 Exhibit Sealed Request for Release for Hoan Van Tran, # 4 Exhibit Sealed Request for Release for Marcos Alejandro Reyes, # 5 Exhibit Sealed Request for Release for Mikhail Sergeyevich Sokol, # 6 Exhibit Sealed Request for Release for Levi Antonio Cruz Menjivar, # 7 Exhibit Sealed Request for Release for Paul Batinas, # 8 Exhibit Sealed Request for Release for Walter CruzZavala)(Salceda, Angelica) (Filed on 5/16/2020) (Entered: 05/16/2020)

05/17/2020

186 NOTICE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas NOTICE OF REQUEST FOR RELEASE (Attachments: # 1 Exhibit Release Request for Jose Darwin Quintanilla, # 2 Exhibit Release Request for Nelvis Reyes Cruz, # 3 Exhibit Release Request for Angel Machuca Villacana, # 4 Exhibit Release Request for Adolfo Godinez-Garcia, # 5 Exhibit Release Request for Sitha Chhum, # 6 Exhibit Release Request for Juan Carlos Minchaca Ramos, # 7 Exhibit Release Request for Ignacio Arzate-Reyes)(Beier, Genna) (Filed on 5/17/2020) (Entered: 05/17/2020)

05/17/2020

187 DOCUMENT E-FILED UNDER SEAL re 117 Order on Administrative Motion to File Under Seal,,,,,, Order on Stipulation,,, REQUEST FOR RELEASE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas. (Attachments: # 1 Exhibit Release Request for Jose Darwin Quintanilla, # 2 Exhibit Release Request for Nelvis Reyes Cruz, # 3 Exhibit Release Request for Angel Machuca Villacana, # 4 Exhibit Release Request for Ignacio Arzate-Reyes, # 5 Exhibit Release Request for Adolfo Godinez-Garcia, # 6 Exhibit Release Request for Sitha Chhum, # 7

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Exhibit Release Request for Juan Carlos Minchaca Ramos)(Beier, Genna) (Filed on 5/17/2020) (Entered: 05/17/2020)
188 CLERK'S NOTICE SETTING ZOOM STATUS CONFERENCE. Status Conference set for 5/19/2020 02:00 PM PDT by Zoom Webinar. For Zoom connection, please see: https://apps.cand.uscourts.gov/telhrg/.
ADVANCE REGISTRATION OF PARTICIPATING COUNSEL IS REQUIRED. Please send a list of names and emails of counsel who will be participating in the hearing to vccrd@cand.uscourts.gov by Tuesday, May 19 at 10:00 AM PDT. Counsel who have preregistered will receive individualized invitations to participate.
Members of the public and press, please click the link or use the information below to join the webinar:
https://us02web.zoom.us/j/82787647519? pwd=QVVUc2ZjNjNwWERXS3RoVHhYbyt2UT09
Meeting ID: 827 8764 7519 Password: 971651
Dial by your location +1 929 205 6099 US (New York) +1 253 215 8782 US +1 301 715 8592 US +1 312 626 6799 US (Chicago) +1 346 248 7799 US (Houston) +1 669 900 6833 US (San Jose) Find your local number: https://zoom.us/u/ac4JkPfcjo
For important information and guidance on technical preparation, please see https://www.cand.uscourts.gov/zoom/.
(This is a text-only entry generated by the court. T here is no document associated with this entry.) (vclc1S, COURT STAFF) (Filed on 5/17/2020) (Entered: 05/17/2020)
189 ORDER ADOPTING [175-1] PROPOSED BRIEFING SCHEDULE FOR PRELIMINARY INJUNCTION MOTION AND MOTION TO DISSOLVE & STAY THE TRO. Signed by Judge Vince Chhabria on 5/18/2020. (vclc1S, COURT STAFF) (Filed on 5/18/2020) (Entered: 05/18/2020)
191 NOTICE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas PETITIONERS-PLAINTIFFS NOTICE OF DEATH OF CLASS MEMBER CHONG WOOHN AHN (Freeman, William) (Filed on 5/18/2020) (Entered: 05/18/2020)
192 RESPONSE re 190 Status Conference,,, by Matthew T. Albence, David Jennings, US Immigration and Customs Enforcement. (Garbers, Wendy) (Filed on 5/18/2020) (Entered: 05/18/2020)
193 NOTICE by Matthew T. Albence, David Jennings, US Immigration and Customs Enforcement re 171 Notice (Other),,,, Response to Bail Applications (Attachments: # 1 Response to ECF 171-1, Magana, # 2 Response to ECF 171-2, So, # 3 Response to ECF 171-3, Dikshat, # 4 Response to ECF 171-4, Ramos Lopez, # 5 Response to ECF 171-5,

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Purcero Calderon, # 6 Response to ECF 171-6, Qazi, # 7 Response to ECF 171-8, Guerra) (Zack, Adrienne) (Filed on 5/18/2020) (Entered: 05/18/2020)
194 NOTICE by Matthew T. Albence, David Jennings, US Immigration and Customs Enforcement re 180 Notice (Other),,, Response to Bail Applications (Attachments: # 1 Response to ECF 180-1, Mirzada, # 2 Response to ECF 18-2, Singh, Dilbagh, # 3 Response to ECF 180-3, Ntawangundi, # 4 Response to ECF 180-4, Ke, # 5 Response to ECF 180-5, He, # 6 Response to ECF 180-6, Cux-Jocop, # 7 Response to ECF 180-7, Cardenas, # 8 Response to ECF 180-8, Joya Lazo, # 9 Response to ECF 180-9, PonceMaradiaga, # 10 Response to ECF 180-10, Rajnish)(Zack, Adrienne) (Filed on 5/18/2020) (Entered: 05/18/2020)
195 NOTICE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas NOTICE OF REQUEST FOR RELEASE (Attachments: # 1 Application for Release for Jose Pablo Garcia Montes De Oca, # 2 Application for Release for Juan Raymundo Lopez, # 3 Application for Release for Camilo Arias Marroquin, # 4 Application for Release for Reynaldo Flores Aviles)(Salceda, Angelica) (Filed on 5/18/2020) (Entered: 05/18/2020)
196 DOCUMENT E-FILED UNDER SEAL re 117 Order on Administrative Motion to File Under Seal,,,,,, Order on Stipulation,,, NOTICE OF REQUEST FOR RELEASE (UNDER SEAL) by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas. (Attachments: # 1 Sealed Application for Release for Jose Pablo Garcia Montes De Oca, # 2 Sealed Application for Release for Juan Raymundo Lopez, # 3 Sealed Application for Release for Camilo Arias Marroquin, # 4 Sealed Application for Release for Reynaldo Flores Aviles)(Salceda, Angelica) (Filed on 5/18/2020) (Entered: 05/18/2020)
197 NOTICE by Matthew T. Albence, David Jennings, US Immigration and Customs Enforcement re 171 Notice (Other),,,, 193 Notice (Other), of Release on Bond (Zack, Adrienne) (Filed on 5/18/2020) (Entered: 05/18/2020)
198 NOTICE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas re 193 Notice (Other), 194 Notice (Other),, Reply to Dfts Responses (Attachments: # 1 Exhibit Reply to Dfts Opp for Rodriguez Magana, # 2 Exhibit Reply to Dfts Opp for Qazi, # 3 Exhibit Reply to Dfts Opp for Ntawangundi, # 4 Exhibit Reply to Dfts Opp for Ke, # 5 Exhibit Reply to Dfts Opp for Rajnish) (Bernwanger, Bree) (Filed on 5/18/2020) (Entered: 05/18/2020)
199 NOTICE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas re 194 Notice (Other),, Reply to Dfts Response (Attachments: # 1 Exhibit Reply to Dfts Opp for Mirzada)(Bernwanger, Bree) (Filed on 5/18/2020) (Entered: 05/18/2020)
200 DOCUMENT E-FILED UNDER SEAL re 117 Order on Administrative Motion to File Under Seal,,,,,, Order on Stipulation,,, Reply to Dfts Response by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas. (Attachments: # 1 Exhibit Reply to Dfts Opp for Mirzada)(Bernwanger, Bree) (Filed on 5/18/2020) (Entered: 05/18/2020)
201 NOTICE by Matthew T. Albence, David Jennings, US Immigration and Customs Enforcement re 184 Notice (Other),,, Response to Bail Applications (Attachments: # 1

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Response to ECF 184-1, Zarazua Blancas, # 2 Response to ECF 184-2, Aguilar Zalazar, # 3 Response to ECF 184-3, Tran, # 4 Response to ECF 184-4, Reyes, # 5 Response to ECF 184-5, Sokol, # 6 Response to ECF 184-6, Cruz Menjivar, # 7 Response to ECF 184-7, Batinas, # 8 Response to ECF 184-8, Cruz-Zavala)(Zack, Adrienne) (Filed on 5/19/2020) (Entered: 05/19/2020)
202 NOTICE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas NOTICE OF REQUEST FOR RELEASE (Attachments: # 1 Exhibit Request Application for Release for Miguel Angel Ayala Mendoza, # 2 Exhibit Letter in Support of Miguel Angel Ayala Mendoza, # 3 Exhibit Request Application for Release for Francisco Javier Jimenez Garcia, # 4 Exhibit Request Application for Release for Jose Pacheco Mendez, # 5 Exhibit Request Application for Release for Yebio Kiﬂe, # 6 Exhibit Request Application for Release for Jose Fernando Mendoza Vadovinos, # 7 Exhibit Request Application for Release for Mohamed Khan, # 8 Exhibit Request Application for Release for Leonel Garcia Martinez, # 9 Exhibit Request Application for Release for Bernard Oretekor, # 10 Exhibit Letter in Support of Bernard Oretekor, # 11 Exhibit Request Application for Release for Nelson Coche Salazar, # 12 Exhibit Documents in Support of Nelson Coche Salazar, # 13 Exhibit Update to Pending Application for Release for Gustavo Raudales Banegas)(Bernwanger, Bree) (Filed on 5/19/2020) (Entered: 05/19/2020)
203 DOCUMENT E-FILED UNDER SEAL re 117 Order on Administrative Motion to File Under Seal,,,,,, Order on Stipulation,,, REQUEST FOR RELEASE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas. (Attachments: # 1 Exhibit Request Application for Release for Miguel Angel Ayala Mendoza, # 2 Exhibit Letter in Support of Miguel Angel Ayala Mendoza, # 3 Exhibit Request Application for Release for Francisco Javier Jimenez Garcia, # 4 Exhibit Request Application for Release for Jose Pacheco Mendez, # 5 Exhibit Request Application for Release for Yebio Kiﬂe, # 6 Exhibit Request Application for Release for Jose Fernando Mendoza Vadovinos, # 7 Exhibit Request Application for Release for Mohamed Khan, # 8 Exhibit Request Application for Release for Leonel Garcia Martinez, # 9 Exhibit Request Application for Release for Bernard Oretekor, # 10 Exhibit Letter in Support of Bernard Oretekor, # 11 Exhibit Request Application for Release for Nelson Coche Salazar, # 12 Exhibit Documents in Support of Nelson Coche Salazar, # 13 Exhibit Update to Pending Application for Release for Gustavo Raudales Banegas)(Bernwanger, Bree) (Filed on 5/19/2020) (Entered: 05/19/2020)
204 BAIL ORDER NO. 11. Signed by Judge Vince Chhabria on 5/19/2020. (vclc1S, COURT STAFF) (Filed on 5/19/2020) (Entered: 05/19/2020)
205 NOTICE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas re 201 Notice (Other),, Replies to Defendants' Responses (Attachments: # 1 Exhibit Reply for Donis Armando Salguero Aguilar, # 2 Exhibit Reply for Marcos Alejandro Reyes, # 3 Exhibit Reply for Hoan Van Tran, # 4 Exhibit Reply for Walter Cruz Zavala)(Riordan, Sean) (Filed on 5/19/2020) (Entered: 05/19/2020)
207 Minute Entry for proceedings held before Judge Vince Chhabria: Status Conference held via Zoom Webinar on 5/19/2020.

The government is ordered to provide further information regarding whether and when it is truly necessary to transfer detainees to El Paso, or other facilities with known cases of Covid-19, prior to removal. The government should also explain, in as much detail as possible without creating security concerns, the typical timeline

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between the decision to remove a detainee and the actual removal.
The government is ordered, at the next status conference, to provide further information regarding the facilities' capacity to release detainees over the weekend.
At the next status conference, the parties should be prepared to discuss all the informational obligations that the Court has imposed on the government, and whether any of those obligations are no longer necessary, or can be adjusted.
A further status conference is scheduled for Friday, May 22, at 2:30 PM.
Total Time in Court: 1:03 minutes Court Reporter: Hearing recorded via Zoom Webinar, 2:01 PM - 3:04 PM.
Plaintiff Attorneys: Emi MacLean and Angelica Salceda. Defendant Attorneys: Wendy Garbers, Adrienne Zack, and Shiwon Choe.
(This is a text-only entry generated by the court. There is no document associated with this entry.)(vclc1S, COURT STAFF) (Date Filed: 5/20/2020) Modiﬁed on 7/7/2020: Matter transcribed by Pam Hebel. (rjdS, COURT STAFF). (Entered: 05/20/2020)
206 BAIL ORDER NO. 12. Signed by Judge Vince Chhabria on 5/20/2020. (vclc1S, COURT STAFF) (Filed on 5/20/2020) (Entered: 05/20/2020)
208 NOTICE of Appearance by Jennifer Taylor Friedman (Friedman, Jennifer) (Filed on 5/20/2020) (Entered: 05/20/2020)
209 CLERK'S NOTICE SETTING ZOOM HEARING. Status Conference set for 5/22/2020 02:30 PM by Zoom Webinar.
For Zoom connection, see: https://apps.cand.uscourts.gov/telhrg/.
ADVANCE REGISTRATION OF PARTICIPATING COUNSEL IS REQUIRED. Please email a list of names and emails of counsel who will be participating in the hearing to vccrd@cand.uscourts.gov by noon on Thursday, May 21. Counsel who have preregistered will receive individualized invitations to participate.
Members of the public and press, please click the link or use the information below to join the webinar:
https://us02web.zoom.us/j/84386281387? pwd=VFlNV09SWVJybkNPV1dJSE1rZlB1QT09
Meeting ID: 843 8628 1387 Password: 971651
Dial by your location +1 929 205 6099 US (New York) +1 253 215 8782 US +1 301 715 8592 US +1 312 626 6799 US (Chicago) +1 346 248 7799 US (Houston) +1 669 900 6833 US (San Jose) Find your local number: https://zoom.us/u/ac4JkPfcjo

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For important information and guidance on technical preparation, please see https://www.cand.uscourts.gov/zoom/.

(This is a text-only entry generated by the court. There is no document associate d with this entry.) (vclc1S, COURT STAFF) (Filed on 5/20/2020) (Entered: 05/20/2020)

05/20/2020

210 NOTICE by Matthew T. Albence, David Jennings, US Immigration and Customs Enforcement re 186 Notice (Other),, Response to Bail Applications (Attachments: # 1 Response to ECF 186-1, Quintanilla, # 2 Response to ECF 186-2, Reyes Cruz, # 3 Response to ECF 186-3, Machuca Villacana, # 4 Response to ECF 186-4, GodinezGarcia, # 5 Response to ECF 186-5, Chhum, # 6 Response to ECF 186-6, Minchaca Ramos, # 7 Response to ECF 186-6, Arzate-Reyes)(Zack, Adrienne) (Filed on 5/20/2020) (Entered: 05/20/2020)

05/20/2020

211 NOTICE by Matthew T. Albence, David Jennings, US Immigration and Customs Enforcement re 195 Notice (Other),, Response to Bail Applications (Attachments: # 1 Response to ECF 195-1, Garcia Montes de Oca, # 2 Response to ECF 195-2, Raymundo Lopez, # 3 Response to ECF 195-3, Arias Marroquin)(Zack, Adrienne) (Filed on 5/20/2020) (Entered: 05/20/2020)

05/20/2020

212 DOCUMENT E-FILED UNDER SEAL re 117 Order on Administrative Motion to File Under Seal,,,,,, Order on Stipulation,,, Unredacted Response to Bail Application ECF 186-3, Machuca Villacana by Matthew T. Albence, David Jennings, US Immigration and Customs Enforcement. (Zack, Adrienne) (Filed on 5/20/2020) (Entered: 05/20/2020)

05/20/2020 213 BAIL ORDER NO. 13. Signed by Judge Vince Chhabria on 5/20/2020. (vclc2S, COURT STAFF) (Filed on 5/20/2020) (Entered: 05/20/2020)

05/20/2020

214 NOTICE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas NOTICE OF REQUEST FOR RELEASE AND UPDATES (Attachments: # 1 Request Application for Release for Selvin Rolando Hernandez Sumoza, # 2 Request Application for Release for Gustavo Archundia Garcia, # 3 Request Application for Release for Nelson Zelaya Alas AKA Nelson Arias, # 4 Request Application for Release for Juan Carlos Soto Trejo, # 5 Request Application for Release for Gustavo Adolfo Peralta Iglesias, # 6 Update to Pending Deferred Request Application for Eleazar Porcayo Garcia, # 7 Update to Pending Deferred Request Application for Ajaypal Singh, # 8 Update to Pending Deferred Request Application for Lawrence Kuria Mwaura)(Wells, Jordan) (Filed on 5/20/2020) (Entered: 05/20/2020)

05/20/2020

215 DOCUMENT E-FILED UNDER SEAL re 117 Order on Administrative Motion to File Under Seal,,,,,, Order on Stipulation,,, NOTICE OF REQUEST FOR RELEASE (UNDER SEAL) AND UPDATE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas. (Attachments: # 1 Sealed Request for Release for Selvin Rolando Hernandez Sumoza, # 2 Sealed Request for Gustavo Archundia Garcia, # 3 Sealed Request for Nelson Zelaya Alas AKA Nelson Arias, # 4 Sealed Request for Juan Carlos Soto Trejo, # 5 Sealed Request for Gustavo Adolfo Peralta Iglesias, # 6 Sealed Update Pending Deferred Request Application for Ajaypal Singh)(Wells, Jordan) (Filed on 5/20/2020) (Entered: 05/20/2020)

05/20/2020

216 NOTICE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas re 211 Notice (Other), 210 Notice (Other),, NOTICE OF REPLY TO DEFENDANTS RESPONSES TO NELVIS REYES CRUZ (ECF 210-2); ADOLFO GODINEZ-GARCIA (ECF 210-4); IGNACIO ARZATE REYES (ECF 210-7); AND JOSE PABLO GARCIA MONTES DE OCA (ECF 211-1) (Attachments: # 1 Exhibit

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Nelvis Reyes Cruz Reply to Short-Form Bail Application, # 2 Exhibit Adolfo GodinezGarcia Reply to Short-Form Bail Application, # 3 Exhibit Ignacio Arzate Reyes Reply to Short-Form Bail Application, # 4 Exhibit Jose Pablo Garcia Montes de Oca Reply to Short-Form Bail Application)(Salceda, Angelica) (Filed on 5/20/2020) (Entered: 05/20/2020)
217 CLERK'S NOTICE RESETTING ZOOM STATUS CONFERENCE. Status Conference reset for 2:00 PM on 5/22/2020. For Zoom connection, see: https://apps.cand.uscourts.gov/telhrg/.

ADVANCE REGISTRATION OF PARTICIPATING COUNSEL IS REQUIRED. The parties are asked to email a list of names and emails of counsel who will be participating in the hearing to vccrd@cand.uscourts.gov by noon on Thursday, May 21, if they have not done so already. Counsel who have pre-registered will receive individualized invitations to participate.

Members of the public and press, please click the link or use the information below to join the webinar:

https://us02web.zoom.us/j/84386281387? pwd=VFlNV09SWVJybkNPV1dJSE1rZlB1QT09

Meeting ID: 843 8628 1387 Password: 971651

Dial by your location +1 929 205 6099 US (New York) +1 253 215 8782 US +1 301 715 8592 US +1 312 626 6799 US (Chicago) +1 346 248 7799 US (Houston) +1 669 900 6833 US (San Jose) Find your local number: https://zoom.us/u/ac4JkPfcjo

For important information and guidance on technical preparation, please see https://www.cand.uscourts.gov/zoom/.

05/21/2020 05/21/2020 05/21/2020

(This is a text-only entry generated by the court. There is no document associated with this entry.) (vclc1S, COURT STAFF) (Filed on 5/21/2020) (Entered: 05/21/2020)
218 BAIL ORDER NO. 14. Signed by Judge Vince Chhabria on 5/21/2020. (vclc1S, COURT STAFF) (Filed on 5/21/2020) (Entered: 05/21/2020)
219 CLERK'S NOTICE vacating the status conference scheduled for 5/22/2020. (This is a text-only entry generated by the court. There is no document associated with this entry.) (vclc1S, COURT STAFF) (Filed on 5/21/2020) (Entered: 05/21/2020)
220 NOTICE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas NOTICE OF REQUEST FOR RELEASE (Attachments: # 1 Exhibit Request Application for Release for Rachana Duong, # 2 Exhibit Request Application for Release for Donavan Grant, # 3 Exhibit Request Application for Release for Gerardo Francisco Navas, # 4 Exhibit Request Application for Release for Ernesto Uc Encarnacion, # 5 Exhibit Declaration in Support of Ernesto Uc Encarnacion, # 6 Exhibit Request Application for Release for Felix Daniel Dominguez-Candelaria, # 7 Exhibit Request Application for Release for Leobardo Rodriguez Nunez, # 8 Exhibit Request

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Application for Release for Noe Rivera Garcia, # 9 Exhibit Update to Pending Application for Release for Livia Pinheiro, # 10 Exhibit Supporting Documents for Livia Pinheiro)(Beier, Genna) (Filed on 5/21/2020) (Entered: 05/21/2020)
221 NOTICE by Matthew T. Albence, David Jennings, US Immigration and Customs Enforcement re 202 Notice (Other),,,, Response to Bail Applications (Attachments: # 1 Response to ECF 202-1, Ayala Mendoza, # 2 Response to ECF 202-3, Jimenez Garcia, # 3 Response to ECF 202-4, Pacheco Mendez, # 4 Response to ECF 202-5, Kiﬂe, # 5 Response to ECF 202-6, Mendoza Valdovinos, # 6 Response to ECF 202-7, Khan, # 7 Exhibit to Response re Khan, # 8 Response to ECF 202-8, Garcia Martinez, # 9 Response to ECF 202-9, Oretekor, # 10 Response to ECF 202-11, Garcia Velasco)(Zack, Adrienne) (Filed on 5/21/2020) (Entered: 05/21/2020)
222 DOCUMENT E-FILED UNDER SEAL re 117 Order on Administrative Motion to File Under Seal,,,,,, Order on Stipulation,,, REQUEST FOR RELEASE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas. (Attachments: # 1 Exhibit Request Application for Release for Rachana Duong, # 2 Exhibit Request Application for Release for Donavan Grant, # 3 Exhibit Request Application for Release for Gerardo Francisco Navas, # 4 Exhibit Request Application for Release for Ernesto Uc Encarnacion, # 5 Exhibit Declaration in Support of Ernesto Uc Encarnacion, # 6 Exhibit Request Application for Release for Felix Daniel DominguezCandelaria, # 7 Exhibit Request Application for Release for Leobardo Rodriguez Nunez, # 8 Exhibit Request Application for Release for Noe Rivera Garcia, # 9 Exhibit Update to Pending Application for Release for Livia Pinheiro, # 10 Exhibit Supporting Documents for Livia Pinheiro)(Beier, Genna) (Filed on 5/21/2020) (Entered: 05/21/2020)
223 DOCUMENT E-FILED UNDER SEAL re 117 Order on Administrative Motion to File Under Seal,,,,,, Order on Stipulation,,, Unredacted Response to Bail Applications in ECF 202 by Matthew T. Albence, David Jennings, US Immigration and Customs Enforcement. (Attachments: # 1 Unredacted Response to ECF 202-1, Ayala Mendoza, # 2 Unredacted Response to ECF 202-6, Mendoza Valdovinos)(Zack, Adrienne) (Filed on 5/21/2020) (Entered: 05/21/2020)
224 ORDER re Domestic Violence. Signed by Judge Vince Chhabria on 5/21/2020. (vclc2S, COURT STAFF) (Filed on 5/21/2020) (Entered: 05/21/2020)
225 NOTICE by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas re 221 Notice (Other),, Reply to Dfts Responses (Attachments: # 1 Exhibit Reply to Dfts Opp for Ayala Mendoza, # 2 Exhibit Reply to Dfts Opp for Jimenez Garcia, # 3 Exhibit Reply to Dfts Opp for Pacheco Mendez, # 4 Exhibit Reply to Dfts Opp for Kiﬂe, # 5 Exhibit Reply to Dfts Opp for Garcia Martinez) (Bernwanger, Bree) (Filed on 5/21/2020) (Entered: 05/21/2020)
226 DOCUMENT E-FILED UNDER SEAL re 117 Order on Administrative Motion to File Under Seal,,,,,, Order on Stipulation,,, Reply to Dfts Responses by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas. (Attachments: # 1 Exhibit Reply to Dfts Opp for Ayala Mendoza, # 2 Exhibit Reply to Dfts Opp for Pacheco Mendez)(Bernwanger, Bree) (Filed on 5/21/2020) (Entered: 05/21/2020)
227 RESPONSE re 207 Status Conference,,,,, To The Court's Questions Regarding Implementing Release Orders by Matthew T. Albence, David Jennings, US Immigration and Customs Enforcement. (Garbers, Wendy) (Filed on 5/22/2020) (Entered: 05/22/2020)

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228 RESPONSE re 207 Status Conference,,,,, To The Court's Questions Regarding Removal Via Air by Matthew T. Albence, David Jennings, US Immigration and Customs Enforcement. (Garbers, Wendy) (Filed on 5/22/2020) (Entered: 05/22/2020)
229 First MOTION for Preliminary Injunction ﬁled by Javier Alfaro, Dung Tuan Dang, Luciano Gonzalo Mendoza Jeronimo, Lawrence Kuria Mwaura, Brenda Rubi Ruiz Tovar, Coraima Yaritza Sanchez Nunez, Angel de Jesus Zepeda Rivas. Motion Hearing set for 6/2/2021 10:00 AM before Judge Vince Chhabria. Responses due by 5/27/2020. Replies due by 5/29/2020. (Attachments: # 1 Declaration of Camilo Abel ISO PetitionersPlaintiff's Motion for Preliminary Injunction Arias Marroquin, # 2 Declaration of Aroldo Rodriguez Diaz ISO Petitioners-Plaintiff's Motion for Preliminary Injunction, # 3 Declaration of Asif Masoom Qazi ISO Petitioners-Plaintiff's Motion for Preliminary Injunction, # 4 Declaration of Aylaliyah AssefaBirru ISO Petitioners-Plaintiff's Motion for Preliminary Injunction, # 5 Declaration of Carlos Renan Solis Manzanilla ISO Petitioners-Plaintiff's Motion for Preliminary Injunction, # 6 Declaration of Fermin Trujillo Lopez ISO Petitioners-Plaintiff's Motion for Preliminary Injunction, # 7 Declaration of Gilberto Pablo Perez ISO Petitioners-Plaintiff's Motion for Preliminary Injunction, # 8 Declaration of Jose Pablo Garcia Montes de Oca ISO Petitioners-Plaintiff's Motion for Preliminary Injunction, # 9 Declaration of Jose Mejia Rosas ISO PetitionersPlaintiff's Motion for Preliminary Injunction, # 10 Declaration of Juan Aguilar Castaneda ISO Petitioners-Plaintiff's Motion for Preliminary Injunction, # 11 Declaration of Juan Jose Erazo Herrera ISO Petitioners-Plaintiff's Motion for Preliminary Injunction, # 12 Declaration of Livia Pinheiro ISO Petitioners-Plaintiff's Motion for Preliminary Injunction, # 13 Declaration of Maria Andreas Salgado ISO Petitioners-Plaintiff's Motion for Preliminary Injunction, # 14 Declaration of Maynor Oxlaj Siguantay ISO PetitionersPlaintiff's Motion for Preliminary Injunction, # 15 Declaration of Pravindar Singh ISO Petitioners-Plaintiff's Motion for Preliminary Injunction, # 16 Declaration of Akiki Iwaski, Ph.D ISO Petitioners-Plaintiff's Motion for Preliminary Injunction, # 17 Declaration of Sandra Hernandez ISO Petitioners-Plaintiff's Motion for Preliminary Injunction, # 18 Declaration of Sarah H. Allen, M.D. ISO Petitioners-Plaintiff's Motion for Preliminary Injunction, # 19 Declaration of Robert B. Greiﬁnger, M.D. ISO Petitioners-Plaintiff's Motion for Preliminary Injunction, # 20 Declaration of William S. Freeman ISO Petitioners-Plaintiff's Motion for Preliminary Injunction, # 21 Proposed Order [PROPOSED] Order)(Freeman, William) (Filed on 5/22/2020) Modiﬁed on 5/26/2020 (mclS, COURT STAFF). (Entered: 05/22/2020)
230 Statement of Opposition re 124 Judicial Referral for Purpose of Determining Relationship of Cases ;[PROPOSED] Order. by Jose Eduardo Guerra. (Day, Allison) (Filed on 5/22/2020) Modiﬁed on 5/26/2020 (mclS, COURT STAFF). (Entered: 05/22/2020)
231 DOCUMENT E-FILED UNDER SEAL re 117 Order on Adm

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 Case 3:20-cv-02731-VC Document 1 Filed 04/20/20 Page 1 of 36

1 WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org
2 SEAN RIORDAN (SBN 255752) sriordan@aclunc.org
3 ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org
4 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN
5 CALIFORNIA 39 Drumm Street
6 San Francisco, CA 94111 Telephone: (415) 621-2493
7 Facsimile: (415) 255-8437
8 Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page
9

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: 415-553-9319 Fax: 415-553-9810

10

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12

13 ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUIZ TOVAR, LAWRENCE
14 MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA
15 YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,
16 Petitioners-Plaintiffs,
17 v.
18 DAVID JENNINGS, Acting Director of the
19 San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T.
20 ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director
21 of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND
22 CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa
23 Verde Detention Facility,

Case No.
CLASS PETITION FOR WRIT OF HABEAS CORPUS AND CLASS COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

24

Respondents-Defendants.

25

26

27

28
CLASS PETITION FOR WRIT OF HABEAS CORPUS AND CLASS COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 3:20-cv-02731-VC Document 1 Filed 04/20/20 Page 2 of 36

1 BREE BERNWANGER* (NY SBN 5036397) MARTIN S. SCHENKER (SBN 109828)

bbernwanger@lccrsf.org

mschenker@cooley.com

2 TIFANEI RESSL-MOYER (SBN 319721)

COOLEY LLP

tresslmoyer@lccrsf.org

101 California Street, 5th Floor

3 HAYDEN RODARTE (SBN 329432)

San Francisco, CA 94111

hrodarte@lccrsf.org

Telephone: (415) 693-2000

4 LAWYERS’ COMMITTEE FOR

Facsimile: (415) 693-2222

CIVIL RIGHTS OF

5 SAN FRANCISCO BAY AREA

TIMOTHY W. COOK (Mass. BBO# 688688)*

131 Steuart St #400

tcook@cooley.com

6 San Francisco, CA 94105

FRANCISCO M. UNGER (Mass. BBO#

Telephone: (415) 814-7631

698807)*

7

funger@cooley.com

JUDAH LAKIN (SBN 307740)

COOLEY LLP

8 judah@lakinwille.com

500 Boylston Street

AMALIA WILLE (SBN 293342)

Boston, MA 02116

9 amalia@lakinwille.com

Telephone: (617) 937-2300

LAKIN & WILLE LLP

Facsimile: (617) 937-2400

10 1939 Harrison Street, Suite 420

Oakland, CA 94612

11 Telephone: (510) 379-9216

Facsimile: (510) 379-9219

12

JORDAN WELLS (SBN 326491)

13 jwells@aclusocal.org

STEPHANIE PADILLA (SBN 321568)

14 spadilla@aclusocal.org

AMERICAN CIVIL LIBERTIES UNION

15 FOUNDATION OF SOUTHERN CALIFORNIA

1313 West Eighth Street

16 Los Angeles, CA 90017

Telephone: (213) 977-9500

17 Facsimile: (213) 977-5297

18

Attorneys for Petitioners-Plaintiffs

*Motion for Admission Pro Hac Vice Forthcoming

19

20

21

22

23

24

25

26

27

28
CLASS PETITION FOR WRIT OF HABEAS CORPUS AND CLASS COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 3:20-cv-02731-VC Document 1 Filed 04/20/20 Page 3 of 36

1 I. INTRODUCTION

2

1. Defendant Immigration and Customs Enforcement (ICE) is holding Petitioners-

3 Plaintiffs (Plaintiffs) and a proposed class of similarly situated detainees in civil immigration

4 detention at Yuba County Jail (YCJ) and Mesa Verde ICE Processing Facility (Mesa Verde)

5 under extraordinarily dangerous conditions during the current COVID-19 pandemic. The only

6 effective means of preventing the spread of COVID-19 is social distancing—where people

7 remain at least six feet apart from each other. But conditions at YCJ and Mesa Verde render that

8 impossible. The detainees in these facilities live in crowded, shared spaces. Many sleep and

9 spend most waking hours within arm’s reach of one another in assigned bunk beds in cramped

10 dormitories. They share dining areas, standing inches apart as they wait in line for food and then

11 sitting shoulder to shoulder as they eat on chairs that are bolted to the floor. They share

12 communal bathrooms and showers that are similarly congested, with toilet and shower stalls

13 that are well under six feet apart and separated only by thin dividers, and with adjacent sinks

14 that leave the detainees using them standing shoulder to shoulder. The toilets and showers,

15 moreover, are not disinfected after each use. Detainees have little access to essential hygiene

16 products such as hand sanitizer. ICE’s failure to provide adequate hygiene—necessary to help

17 stem the transmission of COVID-19— risks exacerbating the health crisis COVID-19 will

18 inevitably cause if the facilities lack proper social distancing. Absent court intervention, the

19 detainees in these facilities are subjected to catastrophic risk. While certain individuals are at

20 higher risk of severe illness or death if they contract COVID-19, all members of the proposed

21 class are at risk of severe respiratory distress, damage to vital organs, and death.

22

2. ICE has failed to respond appropriately to the pandemic. For weeks, amidst a

23 broad consensus of public health experts and while other law enforcement agencies released

24 massive numbers of people from detention to address the urgent need for social distancing, ICE

25 has largely refused to do the same. For example, the agency has actually increased the number

26 of civil immigration detainees at YCJ over the past two weeks. ICE continues to introduce new

27 detainees into both YCJ and Mesa Verde.

28
1 CLASS PETITION FOR WRIT OF HABEAS CORPUS AND CLASS COMPLAINT FOR INJUNCTIVE AND
DECLARATORY RELIEF

Case 3:20-cv-02731-VC Document 1 Filed 04/20/20 Page 4 of 36

1

3. The continued detention of putative class representatives such as Brenda Ruiz

2 Tovar exemplifies ICE’s dangerous course. Ms. Ruiz Tovar has prevailed against ICE in

3 immigration court and been granted relief by an immigration judge—twice. She should be

4 safely sheltering at home with her U.S.-citizen child and other family, but ICE insists on

5 detaining her in an environment where social distancing is impossible. On behalf of all persons

6 detained at YCJ and Mesa Verde, the putative class representatives respectfully request an order

7 directing ICE to implement social distancing at YCJ and Mesa Verde, including releasing

8 sufficient class members to make social distancing possible and halting the introduction of any

9 new detainee absent a truly exigent justification.

10

4. Defendants simultaneously have sought to prevent class members from

11 advocating peacefully for their own safety, in violation of the First Amendment. In response to

12 a hunger strike by class members seeking safer conditions at Mesa Verde, GEO Group, the for-

13 profit ICE contractor that runs the facility, threatened to revoke their access to purchases from

14 the commissary. This and other retaliation chilled the hunger strikers, many of whom suspended

15 their participation in fear of Warden Nathan Allen following through on the threat. Plaintiffs

16 seek declaratory and injunctive relief ordering Defendants to cease and prevent retaliation

17 against peaceful advocacy in the facility. Plaintiffs also seek an order setting aside as unlawful

18 an ICE policy that broadly bans ICE detainees’ participation in any group demonstration.

19

5. Facilities like YCJ and Mesa Verde are especially vulnerable to the explosive

20 and lethal spread of COVID-19. As Judge Chesney recently found, detainees in YCJ and Mesa

21 Verde “cannot practice meaningful social distancing in their respective detention facilities.”

22 Bahena Ortuño v. Jennings, No. 20-CV-2064-MMC, 2020 WL 1701724, at *6 (N.D. Cal. Apr.

23 8, 2020). In the same vein, another recent decision emphasized failures by ICE to take

24 appropriate measures to make social distancing possible at Mesa Verde. Bent v. Barr, No. 19-

25 cv-06123- DMR, 2020 WL 1812850, at *6 (N.D. Cal. Apr. 9, 2020) (“Although Respondents

26 represent that they are following CDC guidelines, they make no representations that they have

27 attempted to implement CDC recommendations on social distancing in detention facilities,

28
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1 including by staggering meal and recreation times, rearranging bunks and dining hall seating, or

2 minimizing the mixing of individuals from different housing units.”).

3

6. Around the country, carceral facilities where social distancing is not practicable

4 have taken substantial steps to reduce crowding. Where they have failed to do so in time, the

5 results have been devastating, with COVID-19 suddenly tearing through scores of prisoners,

6 yielding alarming rates of severe cases and fatalities. For example, at the Otay Mesa Detention

7 Center near San Diego, the virus has spread to half the facility and infected scores of detainees

8 and staff. Even in the midst of outbreaks at ICE detention facilities, ICE’s acting director, a

9 defendant in this action, stated to a congressional committee on April 17 that the agency has no

10 existing plans to release additional detainees around the country.

11

7. Short of effectuating a significant enough reduction in population levels at YCJ

12 and Mesa Verde, any remedial measures such as improved sanitation or hygiene will not be

13 sufficient to head off risks posed by the spread of COVID-19. As the CDC has warned,

14 COVID-19 presents a serious risk of widespread transmission via asymptomatic carriers who do

15 not demonstrate symptoms. Thus, screening and quarantine practices based on demonstrated

16 symptoms or on whether a new detainee has been in contact with a known carrier of the virus

17 are inadequate to contain the spread of the virus. Until conditions make comprehensive social

18 distancing possible, there will be no effective way to contain the transmission of COVID-19 in

19 these facilities.

20

8. Given the population density inside YCJ and Mesa Verde and the practical

21 impossibility of achieving social distancing under current conditions, it is very likely that

22 hundreds of people inside YCJ and Mesa Verde, as well as many of the staff who work there,

23 will contract COVID-19. At least one in five of them will require hospitalization, and many will

24 likely perish under current conditions.

25

9. Numerous courts have released individual habeas petitioners in the past four

26 weeks. But relief in such cases has fallen to a select number of immigrants with attorneys.

27 Meanwhile, the vast majority of YCJ and Mesa Verde detainees lack the resources to file

28
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1 individual lawsuits. Even if they all could somehow sue, a piecemeal approach would be too

2 slow to meet the emergency at hand, too disorganized to ensure an orderly process, and too

3 resource-intensive to be sustainable. It would also fail to reckon with the broader issue at stake:

4 namely, that it is unconstitutional for ICE to detain individuals in crowded detention facilities in

5 the context of the current pandemic. ICE’s patently inadequate response to the pandemic—

6 including the glacially slow pace at which it is releasing detainees—endangers the lives of

7 Plaintiffs by failing to protect them from contracting COVID-19. The resulting risk of harm is

8 “so grave that it violates contemporary standards of decency to expose anyone unwillingly to

9 such a risk.” Helling v. McKinney, 509 U.S. 25, 36 (1993). This class action is a superior

10 mechanism for the Court to address the due process violation at hand and resolve class

11 members’ overlapping claims to relief.

12

10. While social distancing is now ubiquitous in all corners of American society, and

13 government authorities have been ordering reductions in prison and jail populations throughout

14 the country, ICE’s facilities remain an aberration. As district courts around the country have

15 found in the past three weeks, ICE’s continued detention of civil detainees where there is

16 “potential exposure . . . to a serious, communicable disease” that is “very likely to cause a

17 serious illness” violates the Due Process Clause. Castillo v. Barr, No. cv-20-00605 TJH

18 (AFMX), 2020 WL 1502864, at *5 (C.D. Cal. Mar. 27, 2020) (“Civil detainees must be

19 protected by the Government. Petitioners have not been protected. They are not kept at least 6

20 feet apart from others at all times.”); see also Xochihua-Jaimes v. Barr, No. 18-71460, 2020

21 WL 1429877, at *1 (9th Cir. Mar. 24, 2020) (sua sponte ordering immediate release of ICE

22 detainee “[i]n light of the rapidly escalating public health crisis, which public health authorities

23 predict will especially impact immigration detention centers”); see also Ortuño, 2020 WL

24 1701724, at *4 (holding that four individuals were likely to succeed that continued detention

25 violated due process where they “cannot practice meaningful social distancing in their

26 respective detention facilities”); see also Bent, 2020 WL 1812850, at *6 (quoting DeShaney v.

27 Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 199-200 (1989) (“[E]ven assuming that

28
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1 Respondents accurately describe Mesa Verde’s current practices, these practices are inadequate

2 to ensure the ‘safety and general wellbeing’ of Mesa Verde detainees during the COVID-19

3 pandemic.”).

4

11. The present circumstances call for class treatment, in the interests of ICE

5 detainees as well as orderly and fair judicial administration. As District of Massachusetts Judge

6 William Young recently stated in certifying a facility-wide class of ICE detainees, all detainees

7 in a given facility share an interest in the “release [of] a critical mass of [d]etainees—such that

8 social distancing will be possible and all those held in the facility will not face a constitutionally

9 violative substantial risk of serious harm.” Savino v. Souza, 20-cv-10617-WGY, 2020 WL

10 1703844 at *7 (D. Mass. Apr. 8, 2020). To date, Judge Young has ordered the release of at least

11 43 people and continues to oversee a process of reducing the population of the jail.

12

12. This Court has the authority to order ICE to release as many class members as

13 necessary to guard against the spread of COVID-19 in Mesa Verde and YCJ and thereby

14 comply with the Fifth Amendment. Whether by setting a benchmark population limit during the

15 pandemic or—as the accompanying motion for a preliminary injunction proposes—by engaging

16 in expedited review of class members’ plans to shelter upon release,1 this Court should proceed

17 with all dispatch to order ICE to release enough class members to enable the necessary social

18 distancing. Furthermore, this Court should order ICE to abstain temporarily from introducing

19 any new detainees into the two facilities.

20 II. JURISDICTION AND VENUE

21

13. Jurisdiction is proper and relief is available pursuant to 28 U.S.C. § 1331 (federal

22 question), 28 U.S.C. § 1346 (original jurisdiction), 5 U.S.C. § 702 (waiver of sovereign

23 immunity), 28 U.S.C. § 2241 (habeas corpus jurisdiction), 28 U.S.C. §§ 2201-02 (declaratory

24

25 1 This proposed truncated system for considering class members’ claims for release is similar to one that has been
in use for several weeks for ICE detainees in the District of Massachusetts. See Savino, 2020 WL 1703844. See
26 also In re Expedited Detention Hearing Procedures Effective April 7, 2020, Miscellaneous General Order 20-12
(D. Alaska) (establishing expedited procedures for consideration motions for pretrial and presentence release based
27 on COVID- 19); Criminal Case Standing Order Re: Procedure for Review of Detention Orders in Light of
Coronavirus Pandemic, M.J. Nat Cousins, Effective Mar. 16, 2020 (N.D. Cal.) (establishing expedited procedure
28 for any request to reopen a detention hearing on health grounds in light of COVID 19 pandemic).
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1 relief); 28 U.S.C. § 1651 (All Writs Act); 28 U.S.C. § 1361 (mandamus); Article I, Section 9,

2 clause 2 of the United States Constitution (the Suspension Clause); the Due Process Clause of

3 the Fifth Amendment to the United States Constitution; the First Amendment to the United

4 States Constitution; and Article III of the United States Constitution.

5

14. Venue is proper in the Northern District of California under 28 U.S.C. § 1391(e),

6 because at least one federal Defendant resides in this District. Venue is also proper under 28

7 U.S.C. § 2243 because the actual custodians of all Plaintiffs reside in this District.

8 III. PARTIES

9

A. Plaintiffs

10

15. Angel de Jesus Zepeda Rivas is a 32-year-old man who has been detained by

11 ICE at YCJ since November 21, 2019. He has a two-year-old U.S. citizen child with his long-

12 term partner. Angel was diagnosed with type 2 diabetes in early 2019, and prior to arriving at

13 YCJ, was taking medication to control the diabetes. During his time at YCJ, Angel has

14 experienced worsening symptoms, including painfully swollen feet and legs and tingling and

15 numbness throughout his body. Angel has recently been diagnosed with hypertension, and the

16 shortness of breath and chest pain have led to a constant fear of a life-threatening health event.

17 YCJ medical staff recently prescribed him medication for diabetes and hypertension, along with

18 chronic headaches and severe allergies, but this treatment has failed to relieve the pain,

19 swelling, and other symptoms.

20

16. Angel was found to have reasonable fear of torture if returned to his native

21 country, El Salvador, and is in withholding proceedings. As a teenager, he was targeted by the

22 gangs and, when he refused to sell drugs for them, was sexually and physically assaulted. He

23 has also been severely beaten by law enforcement in El Salvador. He is terrified to stay in YCJ,

24 since he is unable to maintain a safe distance or protect himself from COVID-19, while sleeping

25 in his bunk bed, standing in line for his medication and meals, or even while walking to see the

26 medical staff at the facility. When he runs out of soap to wash his hands and clothes, Angel uses

27 a chemical disinfectant, which burns his skin. Angel has experienced COVID-19 symptoms but

28
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1 was not tested for coronavirus. If released, Angel will live with his partner’s adult daughter in

2 Oakland, California until he is past the COVID-19 incubation period and can return home to his

3 own two-year-old daughter and partner.

4

17. Brenda Rubi Ruiz Tovar is a 31-year-old Mexican national who has been

5 detained by ICE at YCJ since October 2, 2018. She suffers from PTSD and Generalized

6 Anxiety Disorder, stemming from childhood sexual abuse. Twice, she has won relief from

7 deportation under the Convention Against Torture in immigration court. Each time, the

8 Immigration Judge found that she met the high bar of showing it is more likely than not she will

9 be tortured or killed in Mexico by or with the acquiescence of government actors. Each time,

10 ICE has appealed the Judge’s grant of protection. She remains in detention while her case is on

11 appeal to the Board of Immigration Appeals (BIA) a second time. In the last twenty-plus

12 months, Brenda has been separated from her family, including her 11-year-old U.S.-citizen son,

13 throughout her removal proceedings.

14

18. Brenda has suffered symptoms consistent with COVID-19 while at YCJ. After

15 contact with a fellow detainee who was sick, she was quarantined for several days with two

16 other women. Even while in quarantine, she was unable to maintain the recommended distance

17 from her cellmate, and she was forced to clean a bathroom area covered in feces. She was tested

18 for the flu, but never for COVID-19, and then reintegrated into the general population. If

19 released, she will live with her parents in Fresno, California.

20

19. Lawrence Mwaura is a 27-year-old man currently in civil detention at YCJ,

21 where he has been since April 12, 2019. In 2002, he fled Kenya, fearing for his life. He was

22 granted asylum in 2003 and became a permanent resident in 2006. His mother, brother, and

23 sister are naturalizad U.S. citizens, and his wife is a U.S. citizen. Lawrence is contesting a final

24 order of removal before the Ninth Circuit, which has issued a stay preventing ICE from

25 removing him.

26

20. In March 2018, Lawrence contracted Valley Fever from mold spores in his

27 lungs, causing him permanent scarring to his lungs, severe pain, and difficulty breathing. His

28
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1 respiratory specialist told him his Valley Fever can return at any time and cause serious damage

2 to his brain, nervous system, and skeletal system, including paralysis. Lawrence continues to

3 experience difficulty breathing and lung pain in the cold, dusty confines of YCJ. Although his

4 specialist told him he should have his blood cells checked every 90 days to monitor his immune

5 system due to his Valley Fever, YCJ medical staff have not checked him in over four months. A

6 psychiatrist at YCJ also informed Lawrence that he meets the criteria for Post-Traumatic Stress

7 Disorder. Lawrence is terrified of staying in detention at YCJ due to the lack of social

8 distancing and protective gear for detainees, constant movement of people into the facility, and

9 Yuba officials’ lack of policies to protect detainees from COVID-19 infection. If released, he

10 would live at his family home with his wife in Burbank, California.

11

21. Luciano Gonzalo Mendoza Jeronimo is a 31-year-old Indigenous Mayan man

12 and Guatemalan national currently in civil detention at YCJ, where he has been since February

13 2020. His wife and daughter are permanent residents and his youngest son is a U.S. citizen, born

14 in Berkeley, California. Luciano fled Guatemala after he was beaten by the National Civil

15 Police for refusing forcible recruitment. His wife was granted asylum and filed a petition on his

16 behalf. However, because he had a prior order of removal in absentia, ICE arrested him and

17 reinstated the prior order. He passed a reasonable fear screening test with an asylum officer and

18 was placed in withholding-only proceedings.

19

22. Luciano fears contracting COVID-19 while at YCJ. Even though his pod is not

20 completely full, he reports that it is not possible to consistently maintain six-feet of distance. If

21 Luciano is released, he will return to his wife and children who are living in Oakland,

22 California.

23

23. Coraima Yaritza Sanchez Nuñez is a 26-year-old Mexican national who has

24 been in civil detention at Mesa Verde since April 2019. The United States is the only country

25 she knows, having been brought here as an infant. She received Deferred Action for Childhood

26 Arrivals (“DACA”) when the program first began. As a DACA beneficiary, she worked as a

27 full-time Lead Teller at Chase Bank for just under five years. She was detained by ICE in 2019,

28
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1 the year after she lost her DACA protection. She is currently pursuing an appeal to the BIA. Her

2 U.S.-citizen husband will be filing a Form I-130, Petition for Alien Relative, in order to begin

3 the Immigrant Visa process on her behalf.

4

24. Coraima has always suffered from asthma, a condition aggravated whenever she

5 suffers from a cold or flu. She knows that her asthma puts her at a higher risk of suffering

6 severe complications from COVID-19. She has participated in the hunger strike as Mesa Verde

7 to convey through symbolic speech the inhumane conditions inside the facility—including not

8 receiving antibacterial soap, cleaning supplies, and protective equipment—and to call for

9 liberation from immigration detention. She felt very threatened by Defendants’ threats of

10 suspending her access to commissary, but she is even more worried about dying from COVID-

11 19. If released, she will reunite with her husband and family, who all live in Sonoma, County,

12 California.

13

25. Javier Alfaro is a 39-year-old Salvadoran national who has been detained by

14 ICE at Mesa Verde since January 14, 2020. Javier was granted Temporary Protected Status

15 (TPS) in approximately 2001, and only when he was placed in removal proceedings did he learn

16 it had expired. He was arrested by plainclothes ICE officers at the Fresno County Courthouse

17 after a criminal court hearing he was required to attend. Since then, he has been separated from

18 his wife and three U.S.-citizen children, ages 15, 8, and 10 months.

19

26. Javier suffers from high cholesterol. For years, he has taken medication to lower

20 his cholesterol and reduce the risk of associated heart problems. He worries for himself and for

21 the safety of all detainees, because their ability to stay healthy is largely out of their control. He

22 reports that, even within hours of a bed emptying in his 100-person dorm, a new detainee will

23 arrive to fill it. If Javier is released, he will resume his life with his family in Mendota,

24 California.

25

27. Dung Tuan Dang is a 49-year-old Vietnamese national who has been detained

26 by ICE at Mesa Verde since June 7, 2019. Dung’s father was a U.S. soldier fighting in Vietnam,

27 and his mother was a Vietnamese woman. His biological parents abandoned him, and he was

28
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1 taken in by an adoptive Vietnamese family. He immigrated lawfully to the U.S. in 1989 under

2 the Homecoming Act and has lived here continuously since then. Despite the fact that Dung was

3 stoned, beaten, and forced into a labor camp as a child, the Immigration Judge found that he

4 would not face the requisite level of risk if he were deported to Vietnam. His application for

5 protection was denied and he was ordered removed. He is now appealing to the BIA. Even if his

6 removal order becomes final, he is very unlikely to be deported to Vietnam because of a long-

7 standing diplomatic agreement concerning Vietnamese nationals who entered the United States

8 before July 12, 1995. In that event, it is likely he eventually will be entitled to release from

9 detention if and when it becomes clear the detention serves no legitimate purpose.

10

28. Dung has a latent tuberculosis infection, which puts him at an elevated risk of

11 suffering severe complications from COVID-19. He is terrified to remain at a facility where

12 social distancing is impossible. He participated in the hunger strike aimed to get public attention

13 on the dangers of COVID-19 to himself and fellow detained individuals. If he is released, he

14 will reunite with his adopted parents and siblings, who all live in San Jose, California.

15

B. Defendants

16

29. Respondent-Defendant David Jennings is the Acting Field Officer Director for

17 the San Francisco Field Office of ICE and maintains his office in San Francisco, California,

18 within this judicial district. The San Francisco Field Office is responsible for carrying out ICE’s

19 immigration detention operations at Mesa Verde and YCJ. Defendant Jennings is a legal

20 custodian of Plaintiffs. He is sued in his official capacity.

21

30. Respondent-Defendant Matthew T. Albence is the Deputy Director and Senior

22 Official Performing the Duties of the Director of ICE. Defendant Albence is responsible for

23 ICE’s policies, practices, and procedures, including those relating to the detention of

24 immigrants. Defendant Albence is a legal custodian of Plaintiffs. He is sued in his official

25 capacity.

26

31. Respondent-Defendant ICE is a federal law enforcement agency within the

27 Department of Homeland Security. ICE is responsible for the criminal and civil enforcement of

28
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1 immigration laws, including the detention and removal of immigrants. Enforcement and

2 Removal Operations (“ERO”), a division of ICE, manages and oversees the immigration

3 detention system. Defendant ICE is a legal custodian of Plaintiffs.

4

32. Defendant GEO Group, Inc. is a private company that contracts with government

5 entities to provide corrections officers and other detention-related services. It is headquartered

6 in Boca Raton, Florida. GEO contracts with ICE to operate Mesa Verde.

7

33. Defendant Nathan Allen is a GEO employee and the warden of Mesa Verde

8 Detention Facility. He is sued in his official capacity.

9 IV. FACTUAL ALLEGATIONS

10

A. COVID-19 Poses Grave Risk of Harm, Including Serious Illness or Death.

11

34. COVID-19 is a disease caused by a coronavirus that has reached pandemic

12 status.

13

35. As of April 19, 2020, COVID-19 has killed over 40,000 people in the United

14 States, and more than 760,000 people in the United States have tested positive for the virus. The

15 United States now has more confirmed cases than any other country in the world.

16

36. As of the evening of April 17, 2020, there were ICE reports that there have been

17 124 confirmed cases of COVID-19 in its detention facilities, although it is important to note that

18 this total reflects an extremely low percentage of testing.2

19

37. People who contract severe cases of COVID-19 need intensive medical support,

20 requiring highly specialized equipment that is in limited supply, and an entire team of care

21 providers, including 1:1 or 1:2 nurse to patient ratios, respiratory therapists, and intensive care

22 physicians.

23

38. COVID-19 infects people who come into contact with respiratory droplets that

24 contain the coronavirus, such as those produced when an infected person coughs or sneezes.

25 Such droplets can spread between people at distances of six feet. The virus that causes COVID-

26 19 is highly contagious and can survive for long periods on inanimate surfaces, making it

27

28 2 ICE Guidance on COVID-19, U.S. Immigration and Customs Enforcement, https://www.ice.gov/covid19.
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1 inevitable that the disease will spread among communities where it appears.

2

39. COVID-19 can severely damage lung tissue, which requires an extensive period

3 of rehabilitation, and in some cases, can cause a permanent loss of respiratory capacity.

4 COVID-19 may also cause inflammation of the heart muscle. This is known as myocarditis; it

5 can affect the heart muscle and electrical system, reducing the heart’s ability to pump. This

6 reduction can lead to rapid or abnormal heart rhythms in the short term, and long-term heart

7 failure that limits exercise tolerance and the ability to work.

8

40. Emerging evidence also suggests that COVID-19 can trigger an over-response of

9 the immune system, further damaging tissue and potentially resulting in widespread damage to

10 the body’s organs, including permanent injury to the kidneys and neurologic injury.

11

41. The need for care, including intensive care, and the likelihood of death, is much

12 higher from COVID-19 than from influenza.

13

42. According to recent estimates, the fatality rate of people with COVID-19 is

14 about ten times higher than a severe seasonal influenza, even in advanced countries with highly

15 effective health care systems. In the United States, approximately five percent of people with

16 confirmed COVID-19 cases have died.3 For people in the highest risk populations, the fatality

17 rate of COVID-19 is about 15 percent.

18

43. There is no known cure or treatment for COVID-19 at this time. The only way to

19 protect people from grave illness and death is to prevent them from being infected with the

20 coronavirus. Thus, the only known means of minimizing the risk of infection is social

21 distancing, combined with rigorous sanitization practices.

22

B. Everyone Detained at Yuba County Jail and Mesa Verde Detention Facility

is Vulnerable to Harm from COVID-19

23

24

44. Every adult faces grave risks of harm from COVID-19, not just those deemed

25 particularly vulnerable. The CDC has reported that up to 20% of coronavirus hospitalizations in

26
3 See Chris Mooney et al., As U.S. Coronavirus Fatality Rate Rises to 5 Percent, Experts Are Still Trying to
27 Understand How Deadly the Virus Is, Washington Post, Apr. 17, 2020, https://www.washingtonpost.com/health/as-
officials-plan-to-reopen-the-economy-a-key-unknown-remains-how-deadly-is-the-
28 coronavirus/2020/04/17/0bd2f938-7e49-11ea-a3ee-13e1ae0a3571_story.html
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1 the United States were of people under 44. And the WHO has reported that, globally, 10-15% of

2 adults under 50 who contract COVID-19 suffer moderate to severe cases.

3

45. Some young people who become seriously ill or die from COVID-19 have pre-

4 existing medical conditions, but many do not. For example, in New York, 36 percent of people

5 between 30 and 39 who died from the virus had no known pre-existing conditions.4

6

46. Doctors and scientists do not yet know why some otherwise healthy young

7 people are so susceptible to COVID-19. Some evidence suggests that exposure to larger viral

8 loads—such as occurs with close, in-person interaction in enclosed spaces, at short distances—

9 may lead to more serious infection.

10

47. Preliminary data shows that Black and Hispanic people are twice as likely to die

11 of COVID-19 as are white people. There is a significantly higher proportion of Black and

12 Hispanic people at YCJ and Mesa Verde than in the broader American population.

13

48. YCJ and Mesa Verde also include a disproportionate number of people at

14 heightened risk for other reasons. The United States Centers for Disease Control and Prevention

15 (CDC) and other experts have identified several particularly vulnerable groups, including older

16 adults, people who are immunocompromised, and people with a variety of pre-existing medical

17 conditions of any age, including lung disease, heart disease, chronic liver or kidney disease

18 (including hepatitis and dialysis), diabetes, asthma, epilepsy, hypertension, compromised

19 immune systems (such as from cancer, HIV, or autoimmune disease), blood disorders (include

20 sickle cell disease), inherited metabolic disorders, stroke developmental delay, pregnancy

21 (current or recent), and obesity.

22

49. A large percentage of the individuals at YCJ and Mesa Verde likely have these

23 medical conditions because they are disproportionately indigent with little or no access to high-

24 quality healthcare. In many cases, these individuals may not even be aware that they have

25 relevant pre-existing conditions. Many class members likely have undiagnosed risk factors for

26
4 See Chris Mooney, et al., Hundreds of young Americans have now been killed by the coronavirus, data shows,
27 Washington Post, Apr. 8, 2020, https://www.washingtonpost.com/health/2020/04/08/young-people-coronavirus-
deaths/.
28
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1 COVID-19.

2

50. For people in the highest risk populations, the fatality rate of COVID-19 is about

3 15 percent.

4

C. Conditions at Mesa Verde Detention Facility and Yuba County Jail Create a

Massive Risk of COVID-19 Infection.

5

6

51. The conditions at YCJ and Mesa Verde endanger the lives of all who are

7 detained there (as well as staff who work there).

8

52. Because of the ease with which COVID-19 can spread via respiratory droplets

9 that move between people within six feet of each other and also through long-lasting

10 contamination of surfaces, enclosed group environments are especially prone to facilitating the

11 rapid spread of COVID-19.

12

53. Enclosed group environments, like prisons, nursing homes, ships, and homeless

13 shelters, have become the epicenter of the most severe COVID-19 outbreaks. More than 700

14 people have tested positive on Rikers Island, which boasts one of the country’s fastest rates of 15 transmission.5 Prior to the Rikers outbreak, Cook County Jail in Chicago was considered the 16 “largest single point of infection in the U.S., with more than 500 people testing positive.”6 Ten

17 of the deadliest COVID-19 clusters in the country have occurred in nursing homes, and nearly 18 4,000 nursing home residents have died from the virus.7 MSC South homeless shelter in San

19 Francisco has had largest reported outbreak in a single shelter in California, with 90 residents 20 and 10 staff members contracting the virus.8 An ongoing nursing facility outbreak in Yolo

21 County—which is adjacent to Yuba County—has accounted for a third of the COVID-19 cases

22

23
5 Asher Stockler, More Than 700 people Have Tested Positive For Coronavirus On Rikers Island, Including Over
24 440 Staff, Newsweek (Apr. 8, 2020), https://www.newsweek.com/rikers-island-covid-19-new-york-city-1496872
6 Peter Weber, COVID-19 is Spreading Fast in Nursing Homes, Homeless Shelters, Jails, and South Dakota, The
25 Week (Apr. 14, 2020), https://theweek.com/speedreads/908647/covid19-spreading-fast-nursing-homes-homeless-
shelters-jails-south-dakota
26 7 Danielle Ivory et al., Coronavirus Outbreak at Virginia Nursing Home Spirals Out of Control as 45 Die, The
New York Times (Apr. 14, 2020), https://www.nytimes.com/2020/04/14/us/coronavirus-nursing-homes.html
27 8 Vivian Ho, ‘It could have been averted’: How 92 residents at a San Francisco homeless shelter got Covid-19,
The Guardian (Apr. 15, 2020), https://www.theguardian.com/us-news/2020/apr/15/san-francisco-homeless-
28 coronavirus-msc-shelter
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1 in that county.9 On the USS Theodore Roosevelt, 660 sailors have tested positive.10 These

2 group settings share fundamental—and dangerous—similarities to detention centers like YCJ

3 and Mesa Verde: numerous people living in close proximity, staff that interacts with multiple

4 individuals, and regular foot traffic in and out of the facility.

5

54. In response to such outbreaks, jails in more than half of the states in the country

6 have released thousands of people from criminal custody, acknowledging the grave threat that

7 an outbreak in jails and detention centers poses.11 As the court noted in United States v.

8 Garlock, No. 18-CR-00418-VC-1 Cr. 418, 2020 WL 1439980, at *1 (N.D. Cal. Mar. 25, 2020),

9 “[b]y now it almost goes without saying that we should not be adding to the prison population

10 during the COVID-19 pandemic if it can be avoided.”

11

55. YCJ and Mesa Verde are similarly dangerous enclosed environments. Detainees

12 in YCJ and Mesa Verde live, sleep, and eat in close quarters. They have no ability to keep a safe

13 distance from large groups or to avoid surfaces that countless others regularly contact. And they

14 are subject to security measures that render “social distancing” impossible. These are ideal

15 incubation conditions for the rapid spread of COVID-19.

16

56. At Mesa Verde, all detainees live in four dormitories that hold up to 100

17 detainees. As of April 2, there were at least 76 men in at least one of the dorms. In these

18 dormitories, detainees must share one large room for sleeping, eating, and socializing. Their

19 beds are bunked and placed only a few feet apart. Scores of detainees in each dormitory must

20 share a relatively small number of sinks, toilets, and showers.

21

57. At YCJ, detainees live in a variety of housing units, each with its own

22 alphabetical designation. There are four dorms (B, C, P, R) in which detainees sleep in bunk

23 beds in close proximity to one another. The C and D dorms have 50 beds. Six other housing

24

25 9 Michael McGough and Jason Pohl, Woodland nursing home identified as site of 35-patient coronavirus outbreak,
Sacramento Bee (Apr. 17, 2020), https://www.sacbee.com/news/coronavirus/article241998491.html
26 10 Ryan Pickrell, Sweeping US navy testing reveals most aircraft carrier sailors infected with coronavirus had no
symptoms, Business Insider (Apr. 18, 2020), https://www.businessinsider.com/testing-reveals-most-aircraft0-
27 carrier-sailors-coronavirus-had-no-symptoms-2020-4
11 Response to the COVID-19 pandemic, Prison Policy Initiative (Apr. 16, 2020),
28 https://www.prisonpolicy.org/virus/virusresponse.html
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1 units (G, H, I, J, K, L) have bunk beds bolted to the wall and are separated from corridors by a

2 set of bars with open space between the bars, so air flows freely between the cells and the

3 corridors. The distance from top to bottom bunk throughout the facility is less than six feet.

4 Several other housing units (D, E, F) involve two-person cells surrounding a common area

5 where half of each unit’s detainees are released at a time during the day. There are some two-

6 person cells throughout the facility as well as administrative and medical segregation units.

7

58. As of April 18, 2020, there were 157 ICE detainees at YCJ. This marks a net

8 increase of seven ICE detainees at YCJ since April 2. During the same period, the YCJ

9 population of criminal detainees decreased by several dozen. Thus, during the same period that

10 Yuba County responded to COVID-19 by decreasing its population of criminal detainees, ICE

11 made the same facility more crowded than it otherwise would have been.

12

59. Food preparation and food service in both facilities is communal, with little

13 opportunity for disinfection. Sinks, toilets, and showers are also shared. The showers are

14 consistently dirty and infrequently sanitized.

15

60. Staff members in the facilities arrive and leave on a shift basis, and there is

16 limited ability to adequately screen staff for new, asymptomatic infection.

17

61. Moreover, because detention facilities also limit access to items and services that

18 are necessary to maintaining hygiene, such as hand sanitizer and clean clothes, the risk of

19 disease spread is even higher. And typically, there is little instruction given to detainees

20 regarding sanitation, including in response to the COVID-19 pandemic. At YCJ and Mesa

21 Verde, detainees have not been provided with hand sanitizer. They have been instructed about

22 the need for social distancing, but not provided with conditions in which it can be practiced.

23

62. Staff members at YCJ and Mesa Verde are not systemically testing detainees or

24 themselves for COVID-19. And the daily temperature test being administered at YCJ is not an

25 adequate replacement for an actual COVID-19 test.

26

63. Members of the proposed class have pleaded with Defendants in increasingly

27 desperate ways. The conditions have become so dire that detainees at Mesa Verde organized a

28
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1 hunger strike to call attention to the lack of hygiene products, dearth of proper testing, and

2 continued foot traffic in and out of the facility.12 The detainees also called on the Governor of

3 California to help decrease the population inside Mesa Verde. Rather than provide safe

4 conditions of confinement, GEO Group’s warden and employees responded by threatening to

5 withhold access to the commissary and directing racist taunts at detainees participating in the

6 hunger strike.

7

64. A judge within the Northern District just days ago found that conditions in YCJ

8 and Mesa Verde make it ripe for the spread of COVID-19 and render social distancing

9 impossible:

10

[P]etitioners cannot practice meaningful social distancing in their respective

detention facilities. Petitioners have offered evidence, undisputed by respondents,

11

that detainees, both at Yuba and Mesa Verde, are kept in close proximity, i.e., less

than six feet apart, not only when in their living quarters… but also during meals…

12

and, at Yuba, when lining up for temperature checks as well.

13 Bahena Ortuño, 2020 WL 1701724, at *4.
14 65. Dr. Robert Greifinger, a correctional health expert with over three decades of
15 prisoner health care experience, attests that the crowded conditions at immigration detention
16 centers like YCJ and Mesa Verde make one of the most vital preventive measures, social
17 distancing, impossible.
18 66. Experts predict that it is “perhaps inevitable” that COVID-19 will reach
19 immigration detention facilities like YCJ and Mesa Verde, if it has not already.
20 67. After reviewing the COVID-19 protocols announced by ICE, including the April
21 10 guidance, Dr. Greifinger concluded that the guidance is “deficient” and does not reflect the
22 reality of the overcrowded conditions in immigration detention. Dr. Greifinger found that the
23 most important mitigation measures for congregate facilities—social distancing and release—
24 are neglected in the COVID-19 protocols. Social distancing is presented as “optional,” and as
25 Plaintiffs consistently report, is unacknowledged and non-existent at the facilities. While
26

27 12 See Bob Egelko, Coronavirus hunger strike at immigration lockup? ICE says no, but California detainees say
otherwise, San Francisco Chronicle, Apr. 13, 2020, https://www.sfchronicle.com/news/article/Coronavirus-hunger-
28 strike-at-immigration-lockup-15197579.php.
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1 “release is the most important means of mitigating the spread of COVID-19 in ICE detention

2 centers,” Dr. Greifinger concluded that ICE presents “arbitrary” and “inadequate” goals with

3 regard to release.

4

68. Tellingly, the ICE guidance issued on April 10 acknowledges that the options to

5 safeguard vulnerable detainees “depend on available space.” The evidence at YCJ and Mesa

6 Verde shows that the immigration facilities simply do not have that space, and therefore are

7 incapable of protecting Plaintiffs and other detainees from the risks of COVID-19.

8

69. Given the widespread shortage of COVID-19 testing in the United States, it is

9 likely that detention facilities cannot conduct aggressive, widespread testing to identify all

10 positive cases of COVID-19. In a context where wide-scale testing is unavailable, a lack of

11 proven cases of COVID-19 is functionally meaningless in determining the risk of COVID-19

12 transmission within an institution.

13

70. Defendants’ lack of testing means they cannot adequately protect detainees, in

14 part, because of the prevalence of asymptomatic spread. As the CDC has recognized, COVID-

15 19 can be spread by people who are not showing symptoms. Indeed, as one example of the

16 exponential rate of asymptomatic transmission, the Boston Health Care for the Homeless

17 Program recently tested every resident at a Boston homeless shelter for coronavirus. Program

18 doctors were “stunned” by the results: 146 of the 397 (36%) people tested were positive but

19 asymptomatic.13

20

71. Without a rigorous testing regime, it is impossible to conclude that COVID-19

21 has not already entered YCJ and Mesa Verde.

22

D. A Significant Population Reduction is Required to Ensure Reasonable

Safety for Individuals at YCJ and Mesa Verde.

23

24

72. Social distancing is required to prevent the widespread transmission of COVID-

25 19.

26

27 13 See John Karalis, Coronavirus spread: Testing shows ‘stunning’ asymptomatic COVID-19 rate at Boston
homeless shelter, Masslive.com, Apr. 15, 2020 https://www.masslive.com/coronavirus/2020/04/coronavirus-
28 spread-testing-shows-stunning-asymptomatic-covid-19-rate-at-boston-homeless-shelter.html.
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1

73. To achieve social distancing at YCJ and Mesa Verde, the detainee population

2 must be significantly reduced.

3

74. Reviewing current conditions at both facilities, Dr. Greifinger concluded that

4 YCJ and Mesa Verde “are not prepared to prevent the spread of COVID-19, treat those who are

5 most medically vulnerable, and contain any outbreak, and the risk of infectious spread at each

6 of these facilities is very high.” He concluded further that “[t]he facilities fail to meet minimally

7 acceptable standards of social distancing, putting the residents at grave and unacceptable risk of

8 pervasive infections, leading to serious illness and death. The only way to avoid these

9 unacceptable risks is to materially reduce the population, implement social distancing as

10 described herein, and ensure appropriate hygiene.”

11

75. It is not possible to achieve social distancing if more than one person is housed

12 in each cell, or if beds in dorms are placed within less than 8-10 feet of each other. Nor can

13 anyone share a bunk bed with another person under social distancing.

14

76. The government’s own subject matter experts have also called for ICE to release

15 detainees to protect them. Nearly two months ago, Dr. Scott Allen and Dr. Josiah Rich, medical

16 experts to DHS, warned the agency about the danger to detainees of rapid spread of COVID-19

17 in immigration detention facilities.

18

77. In a whistleblower letter to Congress, Dr. Allen and Dr. Rich recommended that

19 “[m]inimally, DHS should consider releasing all detainees in high risk medical groups such as

20 older people and those with chronic diseases.” They concluded that “acting immediately will

21 save lives not of only those detained, but also detention staff and their families, and the

22 community-at-large.”

23

E. ICE Has Failed to Implement Adequate Measures to Contain the Risk of

COVID-19 Transmission in its Facilities.

24

25

78. ICE has failed to adequately heed the imperative to reduce population levels in

26 its facilities so that detainees are able to practice safe social distancing. Instead, ICE’s response

27 to the pandemic has been characterized by a business-as-usual approach. ICE has failed to

28
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1 adequately reduce population levels in its facilities, just as it has failed to ensure the availability

2 of adequate hygiene products, sanitation, and medical care. Meanwhile, ICE has continued to

3 conduct its standard enforcement and detention operations, further increasing the risk of

4 COVID-19 transmission.

5

79. From early on in California’s state of emergency, ICE has resisted the need for

6 substantial adaptations to its operations to mitigate the spread of the virus. As Californians in

7 many cities began to shelter in their homes in compliance with public health directives on

8 March 16, 2020, ICE’s Los Angeles Field Office executed pre-dawn raids to cram even more

9 immigrants into detention centers.14 Following public outcry, ICE claimed it would modify its

10 enforcement efforts in apparent recognition of the need to protect public health, but declined to

11 suspend arrests.15

12

80. The day after, however, in response to a lawsuit for the release of vulnerable ICE

13 detainees, the agency again demonstrated its failure to appreciate the threats posed by the

14 COVID-19 pandemic, insisting that “Plaintiffs’ assertion that detention per se poses an

15 increased risk of health complications or death from COVID-19 is purely speculative.”16 The

16 agency has repeated this claim in defending subsequent lawsuits.

17

81. On April 10, 2020, after weeks of defending itself against a tidal wave of

18 litigation, ICE issued a guidance document titled “COVID-19 Pandemic Response

19 Requirements.” This document, however, falls well short of what is needed to protect the people

20 in ICE’s custody. The document acknowledges the need for social distancing but sets an

21 arbitrary goal of reducing ICE facility populations to 75% of their capacities, a generic standard

22 that is devoid of any detailed analysis of relevant factors and that fails to account for variation

23 in facility design.

24

25

26 14 Brittny Mejia, With Masks at the Ready, ICE Agents Make Arrests on First Day of California Coronavirus
Lockdown, L.A. Times, Mar. 17, 2020, https://www.latimes.com/california/story/2020-03-17/for-ice-agents-its-
27 business-as-unusual-day-after-sweeping-coronavirus-order.
15 ICE Guidance on COVID-19, U.S. Custom and Immigration Enforcement, https://www.ice.gov/covid19.
28 16 Defs.’ Opp., Dawson v. Asher, No. 20-0409 (W.D. Wash. Mar. 18, 2020), ECF No. 28 at 8.
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1

82. Less than one week later, ICE undermined its limited April 10 guidance, when

2 Acting Director Albence, a defendant in this action, stated to the congressional Committee on

3 Oversight and Reform that “our review of our existing population has been completed” and that

4 ICE has no existing plans to release additional detainees to slow the spread of the virus.

5

83. ICE’s head-in-the-sand response to the threats of this pandemic will prove

6 deadly to people in immigration detention if it is not remedied through this Court’s intervention.

7

84. ICE has continued to introduce new detainees into both Mesa Verde and YCJ.

8

85. Inside the facilities, moreover, immigrants say that ICE is not consistently taking

9 even the less aggressive precautionary measures necessary to contain the transmission of

10 COVID-19. Detainees at YCJ and Mesa Verde continue to report insufficient access to basic

11 hygiene and sanitation products, and report that ICE is still not engaging in systematic testing

12 for COVID-19.

13

86. This echoes a concern of the two DHS experts, who say that “the track record of

14 ICE facilities implementing [early screening, testing, isolation and quarantine] protocols

15 historically has been inconsistent.” Moreover, even if ICE was consistently taking these

16 precautions, the experts have explained that such efforts “won’t be enough” without rapidly

17 ‘releas[ing] those who do not pose an immediate danger to public safety.”17

18

F. Plaintiffs’ Hunger Strike to Advocate Peacefully for Measures Addressing

the Dangerous Conditions at Mesa Verde.

19

20

87. Plaintiffs have grown increasingly fearful about their confinement conditions and

21 increasingly desperate in their cries for help. At Mesa Verde, conditions have become so dire

22 that a group of detainees engaged in a hunger strike to call attention to the hazardous conditions

23 in the facility and Defendants’ refusal to adequately protect them from contracting COVID-19.

24

25

26

27 17 See Scott Allen, Josiah Rich & Mavis Nimoh, We Must Release Prisoners to Lessen the Spread of Coronavirus,
Washington Post, Mar. 17, 2020,
28 https://www.washingtonpost.com/opinions/2020/03/17/we-must-release-prisoners-lessen-spread-coronavirus/.
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1

88. When conditions did not improve and Defendants continued to force Plaintiffs to

2 eat and live in unsafe settings, on April 9, 2020 Plaintiffs turned to a quintessential form of

3 symbolic speech: a hunger strike.

4

89. Dozens of class members refused to eat in the dining hall. This peaceful

5 demonstration was designed to draw attention to Defendants’ failure to implement safe social

6 distancing and other protective measures. Hunger strikers also addressed their message in part

7 to California Governor Gavin Newsom, seeking his assistance to reduce the population level at

8 the facility by instructing state and local agencies to decline ICE requests to refer and hold more

9 immigrants for placement inside ICE facilities. Many detainees refused to eat altogether; others

10 ate only products purchased from their commissary account that they could consume outside the

11 dining hall.

12

90. Class Representative Coraima Sanchez Nunez was one of the first detainees to

13 engage in a hunger strike. Like her fellow hunger strikers, she engaged in her hunger strike for

14 the purpose of protesting the unsafe confinement conditions.

15

91. As participation grew, and the media became aware of Plaintiffs’ protest,

16 Defendants retaliated against the protesters. GEO and its employees threatened to cut access to

17 commissary items—food, shampoo, soap, and other personal hygiene products Plaintiffs

18 purchase with their own money—if the hunger strike continued.

19

92. In attempting to thwart the hunger strike, Defendants acknowledged its purpose.

20 Indeed, members of the staff mocked protesting Plaintiffs. As one GEO employee stated, “I

21 don’t know why you’re starving yourself when ICE doesn’t care what happens to you.”

22

93. Defendants’ actions were brazen, callous, and unconstitutional. Rather than

23 implement social distancing or take other measures to protect detainees, Defendants threatened

24 to cut off access to personal food and hygiene products in the midst of a pandemic. Plaintiffs

25 were forced to choose between exercising their right to speech or maintaining their access to

26 essential commissary items.

27

28
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1

94. Defendants’ actions had their desired chilling effect on Plaintiffs’ exercise of

2 their First Amendment rights. As a result of Defendants’ retaliation, many Plaintiffs stopped

3 their hunger strike.

4

95. Hunger strikes are quintessential expressive conduct and symbolic speech. Cf.

5 F.T.C. v. Superior Court Trial Lawyers Ass'n, 493 U.S. 411, 450 (1990) (“The passive

6 nonviolence of King and Gandhi are proof that the resolute acceptance of pain may

7 communicate dedication and righteousness more eloquently than mere words ever could.”)

8 Plaintiffs’ political messages are entitled to the highest protection under the First Amendment.

9 The retaliation by GEO and employees such as Warden Allan, ostensibly with ICE’s

10 authorization, violates the fundamental protection against retaliation for expression.

11

96. Moreover, this retaliatory response is authorized by an ICE policy that binds

12 contractors such as GEO and expressly calls for the facility to penalize “engaging in or inciting

13 a group demonstration.” See 2011 Operations Manual, ICE Performance-Based National

14 Detention Standards, Section 3.1, available at https://www.ice.gov/doclib/detention-

15 standards/2011/3-1.pdf.

16

97. Plaintiffs respectfully request this Court enjoin Defendants from any further

17 retaliation against Plaintiffs’ constitutionally protected conduct.

18

98. Moreover, Plaintiffs respectfully request this Court hold unlawful and set aside

19 ICE’s unconstitutional policy of penalizing peaceful group demonstrations, so that Plaintiffs

20 may advocate for their rights and wellbeing without fear of being disciplined.

21 V. CLASS ALLEGATIONS

22

99. This case is ideally suited to class treatment. Attorneys’ collective realization

23 that ICE is failing to release enough people from Mesa Verde and YCJ has understandably

24 resulted in the filing of multiple individual actions in the Northern District seeking the release

25 of their particular clients. Unrepresented individuals, however, continue to languish in these

26 facilities, fearing for their lives but lacking the wherewithal to sue ICE for their release. The

27 resource-intensive process of litigating multiple individual cases is not ideally suited to the

28
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1 urgent situation at hand, where due process requires the swift but orderly release of significant

2 numbers of ICE detainees.

3

100. This case is brought on behalf of a class consisting of all civil immigration

4 detainees at Mesa Verde and YCJ.

5

101. Plaintiffs further propose two sub-classes defined as follows:

6

Sub-Class 1: All civil immigration detainees at YCJ (the “YCJ Subclass”).

7

Sub-Class 2: All civil immigration detainees at Mesa Verde (the “Mesa Verde

8

Subclass”).

9

102. The proposed class and sub-classes satisfy the requirements of Rule 23(a)(1)

10 because they are sufficiently numerous so as to make joinder impracticable. There are more than

11 280 class members at Mesa Verde and approximately 150 detainees at YCJ. And Defendants

12 continue to funnel new detainees into these facilities. Joinder is also impracticable because

13 many in the proposed class are pro se, indigent, have limited English proficiency, and/or have a

14 limited understanding of the U.S. judicial system.

15

103. The proposed class and sub-classes meet the commonality requirements of

16 Federal Rule of Civil Procedure 23(a)(2) because there are common questions of law and fact

17 affecting members of the proposed class, including “whether the government must modify the

18 conditions of confinement—or, failing that, release a critical mass of [d]etainees—such that

19 social distancing will be possible and all those held in the facility will not face a constitutionally

20 violative substantial risk of serious harm.” Savino, 2020 WL 1703844 at *7.

21

104. While some class members are healthier than others, they are all at grave risk of

22 contracting COVID-19. As another federal court held in provisionally certifying a nearly

23 identical class: It is a “troubling fact that even perfectly healthy detainees are seriously

24 threatened by COVID-19. To be sure, the harm of a COVID-19 infection will generally be more

25 serious for some petitioners than for others. Yet it cannot be denied that the virus is gravely

26 dangerous to all of us.” Id.

27

28
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1

105. The proposed class and sub-classes meet the typicality requirement of Federal

2 Rule of Civil Procedure 23(a)(3) because the claims of the representative Plaintiffs are typical

3 of the claims of the class as a whole. Each named putative class representative has been harmed

4 by the same course of conduct as the rest of the class, namely ICE's decision to continue to

5 detain them in a setting that makes social distancing impossible. And each seeks similar relief as

6 the rest of the class.

7

106. The proposed class and sub-classes meet the adequacy requirements of Federal

8 Rule of Civil Procedure 23(a)(4). Each putative class representative has committed to fairly and

9 adequately protecting the interests of the class and is aware of no conflict that would preclude

10 fair and adequate representation.

11

107. Proposed class counsel are highly qualified to serve as class counsel and

12 collectively have extensive experience litigating class actions, immigration detention cases, and

13 First Amendment issues.

14

108. Furthermore, Defendants’ conduct has harmed all class members. An injunction

15 or declaration will provide relief on a class-wide basis.

16 VI. LEGAL FRAMEWORK

17

A. Immigrant Detainees are Entitled to Constitutional Due Process Protections

Against Exposure to Infectious Disease.

18

19

109. Whenever the government detains or incarcerates someone, it has an affirmative

20 duty to provide conditions of reasonable health and safety. As the Supreme Court has explained,

21 “when the State takes a person into its custody and holds him there against his will, the

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

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

24 199–200 (1989). As a result, the government must provide those in its custody with “food,

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

26

110. Conditions that pose an unreasonable risk of future harm violate the Eighth

27 Amendment’s prohibition on cruel and unusual punishment, even if that harm has not yet come

28
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1 to pass. The Eighth Amendment requires that “inmates be furnished with the basic human

2 needs, one of which is ‘reasonable safety.’” Helling, 509 U.S. at 33 (quoting DeShaney, 489

3 U.S. at 200). Accordingly, “[i]t would be odd to deny an injunction to inmates who plainly

4 proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had

5 happened to them.” Id.

6

111. The Supreme Court has explicitly recognized that the risk of contracting a

7 communicable disease may constitute such an “unsafe, life-threatening condition” that threatens

8 “reasonable safety.” Id.

9

112. These principles also apply in the context of immigration detention.

10

113. The constitutional protections afforded to immigration detainees are more

11 comprehensive than those afforded to criminal defendants. Immigrant detainees, even those

12 with prior criminal convictions, are civil detainees held pursuant to civil immigration laws.

13 Zadvydas v. Davis, 533 U.S. 679, 690 (2001). Even those who in the past were convicted of

14 crimes are solely being detained pursuant to their immigration status, having completed their

15 criminal sentences. Because detained immigrants are civil detainees, their constitutional

16 protections while in custody are derived from the Fifth Amendment. The Eighth Amendment

17 prohibits punishment that is “cruel and unusual,” whereas the Due Process Clause of the Fifth

18 Amendment prohibits any punishment at all.

19

114. The Ninth Circuit has applied this principle to make clear that civil detainees,

20 like Plaintiffs here, are entitled to conditions of confinement that are superior to those of

21 convicted prisoners and to those of criminal pretrial detainees. Jones v. Blanas, 393 F.3d 918,

22 933-34 (9th Cir. 2004), cert. denied, 546 U.S. 820 (2005); see also King v. Cty. of Los Angeles,

23 885 F.3d 548, 557 (9th Cir. 2018) (finding presumption of punitive, and thus unconstitutional,

24 treatment where conditions of confinement for civil detainees are similar to those faced by pre-

25 trial criminal detainees).

26

115. Moreover, civil detainees like Plaintiffs need not show “deliberate indifference”

27 to establish a constitutional violation. Jones, 393 F.3d at 934. Instead, a condition of

28
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1 confinement for a civil immigration detainee violates the Constitution “if it imposes some harm

2 to the detainee that significantly exceeds or is independent of the inherent discomforts of

3 confinement and is not reasonably related to a legitimate governmental objective or is excessive

4 in relation to the legitimate governmental objective.” Unknown Parties v. Johnson, No. CV-15-

5 00250-TUC-DCB, 2016 WL 8188563, at *5 (D. Ariz. Nov. 18, 2016), aff’d sub nom. Doe v.

6 Kelly, 878 F.3d 710 (9th Cir. 2017).

7

B. Defendants Are Violating Plaintiffs’ Constitutional Due Process Rights.

8

116. The conditions described above are sufficient to demonstrate that Plaintiffs’

9 constitutional due process rights are being violated. Keeping Plaintiffs detained in such close

10 proximity to one another and without the sanitation necessary to combat the spread of the virus

11 serves no legitimate purpose. Nor is detention under these circumstances rationally related to

12 the enforcement of immigration laws. Finally, even if there were a legitimate purpose, it is

13 clearly excessive in relation to that purpose and could be achieved by alternative and less harsh

14 methods.

15

117. It is important to note that ICE has a range of highly effective tools to ensure that

16 individuals report for court hearings and other appointments. For example, ICE’s conditional

17 supervision program, ISAP (Intensive Supervision Appearance Program), relies on the use of

18 electronic ankle monitors, biometric voice recognition software, unannounced home visits,

19 employer verification, and in-person reporting to supervise participants. A government-

20 contracted evaluation of this program reported a 99% attendance rate at all immigration court

21 hearings and a 95% attendance rate at final hearings.

22

118. Plaintiffs’ due process rights are also being violated because their conditions of

23 confinement place them at serious risk of being infected with COVID-19 and Defendants are

24 being deliberately indifferent to this critical safety concern. Although Plaintiffs need not prove

25 deliberate indifference here, they undoubtedly have.

26

119. There is no question that COVID-19 poses a serious risk to Plaintiffs. COVID-19

27 is highly contagious and can cause severe illness and death.

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Case 3:20-cv-02731-VC Document 1 Filed 04/20/20 Page 30 of 36

1

120. Defendants are aware of the serious risk that COVID-19 poses to Plaintiffs and

2 have failed to meaningfully mitigate that risk. Medical experts for the Department of Homeland

3 Security have also identified the risk of COVID-19 spreading to ICE detention centers.

4

121. Defendants also are aware that significantly reducing the detained population in

5 order to facilitate consistent, meaningful, social distancing is the only effective preventative

6 measure. Drs. Allen and Rich, their own medical experts, told them as much in three letters,

7 sent in February and March 2020, which emphasized that “[s]ocial distancing through release is

8 necessary to slow transmission of infection.”

9

122. Nevertheless, Defendants have failed to take any concrete steps to ensure that

10 Plaintiffs can maintain consistent social distancing within Mesa Verde and YCJ. Instead, they

11 have taken a series of half measures that are “patently insufficient to protect [Plaintiffs].”

12 Basank v. Decker, No. 20 Civ. 2518, 2020 WL 1481503, at *6-*7 (S.D.N.Y. Mar. 26, 2020).

13 Defendants’ response, in turn, constitutes deliberate indifference to a serious risk to Plaintiffs’

14 health and safety.

15

123. Moreover, other prisons and jails around the country are already releasing

16 detainees because the risk of contagion is overwhelming.

17

124. The circumstances of this case make clear that release is the only means to

18 ensure compliance with Plaintiffs’ due process rights. Public health information makes clear

19 that the only way to prevent infection is through social distancing and increased hygiene. These

20 measures are functionally impossible to implement under current conditions at YCJ and Mesa

21 Verde. The only course of action that can remedy these unlawful conditions is a rapid, orderly,

22 systematized decrease of the population in these detention centers.

23

C. The Court Has Authority to Order Plaintiffs’ Release to Vindicate Their

Fifth Amendment Rights, and Such Relief Is Necessary Here.

24

25

125. Courts have broad power to fashion equitable remedies to address constitutional

26 violations in prisons, Hutto v. Finney, 437 U.S. 678, 687 n.9 (1978), and “[w]hen necessary to

27 ensure compliance with a constitutional mandate, courts may enter orders placing limits on a

28
28 CLASS PETITION FOR WRIT OF HABEAS CORPUS AND CLASS COMPLAINT FOR INJUNCTIVE AND
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Case 3:20-cv-02731-VC Document 1 Filed 04/20/20 Page 31 of 36

1 prison’s population,” Brown v. Plata, 563 U.S. 493, 511 (2011).

2

126. “The scope of a district court's equitable powers” in this regard “is broad, for

3 breadth and flexibility are inherent in equitable remedies.” Hutto, 437 U.S., at 687, n. 9. Thus,

4 even where “[t]he inquiry involves uncertain predictions regarding the effects of population

5 reductions, as well as difficult determinations regarding the capacity of prison officials to

6 provide adequate care at various population levels,” federal courts “have substantial flexibility

7 [in] making these judgments” and crafting an appropriate remedy. Plata, 563 U.S. at 538.

8

127. In recent weeks, a judge within the Northern District and numerous other courts

9 have ordered the release of ICE detainees and criminal justice system prisoners and detainees as

10 a result of COVID-19 concerns. See, e.g., Ortuño, 2020 WL 1701724 at *4 (N.D. Cal. Apr. 8,

11 2020) (holding that four individuals were likely to succeed that continued detention violated due

12 process where they “cannot practice meaningful social distancing in their respective detention

13 facilities”); see also Xochihua-Jaimes v. Barr, No. 18-71460, 2020 WL 1429877, at *1 (9th Cir.

14 Mar. 24, 2020) (sua sponte ordering immediate release of ICE detainee “[i]n light of the rapidly

15 escalating public health crisis, which public health authorities predict will especially impact

16 immigration detention centers”); Bent v. Barr, No. 19-cv-06123-DMR, 2020 WL 1812850 at *6

17 (N.D. Cal. Apr. 9, 2020) (quoting DeShaney, 489 U.S. at 199-200 (1989) (“[E]ven assuming

18 that Respondents accurately describe Mesa Verde’s current practices, these practices are

19 inadequate to ensure the ‘safety and general wellbeing’ of Mesa Verde detainees during the

20 COVID-19 pandemic.”); United States v. Stephens, No. 15-cr-95 (AJN), 2020 WL 1295155, at

21 *2 (S.D.N.Y. Mar. 19, 2020) (releasing pretrial detainee in light of “the unprecedented and

22 extraordinarily dangerous nature of the COVID-19 pandemic”); State v. Ferguson, No. 2019-

23 270536-FH, Order (Mich. Ct. App. Mar. 23, 2020) (ordering defendant’s immediate release on

24 bond due to “the public health factors arising out of the present public health emergency”); In re

25 Request to Commute or Suspend County Jail Sentences, No. 084230 (N.J. Mar. 22, 2020) (court

26 consent order, creating immediate presumption of release for every person serving a county jail

27 sentence based on COVID-19); Malam v. Adduci, No. 20 Civ. 10829, 2020 WL 1672662 (E.D.

28
29 CLASS PETITION FOR WRIT OF HABEAS CORPUS AND CLASS COMPLAINT FOR INJUNCTIVE AND
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Case 3:20-cv-02731-VC Document 1 Filed 04/20/20 Page 32 of 36

1 Mich. Apr. 5, 2020), as amended (Apr. 6, 2020) (granting petitioner’s release for duration of

2 COVID-19 emergency); Ali v. Dep’t of Homeland Sec., No. 20 Civ. 140, 2020 WL 1666074

3 (S.D. Tex. Apr. 2, 2020) (granting petitioner’s release due to coronavirus pandemic where

4 government was not likely to remove petitioner in the foreseeable future); Hernandez v. Decker,

5 No. 20 Civ. 1589, 2020 WL 1547459 (S.D.N.Y. Mar. 31, 2020) (granting ICE detainee’s

6 release due to risks of COVID-19 where practice of social distancing was impossible in

7 facility); Thakker v. Doll, No. 20 Civ. 480 (M.D. Pa. Mar. 31, 2020) (granting release of ICE

8 detainees due to imminent, irreparable harm posed by COVID-19).

9

128. This raft of recent COVID-19-related decisions in keeping with a well-

10 established tradition of federal courts ordering the release of detained persons when necessary to

11 remedy unconstitutional conditions caused by overcrowding. See, e.g., Plata, 563 U.S. 493;

12 Duran v. Elrod, 713 F.2d 292, 297-98 (7th Cir. 1983), cert. denied, 465 U.S. 1108 (1984)

13 (concluding that court did not exceed its authority in directing release of low-bond pretrial

14 detainees as necessary to reach a population cap); Mobile Cty. Jail Inmates v. Purvis, 581 F.

15 Supp. 222, 224-25 (S.D. Ala. 1984) (concluding that district court properly exercised remedial

16 powers to order a prison’s population reduced to alleviate unconstitutional conditions, and

17 noting other cases); Inmates of the Allegheny Cty. Jail v. Wecht, 565 F. Supp. 1278, 1297 (W.D.

18 Pa. 1983) (order to reduce overcrowding “is within our power to correct the constitutional

19 violations”); Brenneman v. Madigan, 343 F. Supp. 128, 139 (N.D. Cal. 1972) (“If the state

20 cannot obtain the resources to detain persons . . . in accordance with minimum constitutional

21 standards, then the state simply will not be permitted to detain such persons.”); see also

22 Unknown Parties v. Nielsen, No. CV-15-00250-TUC-DCB, 2020 WL 813774, *1 (D. Ariz. Feb.

23 19, 2020) (ordering that DHS release from custody detainees to whom it did not provide a bed,

24 shower, nutritious food, and screening by a medical professional within 48 hours of booking).

25

129. Public health information makes clear that the only way to prevent infection is

26 through social distancing and increased hygiene. Yet the defendants are detaining the plaintiffs

27 under conditions that force them into close contact with many other detainees and staff. By

28
30 CLASS PETITION FOR WRIT OF HABEAS CORPUS AND CLASS COMPLAINT FOR INJUNCTIVE AND
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Case 3:20-cv-02731-VC Document 1 Filed 04/20/20 Page 33 of 36

1 continuing detention in these circumstances, the defendants are subjecting the plaintiffs to

2 unreasonable harm. The only course of action that can remedy these unlawful conditions is the

3 release of a substantial number of class members from detention.

4

D. Defendants Are Violating Plaintiffs’ First Amendment Rights.

5

130. Plaintiffs’ symbolic speech regarding their conditions of confinement pertains to

6 a matter of utmost public concern and seeks to influence political decisions about their fate. It

7 thus is entitled to the highest level of protection under the First Amendment. See, e.g., Virginia

8 v. Black, 538 U.S. 343, 365 (2003) (plurality opinion) (explaining that political speech is “at the

9 core of what the First Amendment is designed to protect”).

10

131. Defendants’ retaliation against Plaintiffs for engaging in peaceful symbolic

11 speech violates the First Amendment’s fundamental protection against censorship. See Perry v.

12 Sindermann, 408 U.S. 593, 597 (1972).

13

132. Plaintiffs exercised their First Amendment rights by engaging in a hunger strike

14 for the purpose of protesting the conditions at Mesa Verde, calling attention to their plight, and

15 calling on Governor Newsom to aid them in reducing the population inside Mesa Verde.

16

133. Defendants’ response constituted an adverse action against Plaintiffs by

17 threatening to withhold access to commissary because of Plaintiffs’ protected conduct.

18

134. Defendants’ adverse actions, i.e. systematically threatening to withhold access to

19 the commissary to those who protested, chilled many Plaintiffs from continuing their symbolic

20 speech, and would have chilled a person of ordinary firmness.

21

135. Defendants’ actions have not reasonably advanced a legitimate “correctional

22 goal,” a phrase which itself is inapposite to this civil immigration context. Constitutional rights

23 are given greater protection in the context of civil detention than in other carceral settings.

24

136. ICE’s official policy, applicable to GEO Group as an ICE contractor, expressly

25 prohibiting Plaintiffs from “engaging in or inciting a group demonstration” violates the First

26 Amendment in numerous ways. It is a presumptively invalid prior restraint on speech. It

27 discriminates based on viewpoint, content, and speaker. It is overbroad in that it sweeps in wide

28
31 CLASS PETITION FOR WRIT OF HABEAS CORPUS AND CLASS COMPLAINT FOR INJUNCTIVE AND
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Case 3:20-cv-02731-VC Document 1 Filed 04/20/20 Page 34 of 36

1 swaths of protected speech for prohibition and punishment. It is not adequately tailored to any

2 legitimate government objective and is unnecessary given other ICE prohibitions that

3 adequately protect legitimate government objectives. And it is void for vagueness.

4

137. As a result of Defendants’ unconstitutional actions, Plaintiffs have suffered and

5 continue to suffer harm caused by Defendants’ deliberate efforts to chill protected speech and

6 their continued imposition of a ban on participating in any peaceful demonstration.

7

138. This Court should enjoin Defendants’ unconstitutional retaliation and set aside as

8 unlawful ICE’s policy prohibiting “engaging in or inciting a group demonstration.”

9 FIRST CLAIM FOR RELIEF: VIOLATION OF THE FIFTH AMENDMENT RIGHT

TO SUBSTANTIVE DUE PROCESS (BY ALL PLAINTIFFS AGAINST

10

GOVERNMENT DEFENDANTS)

11

139. Defendants’ detention of Plaintiffs and other class members during the COVID-

12 19 pandemic violates the Due Process Clause of the Fifth Amendment of the United States

13 Constitution.

14 SECOND CLAIM FOR RELIEF: VIOLATION OF THE FIRST AMENDMENT (BY MESA VERDE SUB-CLASS PLAINTIFFS AGAINST ALL DEFENDANTS)
15

16

140. Defendants’ retaliation against, and interference with, Plaintiffs’ exercise of their

17 rights of assembly, petition, and free speech violate the First Amendment of the United States

18 Constitution.

19

THIRD CLAIM FOR RELIEF: VIOLATION OF THE ADMINISTRATIVE

PROCEDURE ACT (BY MESA VERDE SUB-CLASS PLAINTIFFS AGAINST

20

GOVERNMENT DEFENDANTS)

21

141. Defendants’ policy prohibiting people in ICE detention facilities from “engaging

22 in or inciting a group demonstration” constitutes agency action that is arbitrary and capricious,

23 unconstitutional, and otherwise contrary to law, and thus violates the Administrative Procedure

24 Act.

25

26

27

28
32 CLASS PETITION FOR WRIT OF HABEAS CORPUS AND CLASS COMPLAINT FOR INJUNCTIVE AND
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Case 3:20-cv-02731-VC Document 1 Filed 04/20/20 Page 35 of 36

1

PRAYER FOR RELIEF

2

WHEREFORE, Plaintiffs respectfully ask that this Court:

3

a. Take jurisdiction over this matter;

4

b. Certify the proposed Class and Sub-classes as indicated above, and appoint the

5 named Petitioners/Plaintiffs as class representatives and the undersigned counsel as class

6 counsel;

7

c. Declare that the continued detention of the plaintiff class members violates the

8 Due Process Clause;

9

d. In gross or individually, order Defendants to release enough class members

10 sufficient for the continued detention of any remaining class members not to violate their

11 constitutional rights;

12

e. Order Defendants to suspend, temporarily, the introduction of immigration

13 detainees into Mesa Verde and YCJ and notify the Court and class counsel before resuming the

14 introduction of new detainees into these facilities;

15

f. Declare that Defendants and their agents have violated Plaintiffs’ rights under

16 the First Amendment to engage in speech, including symbolic speech, to petition, and to

17 assemble peacefully without fear of government interference or retaliation;

18

g. Issue an injunction enjoining Defendants and their agents from any further

19 interference with, or retaliation against, Plaintiffs’ exercise of their First Amendment rights;

20

h. Declare that ICE’s policy prohibiting people in ICE detention facilities from

21 “engaging in or inciting a group demonstration” violates the Administrative Procedure Act and

22 the First Amendment;

23

i. Set aside ICE’s policy prohibiting people in ICE detention facilities from

24 “engaging in or inciting a group demonstration;”

25

j. Order Defendants to abstain from placing plaintiff class members into solitary

26 confinement as a means of achieving social distancing;

27

k. Award Plaintiffs costs and reasonable attorneys’ fees in this action under the

28
33 CLASS PETITION FOR WRIT OF HABEAS CORPUS AND CLASS COMPLAINT FOR INJUNCTIVE AND
DECLARATORY RELIEF

Case 3:20-cv-02731-VC Document 1 Filed 04/20/20 Page 36 of 36

1 Equal Access to Justice Act, as amended, 5 U.S.C. § 504 and 28 U.S.C. § 2412, and on any

2 other basis justified under law; and,

3

l. Grant such other and further relief as this Court deems just and appropriate.

4 Dated: April 20, 2020

Respectfully submitted,

5

/s/ William S. Freeman

William S. Freeman

6

Sean Riordan

Angélica Salceda

7

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION OF NORTHERN

8

CALIFORNIA

9 Bree Bernwanger Tifanei Ressl-Moyer
10 Hayden Rodarte LAWYERS’ COMMITTEE FOR
11 CIVIL RIGHTS OF SAN FRANCISCO BAY AREA
12
Judah Lakin 13 Amalia Wille
LAKIN & WILLE LLP 14
Jordan Wells 15 Stephanie Padilla
Michael Kaufman 16 AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF SOUTHERN 17 CALIFORNIA

Manohar Raju Public Defender Matt Gonzalez Chief Attorney Francisco Ugarte Genna Ellis Beier Emilou H. MacLean OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO
Martin S. Schenker Timothy W. Cook Francisco M. Unger COOLEY LLP
Attorneys for Petitioners-Plaintiffs

18

19

20

21

22

23

24

25

26

27

28
34 CLASS PETITION FOR WRIT OF HABEAS CORPUS AND CLASS COMPLAINT FOR INJUNCTIVE AND
DECLARATORY RELIEF

 
 Case 3:20-cv-02731-VC Document 5 Filed 04/20/20 Page 1 of 31

1 WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org
2 SEAN RIORDAN (SBN 255752) sriordan@aclunc.org
3 ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org
4 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN
5 CALIFORNIA 39 Drumm Street
6 San Francisco, CA 94111 Telephone: (415) 621-2493
7 Facsimile: (415) 255-8437
8 Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page
9

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.orga GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: 415-553-9319 Fax: 415-553-9810

10

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12

13 ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUIZ TOVAR, LAWRENCE
14 MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA
15 YARITZA SANCHEZ NUÑEZ, JAVIER 16 ALFARO, DUNG TUAN DANG,

17

Petitioners-Plaintiffs,

18

v.

19 DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration

20 and Customs Enforcement; MATTHEW T.

ALBENCE, Deputy Director and Senior 21 Official Performing the Duties of the Director

22

of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND

23 CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa

24 Verde Detention Facility,

CASE NO.
PETITIONERS-PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR TEMPORARY RESTRAINING ORDER

25

Respondents-Defendants.

26

27

28
PETITIONERS-PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR TEMPORARY RESTRAINING ORDER

Case 3:20-cv-02731-VC Document 5 Filed 04/20/20 Page 2 of 31

1 BREE BERNWANGER* (NY SBN 5036397) MARTIN S. SCHENKER (SBN 109828)

bbernwanger@lccrsf.org

mschenker@cooley.com

2 TIFANEI RESSL-MOYER (SBN 319721) COOLEY LLP

tresslmoyer@lccrsf.org

101 California Street, 5th Floor

3 HAYDEN RODARTE (SBN 329432)

San Francisco, CA 94111

hrodarte@lccrsf.org

Telephone: (415) 693-2000

4 LAWYERS’ COMMITTEE FOR

Facsimile: (415) 693-2222

CIVIL RIGHTS OF

5 SAN FRANCISCO BAY AREA

TIMOTHY W. COOK (Mass. BBO# 688688)*

131 Steuart St #400

tcook@cooley.com

6 San Francisco, CA 94105

FRANCISCO M. UNGER (Mass. BBO#

Telephone: (415) 814-7631

698807)*

7

funger@cooley.com

JUDAH LAKIN (SBN 307740)

COOLEY LLP

8 judah@lakinwille.com

500 Boylston Street

AMALIA WILLE (SBN 293342)

Boston, MA 02116

9 amalia@lakinwille.com

Telephone: (617) 937-2300

LAKIN & WILLE LLP

Facsimile: (617) 937-2400

10 1939 Harrison Street, Suite 420

Oakland, CA 94612

Attorneys for Petitioners-Plaintiffs

11 Telephone: (510) 379-9216

Facsimile: (510) 379-9219

*Motion for Admission Pro Hac Vice

12

Forthcoming

JORDAN WELLS (SBN 326491)

13 jwells@aclusocal.org

STEPHANIE PADILLA (SBN 321568)

14 spadilla@aclusocal.org

MICHAEL KAUFMAN (SBN 254575)

15 mkaufman@aclusocal.org

AMERICAN CIVIL LIBERTIES UNION

16 FOUNDATION OF SOUTHERN

CALIFORNIA

17 1313 West Eighth Street

Los Angeles, CA 90017

18 Telephone: (213) 977-9500

Facsimile: (213) 977-5297

19

20

21

22

23

24

25

26

27

28
PETITIONERS-PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR TEMPORARY RESTRAINING ORDER

Case 3:20-cv-02731-VC Document 5 Filed 04/20/20 Page 3 of 31

1

TABLE OF CONTENTS

2 NOTICE OF MOTION AND MOTION....................................................................................... 1

3 I. INTRODUCTION .............................................................................................................. 1

4 II. FACTS ................................................................................................................................ 3

5

A. COVID-19 Poses Grave Risk of Harm to Plaintiffs ............................................... 3

6

B. Adequate Social Distancing is Impossible at Current Population Levels at

Mesa Verde and YCJ .............................................................................................. 5

7

C. Plaintiffs Face an Imminent and Substantial Risk of Exposure to COVID-19

8

in Mesa Verde and YCJ .......................................................................................... 8

9 III. LEGAL STANDARD ....................................................................................................... 11

10 IV. ARGUMENT .................................................................................................................... 12

11

A. Plaintiffs are Likely to Succeed on the Merits...................................................... 13

12

1. Plaintiffs’ Detention in an Environment Where Social Distancing is

Impossible is Unreasonably Dangerous in Violation of Substantive

13

Due Process............................................................................................... 13

14

a. The Impossibility of Social Distancing Exposes Plaintiffs to

an Unjustifiable Risk of Contracting A Deadly Virus in Light

15

of Alternatives to Detention that Would Equally Serve the

Government’s Interests in Appearance for Removal

16

Proceedings and Community Safety ............................................. 14

17

b. Plaintiffs are also Likely to Prevail by Showing Defendants’

Refusal to Ensure Adequate Social Distancing Constitutes

18

Deliberate Indifference ................................................................. 18

19

B. Plaintiffs Satisfy the Remaining Factors for Preliminary Relief .......................... 21

20

1. Exposure to a Lethal Virus Which Lacks Any Vaccine, Treatment,

or Cure Constitutes Irreparable Harm....................................................... 21

21

2. Public Interest and Balance of Equities Weigh Heavily in Plaintiffs’

22

Favor ......................................................................................................... 22

23

C. Justice Requires Comprehensive Relief for the Class .......................................... 23

24 V. SECURITY ....................................................................................................................... 24

25 VI. CONCLUSION................................................................................................................. 25

26

27

28

i

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ORDER

Case 3:20-cv-02731-VC Document 5 Filed 04/20/20 Page 4 of 31

1

TABLE OF AUTHORITIES

2

PAGE(S)

3 Cases

4 All. for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) ............................................................................................ 12, 13
5 Bahena Ortuño v. Jennings,
6 2020 WL 1701724 (N.D. Cal. Apr. 8, 2020) ..................................................................... passim

7 Bent v. Barr, 2020 WL 1812850 (N.D. Cal. Apr. 9, 2020) ..................................................................... passim
8 Castillo v. Barr,
9 2020 WL 1502864 (C.D. Cal. Mar. 27, 2020) .............................................................. 14, 15, 25

10 Castro v. Cnty. of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) ............................................................................................ 24, 27
11 DeShaney v. Winnebago Cty. Dep’t of Soc. Servs.,
12 489 U.S. 189 (1989).................................................................................................................. 23

13 Doe v. Barr, 2020 WL 1820667 (N.D. Cal. Apr. 12, 2020) ................................................................... passim
14 Elrod v. Burns,
15 427 U.S. 347 (1976).................................................................................................................. 28

16 Helling v. McKinney, 509 U.S. 25 (1993).................................................................................................................... 18
17 Hernandez v. Sessions,
18 872 F.3d 976 (9th Cir. 2017) .................................................................................................... 30

19 Indep. Living Ctr. of S. Cal., Inc. v. Shewry, 543 F.3d 1047 (9th Cir. 2008) .................................................................................................. 28
20 J.P. v. Sessions,
21 2019 WL 6723686 (C.D. Cal. Nov. 5, 2019)............................................................................ 24

22 Jackson v. Indiana, 406 U.S. 715 (1972).................................................................................................................. 16
23 Jones v. Blanas,
24 393 F.3d 918 (9th Cir. 2004) .................................................................................. 16, 17, 18, 24

25 Jorgensen v. Cassiday, 320 F.3d 906 (9th Cir. 2003) .................................................................................................... 33
26 M.R. v. Dreyfus,
27 663 F.3d 1100 (9th Cir. 2011) .................................................................................................. 28

28

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ORDER

Case 3:20-cv-02731-VC Document 5 Filed 04/20/20 Page 5 of 31

1 Malam v. Adducci, 2020 WL 1809675) (E.D. Mich. Apr. 9, 2020) ........................................................................ 20
2 Melendres v. Arpaio,
3 695 F.3d 990 (9th Cir. 2012) .................................................................................................... 28

4 Orantes–Hernandez v. Smith, 541 F. Supp. 351 (C.D. Cal. 1982) ........................................................................................... 33
5 Padilla v. ICE,
6 953 F.3d 1134 (9th Cir. 2020) .................................................................................................. 28

7 Parsons v. Ryan, 754 F.3d 657 (9th Cir. 2014) .............................................................................................. 18, 29
8 Basank v. Decker,
9 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020) .......................................................................... 31

10 Rafael L.O. v. Tsoukaris, WL 1808843 (D.N.J. Apr. 9, 2020) .......................................................................................... 21
11 Savino v. Souza,
12 2020 WL 1703844 (D. Mass. Apr. 8, 2020) ....................................................................... 19, 20

13 Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832 (9th Cir. 2001) .................................................................................................... 12
14 Thakker v. Doll,
15 No. 1:20-cv-480, 2020 WL 1671563 (M.D. Pa. Mar. 31, 2020) ........................................ 21, 22

16 Toussaint v. Rushen, 553 F. Supp. 1365 (N.D. Cal. 1983) ......................................................................................... 33
17 Unknown Parties v. Nielsen,
18 2020 WL 813774 (D. Ariz. Feb. 19, 2020)............................................................................... 16

19 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008)...................................................................................................................... 12
20 Youngberg v. Romeo,
21 457 U.S. 307 (1982)...................................................................................................... 15, 17, 23

22 Zadvydas v. Davis, 533 U.S. 678 (2001).................................................................................................................. 15
23

24

25

26

27

28

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PETITIONERS-PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR TEMPORARY RESTRAINING

ORDER

Case 3:20-cv-02731-VC Document 5 Filed 04/20/20 Page 6 of 31

1 OTHER AUTHORITIES

2 Letter from Drs. Scott A. Allen & Josiah Rich to Rep. Bennie Thompson, et al. (Mar. 19, 2020) ......................................................................................................................... 18
3 U.S. Gov’t Accountability Office, GAO-15-26, Alternatives to Detention:
4 Improved Data Collection and Analyses Needed to Better Assess Program Effectiveness 10-11 (Nov. 2014)............................................................................................... 18
5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

iv

PETITIONERS-PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR TEMPORARY RESTRAINING

ORDER

Case 3:20-cv-02731-VC Document 5 Filed 04/20/20 Page 7 of 31

1

NOTICE OF MOTION AND MOTION

2

PLEASE TAKE NOTICE that, as soon as they may be heard, Plaintiffs will and hereby

3 do move, pursuant to Civil L. R. 7-1 and 65-1, for a temporary restraining order directing ICE1

4 to release a sufficient number of putative class members in order to allow for social distancing

5 at Mesa Verde ICE Processing Facility (Mesa Verde) and Yuba County Jail (YCJ). This motion

6 is supported by the following Memorandum of Points and Authorities, the Class Petition for

7 Writ of Habeas Corpus and Complaint for Injunctive and Declaratory Relief, the Motion for

8 Provisional Class Certification, and declarations of each of the Class Representative Plaintiffs,

9 or their attorneys on their behalf, and various experts, all of which are filed contemporaneously.

10

Pursuant to Civil L.R. 65-1(b), on April 20, 2020 at 4 p.m., counsel for Plaintiffs called

11 Assistant U.S. Attorney Sara Winslow at the U.S. Attorney’s Office for the Northern District of

12 California and sent an e-mail to Ms. Winslow to advise of the emergency reasons requiring

13 them to seek a temporary restraining order. In addition, Plaintiffs’ counsel e-mailed to Ms.

14 Winslow copies of (1) the Class Petition for Writ of Habeas Corpus and Class Complaint for

15 Injunctive and Declaratory Relief, (2) Motion for Temporary Restraining Order, (3) Motion for

16 Provisional Class Certification, and (4) associated proposed orders.

17 I. INTRODUCTION

18

As COVID-19 ravages the country and the world, Plaintiffs are trapped in close quarters

19 in two immigration detention centers, Mesa Verde and YCJ. Plaintiffs spend their days within

20 arm’s reach of one another, share communal bathrooms and showers, and are forced into tightly

21 spaced single-file lines throughout the day. To prevent contracting and spreading COVID-19,

22 the Centers for Disease Control and Prevention (“CDC”) has recommended that individuals

23 avoid contact with others and practice social distancing.2 Yet, Plaintiffs’ continued detention in

24 Mesa Verde and YCJ prevents them from doing exactly what the CDC recommends.

25

26
1 References to “Defendants” in this motion are not intended to suggest that Plaintiffs here seek injunctive relief
27 against any non-governmental entities.
2 See Coronavirus Disease 2019 (COVID-19), Prevent Getting Sick, How to Protect Yourself & Others, Centers for
28 Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html.
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1

Social distancing is critical with COVID-19 because the disease has no known vaccine or

2 cure and is highly contagious. It can survive on hard surfaces and be transmitted by touch. It can

3 be carried and transmitted by people who exhibit no symptoms. To implement the CDC’s

4 guidance, 95% of Americans—about 316 million people—have been ordered to stay at home.3

5 Until there is a vaccine or cure for COVID-19, which will likely take over a year,4 the disease

6 will continue to spread and could threaten the life of any adult who contracts it.

7

Defendants’ response to has been dangerously inadequate. Experts have been warning

8 Defendants that COVID-19 will spread “like wildfire” in congregate settings, like Mesa Verde

9 and YCJ, where people cannot consistently maintain a distance of at least six feet from one

10 another. In other jails and detention center, it has, with deadly results. Defendants have the

11 power to reduce the detained populations at both Mesa Verde and YCJ to sufficiently

12 accommodate consistent, meaningful social distancing. They refuse to do so. Indeed, in recent 13 weeks, Defendants increased the detained immigrant population at YCJ.5

14

Recognizing the profound risk that continued detention in Mesa Verde and YCJ poses to

15 those detained there, multiple judges in this District have ordered ICE to release detained

16 immigrants on the grounds that their continued detention would violate the Constitution.6

17 Plaintiffs here are currently suffering the same constitutional violation that has justified

18 individual release in these cases.

19

Hundreds of lives are at stake. The systemic crisis at Mesa Verde and YCJ must be

20 resolved at a systemic level. And it must be resolved quickly. As of April 17, there have been

21
3 See Sarah Mervosh, et al., N.Y. Times (Apr. 7, 2020), See Which States and Cities Have Told Residents to Stay at
22 Home, https://www.nytimes.com/interactive/2020/us/coronavirus-stay-at-home-order.html.
4 Carolyn Kormann, New Yorker (Mar. 8, 2020), How Long Will It Take to Develop a Coronavirus Vaccine?,
23 https://www.newyorker.com/news/news-desk/how-long-will-it-take-to-develop-a-coronavirus-vaccine (quoting
Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases).
24 5 As of April 18, 2020, there were 157 ICE detainees at YCJ. This marks a net increase of seven ICE detainees at
YCJ compared to April 2. During the same period, the net YCJ population of criminal detainees decreased by
25 several dozen. Thus, during the same period that YCJ responded to COVID-19 by decreasing its population of
criminal detainees, ICE made the facility more crowded than it otherwise would have been. Riordan ⁋ 9.
26 6See Doe v. Barr, No. 20-cv-02141-LBR, 2020 WL 1820667, at *9-10 (N.D. Cal. Apr. 12, 2020) (granting TRO
and ordering release of ICE detainee in YCJ on grounds that risk of continued confinement was excessive in
27 relation to government interest); Bent v. Barr, No. 19-cv-06123-DMR, 2020 WL 1812850 at *4-6 (N.D. Cal. Apr.
9, 2020) (same Mesa Verde); Bahena Ortuño v. Jennings, No. 20-cv-02064-MMC, 2020 WL 1701724, at *3-5
28 (N.D. Cal. Apr. 8, 2020) (same for Mesa Verde and YCJ detainees).
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1 124 confirmed COVID-19 cases among ICE detainees nationwide—a jump of over 50 cases

2 from the previous week.7 This Court should grant a temporary restraining order to implement a

3 system for class members’ expedited release until conditions in Mesa Verde and YCJ can

4 accommodate the required social distancing.

5 II. FACTS

6

A. COVID-19 Poses Grave Risk of Harm to Plaintiffs

7

COVID-19 is a deadly, highly contagious viral disease that has no cure. It has caused a

8 global pandemic, infecting millions of people and killing over a hundred thousand in a matter of

9 months.8 In the United States, there are at least 720,630 cases and 37,202 confirmed deaths.9 In

10 California, there are at least 31,530 cases and 1,178 confirmed deaths.10

11

COVID-19 poses a serious health risk to all adults. Although certain characteristics such

12 as advanced age or underlying health conditions exacerbate the risk of death or serious illness

13 from COVID-19, any adult who contracts the disease can experience severe illness, require

14 hospitalization, or die. While people under the age of 20 have largely been protected from

15 severe effects of the coronavirus, 55% of COVID-19 hospitalizations and 20% of deaths were

16 from people between the ages of 20 and 64. Greifinger ¶ 8. Early CDC data shows nearly 40%

17 of COVID-19 patients hospitalized in the U.S. have been between the ages of 18 and 54.11 In

18 New York, approximately one-third of the patients between the ages of 30 and 39 who died

19
7 U.S. Immigr. & Customs Enforcement, Confirmed Cases, ICE Guidance on COVID-19 (last updated Apr. 17,
20 2020, 8:00 p.m.), https://www.ice.gov/coronavirus.
8 See World Health Org., Coronavirus Disease 2019 (COVID-19) Situation Report – 89 (Apr. 18, 2020),
21 https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200418-sitrep-89-covid-
19.pdf?sfvrsn=3643dd38_2.
22 9 See Ctrs. for Disease Control & Prevention, Coronavirus Disease 2019 (COVID-19), Cases, Data, & Surveillance,
Cases of Coronavirus Disease (COVID-19) in the U.S. (last updated Apr. 19, 2020),
23 https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html. Kern County, where Mesa Verde is
located, has seen 574 cases and three deaths. See Kern Cty. Pub. Health Servs. Dep’t, COVID-19 Dashboard (last
24 updated Apr. 19, 2020), https://kernpublichealth.com/covid-19_dashboard/. Yuba and Sutter Counties have seen 40
cases and three deaths, while neighboring Sacramento and Yolo Counties have seen more than 1,000 cases and 400
25 deaths. See Yuba Cty., Coronavirus Update for Yuba-Sutter (last updated Apr. 19, 2020, 6:18 p.m.),
https://www.yuba.org/coronavirus/. Dr. Greifinger has cautioned that according to at least one model, as few as ten
26 confirmed cases in a county indicate a near-certainty of an existing, undetected epidemic. Greifinger ¶ 45.
10 See L.A. Times, Tracking Coronavirus in California (last updated Apr. 19, 2020, 11:50 p.m.),
27 https://www.latimes.com/projects/california-coronavirus-cases-tracking-outbreak/.
11 See Dr. Sanjay Gupta, The Mystery of Why the Coronavirus Kills Some Young People, CNN (Apr. 6, 2020),
28 http://www.cnn.com/2020/04/05/health/young-people-dying-coronavirus-sanjay-gupta/index.html.
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1 from COVID-19 did not appear to have any risk factors,12 and physicians treating COVID-19

2 have noted the “randomness” with regard to which young people are unable to survive

3 contraction of the illness.13 Short of death, COVID-19 can cause prolonged illness and suffering

4 in people of any age who contract it. In addition to requiring ventilation to stabilize oxygen

5 intake, increasing numbers of patients also risk kidney failure and require dialysis, possibly

6 permanently.14 People of all ages and medical backgrounds who have contracted COVID-19

7 describe painful symptoms including vomiting, diarrhea, fever, relentless shivering, and severe

8 difficulty breathing.15

9

In addition, many people have undiagnosed risk factors. For example, hypertension

10 makes someone at higher risk of severe illness from COVID-19,16 but the CDC has stated that

11 about 11 million adults in the U.S. have high blood pressure but do not know it.17 Under-

12 diagnosis of risk factors is particularly likely among the proposed class, who are part of a

13 population that often lacks adequate access to healthcare. Among the nonelderly population,

14 23% of noncitizens with lawful status and more than four in ten (45%) undocumented

15

16 12 See Chris Mooney et al., Hundreds of Young Americans Have Now Been Killed by the Coronavirus, Data Shows,
Wash. Post (Apr. 8, 2020), https://www.washingtonpost.com/health/2020/04/08/young-people-coronavirus-deaths/.
17 13 Id.
14 Reed Abelson et al., An Overlooked, Possibly Fatal Coronavirus Crisis: A Dire Need for Kidney Dialysis, N.Y.
18 Times (Apr. 18, 2020), https://www.nytimes.com/2020/04/18/health/kidney-dialysis-coronavirus.html.
15 See Marissa J. Lang, Nightmares, Flashbacks, Uncertainty: A 29-year-old Recovers After Coronavirus Brought
19 Him Near Death, Wash. Post (Apr. 17, 2020), https://www.washingtonpost.com/local/coronavirus-covid-19-
recovery-francis-wilson-virginia-dc/2020/04/16/0bb55974-7858-11ea-a130-df573469f094_story.html (describing
20 experience of otherwise healthy 29-year-old who survived COVID-19 after requiring an 11-day medically induced
coma); Lizzie Presser, A Medical Worker Describes Terrifying Lung Failure from COVID-19—Even in His Young
21 Patients, ProPublica (Mar. 21, 2020), https://www.propublica.org/article/a-medical-worker-describes--terrifying-
lung-failure-from-covid19-even-in-his-young-patients (respiratory therapist describing COVID-19 as “knocking
22 out what should be perfectly fit, healthy people. Patients will be on minimal support, on a little bit of oxygen, and
then all of a sudden, they go into complete respiratory arrest, shut down and can’t breathe at all.”); Fiona
23 Lowenstein, I’m 26. Coronavirus Sent Me to the Hospital., N.Y. Times (Mar. 23, 2020),
https://www.nytimes.com/2020/03/23/opinion/coronavirus-young-people.html (describing feeling “desperate for
24 oxygen” before being hospitalized); Sui Lee Wee & Vivian Wang, Two Women Fell Sick from Coronavirus. One
survived., N.Y. Times (Mar. 13, 2020), https://www.nytimes.com/interactive/2020/03/13/world/asia/coronavirus-
25 death-life.html (describing experiences of two otherwise healthy nurses in China who contracted COVID-19 and
were hospitalized, one of whom died).
26 16 Ctrs. for Disease Control & Prevention, Coronavirus Disease 2019 (COVID-19), People Who Need Extra
Precautions, People Who are at Higher Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019-ncov/need-
27 extra-precautions/people-at-higher-risk.html.
17 Ctrs. for Disease Control & Prevention, CDC Features, Diseases & Conditions, 5 Surprising Facts About High
28 Blood Pressure, https://www.cdc.gov/features/highbloodpressure/index.html.
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1 immigrants were uninsured as of March 2020, compared to less than one in ten (9%) citizens.18

2 Lack of health insurance often results in a failure to identify chronic diseases or other health

3 conditions.19

4

There is no vaccine, antiviral treatment, or cure for COVID-19. Greifinger ¶ 6. The

5 disease is believed to spread through “respiratory droplets” through “close exposure” of up to

6 six feet. Mishori ¶ 6; Greifinger ¶ 11. “Transmission also is possible through contact with

7 contaminated surfaces.” Greifinger ¶ 10. Individuals infected with COVID-19 can transmit it to

8 others even if they have no symptoms. Mishori ¶ 6.

9

Because of its highly contagious nature, the only available strategy to reduce the risk of

10 injury or death from COVID-19 is to prevent people from being infected in the first place.

11 Greifinger ¶ 6; Mishori ¶ 22. “Social distancing,” or maintaining a minimum of six feet of

12 separation at all times from other people, paired with “hand hygiene,” is the only effective

13 means of stopping the spread of the disease. Greifinger ¶ 11; Hernandez ¶ 12 (“The most

14 effective mitigation measures are community-wide social distancing.”). Social distancing is the

15 “cornerstone” of the CDC’s prevention plan.20 In the last month, state governments and the

16 federal government have fundamentally restructured American life to limit all interaction except

17 within one’s own household, and, when such interaction is unavoidable, to require social

18 distancing.21

19

B. Adequate Social Distancing is Impossible at Current Population Levels at

Mesa Verde and YCJ

20

21

In early April, Mesa Verde had detainee population of 286 people. See Bahena Ortuño v.

22 Jennings, No. 20-cv-02064-MMC (N.D. Cal.), Supp. Dec. of Erik Bonnar ¶ 2 (ECF No. 29-2).

23

24 18 Health Coverage of Immigrants, Kaiser Family Foundation (Mar. 18, 2020), https://www.kff.org/disparities-
policy/fact-sheet/health-coverage-of-immigrants/.
25 19 Jennifer Tolbert et al., Key Facts about the Uninsured Population, Kaiser Family Foundation (Dec. 13, 2019),
https://www.kff.org/uninsured/issue-brief/key-facts-about-the-uninsured-population/.
26 20 Ctrs. for Disease Control & Prevention, Coronavirus Disease 2019 (COVID-19), Prevent Getting Sick, Cloth
Face Covers, Recommendation Regarding the Use of Cloth Face Coverings, Especially in Areas of Significant
27 Community-Based Transmission, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-
cover.html.
28 21 Mervosh et al., supra note 2 (listing orders by state).
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1 YCJ has a current detainee population of approximately 286 people—approximately 157 of

2 those are ICE detainees, while the remainder are detained pursuant to the Yuba County criminal

3 justice system. Riordan ¶ 9. Social distancing is incompatible with every aspect of life in

4 detention at Mesa Verde and YCJ.

5

First, Plaintiffs and the proposed class cannot maintain physical distance from other

6 detainees in the units where they sleep. YCJ contains several different types of housing units,

7 each with its own alphabetical designation. There are four dorms (B, C, P, R) in which detainees

8 sleep in bunk beds in close proximity to one another. Riordan Exh. A (Berg Report at p. 9); id.

9 Exh. C (photograph marked as DSC “198” is unit C); id. Exh. D (photographs marked as DSC

10 112 and DSC 114 are of housing unit R); Kavanagh ¶¶ 5-6, 10-11. The C and D dorms have 50

11 beds. Kavanagh ¶ 6. Six other housing units (G, H, I, J, K, L) have bunk beds bolted to the wall

12 and are separated from corridors by a set of bars with open space between the bars, so air flows

13 freely between the cells and the corridors. Riordan Exh. A at 9; id. Exh. D (photograph marked

14 as DSC 105 is of housing unit I); Kavanagh ¶ 9. The distance from top to bottom bunk

15 throughout the facility is less than six feet. Mwaura ¶ 10; Zepeda ¶ 15. Several other housing

16 units (D, E, F) involve two-person cells surrounding a common area where half of each unit’s

17 detainees are released at a time during the day. Riordan Exh. A at 9.

18

Throughout the sleeping quarters in YCJ, social distancing is impossible. Mwaura ¶¶ 9-

19 10; Tovar ¶ 14; Zepeda ¶¶ 14-15. From their own beds, Plaintiffs can reach out and touch the

20 beds beside them. Tovar ¶ 14; Mwaura ¶ 10 (describing two bunks within two feet of him and

21 four more within four feet). The dorms in which plaintiffs live are crowded. Tovar ¶ 14 (dorm is

22 “completely full”); see also Mwaura ¶ 10 (only 8 detainees out of 36 do not have a bunk mate);

23 Zepeda ¶ 15 (describing that all bottom bunks are less than a meter apart and occupied).

24

In Mesa Verde, all detainees sleep in bunk beds only a few feet apart in 100-bed

25 dormitory spaces. Knox Dec. ¶ 9; Riordan Exh. E (2018 PREA Audit) at 2. Mesa Verde has

26 three isolation cells in a restricted housing unit that hold one person each. Riordan Exh. E at 2.

27 Plaintiffs also describe being arm’s width from others while in their beds. Dang ¶ 13; Nuñez ¶

28
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1 14; Alfaro ¶ 18 (“[The bunk beds] are so close to one another I can reach out my arms and touch

2 another bunk bed.”). Social distancing is impossible at current levels. See Dang ¶ 11

3 (surrounded by full bunks in at-capacity dorm); Nuñez ¶¶ 12, 14 (sleeping in half-capacity dorm

4 less than six feet from two other women); Alfaro ¶ 16 (describing one or two beds free out of

5 100).

6

“[B]y definition [the sleeping arrangements in both facilities] prohibit[] social distancing,

7 as the distance between the upper and lower bunks is less than six feet.” Greifinger ¶ 34.

8 Further, “[b]ecause detainees get in and out of bed, bunk beds that are closer than ten feet from

9 one another will not allow adequate social distancing.” Id. ¶ 35. At Mesa Verde specifically, Dr.

10 Greifinger has concluded that it “is fundamentally a congregate living space where there is a

11 high risk of infectious spread.” Greifinger Dec. ¶ 34(a). Similarly, at YCJ, although there are

12 number of different unit layouts, “none of the sleeping arrangements appear safe in the context

13 of the coronavirus.” Greifinger ¶ 34(b).

14

Second, Plaintiffs and the proposed class cannot maintain safe physical distance from one

15 another when sharing common areas in their housing units, including when eating and using the

16 bathroom and shower. In the dining areas in both facilities, most tables and chairs in common

17 spaces are bolted to the ground and cannot be moved. Kavanagh ¶ 3 (YCJ); Riordan Exhs. C &

18 D (Takei ECF No. 197-17 & 197-15) (YCJ); Riordan Exh. F (Takei at 5, 24, 25) (Mesa Verde);

19 Tovar ¶ 14 (YCJ); Alfaro ¶ 22 (Mesa Verde). At the tables, class members sit “right next to each

20 other,” Zepeda ¶ 16 (YCJ), “elbow to elbow,” Mwaura ¶ 13 (YCJ); Alfaro ¶ 22 (“When we

21 watch television, we sit right next to one another”) (Mesa Verde). There is not enough space

22 between chairs to maintain social distances at the tables and not enough tables for detainees to

23 space themselves among them. Kavanagh ¶ 9 (YCJ); Dang ¶¶ 17-18 (Mesa Verde); Nuñez ¶ 14

24 (Mesa Verde). At Mesa Verde, “[t]he people serving food are an arm’s length distance or less”

25 from Plaintiffs when they serve them. Dang ¶ 17.

26

Plaintiffs regularly have to line up without sufficient space to maintain social distancing

27 in the line. At Mesa Verde, guards force Plaintiffs to line up and take them to the dining area;

28
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1 they are “inches apart in line.” Dang ¶ 17; see also Nuñez ¶ 14. At YCJ, Plaintiffs must also

2 regularly line up in close quarters. See Zepeda ¶ 21 (to use the bathroom), ¶ 23 (to see medical

3 staff); ¶ 24 (to receive afternoon medication); Mwaura ¶ 12 (to go to dining hall).

4

It is likewise impossible to maintain social distance when using the bathrooms and

5 showers at both facilities. At Mesa Verde, there are five toilets, five showers, and seven sinks

6 per 100-person dormitory. Riordan Exh. E at 2. Plaintiffs are “shoulder to shoulder” when

7 washing their hands. Nuñez ¶ 12. At YJC, toilets and showers are shared and are separated by

8 curtains or thin dividers that generally rise to shoulder height. Tovar ¶ 15 (“you do not have any

9 privacy or space”); Kavanagh ¶ 6; see also Mwaura ¶ 16. Plaintiffs’ experiences illustrate that

10 “the structure and facilities of the Mesa Verde Detention Center and the Yuba County Jail

11 [make] social distancing [] impossible . . . and there is a serious risk of infection for all of those

12 who are detained.” Greifinger ¶ 43.

13

C. Plaintiffs Face an Imminent and Substantial Risk of Exposure to COVID-19

in Mesa Verde and YCJ

14

15

Jail and detention settings like Mesa Verde and YCJ “pose a heightened public health risk

16 to the spread of COVID-19, even greater than other non-carceral institutions.” Greifinger ¶ 16.

17 According to Dr. Mishori, “The risk posed by infectious diseases in immigration detention

18 facilities is significantly higher than in the community, both in terms of risk of exposure and

19 transmission and harm to individuals who become infected.” ¶ 7. In addition, at Mesa Verde and

20 YCJ, the risks inherent in detainees’ inability to maintain six feet of physical distance from

21 others are compounded by other conditions of confinement, including poor sanitation,

22 inadequate access to personal hygiene, substandard medical care, and the entry of newly-

23 detained people into the population without proper screening or quarantine. Greifinger ¶¶ 39,

24 41, 42, 49-56 (identifying factors within Mesa Verde and YCJ that compound the risk inherent

25 in Plaintiffs’ inability to maintain social distancing).

26

Plaintiffs describe sanitary and hygienic conditions that are wanting. At Mesa Verde,

27 detainees must wash their hands, shower, and clean their personal items using hotel-size

28
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1 shampoo and soap. Nuñez ¶ 11. On April 17, 2020, they received a liquid soap dispenser and

2 napkin dispenser, ostensibly in response to COVID-19. Nuñez ¶¶ 11, 16. There is no access to

3 hand sanitizer. Dang ¶ 20. Plaintiffs are paid $1 per day to clean their dorms and the bathrooms

4 they share with up to 99 other detainees for themselves, using only a mop, gloves, and cleaning

5 solution. Dang ¶ 16. One individual describes that everyone in his dorm must “use and re-use

6 the same little towel over and over again to dry [their] hands or wipe surfaces, and it smells and

7 is unsanitary.” Alfaro ¶ 23. At YCJ, the solitary bathroom in the yard is “disgusting,” (Tovar ¶

8 17) and clothes often come back from laundry with a foul smell (Zepeda ¶ 26). Detainees

9 without protective gear were forced to clean up after a visibly ill woman was removed from a

10 dorm in which she languished for days. Tovar ¶ 21.22 Moreover, Defendants’ responses to

11 people with symptoms have been delayed and inconsistent with CDC recommendations and

12 their own internal policies. See Tovar ¶¶ 7-9, 21 (describing delayed, inadequate response to

13 sick woman in dorm); Mwaura ¶ 30 (sick detainees in dorm room not receiving attention);

14 Alfaro ¶ 39 (“I have also never heard of anyone here who has been isolated or quarantined.”).

15

Perhaps even more shockingly, Defendants have continued to introduce new detainees

16 into the ghastly existing conditions at Mesa Verde and YCJ, including people transferred from

17 facilities with known COVID-19 cases and who entered without a two-week quarantine. Alfaro

18 ¶ 17 (“within hours of someone leaving, a new person comes in to take their place”); Dang ¶ 12

19 (describing newly-detained people who are coughing and sick); Nuñez ¶ 16 (detailing transfer

20 from YCJ to MV who was not quarantined before joining dorm); Zepeda ¶¶ 29-30 (noting two

21 transfers from Santa Rita Jail, one of whom entered YCJ dorm after five days in cell alone and

22 another who was isolated for only six hours) 23; Mwaura ¶ 31 (describing new detainee who

23 entered Apr. 17, 2020).

24

25
22 Even outside the context of the pandemic, Plaintiffs have experienced substandard medical care in both YCJ and
26 Mesa Verde. See Tovar ¶ 18 (YCJ); Mwaura ¶ 6 (not receiving care for Valley Fever at YCJ); Zepeda ¶ 9 (10
outstanding requests to see medical staff at YCJ); Dang ¶ 24 (MV failed to respond to request for medical records).
27 23 Santa Rita Jail has 27 confirmed cases of COVID-19. See Rick Hurd, Coronavirus: Alameda County Now Has
Second-Most Cases in Bay Area, East Bay Times (Apr. 17, 2020),
28 https://www.eastbaytimes.com/2020/04/17/coronavirus-alameda-county-now-has-second-most-cases-in-bay-area/.
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1

Defendants’ own medical subject matter experts have recognized that conditions like

2 those present currently at Mesa Verde and YCJ amount to a “tinderbox scenario” for the rapid

3 spread of COVID-19. See Letter from Drs. Scott A. Allen & Josiah Rich to Rep. Bennie

4 Thompson, et al. (Mar. 19, 2020), https://www.documentcloud.org/documents/6816336-

5 032020-Letter-From-Drs-Allen-Rich-to-Congress-Re.html#document/p4/a557238 (hereafter

6 “Drs. Allen & Rich Letter”). So, too, have Plaintiffs’ experts. As Dr. Mishori described, “A

7 coronavirus brought into a detention facility can quickly spread among the dense detainee

8 cohort. Soon many are sick—including high-risk groups such as those with chronic

9 conditions—quickly overwhelming the already strained health infrastructure within the facility.”

10 ¶ 16. Dr. Greifinger has specifically reviewed ICE’s response to the threat of COVID-19 and

11 concludes that it “is deficient, putting detainees . . . in imminent danger of serious illness and

12 death.” ¶ 43.

13

In addition, it is clear that the only way to mitigate against this doomsday scenario is to

14 significantly reduce the population of both Mesa Verde and YCJ. As Dr. Greifinger explains,

15 ICE has failed “to appreciate the importance of releasing detainees to limit the risk for the

16 individuals released, for those who remain detained, and for the general public.” Greifinger

17 ¶ 47.24 All experts agree that social distancing, paired with vigilant hygiene, is the most

18 effective measure to prevent transmission of COVID-19, see Hernandez Dec. ¶¶ 11-12; Mishori

19 Dec. ¶¶ 10-11; Greifinger Dec. ¶ 11, 30, 31, and it is clear that both Mesa Verde and YCJ have

20 “fail[ed] to meet minimally acceptable standards of social distancing, putting the residents at

21 grave and unacceptable risk of pervasive infections, [which will] lead[] to serious illness and

22 death.” Greifinger ¶ 59. In turn, release is “the most important means of mitigating the spread of

23 COVID-19 in ICE detention centers … even if the conditions inside the facility were

24 impeccable.” Greifinger ¶ 48.

25

At this point, ICE does not need to hypothesize as to what might happen in Mesa Verde

26 or YJC once COVID-19 takes hold as, sadly, in other congregate facilities where conditions are

27

28 24 Greifinger identifies numerous other deficiencies in ICE’s national response. See Greifinger ¶¶ 39, 41, 42, 48-55.
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1 similar to those in Mesa Verde and YCJ, tragedy has struck. In three weeks across March and

2 April, the jail at Rikers Island in New York jumped from no cases among inmates to 273 cases,

3 a higher rate of infection than in the most infected places in the world; four corrections staff

4 members and one inmate have died. Greifinger ¶¶ 21-22. The Cook County Jail has likewise

5 seen an alarming rise in cases: the Jail went from two confirmed inmate cases on March 23,

6 2020, to 342 confirmed inmate cases on April 17, 2020.25 Three inmates have died.26 As of

7 April 17, 2020, there were at least 124 confirmed cases among detainees in ICE custody,

8 including at least eighteen at the Otay Mesa Detention Center in San Diego.27 These tragedies

9 are foreseeable and preventable.

10

The catastrophe of a concentrated outbreak, which endangers the lives of not only those

11 trapped in custody, but also those on the outside because it can overwhelm an already-stressed

12 public health infrastructure, are precisely why multiple jurisdictions, including Los Angeles,

13 Detroit, Travis County, New York City, and more than half of states have released thousands of 14 people from criminal custody.28

15 III. LEGAL STANDARD

16

Plaintiffs are entitled to a temporary restraining order if they establish that they are

17 “likely to succeed on the merits, . . . likely to suffer irreparable harm in the absence of

18 preliminary relief, that the balance of equities tips in [their] favor, and that an injunction is in the

19 public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); Stuhlbarg Int’l

20 Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001) (noting that

21 preliminary injunction and temporary restraining order standards are “substantially identical”).

22
25 Andy Grimm, ‘I feel like I lost the battle for my husband,’ widow of dead Cook County Jail detainee says,
23 Chicago Sun Times, https://chicago.suntimes.com/2020/4/16/21224183/lost-battle-husband-widow-dead-cook-
county-jail-detainee-coronavirus (Apr. 16, 2020).
24 26 Id.
27 U.S. Immigration and Customs Enforcement, Confirmed Cases, ICE Guidance on
25 COVID-19 (last updated Apr. 13, 2020, 11:43 a.m.), https://www.ice.gov/coronavirus (click on “Confirmed
Cases”); see also Max Rivlin Nadler, KPBS, Otay Mesa COVID-19 Outbreak Now The Largest At A US
26 Immigration Detention Center, https://www.kpbs.org/news/2020/apr/14/otay-mesa-detention-center-now-largest-
immigration/ (Apr. 14, 2020).
27 28 See Responses to COVID-19 pandemic, Prison Policy Initiative (Apr. 10, 2020) (collecting instances where jails
and prisons have released detainees due to COVID-19),
28 https://www.prisonpolicy.org/virus/virusresponse.html#releases.
11
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1 A temporary restraining order may likewise issue where “serious questions going to the merits

2 [are] raised and the balance of hardships tips sharply in [plaintiff’s] favor.” All. for the Wild

3 Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (citation omitted). To succeed under the

4 “serious question” test, Plaintiffs must show that they are likely to suffer irreparable injury and

5 that an injunction is in the public’s interest. Id. at 1132.

6 IV. ARGUMENT

7

As the institutions of American life, including jails and prisons across the country,

8 fundamentally transform to accommodate social distancing, ICE stands virtually alone in

9 defying the medical and societal consensus. Despite overwhelming expert evidence to the

10 contrary, ICE asserts that immigrants detained in facilities where no one has tested positive for

11 COVID-19 are not at risk of infection at all, even as the disease ravages the communities

12 outside and regardless of whether ICE has administered any tests. ICE maintains that it can keep

13 immigrants in custody safe by ordering increased access to soap and sanitizer, conducting

14 screenings that fail to account for asymptomatic transmission, and issuing bare

15 recommendations that encourage social distancing while simultaneously admitting that “strict

16 social distancing may not be possible in congregate settings such as detention facilities.”29

17

ICE has made clear that it will not act of its own volition to make social distancing

18 possible. Although on April 10, ICE issued a non-binding recommendation that detention

19 centers consider reducing their populations to 75% of capacity (regardless of whether such a

20 reduction was actually sufficient to accommodate social distancing in any particular facility), a

21 week later, ICE’s Acting Director Matthew T. Albence told a Congressional oversight

22 committee that the agency contemplated no further releases.30 Before Congress, Acting Director

23 Albence went further, testifying that ICE cannot release any more detainees because it would

24 suggest that the Administration is “not enforcing our immigration laws,” which would be a

25

26 29 ICE ERO, COVID-19 Pandemic Response Requirements,
https://www.ice.gov/doclib/coronavirus/eroCOVID19responseReqsCleanFacilities.pdf (Apr. 10, 2020).
27 30 House Committee on Oversight and Reform, DHS Officials Refuse to Release Asylum Seekers and Other Non-
Violent Detainees Despite Spread of Coronavirus, https://oversight.house.gov/news/press-releases/dhs-officials-
28 refuse-to-release-asylum-seekers-and-other-non-violent-detainees (Apr. 17, 2020).
12
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1 “huge pull factor” and create a “rush at the borders.”31 ICE’s actions in California bear out this

2 strategy of relative inaction. Just in the past few weeks, the population of ICE detainees at YCJ

3 has increased. Riordan ¶ 9. In court, ICE has taken the position that the threat of COVID-19 is

4 speculative because there are no confirmed cases at Mesa Verde or YJC.32

5

Courts in this circuit have seen ICE’s responses to the COVID-19 crisis for what they

6 are: half-measures that do not effectively protect the civil detainees in ICE’s custody from a

7 serious risk of infection. See e.g., Castillo v. Barr, No. cv-20-00605, 2020 WL 1502864, at *5

8 (C.D. Cal. Mar. 27, 2020) (“Civil detainees must be protected by the Government. Petitioners

9 have not been protected. They are not kept at least 6 feet apart from others at all times.”) As a

10 result, judges have required ICE to release individual detainees from Mesa Verde and YCJ on

11 the grounds that their continued detention would violate due process. See Bahena Ortuño v.

12 Jennings, No. 20-cv-02064-MMC, 2020 WL 1701724 at *4 (N.D. Cal. Apr. 8, 2020); Bent v.

13 Barr, No. 19-cv-06123-DMR, 2020 WL 1812850 at *6 (N.D. Cal. Apr. 9, 2020); See Castillo v.

14 Barr, No. cv-20-00605 TJH (AFMX), 2020 WL 1502864, at *5 (C.D. Cal. Mar. 27, 2020).

15

The population levels in Mesa Verde and YCJ are a structural barrier that prohibit

16 necessary social distancing and, as a result, the risk of contracting COVID-19 looms over every

17 single Plaintiff every single day. This Court’s intervention is urgently needed to prevent the

18 catastrophic harm to Plaintiffs that will result if ICE is permitted to proceed in its intransigent

19 refusal to reduce the population of its facilities.

20

A. Plaintiffs are Likely to Succeed on the Merits

21

1. Plaintiffs’ Detention in an Environment Where Social

Distancing is Impossible is Unreasonably Dangerous in

22

Violation of Substantive Due Process

23

The Constitution prohibits the government from exposing people in its custody to

24 unjustifiable or unreasonable risks of harm. These constitutional protections are strongest for

25
31 House Committee on Oversight and Reform, DHS Officials Refuse to Release Asylum Seekers and Other Non-
26 Violent Detainees Despite Spread of Coronavirus, https://oversight.house.gov/news/press-releases/dhs-officials-
refuse-to-release-asylum-seekers-and-other-non-violent-detainees (Apr. 17, 2020).
27 32 Opp. Brief at 16, Bahena Ortuño v. Jennings, No. 3:20-cv-02064 (N.D. Cal. Mar. 30, 2020) (“In any event,
Petitioners’ assertion that detention per se poses an increased risk of health complications or death from COVID-19
28 is purely speculative. COVID-19 has not spread to the facilities where Petitioners are being detained.”)
13
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1 civil detainees like Plaintiffs, who are in detention pursuant to civil immigration laws. See

2 Zadvydas v. Davis, 533 U.S. 678, 690 (2001). Their constitutional rights while in custody are

3 derived from the Due Process Clause of the Fifth Amendment, which provides significantly

4 greater protection than the Eighth Amendment’s ban on cruel and unusual punishment.

5 Youngberg v. Romeo, 457 U.S. 307, 321-22 (1982). Plaintiffs are likely to prevail on either of

6 two due process theories. First, the risks presented by COVID-19 in the congregate detention

7 environments of Mesa Verde and YCJ are excessive in relation to the government’s interests

8 and could be achieved by alternative and less harsh methods. Second, the government’s decision

9 to maintain robust population levels at Mesa Verde and YCJ constitutes deliberate indifference.

10

a. The Impossibility of Social Distancing Exposes

Plaintiffs to an Unjustifiable Risk of Contracting A

11

Deadly Virus in Light of Alternatives to Detention that

Would Equally Serve the Government’s Interests in

12

Appearance for Removal Proceedings and Community

Safety 13

14

Conditions of confinement violate due process when they expose civil detainees to a risk

15 of harm that is either excessive in relation to a legitimate government objective, or is imposed to

16 achieve an objective that could be accomplished using “alternative and less harsh methods.”

17 Jones v. Blanas, 393 F.3d 918, 932 (9th Cir. 2004); see also Jackson v. Indiana, 406 U.S. 715,

18 738 (1972) (“[D]ue process requires that the nature and duration of commitment bear some

19 reasonable relation to the purpose for which the individual is committed.”).

20

Conditions of confinement for civil detainees are presumptively unconstitutional when

21 they are “identical to, similar to, or more restrictive than” those afforded their criminal

22 counterparts. Unknown Parties v. Nielsen, No. CV-15-00250-TUC-DCB, 2020 WL 813774, at

23 *4 (D. Ariz. Feb. 19, 2020) (quoting Youngberg v. Romeo, 457 U.S. 307, 321-22 (1982)). There

24 is currently a nationwide trend of mass releases of people serving sentences for criminal

25 convictions to protect their health and facilitate social distancing within jails and prisons.33 Los

26 Angeles County alone has released at least 1,700 people from county jails, Washington State

27

28 33 See supra n. 27.
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1 has released at over 1,100 people serving sentences for convictions, and Michigan is releasing at

2 least 1,000 people per month.34 Plaintiffs, as civil detainees, are entitled to “more considerate

3 treatment” than their criminal counterparts, Jones, 393 F.3d at 931-32, but Defendants have

4 notably not extended them similar treatment. Out of well over 30,000 civil ICE detainees

5 nationwide, the agency has released 693,35 and does not intend to release more.36 In YCJ, also

6 home to individuals incarcerated for criminal offenses, the county has released some prisoners

7 in response to COVID-19, but ICE has increased its population of civil detainees.37 Instead of

8 depopulating detention centers in line with criminal justice authorities nationwide, Defendants

9 have sought to make changes at the margins that do not effectively address the risk that their

10 current custody imposes on Plaintiffs. See Greifinger ¶ 47. Because Plaintiffs have been

11 afforded considerably inferior treatment than their criminal counterparts, their continued

12 detention is presumptively unconstitutional.

13

It is well-settled that a detained individual’s constitutional protections extend to “future

14 harm,” including a “condition of confinement that is sure or very likely to cause serious illness

15 and needless suffering the next week or month or years.” Helling v. McKinney, 509 U.S. 25, 33

16 (1993); see also id. at 34 (“It would be odd to deny an injunction to inmates who plainly proved

17 an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened

18 to them”); Parsons v. Ryan, 754 F.3d 657, 679 (9th Cir. 2014) (affirming the certification of a

19 class of prison inmates and explaining that “every single [] inmate faces a substantial risk of

20 serious harm if [the prison’s] policies and practices provide constitutionally deficient care for

21 treatment of medical, dental, and mental health needs”).

22

As detailed supra, under the current conditions in Mesa Verde and YCJ, Plaintiffs are

23 exposed to a risk of infection with a deadly, incurable virus because consistent social distancing

24
34 Id.
25 35 Hott Decl. ¶¶ 10, 13, ECF No. 125-1, Fraihat v. ICE, No. 5:19-cv-01456 (C.D. Cal. Apr. 15, 2020).
36 Press Release, House Comm. on Oversight and Reform, DHS Officials Refuse to Release Asylum Seekers and
26 Other Non-Violent Detainees Despite Spread of Coronavirus (Apr. 17, 2020),
https://oversight.house.gov/news/press-releases/dhs-officials-refuse-to-release-asylum-seekers-and-other-non-
27 violent-detainees.
37 Riordan ⁋ 9 (noting increase in ICE population at YCJ); id. Exh. G, David Wilson, Yuba County Jail Population
28 Reduced, Appeal Democrat (Apr. 15, 2020).
15
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1 is impossible. Supra § II.B. Defendants cannot seriously dispute this. Three judges in this

2 district have ordered detainees released from Mesa Verde and YCJ, pointing to their risk of

3 infection without the ability to maintain social distance. Bahena Ortuño, 2020 WL 1701724 at

4 *4 (finding that four “petitioners cannot practice meaningful social distancing in [Mesa Verde

5 and YCJ]”); Bent, 2020 WL 1812850 at *6 (“[E]ven assuming that Respondents accurately

6 describe [Mesa Verde]’s current practices, these practices are inadequate to ensure the ‘safety

7 and general wellbeing’ of [Mesa Verde] detainees during the COVID-19 pandemic.”); Doe v.

8 Barr, No. 3:20-cv-02141 LB, 2020 WL 1920667 at *10-11 (citing Bahena Ortuño and Bent in

9 holding same for YCJ detainee).

10

Because all adults risk serious harm if they contract COVID-19, see Greifinger ¶ 8, and

11 all individuals are at the same risk of contracting COVID-19, all putative class members are at

12 serious risk of harm from COVID-19. Cf. Savino v. Souza, No. 1:20-cv-10617-WGY, 2020 WL

13 1703844 at *7 (D. Mass. Apr. 8, 2020) (certifying class of all ICE detainees in Bristol County

14 House of Corrections and recognizing that “[c]rucial to the Court’s determination is the

15 troubling fact that even perfectly healthy detainees are seriously threatened by COVID-19. . . . it

16 cannot be denied that the virus is gravely dangerous to all of us”); Malam v. Adducci, No. 2:20-

17 cv-10829, 2020 WL 1809675 at *3) (E.D. Mich. Apr. 9, 2020) ( “declin[ing] to set a floor for

18 the level of risk a party must show to warrant immediate release from immigration detention due

19 to the COVID-19 pandemic” and ordering release of ICE detainee who did not fall into CDC

20 risk category.)

21

The Government’s judicially-recognized interest in the continued detention of

22 Plaintiffs—ensuring public safety and that Plaintiffs appear at their removal proceedings—

23 cannot justify exposing them to a substantial risk of contracting a deadly, incurable virus and

24 suffering severe bodily harm or death as a result. Judges in this District have already ordered

25 individual detainees released, finding that the government’s interests can be accomplished

26 through “alternative, less harsh methods,” like release on supervision and conditions. Bahena

27 Ortuño 2020 WL 1701724 at *4 (finding that despite the government’s “non-punitive purpose”

28
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1 in detaining petitioners their current detention is “excessive in relation to that purpose”); Doe,

2 2020 WL 1820667 at *10 (same for YCJ detainee); Bent, 2020 WL 1812850 at *7-8 (same for

3 Mesa Verde detainee). Courts throughout the country have reached similar conclusions. See,

4 e.g., Rafael L.O. v. Tsoukaris, No. 20-3481, 2020 WL 1808843 at *7 (D.N.J. Apr. 9, 2020)

5 (recognizing that “COVID-19, and its associated risks, is the difference maker—it changes the

6 equation in evaluating the government’s legitimate objectives”); Thakker v. Doll, No. 1:20-cv-

7 480, 2020 WL 1671563 at *8 (M.D. Pa. Mar. 31, 2020) (same for ICE detainees in York County

8 Jail in Pennsylvania). ICE itself has recognized as much when it issued a statement recognizing

9 the need for alternatives to detention for new arrestees to protect public health.38 Inexplicably,

10 however, ICE has refused to apply that same logic to its current detainees.

11

This is particularly troubling because it is well established that ICE has a range of highly

12 effective tools at its disposal to ensure that individuals report for court hearings and other

13 appointments, including conditions of supervision. See Thakker, 2020 WL 1671563 at *8

14 (noting “that ICE has a plethora of means other than physical detention at their disposal by

15 which they may monitor civil detainees and ensure that they are present at removal proceedings,

16 including remote monitoring and remote check-ins”) (emphasis in original). These alternatives

17 to detention are highly effective: for example, a federally contracted evaluation of a program

18 that featured monitoring instead of immigration detention reported a 99% attendance rate at all

19 immigration court hearings and a 95% attendance rate at final hearings. See U.S. Gov’t

20 Accountability Office, GAO-15-26, Alternatives to Detention: Improved Data Collection and

21 Analyses Needed to Better Assess Program Effectiveness 10-11 (Nov. 2014),

22 https://www.gao.gov/assets/670/666911.pdf; see also Brief of 43 Social Science Researchers

23 and Professors as Amici Curiae in Support of Respondents, at 36-37, Jennings v. Rodriguez,

24 2016 WL 6276890, (No. 15-1204) (discussing an alternatives to detention program studied in

25

26

27 38 See ICE Guidance on COVID-19, https://www.ice.gov/covid19 (Apr. 17, 2020) (during pandemic, in many
circumstances ICE “will exercise discretion to delay enforcement actions until after the crisis or use alternatives to
28 detention, as appropriate.”), available at https://www.ice.gov/covid19.
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1 2011 that saw fewer than 1% of participants removed from the program due to arrest by another

2 law enforcement agency).

3

Plaintiffs and the proposed class are therefore likely to demonstrate that the government’s

4 interests could be satisfied by alternatives to detention and that their current detention in

5 dangerous conditions is unconstitutionally excessive.

6

b. Plaintiffs are also Likely to Prevail by Showing

Defendants’ Refusal to Ensure Adequate Social

7

Distancing Constitutes Deliberate Indifference

8

People in government custody have a right to reasonable health and safety. See

9 Youngberg v. Romeo, 457 U.S. 307, 315–16 (1982). “The rationale for this principle is simple

10 enough: when the State by the affirmative exercise of its power so restrains an individual’s

11 liberty that it renders him unable to care for himself, and at the same time fails to provide for his

12 basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety—it

13 transgresses the substantive limits on state action set by the Eighth Amendment and the Due

14 Process Clause.” DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 200 (1989).

15

As individuals who are detained for civil offenses, Plaintiffs need not prove “deliberate

16 indifference” to prevail on a substantive due process claim. Jones, 393 F.3d at 933. Nonetheless,

17 here, Defendants clearly are being deliberately indifferent to the substantial risks posed by

18 COVID-19 within the congregate detention environments of Mesa Verde and YCJ. In contrast

19 to the subjective Eighth Amendment standard, the Fifth Amendment deliberate indifference

20 standard is purely objective. The government violates due process when “there is a substantial

21 risk of serious harm” to Plaintiffs and the proposed class “that could [be] eliminated through

22 reasonable and available measures that [Defendants] did not take” and that are likely to “caus[e]

23 the injury the plaintiff [will] suffer[].” Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1070 (9th

24 Cir. 2016). Where Defendants are fully aware of the serious risks facing Plaintiffs and fail to

25 take the only measures known to effectively mitigate those risks, they are deliberatively

26 indifferent under the Fifth Amendment. See, e.,g., J.P. v. Sessions, 2019 WL 6723686 at *36

27 (C.D. Cal. Nov. 5, 2019) (finding the plaintiffs likely to succeed in proving the government was

28
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1 deliberately indifferent where they presented evidence that immigration enforcement agencies

2 were aware of risks associated with a policy and implemented it anyways).

3

Here, Defendants have acted, and continue to act, with deliberate indifference to known

4 and obvious risks of COVID-19 transmission. On February 25, 2020, March 13, 2020, and

5 March 19, 2020, Defendants’ own medical experts warned them that COVID-19 endangered

6 everyone in their custody and that “social distancing is essential to slow the spread of the

7 coronavirus to minimize the risk of infection.” See supra Drs. Allen & Rich Letter (Mar. 19,

8 2020). On March 17, 2020, these same medical experts published an opinion piece in the

9 Washington Post explaining the need to act immediately to stem the spread of COVID-19 in

10 jails and prisons.39 They warned Defendants that only release from custody on a large scale

11 could prevent calamity. Scores of medical experts, including the expert testimony in this case,

12 have subsequently agreed. Greifinger ¶¶ 47, 58; Hernandez ¶ 30; Mishori ¶¶ 22-23.

13 Respondents have disregarded their advice and instead adopted a series of half-measures that are

14 “patently insufficient to protect Petitioners.” Basank v. Decker, No. 20 Civ. 2518, 2020 WL

15 1481503, at *6-7 (S.D.N.Y. Mar. 26, 2020) (ordering release from immigration detention

16 because Defendants were deliberately indifferent to risk of COVID-19 infection); see also

17 Castillo, 2020 WL 1502864, at *5 (ordering release from Adelanto ICE Processing Center

18 because “Petitioners have not been protected. They are not kept at least 6 feet apart from others

19 at all times. They have been put into a situation where they are forced to touch surfaces touched

20 by other detainees, such as with common sinks, toilets, and showers.”).

21

It is not possible to mitigate the risk of contracting COVID-19 in Mesa Verde and YCJ

22 without consistent social distancing. Greifinger ¶ 31 (“If there is inadequate social distancing,

23 hygiene and sanitation, there will almost certainly be infection and an outbreak.”), ¶ 59 (“The

24 only way to avoid these unacceptable risk is to materially reduce the population, implement

25 social distancing as described herein, and ensure appropriate hygiene.”). According to the CDC

26

27 39 Josiah Rich et. al, We must release prisoners to lessen the spread of coronavirus, Washington Post (Mar. 17,
2020), https://www.washingtonpost.com/opinions/2020/03/17/we-must-release-prisoners-lessen-spread-
28 coronavirus/.
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1 a “cloth face cover is not a substitute for social distancing.”40 The uniform medical consensus,

2 embraced by the CDC, maintains that even when vigilant hygiene and sanitation are

3 maintained,41 it simply is not possible to prevent contagion unless people can maintain a

4 physical distance of at least six feet from one another at all times. Greifinger ¶47.

5

While Defendants have issued guidance to “promote” social distancing,42 it is patently

6 insufficient at Mesa Verde and YCJ, where social distancing is currently impossible. Greifinger

7 Dec. ¶ 47 (“The measures outlined in ICE’s April 10 Guidance are impossible to carry out given

8 the limits of the infrastructure” at Mesa Verde and YCJ). Even if, as the guidance suggests,

9 detention centers actually reduce their populations to 75% of capacity, Dr. Greifinger points out

10 that “ICE provides no evidence that 70% of 75% capacity would facilitate effective social

11 distancing within dormitories or cells, which requires that individuals maintain six feet of

12 separation.” Greifinger Dec. ¶ 48(a). As Judge Phillips just found in a case involving prisoners,

13 “The County’s assurances that it has provided unlimited free soap to prisoners and advised

14 prisoners to remain physically distant—without establishing that it is physically possible to do

15 so—is unlikely to be sufficient to defeat a claim of deliberate indifference . . . In sum,

16 Defendant has failed to demonstrate that it is currently taking adequate precautions to protect

17 the health of the prisoners in the country jails.” Gray v. Cty. of Riverside, 5:13-cv-0444-VAP-

18 OPx (C.D. Cal. Apr. 14, 2020), Order at *5 (ECF 191).

19

Similarly, courts have already found that ICE’s current actions to date—which include

20 providing free soap, increasing sanitation supplies, screening staff for body temperature, and

21 encouraging good hygiene—do not satisfy Defendants’ constitutional duty to mitigate the risk

22 of harm to detainees in Mesa Verde and YCJ because they do not accommodate social

23 distancing. Doe, 2020 WL 1820667 at *11 (“The petitioner cannot meaningfully protect himself

24 at the Yuba County jail from the risks of his custody”); Bahena Ortuño, 2020 WL 1701724 at

25

26 40 CDC, Coronavirus Disease 2019 (COVID-19) Protect Yourself: Know How It Spreads,
https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html.
27 41 Vigilant hygiene and sanitation are not possible at Mesa Verde and YCJ. Supra § II.C.
42 ICE ERO COVID-19 Pandemic Response Requirements at 4, 13 (Apr. 10, 2020), available at
28 https://www.ice.gov/covid1.
20
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1 *4 (ordering release of petitioners with medical vulnerabilities because they “cannot practice

2 meaningful social distancing in [Mesa Verde and YCJ]”).

3

The facts are clear: social distancing is the only meaningful measure to prevent the spread

4 of COVID-19 among the Plaintiff class. Social distancing is currently impossible in Mesa Verde

5 and YCJ. It will continue to be impossible in Mesa Verde and YCJ unless Defendants

6 significantly reduce the detained populations in each detention center. Mishori ⁋⁋ 22-23. The

7 law is also clear: because Defendants have failed to take known, available measures to mitigate

8 an obvious, substantial risk to Plaintiffs, the law is also clear: the conditions of Plaintiffs’

9 confinement violate due process. See Castro, 833 F.3d at 1071.

10

B. Plaintiffs Satisfy the Remaining Factors for Preliminary Relief

11

1. Exposure to a Lethal Virus Which Lacks Any Vaccine,

Treatment, or Cure Constitutes Irreparable Harm

12

13

“[T]he deprivation of constitutional rights ‘unquestionably constitutes irreparable

14 injury.’” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (quoting Elrod v. Burns, 427

15 U.S. 347, 373 (1976)). Irreparable harm exists where government actions threaten an

16 individual’s health. See M.R. v. Dreyfus, 663 F.3d 1100, 1111 (9th Cir. 2011), as amended by

17 697 F.3d 706 (9th Cir. 2012); Indep. Living Ctr. of S. Cal., Inc. v. Shewry, 543 F.3d 1047, 1050

18 (9th Cir. 2008). Likewise, continued immigration detention under “substandard physical

19 conditions, [and] low standards of medical care” is a form of irreparable harm supporting

20 injunctive relief. See Padilla v. ICE, 953 F.3d 1134, 1148 (9th Cir. 2020). Defendants cannot

21 dispute that all adults face a risk of serious illness upon contracting COVID-19. Greifinger Dec.

22 ¶ 8, that social distancing is the only effective measure to prevent the spread of COVID-19,

23 Hernandez Dec. ¶ 12, and that social distancing will not be possible inside Mesa Verde and YCJ

24 without reducing the detained population. Greifinger Dec. ¶¶ 33-35. “Inadequate health and

25 safety measures at a detention center cause cognizable harm to every detainee at that center.”

26 Hernandez v. Wolf, No. 20-cv-00617, slip op. at 8-9 (C.D. Cal. Apr. 1, 2020), citing Parsons,

27

28
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1 754 F.3d at 679. The entire Plaintiff class is at risk or irreparable harm that can be remedied

2 only be depopulating Mesa Verde and YCJ.

3

2. Public Interest and Balance of Equities Weigh Heavily in

Plaintiffs’ Favor

4

5

Plaintiffs’ continued detention at current population levels “threatens the health of

6 detainees, staff and the broader population.” Greifinger Dec. ¶ 24. For these reasons, as in the

7 cases where this Court has already granted relief, the balance of equities falls squarely in the

8 Plaintiffs’ favor. See Doe, 2020 WL 1920667 at *11; Bent, 2020 WL 1812850 at *7; Bahena

9 Ortuño, 2020 WL 1701724 at *4.

10

As an initial matter, “[f]aced with . . . preventable human suffering, [the Ninth Circuit]

11 ha[s] little difficulty concluding that the balance of hardships tips decidedly in plaintiffs’ favor.”

12 Hernandez v. Sessions, 872 F.3d 976, 996 (9th Cir. 2017) (quotation omitted). Moreover, it is in

13 both ICE’s and the broader public interest to reduce the threat of an imminent COVID-19

14 outbreak at Mesa Verde and YCJ. ICE has an interest in preventing any potential spread of

15 COVID-19 in its detention facility, which may then affect guards, visitors, attorneys, and others

16 who may potentially interact with detainees. An outbreak of COVID-19 at Mesa Verde and YCJ

17 would doubtless put significant pressure on or exceed the capacity of local health infrastructure.

18 Hernandez Dec. ¶¶ 23 (stating that an outbreak at Mesa Verde or YCJ would likely “strain[] and

19 overload[]” nearby emergency medical facilities) As a judge of this Court explained:

20

[U]nder the highly unusual circumstances presented, i.e., a global pandemic of a

type not seen within recent memory, the public interest is served by the requested

21

injunction. Specifically, the public interest in promoting public health is served by

efforts to contain the further spread of COVID-19, particularly in detention

22

centers, which typically are staffed by numerous individuals who reside in nearby

communities. 23

24 Bahena Ortuño, 2020 WL 1701724 at *4. Accordingly, the balance of equities favors Plaintiffs.

25 To the extent ICE has public safety or flight concerns about any particular detainee, those can be

26 accounted for through the alternatives to detention discusses above. See supra at 17-18.

27

28
22 PETITIONERS-PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR TEMPORARY RESTRAINING
ORDER

Case 3:20-cv-02731-VC Document 5 Filed 04/20/20 Page 29 of 31

C. Justice Requires Comprehensive Relief for the Class 1

2

“[T]he appropriate capacity of a jail during a pandemic obviously differs enormously

3 from its appropriate capacity under ordinary circumstances.” Bent, 2020 WL 1812850 at *4,

4 quoting Basank, 2020 WL 1481503 at *6. There are hundreds of ICE detainees at Mesa Verde

5 and YCJ. Should the Court deny Plaintiffs’ motion for provisional class certification and a

6 temporary restraining order, dozens of individual Mesa Verde and YCJ detainees will likely file

7 claims for relief depending on their access to lawyers. Those individual petitions would

8 vindicate individual Petitioners through release, but, given the time-consuming nature of

9 individual habeas litigation, would leave hundreds of identically situated people detained under

10 conditions that violate their due process rights. They also would constitute an enormous tax on

11 this Court’s resources, will likely take too long and would, at best, result in constitutional rights

12 turning on the happenstance of whether a detainee has access to a lawyer, or on their language

13 skills and education level. That is fundamentally unfair. All of the Proposed Class Members are

14 at grave risk of COVID-19 infection under their current conditions of confinement, regardless of

15 whether their circumstances permit them to file individual claims. The appropriate remedy for

16 the system-wide crisis at Mesa Verde and YCJ is system-wide relief for all those whose rights

17 are being violated.

18

Litigation on behalf of the detainees in both facilities, which share in the jurisdiction of

19 the San Francisco ICE Field Office, also prevents absurd efforts that depopulate one facility but

20 result in increased populations in the other, like transfers between the facilities. During the

21 course of the COVID-19 pandemic, ICE has transferred detainees from YCJ to Mesa Verde,

22 thus reducing the population in one while increasing the other, and unjustifiably placing the

23 transferred detainee and detainees in the new facility at risk. Sanchez-Nunez ¶ 16 (detainee

24 transferred from YCJ to Mesa Verde immediately introduced into general population).

25

Another district court recently certified a class of ICE detainees held at two detention

26 centers in Bristol County, Massachusetts, recognizing that a systemic remedy was necessary “in

27 order to protect everyone [in the facility] from the impending threat of mass contagion.” See

28 Savino, 2020 WL 1703844 at *7 (emphasis added). That court issued an order requiring a

23 PETITIONERS-PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR TEMPORARY RESTRAINING
ORDER

Case 3:20-cv-02731-VC Document 5 Filed 04/20/20 Page 30 of 31

1 reduction of the population of those detention centers on an expedited, individualized basis. Id.

2 at 28.

3

Plaintiffs propose that this Court adopt a similar procedure, as set forth in the Proposed

4 Order, by which claims for relief are processed fast enough that there is a chance social

5 distancing could be established at Mesa Verde and YCJ before a serious outbreak occurs, but

6 also allows this Court to assess the individual circumstances of detainees at Mesa Verde and

7 YCJ and craft appropriate conditions of release. Of course, nothing in Plaintiffs’ Proposed Order

8 bars Defendants from implementing an alternative plan to rapidly reduce the populations to a

9 level where they could implement social distancing at both facilities.

10

ICE, however, has steadfastly refused to implement such a system to date— leaving no

11 doubt that this Court’s intervention is desperately needed. This Court should grant the

12 temporary restraining order, adopt Plaintiffs’ proposal for considering release requests on an

13 expedited basis, and keep that system in place until the Government takes the necessary steps to

14 cease the ongoing system wide Fifth Amendment violation at Mesa Verde and YCJ.

15 V. SECURITY

16

“Rule 65(c) invests the district court with discretion as to the amount of security required,

17 if any.” Jorgensen v. Cassiday, 320 F.3d 906, 919 (9th Cir. 2003) (internal quotation marks and

18 citation omitted). District courts routinely exercise this discretion to require no security in cases

19 brought by indigent and/or incarcerated people. See, e.g., Toussaint v. Rushen, 553 F. Supp.

20 1365, 1383 (N.D. Cal. 1983) (state prisoners); Orantes–Hernandez v. Smith, 541 F. Supp. 351,

21 385 n. 42 (C.D. Cal. 1982) (detained immigrants). This Court should do the same.

22

23

24

25

26

27

28
24 PETITIONERS-PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR TEMPORARY RESTRAINING
ORDER

Case 3:20-cv-02731-VC Document 5 Filed 04/20/20 Page 31 of 31

1 VI. CONCLUSION

2

This Court should grant Plaintiffs’ motion and order ICE to release people from Mesa

3 Verde and YCJ in order to facilitate social distancing.

4

5 Dated: April 20, 2020

Respectfully submitted,

6

/s/ William S. Freeman

William S. Freeman

7

Sean Riordan

Angélica Salceda

8

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION OF NORTHERN

9

CALIFORNIA

10 Bree Bernwanger
Tifanei Ressl-Moyer 11 Hayden Rodarte
LAWYERS’ COMMITTEE FOR 12 CIVIL RIGHTS OF
SAN FRANCISCO BAY AREA 13
Judah Lakin 14 Amalia Wille
LAKIN & WILLE LLP 15
Jordan Wells 16 Stephanie Padilla
Michael Kaufman 17 AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF SOUTHERN 18 CALIFORNIA

Manohar Raju Public Defender Matt Gonzalez Chief Attorney Francisco Ugarte Genna Ellis Beier Emilou H. MacLean OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO
Martin S. Schenker Timothy W. Cook Francisco M. Unger COOLEY LLP
Attorneys for Petitioners-Plaintiffs

19

20

21

22

23

24

25

26

27

28
25 PETITIONERS-PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR TEMPORARY RESTRAINING
ORDER

Case 3:20-cv-02731-VC Document 5-1 Filed 04/20/20 Page 1 of 10

1 WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org
2 SEAN RIORDAN (SBN 255752) sriordan@aclunc.org
3 ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org
4 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN
5 CALIFORNIA 39 Drumm Street
6 San Francisco, CA 94111 Telephone: (415) 621-2493
7 Facsimile: (415) 255-8437
8 Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page
9

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: 415-553-9319 Fax: 415-553-9810

10

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12

13 ANGEL DE JESUS ZEPEDA RIVAS,

BRENDA RUIZ TOVAR, LAWRENCE

14 MWAURA, LUCIANO GONZALO

MENDOZA JERONIMO, CORAIMA

15 YARITZA SANCHEZ NUÑEZ, JAVIER

ALFARO, DUNG TUAN DANG,

16

Petitioners-Plaintiffs,

DECLARATION OF SANDRA HERNANDEZ

17

v.

18 DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration
19 and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior
20 Official Performing the Duties of the Director of the U.S. Immigration and Customs
21 Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP,
22 INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,
23 Respondents-Defendants.
24

25

26

27
DECLARATION OF SANDRA HERNANDEZ
28

Case 3:20-cv-02731-VC Document 5-1 Filed 04/20/20 Page 2 of 10

1 BREE BERNWANGER* (NY SBN 5036397) MARTIN S. SCHENKER (SBN 109828)

bbernwanger@lccrsf.org

mschenker@cooley.com

2 TIFANEI RESSL-MOYER (SBN 319721)

COOLEY LLP

tresslmoyer@lccrsf.org

101 California Street, 5th Floor

3 HAYDEN RODARTE (SBN 329432)

San Francisco, CA 94111

hrodarte@lccrsf.org

Telephone: (415) 693-2000

4 LAWYERS’ COMMITTEE FOR

Facsimile: (415) 693-2222

CIVIL RIGHTS OF

5 SAN FRANCISCO BAY AREA

TIMOTHY W. COOK (Mass. BBO# 688688)*

131 Steuart St #400

tcook@cooley.com

6 San Francisco, CA 94105

FRANCISCO M. UNGER (Mass. BBO#

Telephone: (415) 814-7631

698807)*

7

funger@cooley.com

JUDAH LAKIN (SBN 307740)

COOLEY LLP

8 judah@lakinwille.com

500 Boylston Street

AMALIA WILLE (SBN 293342)

Boston, MA 02116

9 amalia@lakinwille.com

Telephone: (617) 937-2300

LAKIN & WILLE LLP

Facsimile: (617) 937-2400

10 1939 Harrison Street, Suite 420

Oakland, CA 94612

11 Telephone: (510) 379-9216

Facsimile: (510) 379-9219

12

JORDAN WELLS (SBN 326491)

13 jwells@aclusocal.org

STEPHANIE PADILLA (SBN 321568)

14 spadilla@aclusocal.org

AMERICAN CIVIL LIBERTIES UNION

15 FOUNDATION OF SOUTHERN CALIFORNIA

1313 West Eighth Street

16 Los Angeles, CA 90017

Telephone: (213) 977-9500

17 Facsimile: (213) 977-5297

18

Attorneys for Petitioners-Plaintiffs

*Motion for Admission Pro Hac Vice Forthcoming

19

20

21

22

23

24

25

26

27
DECLARATION OF SANDRA HERNANDEZ
28

Case 3:20-cv-02731-VC Document 5-1 Filed 04/20/20 Page 3 of 10

1

Declaration of Sandra Hernandez

2

1. I am the president and CEO of the California Health Care Foundation, which

3 works to improve health care systems in California. Prior to joining CHCF, I was CEO of The

4 San Francisco Foundation, which I led for 16 years. From 1994 to 1997, I served as Director of 5 Health for the City and County of San Francisco. I also co-chaired San Francisco’s Universal 6 Healthcare Council which designed Healthy San Francisco, an innovative health access program 7 for the uninsured.

8

2. In February 2018, I was appointed by Governor Jerry Brown to the Covered

9 California Board of Directors. In December 2019, I was appointed by Governor Gavin Newsom 10 to the Healthy California for All Commission. I served on President Bill Clinton’s Commission 11 on Consumer Protection and Quality in the Healthcare Industry, and on two Institute of 12 Medicine committees, including one on the Implementation of Antiviral Medication Strategies

13 for an Influenza Pandemic. Since 2017, I have been on the Planning Committee for the Future

14 of Health Services Research at the National Academy of Medicine. I also serve on the

15 University of California Regents Health Services Committee and the University of California-

16 Davis Gordon & Betty Moore School of Nursing National Advisory Committee.

17

3. I practiced at San Francisco General Hospital in the HIV/AIDS Clinic from 1984

18 to 2016 and was an assistant clinical professor at the UCSF School of Medicine. I am a graduate

19 of Yale University, the Tufts School of Medicine, and the certificate program for senior

20 executives in state and local government at Harvard University’s John F. Kennedy School of

21 Government.

22

4. Attached as Exhibit A is my curriculum vitae.

23 A. Respiratory Spread of COVID-19

24

5. The COVID-19 strain was isolated on January 7, 2020 after the first cases of the

25 2019 novel coronavirus (SAS-CoV-2) were identified in December 2019. The public health

26

1

27

DECLARATION OF SANDRA HERNANDEZ

28

Case 3:20-cv-02731-VC Document 5-1 Filed 04/20/20 Page 4 of 10

1 response in Wuhan, China, where the strain first appeared, was a mass quarantine of 59 million

2 people in Wuhan and surrounding cities in mid-January. By the end of January, the World

3 Health Organization declared the spread of COVID-19 an international public health

4 emergency.

5

6. Transmission of COVID-19 is largely through community contact via respiratory

6 spread. Droplets carrying the virus are transmitted primarily through hands and surfaces. As a

7 result, infection control must focus on reducing droplet spread. Studies have shown viral

8 shedding before symptom onset and in asymptomatic patients, suggesting that these individuals

9 are important in disease transmission.

10

7. Any publicly reported tally of reported cases and deaths from COVID-19 almost

11 certainly represents an undercount of infections given the constrained availability and

12 accessibility of COVID-19 testing. The overwhelming majority of cases, in the United States

13 and around the world, have resulted from community transmission.

14

8. About 5% of patients with COVID-19 will develop acute respiratory distress

15 syndrome (ARDS) and require intensive care. Approximately 20% of infected individuals may

16 need hospitalization for clinical reasons.

17 B. U.S. and California Public Health Response to COVID-19

18

9. Testing capacity for COVID-19 was slow to become available in the United

19 States. It is now increasing in California and across the country but remains insufficient to

20 respond to the need. As testing increases, it is expected that the number of confirmed cases will

21 increase markedly.

22

10. There is currently no treatment or vaccine for COVID-19. The clinical response

23 for most individuals with COVID-19 is limited to infection control. Patients with COVID-19

24 will require isolation and, depending on the severity of symptoms, hospitalization.

25

26

2

27

DECLARATION OF SANDRA HERNANDEZ

28

Case 3:20-cv-02731-VC Document 5-1 Filed 04/20/20 Page 5 of 10

1

11. Limiting the growth of new cases can be achieved by (1) limiting social contact

2 through social distancing and self-quarantine; (2) limiting the probability of infection during

3 social contacts through, i.e., ensuring personal hygiene and hand-washing, disinfecting

4 frequently touched surfaces and, where appropriate, wearing personal protective equipment; (3)

5 decreasing the infectious period through contact tracing, case isolation, and timely treatment if

6 medication is available; and ultimately (4) reducing population susceptibility to the virus

7 through vaccination.

8

12. At this point, given the lack of more widespread community testing, and the lack

9 of available treatments, the only option is mitigation. The most effective mitigation measures

10 are community-wide social distancing.

11

13. The public health response to COVID-19 in California has been extensive. The

12 primary goal of the response has been to limit the growth of new cases in order to flatten the

13 outbreak. If effective, this serves to protect limited health care resources and allow time for the

14 development of effective medication and vaccines. Without an intervention, the pandemic will

15 quickly overwhelm the capacity of the health systems to respond to both COVID-19 and other

16 medical needs.

17

14. To that end, on March 4, Governor Gavin Newsom declared a state of emergency

18 to make resources available, formalize emergency actions, and assist in state preparations for an 19 anticipated spread of COVID-19.1 He also used the state’s authority to make all medically 20 necessary screening and testing for COVID-19 free for 24 million more California residents.2

21 This includes waiving all fees for emergency room, urgent care or provider office visits related

22 to the screening and testing of COVID-19. The state also encouraged health plans to expand

23 telehealth services in order to increase screening and testing capacity.

24

1 See https://www.gov.ca.gov/wp-content/uploads/2020/03/3.4.20-Coronavirus-SOE-Proclamation.pdf (accessed
25 Mar. 21, 2020).
2 See https://www.cdph.ca.gov/Programs/OPA/Pages/NR20-012.aspx (accessed Mar. 21, 2020).
26

3

27

DECLARATION OF SANDRA HERNANDEZ

28

Case 3:20-cv-02731-VC Document 5-1 Filed 04/20/20 Page 6 of 10

1

15. In a March 15 proclamation, Governor Newsom advised all people over the age of

2 65 to shelter in place; ordered the closure of bars, nightclubs, wineries and brewpubs; decreased

3 restaurant capacity by half to permit social distancing; and severely restricted visitors to long-

4 term care facilities and hospitals. He also announced that 51% of school districts, which

5 represent 80-85% of all students in California, had closed for an extended period. He further

6 expressed the intent of public authorities to procure hotels and motels for homeless people in

7 order to decrease the risk of transmission for the unhoused.

8

16. On March 16, seven Bay Area counties issued the first “shelter in place” policies

9 in the country. Three other counties followed. Pursuant to these policies, individuals were

10 directed to severely limit activity, travel and business outside the home. Only essential services,

11 such as health care, police, grocery stores, and gas stations, were exempted. On March 19,

12 Governor Newsom expanded the “shelter in place” policy to the entire state.3 There are a

13 growing number of shelter in place policies across the country.

14

17. COVID-19 remains a serious public health threat in California and nationwide.

15 However, as of today, these public health measures adopted in California appear to have been

16 effective in “flattening the curve,” or reducing the rate of increase of infections and deaths, in

17 the state. Although California was one of the earliest states to experience a significant number

18 of cases and deaths, it now ranks relatively low among the states in terms of infections and

19 deaths as a percentage of the population.

20

18. There have been COVID-19 cases reported in Kern and Yuba Counties, the sites

21 of the Mesa Verde and Yuba immigration detention centers, respectively. As of April 18, 2020, 22 there are 610 confirmed cases in Kern County4 and 41 confirmed cases in Yuba and Sutter 23 Counties.5

24 3 See https://www.gov.ca.gov/wp-content/uploads/2020/03/3.19.20-attested-EO-N-33-20-COVID-19-HEALTH-
ORDER.pdf (accessed Mar. 22, 2020).
25 4 See https://www.bakersfield.com (accessed Apr. 18, 2020).
5 See https://www.yuba.org/coronavirus/ (accessed Apr. 18, 2020).
26

4

27

DECLARATION OF SANDRA HERNANDEZ

28

Case 3:20-cv-02731-VC Document 5-1 Filed 04/20/20 Page 7 of 10

1 C. 2

Effects on Public Health of a COVID-19 Outbreak in Prisons, Jails or Detention Facilities

3

19. Jails, prisons and detention facilities are places where individuals eat, sleep and

4 live in close quarters. These are the type of environments where infectious diseases can most

5 quickly spread. This is particularly true as respiratory hygiene within these facilities are limited.

6

20. Detention facilities have limited ability to allow for social distancing, and

7 therefore are unable to effect the kinds of public health response measures that appear to have

8 been effective to date in slowing the transmission of COVID-19.

9

21. In addition, detention facilities do not generally have the ability to isolate people

10 who are infected with COVID-19; to test all detainees in order to identify those with COVID-19

11 infection (whether they are symptomatic or asymptomatic); to provide the acute respiratory

12 support for individuals who manifest severe respiratory distress due to the infection.

13

22. Prisons, jails and detention facilities are not isolated from the community. They

14 are part of and rely on the broader community. People from the community—including staff,

15 contractors and vendors—come and go for various reasons. Detainees also need to be

16 transported to and from facilities to attend court hearings, for specialized medical care, or for

17 other reasons. There can also be rapid turnover of individuals in the facilities. With each entry

18 and exit, individuals can bring infectious disease into or out of the facilities.

19

23. Typically, immigration detention facilities are also in medically under-resourced

20 areas. This is true for Mesa Verde, in Bakersfield, California; and Yuba County Jail, in

21 Marysville, California. Marysville and Bakersfield are medically underserved. The immigration

22 detention facilities are not designed to handle specialized or intensive care. Thus, if an

23 individual detainee—or many detainees—need specialized care, they must rely on the medical

24 resources that are available in the community. In rural parts of California, these resources

25 quickly become strained and overloaded.

26

5

27

DECLARATION OF SANDRA HERNANDEZ

28

Case 3:20-cv-02731-VC Document 5-1 Filed 04/20/20 Page 8 of 10

1

24. Compelling evidence and current public health mitigation efforts would suggest

2 that all efforts to avoid a COVID-19 infection outbreak in detention centers would significantly

3 reduce the burden both on employees in those centers as well as the larger community in which

4 those centers reside such that the health care delivery system can cope with existing infections

5 better.

6

25. All counties are already burdened or expecting to be burdened by COVID-19,

7 hence the extraordinary public health interventions. But there would be more capacity to

8 respond if detained individuals are released to their homes—where there is less likelihood of

9 infection because there is greater possibility of social distancing.

10

26. Access to emergency medical services can be constrained because of the COVID-

11 19 related health burdens increasingly imposed on emergency health services. All individuals in

12 California have access to emergency medical care, regardless of their immigration status. The

13 barrier to emergency COVID-19 care for someone without lawful immigration status in

14 California would be more the capacity of the health system, and not their immigration status.

15

27. California’s rural hospitals would likely be unable to cope with an outbreak of

16 COVID-19 at a local immigration detention facility. This would limit the effectiveness of the

17 response for the individual infected and needing emergency care. But it would also affect others

18 in the community who might have unmet medical needs.

19

28. For these reasons, an outbreak of COVID-19 at immigration detention facilities

20 would have ripple effects for the community at large. Prison health is public health.

21 D. Benefits to Public Health from Release of Immigration Detainees

22

29. In my opinion, there is an opportunity to promote the public health in the

23 communities where the detention centers exist. It would be in the community’s best interests to

24 rapidly depopulate these congregate facilities in California.

25

26

6

27

DECLARATION OF SANDRA HERNANDEZ

28

Case 3:20-cv-02731-VC Document 5-1 Filed 04/20/20 Page 9 of 10

1

30. For the reasons elaborated above, and the reasons which are motivating

2 unprecedented public health directives at the local and state levels, it is my expert opinion that it

3 is in the interest of the public health of the State of California for immigration detention

4 facilities to release detainees into the community. This is true so long as the individuals have a

5 home to go to and they are willing and able to abide by local guidelines and directives.

6

31. It is consistent with the public health guidance and priorities of the State to

7 encourage the release of detainees. The unnecessary detention of individuals in congregate

8 facilities in the midst of a pandemic has risks to the individual and to the broader public.

9

32. The current recommendations of health care providers in the state are for

10 individuals to rest and recuperate at home, including if they have been tested and/or exposed to

11 COVID-19, so long as they are not experiencing severe symptoms. Under current guidelines,

12 individuals who are exposed to a COVID-19 patients ought to be tested for COVID-19,

13 quarantined for 14 days, and assessed for COVID-19 infection. Therefore, individuals who have

14 been exposed to COVID-19, including in the detention centers, ought to quarantined where they

15 are not in a congregate living situation and not exposing others to potential infection. This is

16 true for individuals who have exposure to COVID-19 in the detention centers.

17

33. Even if the aggressive public health interventions across California ultimately

18 result in a stabilizing or improving infection rate, this would not necessarily eliminate the need

19 to decrease significantly the populations in the detention facilities. This is for several reasons.

20 First, the heightened risk of infectious spread inside the detention facilities would continue

21 because of the unique characteristics of congregate settings, even if things improved somewhat

22 outside the detention facilities. Second, the fact that the detention centers would remain as

23 hotspots, or potential hotspots, would pose a threat both to those detained and also to the health

24 of the public in the facilities and beyond. In some ways, the detention centers pose a unique

25 threat to the public’s health after there is stabilization outside of the detention centers in the

26

7

27

DECLARATION OF SANDRA HERNANDEZ

28

Case 3:20-cv-02731-VC Document 5-1 Filed 04/20/20 Page 10 of 10

1 community, because an outbreak in the detention centers would threaten to reignite the spread

2 of the pandemic when there has been some containment. Absent widespread testing in the

3 community, which does not currently exist in California, it is also impossible to know current

4 case rates and trends in new case infections. For these reasons, the loosening of social

5 distancing cannot happen overnight; there will not be an on-off switch even for counties and the

6 state. The detention centers will continue to pose a risk for those detained and for the broader

7 public for some time after social distancing is relaxed in the areas around the detention centers.

8

34. Thus, it is consistent with state and local guidance for the general population to

9 immediately depopulate detention centers as they are extremely high-risk for exacerbating the

10 COVID-19 epidemic.

11

Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true

12 and correct.

13

14 Executed this 20th day in April 2020 in, San Francisco, California.

15

16

Sandra R. Hernández, MD

17

18

19

20

21

22

23

24

25

26

8

27

DECLARATION OF SANDRA HERNANDEZ

28

Case 3:20-cv-02731-VC Document 5-2 Filed 04/20/20 Page 1 of 30

WILLIAM S. FREEMAN (SBN 82002) 1 wfreeman@aclunc.org
SEAN RIORDAN (SBN 255752) 2 sriordan@aclunc.org
ANGÉLICA SALCEDA (SBN 296152) 3 asalceda@aclunc.org
AMERICAN CIVIL LIBERTIES UNION 4 FOUNDATION OF NORTHERN
CALIFORNIA 5 39 Drumm Street
San Francisco, CA 94111 6 Telephone: (415) 621-2493
Facsimile: (415) 255-8437 7
Attorneys for Petitioners-Plaintiffs 8 Additional Counsel Listed on Following Page

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: 415-553-9319 Fax: 415-553-9810

9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION 11

12

ANGEL DE JESUS ZEPEDA RIVAS, 13 BRENDA RUIZ TOVAR, LAWRENCE
MWAURA, LUCIANO GONZALO 14 MENDOZA JERONIMO, CORAIMA
YARITZA SANCHEZ NUÑEZ, JAVIER 15 ALFARO, DUNG TUAN DANG,
Petitioners-Plaintiffs, 16

DECLARATION OF ROBERT B. GREIFINGER, MD

v. 17

DAVID JENNINGS, Acting Director of the 18 San Francisco Field Office of U.S. Immigration
and Customs Enforcement; MATTHEW T. 19 ALBENCE, Deputy Director and Senior
Official Performing the Duties of the Director 20 of the U.S. Immigration and Customs
Enforcement; U.S. IMMIGRATION AND 21 CUSTOMS ENFORCEMENT; GEO GROUP,
INC.; NATHAN ALLEN, Warden of Mesa 22 Verde Detention Facility,

23

Respondents-Defendants.

24

25

26

27

28
DECLARATION OF ROBERT B. GREIFINGER, MD

Case 3:20-cv-02731-VC Document 5-2 Filed 04/20/20 Page 2 of 30

BREE BERNWANGER* (NY SBN 5036397) 1 bbernwanger@lccrsf.org
TIFANEI RESSL-MOYER (SBN 319721) 2 tresslmoyer@lccrsf.org
HAYDEN RODARTE (SBN 329432) 3 hrodarte@lccrsf.org
LAWYERS’ COMMITTEE FOR 4 CIVIL RIGHTS OF
SAN FRANCISCO BAY AREA 5 131 Steuart St #400
San Francisco, CA 94105 6 Telephone: (415) 814-7631
7 JUDAH LAKIN (SBN 307740) judah@lakinwille.com
8 AMALIA WILLE (SBN 293342) amalia@lakinwille.com
9 LAKIN & WILLE LLP 1939 Harrison Street, Suite 420
10 Oakland, CA 94612 Telephone: (510) 379-9216
11 Facsimile: (510) 379-9219

MARTIN S. SCHENKER (SBN 109828) mschenker@cooley.com COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111 Telephone: (415) 693-2000 Facsimile: (415) 693-2222
TIMOTHY W. COOK (Mass. BBO# 688688)* tcook@cooley.com FRANCISCO M. UNGER (Mass. BBO# 698807)* funger@cooley.com COOLEY LLP 500 Boylston Street Boston, MA 02116 Telephone: (617) 937-2300 Facsimile: (617) 937-2400

12 JORDAN WELLS (SBN 326491) jwells@aclusocal.org
13 STEPHANIE PADILLA (SBN 321568) spadilla@aclusocal.org
14 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA
15 1313 West Eighth Street Los Angeles, CA 90017
16 Telephone: (213) 977-9500 Facsimile: (213) 977-5297
17

Attorneys for Petitioners-Plaintiffs

18

*Motion for Admission Pro Hac Vice Forthcomin

19

20

21

22

23

24

25

26

27

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DECLARATION OF ROBERT B. GREIFINGER, MD

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Declaration of Robert B. Greifinger, MD
I, Robert B. Greifinger, declare as follows:
1. I am a physician who has worked in health care for prisoners and detainees for more than 30 years. I have managed the medical care for inmates in the custody of New York City (Rikers Island) and the New York State prison system. I have authored more than 80 scholarly publications, many of which are about public health and communicable disease. I am the editor of Public Health Behind Bars: from Prisons to Communities, a book published by Springer (a second edition is due to be published in early 2021); and coauthor of a scholarly paper on outbreak control in correctional facilities.1
2. I have been an independent consultant on prison and jail health care since 1995. My clients have included the U.S. Department of Justice, Division of Civil Rights (for 23 years) and the U.S. Department of Homeland Security, Section for Civil Rights and Civil Liberties (for six years). I am familiar with immigration detention centers, having toured and evaluated the medical care in approximately 20 immigration detention centers, out of the several hundred correctional facilities I have visited during my career. I currently monitor the medical care in three large county jails for Federal Courts. My resume is attached as Exhibit A.
Foundation
3. In connection with my participation as an expert witness in this case, I have reviewed the following documents concerning ICE’s policy and practice related to the coronavirus (collectively “ICE COVID protocols”):
• The March 6, 2020 interim guidance sheet2 produced by ICE Health Services Corps, the body that oversees ICE detention facilities’ medical care,
• ICE’s guidance on its website, last updated April 14, 2020 (“ICE Website Guidance”),3 and
• ICE ERO’s COVID-19 Pandemic Response Requirements, last updated April 10, 2020 (which I refer to later as the “April 10 Guidance”).4
4. I have also reviewed the following documents concerning the Mesa Verde and Yuba County Jail immigration detention facilities:
1 Parvez FM, Lobato MN, Greifinger RB. Tuberculosis Control: Lessons for Outbreak Preparedness in Correctional Facilities. Journal of Correctional Health Care OnlineFirst, published on May 12, 2010 as doi:10.1177/1078345810367593. 2 ICE Health Service Corps, Interim Reference Sheet on 2019-Novel Coronavirus (COVID-19) (Mar. 6, 2020), https://www.aila.org/infonet/ice-interim-reference-sheet-coronavirus. 3 U.S. Immigration and Customs Enforcement, ICE Guidance on COVID-19, ICE.GOV (last updated Apr. 14, 2020), https://www.ice.gov/covid19. 4 U.S. Immigration and Customs Enforcement, Enforcement and Removal Operations, COVID-19 Pandemic Response Requirements (Apr. 10, 2020), https://www.aila.org/infonet/ice-ero-releases-covid-19-pandemic-response.

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• The declarations of fact witnesses produced in this case concerning the conditions at Mesa Verde Detention Center and the ICE detention facility at Yuba County Jail (Lisa Knox and Kathleen Kavanaugh, respectively);
• Declarations of Plaintiffs and other declarants in this case describing the conditions at the detention facilities;
• The California Department of Justice Review of Immigration Detention in California (February 2019), including descriptions of the facilities and the capacity of Mesa Verde Detention Center and Yuba County Jail5 (“CalDOJ Report”);
• The 2018 Prison Rape Elimination Act audit for Mesa Verde, describing four dorms, three restricted housing unit cells, and medical isolation rooms (page 2) (“Mesa Verde PREA Audit”);
• Declarations of Carl Takei (Dkts. 177-1 & 119-20) from the motion for summary judgment in Lyon v. ICE, Case 13-cv-05878 (2016), including exhibits which contain photographs and video stills of Mesa Verde dorms and other facilities circa 2015 (Dkt. 177-1) (“Takei Mesa Verde Declaration”), and providing the foundation for photographs of Yuba County Jail (119-20, including photographs of Unit I (DSC 105 at Dkt. 197-15), Unit R (DSC 112 & 114 at Dkt. 197-15), and Unit C (DSC 198, at Dkt. 197-17);
• Redacted expert report of Michael A. Berg from motion for summary judgment in Lyon v. ICE, Case 13-cv-05878 (2016), including a description of the Yuba County Jail housing units (“Berg Report”);
• Declaration of Phil Stanley from Hedrick v. Grant consent decree proceedings (2016),6 with a general description of the Yuba County Jail housing units (paragraphs 12-14) (“Stanley Declaration”).
COVID-19
5. COVID-19 is a disease caused by a coronavirus that has reached pandemic status. As of April 14, 2020, according to the World Health Organization, nearly two million people have been diagnosed with COVID-19 around the world and 117,000 people have died.7 In the United States, nearly 700,000 people have been diagnosed and more than 35,000
5 https://oag.ca.gov/sites/all/files/agweb/pdfs/publications/immigration-detention-2019.pdf. 6 Declaration of Phil Stanley in Support of Plaintiffs’ Motion to Enforce Consent Decree and for Further Remedial Orders, Oct. 20, 2016, Case No. 2:76-cv-00162-GEB, Dkt. 163-4, at https://bloximages.newyork1.vip.townnews.com/appealdemocrat.com/content/tncms/assets/v3/editorial/7/15/71575698-9b0b-11e6-824a5f3b62160b74/580febccf3c58.pdf.pdf 7 World Health Organization, Coronavirus Disease 2019 (COVID-19) Situation Report-85, Apr. 14, 2020, https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200414-sitrep-85-covid19.pdf?sfvrsn=7b8629bb_4 (last accessed Apr. 18, 2020).

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people have died thus far.8 These numbers are likely an underestimate, due to the lack of availability of testing in countries like the United States.
6. There is no vaccine to prevent COVID-19. There is no known cure or anti-viral treatment for COVID-19 at this time. The only way to mitigate COVID-19 is to use scrupulous hand hygiene and social distancing.
7. People in the high-risk category for severe COVID-19, i.e., older adults or those with underlying disease, are likely to suffer serious illness and death. The Centers for Disease Control and Prevention (CDC) has identified underlying medical conditions that may increase the risk of serious COVID-19 for individuals of any age including blood disorders, chronic kidney or liver disease, compromised immune system, including from HIV, endocrine disorders, including diabetes, metabolic disorders, heart and lung disease, hypertension, obesity, neurological and neurologic and neurodevelopmental conditions, and current or recent pregnancy. According to preliminary data from China, 20% of people in high risk categories who contract COVID-19 have died.
8. In the United States, younger adults with COVID-19 have been severely affected by the disease as well. While people under the age of 20 have largely been protected from severe effects of the coronavirus, 55% of COVID-19 hospitalizations and 20% of deaths were from people between the ages of 20 and 64.9 The World Health Organization has recognized that the risk of severe COVID-19 gradually increases with age, beginning at around 40 years old.10 Reports from New York City, the area hardest-hit by the virus in the United States, show a surprising number of people severely affected who are younger and without known underlying conditions.11
9. A primary concern of medical and public health experts and public officials is the effect that the pandemic is having and will have on health systems. Because severe COVID-19 cases require extended hospitalization and intensive medical care, a significant number of COVID-19 cases can quickly overwhelm a health system. This is true in urban areas, but is particularly true in rural areas where health care facilities have far more limited capacity to respond to an increase in patients who need hospitalization and intensive care.
Mitigation Measures
10. The mode of transmission of COVID-19 is believed to be through close exposure
8 Centers for Disease Control and Prevention, Coronavirus Disease 2019: Cases in the US, https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last accessed Apr. 18, 2020). 9 Centers for Disease Control and Prevention, “Morbidity and Mortality Weekly Report: Severe Outcomes Among Patients with Coronavirus Disease 2019,” Mar. 27, 2020, at https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm (last accessed April 18. 2020). 10 World Health Organization, “Coronavirus Disease 2019: Situation Report—51,” Mar. 11, 2020, at https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200311-sitrep-51-covid19.pdf?sfvrsn=1ba62e57_10. 11 See, e.g., Michelle Fay Cortez & Olivia Carville, “Many New York Coronavirus Patients Are Young, Surprising Doctors,” Bloomberg, Apr. 1, 2020, at https://www.bloomberg.com/news/articles/2020-04-01/coronavirus-inyoung-people-ny-patients-skew-younger-some-die.

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of someone to a person who is infected with the virus, most commonly through respiratory droplets released when a person speaks, coughs or sneezes. Transmission is also possible through contact with contaminated surfaces. There is ongoing scientific debate about whether coronavirus is airborne – and transmitted through aerosols, which stay in the air longer than droplets, thus far accepted as the primary means of transmission.12 The extent and importance of airborne (or aerosol) transmission in the community (non-healthcare setting) is uncertain at this time but a cause for concern and suggests that additional protective measures should be taken.
11. Social distancing and hand hygiene are the only known ways to prevent the rapid spread of COVID-19. The recommended hand hygiene measures are frequent handwashing with soap and water and the use of alcohol-based sanitizers when handwashing is unavailable. Surfaces such as doorknobs and light switches which have a high degree of human contact should be cleaned and disinfected regularly with bleach.
12. In addition, health care providers and individuals who come into contact with those exposed to, or infected with, COVID-19 should have access to personal protective equipment, including gloves, masks, and gowns.
13. In light of the mixed evidence about airborne transmission, public health experts are increasingly recommending additional mitigation measures, such as improved indoor ventilation, a prohibition on indoor gatherings, and a requirement that all individuals wear masks.
14. Recognizing the urgency and severity of the pandemic, public health officials have recommended extraordinary measures to combat the spread of COVID-19. Schools, courts, collegiate and professional sports, theater and other congregate settings have been closed as part of a risk mitigation strategy. California Governor Gavin Newsom has directed all California residents to shelter in place in order to limit the spread of the coronavirus.13
15. California is one of the states in the United States most severely affected by COVID-19. There are a total of more than 27,500 reported positive cases and nearly 1,000 deaths. The state health authorities have confirmed community transmission since late February.14
12 See, e.g., World Health Organization, “Modes of transmission of virus causing COVID-19: implications for IPC precaution recommendations,” Mar. 29, 2020, https://www.who.int/news-room/commentaries/detail/modes-oftransmission-of-virus-causing-covid-19-implications-for-ipc-precaution-recommendations; Dyani Lewis, “Is the Coronavirus Airborne? Experts Can’t Agree,” Nature, Apr. 2, 2020, at https://www.nature.com/articles/d41586-02000974-w. 13 See https://covid19.ca.gov/img/Executive-Order-N-33-20.pdf , accessed March 20, 2020. 14 See https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/Immunization/ncov2019.aspx, accessed March 20, 2020.

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Risks in Immigration Detention
16. The conditions of congregate settings, such as jails and immigration detention facilities, pose a heightened public health risk to the spread of COVID-19, even greater than other non-carceral institutions.
17. Immigration detention facilities are enclosed environments, much like the cruise ships and nursing homes that have been and contine to be the sites of some of the largest concentrated outbreaks of COVID-19. Immigration detention facilities have even greater risk of infectious spread because of conditions of crowding, the proportion of vulnerable people detained, the lack of ventilation, and often scant medical care resources. There have been numerous historic documented influenza outbreaks in detention facilities in the United States and around the world.
18. People live in close quarters and cannot achieve the “social distancing” needed to effectively prevent the spread of COVID-19. Toilets, sinks, and showers are shared, without disinfection between each use. Food preparation and food service is communal, with little opportunity for surface disinfection. Staff arrive and leave on a shift basis; there is little to no ability to adequately screen staff for new, asymptomatic infection.
19. There are often insufficient cleaning supplies, and people to conduct the required intensive cleaning. Detainees are typically not provided hand sanitizer per the rules of the facilities. Personal and shared spaces in immigration detention centers are often poorly ventilated which increases the transmissibility of infectious diseases whether airborne or spread by droplet.
20. Detainees enter the detention centers from outside and new detainees bring with them a new risk of infection transmission. Staff arrive and leave on a shift basis and interact daily with others outside of the detention facility; there is little to no ability to adequately screen staff for new, asymptomatic infection.
21. There are increasingly reports of COVID-19 infections in correctional and detention sites around the country. Once COVID-19 is introduced into these facilities, it spreads like wildfire. In mid-March, the jail at Rikers Island in New York City had not had a single confirmed COVID-19 case. Rikers now has a rate of infection that is far higher than the infection rates of the most infected regions of the world.15 By March 30, 167 inmates, 114 correction staff and 20 health workers at Rikers tested positive for COVID-19; two correction staff members have died and multiple inmates have been hospitalized.16 The Chief Medical Officer of Rikers has described a “public health disaster unfolding before
15 As of March 26, Wuhan, China had an infection rate of 4.59 per 1,000 people, Lombardy, Italy had an infection rate of 3.48 per 1,000 people, and New York City had an infection rate of 2.15 per 1,000 people. Legal Aid 16 Jan Ransom & Alan Feuer, “‘We’re Left For Dead’: Fears of Virus Catastrophe at Rikers Jail,” NY Times, Mar. 30, 2020, at https://www.nytimes.com/2020/03/30/nyregion/coronavirus-rikers-nyc-jail.html.

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our eyes.” In his view, following CDC guidelines has not been enough to stem the crisis: “infections in our jails are growing quickly despite these efforts.”17
22. Like the explosive growth at Rikers, the Cook County Jail went from two confirmed COVID-19 cases on March 23 to 134 cases in a matter of one week,18 and up to 342 confirmed inmate cases on April 16, 2020.19 Three inmates have died.20 In one facility for which I work for the federal court as a medical monitor, there have been 47 test-positive custody staff members, and 11 test-positive health care staff, and 24 test-positive inmates, with multiple other tests pending results as of April 17, 2020.
23. For all of these reasons, it is highly likely, and perhaps inevitable, that COVID-19 would reach the immigration detention facilities, including in California, and it has. It has been reported as of April 17, 2020 that ICE has tested only 300 detainees across the country for COVID-19, and that one-third of those tested were confirmed positive.21 Otay Mesa Detention Center, in San Diego, is reported to have the highest number of confirmed COVID-19 cases.22 It is notable that there are so many confirmed cases despite evidence of so few tests being conducted at immigration detention facilities.
24. The heightened risk of infectious disease transmission in immigration detention centers threatens the health of detainees, staff and the broader population. An outbreak in the detention facility will likely increase the transmission in the community as detainees will be released, and staff, contractors, and vendors will come and go from the facilities to the communities.
Medical Care in Immigration Detention
25. Many immigration detention facilities lack adequate medical care infrastructure to address the spread of infectious disease and treatment of high-risk people in detention. As examples, immigration detention facilities often use practical nurses who practice beyond
17 Ross MacDonald (@RossMacDonaldMD), Twitter (Mar. 30, 2020, 8:03 PM), https://twitter.com/rossmacdonaldmd/status/1244822686280437765?s=12 (“I can assure you we were following the CDC guidelines before they were issued. We could have written them ourselves. . . [I]infections in our jails are growing despite these efforts.”). 18 Sam Kelly, “134 Inmates at Cook County Jail Confirmed Positive for COVID-19,” Chicago Sun Times, Mar. 30, 2020, at https://chicago.suntimes.com/coronavirus/2020/3/29/21199171/cook-county-jail-coronavirus-positive-134cases-covid-19. 19 Andy Grimm, ‘I feel like I lost the battle for my husband,’ widow of dead Cook County Jail detainee says, Chicago Sun Times, https://chicago.suntimes.com/2020/4/16/21224183/lost-battle-husband-widow-dead-cookcounty-jail-detainee-coronavirus (Apr. 16, 2020). 20 Id. 21 Tanvi Misra, “ICE’s COVID-19 test figures hint at health crisis in detention,” Roll Call, Apr. 17, 2020, at https://www.rollcall.com/2020/04/17/ices-covid-19-test-figures-hint-at-health-crisis-in-detention/. 22 Kate Morrissey, “Otay Mesa immigration courts closed, hearings postponed as detention facility COVID-19 cases grow,” San Diego Union Tribune, Apr. 15, 2020, at https://www.sandiegouniontribune.com/news/immigration/story/2020-04-15/otay-mesa-immigration-courts-closedhearings-postponed-as-detention-facility-covid-19-cases-grow.

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the scope of their licenses; have part-time physicians who have limited availability to be on-site; and facilities with no formal linkages with local health departments or hospitals.
26. Even where they do have formal linkages with local health departments or hospitals, detention facilities are often in under-resourced areas where the local health department or hospital would quickly become overwhelmed in the face of an infectious disease outbreak.
27. Immigration detention facilities and jails are ill-equipped to diagnose and manage the spread of a disease like COVID-19. Health care providers should have access to personal protective equipment, including masks. Access to resources for testing and personal protective equipment are often inadequate in immigration detention facilities.
28. Those infected and symptomatic should be isolated in negative pressure rooms, which rarely exist in jails and detention facilities. Where such negative pressure rooms do exist, there are rarely enough to be available in the event of an outbreak.
Risk Mitigation
29. Risk mitigation is the only viable public health strategy available to limit transmission of infection, morbidity and mortality in immigration detention centers, and to decrease the likely public health impact outside of the detention centers.
30. For a disease that is either spread by droplets or aerosol, the most effective mitigation strategy to limit the spread of the virus is to reduce crowding, as this increases the opportunity for social distancing.
31. The detention center is a microcosm of the broader community. Social distancing and scrupulous hygiene and sanitation are required to avoid infection or an outbreak. If there is inadequate social distancing, hygiene and sanitation, there will almost certainly be infection and an outbreak. In the event of an outbreak, those who are medically vulnerable will be most immediately at risk, but eventually the effect will be felt by all as the health care infrastructure will be inadequate to respond to the needs.
32. In an immigration detention center, even if everyone is isolated in a single cell, there is still an increased risk of transmission among detainees and staff because the institutional setting requires the delivery of food, cleaning supplies, documents, and other items. However, in most immigration detention facilities, individuals are not isolated in a single cell, or housed in an environment where social distancing is an option. This massively increases the risks of transmission and an outbreak in the detention centers.
Mesa Verde Detention Center and ICE Detention at Yuba County Jail
33. From my review of the available evidence, I have grave concerns about the possibility of social distancing, and other risk mitigation measures, at Mesa Verde Detention Center and for ICE detainees at Yuba County Jail.

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34. I understand that there is no capacity for social distancing in the sleeping arrangements for detainees at Mesa Verde Detention Center or for the ICE detainees at Yuba County Jail. Detainees are almost all in bunk beds, which by definition prohibits social distancing as the distance between the upper and lower bunks is less than six feet. In almost all cases where there is more than one bunk to a room, detainees who sleep in bunk beds report that they sleep within reaching distance of at least one other bed where someone is sleeping.23
a. At Mesa Verde Detention Center there are four units: A, B, C and D. Unit B is used for women while the remaining units are used for men.24 Each dormitory room houses 100 detainees in bunk beds only a few feet apart.25 As one of the declarants described: “[The bunk beds] are so close to one another that I can reach out my arms and touch another bunk bed. I sleep on the bottom bunk and if I sit up, I will bump my head on the upper bunk.”26 This is fundamentally a congregate living space where there is a high risk of infectious spread. From the reports of those currently detained there, some if not all of the units are at or near capacity.
b. Yuba County Jail has a more diverse set of sleeping arrangements, but none of the sleeping arrangements appear safe in the context of the coronavirus. Detainees sleep in “linear-style open bar front cells,” dormitories, or double-celled housing.27 Regardless of the type of room, most ICE detainees at Yuba sleep in housing units where they are in bunk beds which are fewer than six feet away from the other bed in the same bunk, and fewer than six feet from the next bunk bed.28 I understand that ICE detainees at Yuba County Jail are typically commingled with County detainees held for criminal offenses or awaiting trial.29 This means that there are significant numbers of detainees transferred in and out of the units, something reported at both facilities by declarants,30 which carries inherent risks as described above. While Yuba County Jail has reportedly released some people so the jail is not at capacity, from the current reports of those detained, the units are still sufficiently crowded that social distancing is not possible.
i. The “tanks” in the “Old Jail” at Yuba—Units G through L—are “not enclosed rooms” but are “separated from the corridors only by a set of bars, with open spaces between the bars, so air flows freely between the tanks and corridors.” Each “tank” has space for
23 See, e.g., Declaration of Dung Tuan Dang, paras. 11, 13-14; Declaration of Javier Alfaro, para. 18; Declaration of Coraima Yaritza Sanchez Nuñez, para. 14. 24 Berg Report at 10. 25 Mesa Verde PREA Audit at 2; Knox Declaration, para. 9; Takai Mesa Verde Declaration at 4, 10-12. 26 Declaration of Javier Alfaro, para. 16. 27 Stanley Declaration, para. 12-14. 28 Kavanagh Declaration, para. 5 (Yuba). See, e.g., Declaration of Brenda Rubi Ruiz Tovar, para. 14; Declaration of Lawrence Kuria Mwaura, para. 10. 29 Kavanagh Declaration, para. 3 (Yuba). 30 See, e.g., Declaration of Dung Tuan Dang, para. 12; Declaration of Javier Alfaro, para. 17; Declaration of Coraima Yaritza Sanchez Nuñez, para. 16.

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approximately two dozen men who sleep in “sets of bunk beds that are spaced only a few feet apart.”31 In the tanks, according to the Kavanagh fact declaration, it is “impossible for people to be six feet apart from each other.”32
ii. B and C pods are “large open rooms” with bunk beds holding approximately 50 people each, with each bed only a few feet apart from the next. B pod includes both ICE and County detainees; C pod is exclusively ICE detainees.33 T is compromised of “two interconnected small rooms with multiple bunks lining the walls.”34
iii. P and R Pods are female housing units of congregate living space. R Pod includes “approximately two dozen bunk beds spaced a few feet apart lining one wall, a half wall dividing the room lengthwise, and a row of tightly spaced tables,” as well as “approximately three showers with plastic dividers between them.” According to the Kavanagh fact declaration, “the size and layout . . . make[s] it hard to navigate without coming very close to or into direct physical contact with others.”35 P Pod, another female housing unit, includes space for a dozen women in a very compact space.36
iv. D, E and F pods are “approximately twenty two-person cells” where individuals sleep in bunk beds. Each cell has a bunk bed, sink and toilet. According to the Kavanagh fact declaration, “When two detainees are anywhere in their small cells, it would be impossible for them to be six feet apart.”37 Q1 and Q2 are two-person cells.38
v. There are two “administrative segregation units—the ‘A-pod’ for men and the ‘S-Tank’ for women.” These are “one- and two-person celled housing,” which together have the capacity for 46 individuals.39 Even if these units created the possibility of achieving greater social distancing for a small number of persons at Yuba, they would be nowhere near sufficient to solve the social distancing problems confronted by the vast majority of the detainee population.
31 Kavanagh Declaration, para. 9. 32 Kavanagh Declaration, para. 9. See also Berg Report at 9; Photographs DSC 00179 & 00180 (Yuba Unit L). 33 Kavanagh Declaration, para. 6. See also Berg Report at 9; Photograph DSC 00198 (Yuba Unit C) 34 Berg Report at 9. 35 Kavanagh Declaration, para. 10. See also Photographs DSC 00112 & 00114 (Yuba Unit R). 36 Id. 37 Kavanagh Declaration, para. 7 (Yuba). See also Berg Report at 9 (“Units D, E, and F are celled units that hold about fifty inmates each.”). DSC 00106 (Yuba Unit I, with bolted table against the wall); DSC 00179 (Yuba Unit L, with bolted table and chairs); DSC 00175 (Yuba Unit K); DSC 00105 & 00106 (Yuba Unit I). Knox Declaration, para. 9 (Mesa Verde). 38 Berg Report at 9. 39 Stanley Declaration, para. 12-14. See also Berg Report at 9 (“S1, S1, S3, S4, S5, and S6 are two-bed cells used for segregation.”).

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35. Because detainees get in and out of bed, bunk beds that are closer than ten feet from one another will not allow adequate social distancing. Moreover, the risk of disease tramsmission from communal sleeping arrangements is greater than the risk of risk of transmission for otherwise being in the proximity of infected individuals for short periods of time, for instance passing individuals in the street or the grocery store. This is because risk increases in confined spaces as the time increases.
36. I understand that there are few isolation cells, which together would be insufficient for segregating individuals who are confirmed infected.
a. At Mesa Verde Detention Center, there are believed to be “fewer than five isolation cells,” which are typically occupied by those with chronic mental health conditions or subject to disciplinary isolation.40 There are medical isolation rooms in the medical unit which are sometimes used for “protective custody segregation.” There is also a restrictive housing unit (RHU) consisting of three single cells, and used for “protective custody, administrative segregation, and disciplinary segregation.”41
b. At Yuba County Jail, there are also six medical isolation cells (M-cells), four holding cells and two safety cells.42
37. I understand that there is no capacity for social distancing at mealtimes, recreation, or in the bathrooms at either facility. Multiple declarants even reported that they had only heard of “social distancing” from the news, but not from detention center authorities.43
a. At both facilities, most of the tables used by all detainees are bolted to the ground and with attached chairs or benches which cannot be moved, and where detainees sit only a few feet apart.44 Detainees report that they can touch the others seated at a table easily – they sit “elbow to elbow,” as one detainee described – and no efforts have been made to permit or encourage social distancing at mealtimes. Individuals also often line up to get meals.45
b. In both facilities, there is very limited area for eating and recreation and it is often impossible to use these areas with adequate spacing between people. There is also limited and inadequate ventilation.46
c. There are typically small common areas with common tables where
40 Knox Declaration, para. 9 (Mesa Verde). 41 Mesa Verde PREA Audit at 2. 42 Stanley Declaration, para. 12-14. 43 Declaration of Javier Alfaro, para. 20. 44 Kavanagh Declaration, para. 3 (Yuba); Takei Photographs, Dkt. 197-17, Dkt. 197-15 (Yuba); Takei Mesa Verde Declaration, photographs at 5, 24, 25 (Mesa Verde). See, e.g., Declaration of Brenda Rubi Ruiz Tovar, para. 14; Declaration of Coraima Yaritza Sanchez Nuñez, para. 14. 45 See, e.g., Declaration of Brenda Rubi Ruiz Tovar, para. 14; Declaration of Lawrence Kuria Mwaura, paras. 12-13; Declaration of Coraima Yaritza Sanchez Nuñez, para. 14. 46 See generally Kavanagh Declaration (Yuba); Knox Declaration, para. 10 (Mesa Verde).

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individuals eat and recreate “with very little room to maneuver.”47 Detainees report that the tables and chairs are full at mealtimes, and they have to line up to get food, one after another, without adequate spacing between people.48
d. Shower and toilet stalls are not six feet apart. At Mesa Verde, each unit of 100 detainees has a shared bathroom of “two multi-user bathrooms consisting of five showers, five toilets, and seven sinks.”49 At Yuba, toilets and showers are typically “separated only by thin dividers that rise to around shoulder height.”50 Detainees report being “shoulder to shoulder” with other detainees, or within arms reach, if at the sink, in the shower, or at the toilet.51 Detainees report that there are sometimes lines to use the bathroom, guaranteeing that there is no social distancing either in the bathroom or waiting for the bathroom.
e. Individuals move in and out of small telephone booths, packed closely to each other and close to other people.52
38. From current reports from those detained at the facilities, there is inadequate care and attention given to hygiene and sanitation, increasing the risks of infectious spread. I understand that there are limited instructions about hygiene and sanitation provided to detainees, and insufficient supplies given to detainees to enable them to practice proper hygiene and sanitation. Plaintiffs have reported that the common areas, including the bathrooms, are unsanitary.
a. Plaintiffs report that they have learned little about the coronavirus and protective measures from authorities at the detention centers. Multiple people reported that they learned about social distancing from the news, rather than from the authorities, and that there have been no efforts to implement or enforce social distancing within the facilities.53
47 See, e.g., Kavanagh Declaration, para. 9. 48 See, e.g., Declaration of Dung Tuan Dang, paras. 17-18. 49 Mesa Verde PREA Audit at 2; Takei Mesa Verde Declaration, photograph at 14 (Mesa Verde). See, e.g., Declaration of Dung Tuan Dang, paras. 14-15 (“On each side of the dorm there are two urinals and three toilet stalls. In the morning there is a line for the bathrooms. There is no distancing when you are in line. When you stand to go pee at a urinal, and if someone else is peeing at the same time, they are standing right next to you – they could be inches away depending on the size of the person. The closed toilet stalls are separated by wood panels. The panels do not go all the way up to the ceiling. If someone stands in the stall next to you, you can see their head. They are the same distance away as the distance between the urinals. In the restroom area there are five sinks for washing your hands and brushing your teeth. The sinks are in an open area without dividers. The distance between the sinks
is about a hand length if you stretch your fingers out wide.”); Declaration of Javier Alfaro, para. 22.
50 Kavanagh Declaration, para. 6. See, e.g., Declaration of Brenda Rubi Ruiz Tovar, para. 15; Declaration of Lawrence Kuria Mwaura, para. 16. 51 See, e.g., Declaration of Coraima Yaritza Sanchez Nuñez, para. 12. 52 Kavanagh Declaration, para. 8. See, e.g., Declaration of Brenda Rubi Ruiz Tovar, para. 16. 53 See, e.g., Declaration of Brenda Rubi Ruiz Tovar, para. 20.

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b. Plaintiffs have reported the lack of the most basic supplies—including, for example, soap dispensers in the bathrooms at the women’s unit at Mesa Verde, or sufficient soap and personal hygiene items for those at both facilities.54
c. Detainees are responsible for cleaning the communal spaces at Mesa Verde, and plaintiffs have reported that they are denied adequate supplies or time in order to do so effectively.55 At both facilities, detainees reported that some bathrooms were highly unsanitary and often with noticeable excrement.56
d. Detainees report that when they are cleaning their own areas in the detention centers, or communal areas, they are not given adequate protective equipment.57
39. I also understand that there have been serious complaints voiced about the adequacy of medical care provided to detainees at these facilities independent of the COVID-19 pandemic, which raises concerns about the ability of the facilities to provide adequate medical care in the more challenging context of the current pandemic.58
40. I note from the declarations of Plaintiffs, there is not a consistent practice of testing and/or quarantining new entrants to the facilities.59 There continue to be new entrants, which in and of itself raises concerns about the introduction of COVID-19 into the facilities, and these new arrivals are not placed in quarantine or monitored for 14 days.
41. I understand that there has been no, or virtually no, testing for COVID-19 at either facility. From the declarations of Plaintiffs, I understand that detainees with symptoms, including medically vulnerable detainees, are reporting that they are not being tested.60 Some but not all detainees, in some but not all units of the two facilities, report more regular temperature checks but these remain inconsistent, and in some instances require detainees to stand in line without adequate social distancing.61 The lack of testing, and even consistent and safe temperature checks, raises concerns about their care, about the availability of tests, and about ICE’s adherence to CDC guidance.
42. There also is evidence that there are not sufficient protections for those who are medically vulnerable; they remain in large dormitory settings without social distancing.62
54 See, e.g., Declaration of Brenda Rubi Ruiz Tovar, para. 14; Declaration of Lawrence Kuria Mwaura, paras. 30, 34; Declaration of Coraima Yaritza Sanchez Nuñez, para. 11; Declaration of Coraima Yaritza Sanchez Nuñez, para. 18. 55 See, e.g., Declaration of Dung Tuan Dang, para. 16; Declaration of Javier Alfaro, para. 23; Declaration of Coraima Yaritza Sanchez Nuñez, para. 12. 56 See, e.g., Declaration of Brenda Rubi Ruiz Tovar, paras. 15, 17; Declaration of Lawrence Kuria Mwaura, para. 15. 57 See, e.g., Declaration of Brenda Rubi Ruiz Tovar, para. 21. 58 Kavanagh Declaration, paras. 14-15 (Yuba); Knox Declaration, paras. 4-5 (Mesa Verde). See, e.g., Declaration of Brenda Rubi Ruiz Tovar, paras. 18, 22. 59 Declaration of Javier Alfaro, para. 30 (new entrants not quarantined at Mesa Verde); Declaration of Lawrence Kuria Mwaura, para. 11 (new entrants not quarantined at Yuba); Declaration of Coraima Yaritza Sanchez Nuñez, para. 16. 60 See, e.g., Declaration of Brenda Rubi Ruiz Tovar, paras. 7-13. 61 See, e.g., Declaration of Javier Alfaro, para. 29 (no regular temperature checks at Mesa Verde); Declaration of Lawrence Kuria Mwaura, paras. 18-19 (inconsistent temperature checks at Yuba). 62 See, e.g., Declaration of Javier Alfaro, para. 19.

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43. As noted above, there is a dramatically increased risk of rapid infectious spread at congregate facilities such as ICE detention centers, and there continue to be serious deficiencies in ICE’s policy in response to COVID-19. In addition, however, the structure and facilities of the Mesa Verde Detention Center and the Yuba County Jail lead me to conclude that social distancing is impossible at either facility, and there is a serious risk of infection for all of those who are detained. The close proximity of the sleeping arrangements is one problem, but the fact that there is no ability to practice social distancing at mealtimes, recreation, or in using the shower or bathroom amplifies dramatically the risks. The lack of adequate sanitation and hygiene, as reported, further increases the risks to detainees, staff and other personnel, and the broader community.
ICE Has Failed to Adequately Respond to COVID-19 at Immigration Detention Facilities
44. ICE’s response to the COVID-19 pandemic, both nationally and at individual facilities including the Mesa Verde and Yuba County ICE detention centers, is deficient, putting detainees, especially those who are high-risk, in imminent danger of serious illness and death.
45. Infection with the virus that causes COVID-19 is widespread across the United States. A disease model devised by University of Texas researchers concludes that, by the time an individual county has just two known COVID-19 cases, there is a 70% likelihood that a “sustained, undetected outbreak – an epidemic – is already taking place” in the community, and that probability of an existing epidemic rises to 95% if a county has 10 known COVID-19 cases and 99% if the county has 20 or more cases.63 64 As of April 18, 2020, Yuba and Sutter Counties has 40 confirmed cases,65 and Kern County has 610 confirmed cases of COVID-19.66 Immediate intervention is necessary to avert preventable deaths at detention facilities located in these or other counties where there is a demonstrated probability of a present epidemic.
46. Based on my training and decades of experience in public health, I conclude that although ICE’s April 10 Guidance is a marked improvement over its past COVID guidance documents, ICE’s COVID protocols fall short of what is needed to address the threats posed to high-risk immigrant detainees by COVID-19, and are likely very challenging for facilities, especially those with reduced staff, to successfully implement. Further, as elaborated above, even the April 10 Guidance is not being implemented at Mesa Verde and Yuba County Jail.
63 Javan, Fox, & Myers. Probability of current COVID-19 Outbreaks in All U.S. Counties, https://cid.utexas.edu/sites/default/files/cid/files/covid-risk-maps_counties_4.3.2020.pdf?m=1585958755, accessed April 16, 2020. 64 N.Y. Times, Does My County Have an Epidemic? Estimates Show Hidden Transmission (Apr. 3, 2020), https://www.nytimes.com/interactive/2020/04/03/us/coronavirus-county-epidemics.html. 65 “Coronavirus Updates for Yuba County,” at https://www.yuba.org/coronavirus/ (accessed Apr. 18, 2020). 66 Tracking Coronavirus in California,” LA Times, at https://www.latimes.com/projects/california-coronaviruscases-tracking-outbreak/ (accessed Apr. 18, 2020).

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47. Social Distancing: ICE recognizes social distancing is an important mitigation measure but fails to mandate it in its facilities. Indeed, ICE’s April 10 Guidance acknowledges that there are limits to the amount of social distancing that can be accomplished due to the infrastructure of ICE facilities. ICE facilities have fixed architecture and are designed as congregate settings, requiring close proximity in confined spaces. The measures outlined in ICE’s April 10 Guidance are impossible to carry out given the limits of the infrastructure.
a. ICE’s April 10 Guidance suggests that facilities should stagger detainee access to recreation, law library, and meals, so that they encounter fewer other people throughout the course of their day, especially people from other housing units. However, even these steps fall well short of what is needed to actually prevent the transmission of COVID-19, especially in light of crowding within housing units.
b. ICE’s April 10 Guidance acknowledges that social distancing may not be possible. It says that beds should be rearranged, but only “if practicable,” and that six feet of distance should be maintained, but only “whenever possible.” The ICE Website Guidance similarly identifies social distancing reforms at individual facilities as optional. Individuals at immigration detention facilities have described how it is impossible to stay six feet away from someone during congregate meals, in shared bathrooms and recreation spaces, and in cells with bunk beds.
48. Release: Most significantly, ICE fails to appreciate the importance of releasing detainees to limit the risk for the individuals released, for those who remain detained, and for the general public. Because of the risks inherent in detention centers, and the unparalleled importance of social distancing, release is the most important means of mitigating the spread of COVID-19 in ICE detention centers. This would be true even if the conditions inside the facility were impeccable.
a. ICE’s April 10 Guidance says that ICE should reduce its facilities to 75% capacity. ICE’s Website Guidance uses a goal of 70% capacity. This is an arbitrary number, particularly since facility design and ventilation varies considerably across the country. ICE provides no evidence that 70% or 75% capacity would facilitate effective social distancing within dormitories or cells, which requires that individuals maintain six feet of separation. In fact, from what I know of most of the ICE facilities, the 70% or 75% figures are not just arbitrary but also inadequate; ICE would need to downsize far more significantly in order to limit the risks of coronavirus for those detained, and for the broader community.
b. Detention centers are extraordinarily high-risk environments for the transmission of infectious diseases. Thus, the “capacity” of a facility is not an appropriate marker for the facility’s ability to house people safely during the COVID-19 pandemic. This is because the facility’s capacity does not take into account the need for social distancing in mitigating the COVID-19 pandemic. Social distancing of six feet, as recommended by the CDC, will be impossible without significant downsizing.

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49. Identifying High-Risk Individuals: ICE’s April 10 Guidance directs jails and ICE detention facilities to identify all detainees who meet the Center for Disease Control and Prevention’s (“CDC”) identified criteria for people at especially high risk for serious illness from coronavirus. The April 10 Guidance does not, however, fully account for high-risk factors, or identify or requires steps to be taken to protect those who are at high risk.
a. The April 10 Guidance does not identify pregnancy, the postpartum period or history of smoking as risk factors. The guidance fails to include hypertension as a risk factor. Even though hypertension has been recognized by the CDC as among the “risk factors for severe illness.”67 The ICE guidance also defines obesity as a BMI of 40 or more, though in an April 8, 2020 CDC Morbidity and Mortality Weekly Report (“MMWR”), obesity (a BMI of 30 or more) was the second most common underlying medical condition amongst hospitalized COVID-19 cases, behind hypertension. 48.3% of hospitalized COVID-19 patients have a BMI over 30, and are therefore obese according to the CDC.68
b. The April 10 guidance provides 65 years of age as the cutoff age for higher-risk individuals despite that the risk of severe COVID-19 begins to increase markedly for individuals earlier, with studies showing significant increased risk of morbidity and mortality for people in their 50s, and risks increasing already for people in their 40s.69
c. ICE’s April 10 Guidance does not identify steps that protect high-risk detainees from getting COVID-19. The guidance only requires that ICE identify these individuals, their underlying medical issues, and their location. There are no requirements to release or otherwise protect these individuals. At most, detainees who are vulnerable because they fall into a higher risk category are “cohorted,” which means that they are assigned to shared living quarters or quarantined as a group, which actually facilitates transmission among high risk patients in the absence of adequate social distancing and access to proper hygiene. Since there are no heightened protections for high risk individuals, it is unlikely that illness will be detected until it is too late for preventive intervention.
50. Transfers: The April 10 Guidance discourages but does not prohibit transfers. It requires only that transfers of the “detained non-ICE populations” be limited “where possible.” It does not limit the transfer of ICE detainees at all. The April 10 Guidance does not require
67 CDC, “Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease,” dated March 30, 2020 https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html. 68 See Shikha Garg et al., Hospitalization Rates and Characteristics of Patients Hospitalized with LaboratoryConfirmed Coronavirus Disease 2019 — COVID-NET, 14 States, March 1–30, 2020, CENTERS FOR DISEASE CONTROL & PREVENTION (Apr. 8, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6915e3.htm?s_cid=mm6915e3_w#T1_down. 69 Robert Varity et al., Estimates of the Severity of Coronavirus Disease 2019: A Model-Based Analysis, THE LANCET, (Mar. 30, 2020); World Health Organization, “Coronavirus Disease 2019: Situation Report—51,” Mar. 11, 2020, at https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200311-sitrep-51-covid19.pdf?sfvrsn=1ba62e57_10.

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the quarantining of new arrivals, but only that “considerable effort” be made to quarantine new entrants. Even where quarantining is considered, the Guidance instructs only “the most effective cohorting methods practicable based on the individual facility characteristics.” Transferring individuals between facilities, a common ICE practice, is medically inappropriate during the outbreak.
a. The lack of automatic isolation or quarantining of new arrivals introduces considerable health risks. Nearly every person who newly arrives at the detention facility will have had close contact to someone with COVID-19. Thus, appropriate guidelines would quarantine and monitor all new arrivals. The isolation and quarantine procedures by ICE do not comply with best practice.
51. Screening New Detainees: ICE’s April 10 Guidance does not address how facilities will account for large numbers of people who have already been exposed to COVID-19, including transfers. Not only do new detainees need to be accounted for, but also staff, vendors, and other people who go in and out of the facility.
a. ICE’s April 10 Guidance says that people without symptoms, but who have had contact with someone with COVID-19 or those who meet the epidemiological risk criteria will be quarantined and monitored for 14 days. But this does not recognize the scope of the current crisis. A large share of newly arriving individuals will have had contact with someone with COVID-19 or will have been in areas of community spread, including transfers from other facilities. ICE would need to use this level of individual monitoring for each and every person arriving at the facility. ICE would have to increase its medical resources to provide this level of care to this many people, but has not indicated that it has the capacity to do so.
b. ICE’s April 10 Guidance does not account for asymptomatic transmission of COVID-19. “Because persons with asymptomatic and mild disease . . . are likely playing a role in transmission and spread of COVID-19 in the community, social distancing and everyday preventive behaviors are recommended for persons of all ages to slow the spread of the virus, protect the health care system from being overloaded, and protect older adults and persons of any age with serious underlying medical conditions.”70 In fact, half of individuals who tested positive for coronavirus had mild or no symptoms in some studies.71
52. Testing: Neither ICE’s April 10 Guidance nor ICE’s Website Guidance address the paucity of testing in their facilities. ICE’s Website Guidance only includes a cursory mention that “ICE testing . . . complies with CDC guidance.” Much of the ICE COVID Guidance relies on what to do with “confirmed” cases among either detainees or staff. However, without explicit testing criteria and actual testing, ICE will not be able to
70 See Coronavirus Disease 2019 in Children — United States, February 12–April 2, 2020, CENTERS FOR DISEASE CONTROL & PREVENTION (Apr. 20, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6914e4.htm?s_cid=mm6914e4_w. 71 See Pien Huang, What We Know About The Silent Spreaders Of COVID-19, NATIONAL PUBLIC RADIO (Apr. 13, 2020), https://www.npr.org/sections/goatsandsoda/2020/04/13/831883560/can-a-coronavirus-patient-who-isntshowing-symptoms-infect-others.

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identify “confirmed” cases within its facilities. To say that there are no “confirmed” cases in a facility in no way implies that the facility is “clean” of the virus when there has been little or no testing.
53. Staff: ICE’s April 10 Guidance does not provide criteria for when staff should be tested, and does not require the testing of staff who interact with detainees. Staff, vendors and other non-detained personnel are especially important vectors in this outbreak. Since they go back and forth between the outside world, detention centers will be hit by COVID-19 when the rest of the community is, staff and their families included. Despite this, ICE COVID procotols do not provide meaningful guidance for screening and testing these personnel.
a. The April 10 Guidance provides that staff should “stay home when sick,” have their temperature checked, and “inform their workplace” if they test positive. The Guidance provides that staff must not be admitted if they are symptomatic. But there is no recognition of the lack of available testing or the risk of asymptomatic transmission.
b. Monitoring active symptoms, including fever, is important. To limit the spread of the virus, however, ICE policy must also recognize the significance of the spread of COVID-19 from asymptomatic individuals. An individual can present without a fever or respiratory problems and still be infected and infectious. There are many more COVID-19 cases than are confirmed.
c. The April 10 Guidance also provides no guidance with regard to limiting the risk of exposure from contractors and vendors. This is not enough to guard against staff or vendors introducing COVID-19 into these facilities, particularly as they may be infected but asymptomatic.
54. Medical Isolation for Confirmed COVID Cases: The April 10 Guidance recognizes the CDC guidance that confirmed COVID-19 cases should be medically isolated. However, many facilities only have one to four of these rooms available in the facility. Based on the experience of detention and other congregate facilities, and the trajectory of this virus, as soon as there are infections at the detention facility, if there are not already, there will be many more than one to four people with COVID-19 in the detention center at a time. Symptomatic patients should live separately from those who are asymptomatic or at risk but who do not have confirmed cases, but in my experience, the structure of detention centers makes this nearly impossible.
55. Cohorting: ICE’s April 10 Guidance acknowledges that confirmed cases should not be confined with suspected cases or close contacts. However, it doesn’t say how social distancing will occur within cohorts of suspected cases or close contacts. Cohorting necessarily means that people will be in close contact with other individuals who may be infected. The April 10 Guidance concerning cohorting again does not take into account that there is very limited testing available and conducted in immigration detention facilities.

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a. The ICE Website Guidance states that “cohorting serves as an alternative to self-monitoring at home.” But this is contrary to the guidance of the CDC. The CDC identifies “cohorting” as a suboptimal practice of group quarantining. Where cohorting can be an effective mitigation strategy in the absence of sufficient space for medical isolation, it requires adequate space for appropriate groupings. For instance, confirmed cases should not be in the same cohort as suspected cases or case contacts; those who had contact with an infected person ten days ago should not be in the same cohort as someone who had contact with an infected person two days ago. Any new arrival should be assumed to have had exposure to coronavirus and thus adding any new individual to an existing cohort requires the 14-day monitoring period to begin anew.
b. Appropriate cohorting is likely impossible based upon the staffing and space constraints inherent in ICE detention. The detention facility’s medical unit simply cannot handle the volume of patients that would need this level of monitoring. ICE COVID protocols do not mention any way to accommodate such a level.
56. Isolation for Those Without Confirmed COVID: Isolation is not a proper solution for people without symptoms or confirmed disease. Detainees who are isolated are monitored less frequently. If they develop COVID-19 symptoms, or their symptoms escalate, they may not be able to get the medical attention they desperately need in a timely fashion. It also makes it more likely that these detained people will attempt suicide or self-harm, giving rise to more medical problems in the midst of a pandemic. Isolation also increases the amount of physical contact between staff and detained people—in the form of increased handcuffing, escorting individuals to and from the showers, and increased use of force due to the increased psychological stress of isolation. My expert opinion is that the use of isolation or lockdown is not a medically appropriate method for abating the substantial risks of COVID19.
57. Nothing in the April 10 Guidance has changed my conclusion that COVID-19 will likely spread rapidly throughout immigration detention facilities, and specifically at Mesa Verde Detention Center and Yuba County Jail.
Conclusions 58. Given the lack of testing, known periods of infection without symptoms and the likelihood of virus transmission from people who do not have symptoms, every congregate setting should expect infection within the facility. Intramural transmission is highly likely. The facilities, living arrangements, and sanitation and hygiene practices at both Mesa Verde and Yuba lead me to conclude that these facilities have a very high risk of infection, if there is not infection already at the facilities.
59. The facilities fail to meet minimally acceptable standards of social distancing, putting the residents at grave and unacceptable risk of pervasive infections, leading to serious illness and death. The only way to avoid these unacceptable risk is to materially reduce the

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population, implement social distancing as described herein, and ensure appropriate hygiene.
60. Releasing individuals, and prioritizing the most vulnerable, reduces the burden on local health care resources, as it reduces the risk of transmission of the disease to a large number of people living in close proximity for an extended period of time. It also reduces the risk of transmission to staff. Even with the best-laid plans to address the spread of COVID-19 in detention facilities, the release of individuals, prioritizing the most medically vulnerable individuals, is a key part of a risk mitigation strategy. In my opinion, as a matter of public health it is imperative to release significant numbers of people from detention at the immigration detention centers at Mesa Verde and Yuba County Jail, prioritizing those who are most vulnerable, given the heightened risks to their health and safety, especially given the lack of a viable vaccine for prevention or effective treatment at this stage.
61. Any suggestion that the moment for medically necessary interventions, including release, arrives only when a case of COVID-19 has been confirmed inside an ICE detention facility is wrong, without any basis in medical science, and is dangerous.
62. Based on my experience working on health care in detention facilities and my review of the literature concerning the coronavirus, for the reasons outlined in this declaration, it is my opinion that immigration detention facilities at Mesa Verde and Yuba are not prepared to prevent the spread of COVID-19, treat those who are most medically vulnerable, and contain any outbreak. The risk of transmission of infection at each of these facilities is very high.
63. Immigration detention centers are not equipped to care for those who are severely affected by COVID-19. If individuals are not released, care for those who become sick with COVID-19 will overburden the limited health care resources of the detention center and the broader community.
Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct.
Executed this 19th day in April, 2020 in New York City, New York.
Robert B. Greifinger, M.D.

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ROBERT B. GREIFINGER, M.D.

380 Riverside Drive, Apt 4F New York, New York 10025

(646) 559-5279 bob@rgreifinger.com

Physician consultant with extensive experience in development and management of complex community and institutional health care programs. Demonstrated strength in leadership, program development, negotiation, communication, operations and the bridging of clinical and public policy interests. Teacher of health and criminal justice.

SUMMARY OF EXPERIENCE
MEDICAL MANAGEMENT AND QUALITY IMPROVEMENT SERVICES 1995-Present
Consultant on the design, management, operations, quality improvement, and utilization management for correctional health care systems.
•   Recent clients include (among others) the U.S. Department of Justice Civil Rights Division, monitoring multiple correctional systems and the U.S. Department of Homeland Security Office of Civil Rights and Civil Liberties. Federal court monitor for the Metropolitan Detention Center, Albuquerque, New Mexico, Orleans Parish Sheriff’s Office, New Orleans, Louisiana, and MiamiDade Corrections and Rehabilitation Department.
•   National Commission on Correctional Health Care. Principal Investigator for an NIJ funded project to make recommendations to Congress on identifying public health opportunities in soon-to-bereleased inmates.
•   Associate Editor, Puisis M (ed), Clinical Practice in Correctional Medicine, Second Edition, St. Louis. Mosby 2006.
•   Editor, Greifinger, RB (ed), Public Health Behind Bars: From Prisons to Communities, New York. Springer 2007.
•   John Jay College of Criminal Justice. Professor (adjunct) of Health and Criminal Justice and Distinguished Research Fellow 2005 – 2016.
•   Co-Editor, International Journal of Prison Health 2010 – 2016.

NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES

1989 - 1995

Operating budget of $1.4 Billion. Responsible for inmate safety, program, and security. Sixty-nine facilities housing over 68,000 inmates with 30,000 employees.

Deputy Commissioner/Chief Medical Officer, 1989 - 1995

•   Operating budget of $140 million; health services staff of 1,100. Accountable for inmate health services and public health. Directed major initiatives in policy and program development, quality and utilization management.

•   Developed and implemented comprehensive program for HIV prevention, surveillance, education, and treatment in nation's largest AIDS medical practice.

•   Managed the rapid implementation of an infection control program responding to a major outbreak of multidrug-resistant tuberculosis. Helped bring the nation's tuberculosis epidemic to public attention.

•   Developed $360 million five-year capital plan for inmate health services. Opened the first of five regional medical units for multispecialty ambulatory and long-term care.

•   Implemented a centralized and regional pharmacy system, improving quality, service and cost management.

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ROBERT B. GREIFINGER, M.D.

MONTEFIORE MEDICAL CENTER, Bronx, NY

1985 - 1989

A major academic medical center with 8,000 employees and annual revenue of $500 million.

Vice President, Health Care Systems, 1986 - 1989

Director, Alternative Delivery Systems, 1985 - 1986

Operating budget of $60 million with 1,100 employees. Managed a multi-specialty group, a home health agency, and prison health programs.

•   Negotiated contracts, including bundled service, risk capitation, fee-for-service arrangements, and major service contracts. Developed a high technology home care joint venture.

•   Taught epidemiology and health care organization at Albert Einstein College of Medicine. Lectured nationally on health care delivery and managed care.

•   Conceived and collaborated in development of a consortium of six academic medical centers, leading to a metropolitan area-wide, joint venture HMO. Organized a network of physicians to contract with HMO's preparing for cost-containment.

WESTCHESTER COMMUNITY HEALTH PLAN, White Plains, NY

1980 - 1985

Independent, not-for-profit, staff-model HMO, acquired by Kaiser-Permanente in 1985. Operating revenue $17 million with 200 employees and 27,000 members.

Vice President and Medical Director

Chief medical officer and COO. Managed the delivery of comprehensive medical services. Accountable to the Board of Directors for quality assurance and utilization management. Practiced pediatrics.

•   Accomplished turnaround with automated utilization management, improved service, sound personnel management principles, and quality management programs.

•   Implemented performance based compensation program.

COMMUNITY HEALTH PLAN OF SUFFOLK, INC.

1977 - 1980

Community based, not-for-profit, staff model HMO, with enrollment of 18,000.

Medical Director

•   Developed and operated clinical services. Accountable for quality of care. Practiced clinical pediatrics, and taught community health and medical ethics at SUNY Stony Brook School of Medicine.

MONTEFIORE MEDICAL CENTER, Bronx, NY

1976 - 1977

Residency Program in Social Medicine, Deputy Director, 1976-1977

Unique clinical training program focused on community health and change agentry. Developed curriculum and supervised 40 residents in internal medicine, pediatrics and family medicine.

UNITED STATES PUBLIC HEALTH SERVICE

1972 - 1974

Commissioned officer in the National Health Service Corps. Functioned as medical director and family physician in a federally funded neighborhood health center in Rock Island, Illinois. Honorable Discharge.

Case 3:20-cv-02731-VC Document 5-2 Filed 04/20/20 Page 24 of 30
ROBERT B. GREIFINGER, M.D.

FACULTY APPOINTMENTS
1976 - 2002 Assistant Professor of Epidemiology and Social Medicine, Albert Einstein College of Medicine
2005 - 2016 Professor (adjunct) of Health and Criminal Justice and Distinguished Research Fellow, John Jay College of Criminal Justice

NATIONAL COMMITTEE FOR QUALITY ASSURANCE

Worked with NCQA since its inception in 1980. Began training surveyors in 1989, and continued as faculty for NCQA sponsored educational sessions. Served for six years as a charter member of the Review Oversight (accreditation) Committee. Served on the Reconsideration (appeals) Committee for six years. Surveyed dozens of managed care organizations, and reviewed several hundred quality management programs.

OTHER PROFESSIONAL ACTIVITIES

2012 – present Member, Board of Directors, Prison Legal Services, New York

2012 – present Member, Board of Directors, National Health Law Program

2011 – 2015 Member, Board of Directors, Academic Consortium of Criminal Justice Health

2010 - 2016 Co-editor, International Journal of Prisoner Health

2009

Recipient, B. Jaye Anno Award for Lifetime Achievement in Communication

2007-2015 Member, National Advisory Group on Academic Correctional Health Care

2007

Recipient, Armond Start Award, Society of Correctional Physicians

2005 - 2011 Member, Advisory Board to the Prisoner Reentry Institute, John Jay College

2002 - present Member, Editorial Board, Journal of Correctional Health Care

2002 - present Peer reviewer for multiple journals, including Journal of Correctional Health Care, International Journal of Prison Health, Journal of Urban Health, Journal of Public Health Policy, Annals of Internal Medicine, American Journal of Public Health, Health Affairs, and American Journal of Drug and Alcohol Abuse.

2001 - 2003 Member, Advisory Board to CDC on Prevention of Viral Hepatitis in Correctional Facilities

1999 - 2003 Member, Advisory Board to CDC on Prevention and Control of Tuberculosis in Jails

1997 - 2003 1997 - 2001

Member, Reconsideration Committee, NCQA
Moderator, Optimal Management of HIV in Correctional Systems, World Health Communications

1997 - 2000 Member, Reproductive Health Guidelines Task Force, CDC

1993 - 1995 Co-chair, AIDS Clinical Trial Community Advisory Board, Albany Medical Center 1992 - Present Society of Correctional Physicians

1991 - 1997 Member, Review Oversight (accreditation) Committee, NCQA

Case 3:20-cv-02731-VC Document 5-2 Filed 04/20/20 Page 25 of 30
ROBERT B. GREIFINGER, M.D.
1983 - 1985 Executive Committee, Medical Directors' Division, Group Health Association of America (Secretary, 1984-1985) EDUCATION
University of Pennsylvania, College of Arts and Sciences, Philadelphia; B.A., 1967 (Amer. Civilization) University of Maryland, School of Medicine, Baltimore; M.D., 1971 Residency Program in Social Medicine (Pediatrics), Montefiore Medical Center, Bronx, NY; 1971-1972,
1974-1976, Chief Resident 1975-1976
CERTIFICATION Diplomate, National Board of Medical Examiners, 1971 Diplomate, American Board of Pediatrics, 1976 Fellow, American Academy of Pediatrics, 1977 Fellow, American College of Physician Executives, 1983 Fellow, American College of Correctional Physicians (formerly Society of Correctional Physicians), 2000 License: New York, Pennsylvania (inactive)

Case 3:20-cv-02731-VC Document 5-2 Filed 04/20/20 Page 26 of 30
ROBERT B. GREIFINGER, M.D.

PUBLICATIONS

Updated February 2018

Greifinger RB, A Summer Program in Life Sciences. Journal of Medical Education 1970; 45: 620-622.
Greifinger RB, Sidel VW, American Medicine - Charity Begins at Home. Environment 1977; 18(4): 718.
Greifinger RB, An Encounter With the System. The New Physician 1977; 26(9): 36-37.
Greifinger RB, Sidel VW, Career Opportunities in Medicine. In Tice's(eds) Practice of Medicine. Hagerstown: Harper & Row 1977; 1(12): 1-49.
Greifinger RB, Grossman RL, Toward a Language of Health. Health Values 1977; 1(5): 207-209.
Grossman RL, Greifinger RB, Encouraging Continued Growth in the Elderly. In Carnevali DL & Patrick M (eds), Nursing Management for the Elderly. Philadelphia: Lippincott 1979: 543-552.
Greifinger RB, Jonas S, Ambulatory Care. In Jonas S (ed), Health Care Delivery in the United States (second edition). New York: Springer 1980: 126-168.
Greifinger RB, Toward a New Direction in Health Screening. In Health Promotion: Who Needs It? Washington: Medical Directors Division, Group Health Association of America 1981: 61-67.
Greifinger RB, Sidel VW, American Medicine. In Lee, Brown & Red (eds), The Nation's Health. San Francisco: Boyd & Fraser 1981: 122-134.
Greifinger RB, Bluestone MS, Building Physician Alliances for Cost-Containment. Health Care Management Review 1986: 63-72.
Greifinger RB, An Ethical Model for Improving the Patient-Physician Relationship. Chicago: Inquiry 1988: 25(4): 467-468.
Glaser J, DeCorato DR, Greifinger RB, Measles Antibody Status of HIV-Infected Prison Inmates. Journal of Acquired Immunodeficiency Syndrome 1991; 4(5): 540-541.
Ryan C, Levy ME, Greifinger RB, et al, HIV Prevention in the U.S. Correctional System, 1991. MMWR 1992; 41(22): 389-397.
Greifinger RB, Keefus C, Grabau J, et al, Transmission of Multidrug- resistant Tuberculosis Among Immunocompromised Persons in a Correctional System. MMWR 1992; 41(26): 509-511.
Greifinger RB, Tuberculosis Behind Bars, in Bruce C Vladeck ed, The Tuberculosis Revival: Individual Rights and Societal Obligations In a Time of AIDS. New York: United Hospital Fund 1992: 5965.
Bastadjian S, Greifinger RB, Glaser JB. Clinical characteristics of male homosexual/bisexual HIVinfected inmates. J AIDS 1992;5:744-5.
Glaser JB, Greifinger R. Measles antibodies in HIV-infected adults. J Infect Dis. 1992 Mar;165(3):589.
Glaser J, Greifinger RB, Correctional Health Care: A Public Health Opportunity. Annals of Internal Medicine 1993; 118(2): 139-145.
Greifinger RB, Glaser JG and Heywood NJ, Tuberculosis In Prison: Balancing Justice and Public Health, Journal of Law, Medicine and Ethics 1993; 21 (3-4):332-341.

Case 3:20-cv-02731-VC Document 5-2 Filed 04/20/20 Page 27 of 30
ROBERT B. GREIFINGER, M.D.
Valway SE, Greifinger RB, Papania M et al, Multidrug Resistant Tuberculosis in the New York State Prison System, 1990-1991, Journal of Infectious Disease 1994; 170(1):151-156.
Wolfe P, Greifinger RB, Prisoners in Service of Public Health: Focus New York State. New York Health Sciences Journal 1994 1(1):35-43.
Valway SE, Richards S, Kovacovich J, Greifinger RB et al, Outbreak of Multidrug-Resistant Tuberculosis in a New York State Prison, 1991. American Journal of Epidemiology 1994 July 15; 140(2):113-22.
Smith HE, Smith LD, Menon A and Greifinger RB, Management of HIV/AIDS in Forensic Settings, in Cournos F(ed), AIDS and People with Severe Mental Illness: A Handbook for Mental Health Professionals. New Haven: Yale Press 1996.
Greifinger RB, La Plus Ca Change . . . ., Public Health Reports 1996 July/August; 111(4):328-9.
Greifinger RB, TB and HIV, Health and Hygiene 1997;18,20-22.
Greifinger RB, Horn M, “Quality Improvement Through Care Management,” chapter in Puisis M (ed), Clinical Practice in Correctional Medicine, St. Louis: Mosby 1998.
Greifinger RB, Glaser JM, “Desmoteric Medicine and the Public’s Health,” chapter in Puisis M (ed), Clinical Practice in Correctional Medicine, St. Louis: Mosby 1998.
Greifinger RB, Commentary: Is It Politic to Limit Our Compassion? Journal of Law, Medicine & Ethics, 27(1999):213-16.
Greifinger RB, Glaser JG and Heywood NJ, “Tuberculosis In Prison: Balancing Justice and Public Health,” chapter in Stern V (ed), Sentenced to die? The problem of TB in prisons in Eastern Europe and Central Asia, London: International Centre for Prison Studies, 1999.
Greifinger RB (Principal Investigator). National Commission on Correctional Healthcare. The Health Status of Soon-to-be-Released Inmates, a Report to Congress. August 2002. http://www.ncchc.org/pubs_stbr.html.
Kraut JR, Haddix AC, Carande-Kulis V and Greifinger RB, Cost-effectiveness of Routine Screening for Sexually Transmitted Diseases among inmates in United States Prisons and Jails. National Commission on Correctional Healthcare. The Health Status of Soon-to-be-Released Inmates, a Report to Congress. August 2002. http://www.ncchc.org/stbr/Volume2/Report5_Kraut.pdf.
Hornung CA, Greifinger RB, and Gadre S, A Projection Model of the Prevalence of Selected Chronic Diseases in the Inmate Population. National Commission on Correctional Healthcare. The Health Status of Soon-to-be-Released Inmates, a Report to Congress. August 2002. http://www.ncchc.org/stbr/Volume2/Report3_Hornung.pdf.
Hornung CA, Anno BJ, Greifinger RB, and Gadre S, Health Care for Soon-to-be-Released Inmates: A Survey of State Prison Systems,” National Commission on Correctional Healthcare. The Health Status of Soon-to-be-Released Inmates, a Report to Congress. August 2002. http://www.ncchc.org/stbr/Volume2/Report1_Hornung.pdf.
Patterson RF & Greifinger RB, Insiders as Outsiders: Race, Gender and Cultural Considerations Affecting Health Outcome After Release to the Community, Journal of Correctional Health Care 10:3 2003; 399-436.
Howell E & Greifinger RB, What is Known about the Cost-Effectiveness of Health Services for Returning Inmates? Journal of Correctional Health Care 10:3 2003; 437-455.
Kraut JR, Haddix AC, Carande-Kulis V and Greifinger RB, Cost-effectiveness of Routine Screening for Sexually Transmitted Diseases among inmates in United States Prisons and Jails, J Urban Health:

Case 3:20-cv-02731-VC Document 5-2 Filed 04/20/20 Page 28 of 30
ROBERT B. GREIFINGER, M.D.
Bulletin of the New York Academy of Medicine 2004: 81(3):453-471. (Finalist, Charles C. Shepard Science Award)
Greifinger RB. Health Status in U.S. and Russian Prisons: More in Common, Less in Contrast. Journal of Public Health Policy 2005 26:60-68. http://www.palgrave-journals.com/cgitaf/DynaPage.taf?file=/jphp/journal/v26/n1/full/3200003a.html&filetype=pdf
Greifinger RB. Health Care Quality Through Care Management, M. Puisis (ed). Clinical Practice in Correctional Medicine, Second Edition. St. Louis. Mosby 2006: pp. 510-519.
Greifinger RB. Pocket Guide Series on tuberculosis, HIV, MRSA, sexually transmitted disease, viral hepatitis and management of outbreaks. See http://www.achsa.org/displaycommon.cfm?an=1&subarticlenbr=23
Greifinger RB. Inmates are Public Health Sentinels. Washington University Journal of Law and Policy. Volume 22 (2006) 253-64.
Greifinger RB. Disabled Prisoners and “Reasonable Accommodation.” Journal of Criminal Justice Ethics. Winter Spring 2006: 2, 53-55.
Mellow J, Greifinger RB. Successful Reentry: The Perspective of Private Health Care Providers. Journal of Urban Health. November 2006 doi:10.1007/s11524-006-9131-9.
Mellow J, Greifinger RB. The Evolving Standard of Decency: Post-Release Planning? Journal of Correctional Health Care January 2008 14(1):21-30.
Williams B, Greifinger RB. Elder Care in Jails and Prisons: Are We Prepared? Journal of Correctional Health Care January 2008 14(1):4-5.
Greifinger RB (editor). Public Health Behind Bars: From Prisons to Communities. Springer. New York 2007.
Greifinger RB. Thirty Years Since Estelle v. Gamble: Looking Forward Not Wayward. Greifinger, RB (ed). Public Health Behind Bars: From Prisons to Communities. Springer. New York 2007.
Patterson RF, Greifinger RB. Treatment of Mental Illness in Correctional Settings. Greifinger, RB (ed). Public Health Behind Bars: From Prisons to Communities. Springer. New York 2007.
MacDonald M, Greifinger RB. and Kane D. Use of electro-muscular disruption devices behind bars: Progress or regress. Editorial',International Journal of Prisoner Health,4:4,169 — 171. 2009.
Hoge SK, Greifinger RB, Lundquist T, Mellow J. Mental Health Performance Measurement in Corrections. International Journal of Offender Therapy and Criminology, 53:6 634-47, 2009. Abstract accessed January 12, 2010 at http://www.ncjrs.gov/App/Publications/abstract.aspx?ID=251100.
Williams BA, Lindquist K . . . Greifinger RB et al. Caregiving Behind Bars: Correctional Officer Reports of Disability in Geriatric Prisoners. J Am Geriatr Soc 57:1286–1292, 2009.
Baillargeon J, Williams B . . . Greifinger RB, et al. Parole Revocation among Prison Inmates with Psychiatric and Substance Use Disorders. Psychiatric Services 60:11: 1516-21, 2009.
Parvez FM, Lobato MN, Greifinger RB. Tuberculosis Control: Lessons for Outbreak Preparedness in Correctional Facilities. Journal of Correctional Health Care OnlineFirst, published on May 12, 2010 as doi:10.1177/1078345810367593.
Stern MF, Greifinger RB, Mellow J. Patient Safety: Moving the Bar in Prison Health Care Standards. Am J Public Health. Nov 2010; 100: 2103 - 2110.
Blair P, Greifinger R, Stone TH, & Somers S. Increasing Access to Health Insurance Coverage for Pretrial Detainees and Individuals Transitioning from Correctional Facilities Under the Patient

Case 3:20-cv-02731-VC Document 5-2 Filed 04/20/20 Page 29 of 30
ROBERT B. GREIFINGER, M.D.
Protection and Affordable Care Act. American Bar Association. Accessed on March 23, 2011 at http://www.cochs.org/files/ABA/aba_final.pdf
Williams BA, Sudore RL, Greifinger R, Morrison RS. Balancing Punishment and Compassion for Seriously Ill Prisoners. Ann Int Med 2011; 155:122-126.
Weilandt C, Greifinger RB , Hariga F. HIV in Prison: New Situation and Risk Assessment Toolkit. Int. J. Prisoner Health 2011; 7(2/3):17-22.
Williams, B., Stern, M., Mellow, J., Safer, M., Greifinger, RB. Aging in correctional custody: Setting a policy agenda for older prisoner health. Am J Public Health. Published online ahead of print June 14, 2012: e1– e7. doi:10.2105/AJPH.2012.300704.
Greifinger, RB. Independent review of clinical health services for prisoners. Int. J. Prisoner Health 2012; 8(3/4):141-150.
Greifinger RB. Facing the facts, Int J Prisoner Health, Vol. 8 (3/4) (editorial).
Greifinger, RB. The Acid Bath of Cynicism. Correctional Law Reporter June/July 2013: 3, 14, 16.
Ahalt C, Trestman RL, Rich JD, Greifinger RB, Williams BA. Paying the price: the pressing need for quality, cost and outcomes data to improve correctional healthcare for older prisoners. J Am Geriatr Soc 61:2013– 2019, 2013.
Williams BA, Ahalt C, Greifinger RB. The older prisoner and complex medical care. Chapter in WHO guide Prisons and Health. WHO Copenhagen. 2014: 165-170.
Rich JD, Chandler R . .. . Greifinger RB et al. How health care reform can transform the health of criminal justice-involved individuals. Health Affairs 33, No. 3(2014: -
Allen SA, Greifinger RB. Asserting Control: A Cautionary Tale. International Journal of Prisoner Health 11:3, 2015.
Junod V, Wolff H, Scholten W, Novet B, Greifinger R, Dickson C & Simon O. Methadone versus torture: The perspective of the European Court of Human Rights. Heroin Addict Relat Clin Probl. Heroin Addict Relat Clin Probl 2018; 20(1): 31-36.
Pont J, Enggist S, Stover H, Williams B, Greifinger R, Wolff H. Prison Health Care Governance: Guaranteeing Clinical Independence. Published online ahead of print February 22, 2018.
ABSTRACTS & RESEARCH PRESENTATIONS Mikl J, Kelley K, Smith P, Greifinger RB, Morse D, Survival Among New York State Prison Inmates
With AIDS. Florence: Seventh International Conference on AIDS 1991 (poster session).
Sherman M, Coles B, Buehler J, Greifinger RB, Smith P, The HIV Epidemic in Inmates. Atlanta: Centers for Disease Control. 1991
Mikl J, Kelley K, Smith P, Greifinger RB, Morse D, Survival Among New York State Prison Inmates With AIDS, American Public Health Association. 1991 (poster session)
Mikl J, Smith P, Greifinger RB, Forte A, Foster J, Morse D, HIV Seroprevalence of Male Inmates Entering the New York State Correctional System. American Public Health Association. 1991 (poster session)
Valway SE, Richards S, Kovacovich J, Greifinger R, Crawford J, Dooley SW. Transmission of Multidrug-resistant Tuberculosis in a New York State Prison, 1991. Abstract No 15-15, In: World Congress on TB Program and Abstracts, Washington, D.C., November, 1992.

Case 3:20-cv-02731-VC Document 5-2 Filed 04/20/20 Page 30 of 30
ROBERT B. GREIFINGER, M.D.
Mikl J, Smith PF, Greifinger RB, HIV Seroprevalence Among New York State Prison Entrants. Ninth International Conference on AIDS 1993 (Poster Session)
Hornung CA, Greifinger RB, McKinney WP. Projected Prevalence of Diabetes Mellitus in the Incarcerated Population. J Gen Int Med 14 (Supplement 2):40, April 1999.

Case 3:20-cv-02731-VC Document 5-3 Filed 04/20/20 Page 1 of 39

1 WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org
2 SEAN RIORDAN (SBN 255752) sriordan@aclunc.org
3 ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org
4 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN
5 CALIFORNIA 39 Drumm Street
6 San Francisco, CA 94111 Telephone: (415) 621-2493
7 Facsimile: (415) 255-8437
8 Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page
9

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: 415-553-9319 Fax: 415-553-9810

10

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12

13 ANGEL DE JESUS ZEPEDA RIVAS,

BRENDA RUIZ TOVAR, LAWRENCE

14 MWAURA, LUCIANO GONZALO

MENDOZA JERONIMO, CORAIMA

15 YARITZA SANCHEZ NUÑEZ, JAVIER

ALFARO, DUNG TUAN DANG,

16

Petitioners-Plaintiffs,

DECLARATION OF DR. RANIT MISHORI (MD, MHS, FAAFP)

17

v.

18 DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration
19 and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior
20 Official Performing the Duties of the Director of the U.S. Immigration and Customs
21 Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP,
22 INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,
23 Respondents-Defendants.
24

25

26

27

28

DECLARATION OF DR. RANIT MISHORI (MD, MHS, FAAFP)

Case 3:20-cv-02731-VC Document 5-3 Filed 04/20/20 Page 2 of 39

1 BREE BERNWANGER* (NY SBN 5036397) MARTIN S. SCHENKER (SBN 109828)

bbernwanger@lccrsf.org

mschenker@cooley.com

2 TIFANEI RESSL-MOYER (SBN 319721)

COOLEY LLP

tresslmoyer@lccrsf.org

101 California Street, 5th Floor

3 HAYDEN RODARTE (SBN 329432)

San Francisco, CA 94111

hrodarte@lccrsf.org

Telephone: (415) 693-2000

4 LAWYERS’ COMMITTEE FOR

Facsimile: (415) 693-2222

CIVIL RIGHTS OF

5 SAN FRANCISCO BAY AREA

TIMOTHY W. COOK (Mass. BBO# 688688)*

131 Steuart St #400

tcook@cooley.com

6 San Francisco, CA 94105

FRANCISCO M. UNGER (Mass. BBO#

Telephone: (415) 814-7631

698807)*

7

funger@cooley.com

JUDAH LAKIN (SBN 307740)

COOLEY LLP

8 judah@lakinwille.com

500 Boylston Street

AMALIA WILLE (SBN 293342)

Boston, MA 02116

9 amalia@lakinwille.com

Telephone: (617) 937-2300

LAKIN & WILLE LLP

Facsimile: (617) 937-2400

10 1939 Harrison Street, Suite 420

Oakland, CA 94612

11 Telephone: (510) 379-9216

Facsimile: (510) 379-9219

12

JORDAN WELLS (SBN 326491)

13 jwells@aclusocal.org

STEPHANIE PADILLA (SBN 321568)

14 spadilla@aclusocal.org

AMERICAN CIVIL LIBERTIES UNION

15 FOUNDATION OF SOUTHERN CALIFORNIA

1313 West Eighth Street

16 Los Angeles, CA 90017

Telephone: (213) 977-9500

17 Facsimile: (213) 977-5297

18

Attorneys for Petitioners-Plaintiffs

*Motion for Admission Pro Hac Vice Forthcoming

19

20

21

22

23

24

25

26

27

28

DECLARATION OF DR. RANIT MISHORI (MD, MHS, FAAFP)

Case 3:20-cv-02731-VC Document 5-3 Filed 04/20/20 Page 3 of 39

1

Declaration of Dr. Ranit Mishori (MD, MHS, FAAFP)

2 Pursuant to 28 U.S.C. § 1746, I hereby declare as follows:

3 I. Background

4

1. I am Dr. Ranit Mishori. I am a senior medical advisor at Physicians for Human

5 Rights (PHR), and Professor of family medicine at the Georgetown University School of

6 Medicine, where I am the director of the department’s Global Health Initiatives, Health Policy

7 fellowship and our practice-based research network. A fellow of the American Academy of

8 Family Physicians and Diplomate of the American Board of Family Medicine, I did my

9 residency training at the Georgetown University/Providence Hospital Family Medicine

10 Residency program. I received my medical degree from Georgetown University School of

11 Medicine and a master’s degree in International Health from the Johns Hopkins Bloomberg

12 School of Public Health, in the Disease Control and Prevention Track (focusing on the science

13 of how to halt the spread of infectious disease).

14

2. I am the faculty leader for Georgetown University School of Medicine’s

15 Correctional Health Interest group, where I supervise medical students placed at various area

16 jails, prisons and detention centers. In addition, I am the director of Georgetown University’s

17 Asylum program which focuses on the care and medico-legal issues of asylum seekers,

18 including immigration detention. I have written extensively and given talks and lectures about

19 such issues nationally and internationally. In my role as senior medical advisor at PHR (and

20 prior to that, as a consultant for PHR), I have reviewed and analyzed dozens of cases related to

21 health outcomes of individuals in correctional facilities, and advised the organization and other

22 partners (civil society, legal aid organizations and the media) about issues related to

23 incarceration, including hunger strikes, medical care quality, communicable disease

24 management, violence, and care of pregnant women in such settings.1

25
1 See, e.g., Ranit Mishori, Risk Behind Bars: Coronavirus and Immigration Detention, The Hill (Mar. 17, 2020),
26 https://thehill.com/opinion/immigration/487986-risk-behind-bars-coronavirus-and-immigration-detention; Amanda
Holpuch, Coronavirus Inevitable in Prison-Like US Immigration Centers, Doctors Say, The Guardian (Mar. 11,
27

28
1 DECLARATION OF DR. RANIT MISHORI (MD, MHS, FAAFP)

Case 3:20-cv-02731-VC Document 5-3 Filed 04/20/20 Page 4 of 39

1

3. As an attending physician at the Georgetown University/Washington Hospital

2 Center Family Medicine Residency Program, I work with urban underserved populations,

3 including the homeless, formerly incarcerated individuals, immigrants and refugees. I routinely

4 come in contact with victims of abuse, trauma and poverty where I regularly assess their

5 medical as well as psycho-social needs in the context of their social-determinants of health

6 (such as housing and incarceration).

7

4. For four years I was an elected member of the American Academy of Family

8 Physicians’ Commission on the Health of the Public and Science, where I chaired the Public

9 Health Issues sub-committee. During that time, I was a one of the lead authors of the

10 Academy’s comprehensive position paper on Incarceration and Health.

11

5. My CV is attached as Exhibit A.

12 II. COVID-19 in Detention Centers

13

6. The novel coronavirus, officially known as SARS-CoV-2 (Coronavirus), causes

14 a disease known as COVID-19. The novel coronavirus is thought to pass from person to person

15 primarily through respiratory droplets (by coughing or sneezing) but it also survives on

16 surfaces for some period of time. It is possible that people can transmit the virus before they

17 start to show symptoms or for weeks after their symptoms resolve. In China, where

18 Coronavirus originated, the average infected person passed the virus on to 2-3 other people;

19 transmission occurred at a distance of 3-6 feet. The “contagiousness” of this novel

20 coronavirus—its R0 (the number of people who can get infected from a single infected

21 person)—is twice that of the flu. Not only is the virus very efficient at being transmitted

22

23
2020), https://www.theguardian.com/world/2020/mar/11/coronavirus-outbreak-us-immigration-centers; Abigail
24 Hauslohner, et al., Coronavirus Could Pose Serious Concern in ICE Jails, Immigration Courts, The Washington
Post (Mar. 12, 2020), https://www.washingtonpost.com/immigration/coronavirus-immigration
25 jails/2020/03/12/44b5e56a-646a-11ea-845d-e35b0234b136_story.html; Silvia Foster-Frau, Coronavirus Cases in
Migrant Detention Facilities Called ‘Inevitable’, Express News (Mar. 15, 2020)
26 https://www.expressnews.com/news/us-world/border-mexico/article/Whether-in-detention-or-in-Mexico-U-S-
15129447.php.
27

28
2 DECLARATION OF DR. RANIT MISHORI (MD, MHS, FAAFP)

Case 3:20-cv-02731-VC Document 5-3 Filed 04/20/20 Page 5 of 39

1 through droplets, everyone is at risk of infection because our immune systems have never been

2 exposed to or developed protective responses against this virus.

3

7. The risk posed by infectious diseases in immigration detention facilities is

4 significantly higher than in the community, both in terms of risk of exposure and transmission

5 and harm to individuals who become infected. There are several reasons this is the case, as

6 delineated further below.

7

8. Globally, outbreaks of contagious diseases are all too common in confined

8 detention settings and are more common than in the community at large. Though they contain a

9 captive population, these settings are not isolated from exposure. Staff arrive and leave on a

10 shift basis; there is no ability to adequately screen staff for new, asymptomatic infection.

11 Contractors and vendors also pass between communities and facilities and can bring infectious

12 diseases into facilities. People are often transported to, from, and between facilities.

13

9. Jails, prisons and detention centers often do not have access to vital community

14 health resources that can be crucial in identifying infectious diseases, including sufficient

15 testing equipment and laboratories. This is especially true when, as now, there is a shortage in

16 available test kits.

17

10. During an infectious disease outbreak, a containment strategy requires people

18 who are ill to be isolated and that caregivers have adequate personal protective equipment

19 (PPE). Jails and prisons are often under-resourced and ill-equipped to provide sufficient PPE

20 for people who are incarcerated and caregiving staff, increasing the risk for everyone in the

21 facility of a widespread outbreak. This is especially true when, as now, facemasks are already

22 in short supply.

23

11. When jailed or imprisoned, people have much less of an opportunity to protect

24 themselves by social distancing than they would in the community. Congregate settings such as

25 jails and prisons allow for rapid spread of infectious diseases that are transmitted person to

26 person, especially those passed by droplets through coughing and sneezing. When people live

27

28
3 DECLARATION OF DR. RANIT MISHORI (MD, MHS, FAAFP)

Case 3:20-cv-02731-VC Document 5-3 Filed 04/20/20 Page 6 of 39

1 in close, crowded quarters and must share dining halls, bathrooms, showers, and other common

2 areas, the opportunities for transmission are greater. Toilets, sinks, and showers are shared,

3 without disinfection between use. Spaces within jails and prisons are often also poorly

4 ventilated, which promotes highly efficient spread of diseases through droplets. Detainees

5 often have a small number of telephones that they share, and which form their only contact

6 with the outside world—including their family and lawyers. Placing someone in such a setting

7 therefore dramatically reduces their ability to protect themselves from being exposed to and

8 acquiring infectious diseases.

9

12. Additionally, jails and prisons are often unable to adequately provide the

10 mitigation recommendations recommended by medical and public health experts. During an

11 infectious disease outbreak, people can protect themselves by washing hands. Detention

12 centers, jails and prisons do not provide adequate opportunities to exercise necessary hygiene

13 measures, such as frequent handwashing or use of alcohol-based sanitizers when handwashing

14 is unavailable. Jails and prisons are often under-resourced and ill-equipped with sufficient hand

15 soap and alcohol-based sanitizers for people detained in these settings. High-touch surfaces

16 (doorknobs, light switches, etc.) should also be cleaned and disinfected regularly with bleach to

17 prevent virus spread, but this is often not done in jails and prisons.

18

13. People incarcerated in detention centers, jails and prisons are more susceptible to

19 acquiring and experiencing complications from infectious diseases than the population in the

20 community.2 This is because people in detention centers, jails, and prisons, for a variety of

21 reasons, have higher rates of chronic underlying health conditions, including diabetes, heart

22 disease, chronic lung disease, chronic liver disease, and suppressed immune systems from HIV

23 or other conditions, than people in the community.

24

25

26 2 Active Case Finding For Communicable Diseases in Prisons, 391 The Lancet 2186 (2018),
https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(18)31251-0/fulltext.
27

28
4 DECLARATION OF DR. RANIT MISHORI (MD, MHS, FAAFP)

Case 3:20-cv-02731-VC Document 5-3 Filed 04/20/20 Page 7 of 39

1

14. Detention centers, jails and prisons are often poorly equipped to manage

2 infectious disease outbreaks. Some detention centers, jails and prisons lack onsite medical

3 facilities or 24-hour medical care. The medical facilities at detention centers, jails and prisons

4 are almost never sufficiently equipped to handle large outbreaks of infectious diseases. To

5 prevent transmission of droplet-borne infectious diseases, people who are infected and

6 symptomatic need to be isolated in specialized negative pressure rooms. Most detention

7 centers, jails and prisons have few negative pressure rooms if any, and these may be already in

8 use by people with other conditions (including tuberculosis or influenza). ICE has admitted

9 that not all of the detention centers it oversees have even one.3 In the course of an infectious

10 disease outbreak, resources will become exhausted rapidly and any beds available will soon be

11 at capacity.

12

15. Even assuming adequate space, solitary confinement is not an effective disease

13 containment strategy. Isolation of people who are ill using solitary confinement is an

14 ineffective way to prevent transmission of the virus through droplets to others because, except

15 in specialized negative pressure rooms, air continues to flow outward from rooms to the rest of

16 the facility. Risk of exposure is thus increased to other people in prison and the staff. This

17 makes both containing the illness and caring for those who have become infected much more

18 difficult.

19

16. A coronavirus brought into a detention facility can quickly spread among the

20 dense detainee cohort. Soon many are sick—including high-risk groups such as those with

21 chronic conditions—quickly overwhelming the already strained health infrastructure within the

22 facility. This can also lead to a strain on the surrounding hospitals to which these individuals

23 may be transferred.

24

25
3 Brittny Mejia, ICE Says No Confirmed Coronavirus Among Detainees After 4 Test Negative, Los Angeles Times,
26 accessed Mar. 18, 2020, https://www.latimes.com/california/story/2020-03-10/ice-says-no-detainees-have-
coronavirus-four-being-tested
27

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5 DECLARATION OF DR. RANIT MISHORI (MD, MHS, FAAFP)

Case 3:20-cv-02731-VC Document 5-3 Filed 04/20/20 Page 8 of 39

1

17. These risks have all been borne out during past epidemics of influenza in jails

2 and prisons. For example, in 2012, the CDC reported an outbreak of influenza in 2 facilities in

3 Maine, resulting in two inmate deaths.4 Subsequent CDC investigation of 995 inmates and 235

4 staff members across the two facilities discovered insufficient supplies of influenza vaccine

5 and antiviral drugs for treatment of people who were ill and prophylaxis for people who were

6 exposed. During the H1N1-strain flu outbreak in 2009 (known as the “swine flu”), jails and

7 prisons experienced a disproportionately high number of cases.5 H1N1 is far less contagious

8 than coronavirus. These scenarios occurred in the “best case” of influenza, a viral infection for

9 which there was an effective and available vaccine and antiviral medications, unlike the

10 coronavirus COVID-19, for which there is currently neither.

11

18. In recent years in immigration detention facilities, overcrowding, poor hygiene

12 measures, medical negligence, and poor access to resources and medical care have led to

13 outbreaks of other infectious diseases as well, including mumps and chickenpox.

14

19. Additionally, as health systems inside facilities are taxed, people with chronic

15 underlying physical and mental health conditions and serious medical needs may not be able to

16 receive the care they need for these conditions.

17

20. We have ample basis to conclude that detention settings are equally unprepared

18 for the rapid spread of coronavirus. Not surprisingly, Chinese prison officials report that over

19 500 COVID-19 cases in the current outbreak stemmed from the Hubei province prisons. In

20 Israel, an entire prison was quarantined. Recognizing that the release of those incarcerated is

21 the only solution, jails in at least a dozen states in the United States have begun releasing

22 inmates. In Iran, over 80,000 prisoners were released as a means of preventing death in

23 government prisons. In the United Kingdom, the government released 300 immigrants from

24
4 Influenza Outbreaks at Two Correctional Facilities — Maine, March 2011, Centers for Disease Control and
25 Prevention, Apr. 6, 2020, https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6113a3.htm.
5 David M. Reutter, Swine Flu Widespread in Prisons and Jails, but Deaths are Few, Prison Legal News (Feb. 15,
26 2010), https://www.prisonlegalnews.org/news/2010/feb/15/swine-flu-widespread-in-prisons-and-jails-but-deaths-
are-few/.
27

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6 DECLARATION OF DR. RANIT MISHORI (MD, MHS, FAAFP)

Case 3:20-cv-02731-VC Document 5-3 Filed 04/20/20 Page 9 of 39

1 detention centers as a result of coronavirus. Major human rights organizations such as Human

2 Rights Watch, Physicians for Human Rights and Amnesty International have issued calls to

3 release those detained in immigration facilities to prevent the spread of coronavirus.

4 III. Conclusion and Recommendations

5

21. For the reasons above, it is my professional judgment that individuals placed in

6 ICE’s immigration detention centers are at a significantly higher risk of infection with

7 coronavirus as compared to the population in the community, and that they are at a

8 significantly higher risk of complications and poor outcomes if they do become infected. These

9 outcomes include severe illness (including respiratory, cardiac and kidney failure) and even

10 death.

11

22. Given that the only viable public health strategy available in the United States

12 currently is risk mitigation, reducing the size of the population in detention centers, jails and

13 prisons is crucially important to reducing the level of risk both for those within those facilities

14 and for the community at large. Not doing so is not only inadvisable but also reckless given the

15 public health realities we now face in the United States.

16

23. Even with the best-laid plans to address the spread of coronavirus in detention

17 facilities, the release of high-risk individuals is a key part of a risk mitigation strategy. In my

18 professional opinion, the only viable public health recommendation is to release people from

19 detention, with highest priority to those at most high risk, especially given the lack of an

20 effective vaccine for prevention or effective treatment for the disease at this stage. My

21 professional opinion is consistent with the view of the medical profession as a whole that there

22 are no conditions of confinement in carceral settings that can adequately manage the serious

23 risk of harm for high-risk individuals during the COVID-19 pandemic. So long as carceral

24 settings include congregate living spaces, shared bathrooms, and shared and confined spaces

25 for eating and recreating, there is no way to minimize the risks to an acceptable level in these

26 spaces.

27

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7 DECLARATION OF DR. RANIT MISHORI (MD, MHS, FAAFP)

Case 3:20-cv-02731-VC Document 5-3 Filed 04/20/20 Page 10 of 39

1

24. Immediate release is crucial for individuals who are older, with risks increasing at

2 around 50 years of age, and those with chronic illnesses or other preexisting conditions (e.g.,

3 blood disorders, chronic kidney or liver disease, immunosuppression, endocrine disorders

4 (including diabetes), metabolic disorders, heart and lung disease, neurological and neurologic

5 and neurodevelopmental conditions, and current or recent pregnancy).

6

25. Releasing people from incarceration is the best and safest way to prevent the spread

7 of disease and reduce the threat to the most vulnerable people who are detained, as well as for

8 vulnerable people in the community and for the public health. It is my professional opinion that

9 this step is both necessary and urgent. The window of opportunity is rapidly narrowing for

10 mitigation of COVID-19 in these facilities. Once a case of coronavirus is identified in a

11 facility, it will likely be too late to prevent a widespread outbreak.

12 IV. Expert Disclosures

13

26. I have not testified as an expert at trial or by deposition in the past four years.

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

15 Executed this 19th day of April, 2020 in Washington, D.C.

16 Ranit Mishori, M.D, MHS, FAAFP

17

18

19

.

20

21

22

23

24

25

26

27

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8 DECLARATION OF DR. RANIT MISHORI (MD, MHS, FAAFP)

Case 3:20-cv-02731-VC Document 5-3 Filed 04/20/20 Page 11 of 39

GEORGETOWN UNIVERSITY SCHOOL OF MEDICINE
Ranit Mishori, MD, MHS, FAAFP Professor of Family Medicine

PERSONAL INFORMATION

Home Address:

2729 Dumbarton St. NW, Washington, DC, 20007. Tel: 202-342-0227

Academic Office Address: Department of Family Medicine, Pre-Clinical GB-01D,

Georgetown University Medical Center, Tel: 202-687-3011.

Clinical Office:

MedStar Health Center – Family Medicine Spring Valley.

4910 Mass. Ave. NW, Washington, DC 20016. Tel: 202-237-0015

LICENSE/CERTIFICATION

State: DC, License No: MD036947. Exp: 12-31-2020 State: MD: License No: MD D0067073. Exp: 09-30-2021 Board Certification: Family Medicine. 2008; Recertification 2018.

EDUCATION • Residency: Georgetown University/Providence Hospital Family Medicine Residency April 2004-January 2008 • Medical Education: Georgetown University School of Medicine 1998-2002. Doctor of Medicine • Graduate Education: Johns Hopkins Bloomberg School of Public Health. 1997-1999. Master of Health Sciences (MHS), International Health • Undergraduate: Columbia University. 1995-1997. Pre-Med Post-Baccalaureate Program Certificate. • State University of New York. Empire State College. 1994-1996. Bachelor of Science, Communications

PROFESSIONAL EXPERIENCE

Clinical Appointments: • Family Physician. MedStar Health Center – Family Medicine Spring Valley 08-2011 – present • Family Physician. Department of Ob-Gyn. Georgetown University Hospital. 3 PHC. 07-2008 – 07-2011 • Family Medicine Attending. Providence Hospital, Washington, DC February 2008 – Aug 2019.

Faculty Appointments and Positions. • Professor, Department of Family Medicine Medical Educator Track. July 2014- Present • Associate Professor, Department of Family Medicine. Medical Educator Track. April 2012 – 2014. • Assistant Professor, Department of Family Medicine. Medical Educator Track. Sept 2008 – April 2012 • Instructor, Department of Family Medicine. Medical Educator Track. February 2008 – September 2008 • Director, Health Policy Fellowship. 2017-Present. • Director, Health and Media Fellowship. 2013-Present. • Director, CAPRICORN, Georgetown’s Practice-Based Research Network (PBRN), 2013- Present • Director, Global Health Initiatives and Global Health Residency Track. January 2011 - Present. • Clerkship Director, Family Medicine Clerkship. 2009-2011. • Research Network Coordinator, Research Associate. CAPRICORN (Capital Area Practice Based Research
Network). Georgetown University Department of Family Medicine. 2003-2004

Case 3:20-cv-02731-VC Document 5-3 Filed 04/20/20 Page 12 of 39
Additional Work Experience • Senior Medical Advisor, Physicians for Human Rights. October 2019-Present • Health Policy Team Member (Co-Lead Women, Sexual and Reproductive Health). Pete Buttigieg Presidential
Campaign. April 2019 – Current. • Consulting Medical Expert. Physicians for Human Rights Program on Sexual Violence in Conflict Zones. 2011-
Sept 2019 • Contributing Health Editor. Parade Magazine. 2007-2010. • Freelance Health Reporter. The Washington Post. 2003-2017. • Television Producer/Editor. International News. Worldwide Television News (WTN); CBS News; European
Broadcasting Union (EBU); Israeli Defense Forces (IDF) Radio. Various Locations Worldwide. 1984-1994
HONORS AND AWARDS
• Member of small team awarded multiple awards for MediCapt (mobile app for documentation of Sexual Violence): MediCapt has received multiple awards, including: the Science and Human Rights Innovator Award from the American Association for the Advancement of Science (2019); New England Innovation Award in the nonprofit category for MediCapt; the Sexual Violence Research Initiative and World Bank Group Development Marketplace Award for Innovation in the Prevention and Response to Gender Based Violence (2019); the MIT Solve Award in the Frontlines of Health category (2018); and the USAID-Humanity United Tech Challenge for Atrocity Prevention competition in the Safe Documentation category (2013).
• Silver Award for Best Commentary, from the American Society of Healthcare Publication Editors. For editorial, “What Needs to Change to Make Deprescribing Doable” Family Practice Management. April 2019.
• Award, Medical/Health Award for Efforts on Behalf of Women with FGM/C. Women PEACE Foundation. Washington, DC October 2018.
• Dahlgren READ Nominee. Selected by peers and students to be featured as part of the annual Dahlgren READ campaign, which honors those who best exemplify the school’s commitment to cura personalis, “care of the whole person.” September 2016.
• Award, Leonard Tow Humanism in Medicine, Georgetown University Medical Center 2016 • Inductee, Gold Foundation, GUMC 2016 • Honoree, invited by the class of 2016 to give the “Past Medical Histories” lecture reflecting on a career in
medicine. September 2015. • Honoree, Community Faculty Appreciation Day. Family Medicine. Selected by the Students of the Georgetown
University School of Medicine. May 2015. • Finalist, Macy Foundation Scholar Program. April 2015. • GUMC Nominee. Macy Foundation Scholar Program. February 2015. • Awarded degree of Fellow by the American Academy of Family Physicians. October 2014 • Teaching Excellence Award (inpatient attending) given by the residents of the Georgetown
University/Providence Hospital Family Medicine Residency Program. June 2014 • Top Doctor, Washingtonian Magazine Annual Top Doctor Issue. 2014-2018 • First Prize, USAID-Humanity United Tech Challenge for Atrocity Prevention competition. Member of
Physician for Human Rights team that conceived of and designed a mobile forensic application, MediCapt. January 2013 • The John Eisenberg Career Development Award. Georgetown Women in Medicine. October 2010 • Emerging Leader Award. Society of Teachers of Family Medicine, annual STFM-NE conference/Family Medicine Education Consortium (FMEC). October 2009. • Featured on the cover of Parade Magazine, as one of “America’s Top Doctors”, alongside Sanjay Gupta and Francis Collins. September 2009. • Teaching Excellence Award given by the residents of the Georgetown University/Providence Hospital Family Medicine Residency Program. June 2009

Case 3:20-cv-02731-VC Document 5-3 Filed 04/20/20 Page 13 of 39

• Finalist, MORE (Media Orthopedic Reporting Excellence) Awards, The American Academy of Orthopedic Surgeons. “Do You Need This Surgery”, Parade Magazine. October 2008
• Nominee, Spring Golden Apple Award (class of 2011). May 2008. • Nominee, National Magazine Award (The Truth About Hormones, Parade Magazine). May 2008 • Natural Medicine Recognition Award. Georgetown University/Providence Hospital Family Medicine
Residency Program. June 2007 • Nominated and Selected. Bertelsmann Foundation Young Leaders Fellowship Network. June 2007. • 3rd Place, Providence Hospital Resident Research Day. Providence Hospital, Washington, DC. March 2007 • Gold Triangle Award, Health Writing, Parade Magazine. American Academy of Dermatology. March 2004 • International Programs Award. Georgetown University School of Medicine. May 2002 • Young Ambassador. Vienna, Austria. Selected to represent the State of Israel in political, social and cultural
dialogues with Austrian students and youth. October-December 1987.

PROFESSIONAL SOCIETY MEMBERSHIP

• American Academy of Family Physicians

2002-present

• American Medical Association

2000-present

• Society of Teachers of Family Medicine

2008-present

• Association of Health Care Journalists

2004-present

• American Public Health Association

2003-Present

• Association Prevention Teaching and Research APTR 2010-2013

• Global Health Council

2003-2012

PUBLIC AND PROFESSIONAL SERVICE

International and National Committees
• Member, Steering Committee. US End FGM/C Network. 2018-present.
• Member. Health Equity Committee. WONCA (World Organization of Family Doctors). 2018-present.
• Member. Istanbul Protocol Supplement Project. Working Group: Ethical Codes. 2018-present.
• Chair and Founder, US Clinician Network on FGM. 2016-present.
• Vice-Convenor WONCA (World Organization of Family Doctors), Executive Committee, Group on Conflict & Catastrophe Medicine 2015-2018.
• Chair, Healthcare Working group. First annual US End FGM/C Summit. Washington, DC, July-December 2016.
• American Academy of Family Physicians (AAFP) 2014-present. ▪ Representative, Amgen 2019 Health Equity Summit. April 2019. ▪ Appointed Commissioner, Health of the Public and Science (CHPS) 2014-2018. Sub-committees: Clinical Practice Guidelines, Public Health. ▪ Chair, Committee on Public Health Issues (SPHI), American Academy of Family Physicians. 2015-2018. ▪ Chair, Working Group on Antimicrobial Resistance. AAFP. June 2016-2018. ▪ Liaison, Global Health MIG liaison to CHPS 2016-2017 ▪ Representative to the National Lupus Foundation Annual Meeting. Indianapolis, IN. June 2016 ▪ Board-appointed Liaison to the US National Breastfeeding Coalition (USBC). 2015-2017. ▪ Board-appointed Liaison to American College of Obstetrics and Gynecology’s (ACOG) Committee on Practice Bulletins on Obstetrics. 2014-2017. ▪ Board-appointed Liaison to the CDC and National Association of Chronic Disease Directors (NACDD) committee to develop a public health agenda for Lupus 2015 ▪ Member, AAFP selection committee Public Health Physician of the Year. 2013-2014.

Case 3:20-cv-02731-VC Document 5-3 Filed 04/20/20 Page 14 of 39
• Delegate (DC). DC-Academy of Family Physicians Chapter. Women’s Constituency. National Conference of Constituency Leaders (2016, 2014)
• Member, International Consortium for Torture Scar Documentation and Photo Atlas. Brussels, Belgium. 20152016.
• Member, Education and Research committees HEAL Trafficking, an international coalition of health professionals united against human trafficking. 2014-current.
• Member, Outcomes & Evaluation Center Advisory Leadership Committee. PCPCC (Patient-Centered Primary Care Collaborative). Current. December 2012-2015
• Member, US Masters Swimming Health Network. Sports Medicine & Science Committee, United States Masters Swimming. Authored Report: Transgender Rules in Sports Participation. October 2011-current.
• Member. STFM Group On Public Health in Medical School Education. July 2011-2013. • Advisory Committee Member. The SAGE Project: Assessing the Social Accountability of Global Health
Experiences. Society of Teachers of Family Medicine Group on Global Health. 2011-2013. • Medical Education Committee Member. Center for the Rural Development of Milot (CRUDEM)
Foundation. Haiti. 2011-2013 • Judge, Family Medicine Physician of the Year 2010, AAFP, 2009.
Board Membership • Director, elected to the Board of Directors of the National Physicians Alliance. 2017-2018. Chair,
Communications Committee. • Advisory Board Member. AAFP National Research Network (NRN). 2018-Current. • Member, steering committee Pregnancy Risk Assessment Monitoring System, (PRAMS). DC DOH 2016-Present • Member, Maternal Child Health Advisory Council DC DOH 2016-Present. • Advisory Board Member, AAFP Center for Global Health Initiatives (CGHI). July 2015 – 2018. • Elected Board Member. DC Chapter, American Academy of Family Medicine. 2-year term. 2012-14, 2014-
2016, 2017-2019, 2019-2021. Co-chair, Advocacy Committee • Board Member, Community Advisory Board (CAB) of the Georgetown- Howard Universities Center for
Clinical and Translational Science (GHUCCTS). 2013-Present • Elected Board Member. Healing Across the Divides (Middle East based NGO). 2010-2018 • Elected Member, Board of Directors. CC AHEC – Capital City Area Health Education Center. 2008
International and National Conference Committees/Abstract Reviewer
Abstract Reviewer: • NAPCRG 2017 annual meeting. Montreal, Canada November 2017. • 21st WONCA world Conference of Family Doctors. Rio de Janeiro, Brazil. November 2016. • Stanford Medicine X | Symplur Signals Research Challenge. July 2015. • WONCA (World Organization of Family Doctors) Annual Meeting. June 2013, Prague. • 7th Annual AAFP Global Health Workshop. Atlanta, GA, September 2016 • 2012 National Health Promotion Summit. Association for Prevention Teaching and Research (APTR).
November 2011.
Conference Planning Committee Member. • Multi-Sectoral Planning Committee. Healthcare Working group. First annual US End FGM/C Summit.
Washington, DC, July-December 2016. • CUGH (Consortium of Universities for Global Health) Annual Conference’s Review Committee November
2012-March 2013.

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• Torture Treatment Annual Meeting and Symposium. Co-Sponsored with the Department of Family Medicine. (February 2012). August 2011-February 2012.
• Clinical Preventive Medicine & Lifestyle Track. American College of Preventive Medicine (ACPM) Annual Meeting, Prevention 2012. August 2011-February 2012.
• Global Health Council, 2011 Annual Meeting. January-March 2011. March-May 2012. • Society of Teachers of Family Medicine (STFM) – NE Regional Conference. May 2008 – October 2008
Journal Editorial Board and Peer Reviewer • Associate Editor. BMC International Health and Human Rights. 2018-current. • Editorial Board Member: Ambulatory Care Management 2013-current; • Peer Reviewer: The BMJ; Annals of Internal Medicine; Journal of Medical Internet Research; Family Medicine;
Journal of Immigrant and Minority Health; American Journal of Preventive Medicine; Journal of Family Practice; Journal of the National Cancer Institute; Public Health Reviews; • Reviewer HealthNewsReview.org a web-based source for health reporting quality. 2010-2018. • Invited Reviewer. FGM/C Guidance for Pediatric Professionals. American Academy of Pediatrics. April 2018. • Invited Reviewer. Intimacy, Immigration and Integration. Family Planning and Communication across generations in the Israeli Ethiopian Migrant Community. Grant Review ‘Open Door’ – Israeli Reproductive Health NGO. October-December 2017. • Invited Reviewer. Reproductive Health Survey for Eritrean Migrants in Israel. Mesila Organization – Israeli NGO Dedicated to programs for African Migrants. February-August 2017. • Invited Reviewer. Choosing an International Elective: A Roadmap for your Decision. https://www.choosinganelective.org/about • Invited Reviewer: American Academy of Otolaryngology, Clinical Practice Guidelines Hoarseness (Dysphonia). March 2016. • Invited Reviewer: AHRQ Psychosocial and Pharmacologic Interventions for Disruptive Behavior in Children and Adolescents. March 2016. (Project ID VBE4400SR)
National Grant Reviewer • Invited Grant Reviewer, USAID’s Middle East Regional Cooperation (MERC) Program February 2015 • Invited Reviewer. National Center on Minority Health and Health Disparities (NCMHD) at the National
Institutes of Health (NIH). NCMHD Special Emphasis Panel (SEP), reviewing applications for Recovery Act Limited Competition: NCMHD Exploratory Centers of Excellence (P20). August 2009
INVITED TALKS: NATIONAL AND INTERNATIONAL.
Invited guest speaker.
• Local Care with a Global Perspective. Human Rights: from Global to Local. Annual meeting TASSC International. Washington College of Law, American University. June 26, 2019. Washington, DC.
• Human Trafficking. What Clinicians Need to Know. Grand Rounds, Franklin Square Family Medicine Residency Program. Baltimore, MD. May 2nd 2019.
• What Child Protective Services Need to Know about FGM/C. 21st National Conference on Child Abuse and Neglect (NCCAN). Washington, DC April 2019.
• Clinicians’ Role in Addressing Health Inequities. Amgen Health Equity Summit. Washington, DC. April 2019. • The Health of Forced Migrants. GlobeMed Capitol Hilltop 2019. George Washington University. April 2019. • PHR Asylum Training Workshop. Houston, TX. March 2019. • The US Asylum System: Medical Evaluations. University of Illinois Chicago Medical Center. January 19, 2019.

Case 3:20-cv-02731-VC Document 5-3 Filed 04/20/20 Page 16 of 39
• "The Political Determinants of Health" Universal Health Care Action Network (UHCAN), National Stakeholder conference. Tuesday, November 13, 2018.
• Physicians Role in Human Rights. A Personal Journey. UNC Department of Family Medicine. September 2018. • Working with Media to Amplify Your Actions. Affordable Medicine Now National Conference. Washington, DC.
June 2018
• Killer Medicine. A Forensic Look at Health Care Policies and Practices During and Since the Holocaust. Washington, DC March 2018.
• Female Genital Mutilation/Cutting: What Medical Service Providers Need to Know. Meeting organized by DOJ, HHS. March 2018. Washington, DC.
• Gun Violence Prevention Media Training Webinar for Physicians. National Physicians’ Alliance. March 2018. • Opening Remarks, PHR National Student Conference, Annual Meeting. November 2017, Washington DC (via
skype from Bangladesh) • The Social Determinants of Health -- a Global Perspective. Workshop for participants of International Center for
Journalists (ICFJ) 2017 Global Health Reporting Contest. Washington, DC September 2017 • Asylum Healthcare; FGM/C. The 2nd Annual North Carolina Refugee Health Conference: Challenges &
Opportunities. Greensboro, NC. August 2017 • Using a mobile app to document sexual violence in conflict zones. Gender-Based Violence (GBV) Task Force
of USAID’s Interagency Gender Working Group (IGWG). Washington, DC. June 2017. • Keynote Speaker. DC Superior District Court, Naturalization Service. April 2017. • American Family Physician Podcast. Advocacy and Family Medicine. March 23, 2017 • Forced Migration. The Health of Refugees, Asylum Seekers and Unaccompanied Youth. Ranit Mishori. AMSA
Annual National Conference. Crystal City, VA. February 2017. • Media 101. How Physicians should talk to the media. National Physician Alliance (NPA) Health Policy Seminar.
February 18, 2017. • Refugee and Asylee Health. OUWB School of Medicine. Detroit, Michigan. January 2017. • AMA Journal of Ethics. January 2017. Human Trafficking and Medicine. AMA Journal of Ethics. Podcast.
Responding to Trafficked Persons in Health Care Settings: An Interview with Dr. Ranit Mishori. January 2017.
• Zika Webinar, for AAFP. Mishori, R. Zika Virus: an Update for Family Physicians. September 2016.
• Female Genital Mutilation. Round Table. US Department of Justice. June 2016. Baltimore, MD. • Mishori, R. Brick, M, Alley, A. Fostering Sustainable Lupus Awareness and Education Annual Leadership
Institute, Lupus Foundation of America. Indianapolis, Indiana. June 20, 2016 • Refugee Health. SUNY Upstate Medical University MPH Program. Grand Rounds. April 2016. • Public Health Issues in the US. International Center for Journalists (ICFJ), International Health Reporting
Fellowship Program November 2015. • “Women, Health and the Global Battle for Dignity and Rights” PHR National Student Conference. Columbia
University School of Surgeons and Physicians. NYC, November 2015. • Refugee Health in North America. AAFP Annual Global Health Workshop. October 2014 (San Diego, CA);
October 2015 (Denver, CO) • Covering Maternal and Child Health in the US and Globally. International Center for Journalists ICFJ,
International Health Reporting Fellowship. September 2014 • Covering Community health and health disparities. International Center for Journalists ICFJ, Community Health
Reporting Fellowship. June 2014 • A mobile app to document sexual violence. Global Summit to End Sexual Violence in Conflict. London, June
2014. • Media and Health: Research Collaboration and Opportunities. Georgetown University Department of Linguistics
Monthly Health Discourse Seminar. September 27, 2013. • The US Health Care System: Stories, Resources and Databases. International Center for Journalists ICFJ, Global

Case 3:20-cv-02731-VC Document 5-3 Filed 04/20/20 Page 17 of 39
Health Reporting Fellows. May 2013 • Female Genital Cutting: Clinical and Legal Issues. Georgetown Law Center. March 2012, 2013, 2014. 2016. 2017.
2018. • Human Rights and Medical Practice. Virginia Commonwealth University/Fairfax Family Medicine Residency
Program. April 13 2012 • Being a Patient 101: How to Navigate a Complex Health Care System. Georgetown University Mini-Med School.
October 2008 • What is Family Medicine? National Youth Leadership Forum on Medicine. July 2007
Invited Moderator
• Migrant Health In Crisis. An International Symposium. Moderator: Border Health – Focus on the US-Mexico Border. Washington, DC November 2019.
• NEJM Group Open Forum. The Unhealthy Effects of US Health Care of Aggressive Travel Restrictions. March 27-31, 2017.
• Medical & Service Providers. End Violence Against Girls: Summit on FGM/C. December 2, 2016, United States Institute of Peace (USIP)
• Plenary panel on Refugee Health with Dr. Curi Kim, Director for the Division of Refugee Health (DRH) at the Office of Refugee Resettlement (ORR) within the Administration for Children and Families. AAFP Global Health Workshop. Atlanta, Georgia, September 2016.
Invited Panelist
• Overtreatment. Kaiser Family Foundation. September 2018. • Best Practices and Solutions. End Violence Against Girls: Summit on FGM/C. December 2, 2016, United States
Institute of Peace (USIP). • Panel on the topic of "Communicating Scholarship in the 21st Century and to Generations to Come," a
Symposium that is being sponsored by the Scholarly Communication Committee. April 2014 • Women’s Health. National Journal “Women 2020 Super Summit: Celebrating Progress: How Women Are
Changing the World”, July 18, 2013, Washington, D.C. • Washington Ideas Forum Working Summit- Health, Healthcare and Wellness. The 4th Annual Washington Ideas
Forum. The Aspen Institute/The Atlantic. November 2012. • Avoiding Avoidable Care Leadership summit, organized by the Lown Cardiovascular Research Foundation and
the New America Foundation, and co-hosted by the Institute of Medicine. Cambridge, MA April 25-26, 2012. • The Role of Public/Private Partnerships in Treating Illnesses Plaguing the Developing World. Research!America
and The Atlantic. December 6th, 2011. • The Future of Health Reform. The 3rd Annual Washington Ideas Forum. The Aspen Institute/The Atlantic.
October 5, 2011.
Invited Contributor: • Invited to contribute bi-monthly video commentaries for the Primary Care/Family Medicine online Channel.
Medscape Primary Care. 2014-present. https://www.medscape.com/partners/gumc-fm/public/gumc-fm
UNIVERSITY SERVICE

Case 3:20-cv-02731-VC Document 5-3 Filed 04/20/20 Page 18 of 39
Media appearances on TV, radio, print, on behalf of Georgetown University, via the GUSOM Communications office. Live interviews, taped interviews and quotes on: NPR (ATC), The Today show, CNN, The Diane Rehm Show, Talk of the Nation, The Associated Press, USA Today, CBS News, MSNBC.com, ABCNews, Voice of America, WUSA, abcnews.com, Los Angeles Times, Chicago Tribune, Fox Channel 5, The Guardian, among many others.
Committee Membership • Georgetown University Medical Center. Diversity Committee (Leadership subcommittee). 2018-present • Georgetown University, Advisory Committee to the Gender Equity Task Force. 2017-2019 • Georgetown University. Scholarly Communication Committee 2017-2018. • Georgetown University Medical Center Faculty Senate (elected) 2017- 2019. • MedStar-Georgetown Population Health Steering Committee. 2017-2018. • Medical Center’s Philanthropy Faculty Advisory Committee. 2016-2019. • GUMC IRB-C (Social Behavioral). 2016-2017. Alternate member 2018 - present • GUMC Faculty Development Advisory Board and subcommittee on mentoring. 2014-2016. • CENTILE Programs Working Group. 2013-2016 • CAB Academic Partnered Research Subcommittee (APRS) 2013-2016. • Community Advisory Board (CAB) of the Georgetown- Howard Universities Center for Clinical and
Translational Science (GHUCCTS). 2013-Present • Subcommittee on Evaluation and Assessment (SEA), Georgetown University School of Medicine. 2008-2012. • Institutional Review Board (IRB). Providence Hospital. 2006-2012. • LCME Sub-committee on Student Affairs. Georgetown University School of Medicine. 2010 • Clerkship Directors Committee. Georgetown University School of Medicine. 2008-2010 • Resident Chair Department Family Medicine Residency Program. Patient Education Committee. 2007-2008 • Steering Committee. CAPRICORN, Primary Care Research Network, Department of Family Medicine,
Georgetown University Medical Center. 2003-2004 • Student Medical Education Committee, Georgetown University School of Medicine. 2001-2002
Internal Grant Reviewer • Medstar Health Research Institute (MHRI). Small Collaborative Grants 2015. • CENTILE Health Education Research Colloquium 2014, 2015. • CIRCLE Georgetown Medical Education Grants 2014-2017. • GHUCCTS Community Engagement and Research Partnership Stimulation Mini Grants. June 2014
Leadership and Stewardship • Chair, Scholarly Activities Committee, Department of Family Medicine. June 2017-current • Co-Founder, Faculty Advisor and Leader Student-run Asylum Program. July 2014-current. • Faculty Advisor and Leader. Student Incarceration Health interest group. 2017 –present. • Initiator and Founder annual GU Student Family Medicine/Primary Care Research Award 2015- present • Founder and Co-Leader. First Annual Institute of Medicine (IOM)/Georgetown University DC Regional Pubic
Health Case Competition. 2013-2016. • Faculty leader and organizer. Georgetown team’s participation in the Emory Global Health Case Competition.
March 2013, 2014. • Faculty Advisor. groups on Global Health and Public Health. 2010-2016 • Advisory Board Member, NIH Grant: Experience of Polyvictimization in Latino and Black African Immigrant
Youth. (PIs: Edilma Yearwood, Elzbieta Gozdziak, Rosemary Sokas). October 2013-2015. • Invited member of group on Women and Human Development, as part of a University-wide initiative in Global
Human Development. 2012.

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University Service, Other • Faculty Advisor, GUSOM Population Health Track. 2014-current. • Judge Annual George M. Kober Student Research Day 2013-current • Volunteer Physician. Hoya Clinic, Student-run free clinic. 2009-2010 • OSCE Review and Remediation. Georgetown University School of Medicine. 2008-2010. • Interviewer, Medical School Applicants. Georgetown University School of Medicine. 2008-2009
Invited Speaker (GUMC, Internal): • Georgetown University Family Medicine Residency Program. Multiple clinical talks. 2008-present
• Invited Speaker. Why Doctors Should Care About Human Rights? Georgetown Health Equity Series. January 2020.
• AMWA student chapter. Women’s Careers in Medicine. September 2018. • FMIG. Family Medicine and Global Health. October 2018. • GUMC Health Policy Elective. Migrant and Refugee Health. 2016, 2017. 2018, 2019. • Georgetown Law Center: Trauma in Asylum Seekers, Vicarious Trauma in Asylum Evaluators. January 2018;
January 2019. • Georgetown University School of Medicine. Reflections on Assessing Human Rights Violations of Rohingya
Refugees. January 2018. • Department of Family Medicine Grand Rounds. The Health of Forced Migrants. May 2017. • Female Genital Mutilation (PHR and OB interest groups). May 2017 • Career in Human Rights. PHR interest Group. May 2017. • Conducting an Asylum Evaluation. GUSOM-PHR Chapter day-long training workshop. Georgetown University.
2014-2019 (twice yearly). • Mishori, R. Gender Based Violence in Conflict Zones. Georgetown University Gender Justice Initiative
Colloquium. September 2016. • Antibiotic Resistance: A Global Health Concern. Doctors Speak Out Forum, Georgetown University, Dec 8,
2015 • GUMC Annual Convocation Colloquium, "Antibiotics: Panacea or Problem?" November 3, 2015. panel on
Global Health. IHIG. March 2015. • Global Health and Primary Care. FMIG Primary Care Week. October 2014. • The Primary Care of Refugees and Immigrants. Primary Care Week. Georgetown University. November 2010. • Refugee Health Series. Graduate Program in Global Infectious Disease. Georgetown University. November 2010. • How to Talk to the Media. Georgetown Women in Medicine. November 2008 • Healthcare in Afghanistan Panel. Social Justice Week, Georgetown University School of Medicine. April 2009 • Gateway: Biology of Global Health, Cancer Module. BIOL-194 course, Undergraduate College. Department of
Biology.
TEACHING ACTIVITIES
Director: • Annual Media Workshop for Trainees and Primary Care Clinicians (in collaboration with FMEC). 2016-present. • Health Policy Fellowship. 2017-present. • Health and Media Fellowship. 2014-current. • Residency Global Health Track. 2012-current. • Health Disparities (Georgetown College) 2012-2014 • Health and Human Rights 2011 - 2017 • Family Medicine Clerkship 2009-2011

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• Selectives 2007-2008
Assistant Director: • Introduction to Health Care 2007-2008.
Curriculum Development: • Health and Media faculty development Fellowship 2014 • Health and Media elective 2014 • IOM/Georgetown Regional Public Health Case Challenge 2013 • Course on Health Disparities for joint Graduate/Undergraduate Program, Georgetown University. 2012 • Clinician training in Gender-Based Violence identification and reporting. Physicians for Human Rights, The
Democratic Republic of Congo 2011-2012. • Residency Global Health Track. 2012. • Haiti: Traditional and skilled Birth Attendant Training Curriculum. 2011-current. • Health and Human Rights Selective 2011 (SOM-I) • Case Series in Global Health. 2010-2011 (SOM; Residency) • Conducting Asylum Evaluations. 2011. (Residency) • Chronic Care Model Workshop 2010 (SOM-III) • Motivational Interviewing Workshop 2010. (SOM-III) • Medical Spanish Selective. 2009. (SOM-I) • The Writings of Atul Gawande. Selective. 2008. (SOM-I) • Preventive Medicine Workshop. 2009. (SOM-III).
Courses Taught 1st Year: Service Learning; Evidence-Based Medicine I; Selective; Health Policy and Economics; Patient, Physician Communication; Society, Culture and Ethics; Mind-Body Medicine; Physical Diagnosis; Ambulatory Care; Patients, Physicians, Populations. 2nd Year: Evidence-Based Medicine II; Ambulatory Care Preceptor. 3rd Year: Family Medicine Clerkship; Preventive Medicine Lecture; Motivational Interviewing workshop; EvidenceBased Medicine Workshop; Chronic Care Model Workshop. 4th Year: Clinical Pharmacology; Student mentor – Independent Study Project.
Residency Teaching • Family Medicine Outpatient Service; Clinical Supervisor. Fort Lincoln Family Medicine Residency Program Clinic. • Family Medicine, Inpatient Service. Providence Hospital. Clinical Supervisor/Attending Physician. • Advanced Life Support in Obstetrics (ALSO). Faculty Instructor. • Asylum Evaluations. 2010-current • Didactic Lectures. 2008-current.
MENTORING
FELLOWS: • Dr. Brian Antono. Health Policy Fellow 2019-2020. • Dr. Mara Gordon. Health and Media Fellow 2018-2019 • Dr. Alison Huffstetler. Health Policy Fellow. 2018-2019. • Dr. Rob Bailleu. Health Policy Fellow. 2017-2018 • Dr. Amber Robins, Health and Media Fellow 2018-2017 • Dr. Hannah Jackson. Health Policy Fellow 2018-2017

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• Dr. Anita Ravi. RWJF clinical Scholar fellow. Trafficking authorship; JAMA letter to the editor; Career mentorship; authorship of additional articles at AFP. 2015-2016.
• Dr. Melanie Raffoul. Global Health activities; writing and scholarly activities; Career mentoring 2015-2016. • Dr. LaTasha Seliby. Health and media, scholarship and writing. • Dr. John Parks: global health activities and research project. 2013-2014. • Dr. Sarah Kureshi. Global Health Project; Human Rights curriculum design. Abstract Submission (selected as
poster at International Conference). Survey design and analysis. Asylum Work. 2011- 2012. • Dr. Christy Theranos. Project on International Medical Graduates. Study design; grant writing; funding
opportunities. 2012. • Dr. Matthew Burke. Global Health project: electronic medical records in Haiti. Article/Abstract Submission
(presented at international conference). Career mentorship and networking opportunities. 2010-2012.
RESIDENTS: • Grace Walters; Health Policy Scholar. Research Project. 2018-present. • Molly Bloom. Global Health Scholar. Research project; global heatlh career. 2019-2020. • Joanna Choi. Global Health Scholar. Research project and global health career. 2017 • Tracy Cassagnol. Health Writing. Outcomes: one online publication; One Washington Post publications. • Sadhna Rajamoorthi. Global Health Scholar. Proposal writing, IRB, survey design, project development, scholarly
output. 2015-present. • Isha Chaudary. Global Health Scholar. Proposal writing, IRB, survey design, project development, scholarly
output. 2015-present. • Kathy Stolarz. Global Health Scholar. 2012-present. Proposal writing, IRB, survey design, project development,
scholarly output. Presented at AAFP Global Health 2013, 2015. • Phil Nguyen .Global Health Scholar. 2012-Presnet. Proposal writing, IRB, survey design, project development,
scholarly output. Presented at AAFP Global Health 2013. Co-faculty leader P3. • Andrew Eastman. Global Health Scholar. Project development. Proposal writing. Presentation at AAFP GH
Workshop 2015. 2014-present. • Corey Carson. Scholarly activities. Resulted in two publications (Washington Post and whilte paper). • Assigned Faculty Advisor. Dr. Jennifer Ah-Kee. Family Medicine Resident. 2011-2013. Manuscript preparation;
career planning. • Megan Barber.MS4-PGY-II. EBM research project/ISP. FPIN/EBM elective, article writing. Publication
February 2014. • Assigned Faculty advisor, Dr. Asha Robinson-Parks. Family Medicine Resident. 2008-2011 • Dr. Sarah Murray. Research project design and IRB application: Medical Student attitudes about Pharma
(ongoing). Paul Ambrose Fellowship application (accepted); global health activities: received two scholarships to attend program in Argentina. 2010-current. • Dr. Brendan Levy. Family Medicine Resident. Asylum Evaluation preparation. Journal Club and PEPID preparation and publication. Social Media study participation. Publication in Family Medcine. 2011-present. • Dr. Aye Otubu. Family Medicine Resident. Global Health Activities; Journal article writing and accepted publication (Journal of Family Practice); Two abstracts accepted at conferences. Case-study development. 2009current. • Dr. Sarah Fellers. Family Medicine Resident. Global Health activities; 2 accepted publications (AAFP International Health Newsletter; PEPID). 2009-2011. • Aminah Allyn Jones. Family Medicine Resident. Journal article submission and writing (accepted for publication). 2010-2011. • Dr. Kumo Lartevi. Global Health Activities. Abstract submission (accepted); Essay preparation (accepted AAFP newsletter). 2011. • Corry Chapman, Family Medicine Resident. Essay Writing (accepted, The Lancet), International Health

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Experience. Winner, 2008 Wakely Prize, The Lancet
STUDENTS:
• Anu Murthy. Correctional Health, multiple projects, grant award. 2017-2019. • Jessica Beer. Asylum – multiple project and research project; 2017-2020. • Karen Schirm. Human Trafficking curricular proposal, clinical placement, research project. 2018-cirent. • Stephanie Johng. Social Media and Health Promotion. Research project; poster and writing. 2018-present. • Zayn Holt. FGM research project execution. 2017-2018. • Nicholas Stukel. Proposal writing, career mentorship. Article publishing, ISP and research programs 2015-2017 • Nathan Praschan. Proposal writing, career mentorship. Article publishing, ISP and research programs. 2013-2017. • Diasy Kim. Proposal writing, career mentorship. Asylum Program work. 2013-2017. • Kevin Diasti. Proposal writing, career mentorship. Asylum Program work. 2013-2017 • Dora Dakhal. ISP research support and mentorship. 2013-2017 • Hennessey, C., Stukel, N. Mishori, R. (ISP) Medical Students' Attitudes Towards Refugees & Asylum Seekers.
2013. 2017 • Katherine Mullins (Population Health track). Summer project design, summary; IRB preparation; Poster
preparation. Poster presented at two regional meetings. • Dori Abel. Global Health ISP research Project – mHealth. Co-presenter at Global mHealth Conference,
November 2015. • Emily Platz. ISP Diabetes community services; presented poster in 2 meetings. • Elise Park. ISP Health discourse on TED talks • Elizabeth Edwards. ISP. Critical review of role of Hymen. Manuscript Preparation. • Lawrence Law. TV and EBM. ISP. Manuscript preparation; won ISP honorable mention . • Brendan Kiernan. ISP project on violence and sex workers in The Democratic Republic of Congo. Manuscript
co-authored and published . ISP presentation .2012-presesnt. • Vera Hendrix. ISP project on menstrual hygiene in developing countries. 2013. Presentations at two national
conferences, Social Justice week and ISP. • Kelley Coffman. ISP project Cervical Cancer provider KAP in Zambia. 2012-2014. Poster in Health Justice
Session March 2014. • Courtney Quin. ISP project DVT/PE in Elite Athletes. Article in Journal of Family Practice accepted for
publication. 2013-2014. • Alexandra Coughlan (MS1). International Health Activities. ISP Research Study. DRC Project on Gender Based
Violence. (Ongoing). • Liz Oler. AMWA assigned mentor. Global Health activities; Public Policy interest. Cost of Care manuscript. 2013-
2014. • Nicole Boisvert. International Health activities. ISP, research study design and IRB process. Cambodia Child
Health Research Project (ongoing). Publication Submission (ongoing). Trinidad HIV program (accepted presentation at AAFP meeting); essay preparation and submission to AAFP Global Health newsletter (published). • Catherine Matthys. Global Health Research Project (won a scholarship via competitive process). Clean Water Project in Rural Tanzania (ongoing): IRB application, data analysis. 1st Prize and cover Photo of the Year in The Lancet (2012). Acceptance of poster to AAFP Global Health Workshop 2012. Essay preparation and submission to AAFP Global Health newsletter • Sanna Ronkainen. Public Health career mentorship. Summer Public Health HHS internship (accepted). MPH counseling (accepted to Hopkins). 2010-2013. • Katherine McCllelan. ISP. Ugandan Maternal Health Education Program. International Health Activities. Independent Study Project (ISP). Publication submissions (accepted AAFP Newsletter Spring 2011). 2010-2011. • Shoshana Aleinikoff. Conducting an Asylum evaluation and affidavit writing. 2011. Career in Family Medicine

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(ongoing). • Emily Lovallo, Medical Student. Creation of Global Health Education Longitudinal Curriculum. Accepted as
poster AAFP Scientific assembly 2008. First Place, AAFP Residency Conference 2008; Accepted, Poster APHA 2008; Accepted, CDC International Fellowship 2008
GRANT ACTIVITIES
Active; Awarded.
• Jarris, Y., Doyle, A., Kureshi, S., Mishori, R., Chen, C. A Longitudinal Medical Student Curriculum on Screening for Food Insecurity. CIRCLE Grant. May 2018. ($25,000)
• Mishori, R., Ravi, A., Stolarz K, Chambers R. Human Trafficking Education in Family Medicine Residency Programs. CERA – PD Grant. October 2017 $10,000.
• Mishori, R. Baillieu, R., Pasderka M, Connors G. Beyond the Exam Room: A Scoping Review of the Benefits and Potential Harms of Screening for the Social Determinants of Health. Gold Foundation “Mapping the Landscape, Journeying Together” initiative . $5,000. July 13, 2017
• Sheth, N. Patel, S., Mishori, R., Akil M., Dutton, MA., To Screen or Not to Screen: Exploring and Addressing Controversies in Screening for Trauma Among Refugee and Asylum Seekers. Reflective Engagement Grant. March 2017.
• Seth N, Patel S., Mishori, R., Gozdziak E., Global Mental Health in Our Own Backyards: A Collaborative Needs Assessment of Refugee and Asylee Mental Health. Global Health Collaborative Seed Grant Project. March 2017. ($15,000).
• Ranit Mishori, Rebecca Reingold, Kevin FitzGerald. Should I Re-infibulate? Should I report? Helping clinicians address complex medical-ethical-legal issues related to Female Genital Mutilation (FGM). Complex Moral Problems, Georgetown University (20,000). April 2016.
• Ranit Mishori (PI). Global is Local. The Asylee and Refugee Clinic (ARC) Project. Scholl Foundation. $25,000. November 2015.
• Ranit Mishori, Macy Foundation Presidential Grant. Designing a Refugee Health Curriculum. $35,000. September 2015-2016.
• Yumi Jarris, Ranit Mishori (Co-PI), Mary Furlong. A Longitudinal Population Health Curriculum: Emergency Preparedness and Beyond". CIRCLE Grant ($25,000). School of Medicine. May 2013.
• Ranit Mishori, Matthew Biel, Jeanine Turner. Why are they diagnosed so late? Understanding Spanish-language media’s role in Latino mothers’ awareness of autism and related care-seeking behaviors. Reflective Engagement Grants. Georgetown University. ($30,000). March 2013.
• Ranit Mishori (PI), Anne Rosenwald. Designing Georgetown’s Health Disparities Case Challenge. Health Disparities Grant. Georgetown University. March 2012-2013. ($50,000).
• Jacob P. Prunuske, Linda Chang, Ranit Mishori, Christopher P. Morley. Public Health Training In Medical Education CAFM Educational Research Alliance (CERA). October 2011. $5,000.
• Jacob P. Prunuske, Linda Chang, Ranit Mishori, Christopher P. Morley. Evaluation of the Extent and Methods of Public Health Training in US Medical Schools and Family Medicine Training Programs. STFM Foundation. $10,000. February 2012.
• Ranit Mishori (PI), Joeseph Giere. “Training Haitian Birth Attendants in Pregnancy Support, Emergency Obstetric Care and Neonatal Resuscitation”. Cook Foundation. Awarded ($7,000). April 2011. Department of Family Medicine Faculty. Title VII NIH grant for Pre-Doctoral Education. Georgetown University Department of Family Medicine. 2009. HRSA. ($500,000).
Joint Submissions. • Boca S, Gandy L, Mishori R. Studying the discourse of expectant and new parents using natural language
processing. NIH Grant R21. Submitted 2/14/19 • O’Neill S., Braithwaite D., Lin K., Mishori, R. ROSE: Reducing Mammography Over-screening in the Elderly.

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January 2019. • Mishori, R. (co-PI, with Kim Bullock. Health Policy Fellowship and Leadership Training. Primary Care Training
and Enhancement: Training Primary Care Champions. HRSA. May 2018. • Mishori, R. (PI). Health and Media Fellowship for Family Physicians. National Institute for Health Care
Management Foundation’s Journalism Grant Program. ($67,000; July 2017). • Gozdziak E, Yearwood E, Mishori, R. Immigrant Youth and Health Disparities: Individual, Institutional, and
Systemic Factors as Sources of Vulnerability. NIH R21. April 2017. • Mishori R (PI), Dan Childs. Health and Media Fellowship for Family Physicians. Burroughs Wellcome Fund:
Career Guidance for Trainees. $50,000. March 2017. • Bouey, J. Kassaye S, Mishori, R. PrEP scale-up for high risk African American Women. NIMH R34. January
2017. • Merenstein,D. D'Amico Frank...Mishori, R. , An Antibiotic Stewardship Trial: Nasal irrigation, Oral antibiotics
and Subgroup targeting for Effective management of Sinusitis (the NOSES Trial), PCORI submission. December 2016 • Lin, K., Mishori, R. "Population Health, Prevention, and Policy: Reporting on Critical Issues in Primary Care"; National Institute for Health Care Management Foundation’s Journalism Grant Program. $60,000. July 2016. • Suzenne Bronheim, Rochelle Meyer, Ranit Mishori. Integrating Public Health and Primary Care: Building Primary Care Providers’ Capacity to Integrate Safe Sleep and Breastfeeding Promotion. Georgetown Cross Disciplinary Grants. June 2016 • Ranit Mishori, Nima Sheth. A Community-Based Wellness and Health Promotion Program for Newly Arriving Refugees. Jesse DuPont Foundation. April 2016 ($120,000) • Christopher Loffredo, Ranit Mishori, Judy Wang. Investigation of Hepatitis C Virus Infection Controls from Patient and Physician Perspectives. Cancer Center Support Grant (CCSG) Developmental Funds Award (DFA) Lombardi Comprehensive Cancer Center’s CCSG National Cancer Institute. May 2015. • Ranit Mishori (PI), Elise Morris. Global is Local. The Asylee and Refugee Clinic (ARC) Project. Scholl Foundation Grant. Submitted March 2015. $50,000 • Ranit Mishori (PI), J. Prunuske, E. Morris, S. Aleinikoff. Global is Local. Assessing Family Medicine Residency Programs’ Training on the care of Immigrants, Migrants, Torture Survivors, Asylees and Refugees (IMTARs). CERA research grant . February 2015. $10,000 • Ranit Mishori (PI), Lisa Singh (co-PI), Neeru Paharia, Pamela Saunders, Christo Kirov. E-cigarettes on Twitter: describing and analyzing user networks, dissemination, discourse and marketing. NIH (R01). RFA-CA-14-008: Using Social Media to Understand and Address Substance Use and Addiction (R01) 3-year 400,000. March 2014. • Elzbieta Gzodziak (PI). NSF Grant: Trafficking Survivors Return Home: An Exploratory Study. Ranit Mishori (Consultant). November 2013. • Irene Jillson, Ranit Mishori (co-PI), Aye Otubu. Cervical Cancer Screening Among Ethiopian Immigrants in the Washington DC Metropolitan Area. GHUCCTS Design, Biostatistics, and Population Studies Program. ($20,000). August 2013 • Wolfgang Rennert, Ranit Mishori (co-PI). Assessing African Mid-Level Health Professionals Training Programs. MedStar-Georgetown Partnership Grants. July 2013. ($20,000). • Elzbrieta Gzodziak, Ranit Mishori (co-PI), Abbie Taylor. Assessing domestic capacity to care for refugees with significant medical conditions. State Department BPRM Grant ($250,000). July 2013. • Anne Rosenwald, Ranit Mishori. Health Disparities. Curricular Innovation Grants. Global Liberal Education Initiatives. Georgetown University College. May 2013. ($10,000). • Margaret Baker. Hector Ochoa, Rosario Garcia, Amanda Liddle, Ranit Mishori. Developing a Model of Care to Address the Maternal Health Needs of Indigenous Women in Chiapas, Mexico. Grant Proposal, University Initiative on Global Health. March 2013. ($30,000) • Wolfgang Rennert, Ranit Mishori (co-PI), Amanda Liddle. Assessing African Mid-level Health Professional Training Programs: methods, outcomes, and barriers. Grant Proposal, University Initiative on Global Health. March 2013. ($30,000)

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• Ranit Mishori (co-PI), Elzbieta Gzodziak, Abbey Taylor. First Responders Working with Syrian Refugees: An Exploratory Study on Vicarious Trauma, Resilience and Capacity to Respond. Grant Proposal, University Initiative on Global Health. March 2013. ($30,000)
• Ranit Mishori (PI), Lisa Singh, Jeanine Turner. "Following" CER: analyzing social media networks and research messages to understand connectivity, information flow, and message diffusion patterns and how they influence patient and clinician engagement. PCORI Dissemination and Implementation Cycle II grant. ($1, 500,000)
• Ranit Mishori, Kenneth Lin. Evidence-Based Reporting on Health and Prevention: A Mini Med-School for Journalists. Gannet Foundation ($50,000).
• Ranit Mishori, Kenneth Lin, Jeffrey Weinfeld. Overdoing Preventive and Medical Care: When an Ounce of Prevention Leads to a Ton of Harm. Poynter Institute SRI. December 2012. ($50,000).
• Ranit Mishori, Matthew Biel. Covering Autism: The Numbers, The Science, The People. Poynter Institute SRI. December 2012. ($50,000).
• Ranit Mishori, Kenneth Lin. Overdoing Preventive and Medical Care: When an Ounce of Prevention Leads to a Ton of Harm.
• Reflective Engagement Grants ($12,000).
• Ranit Mishori, Caroline Wellbery, Yumi Jarris Mary Furlong. Population Health Pearls – A Virtual Curriculum: Integrating Awareness and Knowledge of Population Health Concepts in Pre-Clinical Medical Education. CIRCLE Grant GUSOM April 2012. ($25,000. Not awarded)
• Christy Tharenos (PI), Ranit Mishori, Judy Rollins. What I Wish I had Known: Using Arts-informed research to study International Medical Graduates’ challenges in the transition to the culture and practice of medicine in the United States. AAFP Foundation Grant. Submitted December, 2011. ($50,000 not awarded).
• Irene Anne Jillson, Ranit Mishori (Co-PI), Jan Blancato, Nawar Shara, Aye Otubo. Exploratory ELSI Center for Cancer Genomics in African American, and African Immigrant Populations in the Washington, D.C. Metropolitan Area. Health Disparities RFA ($50,000, not awarded)
• Ranit Mishori (PI), Irene Jillson, Nawar Shara, Fida Adely. The Global Obesity Crisis and Women in the Broader Middle East and North Africa (BMENA) Region: Research, Policy, and Future Interventions. Submitted November 2011. Reflective Engagement. Georgetown University. (Not awarded).
• Ranit Mishori (PI), Dan Merenstein. “Probiotics to Combat Childhood Malnutrition in Afghanistan.” Abbott Fund. Submitted, July 2011. Not Awarded.
• Kevin FitzGerald (PI), Jeffrey Collmann, Ranit Mishori, Donna Cameron, Anne Rosenwald. Complex Moral Problems in Service Learning Research. Submitted. May 2011. Not Awarded.
• Ranit Mishori (PI), Joeseph Giere. “Training Haitian Midwives and Birth Attendants to Manage Obstetric and Neonatal Emergencies”. Laerdal Foundation. Submitted. March 2011. Not awarded.
• Ranit Mishori (Co-PI), Wolfgang Rennert, Andrew Bazemore. “Georgetown’s LEGCI: Longitudinal Enhanced Global-health Curriculum Innovation. Developing a Global Health and the Care of Underserved Populations Elective at Georgetown University School of Medicine”. CIRCLE Grant. Submitted March 2011. Not awarded.
• Ranit Mishori (PI), Joel Selanikio, Amanda Liddle. “Harnessing Mobile Phones to Improve Surveillance and Pre, Peri- and Post-natal Care in Rural Honduras.” Gates Foundation Grand Challenges Explorations (Round 6) Application. November 2010. Not awarded.
• Ranit Mishori (PI), Joel Selanikio. Amanda Liddle. “Creating Cell Phone-Based Tools for use by Traditional Birth Attendants (TBAs) in Rural Honduras”. Vodafone Wireless Innovation Project .Vodafone Foundation. December 2010. Not awarded.
• Wolfgang Rennert, Jeff Collmann, Kevin FitzGerald, Rochelle Tractenberg, Ranit Mishori. “Using Cell Phone Based Applications to Train Healthcare Providers and Students Practicing in Rural Africa”. Vodafone Wireless Innovation Project. Vodafone Foundation. December 2010. Not awarded.
• Ranit Mishori (Co-PI), Wolfgang Rennert, Marilee Cole. “Sister-Doctor Capacity Building and Continuing Medical Education Implementation”. Indo-US Science and Technology Forum and Georgetown University School of Medicine. October 2009. Not awarded.
• Ranit Mishori (PI), Marguerite Duane. Enhancing Medical Students’ Ability to Communicate With Their

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Spanish-speaking Patients. CIRCLE Grant. GUSOM. Awarded. ($25,000). • Ranit Mishori (Co-PI), Wolfgang Rennert. Global Health Education. CIRCLE Grant. 2008 (Not awarded)
Grant Consultant • AHRQ Action III Task Order CDS for Chronic Pain Management. A two-year, $3.75 million collaborative
contract between MedStar Health, Perk Health, Georgetown University, George Washington University, CAPRICORN, and IMPAQ International. 2019-Current. • Mesila. Israeli Aid and Information Center for Migrant Workers and Refugees. Reproductive Health project advisor. 2017 • Komen Foundation Grant Application. Title: Are New Screening Technologies Helping Women with Triple Negative Cancers and are Vulnerable Patient Populations Missing Out on Technological Advances. PI - Joann Elmore, MD, MPH, Division of General Internal Medicine, University of Washington, Seattle, WA. (2008).
ARTICLES IN PEER REVIEWED JOURNALS
Accepted, Awaiting Publication. • Crosby S, Volpelier M, Mishori, R. Virginity Testing: Recommendations for the Primary Care Physician. BMJ
Global Health. In Print. • Ranit Mishori. US Policies and Their Effects on Immigrant Children’s Health. American Family Physician. In
print.
Published • Moss D; Gutzeit Z, Filc D, Mishori R, Davidovich N. Ensuring migrants’ right to health? The case of
undocumented children in Israel. BMJ Pediatrics. MJ Paediatrics Open 2019;3:e000490 • Haar RJ, Wang K, Venters K, Salonen S, Patel R, Nelson T, Mishori R, Parmar PK. "Documentation Of Human
Rights Abuses Among Rohingya Refugees From Myanmar." Conflict And Health, 13, 1 (December 1, 2019): https://doi.org/10.1186/s13031-019-0226-9. • Ranit Mishori, Hope Ferdowsian, Karen Naimer, Muriel Volpellier and Thomas Mchale. "The Little Tissue That Couldn’t – Dispelling Myths About The Hymen’s Role In Determining Sexual History And Assault." Reproductive Health, 16, 1 (December 1, 2019): 10.1186/s12978-019-0731-8. • Noemi C. Doohan And Ranit Mishori. "Street Medicine: Creating A “classroom Without Walls” For Teaching Population Health." Medical Science Educator (November 1, 2019): 10.1007/s40670-019-00849-4. • Atkinson H., Ottenheimer D. Mishori, R. Research Priorities to Address Female Genital Mutilation/Cutting in the United State. American Journal of Public Health (September 20, 2019): doi:10.2105/AJPH.2019.305259.. • Earp B, et al (Mishori, R). The Brussels Collaboration on Bodily Integrity (2019) Medically Unnecessary Genital Cutting and the Rights of the Child: Moving Toward Consensus, The American Journal of Bioethics, 19:10, 1728, • Kureshi S, Namak SY, Sahhar F, Mishori R (2019) Supporting the Integration of Refugee and Asylum Seeking Physicians Into the US Health Care System. Journal of Graduate Medical Education: August 2019, Vol. 11, No. 4s, pp. 22-29. • Mishori, R. The Use of Age Assessment in the Context of Child Migration: Imprecise, Inaccurate, Inconclusive and Endangers Children’s Rights. Children 2019, 6(7), 85 • Mishori, R. Ferdowsian K, Naimer K. Volpellier M., McHale T. The Little Tissue That Couldn’t – Dispelling Myths About the Hymen’s Role in Determining Sexual History and Assault. Reproductive Health volume 16, Article number: 74 (2019) • McKenzie K., Mishori, R. Ferdowsian H. 12 Tips on Teaching Human Rights in Medical Education. Medical Teacher. Med Teach. 2019 Jul 17:1-9.

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• Mishori R. The Political Determinants of Health. Medical Care. Medical Care: July 2019 - Volume 57 - Issue 7; p 491–493
• Mishori. R, Singh L, Lin K, Wei Y. #Diversity: . Conversations on Twitter about Women and Black Men in Medicine. Journal of the American Board of Family Medicine. J Am Board Fam Med January 2019, 32 (1) 28-36;
• Wellbery C, Mishori R. Deck the Halls with Diverse Portraits. JAMA. 2018 Aug 14;320(6):528-530. doi: 10.1001/jama.2018.11013.
• Choudhary I., Mishori, R. Kim, S. Words Matter: Charting the Landscape of US and International Health Profession Organizations’ Public Statements about FGM/C. Submitted to the Journal of Immigrant and Minority Health.
• Mishori, R. What Needs to Change to Make Deprescribing Doable. Fam Pract Manag. 2018 May/Jun;25(3):5-6. • Nguyen BM, Link KW, Mishori, R. Public Health Implications of Overscreening For Carotid Artery Stenosis,
Prediabetes and Thyroid Cancer. Public Health Rev. 2018 Jul 2;39:18. doi: 10.1186/s40985-018-0095-6. eCollection 2018. Review. • Mishori, R. Warren, N, Reingold R. Female Genital Mutilation. Curbside Consultation. Am Fam Physician. 2018 Jan 1;97(1):49-52. • Namak S, Sahhar F, Kureshi S, El RAyess F, Mishori, R. Integrating Refugee and Asylee Health Professionals into the US Healthcare System. Forced Migration Review. Pp 16-18. June 2018. • Mishori, R., Kureshi, S, Ferdowsian, H. War Games: Using an Online Game to Teach Medical Students About Survival During Conflict. ‘When my Survival Instincts Kick in, What am I Truly Capable of in Times of Conflict?’ Medicine, Conflict and Survival, 2017 Dec 5:1-13. • Abdulkadir N….Mishori, R…et al. Female Genital Mutilation/Cutting: sharing data and experiences to accelerate eradication and improve care: part 2: Reprod Health. 2017; 14(Suppl 2): 115. Published online 2017 Sep 15. • Mishori, R. Aleinikoff S, Davis D. Refugee Health for Primary Care. An update. Am Fam Physician. 2017 Jul 15;96(2):112-120. • Jeffrey Walden, Olga Valdman, Ranit Mishori, Martha Carlough, MD, MPH (4). Building Capacity to care for refugees. Fam Pract Manag. 2017 Jul-Aug;24(4):21-27. • Atkinson H., Bowers M, Mishori, R. Ottenheimer D.“Female Genital Mutilation Reconstruction: A Preliminary Report” Letter to the Editor. Aesthetic Surgery Journal. 2017 Oct 1:37(9). • Naimer, K., Brown, W., Mishori, R. MediCapt in the Democratic Republic of the Congo: The Design, Development, and Deployment of Mobile Technology to Document Forensic Evidence of Sexual Violence. Journal of Genocide Studies and Prevention (June 2017). • Mishori, R., Anastario, M., Naimer, K, Varanasi S., Ferdowsian H, Abel D, Chugh K. mJustice: Preliminary Development of a Mobile App for Medical-Forensic Documentation of Sexual Violence in Low-Resource Environments and Conflict Zones. Global Health Science and Practice. March 24, 2017 vol. 5 no. 1 p. 138-151 • Morley, CP., Rosas, SR., Mishori, R, Jordan W., Jarris, YS., Prunuske J. Essential Public Health Competencies for Medical Students: Establishing a Consensus in Family Medicine, Teaching and Learning in Medicine. March 2017. Published online ahead of print. Pages 1-13 • S. Rajamoorthi, R. Mishori, L. Buchanan, E. Morris. Global is Local: Assessing Family Medicine Residency Programs’ Training on the Care of Immigrants, Migrants, Torture Survivors, Asylees and Refugees (IMTARs). Annals of Global Health, Vol. 83, Issue 1, p133–134. Published in issue: January-February, 2017 • Mishori, R., Eastman, E., Evert, J., Improving the Safety and Security of Those Engaged in Global Health Traveling Abroad. Glob Health Sci Pract. 2016 Dec 28;4(4):522-528. • Weinfeld J, Mishori, R. Toward Electronic Health Record Optimization Learning From the User Experience. J Ambulatory Care Manage Vol. 40, No. 1, pp. 2–5 • Praschan N, Stukel N, Mishori R. A Student-Run Asylum Clinic to Promote Human Rights Education and the Assessment and Care of Asylum Seekers. Journal of Student-Run Clinics. 2016 Sep 30 • Mishori, R. Wellbery, C. Letter to the Editor: RE: Authorship Concerns and Who Truly Owns a Research Idea? 5 January 2016. Pediatrics. November 2015, Volume 136/Issue 5.

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• Mishori, R, Groah SL, Otubu, O, Raffoul M, Stolarz K.. Primary Care Management of People with Paralysis due to Spinal Cord Injury and Disease. Journal of Family Practice. J Fam Pract. 2016 May;65(5):302-306,308-309.
• Ferdowsian, H, Naimer K, Sirkin, S, Mishori, R. Attitudes Toward Sexual Violence Survivors: Differences Across Professional Sectors in Kenya and the Democratic Republic of the Congo. Journal of Interpersonal Violence, J Interpers Violence. 2016 Mar 27.
• Ferdowsian, H., Mishori, R., & Naimer, K. (2016, Jan). Prosecuting Sexual Violence in Conflict: A medical approach. Angle Journal. Retrieved from http://anglejournal.com/article/2015-12-clinicians-in-the-prosecution-ofconflict-related-sexual-violence/
• Mishori, R., Ravi A. Addressing Suspected Labor Trafficking in the Office. Am Fam Physician. 2015 Dec 15;92(12):1092-1095.
• Kirenan, B, Mishori, R “There is Fear but there is No Other Work”: A Qualitative Exploration of the Experience of Sex Workers in Eastern DRC. Culture, Health and Sexuality. 2015 Sep 28:1-12.
• Mishori, R. Evert J. Global Health – Now More Than Ever. Editorial, American Family Physician. 2015 Aug 15;92(4):254-8.
• Mishori, R., Rosenwald, A., Kelly B., Hannaford A, Vijh E, Carroll L. Case Competitions: a New Frontier in Interprofessional Health Education?" MedEdPublish 2015, 5: 14
• Christopher Morley, PhD; Jacob Prunuske, MD, MSPH; Ranit Mishori, Scott Rosas PhD; William Jordan, MD, MPH; Yumi Shitama Jarris, MD Essential Public Health Competencies for Medical Trainees: Establishing a Consensus. Teaching and Learning in Medicine: An International Journal. Abstracts From the Proceedings of the 2014 Society of Teachers of Family Medicine (STFM) Conference on Medical Student Education
• Mishori, R Hannaford A, Mujawar I, Ferdowsian H, ,Kureshi S. “Their Stories Have Changed My Life”: Clinicians’ Reflections on their Experience with and their Motivation to Conduct Asylum Evaluations. Journal of Immigrant and Minority Health. J Immigr Minor Health. 2014 Dec 20.
• Liaw, W, Bazemore, A, Mishori, R, Diller P, Bardella, I, Chang, N. ßThe Financial Health of Global Health Programs. Fam Med 2014;46(9):672-8.
• Ranit Mishori, Brendan Levy, Benjamin Donvan. Twitter Use at a Family Medicine Conference: Analyzing #STFM13. Fam Med. 2014 Sep;46(8):608-14.
• Mishori R, S Varanasi. Strengthening health system response to gender-based violence though multisectoral collaboration and best practices in evidence collection and documentation. Annals of Global Health. Volume 80, Issue 3, Pages 228–229, May–June, 2014
• Mishori, R. McHale C. Pica: An age-old eating disorder that’s often missed. Journal of Family Practice Vol 63, no 7, July 2014 E1-E4.
• Mishori, R, Lisa Singh, Brendan Levy. Mapping Physician Twitter Networks: Describing how they Work as a First Step in Understanding Connectivity, Information Flow and Message Diffusion. J Med Internet Res. Apr 2014; 16(4): e107. Published online Apr 14, 2014. doi: 10.2196/jmir.3006
• Levy, B. Mishori, R. What is the best test to diagnose urinary tract stones? Evidence-Based Practice / Vol. 17, No. 3, March 2014, pp7-8.
• Mishori R, Imran Mujawar, Nirmal Ravi. Self-reported Vicarious Trauma in Asylum Evaluators: a Preliminary Survey. J Immigr Minor Health. 2013 Dec 4.
• Mishori R, Aye Otubu, Vince WinklerPrins. Working with International Populations. Abroad or in your own Backyard. Fam Pract Manag. 2013 Sep-Oct;20(5):27-30.
• Jacob Prunuske, Ranit Mishori, Christopher Morley. The Extent and Methods of Public Health Instruction in Family Medicine Clerkships.. Family Medicine. July 2013.
• Megan Barber, Ranit Mishori. What causes sterile pyuria? Evidence-Based Practice / Vol. 17, No. 2, February 2014, pp E-2-3
• Ranit Mishori, Erica McClaskey, Vince WinklerPrins. Chalmydia Trachomatis: Screening, Diagnosis and Management. . American Family Physician. Am Fam Physician. 2012 Dec 15;86(12):1127-32

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• Paul Jarris, Yumi Jarris, Ranit Mishori, Katie Sellers. Beyond the Exam Room: A Call for Integrating Public Health Into Medical Education. Academic Medicine. 86(11):1347, November 2011.
• Ranit Mishori, Aye Otubu, Aminah Allyn Jones. Colon Cleansing: An Increasingly Popular Practice with Potentially Harmful Consequences. Journal of Family Practice. J Fam Pract. 2011 Aug;60(8):454-7. PMID: 21814639
• Sarah Fellers, Ranit Mishori, Michelle Roett. Pediatric Hyperlipidemia. PEPID (Portable Electronic Physician Information Database). PEPID Primary Care Plus. Evanston, IL: PEPID, 2011. Evidence-Based Practice / Vol. 15, No. 5. p11. eMEdRef briefs
• David S. Meyers, Ranit Mishori, Jessica McCann, Jose Delgado, Ann S. O’Malley, and Ed Fryer Primary Care Physicians’ Perceptions of the Effect of Insurance Status on Clinical Decision Making. Ann Fam Med 2006 4: 399-402
POSTERS:
• Braithwite D, Lin K, Mishori R, Schoenborn NL, Lopez K, Chicaizal A, O’Neill S. Multilevel Factors Impacting Mammography Screening Decisions in the Elderly: Clinician Perspectives. Are We Choosing Wisely? Preventing Overdiagnosis Conference, December 2019. Sydney, Australia.
• Amgalan A, Beer J, Baker M, Pogue M, Rooney A, Mishori R. Making a Global Impact Locally: A Medical Student Run Organization Supports Asylum Seekers and Educates about Global Health. Physicians for Human Rights Student Annual Meeting. Cambridge, MA. November 2019
• Baker M, Rooney A, Sayyed A, Mishori R. LGBTQ+ Human Rights Abuses: A Case Review and Examining the Global Scope. Physicians for Human Rights Student Annual Meeting. Cambridge, MA. November 2019
• Rooney, A., Sayyed, A., Baker, M., Mishori, R. Five-Year Assessment: Growth and Evolution a DC-Based Asylum Clinic. Physicians for Human Rights Student Annual Meeting. Cambridge, MA. November 2019
• Fateen, D., Sayyed, A., Dawood, B, Mishori, R. FGM/C and the Persecution of Women: A Review of Three Cases. Physicians for Human Rights Student Annual Meeting. Cambridge, MA. November 2019
• Wikholm K, Mishori, R, Ottenheimer D, et al. Female Genital Mutilation/Cutting as a Grounds for Asylum Request in the US: An Analysis of Recent Cases. American Public Health Association Annual Meeting. Philadelphia, PA November 2019.
• Mishori, R. Stolarz K, Ravi A., Korostyshevskiy V, Chambers R. Assessing Family Medicine Residency Programs' Training on Human Trafficking: A CERA Survey. Poster presentation. North America Primary Care Research Group (NAPCRG) Annual Meeting. Chicago, IL, November 2018.
• Mishori R., Beilleu R., Pazderka M. Beyond the Exam Room: A Scoping Review of the Benefits and Potential Harms of Screening for the Social Determinants of Health Poster presentation. North America Primary Care Research Group (NAPCRG) Annual Meeting. Chicago, IL, November 2018.
• Johng SY, Oakley M, Mishori R. Digital Scholarship and Promotion in Academic Medicine, Annual Student Scholarship. Washngington DC October 2018
• Dhital Y, Mishori R, Tromiczak C, O’Connor, S. Psychological Impact on Survivors of Tortures of Participation in an Advocacy Event: A Pilot Study. Annual Student Scholarship. Washngington DC October 2018
• Mishori R., Beilleu R., Pazderka M. Beyond the Exam Room: A Scoping Review of the Benefits and Potential Harms of Screening for the Social Determinants of Health. Gold Foundation Annual Research Meeting. Chicago, IL. March 2018.
• Caroline Trevisan, Judy Wang, PhD Linda Kaljee PhD, Ranit Mishori MD, Christopher Loffredo PhD, Jennifer Lee Hepatitis C from the Primary Care Perspective: Screening, Risk Assessment and Management. Georgetown University School of Medicine Student Research Day. April 2017. Washington, DC.
• Jennifer Lee; Caroline Trevisan; Charlene Kuo; Tina Tan; Ranit Mishori, MD, MHS; Linda Kaljee, PhD; Judy Wang, PhD. Knowledge, Attitudes, and Beliefs of Chronic Liver Disease: Systemic barriers to hepatitis C care including challenges in education and communication . Georgetown University School of Medicine Student Research Day. April 2017. Washington, DC.

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• K. C. McKenzie, R. Mishori, S. Tajeda. . Engaging Students in the Evaluation of Asylum Seekers: Building Capacity, Teaching Service and Resilience. Annual Society of General Internal Medicine Conference. Washington, DC April 2017.
• Rajamoorthi, S. Buchanan, L. Mishori, R. Global is Local: Assessing Family Medicine Residency Programs’ Training on the care of Immigrants, Migrants, Torture Survivors, Asylees and Refugees (IMTARs). STFM Annual Meeting. San Diego, CA. April 2017
• Rajamoorthi, S. Buchanan, L. Mishori, R. Global is Local: Assessing Family Medicine Residency Programs’ Training on the care of Immigrants, Migrants, Torture Survivors, Asylees and Refugees (IMTARs). CUGH Annual Meeting. Washington, DC April 2017
• Buchanan, L. Rajamoorthi, S. Mishori, R. Global is Local: Assessing Family Medicine Residency Programs’ Training on the care of Immigrants, Migrants, Torture Survivors, Asylees and Refugees (IMTARs). DC Academy of Family Physicians Annual Meeting. Washington, DC November 2016.
• Vera Hendrix, Ranit Mishori. Menstruation in the Developing World. Georgetown University Research Day. April 2016.
• Brendan Kiernan, Ranit Mishori. Violence in Congolese Sex Workers. Georgetown University Research Day. April 2016
• Hendrix, V. Mishori, R. Menstrual Health & Hygiene: A luxury or a human right? #Menstruation Matters, Period. Social Justice Week. Georgetown University, Washington, DC.March 2016.
• Ranit Mishori, LaTAsha Seliby. Health and Media Fellowship. DC-AFP annual meeting. November 2015. • Katherine Mullins, Andria Cornell, Lacy Fehrenbach, Ranit Mishori. Maternal Levels of Care: Highlights from
an Environmental Scan of State Activities. DC-AFP annual meeting. November 2015. • Katherine Mullins, Andria Cornell, Lacy Fehrenbach, Ranit Mishori. Maternal Levels of Care: Highlights from
an Environmental Scan of State Activities. Medstar Annual Student Research Meeting. October, 2015. • Ranit Mishori, LaTAsha Seliby. Health and Media Fellowship. CENTILE annual colloquium. June 2015. • Alyssa Peace, Ranit Mishori, Tina Tan. Pre-Op testing adherence to national guidelines. DC-AAFP Annual
Meeting. November 2014. • Ranit Mishori, Anne Rosenwald. Advancing Educational Objectives Using Case Competitions. First Annual
CENTILE Colloquium, Georgetown University Medical Center. June 2014. • Ranit Mishori, Karen Naimer, Sucharita Varanasi. Hope Ferdowsian. Multi-Sectoral Response to Sexual
Violence. Consortium of Universities in Global Health (CUGH) Annual Meeting. Washington, DC May 2014. • Vera Hendrix, Ranit Mishori. Menstruation in the Developing World. Consortium of Universities in Global
Health (CUGH) Annual Meeting. Washington, DC May 2014. • Kelley Coffman, Christian Petrauskis, Ranit Mishori Secondary Prevention of Cervical Cancer in Lusaka,
Zambia: Perceived Barriers. Health Justice Track Research Day. GUSOM. March 2014. • Ranit Mishori, Vincent WinklerPrins, Stanley Kozakowsi et al. Medical Students And Residents' Attitudes And
Knowledge About Appropriateness of Care: A National Survey. 2013 NAPCRG Annual Meeting. November 913, 2013 in Ottawa, Ontario. • Ranit Mishori, Jeffrey Weinfeld, Michele Malloy, Joyce Fu. TV And EBM: A Credibility Assessment of Daytime Talk-show Health Information And Advice. 2013 NAPCRG Annual Meeting. November 9-13, 2013 in Ottawa, Ontario • Jacob Prunuske, Ranit Mishori, Linda Chang, Christopher Morley. Evaluation of the Extent and Methods of Public Health Instruction in US Medical Schools. STFM Medical Student Education Annual Meeting. San Antonio, TX. January 2013. • Christopher Morley, Jacob Prunuske, Ranit Mishori, Linda Chang. Evaluation of the Extent and Methods of Public Health Training in US Medical Schools and Family Medicine Training Programs. NAPCRG Annual Meeting. New Orleans, LA. December 2012. • Vera Hendrix, Ranit Mishori. Deal with It. Period. Menstruation in the Developing World. FMEC annual Conference. Philadelphia, PA. November 1-3, 2013

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• Catherine Matthys, Ranit Mishori. Factors impacting Shared Water Filter Usage Among Tanzanian Women. AAFP Global Health Workshop. Minneapolis MN, September 2012.
• Kate Komis, Joyce Fu, Jeffrey Weinfeld, Ranit Mishori. TV and EBM: A Credibility Assessment of Daytime Talk-Show Health Information and Advice. Annual Research Day, Department of Internal Medicine, Georgetown University Hospital. September 2012.
• Megan Barber, Ranit Mishori, TV and EBM: A Credibility Assessment of Daytime Talk-Show Health Information and Advice. Georgetown University School of Medicine Research Day. May 2012.
• Nicholas Zimick, Ranit Mishori, Jeffrey Weinfeld. Analysis of Advertisements Aired During Daytime Network Medical TV Shows. Georgetown University Research Day, April 2013
• Aye Otubu, Ranit Mishori. Skilled Birth Attendant Training in Haiti. Lessons Learned. International Research and Project Workshop, Howard University. December 2011.
• Sarah Kureshi, Ranit Mishori, 'Teaching Health and Human Rights in Medical School - a Pilot'. CUGH/CHEC Conference. Montreal. November 2011.
• Ranit Mishori, Aye Otubu, Kumo Lartevi. “Training Haitian Skilled Birth Attendants in Pregnancy Support, Emergency Obstetric Care and Neonatal Resuscitation”. AAFP Global Health Workshop. San Diego. October 2011.
• Rochelle E. Tractenberg, Jeff Collmann, Joel Selanikio, Amanda Liddle, Ranit Mishori, Kevin FitzGerald, Wolfgang Rennert. An integrated medical education (IME) system via SMS mobile technology for use by rural medical/public health providers in Kenya. Poster. Northeast Group on Educational Affairs (NEGEA) Annual Retreat. Washington, DC March, 2011.
• Matthew Burke, Steve Maynard, Ranit Mishori, Joe Giere. Sacre Coeur Hospital Records Improvement Project (SCHRIMP). Poster. NAPCRG Annual Meeting, Seattle Washington, November 2010.
• Ranit Mishori, Marguerite Duane, Daniel Harris. Beyond Traditional “Medical Spanish”: Enhancing Medical Students’ Ability to Communicate With Their Spanish-speaking Patients. Poster Presentation. Society of Teachers of Family Medicine, Annual Pre-Doctoral Meeting. Jacksonville, Florida. January 2010.
• Moore, Eileen, Mishori Ranit, Meyers David. Clinician and Patient Perceptions of the Burden and Manifestations of Ongoing Terrorism Threats. Poster Presentation. North American Primary Care Research Group (NAPCRG). October 2003
BOOK CHAPTERS
• Developing Global Health Programming: A Guidebook for Medical and Professional Schools, Second Edition. Chapter 7: Teaching and Implementing Advocacy. Editor: Ranit Mishori, Lindsey Briggs. ISBN 9780578127217. Copyright: Global Health Collaborations Press. Published January 15, 2014.
• Haiti: Clinical Medical Guide. Ranit Mishori, Editor: Maternal Care Chapter. Editor: Preventive Health Chapter. Publication. Fall 2012.
• Marguerite Duane, Ranit Mishori. Chapter: Preventive Medicine. In Essentials of Family Medicine, 6th Edition. Editors: Sloane et al. Publication Date: May 20, 2011. ISBN/ISSN: 9781608316557
POLICY STATEMENTS • Co-author, All Health Policies of the Pete Buttigieg presidential campaign. April 2019-current. • Co-Author, AAFP Position paper on Mental Health in Primary Care. 2018. • Co-Author, AAFP Position paper on Incarceration and Health. 2016. • Co-author, AAFP Policy Healthy Nutrition in Health Care Facilities and Other Workplaces 2016 • Co-Author, AAFP Policy Violence as a Public Health Concern 2016 • Co-Author, AAFP Policy on Organ Donation, 2016 • Lead Author, AAFP Position Paper, Mental Health Care Services by Family Physicians 2016 • Lead Author, AAFP Policy, Human Trafficking 2016 • Lead Author: AAFP Position paper Youth Violence and Media 2015

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• Lead Author: AAFP Policy. Female Genital Cutting 2015 • Co-Author: AAFP Tobacco and Nicotine Product Policy 2015 • Co-author: AAFP position paper PreConception Counseling 2015 • Co-author AAFP position paper: Youth Alcohol Advertising 2015 • Co-Contributor: APHA Policy Proposal: Support for More Training and Research on the Interaction Between
Human Trafficking and Healthcare. 2015. • Lead Reviewer, author: AAFP Resolution. Don’t Rape Programs 2014 • Lead Reviewer, author: AAFP Resolution. Sexual Assault Resources. 2014 • Co-Author: AAFP Tobacco and Nicotine Product Policy 2014 • End Violence Against Girls: FGM/C Summit report. Healthcare Sector Recommendations Strategies to
Respond to FGM/C in the United States. Published April 2017. http://www.equalitynow.org/sites/default/files/Summit%20FGM_Recommendations_HEALTHCARE_sector.pdf • Mishori, R, Carson, C. Participation of Transgender Athletes in Sports: A Review (2014 Update). White paper prepared for The US Masters Swimming Rules Committee, Subcommittee on Competition after Gender Reassignment. December 2014 • Mishori, R, Participation of Transgender Athletes in Sports: A Brief Review. White paper prepared for The US Masters Swimming Rules Committee, Subcommittee on Competition after Gender Reassignment. April 2012.
CONFERENCE PRESENTATIONS
• Ottenheimer D, Cassohboy A, Mishori, R. "Female Genital Mutilation/Cutting (FGM/C) in the US after the Michigan Ruling. Now What?" APHA Annual Meeting. Phladelphia, PA, 2019
• Haar R, Khin MW, Mishori, R. Conflict-Related Public Health Vulnerabilities in Myanmar and Investigation of Human Rights Abuses of Rohingya Refugee. APHA Annual Meeting. Philadelphia, PA, Novmber 2019
• McKenzie K. Ferdowsian H. Mishori, R. Incorporating Health and Human Rights in Medical Education. North America Refugee Health Conference. Toronto, ON. June 2019.
• Jarris Y, Chen C, Cammack A, Kureshi S, Mishori R. A Longitudinal Medical Student Curriculum on Screening for Food Insecurity” CENTILE colloquium /MedStar Research Symposium. Columbia, MD. May 2019.
• Atkinson H, Ottenheimer D, Mishori, R. FGM/C US Research Agenda. 3rd International Expert Meeting on FGM/C. Brussels, Belgium. May 20-22, 2019
• Wikholm K, Mishori R, Ottenheimer D, Wikholm N, Khortoshevsy V, Reingold R, Hampton K. Analysis of FGM/C Asylum Cases. 3rd International Expert Meeting on FGM/C. Brussels, Belgium. May 20-22, 2019
• Mishori, R. Female Genital Mutilation of Girls in the United States: Why Child Protection Officials Should be Concerned. 21st National Conference on Child Abuse and Neglect. April 25th. 2019 Washington, DC
• Mishori, R. Rahman Z. The Rohingya Refugee Crisis: a Family Medicine Perspective. WONCA World Conference. Seoul, South Korea. October 2018.
• Mishori, R. Global and Domestic Human Trafficking: An overview. AAFP Global Health Summit. Jacksonville, FL. September 2018
• Mishori, R. A Conversation We must Have: Safety and Security Protocols in Global Health Programs. AAFP Global Health Summit. Jacksonville, FL. September 2018
• Namak S, Sahhar F., El RAyess F, Kureshi S, Mishori, R. International Medical Graduates: Adversity, Loss, and Improved Global Health. AAFP Global Health Summit. Jacksonville, FL. September 2018.
• Sheth N, O’Connor S, Patel S, Mishori, R. Dutton MA, Global Mental Health in our own Backyards: A Collaborative Needs Assessment of Refugee and Asylee Mental Health. North American Refugee Health Conference. Portland, OR, June 2018
• Mishori, R. McKenzie K, Stukel N., Thomas, A. Medical Evaluation of Asylum Seekers: Lessons from Two University-Based Models. STFM Annual Meeting. Washington DC. May 2018.
• Nguyen M., Kureshi S., Lin L, Mishori R. How to Write an Op-Ed. Washington DC. May 2018

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• Mishori, R. Carlough, M, Walden J. Migrant Health in the US. Pre-Conference on Refugee Health. AAFP Annual Global Health Workshop. Houston, TX, October 2017.
• Mishori, R. Human Trafficking: An overview. Advice for the Family Physician. AAFP Annual Global Health Workshop. Houston, TX, October 2017.
• Mishori, R. The ABCs of FGM. AAFP Annual Global Health Workshop. Houston, TX, October 2017. • Mishori, R. Human Rights, Why is it a Doctor’s Business. AAFP Annual Global Health Workshop. Houston,
TX, October 2017. • Mishori, R. A Conversation We Must Have: Safety and Security in Global Health AAFP Annual Global Health
Workshop. Houston, TX, October 2017. • Mishori, R. The Medical Evaluation of Asylum Seekers AAFP Annual Global Health Workshop. Houston, TX,
October 2017. • A Conversation We Must Have: Safety and Security in Global Health • Valdman O., Mishori, R., Waldman J., Carlough M. Building capacity to care for refugees: Nuts and Bolts of
setting up refugee health care services in your clinical site. North American Refugee Health Conference. Toronto, Ca. June 2016 • Praschan N, Vaidya P, Hennessey C, Stukel N, Mishori R, Improving an Asylum Program: Lessons from GUSOM, March 23, 2017 – Health Justice Week. Georgetown University School of Medicine. Washington, DC. • Praschan N, Vaidya P, Mishori, R. Barriers and Facilitators to Participation for Clinician Volunteers. March 23, 2017 – Health Justice Week. Georgetown University School of Medicine. Washington, DC. • Wu S, FitzGerald K, Mishori R, Reingold, R. Improving FGM/C healthcare and clinical guidelines through community engagement and leadership. Management and Prevention of FGM/c. Geneva, Switzerland. March 2017 • Mishori R, FitzGerald K, Wu S, Reingold R. Making an Ethical Decision in the Exam Room: A Brief Review of the Legal, Ethical and Moral aspects of the Clinical Management of FGM/C. Management and Prevention of FGM/c. Geneva, Switzerland. March 2017. • Reingold R, Mishori R, FitzGerald K, Wu S. A Cross-Country Comparison: Trends in the Adoption and Enforcement of FGM/C Laws relating to Reinfibulation and Vacation Cutting. Management and Prevention of FGM/c. Geneva, Switzerland. March 2017. • Maria van den Muijsenbergh (Holland); Aral Sürmeli (Turkey); Kevin Pottie (Canada); Ana Costa, Guus Busser (Holland); Christos Lionis (Greece): Ranit Mishori (US); Jill Benson (Australia); Refugees in primary care: what are their needs and how can we care best? WONCA World Meeting. Rio de Janeiro, Brazil. November 2016. • Mishori R, Lin K, Teber K, Kamerow D, Bauer L. Media Workshop for Primary Care Physicians. A daylong media workshop covering how to speak to the media, social media, making a pitch, creating a media strategy and more. Georgetown University School of Medicine. September 2016 • Mishori, R. Human Trafficking: An Overview” • AAFP Global Health Workshop. Atlanta, GA, September 2016 • Mishori, R. The ABC's of Female Genital Cutting/Mutilation: What Clinicians Need to Know. AAFP Global Health Workshop. Atlanta, GA, September 2016 • Mishori, R Human Rights: Why it is a Doctor's Business. AAFP Global Health Workshop. Atlanta, GA, September 2016 • Mishori, R. A Student-Run Asylum Program: Service, Capacity Building, and Refugee Health. AAFP Global Health Workshop. Atlanta, GA, September 2016 • Ranit Mishori, Nathan Praschan, Kevin Diasti, Nicholas Stukel. • Creating a Student-Run Asylum Program: Service, Capacity Building, and Refugee Health. North American Refugee Health Conference. Niagara Falls, NY. June 11-14, 2016. • Ranit Mishori, Hope Ferdowsian, Sarah KureshiMed School Goes To War: Using an Online Game to Teach About Survival During Conflict. North American Refugee Health Conference. Niagara Falls, NY. June 11-14, 2016.

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• Ranit Mishori, Alexa Koenig, Wendy Betts, Betsy Beaumon. • The Art of Admission: How Mobile Apps Are Documenting Court-Admissible Evidence of Human Rights
Violations RightsCon. San Francisco. March 2016. • Ranit Mishori, Sucharita Varanasi, Michael Antasario, Dori Able. Armed with Mobile Technologies: Public
Health Emergencies and Fragile Situations. Medicapt: Improving documentation of Sexual Violence. Global mHealth Forum. Annual mHealth Conference. Washington, DC, November 2015. • Ranit Mishori, Susannah Sirkin. Human Rights – Why it is a Doctor’s Business. FMEC Annual Northeast Regional Meeting. Boston, MA. October 2015. • Ranit Mishori, Mikhail Varshavsky, Laurence Bauer. Leadership Skills: Media Training. FMEC Annual Northeast Regional Meeting. Boston, MA. October 2015. • Gretchen Heinrichs, Ranit Mishori, Katherine Stolarz. Female Genital Cutting/Mutilation: What clinicians Need to Know. AAFP Annual Global Health Workshop. Denver, CO. October 2015. • Ranit Mishori, Daniel Kortsch. Refugee and Immigrant Health in the US and Canada: Challenges and Opportunities for the Family Physician. AAFP Annual Global Health Workshop. Denver, CO. October 2015. • Andrew Eastman, Ranit Mishori. Violence Towards Health Care Workers in Conflict and Nonconflict Global Health Settings: Current Trends, Operating Environment, and Situational Awareness. AAFP Annual Global Health Workshop. Denver, CO. October 2015. • Ranit Mishori, James Sanders, Shoshana Aleinikoff, Melanie Raffoul. Evaluating Refugees and Asylum Seekers. What you Need to Know. AAFP Annual Global Health Workshop. Denver, CO. October 2015. • Ranit Mishori, MD, MHS, Kelly DiLorenzo (M4) , Nathan Praschan (M2), Nicholas Stukel (M2). Teaching Clinical Human Rights through a Student-Run Asylum Clinic. CENTILE 2nd annual Colloquium. June 2015. • Jarris, Y. Mishori, R., Stoto M., Furlong, M. Preparing Medical Students for Their Roles in a Public Health Emergency. CENTILE 2nd Annual Colloquium. June 2015. • Christopher Morely, Jacob Prunuske, Ranit Mishori, Scott Rosas, William Jordan, Yumi Jarris. Essential Public Health Competencies for Medical Trainees: Establishing a Consensus. Annual STFM Conference on Medical Student Education. February 2015. Atlanta, GA • Christopher Morely, Jacob Prunuske, Ranit Mishori, Scott Rosas, William Jordan, Yumi Jarris. Essential Public Health Competencies for Medical Trainees: Establishing a Consensus. Annual NAPCRG conference. New York City, November 2014. • Ranit Mishori, Larry Bauer. Family Medicine and the Media. FMEC Annual NE regional meeting, Washington, DC October 2014
• R, Mishori, Praseedha Janakiram, Daniel Kortsch. Refugee & Immigrant Health within the US and Canada. AAFP Annual Global Health Workshop, San Diego, CA September 2014.
• Sam Matheny, Olga Valdman, Paul Hennig, Jeff Hall, Jessica Evert, Will Perez, Ranit Mishori, Jeff Markuns, Omar Khan. Family Medicine Place in the Broader Global Health Conversation: A collaborative SWOT analysis. AAFP Annual Global Health Workshop, San Diego, CA September 2014.
• Ranit Mishori, Anne Rosenwald, Bridget Kelly. Case Competitions: a New Frontier in Inter-Professional Health Education? AMEE Annual Meeting, Milan, Italy, September 2014.
• Ranit Mishori, Karen Naimer, Sucharita Varanasi. Harnessing the Power of Technology to Improve Accountability for Sexual Violence. Global Summit on Sexual Violence in Conflict Zones. London, UK, June 2014.
• Ranit Mishori, Anne Rosenwald. Teaching Health Disparities via Case Challenges. CENTILE Colloquium. GUMC. June 2014
• Winston R. Liaw, Andrew Bazemore, Ranit Mishori, Philip M. Diller, Inis Jane Bardella, Newton Cheng. The Financial Health of Global Health Programs. STFM Annual Meeting, San Antonio, TX. April 2014.
• Paul R. Larson, Bruce Dahlman, Memoona Hasnain, Joseph J. Brocato, William E. Cayley Jr, Andrea L. Pfeifle, Linda Hogan, Fadya El Rayess, Bich-May Nguyen, Brian M Johnson, Anna Doubeni, Ranit Mishori. Strengthening Family Medicine Faculty Development: Needs Assessment to Guide Countries Where The

Case 3:20-cv-02731-VC Document 5-3 Filed 04/20/20 Page 35 of 39
Specialty Is Emerging. STFM Annual Meeting, San Antonio, TX April 2014. • Karen Naimer, Ranit Mishori, Sucharita Varanasi. Harnessing the Power of Technology to Improve
Accountability for Sexual Violence. RightsCon. Silicone Valley, 2014. • Jacob Prunuske Linda Chang Ranit Mishori Dean Seehusen Alison Dobbie Christopher Morley .The Extent
And Methods of Public Health Instruction In Family Medicine Undergraduate And Graduate Medical Education. 2013 NAPCRG Annual Meeting. November 9-13, 2013 in Ottawa, Ontario • Morely CP, Prunuske J, Mishori, R, Jordan W, Jarris Y. Essential Public Health Competencies for Medical Trainees: Establishing a Consensus. 2013 NAPCRG Annual Meeting. November 9-13, 2013 in Ottawa, Ontario • Ranit Mishori, Sarah Kureshi. Identification and Management of Victims of Human Trafficking – Advice for the Family Physician. Annual AAFP Global Health Workshop. Baltimore, MD, October 2013. • Mark Ryan, Ranit Mishori. The Shrinking Globe: Social Media and Global Health. Plenary Session. Annual AAFP Global Health Workshop. Baltimore, MD, October 2013. • Ranit Mishori, Gender Based Violence (GBV) in Conflict Zones. Plenary session. Annual AAFP Global Health Workshop. Baltimore, MD, October 2013. • Ranit Mishori, Phillip Nguyen, The Medical Evaluation of Asylum Seekers. Annual AAFP Global Health Workshop. Baltimore, MD, October 2013. • Ranit Mishori (moderator), Scott Loglieger (moderator). From Policy to Practice: Primary Care’s Role in Global Health. CUGH Annual Meeting. Washington, DC. March 2013. • Jacob Prunuske, Yumi Jarris, Willam Jordan, Ranit Mishori, Christopher Morley. Optimizing Integration of Public Health and Medical Education: The Role of Family Medicine Residencies. 46th STFM Annual Spring Conference. Baltimore, MD May 2013 • Prunuske, Morley, R. Mishori, Chang. The Extent and Methods of Public Health Instruction in US Family Medicine Residency Programs. 46th STFM Annual Spring Conference. Baltimore, MD May 2013 • Ashley Bentley, Ranit Mishori. Exposing Students to Family Medicine Through Global Health Research. 46th STFM Annual Spring Conference. Baltimore, MD May 2013 • Jacob Prunuske, Yumi Jarris, Willam Jordan, Ranit Mishori, Christopher Morley. Optimizing Integration of Public Health and Medical Education: The Role of Family Medicine Educators. STFM-Annual Medical Education Conference. January 2013. San Antonio, TX. • Ranit Mishori. Conducting Asylum Evaluations: A Workshop for Family Physicians. FMEC/NE-STFM Annual Meeting. Cleveland, OH. September 2012. • Ashley Bieck, Ranit Mishori, Stealth Family Medicine: Exposing students to family medicine through global health research. AAFP Global Health Workshop. Minneapolis, MN. September 2012. • Ranit Mishori (moderator). USPSTF in Practice. Preventive Medicine 2012. Annual Meeting of the American College of Preventive Medicine. Orlando, FL. February 2012. • Yumi Jarris, Alison Bartleman, Ranit Mishori, Erica McClaskey. A First Year Medical Student Curriculum on The Patient-Centered Medical Home. Presentation. Society of Teachers of Family Medicine. Annual Medical Education Conference. February, 2012 • Caroline Wellbery, Vince WinklerPrins, Yumi Jarris, Ranit Mishori. • From Motivational Interviewing to System-based Care: A Third-year Clerkship Chronic Care Model Curriculum And OSCE. Presentation. Society of Teachers of Family Medicine. Annual Medical Education Conference. February, 2012. • Jacob P. Prunuske, Linda Chang, Ranit Mishori, Christopher P. Morley. Public Health Training In Medical Education: Developing The Role of Family Medicine. Discussion. Society of Teachers of Family Medicine. Annual Medical Education Conference. February, 2012. THIS PRESENTATION WAS SELECTED AS A ‘MODEL PROPOSAL’ BY THE STFM. • Ranit Mishori, Nancy Harazduk. Using Mind-body Medicine Skills to Reduce Stress And Enhance Well-being for Medical Students And Faculty. Workshop. Society of Teachers of Family Medicine. Annual Medical Education Conference. February, 2012. • Ranit Mishori, Lawrence Bauer. Global Health Leadership Initiative. Family Medicine Education Consortium

Case 3:20-cv-02731-VC Document 5-3 Filed 04/20/20 Page 36 of 39

Annual Meeting. Danvers, MA. October 2011. • Caroline Wellbery, Ranit Mishori. Promoting Family Medicine as a Career Choice. Presentation. Society of
Teachers of Family Medicine. Annual Meeting. Vancouver, Canada. April, 2010

Reviews or Editorials in Refereed Journals

• Ranit Mishori, Jessica Evert. Invited editorial. Global Health – Now More Than Ever. American Family

Physician.

• Ranit Mishori. Older Americans with Supplemental Insurance – Higher Post-MI Coronary Revascularization

Rate and Lower in Hospital Mortality. Journal of the National Medical Association. Vol 96, No. 8 August 2004.

• Ranit Mishori. Absence of Pre-Existing Conditions at Time of Diagnosis of Prostate Cancer Associated with

Higher Death Rates in Black Men. Journal of the National Medical Association. Vol 96, No. 8 August 2004

• Carotid Endarterectomy in Older Women and Men in the United States: Trends in Ethnic Disparities. Press

Release for the National Medical Association. July 2005.

• Awareness and Use of the PSA test among African American Men.

Press Release for the

National Medical Association. June 2005.

• Asthma Consensus Paper. The National Medical Association. Editor. October 2004

• Ranit Mishori, Humanitarianism Survives, Despite Being Under the Gun. Letter to the Editor. JAMA,

1997;278(19):1569.

Reviewing and Editing • Reviewed and edited women’s health topics for the website of the National Women's Health Resource
Center. www.HealthyWomen.org 2009-2012. • Reviewed and edited Men’s Health topics for the Men’s Health Information website of the Department of Health
and Human Services. August 2010

Articles in Non Peer-Reviewed Publications

Published over 200 articles in the popular press. • Regular Columnist for Parade Magazine. StayHealthy column (readership 70-million). 2008-2011. • Other Publications include: Washington Post, The Huffington Post. Angle Journal. AARP - The Magazine, The
New York Daily News and others. 2002-Present.

PUBLICATION LIST MAY BE REQUESTED SEPARATELY.

Other Scholarly Contributions
Recent Online Publications: • Ranit Mishori and Kathryn Hampton. The Worst Immigration Policy You’ve Never Heard Of.
https://thehill.com/opinion/immigration/477329-migrant-protection-protocols-the-worst-immigration-policyyouve-never • Ranit Mishori and Sondra Crosby. "Not just rapper T.I. : Doctors get requests for sexist, unscientific 'virginity tests'." USA Today. 2019 • Kate McKenzie, Kate Sugarman and Ranit Mishori. "Physicians to Trump: Immigration detention centers must close." The Hill. 2019 • Ranit Mishori, "We must help asylum-seekers. Here’s a key way to do that.," AAMC.org, October 18, 2019, https://www.aamc.org/news-insights/insights/we-must-help-asylum-seekers-here-s-key-way-do • Ranit Mishori. "An ICE detention center wants a doctor who will follow orders. That’s unethical.." The Washington Post. 2019

Case 3:20-cv-02731-VC Document 5-3 Filed 04/20/20 Page 37 of 39
• Mishori, R., Naimer K, McHale T., "The little tissue that couldn’t – the hymen’s role in determining sexual history or assault," On Health, BMC Blog, July 31, 2019, https://blogs.biomedcentral.com/on-health/2019/07/25/thelittle-tissue-that-couldnt-the-hymens-role-in-determining-sexual-history-or-assault/.
• Phelim Kine, Ranit Mishori, "“Branded”: Myanmar Military Mutilations of Rohingya Civilians," https://phr.org/resources/branded-myanmar-military-mutilations-of-rohingya-civilians/, June 28, 2019
• Mishori, R, "Can Flexible Training Help Combat Burnout?," The Medical Care Blog, May 2, 2019, https://www.themedicalcareblog.com/flexible-training-burnout/.
• Ranit Mishori. Marketing Cigarettes and e-Cigarettes: New Product, Same Tactics. Medscape. February 13, 2019. https://www.medscape.com/viewarticle/908749
• Ranit Mishori. Female Genital Mutilation: Why Are Doctors Silent? - Medscape - Jan 07, 2019. https://www.medscape.com/viewarticle/907104
• Ranit Mishori, "The Social Determinants of Health? What about the Political determinants of Health?," APHA The Medical Blog, October 04, 2018, https://www.themedicalcareblog.com/political-determinants-of-health/.
• Ranit Mishori, "Why I wore my white doctor's coat to protest family separation and detention," USAToday, July 18, 2018, https://www.usatoday.com/story/opinion/2018/07/18/doctors-must-speak-out-separated-immigrantchildren-column/786638002/.
• Ranit Mishori, "Let's Not Forget the Injured in Shootings," AAFP, March 08, 2018, https://www.aafp.org/news/opinion/20180308guestedinjured.html.
• Ranit Mishori, "Cutting Global Health Funding Puts Americans At Risk," AAFP, February 22, 2018, https://www.aafp.org/news/opinion/20180222guestedglobal.html.
• Ranit Mishori, "Pulling back the curtain on ‘The Doctors’ and ‘The Dr. Oz Show:’ What our analysis revealed," Healthnewsreview.org, February 22, 2018, https://www.healthnewsreview.org/2018/02/pulling-back-thecurtain-on-the-doctors-and-the-dr-oz-show-what-our-analysis-reveals/.
• Ranit Mishori, "From Journalism to Medicine: Not Such a Huge Leap After All," STFMblog, November 09, 2017, https://blog.stfm.org/?s=mishori.
• Ranit Mishori, Jeanine Turner, Alisse Hannaford, Matthew Biel, "Latino Kids and Autism. Why Are They Diagnosed So Late?," Angle Journal, January 2017, http://anglejournal.com/article/2016-11-latino-kids-andautism-why-are-they-diagnosed-so-late/.
• Ranit Mishori, "Mishori, R. On Reinfibulation: Part of the Female Genital Mutilation/Cutting Discussion that Rarely Gets Mentioned," Huffington Post, 2017, https://www.huffingtonpost.com/entry/on-reinfibulation-part-ofthe-female-genital-mutilation_us_59a85813e4b096fd8876c15e.
• Ranit Mishori, Rebecca Reingold, Kevin FitzGerald, Samantha Wu, "The Criminalization of FGM in the United States. Responding to Female Genital Cutting: The Michigan Case and Beyond.," Berkely Center, 2017, . https://berkleycenter.georgetown.edu/forum/female-genital-cutting-the-michigan-case-andbeyond/responses/the-criminalization-of-fgm-in-the-united-states.
• Hope Ferdowsian, Karen Naimer, Ranit Mishori, "Prosecuting Sexual Violence in Conflict A medical approach," Angle Journal, January 2016, https://anglejournal.com/article/2015-12-clinicians-in-the-prosecutionof-conflict-related-sexual-violence/.
• Ranit MIshori and Hope Ferdowsian, "When It Comes to Rape Myths, The U.S. Is No Better Than Conflict Zones," Huffington Post, 2016, https://www.huffingtonpost.com/ranit-mishori-md-mhs/rape-in-conflict-zonesan_b_10707854.html.
• Ranit Mishori. Tanvi Nagpal., "Women and Toilets. A Tale of Two Worlds.," The Huffington Post, November 17, 2015, https://www.huffingtonpost.com/ranit-mishori-md-mhs/women-and-toilets-a-tale-_b_8575622.html.
• Ranit Mishori, "No Z-pack for you!," Huffington Post, 2015, https://www.huffpost.com/entry/antibioticresistance_b_8599678.
• Sexual Violence: From the Exam Room to the Courtroom and the Bumpy Road in Between, "Ranit MIshori," The Huffington Post, 2015, https://www.huffingtonpost.com/ranit-mishori-md-mhs/sexual-violence-from-the_b_8681850.html.
• Ranit Mishori, "Why doctors should study human rights," The Washington Post, December 10, 2014,

Case 3:20-cv-02731-VC Document 5-3 Filed 04/20/20 Page 38 of 39
https://www.washingtonpost.com/posteverything/wp/2014/12/10/why-doctors-should-study-humanrights/?utm_term=.f34670b7ba03. • Ranit Mishori, "If we don't ask they won't tell," Huffington Post, June 26, 2012, https://www.huffingtonpost.com/ranit-mishori-md-mhs/if-we-dont-ask-they-wont-_b_1625506.html. • Ranit Mishori, "Time for Total Medicine -- Get Family Medicine Out of the Shadows," Huffington Post, 2012, https://www.huffpost.com/entry/family-medicine_b_1575860. • Mishori, R., Turner, J., Hannaford, A., & Biel, M. (2017, Jan). Latino Kids and Autism. Why Are They Diagnosed So Late? Angle Journal. Retrieved from http://anglejournal.com/article/2016-11-latino-kids-andautism-why-are-they-diagnosed-so-late/
• Ranit Mishori. American Academy of Family Physicians (AAFP) Global health Guidelines: Practicing Global Health in my backyard. Web-based Publication December 2015.
Non-Fiction, Invited Book Reviewer • Dissecting American Health Care: Commentaries on Health, Policy, and Politics. Douglas B. Kamerow, MD,
MPH. RTI Press. September 2011; • Pacifiers Anonymous. Sumi Sexton, MD. Publication, May 2010. • Saving Henry: A Mother’s Journey. Laurie Strongin. Hyperion. March 2010
PAID CONSULTANT
Physicians for Human Rights. 2011-present. Senior Medical Advisor. Program on Gender Based Violence in Conflict Zones (DRC, Kenya)
- Curriculum design and development; creation of teaching materials. - Teaching and leading seminars and workshops for cross-sectoral teams - Writing: research manuscripts, reports, advocacy materials - Research, M&E activities: study design, survey development, analysis, IRB submissions - Conference presentations and representation. Asylum Network: - Design teaching materials. - Lead Asylum workshops for clinicians - Ad-hoc consulting on projects, research. Policy and Advocacy, Special Projects - Ad-hoc support with media strategy, advocacy, technical writing, media appearances, policy briefings. - Field work in Bangladesh (fall 2017).
World Bank. 2012-2015. • Estonia – Reforming the Primary Care Infrastructure. 2013-2014. • Western Balkans: Health Network Analysis for Tracer Conditions. Aneesa Arur, Ranit Mishori. Work in Progress.
September 2012-September 2013. • Authored report: Serbia’s Health System: Issues and Options for Reform. A World Bank Policy Note. July 2012.
Christoph Kurowski (Task Team Leader), Ranit Mishori, Ethan Yeh and Ana Holt Authored report: Clinical Quality Outcomes for Middle and High Income Countries. White Paper. October 2011 – February 2012
Healthcentral.com (a commercial health information portal).Reviewed and edited content on cardiovascular disease for 2008-2009.
PROFESSIONAL DEVELOPMENT:

Case 3:20-cv-02731-VC Document 5-3 Filed 04/20/20 Page 39 of 39
• The Association of Medical Education in Europe (AMEE): Research Essential Skills in Medical Education (RESME). Pre-Conference Workshop. Milan, Italy August 28-Sept 4, 2014.
• SIT. Systematic Inventive Thinking Workshop. Bertelsmann Foundation Young Leaders Annual Network Meeting. Potsdam, Germany. October 2010. (By Invitation).
• AAMC: The Early Career Women Faculty Professional Development Seminar. Washington, DC. July 2010. (By Competitive Selection Process)
• Immunity to Change: How to Overcome It and Unlock the Potential in Yourself and Your Organization. Prof. Robert Kagan/Harvard University; Bertelsmann Young Leaders Network Israel, May 5-9, 2009 (By invitation).
• Mind-Body Medicine Faculty Workshop. Belmont, Maryland, July 9-11, 2008 (By selection). • Young Leaders Fellowship. Leadership Development, Bertelsmann Foundation. Berlin, June 5-15, 2007; Israel,
October 10-19, 2007. (Nominated. Competitive selection process
GLOBAL HEALTH ACTIVITIES: Field Work: • Bangladesh, Rohingya Refugee Camps. Fact Finding Mission. October 2017. • Sexual Violence Multi-Sectoral Training. DRC, Kenya. 2-3 trips annually. 2012-Current. • Medical Education missions. Training local health care workers. Curriculum development. Supervising Family
Medicine residents. Haiti, May 2011, 2012, 2013. • Medical Mission. Pinares, Honduras. Medical care; supervising Family Medicine residents and medical students.
February 2011 • Fact-finding mission. Concepcion, Honduras. July 2010 • Fact-finding mission. Supervising Family Medicine Resident and Fellow. Milot, Haiti. May 2010 • Service Trip, Dominican Republic; Supervising medical students, Residents. November 2009 • Global Health Elective. PGY-III. Northern Israel. Maternal and Child Health. August 2007. • Global Health Elective. PGY-II. Israel. Community Genetics. August 2006. • Global Health Elective. MS-IV.Physicians for Human Rights Clinic. Israel. March 2002.
Master’s Thesis. John’s Hopkins Bloomberg School of Public Health. The Changing Disease Patterns in Ethiopian Immigrants to Israel. May 1999.
MILITARY SERVICE Israeli Defence Forces (IDF). Mandatory Military Service. Basic Training. Rank: Staff Sergeant. Served in IDF Radio Station, news division 1984-1986.
I certify that this curriculum vitae is a current and accurate statement of my professional record.

Signature:__

_____

Date: 1/1/2020 _________

Case 3:20-cv-02731-VC Document 5-4 Filed 04/20/20 Page 1 of 8

1 WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org
2 SEAN RIORDAN (SBN 255752) sriordan@aclunc.org
3 ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org
4 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN
5 CALIFORNIA 39 Drumm Street
6 San Francisco, CA 94111 Telephone: (415) 621-2493
7 Facsimile: (415) 255-8437
8 Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page
9

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: 415-553-9319 Fax: 415-553-9810

10

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12

13 ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUIZ TOVAR, LAWRENCE
14 MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA
15 YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,
16 Petitioners-Plaintiffs,
17 v.
18 DAVID JENNINGS, Acting Director of the
19 San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T.
20 ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director
21 of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND
22 CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa
23 Verde Detention Facility,

CASE NO.
DECLARATION OF LISA KNOX REGARDING CONDITIONS OF CONFINEMENT AT THE MESA VERDE ICE PROCESSING FACILITY

24

Respondents-Defendants.

25

26

27

28
DECLARATION OF LISA KNOX REGARDING CONDITIONS OF CONFINEMENT AT THE MESA VERDE ICE PROCESSING FACILITY

Case 3:20-cv-02731-VC Document 5-4 Filed 04/20/20 Page 2 of 8

1 BREE BERNWANGER* (NY SBN 5036397) MARTIN S. SCHENKER (SBN 109828)

bbernwanger@lccrsf.org

mschenker@cooley.com

2 TIFANEI RESSL-MOYER (SBN 319721)

COOLEY LLP

tresslmoyer@lccrsf.org

101 California Street, 5th Floor

3 HAYDEN RODARTE (SBN 329432)

San Francisco, CA 94111

hrodarte@lccrsf.org

Telephone: (415) 693-2000

4 LAWYERS’ COMMITTEE FOR

Facsimile: (415) 693-2222

CIVIL RIGHTS OF

5 SAN FRANCISCO BAY AREA

TIMOTHY W. COOK (Mass. BBO# 688688)*

131 Steuart St #400

tcook@cooley.com

6 San Francisco, CA 94105

FRANCISCO M. UNGER (Mass. BBO#

Telephone: (415) 814-7631

698807)*

7

funger@cooley.com

JUDAH LAKIN (SBN 307740)

COOLEY LLP

8 judah@lakinwille.com

500 Boylston Street

AMALIA WILLE (SBN 293342)

Boston, MA 02116

9 amalia@lakinwille.com

Telephone: (617) 937-2300

LAKIN & WILLE LLP

Facsimile: (617) 937-2400

10 1939 Harrison Street, Suite 420

Oakland, CA 94612

11 Telephone: (510) 379-9216

Facsimile: (510) 379-9219

12

JORDAN WELLS (SBN 326491)

13 jwells@aclusocal.org

STEPHANIE PADILLA (SBN 321568)

14 spadilla@aclusocal.org

AMERICAN CIVIL LIBERTIES UNION

15 FOUNDATION OF SOUTHERN CALIFORNIA

1313 West Eighth Street

16 Los Angeles, CA 90017

Telephone: (213) 977-9500

17 Facsimile: (213) 977-5297

18

Attorneys for Petitioners-Plaintiffs

*Motion for Admission Pro Hac Vice Forthcoming

19

20

21

22

23

24

25

26

27

28
DECLARATION OF LISA KNOX REGARDING CONDITIONS OF CONFINEMENT AT THE MESA VERDE ICE PROCESSING FACILITY

Case 3:20-cv-02731-VC Document 5-4 Filed 04/20/20 Page 3 of 8

1 DECLARATION OF LISA KNOX REGARDING CONDITIONS OF CONFINEMENT

2

AT THE MESA VERDE ICE PROCESSING FACILITY

3 I, Lisa Knox, hereby declare as follows:

4

1. I am an Immigration Managing Attorney at Centro Legal de la Raza (“Centro

5 Legal”), a non-profit organization in San Francisco, California, that provides comprehensive

6 services to immigrants, including legal services. In that role, I manage and regularly supervise a

7 twice-monthly legal services clinic at the Mesa Verde ICE Processing Center (“Mesa Verde”).

8 In the past year, I have personally attended and supervised seven legal service clinics at the

9 facility.

10

2. The facts stated in this declaration are true and of my own personal knowledge,

11 except as to any matters stated on information and belief, and as to those matters, I am informed

12 and believe them to be true.

13

3. Centro Legal has provided legal services at the Mesa Verde facility since its

14 opening in approximately 2015. I have regularly attended these visits since 2016. Centro Legal

15 and its partner organizations currently conduct legal clinics in the facility’s second-floor

16 cafeteria area. To enter the cafeteria area, staff pass by two men’s dormitories and another

17 cafeteria area that is used for meals. All of these areas are visible through windows as staff pass

18 by.

19

4. In my experience, the Mesa Verde facility lacks the medical resources to be

20 responsive to even basic medical issues. In June 2019, a case of chicken pox was confirmed at

21 the facility. This year alone, we have become aware of three cases in which ICE provided

22 detainees with the wrong medication. Additionally, we have spoken with several diabetic

23 individuals whose doctor-prescribed diet ICE refused to provide.

24

5. In my observation, ICE at Mesa Verde is particularly ill-equipped to deal with

25 communicable diseases. Though ICE reported only five detainees had been exposed to chicken

26 pox in June 2019, many detainees believed they had been exposed through sharing dormitory

27

28

1 DECLARATION OF LISA KNOX REGARDING CONDITIONS OF CONFINEMENT AT THE MESA VERDE

ICE PROCESSING FACILITY

Case 3:20-cv-02731-VC Document 5-4 Filed 04/20/20 Page 4 of 8

1 and public space with the infected individuals. Detainees have consistently reported that the

2 dormitory bathrooms regularly lack basic hygiene supplies, such as toilet paper and soap,

3 needed to prevent the spread of communicable diseases.

4

6. Our most recent in-person visit to Mesa Verde occurred on Friday, March 13,

5 2020. Prior to the visit, I requested that staff from my organization who were visiting the facility

6 be allowed to bring hand sanitizer and disinfectant wipes into the facility. I was told that no one

7 was allowed to bring in those items, and that only the cleaning supplies at the facility could be

8 used. There are no cleaning supplies or sink for handwashing available in the room where we

9 conduct visits, which also is one of two rooms where detained people eat their meals.

10

7. On the March 13, 2020 visit, we did not observe anyone—facility staff, detained

11 people, or anyone else in the facility—wearing masks. No one asked our team of legal workers

12 entering the facility about our health, including whether we were experiencing any symptoms.

13 We did not see any posted signs with information about COVID-19 or Coronavirus.

14

8. Detained individuals reported that they received information verbally during a

15 group presentation earlier in the week--they were instructed to wash their hands with soap, they

16 were provided with bleach-based cleaning solution for the first time, they were instructed to

17 cough and sneeze into their elbows, and they were told to report any flu-like symptoms right

18 away. Despite the instructions to use soap, at the time of our visit some detainees reported that

19 they had not received free soap. I was concerned that the staff mentioned they were already

20 running out of masks, that detainees reported that new detainees were being mixed in with the

21 general population without any mandatory quarantine period (since we know the virus can

22 remain dormant for many days or even be carried by asymptomatic carriers), and that so many

23 individuals with pre-existing conditions that put them at high risk remain in detention.

24

25

26

27

28

2 DECLARATION OF LISA KNOX REGARDING CONDITIONS OF CONFINEMENT AT THE MESA VERDE

ICE PROCESSING FACILITY

Case 3:20-cv-02731-VC Document 5-4 Filed 04/20/20 Page 5 of 8

1

9. The Mesa Verde facility is an extremely small space where in my observation

2 detainees are continuously in close contact with staff and one another. The facility has four

3 larger dormitory spaces that each house around 100 detainees. During our visits, I have

4 observed that the detainees sleep in bunkbeds that are spaced only a few feet apart. Detainees

5 have reported that they spend all but a few hours a day in the dorm space. Meals are eaten in a

6 common cafeteria space, where I have observed that detainees sit four to a table on bench seats

7 spaced a few feet apart. In my observation and experience spending time in this room, it would

8 be extremely difficult for a detainee to maintain the recommended six feet of social distancing

9 in these spaces for any amount of time.

10

11

12

13

14

15

16

17

18

19 An organization which conducts visitation at Mesa Verde provided me with this picture, which

20 shows individuals in Dorm C of the facility.

21

10. My understanding is that there are fewer than five isolation cells available in the

22 facility. In my experience, these cells are usually filled with individuals with chronic mental

23 health conditions or individuals being isolated for disciplinary reasons.

24

11. During the March 13, 2020 visit, detainees were seated at tables that seat four

25 people per table, which clearly do not allow for 6 feet of space in between people. Detainees

26 were not instructed to sit farther apart. Detainees reported that they eat meals at the same sized

27

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3 DECLARATION OF LISA KNOX REGARDING CONDITIONS OF CONFINEMENT AT THE MESA VERDE

ICE PROCESSING FACILITY

Case 3:20-cv-02731-VC Document 5-4 Filed 04/20/20 Page 6 of 8

1 tables that seat four people per table, which clearly do not allow for 6 feet of space in between

2 people.

3

12. Detainees have regularly reported unsanitary conditions at the facility. Detainees

4 have consistently reported that there is not sufficient soap or shampoo in the shower stalls. They

5 are forced to pay as much as $10 for a bottle of shampoo in the commissary. As a result, many

6 who cannot afford these exorbitant prices are forced to shower without soap or shampoo.

7 Detainees who clean bathrooms have reported that they regularly run out of disinfectant, and are

8 forced to clean with only water.

9

13. Detainees have reported that the only regular cleaning that occurs within the dorm

10 consists of sweeping and mopping the floors. Detainees are responsible for cleaning their own

11 bunk bed areas, and to do so, they share the same rag and pass it from detainee to detainee.

12

14. On March 13, 2020, no sanitation precautions were taken that could be observed

13 by the legal worker team. There was no evidence that surfaces were cleaned between the times

14 that each housing unit was brought into the room for legal services. Neither the detained people

15 nor the legal workers had any access to any materials to sanitize surfaces or hands during the

16 day. The only way that legal workers could wash their hands was to request to return to the

17 restrooms in the lobby. Detained individuals reported they did have access to shared bar soap in

18 the bathroom areas of their housing units for hand washing. It did not appear that the detainees

19 had access to hand washing in the room where the legal services were provided on March 13,

20 2020.

21

15. On the March 13 visit, many detainees reported worry about the lack of screening

22 of new arrivals to the detention center, as well as concerns about the cleaning of services. One

23 individual reported that showers were being cleaned with soap.

24

16. On March 19, one of our clients informed us that the conditions described above

25 had not changed. Detainees still share the same rag to clean and wipe down their sleeping areas.

26 They still are not physically able to keep a 6 foot distance from one another for any significant

27

28

4 DECLARATION OF LISA KNOX REGARDING CONDITIONS OF CONFINEMENT AT THE MESA VERDE

ICE PROCESSING FACILITY

Case 3:20-cv-02731-VC Document 5-4 Filed 04/20/20 Page 7 of 8

1 period of time. Detention personnel do not wear masks, and only some wear gloves. Our client

2 also informed us that there are not regular checks for fevers.

3

17. As of March 30, a client informed me that officials instructed those in her dorm to

4 maintain social distancing but that is impossible. She estimates that the beds in her dorm are

5 spaced less than 1 meter (3.28 feet) apart. While she was re-assigned a bed so that two empty

6 beds separate her from others, the majority of the detainees sleep in beds directly next to one

7 another. When she needs to move around the dorm, for example to go to the bathroom, my

8 client stated that she cannot help but pass very close by other detainees. My client believes that

9 it would be impossible to maintain the recommended 1.5 meter distance from other women in

10 her dorm for more than short periods of time.

11

18. On April 12, an individual in Dormitory C informed us that previous the past 7

12 days, around 11 new individuals were brought and housed in the dorm. We spoke to one of

13 them, who informed us that he had been transferred from Pleasant Valley State Prison. The

14 individual informed us that he himself has never been tested, and that he was never quarantined

15 before arriving at Mesa Verde. Although his transfer involved being brought from Pleasant

16 Valley State Prison, to an ICE office in Fresno, and then to Mesa Verde, he reported that he was

17 never given a face mask to wear. The individual informed us that his temperature was checked

18 in Fresno, but apart from that, no other precautions were taken before bringing him into Mesa

19 Verde. On April 14, an individual in Dormitory C informed us that there was at least one new

20 transfer into the dorm that morning.

21

19. As of April 12, detainees reported that some staff in at least one dorm were now

22 wearing face masks. However, the facility continued to refuse masks to the detainees

23 themselves. Several detainees stated that, on or about April 3, they made face masks from their

24 own clothing to comply with CDC guidance. The facility guards told them they could not wear

25 the masks.

26

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

27

28

5 DECLARATION OF LISA KNOX REGARDING CONDITIONS OF CONFINEMENT AT THE MESA VERDE

ICE PROCESSING FACILITY

Case 3:20-cv-02731-VC Document 5-4 Filed 04/20/20 Page 8 of 8

1 Executed this 14th day of April 2020 in Oakland, California.

2 Signed: s/ Lisa Knox____

3

Declarant

4

Counsel for Petitioners

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

6 DECLARATION OF LISA KNOX REGARDING CONDITIONS OF CONFINEMENT AT THE MESA VERDE

ICE PROCESSING FACILITY

Case 3:20-cv-02731-VC Document 5-5 Filed 04/20/20 Page 1 of 7

1 WILLIAM FREEMAN (SBN 82002)

MANOHAR RAJU (SBN 193771)

wfreeman@aclunc.org

Public Defender

2 SEAN RIORDAN (SBN 255752)

MATT GONZALEZ (SBN 153486)

sriordan@aclunc.org

Chief Attorney

3 ANGÉLICA SALCEDA (SBN 296152)

GENNA ELLIS BEIER (CA SBN 300505)

asalceda@aclunc.org

genna.beier@sfgov.org

4 AMERICAN CIVIL LIBERTIES UNION EMILOU H. MACLEAN (CA SBN

FOUNDATION OF NORTHERN

319071)

5 CALIFORNIA

emilou.maclean@sfgov.org

39 Drumm Street

FRANCISCO UGARTE (CA SBN 241710)

6 San Francisco, CA 94111

francisco.ugarte@sfgov.org

Telephone: (415) 621-2493

OFFICE OF THE PUBLIC DEFENDER

7 Facsimile: (415) 255-8437

SAN FRANCISCO

555 Seventh Street

8 Attorneys for Petitioners-Plaintiffs

San Francisco, CA 94103

Additional Counsel Listed on Following Page Direct: 415-553-9319

9

Fax: 415-553-9810

10

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12 ANGEL DE JESUS ZEPEDA RIVAS,
13 BRENDA RUIZ TOVAR, LAWRENCE

MWAURA, LUCIANO GONZALO 14 MENDOZA JERONIMO, CORAIMA

15 YARITZA SANCHEZ NUÑEZ, JAVIER

ALFARO, DUNG TUAN DANG, .

16

Petitioners-Plaintiffs,

v. 17 DAVID JENNINGS, Acting Director of the San

18 Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T.
19 ALBENCE, Deputy Director and Senior Official

Performing the Duties of the Director of the U.S. 20 Immigration and Customs Enforcement; U.S.

21 IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.;
22 NATHAN ALLEN, Warden of Mesa Verde

Detention Facility, 23
Respondents-Defendants.

24

Case No.
DECLARATION OF ATTORNEY KATHLEEN ANNE KAVANAGH REGARDING CONDITIONS OF CONFINEMENT AT YUBA COUNTY JAIL

25

26

27

28

DECLARATION OF ATTORNEY KATHLEEN ANNE KAVANAGH REGARDING CONDITIONS OF CONFINEMENT AT THE MESA VERDE ICE PROCESSING FACILITY

Case 3:20-cv-02731-VC Document 5-5 Filed 04/20/20 Page 2 of 7

1

BREE BERNWANGER* (NY SBN

MARTIN S. SCHENKER (SBN 109828)

2 5036397)

mschenker@cooley.com

bbernwanger@lccrsf.org

COOLEY LLP

3 TIFANEI RESSL-MOYER (SBN 319721) 101 California Street, 5th Floor

tresslmoyer@lccrsf.org

San Francisco, CA 94111

4 HAYDEN RODARTE (SBN 329432)

Telephone: (415) 693-2000

hrodarte@lccrsf.org

Facsimile: (415) 693-2222

5 LAWYERS’ COMMITTEE FOR

CIVIL RIGHTS OF

TIMOTHY W. COOK (Mass. BBO#

6 SAN FRANCISCO BAY AREA

688688)*

131 Steuart St #400

tcook@cooley.com

7 San Francisco, CA 94105

FRANCISCO M. UNGER (Mass. BBO#

Telephone: (415) 814-7631

698807)*

8

funger@cooley.com

JUDAH LAKIN (SBN 307740)

COOLEY LLP

9 judah@lakinwille.com

500 Boylston Street

AMALIA WILLE (SBN 293342)

Boston, MA 02116

10 amalia@lakinwille.com

Telephone: (617) 937-2300

LAKIN & WILLE LLP

Facsimile: (617) 937-2400

11 1939 Harrison Street, Suite 420

Oakland, CA 94612

12 Telephone: (510) 379-9216

Facsimile: (510) 379-9219

13

JORDAN WELLS (SBN 326491)

14 jwells@aclusocal.org

STEPHANIE PADILLA (SBN 321568)

15 spadilla@aclusocal.org

AMERICAN CIVIL LIBERTIES UNION

16 FOUNDATION OF SOUTHERN

CALIFORNIA

17 1313 West Eighth Street

Los Angeles, CA 90017

18 Telephone: (213) 977-9500

Facsimile: (213) 977-5297

19

Attorneys for Petitioners-Plaintiffs

20

*Motion for Admission Pro Hac Vice Forthcoming

21

22

23

24

25

26

27

28
DECLARATION OF ATTORNEY KATHLEEN ANNE KAVANAGH IN SUPPORT OF PETITION FOR HABEAS CORPUS AND MOTION FOR TEMPORARY RESTRAINING ORDER

Case 3:20-cv-02731-VC Document 5-5 Filed 04/20/20 Page 3 of 7
DECLARATION OF KATHLEEN ANNE KAVANAGH
I, Kathleen Anne Kavanagh, hereby declare as follows:
1. I am an attorney licensed in the state of New York and authorized to practice before the Executive Office for Immigration Review and the Department of Homeland Security throughout the United States. I am the Lead Rapid Response Attorney for the California Collaborative for Immigrant Justice (“CCIJ”), a coalition of organizations providing coordination, advocacy, and legal services to the immigrant community in California, with a focus on individuals who are in, and who face, detention. As part of my role, I help lead monthly visits to the Yuba County Jail in Marysville, California. Yuba County Jail has a current contract with U.S. Immigration and Customs Enforcement (“ICE”) to detain immigrants.
2. The facts stated in this declaration are true and of my own personal knowledge, except as to any matters stated on information and belief, and as to those matters, I am informed and believe them to be true.
3. CCIJ and community partners visit Yuba County Jail on a monthly basis to provide legal information and services to individuals detained by ICE. I have been participating in these visits since approximately September 2018. During these visits, we occasionally visit the law library, but primarily enter the housing units where ICE detainees are held, typically commingled with inmates held by the county for criminal offenses. We meet one-on-one with detained noncitizens in their housing units, at tables with attached benches that are otherwise used by inmates and detainees for meals and recreation, and which are often dirty. Sometimes before we sit down, one of the detainees will take the initiative to wipe down the tables with a spray bottle and rag, but they are not instructed to do so by anyone.
4. We are also often in the pods when food is served and eaten. It is served by other ICE detainees or county inmates. I have not personally observed any instruction from staff to
1 DECLARATION OF ATTORNEY KATHLEEN ANNE KAVANAGH IN SUPPORT OF PETITION FOR
HABEAS CORPUS AND MOTION FOR TEMPORARY RESTRAINING ORDER

Case 3:20-cv-02731-VC Document 5-5 Filed 04/20/20 Page 4 of 7
clean tables or wash hands before food is served or consumed, and I have not observed such practices consistently followed. What cleaning I have seen done in the pods is conducted by the detainees themselves. I have observed dirty buckets of mop water and rags reused for cleaning. 5. The housing units in which ICE detainees are housed in Yuba differ significantly in size and layout. However, based on the number of beds and total space in each housing unit I have visited, I do not believe it would be possible for all detainees to maintain six feet of distance from one another in any of the housing units holding ICE detainees at Yuba County Jail without a meaningful reduction in population from the maximum capacity. In every housing unit I have visited, detainees sleep in bunk beds where the top and bottom bunk are not six feet apart, nor are the bunks separated by more than a few feet. 6. B and C Pod are large open rooms with beds to house approximately 50 people each. C Pod is exclusively ICE detainees, while B Pod holds a mix of ICE detainees and county inmates. In B and C Pods, there are second floor lofts that each contain several tables used both for dining and recreation, as well as a ping pong table and phones. There are windows on the upper level that to not open. All of the sets of bunk beds are located on the lower floor, arranged in a giant grid in the middle of the room, spaced only a few feet apart. Detainees are not six feet apart when they are on their bunks. Both floors have a few shower and toilet stalls, which are separated only by thin dividers that rise to around shoulder height. 7. D, E, and F Pods are each comprised of approximately twenty two-person cells along a lower floor and an upper balcony. There are no windows. Detainees in D, E, and F Pods are allowed out of their cells and into the common area on the lower level, which contains four tables and a television, in shifts. They sleep in bunk beds. Each cell has one set of two beds, a sink, and a toilet. When two detainees are anywhere in their small cells, it would be impossible for them to be six feet apart. 8. Within B, C, D, E and F Pods there are also small telephone booths, usually two per pod.
2 DECLARATION OF ATTORNEY KATHLEEN ANNE KAVANAGH IN SUPPORT OF PETITION FOR
HABEAS CORPUS AND MOTION FOR TEMPORARY RESTRAINING ORDER

Case 3:20-cv-02731-VC Document 5-5 Filed 04/20/20 Page 5 of 7
These booths have doors that can be closed. On our visits, I have witnessed individuals moving in and out of the phone booths without cleaning the receiver or other surfaces. I have never seen anyone sanitize the phones or the booths. 9. There are also smaller housing units, commonly referred to as “tanks,” that are essentially large cells along certain corridors of the jail. Examples are G Tank, H Tank, I Tank, and L Tank. These are often referred to as the “old” part of the jail because they have not been updated in decades. The tanks are not enclosed rooms; instead, they are separated from the corridors only by a set of bars, with open spaces between the bars, so air flows freely between the tanks and corridors. Each tank holds approximately two dozen men who sleep in sets of bunk beds that are spaced only a few feet apart. There are common tables in the middle of the tank, where the detainees eat and engage in recreation. The common space is small, with very little room to maneuver around the tables and bunk beds. Each tank is comprised of a mix of ICE detainees and county inmates. In these tanks, it is also impossible for people to be six feet apart from each other. 10. In R Pod, one of the women’s housing units, the living, sleeping, and bathing quarters are extremely compact. There are approximately two dozen bunk beds spaced a few feet apart lining one wall, a half wall dividing the room lengthwise, and a row of tightlyspaced tables on the other side of the low wall, along the opposite wall. At the far wall from the entrance, there are approximately three showers with plastic dividers between them. The size and layout of the unit make it hard to navigate without coming very close to or into direct physical contact with others. We usually bump into one another when we sit down at and get up from the tables. The tables are the only space the ICE detainees and county inmates have to use for both dining and recreation. 11. Another women’s housing unit, P Pod, holds a dozen women in a room so small that usually only a small number of our volunteers can actually enter the pod, in contrast to the other units that the whole group enters at once with an escort. In P Pod, our escort stands by the open unit door with the rest of the volunteers, as there is simply insufficient
3 DECLARATION OF ATTORNEY KATHLEEN ANNE KAVANAGH IN SUPPORT OF PETITION FOR
HABEAS CORPUS AND MOTION FOR TEMPORARY RESTRAINING ORDER

Case 3:20-cv-02731-VC Document 5-5 Filed 04/20/20 Page 6 of 7
space for all of us to enter and to be able to move around. There is one picnic-style table that seats approximately six in the middle of the room. The only window does not open. P Pod holds a mix of female ICE detainees and county inmates. 12. The “law library” at Yuba County Jail is a basement room with no windows and no ventilation that I can recall. There are only about three tables in the law library and during the last time we used the law library there was so little space that we could only speak with a few detainees at a time. 13. Moving from one housing unit to another within the jail, or to walk to a non-housing part of the facility such as the infirmary, the phone room, or the law library, requires traversing a maze of hallways and riding elevators to get between the floors of the jail. The elevators are small enough that it would be impossible for two people riding at the same time to maintain six feet of separation. I estimate that some of the narrower hallways are six feet wide or less, with low ceilings. Other corridors are wider, perhaps ten to 12 feet across, but are lined on one side by the “tanks.” The bars of the tanks line the hallway. In my observations, when a detainee is moving from one area of the jail to another, including in the elevators, they are always closely escorted by a guard. 14. In my and my colleagues’ experience, Yuba County Jail regularly fails to provide adequate medical care to ICE detainees suffering from a variety of conditions. For instance, in the past year, my client, a 51-year-old in remission from follicular lymphoma, did not undergo medically-recommended follow-up scans until approximately four months after he was due for them. Moreover, he was only able to have the scans after he had been complaining for months of night sweats and unexpected weight loss of 20 pounds. In another example, an ICE detainee complained of severe pain and difficulty breathing for nearly two weeks after an injury before he saw a doctor and was administered x-rays, despite regular requests for medical attention. In yet another example, during our October 2019 visit, a volunteer was approached by an ICE detainee who told us he had been diagnosed with skin cancer three months prior (while in ICE
4 DECLARATION OF ATTORNEY KATHLEEN ANNE KAVANAGH IN SUPPORT OF PETITION FOR
HABEAS CORPUS AND MOTION FOR TEMPORARY RESTRAINING ORDER

Case 3:20-cv-02731-VC Document 5-5 Filed 04/20/20 Page 7 of 7
detention), but he had not yet received any treatment for his condition despite multiple inquiries. Finally, also in October 2019, my office received multiple phone calls from an ICE detainee over a period of approximately two weeks. He told us he had suffered a head injury, and that he had severe pain and near complete hearing loss in one ear. During the approximately two weeks that he was calling my office regularly, he reported that he was making regular requests for medical attention but had not been assisted. 15. There is a specific space on our intake sheets for “conditions issues” and on every one of our monthly visits, we hear from at least three to five individuals that have specific and serious complaints about medical care, cleanliness, and other basic issues regarding health and safety at Yuba County Jail. Sometimes we are approached by county inmates with similar complaints. The same individuals often return to complain to us month after month about the lack of medical attention they receive despite multiple requests for care. Likewise, the ICE detention hotline maintained by CCIJ receives regular complaints from detainees at Yuba County Jail regarding unanswered requests for medical attention. 16. I swear under penalty of perjury that the foregoing is true and correct. Executed at San Francisco, California, on this 23 of March 2020, by:
______________________________ Kathleen Anne Kavanagh
5 DECLARATION OF ATTORNEY KATHLEEN ANNE KAVANAGH IN SUPPORT OF PETITION FOR
HABEAS CORPUS AND MOTION FOR TEMPORARY RESTRAINING ORDER

 
 Case 3:20-cv-02731-VC Document 5-6 Filed 04/20/20 Page 1 of 155

1 WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org
2 SEAN RIORDAN (SBN 255752) sriordan@aclunc.org
3 ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org
4 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN
5 CALIFORNIA 39 Drumm Street
6 San Francisco, CA 94111 Telephone: (415) 621-2493
7 Facsimile: (415) 255-8437
8 Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page
9

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: 415-553-9319 Fax: 415-553-9810

10

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12

13 ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUIZ TOVAR, LAWRENCE
14 MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA
15 YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,
16 Petitioners-Plaintiffs,
17 v.
18 DAVID JENNINGS, Acting Director of the
19 San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T.
20 ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director
21 of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND
22 CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa
23 Verde Detention Facility,

DECLARATION OF SEAN RIORDAN IN SUPPORT OF PETITIONERS-PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER

24

Respondents-Defendants.

25

26

27

28

DECLARATION OF SEAN RIORDAN IN SUPPORT OF PETITIONERS-PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER

Case 3:20-cv-02731-VC Document 5-6 Filed 04/20/20 Page 2 of 155

1 BREE BERNWANGER* (NY SBN 5036397) MARTIN S. SCHENKER (SBN 109828)

bbernwanger@lccrsf.org

mschenker@cooley.com

2 TIFANEI RESSL-MOYER (SBN 319721) COOLEY LLP

tresslmoyer@lccrsf.org

101 California Street, 5th Floor

3 HAYDEN RODARTE (SBN 329432)

San Francisco, CA 94111

hrodarte@lccrsf.org

Telephone: (415) 693-2000

4 LAWYERS’ COMMITTEE FOR

Facsimile: (415) 693-2222

CIVIL RIGHTS OF

5 SAN FRANCISCO BAY AREA

TIMOTHY W. COOK (Mass. BBO# 688688)*

131 Steuart St #400

tcook@cooley.com

6 San Francisco, CA 94105

FRANCISCO M. UNGER (Mass. BBO#

Telephone: (415) 814-7631

698807)*

7

funger@cooley.com

JUDAH LAKIN (SBN 307740)

COOLEY LLP

8 judah@lakinwille.com

500 Boylston Street

AMALIA WILLE (SBN 293342)

Boston, MA 02116

9 amalia@lakinwille.com

Telephone: (617) 937-2300

LAKIN & WILLE LLP

Facsimile: (617) 937-2400

10 1939 Harrison Street, Suite 420

Oakland, CA 94612

11 Telephone: (510) 379-9216

Facsimile: (510) 379-9219

12

JORDAN WELLS (SBN 326491)

13 jwells@aclusocal.org

STEPHANIE PADILLA (SBN 321568)

14 spadilla@aclusocal.org

AMERICAN CIVIL LIBERTIES UNION

15 FOUNDATION OF SOUTHERN

CALIFORNIA

16 1313 West Eighth Street

Los Angeles, CA 90017

17 Telephone: (213) 977-9500

Facsimile: (213) 977-5297

18

Attorneys for Petitioners-Plaintiffs

19

*Motion for Admission Pro Hac Vice Forthcoming

20

21

22

23

24

25

26

27

28

DECLARATION OF SEAN RIORDAN IN SUPPORT OF PETITIONERS-PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER

Case 3:20-cv-02731-VC Document 5-6 Filed 04/20/20 Page 3 of 155

1 I, Sean Riordan, declare as follows:

2

1. I am an attorney admitted to practice in California. I am a senior staff attorney at

3 the American Civil Liberties Union Foundation of Northern California and counsel for Petitioners-

4 Plaintiffs in this action. I submit this declaration in support of Petitioners-Plaintiffs’ Motion for

5 Temporary Restraining Order. I have personal knowledge of the facts stated in this declaration.

6

2. Attached as Exhibit A to this declaration is a true and correct redacted copy of a

7 report prepared by corrections expert Michael A. Berg after inspecting Mesa Verde ICE

8 Processing Facility (“MV”) and Yuba County Jail (“YCJ”) in 2015 in Lyon v. ICE, 3:13-cv-05878-

9 EMC (N.D. Cal.) (“Lyon”), a class action concerning access to legal telephone calls at ICE

10 detention centers in Northern California. Mr. Berg’s report was filed, as redacted, during the

11 summary judgment proceedings in Lyon as ECF Document Number 197-1.

12

3. Attached as Exhibit B to this declaration is a true and correct copy of a declaration

13 filed by attorney Carl Takei (“Takei”) in Lyon as ECF Document Number 119-20. Takei’s

14 declaration lays the foundation for the photographs included in Exhibits C and D of this

15 declaration.

16

4. Attached as Exhibit C to this declaration is a true and correct copy of photographs

17 taken by Takei during an inspection of YCJ in 2015 and filed in Lyon as ECF Document Number

18 197-17. The photograph marked as DSC 198 is of housing unit “C.”

19

5. Attached as Exhibit D to this declaration is a true and correct copy of photographs

20 taken by Takei during an inspection of YCJ in 2015 and filed in Lyon as ECF Document Number

21 197-15. The photograph marked as DSC 105 is of housing unit “I” while the photographs marked

22 as DSC 112 and DSC 114 are of housing unit “R.”

23

6. Attached as Exhibit E to this declaration is a true and correct copy of the

24 Department of Homeland Security (“DHS”) Audit Report under the Prison Rape Elimination Act

25 (2018) for MV, as redacted by DHS pursuant to the Freedom of Information Act.

26

27

28

DECLARATION OF SEAN RIORDAN IN SUPPORT OF PETITIONERS-PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER

Case 3:20-cv-02731-VC Document 5-6 Filed 04/20/20 Page 4 of 155

1 7. Attached as Exhibit F to this declaration is a true and correct copy of another

2 declaration filed by Takei in Lyon as ECF Document Number 177-1. Takei’s declaration contains

3 photographs of MV published by the media.

4 8. Exhibit G to this declaration is a true and correct copy of a newspaper article:

5 David Wilson, Yuba County Jail population reduced, The Appeal-Democrat (Apr. 15, 2020)

6 (subscription required for access).

7 9. Petitioners-Plaintiffs’ counsel has been tracking the YCJ detainee population over

8 the past several weeks using the “Individuals in Custody” list on the Yuba County Sheriff’s

9 Department website (https://sheriff.co.yuba.ca.us/services/inmate_list.aspx). This list is updated

10 daily. On April 18, 2020, the number of ICE detainees on this list totaled 157. By comparison, a

11 declaration filed by an ICE official in another case stated that on April 2, 2020, there were 150

12 ICE detainees at YCJ. See Suppl. Decl. of Polly Kaiser in Bahena Ortuño v. Jennings, No. 3:20-

13 cv-02064 (N.D. Cal.) (ECF Doc. No. 29-2). During that same period between April 2 and April

14 18, the total listed detainee population at YCJ decreased from 307 to 286.

15 I declare under penalty of perjury that the foregoing is true and correct. Executed this 19th

16 day of April 2020 in Davis, California.

17

_/s/ Sean Riordan

Sean Riordan

18

19

20

21

22

23

24

25

26

27

28

DECLARATION OF SEAN RIORDAN IN SUPPORT OF PETITIONERS-PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER

Case 3:20-cv-02731-VC Document 5-6 Filed 04/20/20 Page 5 of 155
Exhibit A

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag6eo1f 1o5f 561
EXHIBIT A
from Decl. of M. Berg ISO Plaintiffs’ MSJ
[Redacted per 3/31/16 Order - Dkt 182; Dkt 166, Section C.2]

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag7eo2f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag8eo3f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag9eo4f 1o5f 561

CCaassee33:1:230-c-cvv-0-052877381-E-VMCC DDooccuummeennt t51-697-F1ileFdil0e4d/2004//2007/1P6agPea1g0e o5f o1f5651

CCaassee33:1:230-c-cvv-0-052877381-E-VMCC DDooccuummeennt t51-697-F1ileFdil0e4d/2004//2007/1P6agPea1g1e o6f o1f5651

CCaassee33:1:230-c-cvv-0-052877381-E-VMCC DDooccuummeennt t51-697-F1ileFdil0e4d/2004//2007/1P6agPea1g2e o7f o1f5651

CCaassee33:1:230-c-cvv-0-052877381-E-VMCC DDooccuummeennt t51-697-F1ileFdil0e4d/2004//2007/1P6agPea1g3e o8f o1f5651

CCaassee33:1:230-c-cvv-0-052877381-E-VMCC DDooccuummeennt t51-697-F1ileFdil0e4d/2004//2007/1P6agPea1g4e o9f o1f5651

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag1e5 1o0f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag1e6 1o1f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag1e7 1o2f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag1e8 1o3f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag1e9 1o4f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag2e0 1o5f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag2e1 1o6f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag2e2 1o7f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag2e3 1o8f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag2e4 1o9f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag2e5 2o0f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag2e6 2o1f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag2e7 2o2f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag2e8 2o3f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag2e9 2o4f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag3e0 2o5f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag3e1 2o6f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag3e2 2o7f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag3e3 2o8f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag3e4 2o9f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag3e5 3o0f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag3e6 3o1f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag3e7 3o2f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag3e8 3o3f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag3e9 3o4f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag4e0 3o5f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag4e1 3o6f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag4e2 3o7f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag4e3 3o8f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag4e4 3o9f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag4e5 4o0f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag4e6 4o1f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag4e7 4o2f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag4e8 4o3f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag4e9 4o4f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag5e0 4o5f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag5e1 4o6f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag5e2 4o7f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag5e3 4o8f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag5e4 4o9f 1o5f 561

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CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag5e7 5o2f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag5e8 5o3f 1o5f 561

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-967-1FileFdile0d4/0240//0270/16PagPeag5e9 5o4f 1o5f 561

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Case 3:20-cv-02731-VC Document 5-6 Filed 04/20/20 Page 67 of 155
Exhibit B

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-169-2F0iledFi0le4d/2102/2/108/1P5agePa6g8eo1f 1o5f 515

1 ROBERT P. VARIAN (SBN 107459) CHARLES J. HA (pro hac vice)
2 DAVID KEENAN (pro hac vice)
JUDY KWAN (SBN 273930) 3 ALEXIS YEE-GARCIA (SBN 277204)
ORRICK, HERRINGTON & SUTCLIFFE LLP 4 405 Howard Street
San Francisco, CA 94105 5 Telephone: (415) 773-5700
Facsimile: (415) 773-5759 6 Email: rvarian@orrick.com

7 JULIA HARUMI MASS (SBN 189649)
ANGÉLICA SALCEDA (SBN 296152) 8 MICHAEL T. RISHER (SBN 191627)
AMERICAN CIVIL LIBERTIES UNION FOUNDATION 9 OF NORTHERN CALIFORNIA
39 Drumm Street 10 San Francisco, CA 94111
Telephone: (415) 621-2493 11 Facsimile: (415) 255-8437
Email: jmass@aclunc.org 12
Attorneys for Plaintiffs 13 [Additional Counsel appear on following page]

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

SAN FRANCISCO DIVISION

17 AUDLEY BARRINGTON LYON, JR., et al., on behalf of themselves and all others similarly

Case No.: 13-cv-05878-EMC

18 situated,

DECLARATION OF CARL TAKEI IN

19

Plaintiffs,

SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY ADJUDICATION

20

v.

21 UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, et al.,
22

Date: Time: Courtroom: Judge:

February 11, 2016 1:30 p.m. 5 Hon. Edward M. Chen

23

Defendants.

[PUBLIC VERSION]

24

25

26

27

28
DECL. OF CARL TAKEI ISO PLAINTIFFS’ MOTION FOR SUMMARY ADJUDICATION
CASE NO. 13-CV-05878-EMC

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-169-2F0iledFi0le4d/2102/2/108/1P5agePa6g9eo2f 1o5f 515

1 AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF NORTHERN CALIFORNIA 2 JULIA HARUMI MASS (SBN 189649)
3 MICHAEL T. RISHER (SBN 191627) ANGELICA SALCEDA (SBN 296152)
4 39 Drumm Street San Francisco, CA 94111
5 Telephone: (415) 621-2493
Facsimile: (415) 255-8437 6 Email: jmass@aclunc.org

7 AMERICAN CIVIL LIBERTIES UNION

8 NATIONAL PRISON PROJECT CARL TAKEI (SBN 256229)
9 915 15th Street N.W., 7th Floor

10

Washington, DC 20005 Telephone: (202) 393-4930

11 Facsimile: (202) 393-4931 Email: ctakei@aclu.org

12 VAN DER HOUT, BRIGAGLIANO, & NIGHTINGALE, LLP
13 MEGAN SALLOMI (SBN 300580) 180 Sutter Street, Suite 500
14 San Francisco, CA 94104 Main Line: (415) 981-3000
15 Direct Line: (415) 821-8827 Email: Msal@vblaw.com

16

17 Attorneys for Plaintiffs 18

19

20

21

22

23

24

25

26

27

28

1

OHSUSA:763801914.1

DECLARATION OF CARL TAKEI CASE NO.: 13-CV-05878 EMC

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-169-2F0iledFi0le4d/2102/2/108/1P5agePa7g0eo3f 1o5f 515

1 I, Carl Takei, declare as follows:

2

1. I make this declaration from my own personal knowledge and, if called to testify on these

3

facts, could and would do so competently.

4

2. I accompanied Plaintiffs’ expert Michael Berg for the inspections of Yuba County Jail

5

(“Yuba”) on October 13, 2015; Rio Consumnes Correctional Center (“RCCC”) on

6

October 13, 2015; West County Detention Facility (“Contra Costa”) on October 14, 2015;

7

and Mesa Verde Detention Facility (“Mesa Verde”) on October 15, 2015, in this case.

8

3. Per an agreement with Defendants’ counsel, Defendants provided Plaintiffs with a digital

9

camera for the purpose of taking photographs during the inspections. I operated the

10

camera and took photographs using the settings set by Defendants when the camera was

11

provided to me. These photographs were subsequently reviewed and in some cases

12

redacted for security and privacy reasons prior to being produced back to Plaintiffs’

13

counsel. For ease of reference, I inserted Bates numbers reflecting the photo filenames.

14

Apart from the addition of Bates numbering, the photographs attached to this Declaration

15

have not been modified in any way from the photographs that Defendants produced to

16

Plaintiffs.

17

YUBA PHOTOS

18

4. Yuba - Booking Area: Photographs DSC 00019, 20, and 21 are fair and accurate

19

depictions of the booking area of Yuba as it appeared during the inspection on October 13,

20

2015. DSC 00019 depicts the booking desk on the left and multiple rows of inmate chairs

21

on the right. DSC 00020 depicts the inmate chairs from the opposite direction as DSC

22

00019. DSC 00021 depicts the booking desk.

23

5. Yuba - Lyon phone room: Photographs DSC 00190 and 191 are fair and accurate

24

depictions of the interior of the Yuba semi-private phone room as it appeared during the

25

inspection on October 13, 2015. DSC 00190 is a view of both phones and DSC 00191 is a

26

view of the free call platform instructions and other information in the room.

27

28

2

DECLARATION O F CARL TAKEI CASE NO.: 13-CV-05878 EMC

OHSUSA:763801914.1

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-169-2F0iledFi0le4d/2102/2/108/1P5agePa7g1eo4f 1o5f 515

1

6. Yuba - Office: Photograph DSC 00027 is a fair and accurate depiction of an office in Yuba

2

that may be used for detainee telephone calls, as it appeared during the inspection on

3

October 13, 2015.

4

7. Yuba - Hallway outside office and Lyon phone room: Photograph DSC 00033 is a fair and

5

accurate depiction of the hallway outside the office and the semi-private phone room at

6

Yuba as this area appeared during the inspection on October 13, 2015.

7

8. Yuba - Unit A: Photographs DSC 00222, 225, and 229 are fair and accurate depictions of

8

Yuba Unit A as it appeared during the inspection on October 13, 2015. DSC 00222

9

depicts the two telephones. DSC 00225 depicts the righthand telephone in relation to the

10

nearest cell. DSC 00229 depicts the lefthand telephone in relation to the nearest table.

11

9. Yuba - Unit B: Photographs DSC 00210 and 219 are fair and accurate depictions of Yuba

12

Unit B as it appeared during the inspection on October 13, 2015. DSC 00210 depicts the

13

two downstairs telephones and DSC 00219 depicts the one upstairs telephone.

14

10. Yuba - Unit C: Photographs DSC 00198 and 204 are fair and accurate depictions of Yuba

15

Unit C as it appeared during the inspection on October 13, 2015. DSC 00198 depicts the

16

two downstairs telephones and DSC 00204 depicts the one upstairs telephone.

17

11. Yuba - Unit D: Photographs DSC 00261 and 263 are fair and accurate depictions of Yuba

18

Unit D as it appeared during the inspection on October 13, 2015. DSC 00261 depicts the

19

two telephones. DSC 0023 depicts the righthand telephone in relation to the nearest cell.

20

12. Yuba - Unit E: Photographs DSC 00252 and 258 are fair and accurate depictions of Yuba

21

Unit E as it appeared during the inspection on October 13, 2015. DSC 00252 depicts the

22

two telephones. DSC 00258 depicts the lefthand telephone in relation to the nearest cell.

23

13. Yuba - Unit F: Photographs DSC 00244 and 247 are fair and accurate depictions of Yuba

24

Unit F as it appeared during the inspection on October 13, 2015. DSC 00244 depicts the

25

two telephones. DSC 00247 depicts the righthand telephone in relation to the nearest cell.

26

14. Yuba - Hallway outside of G, H, and I: DSC 00076, 77, and 78 are fair and accurate

27

depictions of the exterior of Yuba Unit G as it appeared during the inspection on October

28

3

DECLARATION O F CARL TAKEI CASE NO.: 13-CV-05878 EMC

OHSUSA:763801914.1

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-169-2F0iledFi0le4d/2102/2/108/1P5agePa7g2eo5f 1o5f 515

1

13, 2015. In each of these photos, the housing unit telephone is located behind the tan

2

metal slab to the right of the cell door.

3

15. Yuba - Unit G: Photographs DSC 00035, 36, 73, and 74 are fair and accurate depictions of

4

the interior of Yuba Unit G as it appeared during the inspection on October 13, 2015.

5

16. Yuba - Unit H: Photograph DSC 00080 is a fair and accurate depiction of the interior of

6

Yuba Unit H as it appeared during the inspection on October 13, 2015.

7

17. Yuba - Unit I: Photographs DSC 00098, 105, and 106 are fair and accurate depictions of

8

the interior of Yuba Unit I as it appeared during the inspection on October 13, 2015. DSC

9

00098 depicts the housing unit telephone. DSC 00105 depicts (with redactions) the view

10

from the table to the living area. DSC 00106 depicts the view from the table to the phone.

11

18. Yuba - Unit K: Photographs DSC 00175 is a fair and accurate depiction (with redactions)

12

of the interior of Yuba Unit K as it appeared during the inspection on October 13, 2015.

13

19. Yuba - Unit L: Photographs DSC 00179 and 180 are fair and accurate depictions of the

14

interior of Yuba Unit L as it appeared during the inspection on October 13, 2015.

15

20. Yuba - Unit P: Photographs DSC 00139 and 142 are fair and accurate depictions of the

16

telephone and nearby bunks in Yuba Unit P as it appeared during the inspection on

17

October 13, 2015.

18

21. Yuba - Q1 and Q2: Photograph DSC 00125 is a fair and accurate depiction of the

19

telephones in the hallway outside Yuba Units Q1 and Q2 as they appeared during the

20

inspection on October 13, 2015.

21

22. Yuba - Unit R: Photographs DSC 00112 and 114 are fair and accurate depictions of the

22

interior of Yuba Unit R as it appeared during the inspection on October 13, 2015. DSC

23

000112 depicts the telephone in relation to the desk on the left and bunk on the right. DSC

24

000114 depicts the telephone in relation to the desk on the left and two bunks on the right.

25

23. Yuba - S1, S2, S3, S4, S5, and S6: Photograph DSC 00132 is a fair and accurate depiction

26

of the telephone in the hallway outside the S-series Yuba units as it appeared during the

27

inspection on October 13, 2015.

28

4

DECLARATION O F CARL TAKEI CASE NO.: 13-CV-05878 EMC

OHSUSA:763801914.1

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1

24. Yuba - Unit T: Photographs DSC 00160 is a fair and accurate depiction of the telephone,

2

television, and nearby bunks in Yuba Unit T as it appeared during the inspection on

3

October 13, 2015.

4

25. Yuba - Free call platform lists: Photograph DSC 00094 is a fair and accurate depiction of

5

a page from the free call platform list in Yuba Unit H, as it appeared during the inspection

6

on October 13, 2015. The printed date is 03/06/2015. Photograph DSC 00129 is a fair and

7

accurate depiction of a page from the free call platform list posted next to the telephones

8

in DSC 000125 (i.e., near Q1 and Q2), as it appeared during the inspection on October 13,

9

2015. The printed date is 03/06/2015. Photograph DSC 00141 is a fair and accurate

10

depiction of a page from the free call platform list in Yuba Unit P, as it appeared during

11

the inspection on October 13, 2015. The printed date is 03/06/2015. Photograph DSC

12

00148 is a fair and accurate depiction of a page from another copy of the free call platform

13

list in Yuba Unit P, as it appeared during the inspection on October 13, 2015. The printed

14

date is 03/06/15. Photograph DSC 00188 is a fair and accurate depiction of a page from

15

the free call platform list nearest to the phone in Yuba Unit L, as it appeared during the

16

inspection on October 13, 2015. The printed date is 02/07/14. Photograph DSC 00253 is a

17

fair and accurate depiction of a page from the free call platform list posted in Yuba Unit

18

E, as it appeared during the inspection on October 13, 2015. The printed date is 02/11/14.

19

Photograph DSC 00254 is a fair and accurate depiction of a page from another copy of the

20

free call platform list posted in Yuba Unit E, as it appeared during the inspection on

21

October 13, 2015. The printed date is 03/06/2015.

22

RCCC PHOTOS

23

26. RCCC - CBF 200: Photograph DSC 00278 is a fair and accurate depiction of RCCC Unit

24

CBF 200 as it appeared during the inspection on October 13, 2015. DSC 00278 depicts

25

the telephones in relation to the stairwell, table, and each other.

26

27

28

5

DECLARATION O F CARL TAKEI CASE NO.: 13-CV-05878 EMC

OHSUSA:763801914.1

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-169-2F0iledFi0le4d/2102/2/108/1P5agePa7g4eo7f 1o5f 515

1

27. RCCC - CBF 400: Photograph DSC 00285 is a fair and accurate depiction of RCCC Unit

2

CBF 200 as it appeared during the inspection on October 13, 2015. DSC 00285 depicts

3

the telephones in relation to the stairwell, table, and each other.

4

28. RCCC - SBF 500: Photograph DSC 00290 is a fair and accurate depiction of RCCC Unit

5

CBF 200 as it appeared during the inspection on October 13, 2015. DSC 00290 depicts

6

the telephones in relation to the stairwell and each other.

7

29. RCCC - KBF 100: Photographs DSC 00307 and 310 (redacted) are fair and accurate

8

depictions of RCCC Unit KBF 100 as it appeared during the inspection on October 13,

9

2015. DSC 00307 faces toward the door to the unit. DSC 00310 faces into the interior of

10

the unit.

11

30. RCCC - KBF 300: Photograph DSC 00327 is a fair and accurate depiction of RCCC Unit

12

KBF 300 as it appeared during the inspection on October 13, 2015. DSC 00327 depicts

13

both telephone banks in the unit.

14

31. RCCC - KBF 400: Photographs DSC 00329 and 337 are fair and accurate depictions of

15

RCCC Unit KBF 400 as it appeared during the inspection on October 13, 2015. DSC

16

00329 depicts one telephone bank in relation to the television. DSC 00337 depicts both

17

telephone banks in the unit.

18

32. RCCC - KBF 500: Photographs DSC 00342 and 352 are fair and accurate depictions of

19

RCCC Unit KBF 500 as it appeared during the inspection on October 13, 2015. DSC

20

00342 depicts one telephone bank in relation to the television. DSC 00352 depicts both

21

telephone banks in the unit.

22

33. RCCC - RBF “Core” Cells: Photographs DSC 00355 (redacted) and 360 (redacted) are

23

fair and accurate depictions of the RCCC “Core” cell area as it appeared during the

24

inspection on October 13, 2015. DSC 00355 depicts the portable telephone used in this

25

area of RBF in front of a cell, rotated to show the telephone controls to the camera. DSC

26

00360 depicts the phone and surrounding environment, with the controls facing into the

27

cell.

28

6

DECLARATION O F CARL TAKEI CASE NO.: 13-CV-05878 EMC

OHSUSA:763801914.1

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-169-2F0iledFi0le4d/2102/2/108/1P5agePa7g5eo8f 1o5f 515

1

34. RCCC - RBF 25: Photographs DSC 00363, 369, and 372 are fair and accurate depictions

2

of RCCC Unit RBF 25 as it appeared during the inspection on October 13, 2015. DSC

3

00363 and 369 depict the telephone and surrounding environment. DSC 00372 depicts the

4

relationship between the telephone and the righthand table depicted in DSC 00369.

5

35. RCCC - RBF 12: Photographs DSC 00376, 377 (redacted), 378 (redacted), 380, and 384

6

(redacted) are fair and accurate depictions of RCCC Unit RBF 12 as it appeared during the

7

inspection on October 13, 2015. DSC 00376 depicts the telephone and surrounding

8

environment, including a toilet divider, sink, and television. DSC 00377 depicts the toilet

9

in relation to its divider. DSC 00378 depicts the telephone in relation to other features.

10

DSC 00380 depicts the relationship between the telephone and the toilet divider. DSC

11

00384 depicts the relationship between the telephone and the table.

12

36. RCCC - RBF 26: Photograph DSC 00390 is a fair and accurate depiction of RCCC Unit

13

RBF 26 as it appeared during the inspection on October 13, 2015. DSC 00390 depicts the

14

telephone in relation to the toilet divider.

15

37. RCCC - RBF 22: Photograph DSC 00405 is a fair and accurate depiction of RCCC Unit

16

RBF 22 as it appeared during the inspection on October 13, 2015. DSC 00405 depicts the

17

telephone in relation to the toilet divider and bunk.

18

38. RCCC - Law Library: Photographs DSC 00422, 423, 426, and 428 are fair and accurate

19

depictions of the RCCC Law Library as it appeared during the inspection on October 13,

20

2015. DSC 00422 and 423 depict the desk telephone that may be used by detainees. DSC

21

00426 and 00428 depict the rest of the law library.

22

39. RCCC - Free call platform lists: Photograph DSC 00356 is a fair and accurate depiction

23

of a page from the free call platform list attached to the RCCC RBF “Core Unit” portable

24

telephone, as it appeared during the inspection on October 13, 2015. The printed date is

25

12/03/2014. Photograph DSC 00366 is a fair and accurate depiction of a page from the

26

free call platform list posted adjacent to the RCCC RBF Unit 25 telephone, as it appeared

27

during the inspection on October 13, 2015. The printed date is 12/03/2014. Photograph

28

7

DECLARATION O F CARL TAKEI CASE NO.: 13-CV-05878 EMC

OHSUSA:763801914.1

CCasaese3:31:32-0c-vc-v0-50827783-1E-MVCC DDooccuummeenntt 51-169-2F0iledFi0le4d/2102/2/108/1P5agePa7g6eo9f 1o5f 515

1

DSC 00379 is a fair and accurate depiction of a page from the free call platform list posted

2

adjacent to the RCCC RBF Unit 12 telephone, as it appeared during the inspection on

3

October 13, 2015. The printed date is 12/03/2014.

4

CONTRA COSTA PHOTOS

5

40. Contra Costa - Unit 8B: Photographs DSC 00440, 444, 445, 452, 473 (redacted), 484,

6

490, 494, 504, 516, 528, 531, 533, and 535 are fair and accurate depictions of Contra

7

Costa Unit 8B as it appeared during the inspection on October 14, 2015. DSC 00440

8

depicts telephone 37 and its surrounding environment. DSC 00444 depicts telephone 84.

9

DSC 00445 depicts the instructions next to telephone 84. DSC 00452 depicts telephone 37

10

in relation to Cell 19B. DSC 00449 depicts telephones 84 and 54 and their surrounding

11

environment. DSC 00473 depicts telephones 61 and 85 and their surrounding

12

environment. DSC 00484 depicts the relationship between telephones 62 and 14. DSC

13

00490 depicts telephones 62 and 14 and their surrounding environment. DSC 00494

14

depicts telephones 66 and 42 and their surrounding environment. DSC 00504 depicts

15

telephones 18 and 89 and their surrounding environment. DSC 00516 depicts telephones

16

88 and 65 and their surrounding environment. DSC 00528 depicts telephones 41 and 17

17

and their surrounding environment. DSC 00531 depicts telephone 17 in relation to Cell

18

59B. DSC 00533 depicts telephone 41 in relation to Cell 60B. DSC 00535 depicts

19

telephone 17 in relation to the common area.

20

41. Contra Costa - Lyon Phone/Attorney Meeting Rooms: Photographs DSC 00538 and 539

21

are fair and accurate depictions of the free phone/attorney meeting room in Contra Costa

22

Unit 8B as it appeared during the inspection on October 14, 2015. Photographs DSC

23

00543 and 545 are fair and accurate depictions of the free phone/attorney meeting room in

24

Contra Costa Unit 7A as it appeared during the inspection on October 14, 2015.

25

42. Contra Costa - Unit 7A: Photographs DSC 00546, 559, 563, 566, 570, 573, 576, 579, and

26

582 are fair and accurate depictions of Contra Costa Unit 7A as it appeared during the

27

inspection on October 14, 2015. DSC 00546 depicts telephones 81 and 09 and their

28

8

DECLARATION O F CARL TAKEI CASE NO.: 13-CV-05878 EMC

OHSUSA:763801914.1

CaCsaes3e:133:2-c0v-c-0v5-0827783-E1-MVCC DDooccuummeenntt 151-69-2F0ileFdil0e4d/2102//2108/1P5agPea7g7e o1f01o5f515

1

surrounding environment. DSC 00559 depicts telephone 33 and its surrounding

2

environment. DSC 00563 depicts telephones 105 and 13 and their surrounding

3

environment. DSC 00566 depicts telephones 166 and 153 and their surrounding

4

environment. DSC 00570 depicts telephones 130 and 142 and their surrounding

5

environment. DSC 00573 depicts telephones 81 and 09 and their surrounding

6

environment. DSC 00576 depicts telephones 140 and 164 and their surrounding

7

environment. DSC 00579 depicts telephones 118 and 106 and their surrounding

8

environment. DSC 00582 depicts telephones 58 and 82 and their surrounding

9

environment.

10

43. During the inspection, Plaintiffs’ and Defendants’ counsel agreed to the following

11

stipulation regarding the layout and measurements of the housing units at Contra Costa:

12

“7A is a mirror image of 8B in terms of layout, with respect to the location of housing unit

13

telephones in relation to cells and couches and televisions, +/- 3 inches.”

14

44. Contra Costa - VTC Rooms: DSC 00591 and 00588 are fair and accurate depictions of

15

Contra Costa VTC Rooms 1 and 2 as they appeared during the inspection on October 14,

16

2015. DSC 00591 depicts the interior of VTC Room 1. DSC 00588 depicts the interior of

17

VTC Room 2.

18

45. Contra Costa - Law Library: DSC 00594 is a fair and accurate depiction of the interior of

19

the law library room inside the inmate library at Contra Costa as it appeared during the

20

inspection on October 14, 2015.

21

46. Contra Costa - Free call platform lists: Photograph DSC 00434 is a fair and accurate

22

depiction of the first page of the free call platform list posted in Contra Costa Unit 8B, as

23

it appeared during the inspection on October 14, 2015. The printed date is 12/06/12.

24

Photograph DSC 00555 is a fair and accurate depiction of the first page of the free call

25

platform list posted in Contra Costa Unit 7A, as it appeared during the inspection on

26

October 14, 2015. The printed date is 12/06/12.

27

MESA VERDE PHOTOS 28

9

DECLARATION O F CARL TAKEI CASE NO.: 13-CV-05878 EMC

OHSUSA:763801914.1

CaCsaes3e:133:2-c0v-c-0v5-0827783-E1-MVCC DDooccuummeenntt 151-69-2F0ileFdil0e4d/2102//2108/1P5agPea7g8e o1f11o5f515

1

47. Mesa Verde - Interview rooms: Photographs DSC 00598, 600, 602, and 604 are fair and

2

accurate depictions of the Mesa Verde attorney interview/VTC rooms as they appeared

3

during the inspection on October 15, 2015. DSC 00598 depicts the interior of Private

4

Attorney Room 128. DSC 00600 depicts the interior of Private Attorney Room 127. DSC

5

00602 depicts the interior of Video Teleconference Room 130. DSC 00604 depicts the

6

interior of Video Teleconference Room 132.

7

48. Mesa Verde - Interview 146 and Large VTC room A116: Photographs DSC 00606, 607,

8

0765, and 766 are fair and accurate depictions of Interview 146 and Large VTC Room

9

A116 as they appeared during the inspection on October 15, 2015. DSC 00606 depicts the

10

interior of Interview Room 146. DSC 00607 depicts the window of Interview Room 146,

11

including the circular metal grille that is embedded in the window. DSC 00765 and 766

12

depict, respectively, the telephone and the VTC setup in Large VTC Room A116.

13

49. Mesa Verde - Telephone closeup: Photographs DSC 00617 and 618 are fair and accurate

14

depictions of a housing unit telephone at Mesa Verde and the instructions printed on the

15

telephone as it appeared during the inspection on October 15, 2015.

16

50. Mesa Verde - Unit A: Photographs DSC 00740, 741, and 754 are fair and accurate

17

depictions of Mesa Verde Unit A as it appeared during the inspection on October 15,

18

2015. DSC 00740 and 741 depict a bank of six phones in the front area of Unit A. DSC

19

00754 depicts a bank of four phones in relation to LexisNexis terminals in the rear area of

20

Unit A.

21

51. Mesa Verde - Unit B: Photographs DSC 00633, 629, 768, 769, and 783 are fair and

22

accurate depictions of Mesa Verda Unit B as it appeared during the inspection on October

23

15, 2015. DSC 00633 depicts a bank of six telephones in the front area of Unit B. DSC

24

00629 depicts the relationship between the bank of telephones and a table. DSC 00768

25

and 769 depict two banks of two telephones each in the rear area of Unit B in relation to

26

LexisNexis terminals and a table. DSC 00783 depicts the bank of telephones in DSC

27

00769 in relation to a bunk.

28

10

DECLARATION O F CARL TAKEI CASE NO.: 13-CV-05878 EMC

OHSUSA:763801914.1

CaCsaes3e:133:2-c0v-c-0v5-0827783-E1-MVCC DDooccuummeenntt 151-69-2F0ileFdil0e4d/2102//2108/1P5agPea7g9e o1f21o5f515

1

52. Mesa Verde - Unit C: Photographs DSC 00694 (redacted), 701, 703, 713 (redacted), are

2

fair and accurate depictions of Mesa Verde Unit C as it appeared during the inspection on

3

October 15, 2015. DSC 00694 depicts a bank of two telephones in the rear area of Unit C.

4

DSC 00701 depicts the same bank of telephones in relation to bunks. DSC 00703 depicts

5

a second bank of two telephones in the rear area of Unit C, in relation to LexisNexis

6

terminals. DSC 00713 (redacted) depicts a bank of six telephones in the front area of Unit

7

C.

8

53. Mesa Verde - Unit D: Photographs DSC 00654, 663, 664, and 679 are fair and accurate

9

depictions of Mesa Verde Unit D as it appeared during the inspection on October 15,

10

2015. DSC 00654 depicts a bank of six telephones in the front area of Unit D. DSC 00663

11

depicts a bank of two telephones in the rear area of Unit D. DSC 00664 depicts that bank

12

of telephones in relation to a bunk. DSC 00679 depicts another bank of two telephones in

13

the rear area of Unit D in relation to LexisNexis terminals and a table.

14

54. Mesa Verde - Law library: Photographs DSC 00724 and 726 are fair and accurate

15

depictions of the Mesa Verde law library as it appeared during the inspection on October

16

15, 2015.

17

55. Mesa Verde - Holding cells: Photograph DSC 00792 is a fair and accurate depiction of the

18

portable housing unit telephone used in the Holding Cells. DSC 00798 is a fair and

19

accurate depiction of the interior of a Holding Cell facing toward the cell door, with the

20

telephone receiver passed through the tray slot in the cell door.

21

56. Mesa Verde - Free call platform lists:

22

a. Unit A: Photograph DSC 00711 and 712 are fair and accurate depictions of a copy

23

of the free call platform list posted in Mesa Verde Unit A, as it appeared during the

24

inspection on October 15, 2015. The printed date is 2/27/2015. Photographs DSC

25

00738 and 739 are fair and accurate depictions of another copy of the free call

26

platform list posted in Mesa Verde Unit A, as it appeared during the inspection on

27

October 15, 2015. The printed date of the first page is 6/26/2015 and the printed

28

11

DECLARATION O F CARL TAKEI CASE NO.: 13-CV-05878 EMC

OHSUSA:763801914.1

CaCsaes3e:133:2-c0v-c-0v5-0827783-E1-MVCC DDooccuummeenntt 151-69-2F0ileFdil0e4d/2102//2108/1P5agPea8g0e o1f31o5f515

1

dates of the other pages are 2/27/2015. Photographs DSC 00751 and 752 are fair

2

and accurate depictions of another copy of the free call platform list posted in

3

Mesa Verde Unit A, as it appeared during the inspection on October 15, 2015. The

4

printed date is 2/27/2015. Photographs DSC 00756 and 757 are fair and accurate

5

depictions of another copy of the free call platform list posted in Mesa Verde Unit

6

A, as it appeared during the inspection on October 15, 2015. The printed date of

7

the first page is 6/26/2015 and the printed dates of the other pages are 2/27/2015.

8

b. Unit B: Photograph DSC 00614 is a fair and accurate depiction of the first and

9

second pages of a copy of the free call platform list posted in Mesa Verde Unit B,

10

as it appeared during the inspection on October 15, 2015. The printed date of the

11

first page is 6/26/2015 but the second page is dated 02/27/2015. Photograph DSC

12

00616 is a fair and accurate depiction of the first page of another copy of the free

13

call platform list posted in Mesa Verde Unit B, as it appeared during the inspection

14

on October 15, 2015. The printed date is 05/20/2015. Photograph DSC 00636 is a

15

fair and accurate depiction of another copy of the free call platform list posted in

16

Mesa Verde Unit B, as it appeared during the inspection on October 15, 2015. The

17

printed date is 02/27/2015. Photograph DSC 00770 is a fair and accurate copy of

18

another copy of the free call platform list posted in Mesa Verde Unit B, as it

19

appeared during the inspection on October 15, 2015. The printed date for the first

20

page is difficult to read but is different from the printed dates for the other pages,

21

which appear to be 02/27/2015.

22

c. Unit C: Photographs DSC 00689 and 690 are fair and accurate depictions of a

23

copy of the free call platform list posted in Mesa Verde Unit C, as it appeared

24

during the inspection on October 15, 2015. The printed date is 2/27/2015.

25

Photographs DSC 00695 and 696 are fair and accurate depictions of another copy

26

of the free call platform list posted in Mesa Verde Unit C, as it appeared during the

27

inspection on October 15, 2015. The printed date is 2/27/2015. Photograph DSC

28

12

DECLARATION O F CARL TAKEI CASE NO.: 13-CV-05878 EMC

OHSUSA:763801914.1

CaCsaes3e:133:2-c0v-c-0v5-0827783-E1-MVC Document 151-69-2F0ileFdil0e4d/2102//2108/1P5agPea8g1eo1f41o5f515

1

00711 is a fair and accurate depiction of another copy of the free call platform list

2

posted in Mesa Verde Unit C, as it appeared during the inspection on October 15,

3

2015. The printed date is difficult to read but appears to be 2/27/2015. Photograph

4

DSC 007 14 is a fair and accurate depiction of another copy of the free call

5

platform list posted in Mesa Verde Unit C, as it appeared during the inspection on

6

October 15, 2015. The printed date is difficult to read but appears to be 2/27/2015.

7

d. Unit D: Photographs DSC 00638 and 639 are fair and accurate depictions of a

8

copy of the free call platform list posted in Mesa Verde Unit D, as it appeared

9

during the inspection on October 15, 2015. The printed date of the first page is

10

612612015 but the second page is dated 02/27/2015. Photograph DSC 00641 is a

11

fair and accurate depiction of another copy of the free call platform list posted in

12

Mesa Verde Unit D, as it appeared during the inspection on October 15, 2015. The

13

printed date is 5/20/2015. Photographs DSC 00656 and 657 are fair and accurate

14

depictions of another copy of the free call platform list posted in Mesa Verde Unit

15

D, as it appeared during the inspection on October 15, 2015. The printed date is

16

02/27/2015. Photograph DSC 00670 is a fair and accurate depiction of another

17

copy of the free call platform list posted in Mesa Verde Unit D, as it appeared

18

during the inspection on October 15, 2015. The printed date of the first page is

19

6/26/2015 but the second page is dated 02/27/2015.

20

e. Holding cells: Photograph DSC 00790 and 79 1 are fair and accurate depictions of

21

the free call platform list posted outside of the Mesa Verde holding cells, as it

22

appeared during the inspection on October 15, 20 15. The printed date is 2/27/2015.

23

57. I declare under penalty of perjury that the foregoing is true and correct to the best of my

24

J.i knowledge. Executed on December 2015, in W hington, DC

25

26

27

Carl Takei

28

13

D ECLARATION 0 F CARL TAKE! CASE NO.: 13-cv-05878 EMC

OHSUSA:763801 9 14.1

CaCsaes3e:133:2-c0v-c-0v5-0827783-E1-MVCC DDooccuummeenntt 151-69-2F0ileFdil0e4d/2102//2108/1P5agPea8g2e o1f51o5f515
All Exhibits Provisionally Filed Under Seal

Case 3:20-cv-02731-VC Document 5-6 Filed 04/20/20 Page 83 of 155
Exhibit C

CCaassee33:1:230-c-cvv-0-052877381-E-VMCC DDooccuummeennt t51-697-F1i7ledF0il4e/d200/42/007/P1a6geP8a4geof11o5f58
SELECT EXHIBITS (4 of 6)
from Decl. of C. Takei ISO Plaintiffs’ MSJ
[Unsealed per 3/31/16 Order - Dkt 183; Dkt 166 p. 3, C1]

CCaassee33:1:230-c-cvv-0-052877381-E-VMCC DDooccuummeennt t51-697-F1i7ledF0il4e/d200/42/007/P1a6geP8a5geof21o5f58
DSC00175

CCaassee33:1:230-c-cvv-0-052877381-E-VMCC DDooccuummeennt t51-697-F1i7ledF0il4e/d200/42/007/P1a6geP8a6geof31o5f58
DSC00179

CCaassee33:1:230-c-cvv-0-052877381-E-VMCC DDooccuummeennt t51-697-F1i7ledF0il4e/d200/42/007/P1a6geP8a7geof41o5f58
DSC00180

CCaassee33:1:230-c-cvv-0-052877381-E-VMCC DDooccuummeennt t51-697-F1i7ledF0il4e/d200/42/007/P1a6geP8a8geof51o5f58
DSC00188

CCaassee33:1:230-c-cvv-0-052877381-E-VMCC DDooccuummeennt t51-697-F1i7ledF0il4e/d200/42/007/P1a6geP8a9geof61o5f58
DSC00190

CCaassee33:1:230-c-cvv-0-052877381-E-VMCC DDooccuummeennt t51-697-F1i7ledF0il4e/d200/42/007/P1a6geP9a0geof71o5f58
DSC00191

CCaassee33:1:230-c-cvv-0-052877381-E-VMCC DDooccuummeennt t51-697-F1i7ledF0il4e/d200/42/007/P1a6geP9a1geof81o5f58
DSC00198

Case 3:20-cv-02731-VC Document 5-6 Filed 04/20/20 Page 92 of 155
Exhibit D

CCaassee33:1:230-c-cvv-0-052877381-E-VMCC DDooccuummeennt t51-697-F1i5ledF0il4e/d200/42/007/P1a6geP9a3geof11o5f57
SELECT EXHIBITS (2 of 6)
from Decl. of C. Takei ISO Plaintiffs’ MSJ
[Unsealed per 3/31/16 Order - Dkt 183; Dkt 166 p. 3, C1]

CCaassee33:1:230-c-cvv-0-052877381-E-VMCC DDooccuummeennt t51-697-F1i5ledF0il4e/d200/42/007/P1a6geP9a4geof21o5f57
DSC00094

CCaassee33:1:230-c-cvv-0-052877381-E-VMCC DDooccuummeennt t51-697-F1i5ledF0il4e/d200/42/007/P1a6geP9a5geof31o5f57
DSC00098

CCaassee33:1:230-c-cvv-0-052877381-E-VMCC DDooccuummeennt t51-697-F1i5ledF0il4e/d200/42/007/P1a6geP9a6geof41o5f57
DSC00105 DSC00105

CCaassee33:1:230-c-cvv-0-052877381-E-VMCC DDooccuummeennt t51-697-F1i5ledF0il4e/d200/42/007/P1a6geP9a7geof51o5f57
DSC00106

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DSC00112

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Exhibit E

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PREA Audit: Subpart A DHS Immigration Detention Facilities Audit Report

AUDITOR INFORMATION

Name of Auditor: Kurt Pfisterer

Organization:

Creative Corrections, LLC

Email address: (b) (6), (b) (7)(C)

Telephone number: 518-860-(b) (6), (b) (7)(C) AGENCY INFORMATION

Name of agency: U.S. Immigration and Customs Enforcement (ICE)

FIELD OFFICE INFORMATION

Name of Field Office:

San Francisco

Field Office Director:

David W. Jennings

ERO PREA Field Coordinator:

(b) (6), (b) (7)(C)

Field Office HQ physical address: 630 Sansome Street, San Francisco, California 94111

Mailing address: (if different from above) Same

INFORMATION ABOUT THE FACILITY BEING AUDITED

Basic Information About the Facility

Name of facility:

Mesa Verde ICE Processing Center

Physical address:

425 Golden State Avenue, Bakersfield, California 93301

Mailing address: (if different from above) Same

Telephone number:

661-859-1028

Facility type:

DIGSA

Facility Leadership

Name of Official/Officer in Charge: Ronald Murray

Title:

Warden

Email address:

(b) (7)(C), (b) (6)

Telephone number: 661-859-(b) (6), (b) (7)(C)

Facility PSA Compliance Manager

Name of PSA Compliance Manager: Catherine Harvey

Title:

PSA Compliance Manager

Email address:

(b) (6), (b) (7)(C)

Telephone number: 661-859-(b) (6), (b) (7)(C)

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AUDIT FINDINGS
NARRATIVE OF AUDIT PROCESS AND DESCRIPTION OF FACILITY CHARACTERISTICS:
Directions: Discuss the audit process to include the date of the audit, names of all individuals in attendance, audit methodology, description of the sampling of staff and detainees interviewed, description of the areas of the facility toured, and a summary of facility characteristics.Visiting areas were appropriately furnished and typical of any secure correctional facility. Hearing rooms were appropriately located for privacy and lack of routine interruptions.
Intake processing had an appropriate mix of single and multiple occupancy cells. Sight lines were excellent and cells that had toilets had appropriate sections of the windows frosted to provide privacy for toilet use. Interview stations for intake questioning were appropriately shielded from detainee holding cells and reduced the chance for conversations to be inappropriately overheard by anyone without a need to know. The medical unit was immediately adjacent to the intake area and allowed for ease of access and movement between intake and medical.
The medical unit has medical isolation rooms, examination rooms and private offices. The medical unit is staffed 24 hours a day, seven days per week. There is a total of (b) (7)(Es)taff assigned to the unit, to include the mental health clinicians. Detainees are escorted and supervised by security staff when in the medical unit. Medical isolation rooms may also be used for protective custody segregation if placement in the restrictive housing unit (RHU) is deemed inappropriate based on the status of other detainees in the RHU.
The RHU consists of three single cells and is used for protective custody, administrative segregation, and disciplinary segregation. When the unit is in use, a security staff member provides direct supervision.
The housing units consist of four 100-bed dormitory units with bunkbeds. The dormitories are located on the first and second floors. Minimum security detainees and female detainees are housed separately on the first floor (dorms A and B). Medium and high security detainees are housed in separate units on the second floor (dorms C and D). Sight lines are very good. Each dormitory has two multi-user bathrooms consisting of five showers, five toilets, and seven sinks. Toilets and showers are appropriately partitioned for privacy and safety, as well as to avoid cross-gender viewing. There is only one entrance/exit to each of the bathrooms. The staff podium (work station/post) is located to provide direct supervision of the entrance, as well as sight and sound supervision of the bathrooms. PREA-related postings, including how to access outside support services were posted on all housing units in Spanish and English. The PREA audit notice was also posted in all housing units (as well as the main entrance and visiting areas). Male staff are not assigned to work the female housing unit. Opposite gender staff were observed announcing their presence on the housing units during the tour and throughout the three days of the on-site audit.
The food service area has a large, well-appointed kitchen, adequate for the population being served. Appropriately screened detainees are permitted to work in the kitchen. Predatory sex-offenders and detainees with a history of violence are not permitted to work in food service. Security staff are assigned to the kitchen when detainees are working. The dining hall is a spacious area with adequate tables and seating. The area is large enough for individual dorms to be fed comfortably and be appropriately supervised. There are blinds over the windows to the dining hall that are closed when movement in the hallways would involve opposite gender detainees being seen by the occupants.
Outdoor recreation areas are under direct staff supervision. The large, main yard has an outdoor bathroom that is open to allow for safety and supervision but is shielded from video surveillance and actual observation of bodily functions.
(b) (7)(E)

The facility has a video surveillance system that provides coverage for approximately 95% of the program areas where detainees are permitted.

(b) (7)(E)

There are

no cameras in the bathrooms on the housing units. Detainees are permitted to change clothes in only the bathroom. There are no camera views

anywhere where detainees are permitted to shower, use the toilet, or change clothes. Cross-gender viewing from the surveillance system is not

an issue. Average retention time for the system is reported to be (b) (7)(E) . Recorded images reviewed by this Auditor were crisp and fluid

(no jerky motion from low frame per second recording). (b) (7)(E)

The remainder of the first day on-site was spent interviewing specialized staff and reviewing the on-site documentation of practice. The second day of the on-site audit was spent interviewing detainees and random staff.
Eleven random security staff were interviewed by this Auditor. Interviews were conducted in a private room. Staff interviewed were selected to include both male and female officers. Additionally, interviewees were selected to include staff from all three shifts (10:00PM – 6:30AM, 6:00AM – 2:30PM and 2:00PM – 10:30PM) and all housing units. All staff interviewed acknowledged receiving PREA training as required by the DHS standards. All staff were aware of their obligations under the facility’s PREA policy (reporting, accepting reports – verbal, written and third party, and protection from harm and retaliation). All staff could readily articulate their first responder duties. All staff were able to articulate steps they would take to protect a detainee from imminent danger of sexual abuse.
Thirty-one detainees were interviewed by this Auditor (10 female and 21 male). Interviews were conducted in a private room without video surveillance. Detainees selected for an interview were chosen to include representatives from all four housing units and as culturally diverse a sampling as possible given the time constraints of the audit process. The countries of origin included Cameroon, Taiwan, Portugal, Mexico, India, South Korea, El Salvador, Sudan, Jamaica, Cuba, Armenia, Fiji, Philippines, Nigeria, Pakistan and Uzbekistan. Interpretive services were used for Spanish and Pashtu. All detainees stated they were aware of their right to be free from sexual abuse while in detention. All knew how to report allegations if they needed to. All detainees acknowledged going through the intake process and being searched by a staff member of the same

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gender. All detainees acknowledged being aware when staff of the opposite gender were on the housing unit and that they had a reasonable degree of privacy when changing clothes, showering, and using the toilet. All acknowledged being screened upon admission and seeing medical staff on the date of admission. All but one felt that their medical needs were being appropriately addressed. All but two detainees stated they felt safe at the facility (over half stated this facility was the safest one they had ever been in because staff cared about their safety). The two detainees who stated they did not feel safe, could not offer any concrete reason for feeling unsafe other than not understanding Spanish (primary language spoken by approximately 75% of the population).
There were two detainees on-site who had made an allegation of sexual abuse that occurred at Mesa Verde. Both were interviewed. The first alleged a medical doctor grabbed her by the breasts. A review of the records for this incident documented the doctor was also female and there was a signed consent in the medical record to conduct a breast examination. The medical record also documented an extensive history of mental illness and ongoing treatment for this detainee.
The second detainee victim was interviewed via interpreter. He stated he waited several months (until his alleged abuser was gone from the facility) to report the incident. He stated the facility responded immediately to his verbal report. He was immediately taken to medical (even though the incident was several months ago and the allegation did not involve any penetration) as well as being seen by his licensed social worker. He stated he was interviewed by a Spanish-speaking staff as well as a “policeman.” The investigation file was reviewed and documented a thorough administrative investigation and referral to outside law enforcement. No forensic examination was conducted due to the nature of the allegation and no recorded video was available due to the length of time between the incident and when it was reported. The victim acknowledged he was referred to the outside crisis counseling service but preferred to work with his facility social worker. This Auditor met with the social worker and she confirmed the detainee is receiving on-going services for this incident and the prior childhood abuse this incident brought to the surface.
The facility reported five allegations of sexual abuse during this audit period: of the five, three were alleged to have occurred at Mesa Verde. All three were referred to local law enforcement and an administrative investigation was initiated. Two of three incident investigations have been completed and were deemed unsubstantiated. Both files were reviewed by this Auditor and this Auditor concurs with the decisions. The third incident is still under investigation. The Public Information Officer confirmed the incidents were referred for investigation.

SUMMARY OF AUDIT FINDINGS:

Directions: Discuss audit findings to include a summary statement of overall findings and the number of provisions which the facility has achieved compliance at each level: Exceeds Standard, Meets Standard, and Does Not Meet Standard.

On day three, an exit meeting was held with staff from the MVIPC and ICE. The meeting was held in the Warden’s office on the afternoon of

December 14, 2017. The following persons were in attendance:

(b) (6), (b) (7)(C)

Management and Program Analyst - Office of Professional Responsibility/External Review and Analysis Unit Assistant Field Office Director – ICE

Senior Manager – GEO Group, Inc.

Ronald Murray
(b) (6), (b) (7)(C)

Warden – GEO, Mesa Verde Immigration Processing Center (IPC) Human Resources Manager – GEO, Mesa Verde IPC Health Services Administrator – GEO, Verde IPC

Chief of Security – GEO, Mesa Verde IPC

Training Administrator – GEO, Mesa Verde IPC

Fire and Safety Manager – GEO, Mesa Verde IPC

Catherine Harvey

Programs Manager – GEO, Mesa Verde IPC

(b) (6), (b) (7)(C)

Information Services Manager – GEO, Mesa Verde IPC

The following is a summary of the information shared with the above listed staff at the exit meeting: There were no issues related to compliance discovered during the tour. Sight lines are very good on all housing units. The assigned staff posts in the housing units help maximize supervision of the bathrooms. The video surveillance system is adequate for the current usage. T(b) (7)(E)

There were no issues with the staff interviews, both random and specialized. All staff have been properly trained to the extent necessary for their roles. The interview with the investigator was especially memorable, as this person was a highly skilled investigator with excellent insight into the dynamics of custodial investigations. All of the specialized staff interviews were excellent. Staff’s knowledge about their duties and PREA was impressive. All staff this Auditor spoke with were highly professional, well-versed in their jobs and would be an asset at any facility where they worked.
There were no issues related to compliance resulting from detainee interviews. The detainees interviewed clearly understood what PREA is and what the facility and staff were doing to protect them. All information gleaned from the interviews supported full compliance.
There is a total of 41 DHS PREA standards for Subpart A facilities: of the 41 standards, two were deemed not applicable (115.14 – Juveniles and Family Detainees and 115.18 – Upgrades to Facilities and Technologies). There are no juveniles or families housed at the facility and there have been no renovations or upgrades to the facility since it opened in 2015. Additionally, of the remaining 39 standards, 37 were found to

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meet standards and two (115.53 and 115.54) were found to exceed standards. Third-party reporting (115.54) exceeds the standard as there are multiple methods for third-party reporting to more than one outside entity. The access to community services for victims of sexual abuse (115.53) is outstanding. The agency the facility has a Memorandum of Understanding (MOU) with is on-site at the facility on a regular basis. They not only provide services for victims as required by the standards but provide preventive and educational services to help detainees avoid sexual abuse and domestic violence upon return to their home communities. This Auditor has never seen such an all-encompassing program in the 100-plus PREA audits he has conducted.

SUMMARY OF AUDIT FINDINGS

Number of standards exceeded:

2

Number of standards met:

37

Number of standards not met:

0

Number of standards N/A:

2

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PROVISIONS
Directions: In the notes, the Auditor shall include the evidence relied upon in making the compliance or non-compliance determination for each provision of the standard, the Auditor’s analysis and reasoning, and the Auditor’s conclusions. This discussion must also include corrective action recommendations where the facility does not meet the standard. These recommendations must be included in the Corrective Action Plan Final Determination, accompanied by information on specific corrective actions taken by the facility. Failure to comply with any part of a standard provision shall result in a finding of “Does not meet Standard” for that entire provision, unless that part is specifically designated as Not Applicable. For any provision identified as Not Applicable, provide an explanation for the reasoning. If additional space for notes is needed, please utilize space provided on the last page.
§115.11 – Zero tolerance of sexual abuse; Prevention of Sexual Assault Coordinator.
Outcome: Meets Standard (substantial compliance; complies in all material ways with the standard for the relevant review period)
Notes:
Policy and Procedure 11.1.6.A - MVIPC, "Sexual Abuse Assault Prevention and Intervention Program for Immigration Detention Facilities", clearly delineates the facility's zero tolerance policy and contains an approval signature from ICE. The policy outlines the facility’s approach to preventing, detecting, and responding to sexual abuse. The policy clearly delineates the role of Prevention of Sexual Abuse (PSA) Compliance Manager and designates this person as the facility point of contact for the agency PSA Coordinator. The PSA Compliance Manger reports that she has sufficient time to perform her assigned duties. Interviews with the PSA Compliance Manager and all other staff interviews confirm that the facility has a PSA Compliance Manager and that all staff are aware of this role and the duties performed by the assigned person. Interviews with the Warden, PSA Compliance Manager, and the ICE Assistant Field Office Director all fully support full compliance with this standard. Based upon all of the above, this standard is deemed to be in full compliance.
§115.13 – Detainee supervision and monitoring. Outcome: Meets Standard (substantial compliance; complies in all material ways with the standard for the relevant review period)
Notes:
Policy and Procedure 11.1.6.A - MVIPC, "Sexual Abuse Assault Prevention and Intervention Program for Immigration Detention Facilities", meets the requirements of each element of this standard. There is sufficient supervision of detainees maintained through appropriate staffing levels and video monitoring to protect detainees against sexual abuse. Comprehensive detainee supervision guidelines have been developed and documented to determine and meet the facility’s detainee supervision needs. Detailed post orders (comprehensive detainee supervision guidelines) are provided for all staffing posts (inside and outside the facility). These post orders are not due for review until June 2018. The annual review of the staffing and supervision plan was reviewed by this Auditor and contains all the elements required for full compliance with this standard. Frequent unannounced security inspections are conducted to identify and deter sexual abuse of detainees. Staff are prohibited by policy from alerting others that these security inspections are occurring. Interviews with the Sergeant and officers confirm unannounced rounds occur daily and on all shifts. Officer rounds are documented in the housing unit log book (observed by Auditor). Management rounds are documented on a form created for this specific purpose (copies of these forms were reviewed by this Auditor). Interviews with Warden, PSA and Chief of Security fully support compliance with this standard. Observations, throughout the three days of this audit, confirmed compliance with the staffing and supervision plan. There were no substantiated allegations during this audit period. None of the unsubstantiated investigations reviewed by this Auditor had any recommendations regarding changes to the staffing and supervision plan. Based upon all of the above, this standard is deemed to be in full compliance.
§115.14 – Juvenile and family detainees.
Outcome: Not Applicable (provide explanation in notes)
Notes:
The facility does not house juvenile or family detainees.
§115.15 – Limits to cross-gender viewing and searches. Outcome: Meets Standard (substantial compliance; complies in all material ways with the standard for the relevant review period)
Notes:
Policy and Procedure 11.1.6.A - MVIPC, "Sexual Abuse Assault Prevention and Intervention Program for Immigration Detention Facilities" meets the requirements of each element of this standard. Cross-gender searches, strip searches, and body cavity searches are not conducted at this facility. All searches are performed and documented in a log specific to this purpose. The policy prohibits detainees from being searched for the sole purpose of determining genital characteristics. Security staff are trained in the proper procedures for conducting pat-down searches, including pat-down searches by staff of the opposite gender, and searches of transgender and intersex detainees in a professional and respectful manner, and in the least intrusive manner possible, consistent with security needs and agency policy, including consideration of officer safety. There were no transgender or intersex detainees at the facility at the time of the on-site audit. None of the staff interviewed had ever conducted a strip search at MVIPC, let alone one for the purpose of determining a detainee’s genital status. Training curriculum for the conducting of cross gender and transgender/intersex searches of detainees was reviewed by this Auditor and met the requirements of this standard. Documentation of staff training was provided and documented compliance with this standard. All officers interviewed acknowledged they had received training on conducting such searches. The facility reports it has not conducted any cross gender searches or searches of intersex or transgender

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detainees. Detainees are able to shower, perform bodily functions, and change clothing without being viewed by staff of the opposite gender. Changing clothes is permitted only in bathroom stalls which are out of view of staff and video surveillance. All but one detainee interviewed reported that they had a reasonable degree of privacy when changing clothes, showering and using the toilet. Opposite gender staff announce their presence when entering housing units. This practice was observed throughout the on-site audit and confirmed by detainee and staff interviews. Based upon all of the above, this standard is deemed to be in full compliance.
§115.16 – Accommodating detainees with disabilities and detainees who are limited English proficient. Outcome: Meets Standard (substantial compliance; complies in all material ways with the standard for the relevant review period)
Notes: Policy and Procedure 11.1.6.A - MVIPC, "Sexual Abuse Assault Prevention and Intervention Program for Immigration Detention Facilities" meets the requirements of each element of this standard. The facility has taken reasonable steps to ensure meaningful access to all aspects of the agency’s efforts to prevent, detect, and respond to sexual abuse for detainees who are limited in their ability to speak or understand English, deaf or hard of hearing, blind or visually impaired and those with intellectual deficits. The facility provided the entire education program in audio format for the blind and visually impaired and in written format for the deaf and deemed that was sufficient to meet the requirements of this particular standard. There were no deaf or blind detainees to interview to determine the effectiveness of presentation. The facility’s PREA education program is an audio/visual presentation that is continually played in English and Spanish. Written materials are provided in English and Spanish and are available in 17 other languages, if needed. Translation and interpretation services are available for detainees with other language needs. Case managers and clinicians are available for detainees with intellectual deficits. All detainees interviewed were aware of their rights under the program. Detainees interviewed were from Cameroon, Taiwan, Portugal, Mexico, India, South Korea, El Salvador, Sudan, Jamaica, Cuba, Armenia, Fiji, Philippines, Nigeria, Pakistan and Uzbekistan. Language Services Associates provided interpretation for Spanish and Pashtu. There were no hearing or visually impaired detainees in the facility at the time of the on-site audit. Interviews with the Warden and PSA Compliance Manager confirmed every effort is made to provide detainees with meaningful access to all aspects of the facility’s prevention, detection and response to the sexual abuse prevention program. Based upon all of the above, this standard is deemed to be in full compliance.
§115.17 – Hiring and promotion decisions. Outcome: Meets Standard (substantial compliance; complies in all material ways with the standard for the relevant review period)
Notes: Policy and Procedure 11.1.6.A - MVIPC, "Sexual Abuse Assault Prevention and Intervention Program for Immigration Detention
Facilities" meets the requirements of each element of this standard. The policy requires the facility to refrain from hiring, promoting, or
enlisting the services of any employee, contractor or volunteer who may have contact with detainees who has engaged or attempted to engage in any of the prohibited acts described in this standard. Written applications and interview protocols require applicants to answer questions specific to this standard. Material omissions regarding misconduct, or the provision of materially false information, are considered to be grounds for termination or withdrawal of an offer of employment, as appropriate. Staff are also under a continuing affirmative duty to disclose any such misconduct throughout the duration of their employment. Background investigations are conducted to determine whether the candidate for hire is suitable for employment and includes a criminal background records check. Detailed records of these background investigations are maintained and available to the agency upon request. Updated background investigations are conducted every five years for those facility staff who may have contact with detainees. Documentation of employee and contractor background checks was provided on-site. Volunteers go through a similar process and are always under supervision when in contact with detainees. Interview with Human Resources Manager confirmed the process for employees and contractors. Interview with Programs Manager confirmed process for the volunteers. Interview with Human Resources Manager confirmed that information regarding references for former employees is handled through an outside contractor. Based upon all of the above, this standard is deemed to be in full compliance.
§115.18 – Upgrades to facilities and technologies. Outcome: Not Applicable (provide explanation in notes)
Notes: The facility opened in 2015. There have been no renovations or upgrades since the opening.

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§115.21 – Evidence protocols and forensic medical examinations. Outcome: Meets Standard (substantial compliance; complies in all material ways with the standard for the relevant review period)
Notes: The evidence protocol is contained in Policy and Procedure 11.1.6.A - MVIPC, "Sexual Abuse Assault Prevention and Intervention Program for Immigration Detention Facilities". This policy was approved by ICE. The facility follows a uniform evidence protocol that maximizes the potential for obtaining usable physical evidence for administrative proceedings and criminal prosecutions. Forensic examinations of sexual abuse/assault victims would be conducted at Dignity Health. The facility does not house juveniles and therefore no determination was made regarding its developmental appropriateness for juveniles. Allegations that rise to the level of criminal behavior would be referred to the Bakersfield Police Department. The uniform evidence protocol takes into consideration how best to utilize available community resources and services to address the victims’ needs. The facility has established procedures to make outside victim services available, including victim advocacy services, following incidents of sexual abuse. The facility has a memorandum of understanding with a local rape crisis/victim's services program (The Alliance Against Domestic Violence and Sexual Abuse). This program is on-site at the facility several days a week and conducts classes and holds meetings with detainees so that they are a familiar face to the detainees in the event their services are needed. Policy and Procedure 11.1.6.A - MVIPC states that all services shall be provided at no financial cost to the victim. The two completed sexual abuse investigations were reviewed. None of the allegations would have necessitated a forensic examination and therefore, there was no documentation of practice to review. Interview with the Health Services Administrator confirmed services of a Sexual Assault Forensic Examiner (SAFE) or Sexual Assault Nurse Examiner (SANE) would be provided free of charge to the victim by Dignity Health. Policy and Procedure 11.1.6.A – MVIPC requires the Bakersfield Police Department be contacted for allegations that rise to the level of criminal behavior. Documentation of those contacts is on file. Based upon all of the above, this standard is deemed to be in full compliance.
§115.22 – Policies to ensure investigation of allegations and appropriate agency oversight. Outcome: Meets Standard (substantial compliance; complies in all material ways with the standard for the relevant review period)
Notes: Policy and Procedure 11.1.6.A - MVIPC, "Sexual Abuse Assault Prevention and Intervention Program for Immigration Detention Facilities" meets the requirements of each element of this standard. There is a protocol in place to ensure that each allegation of sexual abuse, administrative and criminal, is investigated by the agency or the facility, and referred to local law enforcement. The protocol includes a description of the responsibilities of ICE Headquarters, the facility, and other investigative entities. Interviews with Warden, PSA Compliance Manager and investigator confirm compliance with this standard. Email contact with Bakersfield Police Department confirmed they have investigated allegations. The two completed investigations from this audit period were reviewed by this Auditor. Appropriate documentation of all actions and referrals are maintained in the files. The facility opened in 2015. Investigation reports dating back to 2015 were on file in the PSA Compliance Manger’s office in a locked file cabinet. The facility had one allegation involving a staff member fitting this standard. Documentation of appropriate notifications, as required by this standard (Joint Intake Center, ICE Office of Professional responsibility, DHS Office of the Inspector General and the appropriate ICE Field Office Director), were reviewed by this Auditor and demonstrated compliance with this standard. Facility/GEO protocols regarding this standard are available at: http://geogroup.com/prea. Based upon all of the above, this standard is deemed to be in full compliance.
§115.31 – Staff training. Outcome: Meets Standard (substantial compliance; complies in all material ways with the standard for the relevant review period)
Notes: Policy and Procedure 11.1.6.A - MVIPC, "Sexual Abuse Assault Prevention and Intervention Program for Immigration Detention Facilities" meets the requirements of each element of this standard. The training curriculum was reviewed in detail and was deemed to meet the requirements of each element of this standard. All staff interviewed acknowledged having received the PREA training. All acknowledged that the training covered the topics required by the standard. The training supervisor maintains documentation of all training staff have completed. Training records provided to this Auditor support full compliance for this standard. The facility did not open until mid-2015. Documentation of staff training once opened was provided to this Auditor as well as refresher training as appropriate to their length of employment at Mesa Verde. Review of on-site records confirm staff signatures for completion of training. Based upon all of the above this standard is deemed to be in full compliance.

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§115.32 – Other training. Outcome: Meets Standard (substantial compliance; complies in all material ways with the standard for the relevant review period)
Notes: Policy and Procedure 11.1.6.A - MVIPC, "Sexual Abuse Assault Prevention and Intervention Program for Immigration Detention Facilities" meets the requirements of this standard. All volunteers and contractors having contact with detainees are trained on their responsibilities under the agency’s and the facility’s sexual abuse prevention, detection, intervention and response policies and procedures. Contractors and volunteers receive the same training as staff which includes notification of the agency’s zero-tolerance policy and how to report any such incidents. Documentation of all volunteers and contractors completing the training was provided to this Auditor. Signed acknowledgements from contractors and volunteers were provided to this Auditor which satisfied the requirements of this standard. Interview with training supervisor confirmed and supported all of the above. An interview with a volunteer confirmed she received appropriate training. Based on all the above this standard is deemed to be in full compliance.
§115.33 – Detainee education. Outcome: Meets Standard (substantial compliance; complies in all material ways with the standard for the relevant review period)
Notes: Policy and Procedure 11.1.6.A - MVIPC, "Sexual Abuse Assault Prevention and Intervention Program for Immigration Detention Facilities" meets the requirements of each element of this standard. During the intake process the detainee orientation program notifies and informs detainees of each element of this standard. Detainees receive a DHS/ICE handbook, GEO handbook and pamphlet from ICE on sexual abuse and assault awareness. These materials are available in English and Spanish. PREA education video was observed be played in the intake holding cells and the dining room on a continuous loop. The detainee education program provided at intake is an audio/visual presentation in English and Spanish. The audio/visual education program meets the requirements of this standard for 90% of the detainees. The facility provided the entire education program in audio format for the blind and visually impaired and in written format for the deaf and deemed that was sufficient to meet the requirements of this particular standard. There were no deaf or blind detainees to interview to determine the effectiveness of presentation. The facility’s PREA education program is an audio/visual presentation that is continually played in English and Spanish. Written materials are provided in English and Spanish and are available in 17 other languages, if needed. Translation and interpretation services are available for detainees with other language needs. Detainees with significant learning deficits are assigned a clinical staff to address their needs. All detainees were aware of the video playing in the dining room. Some (less than 25%) did not remember seeing the video in the intake holding cells, but all reported having received written materials upon intake. The number of detainees not recalling seeing/hearing the video during intake is NOT deemed a sign of non-compliance by this Auditor as all received written materials at intake, have seen the video played on continuous loop in the dining room and were aware of their rights under the facility’s PREA program. Additionally, many of the detainees interviewed had been at the facility for nearly a year. The required postings (zero tolerance posters, information on reporting sexual abuse with telephone numbers, information on rape crisis services, counseling services and victim advocacy services) were observed on all housing units and other common areas throughout the facility. Detainee interviews confirm the postings have been in place for a significant period of time. Intake staff interviewed stated the DHS pamphlet, “Sexual Assault Awareness Information” is given to each detainee during the intake process. The pamphlet is also posted throughout the facility and on all housing units. Signed receipts from detainees receiving the handbook were reviewed and found to be in full compliance with this standard. Based upon all of the above, this standard is deemed to be in full compliance.
§115.34 – Specialized training: Investigations. Outcome: Meets Standard (substantial compliance; complies in all material ways with the standard for the relevant review period)
Notes: Policy and Procedure 11.1.6.A - MVIPC, "Sexual Abuse Assault Prevention and Intervention Program for Immigration Detention Facilities" meets the requirements of this standard. Specialized training on sexual abuse and effective cross-agency coordination is provided to investigators who conduct investigations into allegations of sexual abuse at the facility. All GEO investigations into alleged sexual abuse are conducted by qualified investigators. The training curriculum utilized by GEO is the PREA Resource Center Curriculum. This Auditor reviewed two of three investigation files for allegations occurring during this audit period. Both were clearly written by qualified investigators. Training supervisor confirmed that the specialized training for investigators was conducted separately from other PREA trainings. The investigator interviewed confirmed she had received specialized training and through her answers, demonstrated a clear understanding of inter-agency coordination. Training certificates for all three GEO employee investigators at Mesa Verde were reviewed. Based upon all of the above, this standard is deemed to be in full compliance.

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§115.35 – Specialized training: Medical and mental health care. Outcome: Meets Standard (substantial compliance; complies in all material ways with the standard for the relevant review period)
Notes: Policy and Procedure 11.1.6.A - MVIPC, "Sexual Abuse Assault Prevention and Intervention Program for Immigration Detention Facilities" meets the requirements of this standard. This policy bears an approval signature from ICE. While the facility provides specialized training to its medical and mental health care staff, none of them are DHS or agency employees. Additionally, facility staff do not provide care for victims of sexual abuse occurring at the facility unless life-saving care is needed. The protocol is to transport to Dignity Health. This was confirmed via interview with the Health Services Administrator. Based upon all of the above, this standard is deemed to be in full compliance.
§115.41 – Assessment for risk of victimization and abusiveness. Outcome: Meets Standard (substantial compliance; complies in all material ways with the standard for the relevant review period)
Notes: Policy and Procedure 11.1.6.A - MVIPC, "Sexual Abuse Assault Prevention and Intervention Program for Immigration Detention Facilities" meets the requirements of this standard. All detainees are assessed at intake to identify those likely to be sexual aggressors or sexual abuse victims. Detainees are housed to prevent sexual abuse, taking necessary steps to mitigate any dangers identified in the assessment. All intakes are kept separate from the general population until they are classified and may be housed accordingly. The classification process and initial housing assignment are required by policy to be completed within 12 hours of admission to the facility. The facility uses three separate standardized risk assessment tools, which cover all areas of this standard, to complete the risk assessment. The assessment tools clearly address all the factors required by this standard. All detainees interviewed reported going through the intake process upon arrival at the facility. The intake processing area has single and multiple occupancy holding cells separate from the rest of the population. The facility's classification and housing system support full compliance with this standard. Additionally, within the housing unit, officers will place detainees who are vulnerable to being victimized, closest to the staff post. All intake staff interviewed stated intake processing, including being seen by medical, takes less than 12 hours. There were no transgender or intersex detainees at the facility to interview. All but one detainee stated they were assigned to a housing unit in less than 12 hours. The completed assessment tool results are put into a matrix which categorizes the detainees as vulnerable to victimization or high risk for victimizing others and are kept on separate housing units. Interviews with vulnerable detainees confirmed that their own concerns about their safety were taken into consideration. Interviews with case manager and PSA Compliance Manager support full compliance with this standard. Interviews with vulnerable detainees at the facility for over 60 days also support full compliance. The risk assessment matrix lists date of admission and date of last reassessment, which also supports full compliance with this standard. None of the staff interviewed (PSA Compliance Manager, intake staff, Chief of Security, Case Manager or officers) could recall any instance where a detainee was disciplined for refusing to answer the questions referenced above. None of the detainees interviewed (which included gay, prior victims of sexual abuse, and high risk for victimizing others) reported ever having been disciplined or threatened with discipline over answering the above referenced questions. Interviews with PSA Compliance Manager, Case Manager and intake staff all support that this information is restricted to a need to know basis. Based upon all of the above, this standard is deemed to be in full compliance.
§115.42 – Use of assessment information. Outcome: Meets Standard (substantial compliance; complies in all material ways with the standard for the relevant review period)
Notes: Policy and Procedure 11.1.6.A – MVIPC, “Sexual Abuse Assault Prevention and Intervention Program for Immigration Detention Facilities” meets the requirements of this standard. Information from the risk assessment is used to inform each detainee’s housing, recreation, other activities, and voluntary work assignments. All factors required by this standard are taken into consideration when making housing decisions. Each decision is made individually based on the risk assessment factors noted for the individual detainee. Interviews with PSA Compliance Manager, Case Manager and intake staff all support that this information is used to make appropriate decisions regarding housing, work, recreation, and access to volunteers and other outside providers. Detainees deemed high risk of victimizing others are not permitted to work in the food service department. Housing units are clearly set up to keep vulnerable detainees from high risk detainees. There were no transgender or intersex detainees at the facility during the on-site audit. The facility reported having one transgender detainee go through intake in the past 12 months. Due to safety concerns and the detainee’s own concerns regarding their safety, the detainee was housed in the medical unit for 48 hours until a transfer to a suitable facility could be arranged. Health Services Administrator, PSA Compliance Manager and case worker confirmed that the policy was followed in this instance. The one transgender detainee previously housed at the facility remained in the medical unit until transferred to another facility. The shower in the medical unit is for individual use. Based upon all of the above, this standard is deemed to be in full compliance.

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§115.43 – Protective custody. Outcome: Meets Standard (substantial compliance; complies in all material ways with the standard for the relevant review period)
Notes: Policy and Procedure 11.1.6.A - MVIPC, "Sexual Abuse Assault Prevention and Intervention Program for Immigration Detention Facilities" meets the requirements of each element of this standard. The facility has written procedures governing the management of the facility’s administrative segregation unit that were developed in consultation with ICE. The policy bears an approval signature from ICE. The facility reported that no detainees were held in administrative segregation on the basis of vulnerability to sexual violence. This was confirmed by the Warden and Chief of Security. There were no detainees housed in protective custody due to vulnerability of sexual violence and therefore no documentation of practice to review for compliance. Policy and Procedure 11.1.6.A has written procedures for the regular review of all vulnerable detainees placed in administrative segregation for their protection, as required by this standard. Per the same policy, detainees would have access to programs, visitation, counseling and other services. Lastly, the policy requires that the appropriate ICE Field Office Director be notified no later than 72 hours after initial placement in protective custody. Based upon all of the above, this standard is deemed to be in full compliance.
§115.51 – Detainee reporting. Outcome: Meets Standard (substantial compliance; complies in all material ways with the standard for the relevant review period)
Notes: Procedure 11.1.6.A - MVIPC, "Sexual Abuse Assault Prevention and Intervention Program for Immigration Detention Facilities" meets the requirements of each element of this standard. The facility has policies and procedures to ensure that detainees have multiple ways to privately report sexual abuse, retaliation for reporting sexual abuse, and staff neglect or violation of responsibilities that may have contributed to such incidents. These include instructions on how detainees may contact their consular official, the DHS Office of the Inspector General or, as appropriate, another designated office, to confidentially and, if desired, anonymously report these incidents. This also includes instructions on how to contact outside entities not a part of the facility or agency. Policy and This policy requires staff to accept verbal, written, anonymous and third-party reports. All detainees interviewed were aware of multiple methods of reporting sexual abuse and their ability make anonymous reports to outside entities. Interviews with the PSA Compliance Manager, random officers and supervisors confirmed they would accept reports whether they were verbal, in writing, anonymous or third-party. Interview with staff from the Alliance Against Domestic Violence and Sexual Abuse confirmed the ability of detainees to anonymously report to an outside entity as required by this standard as well as the Alliance's ability to immediately forward reports to agency officials. Of the three reported allegations of sexual abuse all three were verbal reports. The investigation files for two of these allegations were reviewed and documentation by staff of the verbal report was present. There were no third-party or anonymous reports made during this audit period and therefore no documentation of practice for review. All staff interviewed stated that they would have to write a report documenting the allegation and their actions regardless of how it was received. Based upon all of the above this standard is deemed to be in full compliance.
§115.52 – Grievances. Outcome: Meets Standard (substantial compliance; complies in all material ways with the standard for the relevant review period)
Notes: Policy and Procedure 11.1.6.A - MVIPC, "Sexual Abuse Assault Prevention and Intervention Program for Immigration Detention Facilities" addresses all the requirements of this standard. Detainees are permitted to file a formal grievance related to sexual abuse at any time during, after, or in lieu of lodging an informal grievance or complaint. There is no time limit on when a detainee may submit a grievance regarding an allegation of sexual abuse. The facility has written procedures for identifying and handling time-sensitive grievances that involve an immediate threat to detainee health, safety, or welfare related to sexual abuse. Medical emergencies are brought to the immediate attention of proper medical personnel for further assessment. Detainees may obtain assistance to prepare a grievance from another detainee, the housing officer or other facility staff, family members, or legal representatives and staff shall take reasonable steps to expedite requests for assistance. Information on filing a grievance is found in the GEO detainee handbook. The facility grievance policy fully complies with this standard. Interviews with the grievance coordinator, PSA Compliance Manager, Chief of Security, and Warden all confirm any grievance received alleging sexual abuse would automatically trigger the facility's coordinated response plan. The facility's grievance procedures clearly outline a rapid response to any grievance involving an immediate threat to detainee health, safety or welfare related to sexual abuse. Per the policy, the facility must respond to the initial grievance within five days and respond to any appeal within 30 days. Interview with the grievance coordinator reports that no such grievances were filed during this audit period. The facility reported no grievances related to sexual abuse were received during this audit period. Therefore, there was no documentation of practice for review. No detainees filed such a grievance and therefore no detainee interviews were conducted related to this standard. Based upon all of the above, this standard is deemed to be in full compliance.

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§115.53 – Detainee access to outside confidential support services. Outcome: Exceeds Standard (substantially exceeds requirement of standard)
Notes: Policy and Procedure 11.1.6.A - MVIPC, "Sexual Abuse Assault Prevention and Intervention Program for Immigration Detention Facilities" addresses the requirements of this standard. The facility makes excellent use of available community resources and services to provide valuable expertise and support in the areas of crisis intervention, counseling, investigation, and the prosecution of sexual abuse perpetrators to most appropriately address victims’ needs. The facility has a signed, and current, MOU with the California Coalition Against Sexual Assault and the Alliance Against Family Violence and Sexual Assault. The one sexual abuse victim at the facility during the on-site portion of this audit was interviewed. He acknowledged that the services from the Alliance were offered to him, but he preferred to work with the facility’s Licensed Social Worker. Interview with the Social Worker confirmed she continues to provide ongoing services to the victim. Interview with PSA Compliance Manager indicated that staff from the Alliance are on-site at the facility on a regular basis. They provide educational programs and counseling in addition to crisis/rape counseling and victim advocacy services. Detainees receive a brochure from the Alliance upon intake. The same brochure is posted on all housing units and other prominent locations throughout the facility. All detainees interviewed were aware of the Alliance and how to contact them if needed. Many were participating in Alliance activities. The facility reports that there were no allegations of sexual abuse reported or investigated as a result of monitoring communications with outside support services. There do not appear to be any applicable mandatory reporting laws related to this facility's population (non-vulnerable adults). All of the detainees interviewed were aware that confidential communications may be monitored. Based upon all of the above, this standard is deemed to be in full compliance and substantially exceeds the requirements of the standard.
§115.54 – Third-party reporting Outcome: Exceeds Standard (substantially exceeds requirement of standard)
Notes: Policy and Procedure 11.1.6.A - MVIPC, "Sexual Abuse Assault Prevention and Intervention Program for Immigration Detention Facilities" meets the requirements of this standard. The facility has established a method to receive third-party reports of detainee sexual abuse and made it available to the public. The ICE website (https://ice.gov/prea) and GEO website (http://geogroup.com/prea) contain information on third-party reporting. Information is prominently posted in all areas accessible to the public (main entrance, lobby, visiting area). Reporting information on the GEO website is accurate and functional. The facility reports that it has received no thirdparty reports during this audit period. Based upon all of the above, this standard is deemed to be in full compliance and exceeds the requirements for third-party reporting.
§115.61 – Staff reporting duties. Outcome: Meets Standard (substantial compliance; complies in all material ways with the standard for the relevant review period)
Notes: Policy and Procedure 11.1.6.A - MVIPC, "Sexual Abuse Assault Prevention and Intervention Program for Immigration Detention Facilities" meets the requirements of this standard. Staff are required to report immediately and according to agency policy, any knowledge, suspicion, or information regarding any incident of sexual abuse that occurred in a facility; retaliation against detainees or staff who reported or participated in an investigation about such an incident; and any staff neglect or violation of responsibilities that may have contributed to an incident or retaliation. The policy has an approval signature from ICE. All three allegations of sexual abuse were properly reported by staff and investigated. Interviews with PSA Compliance Manager and random staff confirmed their awareness of the policy and their duties to report as required by this standard. All staff interviewed were aware of their obligation to report all allegations of sexual abuse as well as the requirement they document the information in an official written report. The facility does not house vulnerable adults as defined by California statutes. All staff interviewed were aware of the need to maintain strict confidentiality over information regarding allegations of sexual abuse. Based upon all of the above, this standard is deemed to be in full compliance.
§115.62 – Protection duties. Outcome: Meets Standard (substantial compliance; complies in all material ways with the standard for the relevant review period)
Notes: Policy and Procedure 11.1.6.A - MVIPC, "Sexual Abuse Assault Prevention and Intervention Program for Immigration Detention Facilities" meets the requirements of this standard. When staff has a reasonable belief that a detainee is subject to a substantial risk of imminent sexual abuse, he or she shall take immediate action to protect the detainee. Facility staff reported they had not received any reports from third parties, anonymously, through a grievance, or by direct report, of a detainee being in substantial risk of harm from sexual abuse. None of the staff interviewed were aware of such an instance during this audit period and were able to articulate measures they would take to protect a detainee should they become aware of a substantial risk of harm from sexual abuse. Staff indicated these measures included maintaining direct visual supervision of the detainee, calling for a supervisor, isolating the detainee from others and calling for immediate transport to the medical unit. Based upon all of the above, this standard is deemed to be in full compliance.

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§115.63 – Report to other confinement facilities. Outcome: Meets Standard (substantial compliance; complies in all material ways with the standard for the relevant review period)
Notes: Policy and Procedure 11.1.6.A - MVIPC, "Sexual Abuse Assault Prevention and Intervention Program for Immigration Detention Facilities" addresses the requirements of this standard. Upon receiving an allegation that a detainee was sexually abused while confined at another facility, the facility will notify the appropriate office of the agency or the administrator of the facility where the alleged abuse occurred. Notification will be as soon as possible, but no later than 72 hours after learning of the allegation. Such notification will be documented. If the facility receives notification from another facility pursuant to this standard, it will notify the ICE Field Office and refer the allegation for investigation. The Warden and PSA Compliance Manager reported the facility had received an allegation of sexual abuse, from a detainee during the intake process, which occurred at another facility. Documentation of this incident having been reported within 72 hours was provided for this Auditor's review. Warden and PSA Compliance Manager report the facility has not received a sexual abuse report from another facility during this audit period. Based upon all of the above this standard is deemed to be in full compliance.
§115.64 – Responder duties. Outcome: Meets Standard (substantial compliance; complies in all material ways with the standard for the relevant review period)
Notes: Policy and Procedure 11.1.6.A - MVIPC, "Sexual Abuse Assault Prevention and Intervention Program for Immigration Detention Facilities" addresses all the elements required by this standard. All staff carry the protocols for first responders in their ID card holder. This Auditor reviewed the information and it covers their duties in detail. All staff interviewed were aware of their first responder duties. None of the sexual abuse allegations reported during this audit period would have necessitated staff to perform first responder duties, however in all three instances the detainee was immediately transported to the medical unit. There were no allegations of sexual abuse reported during this audit period that would have necessitated a non-security staff to perform first responder duties. Interviews with non-security staff confirmed they carry their first responder duties in their ID card holder for easy access should they need them. Based upon all of the above, this standard is deemed to be in full compliance.
§115.65 – Coordinated response. Outcome: Meets Standard (substantial compliance; complies in all material ways with the standard for the relevant review period)
Notes: The facility has a written institutional plan (DHS SAAPI Coordinated Response Plan) to coordinate actions to be taken by first responders, medical and mental health practitioners, investigators, and facility leadership in response to an incident of sexual abuse. The facility provided this Auditor with a copy of its coordinated response. It is detailed and specific as to each department's actions in response to an incident of sexual abuse. The plan calls for the facility to use a coordinated, multidisciplinary team approach to responding to sexual abuse. The facility's coordinated response plan was reviewed by this Auditor. The plan clearly takes a multidisciplinary approach to responding to sexual abuse. The facility has a response plan checklist to document the implementation of the plan in response to a report of sexual abuse. The checklist requires date and time entries for the completion of each task. Completed forms are maintained in the investigation file. All three checklists were present for the allegations reported during this audit period. The facility reports that no detainee victims of sexual abuse were transferred during this audit period and therefore no documentation of practice related to transfers of detainee victims was available for review. Based upon all of the above, this standard is deemed to be in full compliance.
§115.66 – Protection of detainees from contact with alleged abusers. Outcome: Meets Standard (substantial compliance; complies in all material ways with the standard for the relevant review period)
Notes: Policy and Procedure 11.1.6.A - MVIPC, "Sexual Abuse Assault Prevention and Intervention Program for Immigration Detention Facilities" addresses the requirements of this standard. Staff, contractors, or volunteers suspected of perpetrating sexual abuse are removed from all duties requiring detainee contact pending the outcome of an investigation. There was one sexual abuse report alleging a staff member as the abuser. Documentation of the staff member being placed on no-contact status was provided. Based upon all of the above, this standard is deemed to be in full compliance.

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§115.67 – Agency protection against retaliation. Outcome: Meets Standard (substantial compliance; complies in all material ways with the standard for the relevant review period)
Notes: Policy and Procedure 11.1.6.A - MVIPC, "Sexual Abuse Assault Prevention and Intervention Program for Immigration Detention Facilities" addresses the requirements of this standard. Staff, contractors, volunteers, and detainees are prohibited by policy from retaliating against any person, including a detainee, who reports, complains about, or participates in an investigation into an allegation of sexual abuse, or participates in sexual activity as a result of force, coercion, threats, or fear of force. Per the policy, monitoring is for a minimum of 90 days. The facility employs multiple protection measures (i.e. housing changes, removal of alleged staff or detainee abusers from contact with victims, and emotional support services for detainees or staff who fear retaliation for reporting sexual abuse or for cooperating with investigations). The facility reports there were no grievances related to retaliation against staff or detainees during this audit period. The Warden and PSA Compliance Manager report there is a system in place to monitor for retaliation and document any actions taken in response. The one victim of sexual abuse interviewed by this Auditor reported he had not experienced any retaliation and that he has regularly been asked if any has occurred. The Warden and PSA Compliance Manager reported that monitoring for retaliation is documented on a standardized form. This form was reviewed by this Auditor and meets all the requirements of this standard. It requires weekly monitoring. Documentation of monitoring for the one detainee victim still at the facility was provided. Based upon all of the above, this standard is deemed to be in full compliance.
§115.68 – Post-allegation protective custody. Outcome: Meets Standard (substantial compliance; complies in all material ways with the standard for the relevant review period)
Notes: Policy and Procedure 11.1.6.A - MVIPC, "Sexual Abuse Assault Prevention and Intervention Program for Immigration Detention Facilities" addresses all the elements required by this standard. The facility reports no detainees were placed in protective custody as related to this standard. The PSA Compliance Manager confirmed this. The policy requires that detainee victims are not held in any type of administrative segregation for longer than five days, except in highly unusual circumstances or at the request of the detainee. Detainee victims of sexual abuse will not be returned to general population until a proper reassessment has been completed. The facility reported no detainee victims of sexual abuse were placed in administrative segregation during this audit period. The PSA Compliance Manager and security staff confirmed there have been no victims of sexual abuse housed in the restrictive housing unit. There were no detainee victims of sexual abuse in segregated housing. There have been no detainee victims held in protective custody and therefore, no documentation of practice is available to review for compliance. In the event a detainee was placed in post-allegation protective custody; the appropriate ICE Field Office Director would be notified. The Warden and PSA Compliance Manager indicated the policy would be followed should such an event occur. Based upon all of the above, this standard is deemed to be in full compliance.
§115.71 – Criminal and administrative investigations. Outcome: Meets Standard (substantial compliance; complies in all material ways with the standard for the relevant review period)
Notes: GEO Corporate Policy and Procedure Manual 5.1.2-F, "Investigating Allegations of Sexual Abuse and Assault and Evidence Collection in Immigration Detention Facilities" addresses fully the requirements of this standard. The facility conducts administrative investigations (using GEO employee investigators) of allegations of sexual abuse. The only investigation reports reviewed by this auditor were completed by GEO employees Criminal investigations are handled by the Bakersfield Police Department. A review of both the completed administrative investigations during this audit period, demonstrated a prompt, thorough, and objective investigation was completed by a specially trained and qualified investigator. The quality and thoroughness of the investigation reports were outstanding. Investigation files clearly document an administrative investigation was conducted after the criminal investigation was completed. Both files appropriately document the necessary consultations being conducted. Written reports of investigations conducted during this audit period clearly document all steps taken during the investigative process. These steps meet all the requirements of this standard. Reports are retained, by policy, for at least 10 years. Investigators are specifically trained on the coordination and sequencing of investigations to ensure criminal investigations by local law enforcement are not compromised by internal investigations. Interviews with Warden, PSA Compliance Manager (also a trained investigator) and investigator (Sergeant) all support full compliance with this standard. The one ongoing investigation remains open even though the staff member resigned his position. This clearly demonstrates compliance with this section of the standard. Documentation of cooperation and efforts to remain informed about the investigation are part of the investigation file maintained by the facility. Interviews with the Warden, PSA Compliance Manager and investigator all support full compliance with this standard. Based upon all of the above, this standard is deemed to be in full compliance.

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§115.72 – Evidentiary standard for administrative investigations. Outcome: Meets Standard (substantial compliance; complies in all material ways with the standard for the relevant review period)
Notes: GEO Corporate Policy and Procedure Manual 5.1.2-F, "Investigating Allegations of Sexual Abuse and Assault and Evidence Collection in Immigration Detention Facilities" addresses fully the requirements of this standard. A preponderance of the evidence is the standard for substantiating an allegation in an administrative investigation. The investigator interviewed confirmed that is the evidentiary standard she was trained to use. A review of investigation files determined a preponderance of the evidence is the standard being used. Based upon all of the above this standard is deemed to be in full compliance.
§115.73 – Reporting to detainees. Outcome: Meets Standard (substantial compliance; complies in all material ways with the standard for the relevant review period)
Notes: GEO Corporate Policy and Procedure Manual 5.1.2-F, "Investigating Allegations of Sexual Abuse and Assault and Evidence Collection in Immigration Detention Facilities" addresses fully the requirements of this standard. The facility will notify detainees who made an allegation of sexual abuse about the outcome of the investigation if they are still in custody or where it is otherwise feasible. The one detainee interviewed who reported sexual abuse stated he was advised of the outcome of the investigation. Written documentation of this notification is in the investigation file. Based upon all of the above this standard is deemed to be in full compliance.
§115.76 – Disciplinary sanctions for staff. Outcome: Meets Standard (substantial compliance; complies in all material ways with the standard for the relevant review period)
Notes: GEO Corporate Policy and Procedure Manual 5.1.2-F, "Investigating Allegations of Sexual Abuse and Assault and Evidence Collection in Immigration Detention Facilities" addresses fully the requirements of this standard. Staff are subject to disciplinary or adverse action up to and including removal from their position and the Federal service for substantiated allegations of sexual abuse or for violating agency or facility sexual abuse policies. Removal from their position and from the Federal service is the presumptive disciplinary sanction for staff who are substantiated for allegations of sexual abuse or for violating agency or facility sexual abuse policies. Per the Warden, staff are subject to disciplinary action and criminal prosecution commensurate with the type of allegation substantiated. The facility reports that there were no substantiated allegations of sexual abuse against staff and therefore, no documentation of practice was available for review by this Auditor. The facility reports there were no staff removals or resignations in lieu of removal for violations of agency or facility sexual abuse policies. Therefore, no documentation of practice (reasonable efforts to notify relevant licensing bodies) was available for review by this Auditor. The facility reports there was one employee resignation prior to the conclusion of the investigation. That investigation was still pending at the time of the on-site audit. Based upon all of the above, this standard is deemed to be in full compliance.
§115.77 – Corrective action for contractors and volunteers. Outcome: Meets Standard (substantial compliance; complies in all material ways with the standard for the relevant review period)
Notes: GEO Corporate Policy and Procedure Manual 5.1.2-F, "Investigating Allegations of Sexual Abuse and Assault and Evidence Collection in Immigration Detention Facilities" addresses fully the requirements of this standard. The facility will make reasonable efforts to report substantiated allegations of sexual abuse by a contractor or volunteer to any relevant licensing body, to the extent known, as well as report to law enforcement agencies, unless the activity was clearly not criminal. The facility reports there were no allegations of sexual abuse reported during this audit period that involved contractors or volunteers. The facility reports that there have been no violations of other provisions of these standards by contractors or volunteers and therefore no documentation of practice to review for compliance. Based upon all of the above this standard is deemed to be in full compliance.

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§115.78 – Disciplinary sanctions for detainees. Outcome: Meets Standard (substantial compliance; complies in all material ways with the standard for the relevant review period)
Notes: GEO Corporate Policy and Procedure Manual 5.1.2-F, "Investigating Allegations of Sexual Abuse and Assault and Evidence Collection in Immigration Detention Facilities" addresses fully the requirements of each element (a – f) of this standard. Detainees are subject to disciplinary sanctions pursuant to a formal disciplinary process following an administrative or criminal finding that the detainee engaged in sexual abuse. Detainees are not subject to disciplinary sanctions for engaging in consensual acts with staff. The policy further states any imposed sanctions be commensurate with the severity of the committed prohibited act and intended to encourage the detainee to conform with rules and regulations in the future. The facility reports there were no substantiated allegations of detainee-on-detainee sexual abuse, and no sanctions imposed and therefore no documentation of practice to be reviewed for compliance. The one detainee who made an allegation of detainee-on-detainee abuse that was later deemed unsubstantiated stated he was not disciplined for filing the report. Based upon all of the above this standard is deemed to be in full compliance.
§115.81 – Medical and mental health assessment; history of sexual abuse. Outcome: Meets Standard (substantial compliance; complies in all material ways with the standard for the relevant review period)
Notes: Policy and Procedure 11.1.6.A - MVIPC, "Sexual Abuse Assault Prevention and Intervention Program for Immigration Detention Facilities" meets the requirements of this standard. Detainees with a history of sexually abusive behavior or sexual victimization are referred to a qualified medical or mental health practitioner for medical and/or mental health follow-up as appropriate. Detainees will receive a health evaluation no later than two working days from the date of assessment and a mental health evaluation no later than 72 hours after the referral. A case worker, intake staff and the Health Services Administrator advised the facility maintains a PREA Risk Assessment Tracking Log. This log documents which detainees were deemed to need a follow-up referral and why. The one detainee interviewed who reported a history of sexual abuse acknowledged he was referred and continues to receive services for his past trauma. The Health Services Administrator reports there were no detainees referred for a health evaluation as a result of their intake risk assessment (all referrals were for mental health evaluations). The PREA Risk Assessment Tracking Log fully supports this statement. Medical records are well documented and contain detailed notes providing clear documentation of follow-up on referrals. Interview with mental health clinician provided clear evidence of a dedicated and professional response to mental health needs. Medical Services Unit, which includes the mental health services staff, is a well-managed and professional group who are dedicated to providing their patients the best care possible. Based upon all of the above this standard is deemed to be in full compliance.
§115.82 – Access to emergency medical and mental health services. Outcome: Meets Standard (substantial compliance; complies in all material ways with the standard for the relevant review period)
Notes: Policy and Procedure 11.1.6.A - MVIPC, "Sexual Abuse Assault Prevention and Intervention Program for Immigration Detention Facilities" addresses the requirements of this standard. Detainee victims of sexual abuse have timely, unimpeded access to emergency medical treatment and crisis intervention services, including emergency contraception and sexually transmitted infections prophylaxis, in accordance with generally accepted standards professional care. Emergency medical treatment services are provided to the victim without financial cost and regardless of whether the victim names the abuser or cooperates with any investigations arising out of the incident. Health Services Administrator advised that all emergency medical and mental health services would be provided by Dignity Health (community health services provider). The one detainee who reported sexual abuse that would have necessitated possible emergency medical services and potentially a forensic examination waited months after the incident to report it. He was still transported to the ER as a precaution. Interview with his mental health clinician determined that he received all appropriate services given the length of time between the incident and his report. The policy clearly states that services are free of charge. Health Services Administrator stated services are provided free of charge. There is nothing in the detainee's records that would indicate he was charged for these services. Detainee states he was not charged for these services. Based upon all of the above this standard is deemed to be in full compliance.

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§115.83 – Ongoing medical and mental health care for sexual abuse victims and abusers. Outcome: Meets Standard (substantial compliance; complies in all material ways with the standard for the relevant review period)
Notes: Policy and Procedure 11.1.6.A - MVIPC, "Sexual Abuse Assault Prevention and Intervention Program for Immigration Detention Facilities" addresses the requirements of this standard. Interview with detainee victim of sexual abuse and his clinician confirmed he is receiving ongoing mental health services. The one detainee victim of sexual abuse remains at the facility and is clearly receiving follow up care. The clinician treating him reports that it is extremely difficult to make continuity of care referrals for many detainees who are deported as the services frequently do not exist in the detainee's home community. As a result of my interviews with the Health Service Administrator and mental health clinician, it is this Auditor's professional opinion that detainee victims of sexual abuse at this facility receive care that is as good, if not better than what is available in the community. Any needed service that the facility could not provide would be received from a community practitioner. Access to these services is without financial cost to the detainee. The facility reports that there were no female detainees who reported sexual abuse and therefore no documentation of practice was available for review of compliance. The one detainee victim of sexual abuse reported he was offered testing (the detainee did not specify what type of testing was offered, due to the detainee’s obvious distress in talking about the incident this Auditor did not ask his to define the term “testing”) while at the ER. Dignity Health’s Mercy Hospital is a full-service emergency medical facility which would be capable of providing all appropriate preventive and prophylactic testing and treatment to a victim of sexual abuse. The one alleged abuser in an unsubstantiated report of sexual abuse was no longer at the facility at the time the incident was reported and therefore there is no documentation of practice for review for compliance. If the abuser had been at the facility a mental health evaluation would have been conducted within 60 days. Based upon all of the above this standard is deemed to be in full compliance.
§115.86 – Sexual abuse incident reviews. Outcome: Meets Standard (substantial compliance; complies in all material ways with the standard for the relevant review period)
Notes: Policy and Procedure 11.1.6.A - MVIPC, "Sexual Abuse Assault Prevention and Intervention Program for Immigration Detention Facilities" addresses the requirements of this standard. The facility conducts a sexual abuse incident review at the conclusion of every investigation of sexual abuse. Written reports are generated as a result of these reviews. Interviews with the Warden, Chief of Security and PSA Compliance Manager all confirmed that sexual abuse incident reviews do occur and that the incident review team is composed of the appropriate staff members. Documentation of the incident reviews were provided to this Auditor for review. These documents are maintained in the investigation file. Neither of the two incident reviews contained a recommendation for corrective action. Both incidents were deemed to be unsubstantiated. This Auditor deemed the lack of recommendations appropriate based on the circumstances of the incidents. Documentation of the reports being forwarded to the appropriate parties is also maintained in the investigation file. Interviews with members of the incident review team confirmed that the factors required by the standard are taken into consideration as a part of the incident review process. This consideration was documented on the two sexual abuse incident reviews provided to this Auditor. The most recent annual review, dated 09/15/2017 was provided to this Auditor. The annual review report complies with all aspects of this standard and takes into consideration prior years’ data for comparison purposes. Documentation of the report sent to the Field Office Director was also provided and meets the requirements of this standard. Based upon all of the above this standard is deemed to be in full compliance.
§115.87 – Data collection. Outcome: Meets Standard (substantial compliance; complies in all material ways with the standard for the relevant review period)
Notes: Policy and Procedure 11.1.6.A - MVIPC, "Sexual Abuse Assault Prevention and Intervention Program for Immigration Detention Facilities" meets the requirements of this standard. The facility maintains in a secure area all case records associated with claims of sexual abuse, including incident reports, investigative reports, offender information, case disposition, medical and counseling evaluation findings, and recommendations for post-release treatment, if necessary, and/or counseling in accordance with these standards and applicable agency policies, and in accordance with established schedules. Interview with PSA Compliance Manager confirmed compliance with this standard. Records related claims of sexual abuse are maintained in a locked file cabinet in the PSA Compliance Manager's office. Based upon all of the above this standard is deemed to be in full compliance.

FINAL October 20, 2017

Subpart A PREA Audit: Audit Report

16

Case 3:20-cv-02731-VC Document 5-6 Filed 04/20/20 Page 117 of 155

§115.201 – Scope of audits.
Outcome: Meets Standard (substantial compliance; complies in all material ways with the standard for the relevant review period)
Notes:
Policy 11062.2: Sexual Abuse and Assault Prevention and Intervention; dated May 22, 2014, indicates the agency will ensure an integrated and comprehensive system of preventing and responding to sexual abuse or assault of individuals in ICE custody. This will include a thorough, coordinated, multidisciplinary team approach, consistent with the goals of the Prison Rape Elimination Act of 2003. This Auditor was given unrestricted access to all areas of the facility. This Auditor was allowed to interview staff and detainees in a confidential manner. Detainees were notified in advance of the date of the audit and provided with the address to confidentially correspond with the Auditor prior to the audit. The Auditor was provided with a thorough tour of the facility including all areas where detainees are housed and work. The facility staff provided the Auditor with relevant documentation to complete a thorough audit of the facility.

AUDITOR CERTIFICATION: I certify that the contents of the report are accurate to the best of my knowledge and no conflict of interest exists with respect to my ability to conduct an audit of the agency under review. I have not included any personally identified information (PII) about any detainee or staff member, except where the names of administrative personnel are specifically requested in the report template.

Kurt Pfisterer
Auditor’s Signature & Date

January 7, 2018

FINAL October 20, 2017

Subpart A PREA Audit: Audit Report

17

Case 3:20-cv-02731-VC Document 5-6 Filed 04/20/20 Page 118 of 155
Exhibit F

CCaassee 33::1230--ccvv--0052877381--EVMCC DDocoucmumenetn5t -1677F-1iledFi0le4d/2003/2/202/1P6agePa1g1e9 1ofo1f 5352

CCaassee 33::1230--ccvv--0052877381--EVMCC DDocoucmumenetn5t -1677F-1iledFi0le4d/2003/2/202/1P6agePa1g2e0 2ofo1f 5352

CCaassee 33::1230--ccvv--0052877381--EVMCC DDocoucmumenetn5t -1677F-1iledFi0le4d/2003/2/202/1P6agePa1g2e1 3ofo1f 5352
EXHIBIT A

CCaassee 33::1230--ccvv--0052877381--EVMCC DDocoucmumenetn5t -1677F-1iledFi0le4d/2003/2/202/1P6agePa1g2e2 4ofo1f 5352

CCaassee 33::1230--ccvv--0052877381--EVMCC DDocoucmumenetn5t -1677F-1iledFi0le4d/2003/2/202/1P6agePa1g2e3 5ofo1f 5352

CCaassee 33::1230--ccvv--0052877381--EVMCC DDocoucmumenetn5t -1677F-1iledFi0le4d/2003/2/202/1P6agePa1g2e4 6ofo1f 5352

CCaassee 33::1230--ccvv--0052877381--EVMCC DDocoucmumenetn5t -1677F-1iledFi0le4d/2003/2/202/1P6agePa1g2e5 7ofo1f 5352

CCaassee 33::1230--ccvv--0052877381--EVMCC DDocoucmumenetn5t -1677F-1iledFi0le4d/2003/2/202/1P6agePa1g2e6 8ofo1f 5352

CCaassee 33::1230--ccvv--0052877381--EVMCC DDocoucmumenetn5t -1677F-1iledFi0le4d/2003/2/202/1P6agePa1g2e7 9ofo1f 5352
EXHIBIT B

CCaassee33:1:230-c-cvv-0-052877381-E-VMCC DDooccuummeennt t51-677-F1ileFdil0e4d/2003//2202/1P6agPea1g2e81o0f o1f5352

CCaassee33:1:230-c-cvv-0-052877381-E-VMCC DDooccuummeennt t51-677-F1ileFdil0e4d/2003//2202/1P6agPea1g2e91o1f o1f5352

CCaassee33:1:230-c-cvv-0-052877381-E-VMCC DDooccuummeennt t51-677-F1ileFdil0e4d/2003//2202/1P6agPea1g3e01o2f o1f5352

CCaassee33:1:230-c-cvv-0-052877381-E-VMCC DDooccuummeennt t51-677-F1ileFdil0e4d/2003//2202/1P6agPea1g3e11o3f o1f5352

CCaassee33:1:230-c-cvv-0-052877381-E-VMCC DDooccuummeennt t51-677-F1ileFdil0e4d/2003//2202/1P6agPea1g3e21o4f o1f5352

CCaassee33:1:230-c-cvv-0-052877381-E-VMCC DDooccuummeennt t51-677-F1ileFdil0e4d/2003//2202/1P6agPea1g3e31o5f o1f5352

CCaassee33:1:230-c-cvv-0-052877381-E-VMCC DDooccuummeennt t51-677-F1ileFdil0e4d/2003//2202/1P6agPea1g3e41o6f o1f5352

CCaassee33:1:230-c-cvv-0-052877381-E-VMCC DDooccuummeennt t51-677-F1ileFdil0e4d/2003//2202/1P6agPea1g3e51o7f o1f5352

CCaassee33:1:230-c-cvv-0-052877381-E-VMCC DDooccuummeennt t51-677-F1ileFdil0e4d/2003//2202/1P6agPea1g3e61o8f o1f5352

CCaassee33:1:230-c-cvv-0-052877381-E-VMCC DDooccuummeennt t51-677-F1ileFdil0e4d/2003//2202/1P6agPea1g3e71o9f o1f5352

CCaassee33:1:230-c-cvv-0-052877381-E-VMCC DDooccuummeennt t51-677-F1ileFdil0e4d/2003//2202/1P6agPea1g3e82o0f o1f5352
EXHIBIT C

CCaassee33:1:230-c-cvv-0-052877381-E-VMCC DDooccuummeennt t51-677-F1ileFdil0e4d/2003//2202/1P6agPea1g3e92o1f o1f5352

CCaassee33:1:230-c-cvv-0-052877381-E-VMCC DDooccuummeennt t51-677-F1ileFdil0e4d/2003//2202/1P6agPea1g4e02o2f o1f5352

CCaassee33:1:230-c-cvv-0-052877381-E-VMCC DDooccuummeennt t51-677-F1ileFdil0e4d/2003//2202/1P6agPea1g4e12o3f o1f5352

CCaassee33:1:230-c-cvv-0-052877381-E-VMCC DDooccuummeennt t51-677-F1ileFdil0e4d/2003//2202/1P6agPea1g4e22o4f o1f5352

CCaassee33:1:230-c-cvv-0-052877381-E-VMCC DDooccuummeennt t51-677-F1ileFdil0e4d/2003//2202/1P6agPea1g4e32o5f o1f5352

CCaassee33:1:230-c-cvv-0-052877381-E-VMCC DDooccuummeennt t51-677-F1ileFdil0e4d/2003//2202/1P6agPea1g4e42o6f o1f5352

CCaassee33:1:230-c-cvv-0-052877381-E-VMCC DDooccuummeennt t51-677-F1ileFdil0e4d/2003//2202/1P6agPea1g4e52o7f o1f5352

CCaassee33:1:230-c-cvv-0-052877381-E-VMCC DDooccuummeennt t51-677-F1ileFdil0e4d/2003//2202/1P6agPea1g4e62o8f o1f5352

CCaassee33:1:230-c-cvv-0-052877381-E-VMCC DDooccuummeennt t51-677-F1ileFdil0e4d/2003//2202/1P6agPea1g4e72o9f o1f5352

CCaassee33:1:230-c-cvv-0-052877381-E-VMCC DDooccuummeennt t51-677-F1ileFdil0e4d/2003//2202/1P6agPea1g4e83o0f o1f5352

CCaassee33:1:230-c-cvv-0-052877381-E-VMCC DDooccuummeennt t51-677-F1ileFdil0e4d/2003//2202/1P6agPea1g4e93o1f o1f5352

CCaassee33:1:230-c-cvv-0-052877381-E-VMCC DDooccuummeennt t51-677-F1ileFdil0e4d/2003//2202/1P6agPea1g5e03o2f o1f5352

Case 3:20-cv-02731-VC Document 5-6 Filed 04/20/20 Page 151 of 155
Exhibit G

Case 3:20-cv-02731-VC Document 5-6 Filed 04/20/20 Page 152 of 155
https://www.appeal-democrat.com/news/yuba-county-jail-population-reduced/article_a8151172-7f9e-11eaac0c-3f2874db2934.html
Yuba County Jail population reduced
By David Wilson dwilson@appealdemocrat.com Apr 15, 2020
Yuba County Jail sta has made changes meant to mitigate the spread of COVID-19, the coronavirus. Jails – especially those such as Yuba County’s that serve as detention centers for the U.S. Immigration and Customs Enforcement – have been the focus of some attention since the onset of the pandemic. The local jail received a letter last week from the Campaign for Immigrant Detention Reform (CIDR) that called on the county to release all U.S. Immigration and Customs Enforcement (ICE) detainees along with other demands related to the COVID-19 pandemic.
Yuba County Sheri ’s O ce public information o cer Leslie Carbah said the department was aware of the letter and made changes to prevent the possible spread of the virus before receiving it. “Our comprehensive e orts have taken into account guidelines from the Centers for Disease Control (CDC), California Board of State and Community Corrections (BSCC), ICE and the Yuba County Public Health o cer,” Carbah said via email. “Our mitigation e orts far exceed the

Case 3:20-cv-02731-VC Document 5-6 Filed 04/20/20 Page 153 of 155 issues referenced in the letter from CIDR.” CIDR, in addition to urging the release of all ICE detainees, recommended releasing inmates who are over 50, immuno-compromised or have underlying conditions, releasing at-risk inmates who are non-violent and releasing people with fewer than 60 days on their sentence. Carbah said the jail has reduced its population by more than 20 percent since the beginning of the pandemic. The releases have been for people incarcerated for non-violent and non-serious charges and those who were near their sentenced release date. “Each person released was done so after a thorough vetting process because the safety of our community is paramount in any such decision we make,” Carbah said. “We will continue to monitor our jail population going forward.”
Yuba County Jail has a maximum capacity of 493 beds and the current population is approximately 293. Of those, 154 are ICE detainees, according to Carbah. Inmates who are over 65 or have speci c underlying health conditions that make them susceptible to serious illness if they contract COVID-19 have been identi ed by the jail and special precautions have been taken to separate and monitor that group, Carbah said. In its letter to the jail, CIDR mentioned its concern about an apparent lack of soap at Yuba County Jail and how that could contribute to possible spread inside the jail. Carbah responded to that claim by saying there is no shortage of hand soap for inmates.

Case 3:20-cv-02731-VC Document 5-6 Filed 04/20/20 Page 154 of 155 “All inmates are provided soap at no cost to them and additional soap is provided upon request,” Carbah said. “This has been true throughout this pandemic and so any accusations to the contrary are incorrect.” In addition, the jail conducts daily sanitation and cleaning based on CDC guidelines, according to Carbah. “There is a lot of misinformation oating around out there from various activist groups and political editorial ‘news’ outlets,” Carbah said.
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Case 3:20-cv-02731-VC Document 5-7 Filed 04/20/20 Page 1 of 9

1 WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org
2 SEAN RIORDAN (SBN 255752) sriordan@aclunc.org
3 ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org
4 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN
5 CALIFORNIA 39 Drumm Street
6 San Francisco, CA 94111 Telephone: (415) 621-2493
7 Facsimile: (415) 255-8437
8 Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page
9

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: 415-553-9319 Fax: 415-553-9810

10

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12

13 ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUIZ TOVAR, LAWRENCE
14 MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA
15 YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,
16 Petitioners-Plaintiffs,
17 v.
18 DAVID JENNINGS, Acting Director of the
19 San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T.
20 ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director
21 of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND
22 CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa
23 Verde Detention Facility,

CASE NO.
[PROPOSED] TEMPORARY RESTRAINING ORDER

24

Respondents-Defendants.

25

26

27

28
[PROPOSED] TEMPORARY RESTRAINING ORDER

Case 3:20-cv-02731-VC Document 5-7 Filed 04/20/20 Page 2 of 9

1 BREE BERNWANGER* (NY SBN 5036397) MARTIN S. SCHENKER (SBN 109828)

bbernwanger@lccrsf.org

mschenker@cooley.com

2 TIFANEI RESSL-MOYER (SBN 319721)

COOLEY LLP

tresslmoyer@lccrsf.org

101 California Street, 5th Floor

3 HAYDEN RODARTE (SBN 329432)

San Francisco, CA 94111

hrodarte@lccrsf.org

Telephone: (415) 693-2000

4 LAWYERS’ COMMITTEE FOR

Facsimile: (415) 693-2222

CIVIL RIGHTS OF

5 SAN FRANCISCO BAY AREA

TIMOTHY W. COOK (Mass. BBO# 688688)*

131 Steuart St #400

tcook@cooley.com

6 San Francisco, CA 94105

FRANCISCO M. UNGER (Mass. BBO#

Telephone: (415) 814-7631

698807)*

7

funger@cooley.com

JUDAH LAKIN (SBN 307740)

COOLEY LLP

8 judah@lakinwille.com

500 Boylston Street

AMALIA WILLE (SBN 293342)

Boston, MA 02116

9 amalia@lakinwille.com

Telephone: (617) 937-2300

LAKIN & WILLE LLP

Facsimile: (617) 937-2400

10 1939 Harrison Street, Suite 420

Oakland, CA 94612

11 Telephone: (510) 379-9216

Facsimile: (510) 379-9219

12

JORDAN WELLS (SBN 326491)

13 jwells@aclusocal.org

STEPHANIE PADILLA (SBN 321568)

14 spadilla@aclusocal.org

AMERICAN CIVIL LIBERTIES UNION

15 FOUNDATION OF SOUTHERN CALIFORNIA

1313 West Eighth Street

16 Los Angeles, CA 90017

Telephone: (213) 977-9500

17 Facsimile: (213) 977-5297

18

Attorneys for Petitioners-Plaintiffs

*Motion for Admission Pro Hac Vice Forthcoming

19

20

21

22

23

24

25

26

27

28
[PROPOSED] TEMPORARY RESTRAINING ORDER

Case 3:20-cv-02731-VC Document 5-7 Filed 04/20/20 Page 3 of 9

1

[PROPOSED] ORDER

2

Upon review of Plaintiffs-Petitioners’ Motion for Temporary Restraining Order, the

3 Class Petition for Habeas Corpus and Class Complaint for Declaratory and Injunctive Relief, all

4 supporting exhibits, and any response filed by Defendants, Plaintiffs’ Motion for Temporary

5 Restraining Order is GRANTED. Pursuant to Rule 65 of the Federal Rules of Civil Procedure

6 and Civil L. R. 65-1, the Court orders as follows:

7

8

TEMPORARY RESTRAINING ORDER

9

The Court concludes that Plaintiffs-Petitioners have met their burden of showing: (1) a

10 likelihood of success on the merits of their claim under the Due Process Clause of the Fifth

11 Amendment; (2) that the continued detention of Class members under current conditions of

12 detention at Mesa Verde ICE Processing Facility and the Yuba County Jail is causing and will

13 cause irreparable harm to Class members absent a temporary restraining order; (3) that the

14 balance of equities weighs in Plaintiffs-Petitioners’ favor; and (4) that the public interest favors

15 granting the motion. Accordingly, a temporary restraining order pursuant to Federal Rule of

16 Civil Procedure 65 and the inherent equitable powers of this Court is warranted.

17

1. The Court HEREBY DECLARES that conditions of confinement for all members of the

18

provisionally certified class, namely, all individuals held as detainees of United States

19

Immigration and Customs Enforcement (ICE) at the Mesa Verde ICE Processing Facility

20

and the Yuba County Jail, are currently unconstitutional under the Fifth Amendment

21

because they do not permit social distancing as necessary to minimize the risk of

22

infection with COVID-19.

23

2. It is hereby ORDERED THAT:

24

a. Within 72 hours from the date of this Order, Defendants shall obtain from every

25

member of the provisionally certified class the address at which they would reside

26

if released and contact information for a responsible adult with whom they would

27

reside at that location, if any, using Form A, attached hereto as Exhibit A;

28
1 [PROPOSED] TEMPORARY RESTRAINING ORDER

Case 3:20-cv-02731-VC Document 5-7 Filed 04/20/20 Page 4 of 9
1 b. Within 72 hours from the date of this Order, Defendants shall begin providing the
2 Court and Plaintiffs’ counsel with the information obtained pursuant to the
3 preceding paragraph, as well as the following information about each individual
4 currently detained at Mesa Verde and the Yuba County Jail: name, A number,
5 age, and current medical conditions. Defendants shall provide such information
6 at a rate of 25 class members per day, in a spreadsheet or comparable searchable
7 format (hereinafter “spreadsheet information”).
8 c. Within 72 hours from the date of this Order, Defendants shall provide to each
9 class member a copy of their individual alleged age and current medical
10 conditions, using Form B, attached hereto as Exhibit B, or any substitute form
11 mutually agreed-to by Defendants and Plaintiffs’ counsel. Each class member
12 shall immediately be given an opportunity to report any alleged errors to the
13 Court and Plaintiffs’ counsel using Form B. Within 24 hours of receiving any
14 such forms back from class members, Defendants shall provide Plaintiffs’ counsel
15 and the Court any forms on which class members have alleged errors.
16 d. Within 24 hours from the date of this Order, Defendants shall distribute notice to
17 the class, to be furnished by Plaintiffs’ counsel, advising all class members of a
18 phone number and email address at which they can reach Plaintiffs’ counsel.
19 Defendants shall post the notice prominently in all dorms or other housing units,
20 as well as all rooms where telephones or computers are available for class
21 members’ use, and ensure the availability of facilities for free and confidential
22 telephone calls between class members and class counsel.
23 e. Defendants shall ensure that the forms and class notice provided to class members
24 are translated, either orally at the time they are provided or in writing, so that
25 class members receive the forms in a language they understand.
26
27
28
2 [PROPOSED] TEMPORARY RESTRAINING ORDER

Case 3:20-cv-02731-VC Document 5-7 Filed 04/20/20 Page 5 of 9

1 f. Beginning 72 hours from the date of this Order, this Court shall consider, on an
2 expedited basis, individual applications for release filed under this Order by class
3 counsel, as follows:
4 i. Each application should provide the information set forth in subparagraphs
5 2.a-c above and any other relevant information, and should not exceed two
6 pages (excluding any supporting documentation) absent exceptional
7 circumstances;
8 ii. Defendants may respond to each application in 24 hours, but such
9 responses shall not exceed two pages (excluding any supporting
10 documentation), absent exceptional circumstances;
11 iii. Replies in support of applications shall be limited to one page (excluding
12 any supporting documentation);
13 g. No security shall be required.
14

15 ORDER TO SHOW CAUSE
16 Defendants are ordered to show cause before this Court why a preliminary injunction
17 should not issue requiring Defendants to allow Plaintiffs to be and remain released as ordered
18 herein. The hearing on the order to show cause will be held on ______________________ at
19 ______________________.
20

21 IT IS SO ORDERED.
22

23 Dated this ___ day of April 2020
24
25

__________________________ United States District Judge

26

27

28
3 [PROPOSED] TEMPORARY RESTRAINING ORDER

Case 3:20-cv-02731-VC Document 5-7 Filed 04/20/20 Page 6 of 9
EXHIBIT A

Case 3:20-cv-02731-VC Document 5-7 Filed 04/20/20 Page 7 of 9
IMPORTANT NOTICE ABOUT RELEASE FROM MESA VERDE AND YUBA COUNTY JAIL DURING THE COVID-19 PANDEMIC
This form allows any detainee at Mesa Verde ICE Processing Facility (“Mesa Verde”) and Yuba County Jail (“Yuba”) to be considered for release due to the COVID-19 pandemic.
In Zepeda Rivas v. Jennings, Case No. ____________ (N.D. Cal.), a federal court has decided that, under the United States Constitution, people at Mesa Verde and Yuba must be given enough space to maintain six feet of “social distance” at all times. The court found that keeping people in more crowded conditions creates a substantial risk of being infected with COVID-19 (the coronavirus).
Under the Court’s order, anyone detained at Mesa Verde and Yuba can request release through submission of this Form until Mesa Verde and Yuba have lowered their population enough to permit six feet of social distancing between all detainees.
To be considered for release through the lawsuit, you must provide the information requested below. Your response will be provided to the Court, the Government, and attorneys who represent the Mesa Verde and Yuba detainees in this case. If any of your information changes after you respond, you must complete a new form with your updated information.1
If you do NOT want to be considered for release, do not fill out this form.

NAME:

A NUMBER:

BIRTH DATE:

PROVIDE THE ADDRESS WHERE YOU WOULD LIVE IF RELEASED (PLEASE INCLUDE STREET ADDRESS, APT. NUMBER, CITY, AND STATE)

PROVIDE CONTACT INFORMATION FOR ONE ADULT YOU WOULD RESIDE WITH AT THAT LOCATION, IF ANY:

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

DATE:

SIGNED:

1 If you have questions about this form, you can contact the attorneys who brought this lawsuit at ____[NUMBER] or by email at ____ [EMAIL]. Note that even if you contact them, you will not be considered for release unless you submit this form.

Case 3:20-cv-02731-VC Document 5-7 Filed 04/20/20 Page 8 of 9
EXHIBIT B

Case 3:20-cv-02731-VC Document 5-7 Filed 04/20/20 Page 9 of 9 FORM B – GOVERNMENT’S SUBMISSION IN RESPONSE TO YOUR REQUEST FOR RELEASE
FROM MESA VERDE OR YUBA COUNTY JAIL DURING THE COVID-19 PANDEMIC
This form concerns your request to be considered for release due to the COVID-19 pandemic.
The Government has provided the following information about you to the Court. (Additional information may be attached to this form). The Court will consider this information in deciding your application for release:
NAME:
A NUMBER:
AGE:
CURRENT MEDICAL CONDITIONS:

If you think any of this information is incorrect, please complete the form below.

There are errors in the following information provided about me (Circle all that apply):

NAME

A NUMBER

AGE

MEDICAL CONDITIONS

The correct information is:

DATE:

SIGNED:

Case 3:20-cv-02731-VC Document 5 Filed 04/20/20 Page 1 of 31

1 WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org
2 SEAN RIORDAN (SBN 255752) sriordan@aclunc.org
3 ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org
4 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN
5 CALIFORNIA 39 Drumm Street
6 San Francisco, CA 94111 Telephone: (415) 621-2493
7 Facsimile: (415) 255-8437
8 Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page
9

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.orga GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: 415-553-9319 Fax: 415-553-9810

10

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12

13 ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUIZ TOVAR, LAWRENCE
14 MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA
15 YARITZA SANCHEZ NUÑEZ, JAVIER 16 ALFARO, DUNG TUAN DANG,

17

Petitioners-Plaintiffs,

18

v.

19 DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration

20 and Customs Enforcement; MATTHEW T.

ALBENCE, Deputy Director and Senior 21 Official Performing the Duties of the Director

22

of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND

23 CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa

24 Verde Detention Facility,

CASE NO.
PETITIONERS-PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR TEMPORARY RESTRAINING ORDER

25

Respondents-Defendants.

26

27

28
PETITIONERS-PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR TEMPORARY RESTRAINING ORDER

Case 3:20-cv-02731-VC Document 5 Filed 04/20/20 Page 2 of 31

1 BREE BERNWANGER* (NY SBN 5036397) MARTIN S. SCHENKER (SBN 109828)

bbernwanger@lccrsf.org

mschenker@cooley.com

2 TIFANEI RESSL-MOYER (SBN 319721) COOLEY LLP

tresslmoyer@lccrsf.org

101 California Street, 5th Floor

3 HAYDEN RODARTE (SBN 329432)

San Francisco, CA 94111

hrodarte@lccrsf.org

Telephone: (415) 693-2000

4 LAWYERS’ COMMITTEE FOR

Facsimile: (415) 693-2222

CIVIL RIGHTS OF

5 SAN FRANCISCO BAY AREA

TIMOTHY W. COOK (Mass. BBO# 688688)*

131 Steuart St #400

tcook@cooley.com

6 San Francisco, CA 94105

FRANCISCO M. UNGER (Mass. BBO#

Telephone: (415) 814-7631

698807)*

7

funger@cooley.com

JUDAH LAKIN (SBN 307740)

COOLEY LLP

8 judah@lakinwille.com

500 Boylston Street

AMALIA WILLE (SBN 293342)

Boston, MA 02116

9 amalia@lakinwille.com

Telephone: (617) 937-2300

LAKIN & WILLE LLP

Facsimile: (617) 937-2400

10 1939 Harrison Street, Suite 420

Oakland, CA 94612

Attorneys for Petitioners-Plaintiffs

11 Telephone: (510) 379-9216

Facsimile: (510) 379-9219

*Motion for Admission Pro Hac Vice

12

Forthcoming

JORDAN WELLS (SBN 326491)

13 jwells@aclusocal.org

STEPHANIE PADILLA (SBN 321568)

14 spadilla@aclusocal.org

MICHAEL KAUFMAN (SBN 254575)

15 mkaufman@aclusocal.org

AMERICAN CIVIL LIBERTIES UNION

16 FOUNDATION OF SOUTHERN

CALIFORNIA

17 1313 West Eighth Street

Los Angeles, CA 90017

18 Telephone: (213) 977-9500

Facsimile: (213) 977-5297

19

20

21

22

23

24

25

26

27

28
PETITIONERS-PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR TEMPORARY RESTRAINING ORDER

Case 3:20-cv-02731-VC Document 5 Filed 04/20/20 Page 3 of 31

1

TABLE OF CONTENTS

2 NOTICE OF MOTION AND MOTION....................................................................................... 1

3 I. INTRODUCTION .............................................................................................................. 1

4 II. FACTS ................................................................................................................................ 3

5

A. COVID-19 Poses Grave Risk of Harm to Plaintiffs ............................................... 3

6

B. Adequate Social Distancing is Impossible at Current Population Levels at

Mesa Verde and YCJ .............................................................................................. 5

7

C. Plaintiffs Face an Imminent and Substantial Risk of Exposure to COVID-19

8

in Mesa Verde and YCJ .......................................................................................... 8

9 III. LEGAL STANDARD ....................................................................................................... 11

10 IV. ARGUMENT .................................................................................................................... 12

11

A. Plaintiffs are Likely to Succeed on the Merits...................................................... 13

12

1. Plaintiffs’ Detention in an Environment Where Social Distancing is

Impossible is Unreasonably Dangerous in Violation of Substantive

13

Due Process............................................................................................... 13

14

a. The Impossibility of Social Distancing Exposes Plaintiffs to

an Unjustifiable Risk of Contracting A Deadly Virus in Light

15

of Alternatives to Detention that Would Equally Serve the

Government’s Interests in Appearance for Removal

16

Proceedings and Community Safety ............................................. 14

17

b. Plaintiffs are also Likely to Prevail by Showing Defendants’

Refusal to Ensure Adequate Social Distancing Constitutes

18

Deliberate Indifference ................................................................. 18

19

B. Plaintiffs Satisfy the Remaining Factors for Preliminary Relief .......................... 21

20

1. Exposure to a Lethal Virus Which Lacks Any Vaccine, Treatment,

or Cure Constitutes Irreparable Harm....................................................... 21

21

2. Public Interest and Balance of Equities Weigh Heavily in Plaintiffs’

22

Favor ......................................................................................................... 22

23

C. Justice Requires Comprehensive Relief for the Class .......................................... 23

24 V. SECURITY ....................................................................................................................... 24

25 VI. CONCLUSION................................................................................................................. 25

26

27

28

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Case 3:20-cv-02731-VC Document 5 Filed 04/20/20 Page 4 of 31

1

TABLE OF AUTHORITIES

2

PAGE(S)

3 Cases

4 All. for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) ............................................................................................ 12, 13
5 Bahena Ortuño v. Jennings,
6 2020 WL 1701724 (N.D. Cal. Apr. 8, 2020) ..................................................................... passim

7 Bent v. Barr, 2020 WL 1812850 (N.D. Cal. Apr. 9, 2020) ..................................................................... passim
8 Castillo v. Barr,
9 2020 WL 1502864 (C.D. Cal. Mar. 27, 2020) .............................................................. 14, 15, 25

10 Castro v. Cnty. of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) ............................................................................................ 24, 27
11 DeShaney v. Winnebago Cty. Dep’t of Soc. Servs.,
12 489 U.S. 189 (1989).................................................................................................................. 23

13 Doe v. Barr, 2020 WL 1820667 (N.D. Cal. Apr. 12, 2020) ................................................................... passim
14 Elrod v. Burns,
15 427 U.S. 347 (1976).................................................................................................................. 28

16 Helling v. McKinney, 509 U.S. 25 (1993).................................................................................................................... 18
17 Hernandez v. Sessions,
18 872 F.3d 976 (9th Cir. 2017) .................................................................................................... 30

19 Indep. Living Ctr. of S. Cal., Inc. v. Shewry, 543 F.3d 1047 (9th Cir. 2008) .................................................................................................. 28
20 J.P. v. Sessions,
21 2019 WL 6723686 (C.D. Cal. Nov. 5, 2019)............................................................................ 24

22 Jackson v. Indiana, 406 U.S. 715 (1972).................................................................................................................. 16
23 Jones v. Blanas,
24 393 F.3d 918 (9th Cir. 2004) .................................................................................. 16, 17, 18, 24

25 Jorgensen v. Cassiday, 320 F.3d 906 (9th Cir. 2003) .................................................................................................... 33
26 M.R. v. Dreyfus,
27 663 F.3d 1100 (9th Cir. 2011) .................................................................................................. 28

28

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Case 3:20-cv-02731-VC Document 5 Filed 04/20/20 Page 5 of 31

1 Malam v. Adducci, 2020 WL 1809675) (E.D. Mich. Apr. 9, 2020) ........................................................................ 20
2 Melendres v. Arpaio,
3 695 F.3d 990 (9th Cir. 2012) .................................................................................................... 28

4 Orantes–Hernandez v. Smith, 541 F. Supp. 351 (C.D. Cal. 1982) ........................................................................................... 33
5 Padilla v. ICE,
6 953 F.3d 1134 (9th Cir. 2020) .................................................................................................. 28

7 Parsons v. Ryan, 754 F.3d 657 (9th Cir. 2014) .............................................................................................. 18, 29
8 Basank v. Decker,
9 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020) .......................................................................... 31

10 Rafael L.O. v. Tsoukaris, WL 1808843 (D.N.J. Apr. 9, 2020) .......................................................................................... 21
11 Savino v. Souza,
12 2020 WL 1703844 (D. Mass. Apr. 8, 2020) ....................................................................... 19, 20

13 Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832 (9th Cir. 2001) .................................................................................................... 12
14 Thakker v. Doll,
15 No. 1:20-cv-480, 2020 WL 1671563 (M.D. Pa. Mar. 31, 2020) ........................................ 21, 22

16 Toussaint v. Rushen, 553 F. Supp. 1365 (N.D. Cal. 1983) ......................................................................................... 33
17 Unknown Parties v. Nielsen,
18 2020 WL 813774 (D. Ariz. Feb. 19, 2020)............................................................................... 16

19 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008)...................................................................................................................... 12
20 Youngberg v. Romeo,
21 457 U.S. 307 (1982)...................................................................................................... 15, 17, 23

22 Zadvydas v. Davis, 533 U.S. 678 (2001).................................................................................................................. 15
23

24

25

26

27

28

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Case 3:20-cv-02731-VC Document 5 Filed 04/20/20 Page 6 of 31

1 OTHER AUTHORITIES

2 Letter from Drs. Scott A. Allen & Josiah Rich to Rep. Bennie Thompson, et al. (Mar. 19, 2020) ......................................................................................................................... 18
3 U.S. Gov’t Accountability Office, GAO-15-26, Alternatives to Detention:
4 Improved Data Collection and Analyses Needed to Better Assess Program Effectiveness 10-11 (Nov. 2014)............................................................................................... 18
5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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Case 3:20-cv-02731-VC Document 5 Filed 04/20/20 Page 7 of 31

1

NOTICE OF MOTION AND MOTION

2

PLEASE TAKE NOTICE that, as soon as they may be heard, Plaintiffs will and hereby

3 do move, pursuant to Civil L. R. 7-1 and 65-1, for a temporary restraining order directing ICE1

4 to release a sufficient number of putative class members in order to allow for social distancing

5 at Mesa Verde ICE Processing Facility (Mesa Verde) and Yuba County Jail (YCJ). This motion

6 is supported by the following Memorandum of Points and Authorities, the Class Petition for

7 Writ of Habeas Corpus and Complaint for Injunctive and Declaratory Relief, the Motion for

8 Provisional Class Certification, and declarations of each of the Class Representative Plaintiffs,

9 or their attorneys on their behalf, and various experts, all of which are filed contemporaneously.

10

Pursuant to Civil L.R. 65-1(b), on April 20, 2020 at 4 p.m., counsel for Plaintiffs called

11 Assistant U.S. Attorney Sara Winslow at the U.S. Attorney’s Office for the Northern District of

12 California and sent an e-mail to Ms. Winslow to advise of the emergency reasons requiring

13 them to seek a temporary restraining order. In addition, Plaintiffs’ counsel e-mailed to Ms.

14 Winslow copies of (1) the Class Petition for Writ of Habeas Corpus and Class Complaint for

15 Injunctive and Declaratory Relief, (2) Motion for Temporary Restraining Order, (3) Motion for

16 Provisional Class Certification, and (4) associated proposed orders.

17 I. INTRODUCTION

18

As COVID-19 ravages the country and the world, Plaintiffs are trapped in close quarters

19 in two immigration detention centers, Mesa Verde and YCJ. Plaintiffs spend their days within

20 arm’s reach of one another, share communal bathrooms and showers, and are forced into tightly

21 spaced single-file lines throughout the day. To prevent contracting and spreading COVID-19,

22 the Centers for Disease Control and Prevention (“CDC”) has recommended that individuals

23 avoid contact with others and practice social distancing.2 Yet, Plaintiffs’ continued detention in

24 Mesa Verde and YCJ prevents them from doing exactly what the CDC recommends.

25

26
1 References to “Defendants” in this motion are not intended to suggest that Plaintiffs here seek injunctive relief
27 against any non-governmental entities.
2 See Coronavirus Disease 2019 (COVID-19), Prevent Getting Sick, How to Protect Yourself & Others, Centers for
28 Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html.
1
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Case 3:20-cv-02731-VC Document 5 Filed 04/20/20 Page 8 of 31

1

Social distancing is critical with COVID-19 because the disease has no known vaccine or

2 cure and is highly contagious. It can survive on hard surfaces and be transmitted by touch. It can

3 be carried and transmitted by people who exhibit no symptoms. To implement the CDC’s

4 guidance, 95% of Americans—about 316 million people—have been ordered to stay at home.3

5 Until there is a vaccine or cure for COVID-19, which will likely take over a year,4 the disease

6 will continue to spread and could threaten the life of any adult who contracts it.

7

Defendants’ response to has been dangerously inadequate. Experts have been warning

8 Defendants that COVID-19 will spread “like wildfire” in congregate settings, like Mesa Verde

9 and YCJ, where people cannot consistently maintain a distance of at least six feet from one

10 another. In other jails and detention center, it has, with deadly results. Defendants have the

11 power to reduce the detained populations at both Mesa Verde and YCJ to sufficiently

12 accommodate consistent, meaningful social distancing. They refuse to do so. Indeed, in recent 13 weeks, Defendants increased the detained immigrant population at YCJ.5

14

Recognizing the profound risk that continued detention in Mesa Verde and YCJ poses to

15 those detained there, multiple judges in this District have ordered ICE to release detained

16 immigrants on the grounds that their continued detention would violate the Constitution.6

17 Plaintiffs here are currently suffering the same constitutional violation that has justified

18 individual release in these cases.

19

Hundreds of lives are at stake. The systemic crisis at Mesa Verde and YCJ must be

20 resolved at a systemic level. And it must be resolved quickly. As of April 17, there have been

21
3 See Sarah Mervosh, et al., N.Y. Times (Apr. 7, 2020), See Which States and Cities Have Told Residents to Stay at
22 Home, https://www.nytimes.com/interactive/2020/us/coronavirus-stay-at-home-order.html.
4 Carolyn Kormann, New Yorker (Mar. 8, 2020), How Long Will It Take to Develop a Coronavirus Vaccine?,
23 https://www.newyorker.com/news/news-desk/how-long-will-it-take-to-develop-a-coronavirus-vaccine (quoting
Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases).
24 5 As of April 18, 2020, there were 157 ICE detainees at YCJ. This marks a net increase of seven ICE detainees at
YCJ compared to April 2. During the same period, the net YCJ population of criminal detainees decreased by
25 several dozen. Thus, during the same period that YCJ responded to COVID-19 by decreasing its population of
criminal detainees, ICE made the facility more crowded than it otherwise would have been. Riordan ⁋ 9.
26 6See Doe v. Barr, No. 20-cv-02141-LBR, 2020 WL 1820667, at *9-10 (N.D. Cal. Apr. 12, 2020) (granting TRO
and ordering release of ICE detainee in YCJ on grounds that risk of continued confinement was excessive in
27 relation to government interest); Bent v. Barr, No. 19-cv-06123-DMR, 2020 WL 1812850 at *4-6 (N.D. Cal. Apr.
9, 2020) (same Mesa Verde); Bahena Ortuño v. Jennings, No. 20-cv-02064-MMC, 2020 WL 1701724, at *3-5
28 (N.D. Cal. Apr. 8, 2020) (same for Mesa Verde and YCJ detainees).
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Case 3:20-cv-02731-VC Document 5 Filed 04/20/20 Page 9 of 31

1 124 confirmed COVID-19 cases among ICE detainees nationwide—a jump of over 50 cases

2 from the previous week.7 This Court should grant a temporary restraining order to implement a

3 system for class members’ expedited release until conditions in Mesa Verde and YCJ can

4 accommodate the required social distancing.

5 II. FACTS

6

A. COVID-19 Poses Grave Risk of Harm to Plaintiffs

7

COVID-19 is a deadly, highly contagious viral disease that has no cure. It has caused a

8 global pandemic, infecting millions of people and killing over a hundred thousand in a matter of

9 months.8 In the United States, there are at least 720,630 cases and 37,202 confirmed deaths.9 In

10 California, there are at least 31,530 cases and 1,178 confirmed deaths.10

11

COVID-19 poses a serious health risk to all adults. Although certain characteristics such

12 as advanced age or underlying health conditions exacerbate the risk of death or serious illness

13 from COVID-19, any adult who contracts the disease can experience severe illness, require

14 hospitalization, or die. While people under the age of 20 have largely been protected from

15 severe effects of the coronavirus, 55% of COVID-19 hospitalizations and 20% of deaths were

16 from people between the ages of 20 and 64. Greifinger ¶ 8. Early CDC data shows nearly 40%

17 of COVID-19 patients hospitalized in the U.S. have been between the ages of 18 and 54.11 In

18 New York, approximately one-third of the patients between the ages of 30 and 39 who died

19
7 U.S. Immigr. & Customs Enforcement, Confirmed Cases, ICE Guidance on COVID-19 (last updated Apr. 17,
20 2020, 8:00 p.m.), https://www.ice.gov/coronavirus.
8 See World Health Org., Coronavirus Disease 2019 (COVID-19) Situation Report – 89 (Apr. 18, 2020),
21 https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200418-sitrep-89-covid-
19.pdf?sfvrsn=3643dd38_2.
22 9 See Ctrs. for Disease Control & Prevention, Coronavirus Disease 2019 (COVID-19), Cases, Data, & Surveillance,
Cases of Coronavirus Disease (COVID-19) in the U.S. (last updated Apr. 19, 2020),
23 https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html. Kern County, where Mesa Verde is
located, has seen 574 cases and three deaths. See Kern Cty. Pub. Health Servs. Dep’t, COVID-19 Dashboard (last
24 updated Apr. 19, 2020), https://kernpublichealth.com/covid-19_dashboard/. Yuba and Sutter Counties have seen 40
cases and three deaths, while neighboring Sacramento and Yolo Counties have seen more than 1,000 cases and 400
25 deaths. See Yuba Cty., Coronavirus Update for Yuba-Sutter (last updated Apr. 19, 2020, 6:18 p.m.),
https://www.yuba.org/coronavirus/. Dr. Greifinger has cautioned that according to at least one model, as few as ten
26 confirmed cases in a county indicate a near-certainty of an existing, undetected epidemic. Greifinger ¶ 45.
10 See L.A. Times, Tracking Coronavirus in California (last updated Apr. 19, 2020, 11:50 p.m.),
27 https://www.latimes.com/projects/california-coronavirus-cases-tracking-outbreak/.
11 See Dr. Sanjay Gupta, The Mystery of Why the Coronavirus Kills Some Young People, CNN (Apr. 6, 2020),
28 http://www.cnn.com/2020/04/05/health/young-people-dying-coronavirus-sanjay-gupta/index.html.
3
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Case 3:20-cv-02731-VC Document 5 Filed 04/20/20 Page 10 of 31

1 from COVID-19 did not appear to have any risk factors,12 and physicians treating COVID-19

2 have noted the “randomness” with regard to which young people are unable to survive

3 contraction of the illness.13 Short of death, COVID-19 can cause prolonged illness and suffering

4 in people of any age who contract it. In addition to requiring ventilation to stabilize oxygen

5 intake, increasing numbers of patients also risk kidney failure and require dialysis, possibly

6 permanently.14 People of all ages and medical backgrounds who have contracted COVID-19

7 describe painful symptoms including vomiting, diarrhea, fever, relentless shivering, and severe

8 difficulty breathing.15

9

In addition, many people have undiagnosed risk factors. For example, hypertension

10 makes someone at higher risk of severe illness from COVID-19,16 but the CDC has stated that

11 about 11 million adults in the U.S. have high blood pressure but do not know it.17 Under-

12 diagnosis of risk factors is particularly likely among the proposed class, who are part of a

13 population that often lacks adequate access to healthcare. Among the nonelderly population,

14 23% of noncitizens with lawful status and more than four in ten (45%) undocumented

15

16 12 See Chris Mooney et al., Hundreds of Young Americans Have Now Been Killed by the Coronavirus, Data Shows,
Wash. Post (Apr. 8, 2020), https://www.washingtonpost.com/health/2020/04/08/young-people-coronavirus-deaths/.
17 13 Id.
14 Reed Abelson et al., An Overlooked, Possibly Fatal Coronavirus Crisis: A Dire Need for Kidney Dialysis, N.Y.
18 Times (Apr. 18, 2020), https://www.nytimes.com/2020/04/18/health/kidney-dialysis-coronavirus.html.
15 See Marissa J. Lang, Nightmares, Flashbacks, Uncertainty: A 29-year-old Recovers After Coronavirus Brought
19 Him Near Death, Wash. Post (Apr. 17, 2020), https://www.washingtonpost.com/local/coronavirus-covid-19-
recovery-francis-wilson-virginia-dc/2020/04/16/0bb55974-7858-11ea-a130-df573469f094_story.html (describing
20 experience of otherwise healthy 29-year-old who survived COVID-19 after requiring an 11-day medically induced
coma); Lizzie Presser, A Medical Worker Describes Terrifying Lung Failure from COVID-19—Even in His Young
21 Patients, ProPublica (Mar. 21, 2020), https://www.propublica.org/article/a-medical-worker-describes--terrifying-
lung-failure-from-covid19-even-in-his-young-patients (respiratory therapist describing COVID-19 as “knocking
22 out what should be perfectly fit, healthy people. Patients will be on minimal support, on a little bit of oxygen, and
then all of a sudden, they go into complete respiratory arrest, shut down and can’t breathe at all.”); Fiona
23 Lowenstein, I’m 26. Coronavirus Sent Me to the Hospital., N.Y. Times (Mar. 23, 2020),
https://www.nytimes.com/2020/03/23/opinion/coronavirus-young-people.html (describing feeling “desperate for
24 oxygen” before being hospitalized); Sui Lee Wee & Vivian Wang, Two Women Fell Sick from Coronavirus. One
survived., N.Y. Times (Mar. 13, 2020), https://www.nytimes.com/interactive/2020/03/13/world/asia/coronavirus-
25 death-life.html (describing experiences of two otherwise healthy nurses in China who contracted COVID-19 and
were hospitalized, one of whom died).
26 16 Ctrs. for Disease Control & Prevention, Coronavirus Disease 2019 (COVID-19), People Who Need Extra
Precautions, People Who are at Higher Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019-ncov/need-
27 extra-precautions/people-at-higher-risk.html.
17 Ctrs. for Disease Control & Prevention, CDC Features, Diseases & Conditions, 5 Surprising Facts About High
28 Blood Pressure, https://www.cdc.gov/features/highbloodpressure/index.html.
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1 immigrants were uninsured as of March 2020, compared to less than one in ten (9%) citizens.18

2 Lack of health insurance often results in a failure to identify chronic diseases or other health

3 conditions.19

4

There is no vaccine, antiviral treatment, or cure for COVID-19. Greifinger ¶ 6. The

5 disease is believed to spread through “respiratory droplets” through “close exposure” of up to

6 six feet. Mishori ¶ 6; Greifinger ¶ 11. “Transmission also is possible through contact with

7 contaminated surfaces.” Greifinger ¶ 10. Individuals infected with COVID-19 can transmit it to

8 others even if they have no symptoms. Mishori ¶ 6.

9

Because of its highly contagious nature, the only available strategy to reduce the risk of

10 injury or death from COVID-19 is to prevent people from being infected in the first place.

11 Greifinger ¶ 6; Mishori ¶ 22. “Social distancing,” or maintaining a minimum of six feet of

12 separation at all times from other people, paired with “hand hygiene,” is the only effective

13 means of stopping the spread of the disease. Greifinger ¶ 11; Hernandez ¶ 12 (“The most

14 effective mitigation measures are community-wide social distancing.”). Social distancing is the

15 “cornerstone” of the CDC’s prevention plan.20 In the last month, state governments and the

16 federal government have fundamentally restructured American life to limit all interaction except

17 within one’s own household, and, when such interaction is unavoidable, to require social

18 distancing.21

19

B. Adequate Social Distancing is Impossible at Current Population Levels at

Mesa Verde and YCJ

20

21

In early April, Mesa Verde had detainee population of 286 people. See Bahena Ortuño v.

22 Jennings, No. 20-cv-02064-MMC (N.D. Cal.), Supp. Dec. of Erik Bonnar ¶ 2 (ECF No. 29-2).

23

24 18 Health Coverage of Immigrants, Kaiser Family Foundation (Mar. 18, 2020), https://www.kff.org/disparities-
policy/fact-sheet/health-coverage-of-immigrants/.
25 19 Jennifer Tolbert et al., Key Facts about the Uninsured Population, Kaiser Family Foundation (Dec. 13, 2019),
https://www.kff.org/uninsured/issue-brief/key-facts-about-the-uninsured-population/.
26 20 Ctrs. for Disease Control & Prevention, Coronavirus Disease 2019 (COVID-19), Prevent Getting Sick, Cloth
Face Covers, Recommendation Regarding the Use of Cloth Face Coverings, Especially in Areas of Significant
27 Community-Based Transmission, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-
cover.html.
28 21 Mervosh et al., supra note 2 (listing orders by state).
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1 YCJ has a current detainee population of approximately 286 people—approximately 157 of

2 those are ICE detainees, while the remainder are detained pursuant to the Yuba County criminal

3 justice system. Riordan ¶ 9. Social distancing is incompatible with every aspect of life in

4 detention at Mesa Verde and YCJ.

5

First, Plaintiffs and the proposed class cannot maintain physical distance from other

6 detainees in the units where they sleep. YCJ contains several different types of housing units,

7 each with its own alphabetical designation. There are four dorms (B, C, P, R) in which detainees

8 sleep in bunk beds in close proximity to one another. Riordan Exh. A (Berg Report at p. 9); id.

9 Exh. C (photograph marked as DSC “198” is unit C); id. Exh. D (photographs marked as DSC

10 112 and DSC 114 are of housing unit R); Kavanagh ¶¶ 5-6, 10-11. The C and D dorms have 50

11 beds. Kavanagh ¶ 6. Six other housing units (G, H, I, J, K, L) have bunk beds bolted to the wall

12 and are separated from corridors by a set of bars with open space between the bars, so air flows

13 freely between the cells and the corridors. Riordan Exh. A at 9; id. Exh. D (photograph marked

14 as DSC 105 is of housing unit I); Kavanagh ¶ 9. The distance from top to bottom bunk

15 throughout the facility is less than six feet. Mwaura ¶ 10; Zepeda ¶ 15. Several other housing

16 units (D, E, F) involve two-person cells surrounding a common area where half of each unit’s

17 detainees are released at a time during the day. Riordan Exh. A at 9.

18

Throughout the sleeping quarters in YCJ, social distancing is impossible. Mwaura ¶¶ 9-

19 10; Tovar ¶ 14; Zepeda ¶¶ 14-15. From their own beds, Plaintiffs can reach out and touch the

20 beds beside them. Tovar ¶ 14; Mwaura ¶ 10 (describing two bunks within two feet of him and

21 four more within four feet). The dorms in which plaintiffs live are crowded. Tovar ¶ 14 (dorm is

22 “completely full”); see also Mwaura ¶ 10 (only 8 detainees out of 36 do not have a bunk mate);

23 Zepeda ¶ 15 (describing that all bottom bunks are less than a meter apart and occupied).

24

In Mesa Verde, all detainees sleep in bunk beds only a few feet apart in 100-bed

25 dormitory spaces. Knox Dec. ¶ 9; Riordan Exh. E (2018 PREA Audit) at 2. Mesa Verde has

26 three isolation cells in a restricted housing unit that hold one person each. Riordan Exh. E at 2.

27 Plaintiffs also describe being arm’s width from others while in their beds. Dang ¶ 13; Nuñez ¶

28
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1 14; Alfaro ¶ 18 (“[The bunk beds] are so close to one another I can reach out my arms and touch

2 another bunk bed.”). Social distancing is impossible at current levels. See Dang ¶ 11

3 (surrounded by full bunks in at-capacity dorm); Nuñez ¶¶ 12, 14 (sleeping in half-capacity dorm

4 less than six feet from two other women); Alfaro ¶ 16 (describing one or two beds free out of

5 100).

6

“[B]y definition [the sleeping arrangements in both facilities] prohibit[] social distancing,

7 as the distance between the upper and lower bunks is less than six feet.” Greifinger ¶ 34.

8 Further, “[b]ecause detainees get in and out of bed, bunk beds that are closer than ten feet from

9 one another will not allow adequate social distancing.” Id. ¶ 35. At Mesa Verde specifically, Dr.

10 Greifinger has concluded that it “is fundamentally a congregate living space where there is a

11 high risk of infectious spread.” Greifinger Dec. ¶ 34(a). Similarly, at YCJ, although there are

12 number of different unit layouts, “none of the sleeping arrangements appear safe in the context

13 of the coronavirus.” Greifinger ¶ 34(b).

14

Second, Plaintiffs and the proposed class cannot maintain safe physical distance from one

15 another when sharing common areas in their housing units, including when eating and using the

16 bathroom and shower. In the dining areas in both facilities, most tables and chairs in common

17 spaces are bolted to the ground and cannot be moved. Kavanagh ¶ 3 (YCJ); Riordan Exhs. C &

18 D (Takei ECF No. 197-17 & 197-15) (YCJ); Riordan Exh. F (Takei at 5, 24, 25) (Mesa Verde);

19 Tovar ¶ 14 (YCJ); Alfaro ¶ 22 (Mesa Verde). At the tables, class members sit “right next to each

20 other,” Zepeda ¶ 16 (YCJ), “elbow to elbow,” Mwaura ¶ 13 (YCJ); Alfaro ¶ 22 (“When we

21 watch television, we sit right next to one another”) (Mesa Verde). There is not enough space

22 between chairs to maintain social distances at the tables and not enough tables for detainees to

23 space themselves among them. Kavanagh ¶ 9 (YCJ); Dang ¶¶ 17-18 (Mesa Verde); Nuñez ¶ 14

24 (Mesa Verde). At Mesa Verde, “[t]he people serving food are an arm’s length distance or less”

25 from Plaintiffs when they serve them. Dang ¶ 17.

26

Plaintiffs regularly have to line up without sufficient space to maintain social distancing

27 in the line. At Mesa Verde, guards force Plaintiffs to line up and take them to the dining area;

28
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1 they are “inches apart in line.” Dang ¶ 17; see also Nuñez ¶ 14. At YCJ, Plaintiffs must also

2 regularly line up in close quarters. See Zepeda ¶ 21 (to use the bathroom), ¶ 23 (to see medical

3 staff); ¶ 24 (to receive afternoon medication); Mwaura ¶ 12 (to go to dining hall).

4

It is likewise impossible to maintain social distance when using the bathrooms and

5 showers at both facilities. At Mesa Verde, there are five toilets, five showers, and seven sinks

6 per 100-person dormitory. Riordan Exh. E at 2. Plaintiffs are “shoulder to shoulder” when

7 washing their hands. Nuñez ¶ 12. At YJC, toilets and showers are shared and are separated by

8 curtains or thin dividers that generally rise to shoulder height. Tovar ¶ 15 (“you do not have any

9 privacy or space”); Kavanagh ¶ 6; see also Mwaura ¶ 16. Plaintiffs’ experiences illustrate that

10 “the structure and facilities of the Mesa Verde Detention Center and the Yuba County Jail

11 [make] social distancing [] impossible . . . and there is a serious risk of infection for all of those

12 who are detained.” Greifinger ¶ 43.

13

C. Plaintiffs Face an Imminent and Substantial Risk of Exposure to COVID-19

in Mesa Verde and YCJ

14

15

Jail and detention settings like Mesa Verde and YCJ “pose a heightened public health risk

16 to the spread of COVID-19, even greater than other non-carceral institutions.” Greifinger ¶ 16.

17 According to Dr. Mishori, “The risk posed by infectious diseases in immigration detention

18 facilities is significantly higher than in the community, both in terms of risk of exposure and

19 transmission and harm to individuals who become infected.” ¶ 7. In addition, at Mesa Verde and

20 YCJ, the risks inherent in detainees’ inability to maintain six feet of physical distance from

21 others are compounded by other conditions of confinement, including poor sanitation,

22 inadequate access to personal hygiene, substandard medical care, and the entry of newly-

23 detained people into the population without proper screening or quarantine. Greifinger ¶¶ 39,

24 41, 42, 49-56 (identifying factors within Mesa Verde and YCJ that compound the risk inherent

25 in Plaintiffs’ inability to maintain social distancing).

26

Plaintiffs describe sanitary and hygienic conditions that are wanting. At Mesa Verde,

27 detainees must wash their hands, shower, and clean their personal items using hotel-size

28
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1 shampoo and soap. Nuñez ¶ 11. On April 17, 2020, they received a liquid soap dispenser and

2 napkin dispenser, ostensibly in response to COVID-19. Nuñez ¶¶ 11, 16. There is no access to

3 hand sanitizer. Dang ¶ 20. Plaintiffs are paid $1 per day to clean their dorms and the bathrooms

4 they share with up to 99 other detainees for themselves, using only a mop, gloves, and cleaning

5 solution. Dang ¶ 16. One individual describes that everyone in his dorm must “use and re-use

6 the same little towel over and over again to dry [their] hands or wipe surfaces, and it smells and

7 is unsanitary.” Alfaro ¶ 23. At YCJ, the solitary bathroom in the yard is “disgusting,” (Tovar ¶

8 17) and clothes often come back from laundry with a foul smell (Zepeda ¶ 26). Detainees

9 without protective gear were forced to clean up after a visibly ill woman was removed from a

10 dorm in which she languished for days. Tovar ¶ 21.22 Moreover, Defendants’ responses to

11 people with symptoms have been delayed and inconsistent with CDC recommendations and

12 their own internal policies. See Tovar ¶¶ 7-9, 21 (describing delayed, inadequate response to

13 sick woman in dorm); Mwaura ¶ 30 (sick detainees in dorm room not receiving attention);

14 Alfaro ¶ 39 (“I have also never heard of anyone here who has been isolated or quarantined.”).

15

Perhaps even more shockingly, Defendants have continued to introduce new detainees

16 into the ghastly existing conditions at Mesa Verde and YCJ, including people transferred from

17 facilities with known COVID-19 cases and who entered without a two-week quarantine. Alfaro

18 ¶ 17 (“within hours of someone leaving, a new person comes in to take their place”); Dang ¶ 12

19 (describing newly-detained people who are coughing and sick); Nuñez ¶ 16 (detailing transfer

20 from YCJ to MV who was not quarantined before joining dorm); Zepeda ¶¶ 29-30 (noting two

21 transfers from Santa Rita Jail, one of whom entered YCJ dorm after five days in cell alone and

22 another who was isolated for only six hours) 23; Mwaura ¶ 31 (describing new detainee who

23 entered Apr. 17, 2020).

24

25
22 Even outside the context of the pandemic, Plaintiffs have experienced substandard medical care in both YCJ and
26 Mesa Verde. See Tovar ¶ 18 (YCJ); Mwaura ¶ 6 (not receiving care for Valley Fever at YCJ); Zepeda ¶ 9 (10
outstanding requests to see medical staff at YCJ); Dang ¶ 24 (MV failed to respond to request for medical records).
27 23 Santa Rita Jail has 27 confirmed cases of COVID-19. See Rick Hurd, Coronavirus: Alameda County Now Has
Second-Most Cases in Bay Area, East Bay Times (Apr. 17, 2020),
28 https://www.eastbaytimes.com/2020/04/17/coronavirus-alameda-county-now-has-second-most-cases-in-bay-area/.
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1

Defendants’ own medical subject matter experts have recognized that conditions like

2 those present currently at Mesa Verde and YCJ amount to a “tinderbox scenario” for the rapid

3 spread of COVID-19. See Letter from Drs. Scott A. Allen & Josiah Rich to Rep. Bennie

4 Thompson, et al. (Mar. 19, 2020), https://www.documentcloud.org/documents/6816336-

5 032020-Letter-From-Drs-Allen-Rich-to-Congress-Re.html#document/p4/a557238 (hereafter

6 “Drs. Allen & Rich Letter”). So, too, have Plaintiffs’ experts. As Dr. Mishori described, “A

7 coronavirus brought into a detention facility can quickly spread among the dense detainee

8 cohort. Soon many are sick—including high-risk groups such as those with chronic

9 conditions—quickly overwhelming the already strained health infrastructure within the facility.”

10 ¶ 16. Dr. Greifinger has specifically reviewed ICE’s response to the threat of COVID-19 and

11 concludes that it “is deficient, putting detainees . . . in imminent danger of serious illness and

12 death.” ¶ 43.

13

In addition, it is clear that the only way to mitigate against this doomsday scenario is to

14 significantly reduce the population of both Mesa Verde and YCJ. As Dr. Greifinger explains,

15 ICE has failed “to appreciate the importance of releasing detainees to limit the risk for the

16 individuals released, for those who remain detained, and for the general public.” Greifinger

17 ¶ 47.24 All experts agree that social distancing, paired with vigilant hygiene, is the most

18 effective measure to prevent transmission of COVID-19, see Hernandez Dec. ¶¶ 11-12; Mishori

19 Dec. ¶¶ 10-11; Greifinger Dec. ¶ 11, 30, 31, and it is clear that both Mesa Verde and YCJ have

20 “fail[ed] to meet minimally acceptable standards of social distancing, putting the residents at

21 grave and unacceptable risk of pervasive infections, [which will] lead[] to serious illness and

22 death.” Greifinger ¶ 59. In turn, release is “the most important means of mitigating the spread of

23 COVID-19 in ICE detention centers … even if the conditions inside the facility were

24 impeccable.” Greifinger ¶ 48.

25

At this point, ICE does not need to hypothesize as to what might happen in Mesa Verde

26 or YJC once COVID-19 takes hold as, sadly, in other congregate facilities where conditions are

27

28 24 Greifinger identifies numerous other deficiencies in ICE’s national response. See Greifinger ¶¶ 39, 41, 42, 48-55.
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1 similar to those in Mesa Verde and YCJ, tragedy has struck. In three weeks across March and

2 April, the jail at Rikers Island in New York jumped from no cases among inmates to 273 cases,

3 a higher rate of infection than in the most infected places in the world; four corrections staff

4 members and one inmate have died. Greifinger ¶¶ 21-22. The Cook County Jail has likewise

5 seen an alarming rise in cases: the Jail went from two confirmed inmate cases on March 23,

6 2020, to 342 confirmed inmate cases on April 17, 2020.25 Three inmates have died.26 As of

7 April 17, 2020, there were at least 124 confirmed cases among detainees in ICE custody,

8 including at least eighteen at the Otay Mesa Detention Center in San Diego.27 These tragedies

9 are foreseeable and preventable.

10

The catastrophe of a concentrated outbreak, which endangers the lives of not only those

11 trapped in custody, but also those on the outside because it can overwhelm an already-stressed

12 public health infrastructure, are precisely why multiple jurisdictions, including Los Angeles,

13 Detroit, Travis County, New York City, and more than half of states have released thousands of 14 people from criminal custody.28

15 III. LEGAL STANDARD

16

Plaintiffs are entitled to a temporary restraining order if they establish that they are

17 “likely to succeed on the merits, . . . likely to suffer irreparable harm in the absence of

18 preliminary relief, that the balance of equities tips in [their] favor, and that an injunction is in the

19 public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); Stuhlbarg Int’l

20 Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001) (noting that

21 preliminary injunction and temporary restraining order standards are “substantially identical”).

22
25 Andy Grimm, ‘I feel like I lost the battle for my husband,’ widow of dead Cook County Jail detainee says,
23 Chicago Sun Times, https://chicago.suntimes.com/2020/4/16/21224183/lost-battle-husband-widow-dead-cook-
county-jail-detainee-coronavirus (Apr. 16, 2020).
24 26 Id.
27 U.S. Immigration and Customs Enforcement, Confirmed Cases, ICE Guidance on
25 COVID-19 (last updated Apr. 13, 2020, 11:43 a.m.), https://www.ice.gov/coronavirus (click on “Confirmed
Cases”); see also Max Rivlin Nadler, KPBS, Otay Mesa COVID-19 Outbreak Now The Largest At A US
26 Immigration Detention Center, https://www.kpbs.org/news/2020/apr/14/otay-mesa-detention-center-now-largest-
immigration/ (Apr. 14, 2020).
27 28 See Responses to COVID-19 pandemic, Prison Policy Initiative (Apr. 10, 2020) (collecting instances where jails
and prisons have released detainees due to COVID-19),
28 https://www.prisonpolicy.org/virus/virusresponse.html#releases.
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1 A temporary restraining order may likewise issue where “serious questions going to the merits

2 [are] raised and the balance of hardships tips sharply in [plaintiff’s] favor.” All. for the Wild

3 Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (citation omitted). To succeed under the

4 “serious question” test, Plaintiffs must show that they are likely to suffer irreparable injury and

5 that an injunction is in the public’s interest. Id. at 1132.

6 IV. ARGUMENT

7

As the institutions of American life, including jails and prisons across the country,

8 fundamentally transform to accommodate social distancing, ICE stands virtually alone in

9 defying the medical and societal consensus. Despite overwhelming expert evidence to the

10 contrary, ICE asserts that immigrants detained in facilities where no one has tested positive for

11 COVID-19 are not at risk of infection at all, even as the disease ravages the communities

12 outside and regardless of whether ICE has administered any tests. ICE maintains that it can keep

13 immigrants in custody safe by ordering increased access to soap and sanitizer, conducting

14 screenings that fail to account for asymptomatic transmission, and issuing bare

15 recommendations that encourage social distancing while simultaneously admitting that “strict

16 social distancing may not be possible in congregate settings such as detention facilities.”29

17

ICE has made clear that it will not act of its own volition to make social distancing

18 possible. Although on April 10, ICE issued a non-binding recommendation that detention

19 centers consider reducing their populations to 75% of capacity (regardless of whether such a

20 reduction was actually sufficient to accommodate social distancing in any particular facility), a

21 week later, ICE’s Acting Director Matthew T. Albence told a Congressional oversight

22 committee that the agency contemplated no further releases.30 Before Congress, Acting Director

23 Albence went further, testifying that ICE cannot release any more detainees because it would

24 suggest that the Administration is “not enforcing our immigration laws,” which would be a

25

26 29 ICE ERO, COVID-19 Pandemic Response Requirements,
https://www.ice.gov/doclib/coronavirus/eroCOVID19responseReqsCleanFacilities.pdf (Apr. 10, 2020).
27 30 House Committee on Oversight and Reform, DHS Officials Refuse to Release Asylum Seekers and Other Non-
Violent Detainees Despite Spread of Coronavirus, https://oversight.house.gov/news/press-releases/dhs-officials-
28 refuse-to-release-asylum-seekers-and-other-non-violent-detainees (Apr. 17, 2020).
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1 “huge pull factor” and create a “rush at the borders.”31 ICE’s actions in California bear out this

2 strategy of relative inaction. Just in the past few weeks, the population of ICE detainees at YCJ

3 has increased. Riordan ¶ 9. In court, ICE has taken the position that the threat of COVID-19 is

4 speculative because there are no confirmed cases at Mesa Verde or YJC.32

5

Courts in this circuit have seen ICE’s responses to the COVID-19 crisis for what they

6 are: half-measures that do not effectively protect the civil detainees in ICE’s custody from a

7 serious risk of infection. See e.g., Castillo v. Barr, No. cv-20-00605, 2020 WL 1502864, at *5

8 (C.D. Cal. Mar. 27, 2020) (“Civil detainees must be protected by the Government. Petitioners

9 have not been protected. They are not kept at least 6 feet apart from others at all times.”) As a

10 result, judges have required ICE to release individual detainees from Mesa Verde and YCJ on

11 the grounds that their continued detention would violate due process. See Bahena Ortuño v.

12 Jennings, No. 20-cv-02064-MMC, 2020 WL 1701724 at *4 (N.D. Cal. Apr. 8, 2020); Bent v.

13 Barr, No. 19-cv-06123-DMR, 2020 WL 1812850 at *6 (N.D. Cal. Apr. 9, 2020); See Castillo v.

14 Barr, No. cv-20-00605 TJH (AFMX), 2020 WL 1502864, at *5 (C.D. Cal. Mar. 27, 2020).

15

The population levels in Mesa Verde and YCJ are a structural barrier that prohibit

16 necessary social distancing and, as a result, the risk of contracting COVID-19 looms over every

17 single Plaintiff every single day. This Court’s intervention is urgently needed to prevent the

18 catastrophic harm to Plaintiffs that will result if ICE is permitted to proceed in its intransigent

19 refusal to reduce the population of its facilities.

20

A. Plaintiffs are Likely to Succeed on the Merits

21

1. Plaintiffs’ Detention in an Environment Where Social

Distancing is Impossible is Unreasonably Dangerous in

22

Violation of Substantive Due Process

23

The Constitution prohibits the government from exposing people in its custody to

24 unjustifiable or unreasonable risks of harm. These constitutional protections are strongest for

25
31 House Committee on Oversight and Reform, DHS Officials Refuse to Release Asylum Seekers and Other Non-
26 Violent Detainees Despite Spread of Coronavirus, https://oversight.house.gov/news/press-releases/dhs-officials-
refuse-to-release-asylum-seekers-and-other-non-violent-detainees (Apr. 17, 2020).
27 32 Opp. Brief at 16, Bahena Ortuño v. Jennings, No. 3:20-cv-02064 (N.D. Cal. Mar. 30, 2020) (“In any event,
Petitioners’ assertion that detention per se poses an increased risk of health complications or death from COVID-19
28 is purely speculative. COVID-19 has not spread to the facilities where Petitioners are being detained.”)
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1 civil detainees like Plaintiffs, who are in detention pursuant to civil immigration laws. See

2 Zadvydas v. Davis, 533 U.S. 678, 690 (2001). Their constitutional rights while in custody are

3 derived from the Due Process Clause of the Fifth Amendment, which provides significantly

4 greater protection than the Eighth Amendment’s ban on cruel and unusual punishment.

5 Youngberg v. Romeo, 457 U.S. 307, 321-22 (1982). Plaintiffs are likely to prevail on either of

6 two due process theories. First, the risks presented by COVID-19 in the congregate detention

7 environments of Mesa Verde and YCJ are excessive in relation to the government’s interests

8 and could be achieved by alternative and less harsh methods. Second, the government’s decision

9 to maintain robust population levels at Mesa Verde and YCJ constitutes deliberate indifference.

10

a. The Impossibility of Social Distancing Exposes

Plaintiffs to an Unjustifiable Risk of Contracting A

11

Deadly Virus in Light of Alternatives to Detention that

Would Equally Serve the Government’s Interests in

12

Appearance for Removal Proceedings and Community

Safety 13

14

Conditions of confinement violate due process when they expose civil detainees to a risk

15 of harm that is either excessive in relation to a legitimate government objective, or is imposed to

16 achieve an objective that could be accomplished using “alternative and less harsh methods.”

17 Jones v. Blanas, 393 F.3d 918, 932 (9th Cir. 2004); see also Jackson v. Indiana, 406 U.S. 715,

18 738 (1972) (“[D]ue process requires that the nature and duration of commitment bear some

19 reasonable relation to the purpose for which the individual is committed.”).

20

Conditions of confinement for civil detainees are presumptively unconstitutional when

21 they are “identical to, similar to, or more restrictive than” those afforded their criminal

22 counterparts. Unknown Parties v. Nielsen, No. CV-15-00250-TUC-DCB, 2020 WL 813774, at

23 *4 (D. Ariz. Feb. 19, 2020) (quoting Youngberg v. Romeo, 457 U.S. 307, 321-22 (1982)). There

24 is currently a nationwide trend of mass releases of people serving sentences for criminal

25 convictions to protect their health and facilitate social distancing within jails and prisons.33 Los

26 Angeles County alone has released at least 1,700 people from county jails, Washington State

27

28 33 See supra n. 27.
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1 has released at over 1,100 people serving sentences for convictions, and Michigan is releasing at

2 least 1,000 people per month.34 Plaintiffs, as civil detainees, are entitled to “more considerate

3 treatment” than their criminal counterparts, Jones, 393 F.3d at 931-32, but Defendants have

4 notably not extended them similar treatment. Out of well over 30,000 civil ICE detainees

5 nationwide, the agency has released 693,35 and does not intend to release more.36 In YCJ, also

6 home to individuals incarcerated for criminal offenses, the county has released some prisoners

7 in response to COVID-19, but ICE has increased its population of civil detainees.37 Instead of

8 depopulating detention centers in line with criminal justice authorities nationwide, Defendants

9 have sought to make changes at the margins that do not effectively address the risk that their

10 current custody imposes on Plaintiffs. See Greifinger ¶ 47. Because Plaintiffs have been

11 afforded considerably inferior treatment than their criminal counterparts, their continued

12 detention is presumptively unconstitutional.

13

It is well-settled that a detained individual’s constitutional protections extend to “future

14 harm,” including a “condition of confinement that is sure or very likely to cause serious illness

15 and needless suffering the next week or month or years.” Helling v. McKinney, 509 U.S. 25, 33

16 (1993); see also id. at 34 (“It would be odd to deny an injunction to inmates who plainly proved

17 an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened

18 to them”); Parsons v. Ryan, 754 F.3d 657, 679 (9th Cir. 2014) (affirming the certification of a

19 class of prison inmates and explaining that “every single [] inmate faces a substantial risk of

20 serious harm if [the prison’s] policies and practices provide constitutionally deficient care for

21 treatment of medical, dental, and mental health needs”).

22

As detailed supra, under the current conditions in Mesa Verde and YCJ, Plaintiffs are

23 exposed to a risk of infection with a deadly, incurable virus because consistent social distancing

24
34 Id.
25 35 Hott Decl. ¶¶ 10, 13, ECF No. 125-1, Fraihat v. ICE, No. 5:19-cv-01456 (C.D. Cal. Apr. 15, 2020).
36 Press Release, House Comm. on Oversight and Reform, DHS Officials Refuse to Release Asylum Seekers and
26 Other Non-Violent Detainees Despite Spread of Coronavirus (Apr. 17, 2020),
https://oversight.house.gov/news/press-releases/dhs-officials-refuse-to-release-asylum-seekers-and-other-non-
27 violent-detainees.
37 Riordan ⁋ 9 (noting increase in ICE population at YCJ); id. Exh. G, David Wilson, Yuba County Jail Population
28 Reduced, Appeal Democrat (Apr. 15, 2020).
15
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1 is impossible. Supra § II.B. Defendants cannot seriously dispute this. Three judges in this

2 district have ordered detainees released from Mesa Verde and YCJ, pointing to their risk of

3 infection without the ability to maintain social distance. Bahena Ortuño, 2020 WL 1701724 at

4 *4 (finding that four “petitioners cannot practice meaningful social distancing in [Mesa Verde

5 and YCJ]”); Bent, 2020 WL 1812850 at *6 (“[E]ven assuming that Respondents accurately

6 describe [Mesa Verde]’s current practices, these practices are inadequate to ensure the ‘safety

7 and general wellbeing’ of [Mesa Verde] detainees during the COVID-19 pandemic.”); Doe v.

8 Barr, No. 3:20-cv-02141 LB, 2020 WL 1920667 at *10-11 (citing Bahena Ortuño and Bent in

9 holding same for YCJ detainee).

10

Because all adults risk serious harm if they contract COVID-19, see Greifinger ¶ 8, and

11 all individuals are at the same risk of contracting COVID-19, all putative class members are at

12 serious risk of harm from COVID-19. Cf. Savino v. Souza, No. 1:20-cv-10617-WGY, 2020 WL

13 1703844 at *7 (D. Mass. Apr. 8, 2020) (certifying class of all ICE detainees in Bristol County

14 House of Corrections and recognizing that “[c]rucial to the Court’s determination is the

15 troubling fact that even perfectly healthy detainees are seriously threatened by COVID-19. . . . it

16 cannot be denied that the virus is gravely dangerous to all of us”); Malam v. Adducci, No. 2:20-

17 cv-10829, 2020 WL 1809675 at *3) (E.D. Mich. Apr. 9, 2020) ( “declin[ing] to set a floor for

18 the level of risk a party must show to warrant immediate release from immigration detention due

19 to the COVID-19 pandemic” and ordering release of ICE detainee who did not fall into CDC

20 risk category.)

21

The Government’s judicially-recognized interest in the continued detention of

22 Plaintiffs—ensuring public safety and that Plaintiffs appear at their removal proceedings—

23 cannot justify exposing them to a substantial risk of contracting a deadly, incurable virus and

24 suffering severe bodily harm or death as a result. Judges in this District have already ordered

25 individual detainees released, finding that the government’s interests can be accomplished

26 through “alternative, less harsh methods,” like release on supervision and conditions. Bahena

27 Ortuño 2020 WL 1701724 at *4 (finding that despite the government’s “non-punitive purpose”

28
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Case 3:20-cv-02731-VC Document 5 Filed 04/20/20 Page 23 of 31

1 in detaining petitioners their current detention is “excessive in relation to that purpose”); Doe,

2 2020 WL 1820667 at *10 (same for YCJ detainee); Bent, 2020 WL 1812850 at *7-8 (same for

3 Mesa Verde detainee). Courts throughout the country have reached similar conclusions. See,

4 e.g., Rafael L.O. v. Tsoukaris, No. 20-3481, 2020 WL 1808843 at *7 (D.N.J. Apr. 9, 2020)

5 (recognizing that “COVID-19, and its associated risks, is the difference maker—it changes the

6 equation in evaluating the government’s legitimate objectives”); Thakker v. Doll, No. 1:20-cv-

7 480, 2020 WL 1671563 at *8 (M.D. Pa. Mar. 31, 2020) (same for ICE detainees in York County

8 Jail in Pennsylvania). ICE itself has recognized as much when it issued a statement recognizing

9 the need for alternatives to detention for new arrestees to protect public health.38 Inexplicably,

10 however, ICE has refused to apply that same logic to its current detainees.

11

This is particularly troubling because it is well established that ICE has a range of highly

12 effective tools at its disposal to ensure that individuals report for court hearings and other

13 appointments, including conditions of supervision. See Thakker, 2020 WL 1671563 at *8

14 (noting “that ICE has a plethora of means other than physical detention at their disposal by

15 which they may monitor civil detainees and ensure that they are present at removal proceedings,

16 including remote monitoring and remote check-ins”) (emphasis in original). These alternatives

17 to detention are highly effective: for example, a federally contracted evaluation of a program

18 that featured monitoring instead of immigration detention reported a 99% attendance rate at all

19 immigration court hearings and a 95% attendance rate at final hearings. See U.S. Gov’t

20 Accountability Office, GAO-15-26, Alternatives to Detention: Improved Data Collection and

21 Analyses Needed to Better Assess Program Effectiveness 10-11 (Nov. 2014),

22 https://www.gao.gov/assets/670/666911.pdf; see also Brief of 43 Social Science Researchers

23 and Professors as Amici Curiae in Support of Respondents, at 36-37, Jennings v. Rodriguez,

24 2016 WL 6276890, (No. 15-1204) (discussing an alternatives to detention program studied in

25

26

27 38 See ICE Guidance on COVID-19, https://www.ice.gov/covid19 (Apr. 17, 2020) (during pandemic, in many
circumstances ICE “will exercise discretion to delay enforcement actions until after the crisis or use alternatives to
28 detention, as appropriate.”), available at https://www.ice.gov/covid19.
17 PETITIONERS-PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR TEMPORARY RESTRAINING
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Case 3:20-cv-02731-VC Document 5 Filed 04/20/20 Page 24 of 31

1 2011 that saw fewer than 1% of participants removed from the program due to arrest by another

2 law enforcement agency).

3

Plaintiffs and the proposed class are therefore likely to demonstrate that the government’s

4 interests could be satisfied by alternatives to detention and that their current detention in

5 dangerous conditions is unconstitutionally excessive.

6

b. Plaintiffs are also Likely to Prevail by Showing

Defendants’ Refusal to Ensure Adequate Social

7

Distancing Constitutes Deliberate Indifference

8

People in government custody have a right to reasonable health and safety. See

9 Youngberg v. Romeo, 457 U.S. 307, 315–16 (1982). “The rationale for this principle is simple

10 enough: when the State by the affirmative exercise of its power so restrains an individual’s

11 liberty that it renders him unable to care for himself, and at the same time fails to provide for his

12 basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety—it

13 transgresses the substantive limits on state action set by the Eighth Amendment and the Due

14 Process Clause.” DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 200 (1989).

15

As individuals who are detained for civil offenses, Plaintiffs need not prove “deliberate

16 indifference” to prevail on a substantive due process claim. Jones, 393 F.3d at 933. Nonetheless,

17 here, Defendants clearly are being deliberately indifferent to the substantial risks posed by

18 COVID-19 within the congregate detention environments of Mesa Verde and YCJ. In contrast

19 to the subjective Eighth Amendment standard, the Fifth Amendment deliberate indifference

20 standard is purely objective. The government violates due process when “there is a substantial

21 risk of serious harm” to Plaintiffs and the proposed class “that could [be] eliminated through

22 reasonable and available measures that [Defendants] did not take” and that are likely to “caus[e]

23 the injury the plaintiff [will] suffer[].” Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1070 (9th

24 Cir. 2016). Where Defendants are fully aware of the serious risks facing Plaintiffs and fail to

25 take the only measures known to effectively mitigate those risks, they are deliberatively

26 indifferent under the Fifth Amendment. See, e.,g., J.P. v. Sessions, 2019 WL 6723686 at *36

27 (C.D. Cal. Nov. 5, 2019) (finding the plaintiffs likely to succeed in proving the government was

28
18 PETITIONERS-PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR TEMPORARY RESTRAINING
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Case 3:20-cv-02731-VC Document 5 Filed 04/20/20 Page 25 of 31

1 deliberately indifferent where they presented evidence that immigration enforcement agencies

2 were aware of risks associated with a policy and implemented it anyways).

3

Here, Defendants have acted, and continue to act, with deliberate indifference to known

4 and obvious risks of COVID-19 transmission. On February 25, 2020, March 13, 2020, and

5 March 19, 2020, Defendants’ own medical experts warned them that COVID-19 endangered

6 everyone in their custody and that “social distancing is essential to slow the spread of the

7 coronavirus to minimize the risk of infection.” See supra Drs. Allen & Rich Letter (Mar. 19,

8 2020). On March 17, 2020, these same medical experts published an opinion piece in the

9 Washington Post explaining the need to act immediately to stem the spread of COVID-19 in

10 jails and prisons.39 They warned Defendants that only release from custody on a large scale

11 could prevent calamity. Scores of medical experts, including the expert testimony in this case,

12 have subsequently agreed. Greifinger ¶¶ 47, 58; Hernandez ¶ 30; Mishori ¶¶ 22-23.

13 Respondents have disregarded their advice and instead adopted a series of half-measures that are

14 “patently insufficient to protect Petitioners.” Basank v. Decker, No. 20 Civ. 2518, 2020 WL

15 1481503, at *6-7 (S.D.N.Y. Mar. 26, 2020) (ordering release from immigration detention

16 because Defendants were deliberately indifferent to risk of COVID-19 infection); see also

17 Castillo, 2020 WL 1502864, at *5 (ordering release from Adelanto ICE Processing Center

18 because “Petitioners have not been protected. They are not kept at least 6 feet apart from others

19 at all times. They have been put into a situation where they are forced to touch surfaces touched

20 by other detainees, such as with common sinks, toilets, and showers.”).

21

It is not possible to mitigate the risk of contracting COVID-19 in Mesa Verde and YCJ

22 without consistent social distancing. Greifinger ¶ 31 (“If there is inadequate social distancing,

23 hygiene and sanitation, there will almost certainly be infection and an outbreak.”), ¶ 59 (“The

24 only way to avoid these unacceptable risk is to materially reduce the population, implement

25 social distancing as described herein, and ensure appropriate hygiene.”). According to the CDC

26

27 39 Josiah Rich et. al, We must release prisoners to lessen the spread of coronavirus, Washington Post (Mar. 17,
2020), https://www.washingtonpost.com/opinions/2020/03/17/we-must-release-prisoners-lessen-spread-
28 coronavirus/.
19 PETITIONERS-PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR TEMPORARY RESTRAINING
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Case 3:20-cv-02731-VC Document 5 Filed 04/20/20 Page 26 of 31

1 a “cloth face cover is not a substitute for social distancing.”40 The uniform medical consensus,

2 embraced by the CDC, maintains that even when vigilant hygiene and sanitation are

3 maintained,41 it simply is not possible to prevent contagion unless people can maintain a

4 physical distance of at least six feet from one another at all times. Greifinger ¶47.

5

While Defendants have issued guidance to “promote” social distancing,42 it is patently

6 insufficient at Mesa Verde and YCJ, where social distancing is currently impossible. Greifinger

7 Dec. ¶ 47 (“The measures outlined in ICE’s April 10 Guidance are impossible to carry out given

8 the limits of the infrastructure” at Mesa Verde and YCJ). Even if, as the guidance suggests,

9 detention centers actually reduce their populations to 75% of capacity, Dr. Greifinger points out

10 that “ICE provides no evidence that 70% of 75% capacity would facilitate effective social

11 distancing within dormitories or cells, which requires that individuals maintain six feet of

12 separation.” Greifinger Dec. ¶ 48(a). As Judge Phillips just found in a case involving prisoners,

13 “The County’s assurances that it has provided unlimited free soap to prisoners and advised

14 prisoners to remain physically distant—without establishing that it is physically possible to do

15 so—is unlikely to be sufficient to defeat a claim of deliberate indifference . . . In sum,

16 Defendant has failed to demonstrate that it is currently taking adequate precautions to protect

17 the health of the prisoners in the country jails.” Gray v. Cty. of Riverside, 5:13-cv-0444-VAP-

18 OPx (C.D. Cal. Apr. 14, 2020), Order at *5 (ECF 191).

19

Similarly, courts have already found that ICE’s current actions to date—which include

20 providing free soap, increasing sanitation supplies, screening staff for body temperature, and

21 encouraging good hygiene—do not satisfy Defendants’ constitutional duty to mitigate the risk

22 of harm to detainees in Mesa Verde and YCJ because they do not accommodate social

23 distancing. Doe, 2020 WL 1820667 at *11 (“The petitioner cannot meaningfully protect himself

24 at the Yuba County jail from the risks of his custody”); Bahena Ortuño, 2020 WL 1701724 at

25

26 40 CDC, Coronavirus Disease 2019 (COVID-19) Protect Yourself: Know How It Spreads,
https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html.
27 41 Vigilant hygiene and sanitation are not possible at Mesa Verde and YCJ. Supra § II.C.
42 ICE ERO COVID-19 Pandemic Response Requirements at 4, 13 (Apr. 10, 2020), available at
28 https://www.ice.gov/covid1.
20
PETITIONERS-PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR TEMPORARY RESTRAINING
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Case 3:20-cv-02731-VC Document 5 Filed 04/20/20 Page 27 of 31

1 *4 (ordering release of petitioners with medical vulnerabilities because they “cannot practice

2 meaningful social distancing in [Mesa Verde and YCJ]”).

3

The facts are clear: social distancing is the only meaningful measure to prevent the spread

4 of COVID-19 among the Plaintiff class. Social distancing is currently impossible in Mesa Verde

5 and YCJ. It will continue to be impossible in Mesa Verde and YCJ unless Defendants 6 significantly reduce the detained populations in each detention center. Mishori ⁋⁋ 22-23. The

7 law is also clear: because Defendants have failed to take known, available measures to mitigate

8 an obvious, substantial risk to Plaintiffs, the law is also clear: the conditions of Plaintiffs’

9 confinement violate due process. See Castro, 833 F.3d at 1071.

10

B. Plaintiffs Satisfy the Remaining Factors for Preliminary Relief

11

1. Exposure to a Lethal Virus Which Lacks Any Vaccine,

Treatment, or Cure Constitutes Irreparable Harm

12

13

“[T]he deprivation of constitutional rights ‘unquestionably constitutes irreparable

14 injury.’” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (quoting Elrod v. Burns, 427

15 U.S. 347, 373 (1976)). Irreparable harm exists where government actions threaten an

16 individual’s health. See M.R. v. Dreyfus, 663 F.3d 1100, 1111 (9th Cir. 2011), as amended by

17 697 F.3d 706 (9th Cir. 2012); Indep. Living Ctr. of S. Cal., Inc. v. Shewry, 543 F.3d 1047, 1050

18 (9th Cir. 2008). Likewise, continued immigration detention under “substandard physical

19 conditions, [and] low standards of medical care” is a form of irreparable harm supporting

20 injunctive relief. See Padilla v. ICE, 953 F.3d 1134, 1148 (9th Cir. 2020). Defendants cannot

21 dispute that all adults face a risk of serious illness upon contracting COVID-19. Greifinger Dec.

22 ¶ 8, that social distancing is the only effective measure to prevent the spread of COVID-19,

23 Hernandez Dec. ¶ 12, and that social distancing will not be possible inside Mesa Verde and YCJ

24 without reducing the detained population. Greifinger Dec. ¶¶ 33-35. “Inadequate health and

25 safety measures at a detention center cause cognizable harm to every detainee at that center.”

26 Hernandez v. Wolf, No. 20-cv-00617, slip op. at 8-9 (C.D. Cal. Apr. 1, 2020), citing Parsons,

27

28
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Case 3:20-cv-02731-VC Document 5 Filed 04/20/20 Page 28 of 31

1 754 F.3d at 679. The entire Plaintiff class is at risk or irreparable harm that can be remedied

2 only be depopulating Mesa Verde and YCJ.

3

2. Public Interest and Balance of Equities Weigh Heavily in

Plaintiffs’ Favor

4

5

Plaintiffs’ continued detention at current population levels “threatens the health of

6 detainees, staff and the broader population.” Greifinger Dec. ¶ 24. For these reasons, as in the

7 cases where this Court has already granted relief, the balance of equities falls squarely in the

8 Plaintiffs’ favor. See Doe, 2020 WL 1920667 at *11; Bent, 2020 WL 1812850 at *7; Bahena

9 Ortuño, 2020 WL 1701724 at *4.

10

As an initial matter, “[f]aced with . . . preventable human suffering, [the Ninth Circuit]

11 ha[s] little difficulty concluding that the balance of hardships tips decidedly in plaintiffs’ favor.”

12 Hernandez v. Sessions, 872 F.3d 976, 996 (9th Cir. 2017) (quotation omitted). Moreover, it is in

13 both ICE’s and the broader public interest to reduce the threat of an imminent COVID-19

14 outbreak at Mesa Verde and YCJ. ICE has an interest in preventing any potential spread of

15 COVID-19 in its detention facility, which may then affect guards, visitors, attorneys, and others

16 who may potentially interact with detainees. An outbreak of COVID-19 at Mesa Verde and YCJ

17 would doubtless put significant pressure on or exceed the capacity of local health infrastructure.

18 Hernandez Dec. ¶¶ 23 (stating that an outbreak at Mesa Verde or YCJ would likely “strain[] and

19 overload[]” nearby emergency medical facilities) As a judge of this Court explained:

20

[U]nder the highly unusual circumstances presented, i.e., a global pandemic of a

type not seen within recent memory, the public interest is served by the requested

21

injunction. Specifically, the public interest in promoting public health is served by

efforts to contain the further spread of COVID-19, particularly in detention

22

centers, which typically are staffed by numerous individuals who reside in nearby

communities. 23

24 Bahena Ortuño, 2020 WL 1701724 at *4. Accordingly, the balance of equities favors Plaintiffs.

25 To the extent ICE has public safety or flight concerns about any particular detainee, those can be

26 accounted for through the alternatives to detention discusses above. See supra at 17-18.

27

28
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Case 3:20-cv-02731-VC Document 5 Filed 04/20/20 Page 29 of 31

C. Justice Requires Comprehensive Relief for the Class 1

2

“[T]he appropriate capacity of a jail during a pandemic obviously differs enormously

3 from its appropriate capacity under ordinary circumstances.” Bent, 2020 WL 1812850 at *4,

4 quoting Basank, 2020 WL 1481503 at *6. There are hundreds of ICE detainees at Mesa Verde

5 and YCJ. Should the Court deny Plaintiffs’ motion for provisional class certification and a

6 temporary restraining order, dozens of individual Mesa Verde and YCJ detainees will likely file

7 claims for relief depending on their access to lawyers. Those individual petitions would

8 vindicate individual Petitioners through release, but, given the time-consuming nature of

9 individual habeas litigation, would leave hundreds of identically situated people detained under

10 conditions that violate their due process rights. They also would constitute an enormous tax on

11 this Court’s resources, will likely take too long and would, at best, result in constitutional rights

12 turning on the happenstance of whether a detainee has access to a lawyer, or on their language

13 skills and education level. That is fundamentally unfair. All of the Proposed Class Members are

14 at grave risk of COVID-19 infection under their current conditions of confinement, regardless of

15 whether their circumstances permit them to file individual claims. The appropriate remedy for

16 the system-wide crisis at Mesa Verde and YCJ is system-wide relief for all those whose rights

17 are being violated.

18

Litigation on behalf of the detainees in both facilities, which share in the jurisdiction of

19 the San Francisco ICE Field Office, also prevents absurd efforts that depopulate one facility but

20 result in increased populations in the other, like transfers between the facilities. During the

21 course of the COVID-19 pandemic, ICE has transferred detainees from YCJ to Mesa Verde,

22 thus reducing the population in one while increasing the other, and unjustifiably placing the

23 transferred detainee and detainees in the new facility at risk. Sanchez-Nunez ¶ 16 (detainee

24 transferred from YCJ to Mesa Verde immediately introduced into general population).

25

Another district court recently certified a class of ICE detainees held at two detention

26 centers in Bristol County, Massachusetts, recognizing that a systemic remedy was necessary “in

27 order to protect everyone [in the facility] from the impending threat of mass contagion.” See

28 Savino, 2020 WL 1703844 at *7 (emphasis added). That court issued an order requiring a

23 PETITIONERS-PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR TEMPORARY RESTRAINING
ORDER

Case 3:20-cv-02731-VC Document 5 Filed 04/20/20 Page 30 of 31

1 reduction of the population of those detention centers on an expedited, individualized basis. Id.

2 at 28.

3

Plaintiffs propose that this Court adopt a similar procedure, as set forth in the Proposed

4 Order, by which claims for relief are processed fast enough that there is a chance social

5 distancing could be established at Mesa Verde and YCJ before a serious outbreak occurs, but

6 also allows this Court to assess the individual circumstances of detainees at Mesa Verde and

7 YCJ and craft appropriate conditions of release. Of course, nothing in Plaintiffs’ Proposed Order

8 bars Defendants from implementing an alternative plan to rapidly reduce the populations to a

9 level where they could implement social distancing at both facilities.

10

ICE, however, has steadfastly refused to implement such a system to date— leaving no

11 doubt that this Court’s intervention is desperately needed. This Court should grant the

12 temporary restraining order, adopt Plaintiffs’ proposal for considering release requests on an

13 expedited basis, and keep that system in place until the Government takes the necessary steps to

14 cease the ongoing system wide Fifth Amendment violation at Mesa Verde and YCJ.

15 V. SECURITY

16

“Rule 65(c) invests the district court with discretion as to the amount of security required,

17 if any.” Jorgensen v. Cassiday, 320 F.3d 906, 919 (9th Cir. 2003) (internal quotation marks and

18 citation omitted). District courts routinely exercise this discretion to require no security in cases

19 brought by indigent and/or incarcerated people. See, e.g., Toussaint v. Rushen, 553 F. Supp.

20 1365, 1383 (N.D. Cal. 1983) (state prisoners); Orantes–Hernandez v. Smith, 541 F. Supp. 351,

21 385 n. 42 (C.D. Cal. 1982) (detained immigrants). This Court should do the same.

22

23

24

25

26

27

28
24 PETITIONERS-PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR TEMPORARY RESTRAINING
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Case 3:20-cv-02731-VC Document 5 Filed 04/20/20 Page 31 of 31

1 VI. CONCLUSION

2

This Court should grant Plaintiffs’ motion and order ICE to release people from Mesa

3 Verde and YCJ in order to facilitate social distancing.

4

5 Dated: April 20, 2020

Respectfully submitted,

6

/s/ William S. Freeman

William S. Freeman

7

Sean Riordan

Angélica Salceda

8

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION OF NORTHERN

9

CALIFORNIA

10 Bree Bernwanger
Tifanei Ressl-Moyer 11 Hayden Rodarte
LAWYERS’ COMMITTEE FOR 12 CIVIL RIGHTS OF
SAN FRANCISCO BAY AREA 13
Judah Lakin 14 Amalia Wille
LAKIN & WILLE LLP 15
Jordan Wells 16 Stephanie Padilla
Michael Kaufman 17 AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF SOUTHERN 18 CALIFORNIA

Manohar Raju Public Defender Matt Gonzalez Chief Attorney Francisco Ugarte Genna Ellis Beier Emilou H. MacLean OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO
Martin S. Schenker Timothy W. Cook Francisco M. Unger COOLEY LLP
Attorneys for Petitioners-Plaintiffs

19

20

21

22

23

24

25

26

27

28
25 PETITIONERS-PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR TEMPORARY RESTRAINING
ORDER

Case 3:20-cv-02731-VC Document 35 Filed 04/25/20 Page 1 of 18

1 WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org
2 SEAN RIORDAN (SBN 255752) sriordan@aclunc.org
3 ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org
4 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN
5 CALIFORNIA 39 Drumm Street
6 San Francisco, CA 94111 Telephone: (415) 621-2493
7 Facsimile: (415) 255-8437
8 Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page
9

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: 415-553-9319 Fax: 415-553-9810

10

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12

13 ANGEL DE JESUS ZEPEDA RIVAS,

BRENDA RUIZ TOVAR, LAWRENCE

14 MWAURA, LUCIANO GONZALO

MENDOZA JERONIMO, CORAIMA

15 YARITZA SANCHEZ NUÑEZ, JAVIER

ALFARO, DUNG TUAN DANG,

16

Petitioners-Plaintiffs,

DECLARATION OF SANDRA HERNANDEZ

17

v.

18 DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration
19 and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior
20 Official Performing the Duties of the Director of the U.S. Immigration and Customs
21 Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP,
22 INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,
23 Respondents-Defendants.
24

25

26

27
DECLARATION OF SANDRA HERNANDEZ
28

Case 3:20-cv-02731-VC Document 35 Filed 04/25/20 Page 2 of 18

1 BREE BERNWANGER* (NY SBN 5036397) MARTIN S. SCHENKER (SBN 109828)

bbernwanger@lccrsf.org

mschenker@cooley.com

2 TIFANEI RESSL-MOYER (SBN 319721)

COOLEY LLP

tresslmoyer@lccrsf.org

101 California Street, 5th Floor

3 HAYDEN RODARTE (SBN 329432)

San Francisco, CA 94111

hrodarte@lccrsf.org

Telephone: (415) 693-2000

4 LAWYERS’ COMMITTEE FOR

Facsimile: (415) 693-2222

CIVIL RIGHTS OF

5 SAN FRANCISCO BAY AREA

TIMOTHY W. COOK (Mass. BBO# 688688)*

131 Steuart St #400

tcook@cooley.com

6 San Francisco, CA 94105

FRANCISCO M. UNGER (Mass. BBO#

Telephone: (415) 814-7631

698807)*

7

funger@cooley.com

JUDAH LAKIN (SBN 307740)

COOLEY LLP

8 judah@lakinwille.com

500 Boylston Street

AMALIA WILLE (SBN 293342)

Boston, MA 02116

9 amalia@lakinwille.com

Telephone: (617) 937-2300

LAKIN & WILLE LLP

Facsimile: (617) 937-2400

10 1939 Harrison Street, Suite 420

Oakland, CA 94612

11 Telephone: (510) 379-9216

Facsimile: (510) 379-9219

12

JORDAN WELLS (SBN 326491)

13 jwells@aclusocal.org

STEPHANIE PADILLA (SBN 321568)

14 spadilla@aclusocal.org

AMERICAN CIVIL LIBERTIES UNION

15 FOUNDATION OF SOUTHERN CALIFORNIA

1313 West Eighth Street

16 Los Angeles, CA 90017

Telephone: (213) 977-9500

17 Facsimile: (213) 977-5297

18

Attorneys for Petitioners-Plaintiffs

*Motion for Admission Pro Hac Vice Forthcoming

19

20

21

22

23

24

25

26

27
DECLARATION OF SANDRA HERNANDEZ
28

Case 3:20-cv-02731-VC Document 35 Filed 04/25/20 Page 3 of 18

1

Declaration of Sandra Hernandez

2

1. I am the president and CEO of the California Health Care Foundation, which

3 works to improve health care systems in California. Prior to joining CHCF, I was CEO of The

4 San Francisco Foundation, which I led for 16 years. From 1994 to 1997, I served as Director of 5 Health for the City and County of San Francisco. I also co-chaired San Francisco’s Universal 6 Healthcare Council which designed Healthy San Francisco, an innovative health access program 7 for the uninsured.

8

2. In February 2018, I was appointed by Governor Jerry Brown to the Covered

9 California Board of Directors. In December 2019, I was appointed by Governor Gavin Newsom 10 to the Healthy California for All Commission. I served on President Bill Clinton’s Commission 11 on Consumer Protection and Quality in the Healthcare Industry, and on two Institute of 12 Medicine committees, including one on the Implementation of Antiviral Medication Strategies

13 for an Influenza Pandemic. Since 2017, I have been on the Planning Committee for the Future

14 of Health Services Research at the National Academy of Medicine. I also serve on the

15 University of California Regents Health Services Committee and the University of California-

16 Davis Gordon & Betty Moore School of Nursing National Advisory Committee.

17

3. I practiced at San Francisco General Hospital in the HIV/AIDS Clinic from 1984

18 to 2016 and was an assistant clinical professor at the UCSF School of Medicine. I am a graduate

19 of Yale University, the Tufts School of Medicine, and the certificate program for senior

20 executives in state and local government at Harvard University’s John F. Kennedy School of

21 Government.

22

4. Attached as Exhibit A is my curriculum vitae.

23 A. Respiratory Spread of COVID-19

24

5. The COVID-19 strain was isolated on January 7, 2020 after the first cases of the

25 2019 novel coronavirus (SAS-CoV-2) were identified in December 2019. The public health

26

1

27

DECLARATION OF SANDRA HERNANDEZ

28

Case 3:20-cv-02731-VC Document 35 Filed 04/25/20 Page 4 of 18

1 response in Wuhan, China, where the strain first appeared, was a mass quarantine of 59 million

2 people in Wuhan and surrounding cities in mid-January. By the end of January, the World

3 Health Organization declared the spread of COVID-19 an international public health

4 emergency.

5

6. Transmission of COVID-19 is largely through community contact via respiratory

6 spread. Droplets carrying the virus are transmitted primarily through hands and surfaces. As a

7 result, infection control must focus on reducing droplet spread. Studies have shown viral

8 shedding before symptom onset and in asymptomatic patients, suggesting that these individuals

9 are important in disease transmission.

10

7. Any publicly reported tally of reported cases and deaths from COVID-19 almost

11 certainly represents an undercount of infections given the constrained availability and

12 accessibility of COVID-19 testing. The overwhelming majority of cases, in the United States

13 and around the world, have resulted from community transmission.

14

8. About 5% of patients with COVID-19 will develop acute respiratory distress

15 syndrome (ARDS) and require intensive care. Approximately 20% of infected individuals may

16 need hospitalization for clinical reasons.

17 B. U.S. and California Public Health Response to COVID-19

18

9. Testing capacity for COVID-19 was slow to become available in the United

19 States. It is now increasing in California and across the country but remains insufficient to

20 respond to the need. As testing increases, it is expected that the number of confirmed cases will

21 increase markedly.

22

10. There is currently no treatment or vaccine for COVID-19. The clinical response

23 for most individuals with COVID-19 is limited to infection control. Patients with COVID-19

24 will require isolation and, depending on the severity of symptoms, hospitalization.

25

26

2

27

DECLARATION OF SANDRA HERNANDEZ

28

Case 3:20-cv-02731-VC Document 35 Filed 04/25/20 Page 5 of 18

1

11. Limiting the growth of new cases can be achieved by (1) limiting social contact

2 through social distancing and self-quarantine; (2) limiting the probability of infection during

3 social contacts through, i.e., ensuring personal hygiene and hand-washing, disinfecting

4 frequently touched surfaces and, where appropriate, wearing personal protective equipment; (3)

5 decreasing the infectious period through contact tracing, case isolation, and timely treatment if

6 medication is available; and ultimately (4) reducing population susceptibility to the virus

7 through vaccination.

8

12. At this point, given the lack of more widespread community testing, and the lack

9 of available treatments, the only option is mitigation. The most effective mitigation measures

10 are community-wide social distancing.

11

13. The public health response to COVID-19 in California has been extensive. The

12 primary goal of the response has been to limit the growth of new cases in order to flatten the

13 outbreak. If effective, this serves to protect limited health care resources and allow time for the

14 development of effective medication and vaccines. Without an intervention, the pandemic will

15 quickly overwhelm the capacity of the health systems to respond to both COVID-19 and other

16 medical needs.

17

14. To that end, on March 4, Governor Gavin Newsom declared a state of emergency

18 to make resources available, formalize emergency actions, and assist in state preparations for an 19 anticipated spread of COVID-19.1 He also used the state’s authority to make all medically 20 necessary screening and testing for COVID-19 free for 24 million more California residents.2

21 This includes waiving all fees for emergency room, urgent care or provider office visits related

22 to the screening and testing of COVID-19. The state also encouraged health plans to expand

23 telehealth services in order to increase screening and testing capacity.

24

1 See https://www.gov.ca.gov/wp-content/uploads/2020/03/3.4.20-Coronavirus-SOE-Proclamation.pdf (accessed
25 Mar. 21, 2020).
2 See https://www.cdph.ca.gov/Programs/OPA/Pages/NR20-012.aspx (accessed Mar. 21, 2020).
26

3

27

DECLARATION OF SANDRA HERNANDEZ

28

Case 3:20-cv-02731-VC Document 35 Filed 04/25/20 Page 6 of 18

1

15. In a March 15 proclamation, Governor Newsom advised all people over the age of

2 65 to shelter in place; ordered the closure of bars, nightclubs, wineries and brewpubs; decreased

3 restaurant capacity by half to permit social distancing; and severely restricted visitors to long-

4 term care facilities and hospitals. He also announced that 51% of school districts, which

5 represent 80-85% of all students in California, had closed for an extended period. He further

6 expressed the intent of public authorities to procure hotels and motels for homeless people in

7 order to decrease the risk of transmission for the unhoused.

8

16. On March 16, seven Bay Area counties issued the first “shelter in place” policies

9 in the country. Three other counties followed. Pursuant to these policies, individuals were

10 directed to severely limit activity, travel and business outside the home. Only essential services,

11 such as health care, police, grocery stores, and gas stations, were exempted. On March 19,

12 Governor Newsom expanded the “shelter in place” policy to the entire state.3 There are a

13 growing number of shelter in place policies across the country.

14

17. COVID-19 remains a serious public health threat in California and nationwide.

15 However, as of today, these public health measures adopted in California appear to have been

16 effective in “flattening the curve,” or reducing the rate of increase of infections and deaths, in

17 the state. Although California was one of the earliest states to experience a significant number

18 of cases and deaths, it now ranks relatively low among the states in terms of infections and

19 deaths as a percentage of the population.

20

18. There have been COVID-19 cases reported in Kern and Yuba Counties, the sites

21 of the Mesa Verde and Yuba immigration detention centers, respectively. As of April 18, 2020, 22 there are 610 confirmed cases in Kern County4 and 41 confirmed cases in Yuba and Sutter 23 Counties.5

24 3 See https://www.gov.ca.gov/wp-content/uploads/2020/03/3.19.20-attested-EO-N-33-20-COVID-19-HEALTH-
ORDER.pdf (accessed Mar. 22, 2020).
25 4 See https://www.bakersfield.com (accessed Apr. 18, 2020).
5 See https://www.yuba.org/coronavirus/ (accessed Apr. 18, 2020).
26

4

27

DECLARATION OF SANDRA HERNANDEZ

28

Case 3:20-cv-02731-VC Document 35 Filed 04/25/20 Page 7 of 18

1 C. 2

Effects on Public Health of a COVID-19 Outbreak in Prisons, Jails or Detention Facilities

3

19. Jails, prisons and detention facilities are places where individuals eat, sleep and

4 live in close quarters. These are the type of environments where infectious diseases can most

5 quickly spread. This is particularly true as respiratory hygiene within these facilities are limited.

6

20. Detention facilities have limited ability to allow for social distancing, and

7 therefore are unable to effect the kinds of public health response measures that appear to have

8 been effective to date in slowing the transmission of COVID-19.

9

21. In addition, detention facilities do not generally have the ability to isolate people

10 who are infected with COVID-19; to test all detainees in order to identify those with COVID-19

11 infection (whether they are symptomatic or asymptomatic); to provide the acute respiratory

12 support for individuals who manifest severe respiratory distress due to the infection.

13

22. Prisons, jails and detention facilities are not isolated from the community. They

14 are part of and rely on the broader community. People from the community—including staff,

15 contractors and vendors—come and go for various reasons. Detainees also need to be

16 transported to and from facilities to attend court hearings, for specialized medical care, or for

17 other reasons. There can also be rapid turnover of individuals in the facilities. With each entry

18 and exit, individuals can bring infectious disease into or out of the facilities.

19

23. Typically, immigration detention facilities are also in medically under-resourced

20 areas. This is true for Mesa Verde, in Bakersfield, California; and Yuba County Jail, in

21 Marysville, California. Marysville and Bakersfield are medically underserved. The immigration

22 detention facilities are not designed to handle specialized or intensive care. Thus, if an

23 individual detainee—or many detainees—need specialized care, they must rely on the medical

24 resources that are available in the community. In rural parts of California, these resources

25 quickly become strained and overloaded.

26

5

27

DECLARATION OF SANDRA HERNANDEZ

28

Case 3:20-cv-02731-VC Document 35 Filed 04/25/20 Page 8 of 18

1

24. Compelling evidence and current public health mitigation efforts would suggest

2 that all efforts to avoid a COVID-19 infection outbreak in detention centers would significantly

3 reduce the burden both on employees in those centers as well as the larger community in which

4 those centers reside such that the health care delivery system can cope with existing infections

5 better.

6

25. All counties are already burdened or expecting to be burdened by COVID-19,

7 hence the extraordinary public health interventions. But there would be more capacity to

8 respond if detained individuals are released to their homes—where there is less likelihood of

9 infection because there is greater possibility of social distancing.

10

26. Access to emergency medical services can be constrained because of the COVID-

11 19 related health burdens increasingly imposed on emergency health services. All individuals in

12 California have access to emergency medical care, regardless of their immigration status. The

13 barrier to emergency COVID-19 care for someone without lawful immigration status in

14 California would be more the capacity of the health system, and not their immigration status.

15

27. California’s rural hospitals would likely be unable to cope with an outbreak of

16 COVID-19 at a local immigration detention facility. This would limit the effectiveness of the

17 response for the individual infected and needing emergency care. But it would also affect others

18 in the community who might have unmet medical needs.

19

28. For these reasons, an outbreak of COVID-19 at immigration detention facilities

20 would have ripple effects for the community at large. Prison health is public health.

21 D. Benefits to Public Health from Release of Immigration Detainees

22

29. In my opinion, there is an opportunity to promote the public health in the

23 communities where the detention centers exist. It would be in the community’s best interests to

24 rapidly depopulate these congregate facilities in California.

25

26

6

27

DECLARATION OF SANDRA HERNANDEZ

28

Case 3:20-cv-02731-VC Document 35 Filed 04/25/20 Page 9 of 18

1

30. For the reasons elaborated above, and the reasons which are motivating

2 unprecedented public health directives at the local and state levels, it is my expert opinion that it

3 is in the interest of the public health of the State of California for immigration detention

4 facilities to release detainees into the community. This is true so long as the individuals have a

5 home to go to and they are willing and able to abide by local guidelines and directives.

6

31. It is consistent with the public health guidance and priorities of the State to

7 encourage the release of detainees. The unnecessary detention of individuals in congregate

8 facilities in the midst of a pandemic has risks to the individual and to the broader public.

9

32. The current recommendations of health care providers in the state are for

10 individuals to rest and recuperate at home, including if they have been tested and/or exposed to

11 COVID-19, so long as they are not experiencing severe symptoms. Under current guidelines,

12 individuals who are exposed to a COVID-19 patients ought to be tested for COVID-19,

13 quarantined for 14 days, and assessed for COVID-19 infection. Therefore, individuals who have

14 been exposed to COVID-19, including in the detention centers, ought to quarantined where they

15 are not in a congregate living situation and not exposing others to potential infection. This is

16 true for individuals who have exposure to COVID-19 in the detention centers.

17

33. Even if the aggressive public health interventions across California ultimately

18 result in a stabilizing or improving infection rate, this would not necessarily eliminate the need

19 to decrease significantly the populations in the detention facilities. This is for several reasons.

20 First, the heightened risk of infectious spread inside the detention facilities would continue

21 because of the unique characteristics of congregate settings, even if things improved somewhat

22 outside the detention facilities. Second, the fact that the detention centers would remain as

23 hotspots, or potential hotspots, would pose a threat both to those detained and also to the health

24 of the public in the facilities and beyond. In some ways, the detention centers pose a unique

25 threat to the public’s health after there is stabilization outside of the detention centers in the

26

7

27

DECLARATION OF SANDRA HERNANDEZ

28

Case 3:20-cv-02731-VC Document 35 Filed 04/25/20 Page 10 of 18

1 community, because an outbreak in the detention centers would threaten to reignite the spread

2 of the pandemic when there has been some containment. Absent widespread testing in the

3 community, which does not currently exist in California, it is also impossible to know current

4 case rates and trends in new case infections. For these reasons, the loosening of social

5 distancing cannot happen overnight; there will not be an on-off switch even for counties and the

6 state. The detention centers will continue to pose a risk for those detained and for the broader

7 public for some time after social distancing is relaxed in the areas around the detention centers.

8

34. Thus, it is consistent with state and local guidance for the general population to

9 immediately depopulate detention centers as they are extremely high-risk for exacerbating the

10 COVID-19 epidemic.

11

Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true

12 and correct.

13

14 Executed this 20th day in April 2020 in, San Francisco, California.

15

16

Sandra R. Hernández, MD

17

18

19

20

21

22

23

24

25

26

8

27

DECLARATION OF SANDRA HERNANDEZ

28

Case 3:20-cv-02731-VC Document 35 Filed 04/25/20 Page 11 of 18
Sandra R. Hernández, MD President & CEO California Health Care Foundation
Dr. Sandra R. Hernández became president and CEO of the California Health Care Foundation in January 2014. CHCF is an independent, nonprofit philanthropy with assets of more than $700 million, headquartered in Oakland, California, and dedicated to improving California’s health care system so that all Californians — especially those with low-incomes — can get the care they need.
Prior to joining CHCF, Dr. Hernández was CEO of The San Francisco Foundation, which she led for 16 years. She previously served as director of public health for the City and County of San Francisco.
Dr. Hernández is an assistant clinical professor at the University of California, San Francisco, School of Medicine and a leadership council member of the UCSF Institute for Global Health Sciences. She practiced at San Francisco General Hospital in the AIDS clinic from 1984 to 2016. She is a graduate of Yale University, the Tufts School of Medicine, and the certificate program for senior executives in state and local government at Harvard University's John F. Kennedy School of Government.
Originally from Tucson, Arizona, she spent much of her childhood in rural New Mexico with her grandparents. There she came to honor and appreciate her Mexican culture and its intrinsic values of community and public service. Her love of science and math was nourished by her father, a selfeducated engineer.
Dr. Hernández serves as a board member of Covered California, a commissioner of the Healthy California for All Commission, a trustee of the Reno-based Western Asbestos Settlement Trust, and as an independent director of First Republic Bank. She is a member of the Public Policy Institute of California's Statewide Leadership Council, the United States of Care Founder’s Council, the Well Being Trust Advisory Council, and the National Academy of Medicine's planning committee for convening around the future of health services research.
Her earlier affiliations include President Clinton's Commission on Consumer Protection and Quality in the Healthcare Industry, and two Institute of Medicine committees: one on the Consequences of Uninsurance, and another on the Implementation of Antiviral Medication Strategies for an Influenza Pandemic.
Dr. Hernández is a former board member of Grantmakers In Health, the Council on Foundations, the California Managed Risk Medical Insurance Board, the Yale University President's Council, the UCSF Chancellor's Advisory Board, and the UCSF Clinical and Translational Science Institute Advisory Board. She co-chaired San Francisco's Universal Healthcare Council, which designed Healthy San Francisco, an innovative health access program for the uninsured.

Case 3:20-cv-02731-VC Document 35 Filed 04/25/20 Page 12 of 18
Sandra R. Hernández, MD President & CEO California Health Care Foundation

Education
Medical Licensure Medical Training Language Competency Current Employment

M.D., Tufts University School of Medicine, 1984, Boston, MA B.A., Psychology, Yale University, 1979, New Haven, CT W. K. Kellogg Fellowship John F. Kennedy School of Government Local and State Executive Program Certificate Honorary Doctorate, California Institute of Integral Studies, 2006, San Francisco, CA
Medical Board of California Physician and Surgeon, 1986–Present
Residency, Primary Care/Internal Medicine San Francisco General Hospital University of California, San Francisco, 1984–1987
English and Spanish
California Health Care Foundation Oakland, CA January 2014–Present

Case 3:20-cv-02731-VC Document 35 Filed 04/25/20 Page 13 of 18

Employment Experience

Chief Executive Officer The San Francisco Foundation September 1997–December 2013

Assistant Clinical Professor School of Medicine University of California, San Francisco July 1992–Present

Director of Health City and County of San Francisco Department of Public Health January 1994–August 1997

County Health Officer and Deputy Director Community Public Health Services and AIDS San Francisco Department of Public Health November 1992–January 1994

Acting Medical Director Community Public Health Services San Francisco Department of Public Health September 1991–November 1992

Director, AIDS Office San Francisco Department of Public Health February 1990–November 1992

Branch Chief, Health Resources and Services AIDS Office San Francisco Department of Public Health 1988–1990

Case 3:20-cv-02731-VC Document 35 Filed 04/25/20 Page 14 of 18
Current Appointments and Public Service
Healthy California for All Commission Commissioner December 2019–Present
United States of Care Founder’s Council March 2018–Present
Well Being Trust Advisory Council March 2018–Present
Covered California Board of Directors February 2018–Present
National Academy of Medicine Planning Committee for the Future of Health Services Research July 2017–Present
Board of Regents, University of California Health Services Committee March 2016–Present
West Coast Healthcare Executive Summit Member 2014–Present
Public Policy Institute of California Statewide Leadership Council April 2011–Present
First Republic Bank Board of Directors August 2010–Present
Institute for Global Health Sciences Advisory Council University of California, San Francisco 2009–present
Western Asbestos Settlement Trust Appointed Trustee California Superior Court April 2004–Present

Academic Appointments

Clinical and Translational Science Institute Clinical Research Center

Case 3:20-cv-02731-VC Document 35 Filed 04/25/20 Page 15 of 18

Past Appointments and Public Service

External Advisory Board University of California, San Francisco 2007–2017
San Francisco General Hospital Faculty, Department of Medicine Medical Attending AIDS Clinic (Ward 86) 1987–2016
Pediatric Leadership for the Underserved Advisory Council University of California, San Francisco 2006–2016
Program in Medical Education for the Urban Underserved Advisory Council University of California, San Francisco 2006–2016
Chancellor’s Advisory Board University of California, San Francisco 2010–2014
Campus Facilities Improvement Association University of California, San Francisco 2008–2012
Betty Irene Moore School of Nursing at UC Davis National Advisory Council 2016–2019
Health IT Strategic Planning and Innovation Workgroup Member 2014–2017
Yale University University Council Member 2011–2016
Blue Shield of California Foundation Board of Directors 2010–2014

Case 3:20-cv-02731-VC Document 35 Filed 04/25/20 Page 16 of 18
The Center for Investigative Reporting Board of Directors 2011–2014
Federal Reserve Bank of San Francisco Economic Advisory Councilmember 2011–2014
National Academy of Sciences Institute of Medicine Committee on Implementation of Antiviral Medication Strategies for an Influenza Pandemic 2007–2008
Council on Foundations Board of Directors Committee on Inclusiveness, Ethics and Practices 2006–2009
Co-Chair, Mayor’s Universal Healthcare Council San Francisco Health Access Plan Mayor Gavin Newsom 2006
Chair, Mayor’s Blue-Ribbon Committee on the Future Location of San Francisco General Hospital Mayor Gavin Newsom 2005
National Academy of Sciences Institute of Medicine Committee on the Consequences of the Uninsured 2003–2004
Lucile Packard Children’s Hospital Board of Directors and Chair of Public Policy Committee 2003–2010
Corporation for Supportive Housing Board of Directors, Chair Governance Committee 1997–2008
Blackbaud, Inc. Board of Directors and Audit Committee 2002–2006
California State Senate-Appointed Member Managed Risk Medical Insurance Board 1998–2007

Case 3:20-cv-02731-VC Document 35 Filed 04/25/20 Page 17 of 18

Honors / Awards

Kaiser Permanente Member, National Advisory Council on Professional and Organizational Ethics 1997–2003
Grantmakers in Health Board of Directors 1998–2003
Presidential Appointee President Clinton’s Commission on Quality and Consumer Protection in the Health Industry Co-Chair, Subcommittee on Roles and Responsibilities of Public/Private Care Purchasers and Oversight Organizations 1997–1998
San Francisco Health Plan Founding Chair, Board of Directors 1995–1998
Scientific Advisory Committee on Antiviral Therapy Federal Drug Administration 1995–1998
San Francisco Business Times Most Admired CEO 2019
University of California, San Francisco Alumni Excellence Award 2015
Openhouse, San Francisco Adelman/Gurevitch Founders Award 2015
Hispanic Business Magazine Woman of the Year 2008
Tufts Medicine Magazine Cover 2008
San Francisco Planning and Urban Research Association Silver Spur Award 2008

Case 3:20-cv-02731-VC Document 35 Filed 04/25/20 Page 18 of 18
Women Healthcare Executives Woman of the Year 2007 Modern Healthcare Magazine One of Ten Healthcare Leaders for the Next Century: Up and Comers 1997 League of Women Voters of San Francisco Women Who Could Be President Award 1993

 
 Case 3:20-cv-02731-VC Document 6 Filed 04/20/20 Page 1 of 19

1 WILLIAM S. FREEMAN (SBN 82002)

MANOHAR RAJU (SBN 193771)

wfreeman@aclunc.org

Public Defender

2 SEAN RIORDAN (SBN 255752)

MATT GONZALEZ (SBN 153486)

sriordan@aclunc.org

Chief Attorney

3 ANGÉLICA SALCEDA (SBN 296152)

GENNA ELLIS BEIER (CA SBN 300505)

asalceda@aclunc.org

genna.beier@sfgov.org

4 AMERICAN CIVIL LIBERTIES UNION

EMILOU H. MACLEAN (CA SBN 319071)

FOUNDATION OF NORTHERN

emilou.maclean@sfgov.org

5 CALIFORNIA

FRANCISCO UGARTE (CA SBN 241710)

39 Drumm Street

francisco.ugarte@sfgov.org

6 San Francisco, CA 94111

OFFICE OF THE PUBLIC DEFENDER

Telephone: (415) 621-2493

SAN FRANCISCO

7 Facsimile: (415) 255-8437

555 Seventh Street

San Francisco, CA 94103

8 Attorneys for Petitioners-Plaintiffs

Direct: 415-553-9319

Additional Counsel Listed on Following Page Fax: 415-553-9810

9

10

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12

13 ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUIZ TOVAR, LAWRENCE
14 MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA
15 YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,
16
Petitioners-Plaintiffs, 17
v. 18
DAVID JENNINGS, Acting Director of the 19 San Francisco Field Office of U.S. Immigration
and Customs Enforcement; MATTHEW T. 20 ALBENCE, Deputy Director and Senior
Official Performing the Duties of the Director 21 of the U.S. Immigration and Customs
Enforcement; U.S. IMMIGRATION AND 22 CUSTOMS ENFORCEMENT; GEO GROUP,
INC.; NATHAN ALLEN, Warden of Mesa 23 Verde Detention Facility,

PLAINTIFFS-PETITIONERS’ NOTICE OF MOTION AND MOTION FOR PROVISIONAL CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

24

Respondents-Defendants.

25

26

27

28

NOTICE OF MOTION, MOTION AND MEMO IN SUPPORT OF MOTION FOR PROVISIONAL CLASS CERTIFICATION

Case 3:20-cv-02731-VC Document 6 Filed 04/20/20 Page 2 of 19

1 BREE BERNWANGER* (NY SBN 5036397) MARTIN S. SCHENKER (SBN 109828)

bbernwanger@lccrsf.org 2 TIFANEI RESSL-MOYER (SBN 319721)

mschenker@cooley.com COOLEY LLP

tresslmoyer@lccrsf.org 3 HAYDEN RODARTE (SBN 329432)

101 California Street, 5th Floor San Francisco, CA 94111

hrodarte@lccrsf.org 4 LAWYERS’ COMMITTEE FOR

Telephone: (415) 693-2000 Facsimile: (415) 693-2222

CIVIL RIGHTS OF 5 SAN FRANCISCO BAY AREA

TIMOTHY W. COOK (Mass. BBO# 688688)*

131 Steuart St #400 6 San Francisco, CA 94105

tcook@cooley.com FRANCISCO M. UNGER (Mass. BBO#

Telephone: (415) 814-7631 7

698807)* funger@cooley.com

JUDAH LAKIN (SBN 307740) 8 judah@lakinwille.com

COOLEY LLP 500 Boylston Street

AMALIA WILLE (SBN 293342) 9 amalia@lakinwille.com

Boston, MA 02116 Telephone: (617) 937-2300

LAKIN & WILLE LLP 10 1939 Harrison Street, Suite 420

Facsimile: (617) 937-2400

Oakland, CA 94612 11 Telephone: (510) 379-9216

Facsimile: (510) 379-9219 12

JORDAN WELLS (SBN 326491) 13 jwells@aclusocal.org

STEPHANIE PADILLA (SBN 321568) 14 spadilla@aclusocal.org

AMERICAN CIVIL LIBERTIES UNION 15 FOUNDATION OF SOUTHERN CALIFORNIA

1313 West Eighth Street 16 Los Angeles, CA 90017

Telephone: (213) 977-9500 17 Facsimile: (213) 977-5297

18

Attorneys for Petitioners-Plaintiffs

*Motion for Admission Pro Hac Vice Forthcoming

19

20

21

22

23

24

25

26

27

28

NOTICE OF MOTION, MOTION AND MEMO IN SUPPORT OF MOTION FOR PROVISIONAL CLASS CERTIFICATION

Case 3:20-cv-02731-VC Document 6 Filed 04/20/20 Page 3 of 19

1

TABLE OF CONTENTS

2

Page

3 NOTICE OF MOTION AND MOTION ....................................................................................... 1

4 MEMORANDUM OF POINTS AND AUTHORITIES ............................................................... 1

5

I. INTRODUCTION ................................................................................................. 1

6

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

7

A. Public Health Officials Call for Social Distancing. ................................... 3

8

B. YCJ and Mesa Verde Are Crowded, Unsafe, and Highly

Dangerous to All. ....................................................................................... 4

9 C. Proposed Class Definition.......................................................................... 5

10 D. Proposed Class Representatives................................................................. 5

11 III. THE COURT SHOULD CERTIFY THE PROPOSED CLASS........................... 6

12 A. The Proposed Class Meets the Requirements of Rule 23(a)...................... 7

13 1. The Proposed Class Meets the Numerosity Requirement.............. 7

14 2. The Proposed Class Meets the Commonality Requirement. ......... 8

15 3. The Proposed Class Representatives Meet the Typicality

16

Requirement. ................................................................................ 10

17

4. The Proposed Class Representatives and Proposed Class

Counsel Meet the Adequacy Requirement. ................................. 11

18 B. The Proposed Class Meets the Requirements of Rule 23(b)(2)............... 12

19 IV. CONCLUSION.................................................................................................... 13

20

21

22

23

24

25

26

27

28

i

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Case 3:20-cv-02731-VC Document 6 Filed 04/20/20 Page 4 of 19

1

TABLE OF AUTHORITIES

2

Page(s)

3 Cases

4 Abdullah v. U.S. Sec. Assocs., Inc.,

5

731 F.3d 952 (9th Cir. 2013) .....................................................................................................9

6 Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997).................................................................................................................11

7 Bahena Ortuño v. Jennings,

8

3:20-cv-02064-MMC, Mem. & Order, ECF No. 38 (N.D. Cal. Apr. 8, 2020)..........................4

9 Carrillo v. Schneider Logistics, Inc.,

10

No. 11-cv-8557, 2012 WL 556309 (C.D. Cal. Jan. 31, 2012) ...................................................7

11

Castillo v. Barr, No. CV 20-00605 THJ, 2020 WL 1502864 (C.D. Cal. Mar. 27, 2020) ..................................10

12 Civil Rights Educ. & Enf’t Ctr. v. Hosp. Props. Trust,

13

317 F.R.D. 91 (N.D. Cal. 2016).................................................................................................7

14 Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) .................................................................................................11
15

16

Hum v. Dericks, 162 F.R.D. 628 (D. Haw. 1995).................................................................................................7

17 Jiminez v. Wolf,

18

18-cv-10225-MLW, ECF No. 507-1 (D. Mass. Mar. 26, 2020)................................................5

19 Kincaid v. City of Fresno,

244 F.R.D. 597 (E.D. Cal. 2007) ...............................................................................................7 20

Kuang v. U.S. Dep’t of Def.,

21

340 F. Supp. 3d 873 (N.D. Cal. 2018) .....................................................................................11

22 Lyon v. U.S. Immigration & Customs Enf’t,

23

300 F.R.D. 628 (N.D. Cal. 2014).............................................................................................10

24 Meyer v. Portfolio Recovery Assocs., LLC,

707 F.3d 1036 (9th Cir. 2012) ...................................................................................................7 25

Parsons v. Ryan,

26

754 F.3d 657 (9th Cir. 2014) .........................................................................................9, 10, 13

27

28

ii

NOTICE OF MOTION, MOTION AND MEMO IN SUPPORT OF MOTION FOR PROVISIONAL CLASS

CERTIFICATION

Case 3:20-cv-02731-VC Document 6 Filed 04/20/20 Page 5 of 19

1 Pole v. Estenson Logistics, LLC,

No. CV 15-07196 DDP(EX), 2016 WL 4238635 (C.D. Cal. Aug. 10, 2016) ...........................8 2

Rannis v. Recchia,

3

380 Fed. App’x 646 (9th Cir. 2010) ..........................................................................................8

4 Reid v. Donelan,

5

297 F.R.D. 185 (D. Mass. 2014)................................................................................................8

6 Robidoux v. Celani,

987 F.2d 931 (2d Cir. 1993).......................................................................................................8 7

Rodriguez v. Hayes,

8

591 F.3d 1105 (9th Cir. 2009) .................................................................................8, 11, 12, 13

9 Saravia v. Sessions,

10

280 F. Supp. 3d 1168 (N.D. Cal. 2017) .............................................................................7, 8, 9

11 Savino v. Souza,

No. CV 20-10617-WGY, 2020 WL 1703844 (D. Mass. Apr. 8, 2020) ......................2, 8, 9, 11

12

Unknown Parties v. Johnson,

13

163 F. Supp. 3d 630 (D. Ariz. 2016) ...................................................................................9, 10

14 Wal-Mart Stores, Inc. v. Dukes,

15

564 U.S. 338 (2011)...................................................................................................................9

16 Walters v. Reno, 145 F.3d 1032 (9th Cir. 1998) .................................................................................................12

17 Xochihua-Jaimes v. Barr,

18

No. 18-71460, 2020 WL 1429877 (9th Cir. Mar. 24, 2020)......................................................5

19 Court Rules

20 Fed. R. Civ. P. 23(a) .............................................................................................................. passim

21 Fed. R. Civ. P. 23(b) ........................................................................................................2, 6, 12, 13

22 Fed. R. Civ. P. 23(g) ......................................................................................................................12

23 Other Authorities

24

Bob Egelko, Coronovirus hunger strike at immigration lockup? ICE says no, but

25

California detainees say otherwise, San Francisco Chronicle, Apr. 13, 2020 ..........................5

26 Cal. Executive Order N-33-20 .........................................................................................................4 27

28

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1 CDC, How to Protect Yourself & Others, https://www.cdc.gov/coronavirus/2019ncov/prevent-getting-sick/how-covid-spreads.html...................................................................3
2

7A Mary J. Kane, Fed. Prac. & Proc. Civ. § 1763 (3d ed. 2018) ...................................................9 3

4

Masslive.com, April 15, 2020 https://www.masslive.com/coronavirus/2020/04/coronavirus-spread-testing-

5

shows-stunning-asymptomatic-covid-19-rate-at-boston-homeless-shelter.html .......................3

6 5 Moore’s Federal Practice § 23.24 (2020) ..................................................................................10

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

NOTICE OF MOTION AND MOTION

2

PLEASE TAKE NOTICE that, as soon as they may be heard, Plaintiffs-Petitioners will

3 and hereby do move, pursuant to Fed. R. Civ. P. 23 and Civil L. R. 7-1, for provisional

4 certification of a class of all civil immigration detainees at Yuba County Jail (“YCJ”) and Mesa

5 Verde ICE Processing Facility (“Mesa Verde”), including two subclasses: (1) all civil

6 immigration detainees at YCJ and (2) all civil immigration detainees at Mesa Verde. This motion

7 is supported by the following Memorandum of Points and Authorities, by the Petition for Writ of

8 Habeas Corpus and Complaint for Injunctive and Declaratory Relief, and by declarations of each

9 of the Plaintiffs, or their attorneys on their behalf, and various experts, all of which are filed

10 contemporaneously.

11

MEMORANDUM OF POINTS AND AUTHORITIES

12 I. INTRODUCTION

13

Plaintiffs, hundreds of civil detainees in YCJ and Mesa Verde, seek provisional class

14 certification so the Court can resolve an issue of common fact and law: whether Defendants’

15 refusal or inability to implement safe social distancing during an unprecedented pandemic

16 violates their Fifth Amendment rights.

17

Medical experts and public officials agree the only effective way to protect against

18 contracting COVID-19 is social distancing. But that is not possible at YCJ and Mesa Verde.

19 Instead, all members of this highly vulnerable class eat and sleep in close proximity to one

20 another, lack basic sanitation, and live each day unnecessarily exposed to a life-threatening

21 disease. While social distancing is now ubiquitous in all corners of American society, and

22 government authorities and courts have been ordering reductions in prison and jail populations

23 throughout the country, Defendants’ facilities remain an aberration, and the proposed class

24 therefore remains at grave risk of infection.

25

Plaintiffs seek provisional certification for all civil immigration detainees at YCJ and

26 Mesa Verde, including two subclasses: (1) all civil immigration detainees at YCJ (“YCJ

27 Subclass”); and (2) all civil immigration detainees at Mesa Verde (“Mesa Verde Subclass”)

28

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1 (together, “the proposed class”). The proposed class comfortably meets the requirements of

2 Federal Rules of Civil Procedure 23(a) and 23(b). First, the class is sufficiently numerous: over

3 250 individuals are currently detained at Mesa Verde, approximately 150 detainees are held at

4 YCJ, and Defendants continue to transfer more detainees into these facilities. Second, all class

5 members are bound together by common questions of fact and law. Chief among these is

6 whether in the face of the COVID-19 pandemic, the conditions of confinement at YCJ and Mesa

7 Verde place the detainees at imminent risk of serious or fatal infection in violation of their

8 constitutional rights. Third and fourth, the proposed class representatives are proper because

9 their claims are typical of absent class members and because the proposed class representatives

10 and proposed class counsel will adequately represent the class. Finally, Defendants have acted

11 and refused to act on grounds that are generally applicable to the class as a whole by creating and

12 maintaining conditions that put the entire class at imminent risk of contracting COVID-19. One

13 injunction will provide class-wide relief.

14

Class-wide injunctive relief is necessary to protect the lives and constitutional rights of

15 this vulnerable population. As one federal court recently observed in granting provisional

16 certification to a class of immigrant detainees challenging unconstitutional detention conditions

17 in a nearly identical case:

18

At 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

19

critical mass of [d]etainees—such that social distancing will be possible and all those

held in the facility will not face a constitutionally violative substantial risk of serious

20

harm. Crucial to the Court’s determination is the troubling fact that even perfectly

healthy detainees are seriously threatened by COVID-19.

21

22 Savino v. Souza, No. CV 20-10617-WGY, 2020 WL 1703844, at *7 (D. Mass. Apr. 8, 2020)

23 (citations and quotations omitted). The same is true here. All detainees are at risk, and

24 provisional class certification would afford injunctive relief for all class members. The Court

25 should grant provisional class certification.

26 II. FACTUAL BACKGROUND

27

Lives are at stake. COVID-19 is a highly infectious viral contagion spreading at an

28

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1 exponential rate across the United States, including Yuba County and Kern County. The Center

2 for Disease Control and Prevention (CDC) advises that COVID-19 is “thought to spread mainly

3 from person-to-person,” “primarily between people who are in close contact within one another

4 (within about 6 feet),” “through respiratory droplets produced when an infected person coughs,

5 sneezes, or talks.” See https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-

6 covid-spreads.html. COVID-19 is highly contagious because “droplets can land in the mouths or

7 noses” of those nearby or “inhaled into the lungs” via airborne particles, or people can become

8 infected “by touching a surface or object that has the virus on it.” Id. Critically, the CDC has

9 recognized that “COVID-19 may be spread by people who are not showing symptoms.” Id.

10 Indeed, as one example of the exponential rate of asymptomatic transmission, the Boston Health

11 Care for the Homeless Program recently tested every resident at a Boston homeless shelter for

12 coronavirus. Program doctors were “stunned” by the results: 146 of the 397 (36%) people tested 13 were positive but asymptomatic.1

14

A. Public Health Officials Call for Social Distancing.

15

As the CDC has advised, “the best way to prevent illness is to avoid being exposed to this

16 virus.” https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html.

17 Recognizing the grave danger posed to those living in close quarters, health experts and public

18 officials have called for social distancing. See, e.g., Decl. of Dr. Robert B. Greifinger Filed in 19 Support of Motion for TRO at ¶¶ 6, 18, 30-31.2 The State of California has issued an order

20 directing all persons living in the state to “stay home” and to “at all times practice social

21 distancing.” See Cal. Executive Order N-33-20. As this Court has recognized, COVID-19

22 infections are rapidly increasing in confined spaces, including in a number of jails and prisons.

23 Bahena Ortuño v. Jennings, Mem. & Order, 3:20-cv-02064-MMC (N.D. Cal. Apr. 8, 2020), ECF

24 No. 38 at 3. YCJ and Mesa Verde are no exception to this risk.

25

26 1 See John Karalis, Coronavirus spread: Testing shows ‘stunning’ asymptomatic COVID-19 rate at Boston homeless
shelter, Masslive.com, April 15, 2020 https://www.masslive.com/coronavirus/2020/04/coronavirus-spread-testing-

27

shows-stunning-asymptomatic-covid-19-rate-at-boston-homeless-shelter.html. 2 Declarations indicating “Filed in Support of Motion for TRO” refer to declarations filed in support of Plaintiffs’

28 Motion for Temporary Restraining Order, which Plaintiffs filed concurrently with this motion.

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1

B. YCJ and Mesa Verde Are Crowded, Unsafe, and Highly Dangerous to All.

2

While the rest of the country shuts down to take protective social distancing measures, it

3 is business as usual at YCJ and Mesa Verde. As of April 2, 2020, there were 286 civil detainees

4 at Mesa Verde living in close proximity to one another, as well as numerous staff coming in and

5 out of the facility each day. Supplemental Decl. Erik Bonnar, Bahena Ortuño, (filed Apr. 2,

6 2020), ECF No. 29-1, at ¶ 2 (“Bonnar Decl.”). As of that same date, there were 150 detainees at

7 YCJ, as well as county inmates and staff. Supplemental Decl. Polly Kaiser, Bahena Ortuño (filed

8 Apr. 2, 2020), ECF No. 29-2 at ¶ 2 (“Kaiser Decl.”). Notwithstanding the government guidance

9 to depopulate prisons, Defendants continue to funnel more detainees into these facilities. See

10 Decl. of Dung Tang Dang Filed in Support of Motion for TRO (“Dang Decl.”) at ¶ 14 (“New

11 people have come into Dorm C [in Mesa Verde] recently who are coughing and sound sick.”);

12 Decl. of Lawrence Kuria Mwaura (“Mwaura Decl.”) at ¶ 11 (describing new detainee transferred

13 into YCJ from Santa Rita Jail).

14

Despite the pandemic threat, Defendants continue to board detainees in bunk beds and

15 close quarters, serve communal meals, and force shared bathroom spaces. See Decl. of Brenda

16 Rubi Ruiz Tovar (“Ruiz Tovar Decl.”) at ¶ 14. Defendants have failed to provide detainees with

17 personal protective equipment or coronavirus testing. See, e.g., id. at ¶ 21 (“They did not give us

18 gloves, masks, or any protective gear. I asked for a mask when I went to medical to cover my

19 cough and the staff said that, unless you have a fever, they cannot give them out.”); see id. at ¶

20 11 (“ICE has not told us anything about the test or whether we will be tested.”). As a result,

21 detainees live in constant fear for their safety. Id. at ¶ 22.

22

Members of the proposed class have pled with Defendants to change these unsafe

23 conditions in increasingly frantic and desperate ways. The conditions have become so dire that

24 detainees at Mesa Verde organized a hunger strike to protest the lack of hygiene products, dearth

25 of proper testing, and continued foot traffic in and out of the facility. See Decl. of Javier Alfaro

26

27

28

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1 Filed in Support of TRO (“Alfaro Decl.”) at ¶ 25.3 Each day the conditions at YCJ and Mesa

2 Verde remain unchanged, class members grow more likely to contract COVID-19.

3

As courts around the country have noted, “social distancing is difficult or impossible” in

4 detention settings, and “being in jail enhances risk” of contracting COVID-19. See, e.g., Jiminez

5 v. Wolf, 18-cv-10225-MLW (D. Mass. Mar. 26, 2020), ECF 507-1, at 4 (ordering release of

6 immigrant detainee in the midst of the COVID-19 pandemic); see also Xochihua-Jaimes v. Barr,

7 No. 18-71460, 2020 WL 1429877, at *1 (9th Cir. Mar. 24, 2020) (sua sponte ordering immediate

8 release of ICE detainee “[i]n light of the rapidly escalating public health crisis, which public

9 health authorities predict will especially impact immigration detention centers”). Indeed, courts

10 around the country have explained the health risks—to inmates, guards, and the community at

11 large—posed by closely confined prison populations. These facilities are no exception, and

12 absent the Court’s intervention, all proposed class members will remain at risk of contracting this

13 deadly virus.

14

C. Proposed Class Definition.

15

Plaintiffs request that the Court provisionally certify the following proposed class for the

16 purpose of issuing the preliminary injunction Plaintiffs seek: All civil immigration detainees at

17 YCJ and Mesa Verde.

18

Additionally, Plaintiffs seek provisional certification for the following two subclasses:

19

(1) YCJ Subclass: All civil immigration detainees at YCJ.

20

(2) Mesa Verde Subclass: All civil immigration detainees at Mesa Verde.

21

D. Proposed Class Representatives.

22

Plaintiffs propose seven class representatives: Brenda Ruiz Tovar, Lawrence Mwaura,

23 Luciano Gonzalo Mendoza Jeronimo, Angel de Jesus Zepeda Rivas, Javier Alfaro, Dung Tuan

24 Dang, and Coraima Yaritza Sanchez Nuñez. Each proposed class representative shares the same

25 injury as absent class members and seeks the same relief as the entire class.

26
27 3 See also Bob Egelko, Coronavirus hunger strike at immigration lockup? ICE says no, but California detainees say
otherwise, San Francisco Chronicle, Apr. 13, 2020, https://www.sfchronicle.com/news/article/Coronavirus-hunger-
28 strike-at-immigration-lockup-15197579.php.

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1

(1) YCJ Subclass: Proposed class representatives Brenda Ruiz Tovar, Lawrence

2 Mwaura, Luciano Gonzalo Mendoza Jeronimo, and Angel de Jesus Zepeda Rivas are each

3 detained at YCJ. Each person lives in dangerous conditions that expose them to COVID-19 in

4 violation of their Fifth Amendment rights, and each seeks identical relief as other members of the

5 proposed class and YCJ Subclass. See Ruiz Tovar Decl. at ¶¶ 4, 14-22; Mwaura Decl. at ¶¶ 10-

6 16; Decl. Luciano Gonzalo Mendoza Jeronimo (“Mendoza Jeronimo Decl.”) at ¶¶ 7-18. Decl. of

7 Angel de Jesus Zepeda Rivas (“Zepeda Rivas Decl.”) at ¶¶ 14-30. Each proposed class

8 representative understands and agrees to their responsibility to prosecute this action on behalf of

9 all class members. See Ruiz Tovar Decl. at ¶ 25; Mwaura Decl. at ¶ 45; Mendoza Jeronimo Decl.

10 at ¶¶ 20-21; Zepeda Rivas Decl. at ¶ 33.

11

(2) Mesa Verde Subclass: Proposed class representatives Dung Tuan Dang, Javier

12 Alfaro, and Coraima Yaritza Sanchez Nuñez are each detained at Mesa Verde. Like their YCJ

13 Subclass counterparts, each proposed class representative suffers from conditions at Mesa Verde

14 that violate their Fifth Amendment rights, and each class representative seeks a class-wide

15 injunction. See Dang Decl. at ¶¶ 2, 10-20; Alfaro Decl. at ¶¶ 14-23, 29-32; Decl. of Coraima

16 Yaritza Sanchez Nuñez Filed in Support of Motion for TRO (“Sanchez Nuñez Decl.”) at ¶¶ 11-

17 18. And like the YCJ Subclass representatives, each proposed class representative understands

18 and agrees to represent the interests of the class and the Mesa Verde Subclass. See Dang Decl. at

19 ¶ 25; Alfaro Decl. at ¶ 34; Sanchez Nuñez Decl. at ¶ 20.

20 III. THE COURT SHOULD CERTIFY THE PROPOSED CLASS.

21

When plaintiffs meet the four prerequisites in Rule 23(a), federal courts in the Ninth

22 Circuit “routinely grant provisional class certification for purposes of entering [preliminary]

23 injunctive relief” under Rule 23(b)(2). Carrillo v. Schneider Logistics, Inc., No. 11-cv-8557,

24 2012 WL 556309, at *9 (C.D. Cal. Jan. 31, 2012) (citing Baharona-Gomez v. Reno, 167 F.3d

25 1228, 1233 (9th Cir. 1999)); see also Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036,

26 1041 (9th Cir. 2012) (finding district court did not abuse its discretion by provisionally certifying

27 class for purpose of entering preliminary injunction); Saravia v. Sessions, 280 F. Supp. 3d 1168,

28

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1 1202 (N.D. Cal. 2017) (provisionally certifying class of detained immigrant children), aff’d 905

2 F.3d 1137 (9th Cir. 2018). Because the proposed class meets the requirements of Rule 23(a) and

3 a single injunction would afford a class-wide remedy, the Court should provisionally certify the

4 proposed class.

5

A. The Proposed Class Meets the Requirements of Rule 23(a).

6

The proposed class amply meets each requirement of Rule 23(a): numerosity,

7 commonality, typicality, and adequacy. See Fed. R. Civ. P. 23(a)(1-4).

8

1. The Proposed Class Meets the Numerosity Requirement.

9

Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is

10 impracticable.” Fed. R. Civ. P. 23(a)(1). “There is no magic number” for determining when the

11 numerosity requirement has been satisfied,” and “[c]ourts have certified classes with as few as

12 thirteen members.” Hum v. Dericks, 162 F.R.D. 628, 634 (D. Haw. 1995). Plaintiffs need only

13 “show some evidence of or reasonably estimate the number of class members.” Kincaid v. City

14 of Fresno, 244 F.R.D. 597, 601 (E.D. Cal. 2007) (citation omitted). Where, as here, a plaintiff

15 “seek[s] only injunctive and declaratory relief, the numerosity requirement is relaxed and

16 plaintiffs may rely on [] reasonable inference[s] . . . that the number of unknown [members] is

17 sufficient to make joinder impracticable.” Civil Rights Educ. & Enf’t Ctr. v. Hosp. Props. Trust,

18 317 F.R.D. 91, 100 (N.D. Cal. 2016) (internal quotation marks omitted) (citing Sueoka v. United

19 States, 101 Fed. App’x. 649, 653 (9th Cir. 2004)).

20

The proposed class is sufficiently numerous. There are at least 400 detainees at YCJ and

21 Mesa Verde. See Bonnar Decl. at ¶ 2 (286 detainees at Mesa Verde as of April 2, 2020); Kaiser

22 Decl. at ¶ 2 (150 detainees at YCJ). That number satisfies the numerosity requirement. See

23 Rannis v. Recchia, 380 Fed. App’x 646, 651 (9th Cir. 2010) (“In general, courts find the

24 numerosity requirement satisfied when a class includes at least 40 members.”); see also Saravia,

25 280 F. Supp. 3d at 1202 (provisionally certifying class of 16 ICE detainees); Savino¸ 2020 WL

26 1703844, at *1, 9 (provisionally certifying class of 148 detainees housed at two detention

27 facilities). Moreover, Defendants continue to cram more detainees into the facilities on a weekly

28

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1 basis. See, e.g., Dang Decl. at ¶ 12 (“New people have come into Dorm C [in Mesa Verde]

2 recently who are coughing and sound sick.”); see also Mwaura Decl. at ¶ 11 (describing new

3 detainee recently transferred to YCJ). Because new detainees continue to be admitted to YCJ and

4 Mesa Verde, the current number of detainees is “merely the floor for this numerosity inquiry . . .

5 .” Reid v. Donelan, 297 F.R.D. 185, 189 (D. Mass. 2014) (certifying class of immigration

6 detainees).

7

Furthermore, “the [lack of] ability to individually bring suit counsels in favor of finding

8 numerosity.” Pole v. Estenson Logistics, LLC, No. CV 15-07196 DDP(EX), 2016 WL 4238635,

9 at *5 (C.D. Cal. Aug. 10, 2016); see also Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993)

10 (holding that because putative class members “are also economically disadvantaged” this factor

11 weighed in favor of class certification). Most proposed class members cannot file individual

12 lawsuits because they lack counsel and cannot file pro se. Moreover, absent class certification,

13 the Court will be flooded with dozens, perhaps hundreds, of individual claims—enough to strain

14 judicial resources, while nonetheless leaving many vulnerable individuals without relief.

15 Rodriguez v. Hayes, 591 F.3d 1105, 1123 (9th Cir. 2009).

16

2. The Proposed Class Meets the Commonality Requirement.

17

Rule 23(a) next requires that there be “questions of law or fact common to the class.” Fed.

18 R. Civ. P. 23(a)(2). Commonality requires plaintiffs to demonstrate that their claims depends

19 upon a “common contention . . . [whose] truth or falsity will resolve an issue that is central to the

20 validity of each one of the claims in one stroke.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338,

21 350 (2011). Commonality can be satisfied by a single common issue. See, e.g., Abdullah v. U.S.

22 Sec. Assocs., Inc., 731 F.3d 952, 957 (9th Cir. 2013) (Commonality “does not . . . mean that

23 every question or law or fact must be common to the class; all that Rule 23(a)(2) requires is a

24 single significant question of law or fact.”) (citations and internal quotation marks omitted).

25

When a plaintiff is seeking injunctive and declaratory relief, commonality is present

26 “where the lawsuit challenges a system-wide practice or policy that affects all of the putative

27 class members.” Unknown Parties v. Johnson, 163 F. Supp. 3d 630, 635 (D. Ariz. 2016) (quoting

28

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1 Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001)). Indeed, suits for injunctive or

2 declaratory relief “by their very nature often present common questions satisfying Rule

3 23(a)(2).” 7A Mary J. Kane, Fed. Prac. & Proc. Civ. § 1763 (3d ed. 2018); see also Saravia, 280

4 F. Supp. 3d at 1203 (finding that class-wide preliminary injunctive relief related to ICE’s policy

5 or practice was “amenable to common answers”).

6

The proposed class meets the commonality requirement because all class members are

7 subject to the identical constellation of practices: Defendants’ unwillingness or inability to

8 implement proper social distancing measures at YCJ and Mesa Verde in the face of a dangerous

9 pandemic. Of course, some class members may be more at risk for hospitalization or death

10 because of age or preexisting comorbidities if they contract COVID-19, but all class members

11 are at risk of contracting COVID-19. See Parsons v. Ryan, 754 F.3d 657, 675 (9th Cir. 2014)

12 (“Where the circumstances of each particular class member vary but retain a common core of

13 factual or legal issues with the rest of the class, commonality exists.”). As another court recently

14 held in certifying a nearly identical provisional class, “To be sure, the harm of a COVID-19

15 infection will generally be more serious for some petitioners than others. Yet it cannot be denied

16 that the virus is gravely dangerous to us all.” Savino, 2020 WL 1703844, at *7.

17

The proposed class presents common questions amenable to common answers: (1)

18 Whether the proposed class members are able to adequately practice social distancing at YCJ and

19 Mesa Verde at all times, and whether the proposed class members are in fact adequately socially

20 distancing at YCJ and Mesa Verde; and (2) whether the failure to institute social distancing

21 during a deadly pandemic subjects the proposed class to a heightened risk of illness and death in

22 violation of proposed class members’ Fifth Amendment Due Process rights.

23

The proposed class presents a more straightforward case than other classes that have

24 met the commonality requirement. See, e.g., Lyon v. U.S. Immigration & Customs Enf’t, 300

25 F.R.D. 628, 642 (N.D. Cal. 2014) (“[T]he overarching claim is that ICE detainees in these

26 facilities are denied effective access to telephones and that this impedes communications

27 with counsel, family, and others . . . . The fact that the precise practices among the three

28

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1 facilities may vary does not negate the application of a constitutional floor equally applicable

2 to all facilities.”); see also Unknown Parties, 163 F. Supp. 3d at 636-40 (finding

3 commonality satisfied when proposed class challenged various conditions of confinement at

4 eight Customs and Border Patrol facilities near Tucson, Arizona). Here, there is one

5 overarching issue: whether ICE officials have violated Plaintiffs’ Fifth Amendment rights by

6 exposing them “to a serious, communicable disease . . . that is more than very likely to cause

7 a serious illness.” Castillo v. Barr, No. CV 20-00605 THJ (AFMx), 2020 WL 1502864, at *5

8 (C.D. Cal. Mar. 27, 2020) (citing Helling v. McKinney, 509 U.S. 25, 32 (1993)). That issue

9 is common to all class members and thus deserves class-wide resolution.

10

3. The Proposed Class Representatives Meet the Typicality Requirement.

11

Rule 23(a)(3) requires that “the claims . . . of the representative parties [be] typical of the

12 claims . . . of the class.” The typicality requirement “is not highly demanding” because “the

13 claims need only share the same essential characteristics and need not be identical.” 5 Moore’s

14 Federal Practice § 23.24 (2020). “The test of typicality is ‘whether other members [of the class]

15 have the same or similar injury, whether the action is based on conduct which is not unique to

16 the named plaintiffs, and whether other class members have been injured by the same course of

17 conduct.’” Parsons, 754 F.3d at 685 (9th Cir. 2014) (citation omitted). Typicality is satisfied

18 “when each class member’s claim arises from the same course of events, and each class member

19 makes similar legal arguments to prove the defendant’s liability.” Rodriguez, 591 F.3d at 1124

20 (quotations omitted).

21

The proposed class meets the typicality requirement because the proposed class

22 representatives and proposed class members are all civil detainees at YCJ and Mesa Verde, and

23 their claims all arise from Defendants’ failure to implement adequate social distancing in

24 response to COVID-19. That some class members may be older than others or have preexisting

25 health conditions that would exacerbate the severity of COVID-19 does not defeat typicality

26 because all class members are at risk of contracting COVID-19 due to Defendants’ actions.

27 Savino, 2020 WL 1703844, at *7 (“[T]he admittedly significant variation among the Detainees

28

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1 does not defeat commonality or typicality.”). Indeed, typicality is present here because the

2 proposed class representatives and absent class members will suffer the same harm: the

3 significant and avoidable risk of serious illness or death. See, e.g., Kuang v. U.S. Dep’t of Def.,

4 340 F. Supp. 3d 873, 892 (N.D. Cal. 2018), vacated on other grounds, 778 Fed. App’x 418 (9th

5 Cir. 2019) (finding typicality requirement met when “named Plaintiffs and putative class

6 members have all suffered, and continue to suffer, the same general injury”).

7

4. The Proposed Class Representatives and Proposed Class Counsel Meet

the Adequacy Requirement.

8

9

Rule 23(a)(4) requires that the “representative parties will fairly and adequately protect

10 the interests of the class.” The adequacy inquiry asks: “(1) do the named plaintiffs and their

11 counsel have any conflicts of interest with other class members and (2) will the named plaintiffs

12 and their counsel prosecute the action vigorously on behalf of the class?” Hanlon v. Chrysler

13 Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). This requirement “tend[s] to merge with the

14 commonality and typicality criteria of Rule 23(a).” Amchem Prods., Inc. v. Windsor, 521 U.S.

15 591, 626, n.20 (1997) (internal quotation marks omitted).

16

The proposed class representatives meet both aspects of adequacy. First, there is no

17 conflict between the named plaintiffs and other class members. All have suffered the same injury

18 and all seek the same relief. See Kuang, 340 F. Supp. 3d at 892 (finding adequacy requirement in

19 part because “named Plaintiffs have a similar alleged injury as the rest of the proposed class.”).

20 Second, the proposed class representatives will vigorously prosecute this action on behalf of all

21 class members. See supra at Section II-D, p. 5-6.

22

Furthermore, the proposed class is represented by experienced counsel from the

23 American Civil Liberties Union of Northern California, American Civil Liberties Union of

24 Southern California, Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, the

25 San Francisco Public Defenders Office, Lakin & Wille LLP, and Cooley LLP. Counsel has

26 extensive experience litigating class actions and other complex federal court litigation, including

27 civil rights class actions on behalf of imprisoned immigrants. See Declaration of William S.

28

11
NOTICE OF MOTION, MOTION AND MEMO IN SUPPORT OF MOTION FOR PROVISIONAL CLASS CERTIFICATION

Case 3:20-cv-02731-VC Document 6 Filed 04/20/20 Page 18 of 19

1 Freeman; Declaration of Jordan Wells; Declaration of Bree Bernwanger; Declaration of Genna

2 Brier; Declaration of Judah Lakin; and Declaration of Martin S. Schenker. And class counsel is

3 supported by a team of passionate, capable lawyers. For these reasons, class counsel also meet

4 the requirements of Fed. R. Civ. P. 23(g).

5

B. The Proposed Class Meets the Requirements of Rule 23(b)(2).

6

In addition to satisfying the requirements under Rule 23(a), the proposed class should be

7 certified because it meets the requirements of Rule 23(b)(2). Under Rule 23(b)(2), a class action

8 may be maintained if “the party opposing the class has acted or refused to act on grounds that

9 apply generally to the class, so that final injunctive relief or corresponding declaratory relief is

10 appropriate respecting the class as a whole.”

11

“Rule [23](b)(2) was adopted in order to permit the prosecution of civil rights actions.”

12 Walters v. Reno, 145 F.3d 1032, 1047 (9th Cir. 1998). As a result, “[i]t is sufficient to meet the

13 requirements of Rule 23(b)(2) [when] class members complain of a pattern or practice that is

14 generally applicable to the class as a whole.” Rodriguez, 591 F.3d at 1125-26 (citation omitted)

15 (certifying class of immigrant detainees under Rule 23(b)(2) because “all class members [sought]

16 the exact same relief as a matter of statutory or, in the alternative, constitutional right”); id. at

17 1125 (“The fact that some class members may have suffered no injury or different injuries from

18 the challenged practice does not prevent the class from meeting the requirements of Rule

19 23(b)(2).”).

20

The proposed class is a quintessential Rule 23(b)(2) class. Defendants have engaged in

21 unconstitutional behavior towards the entire class. Defendants control the conditions of every

22 class member’s confinement. And every class member is at imminent risk of being infected by

23 COVID-19 as a result of those conditions. An injunction or declaration will provide relief on a

24 class-wide basis. Accordingly, certification under Rule 23(b)(2) is appropriate. See Parsons, 754

25 F.3d at 689 (finding declaratory and injunctive relief proper as to class where “every [member] is

26 allegedly suffering from the same (or at least a similar) injury and that injury can be alleviated

27 for every class member by uniform changes in . . . policy and practice”); see also Rodriguez,

28

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NOTICE OF MOTION, MOTION AND MEMO IN SUPPORT OF MOTION FOR PROVISIONAL CLASS CERTIFICATION

Case 3:20-cv-02731-VC Document 6 Filed 04/20/20 Page 19 of 19

1 591 F.3d at 1126 (certifying Rule 23(b)(2) class of immigrant detainees where “relief from a

2 single practice is requested by all class members”).

3 IV. CONCLUSION.

4

The proposed class meets the requirements of Rule 23(a) and Rule 23(b)(2). The Court

5 should provisionally certify the proposed class.

6 Dated: April 20, 2020

Respectfully submitted,

7

/s/ William S. Freeman

William S. Freeman

8

Sean Riordan

Angélica Salceda

9

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION OF NORTHERN

10

CALIFORNIA

11 Bree Bernwanger Tifanei Ressl-Moyer
12 Hayden Rodarte LAWYERS’ COMMITTEE FOR
13 CIVIL RIGHTS OF SAN FRANCISCO BAY AREA
14 Judah Lakin
15 Amalia Wille LAKIN & WILLE LLP
16 Jordan Wells
17 Stephanie Padilla Michael Kaufman
18 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN
19 CALIFORNIA

Manohar Raju Public Defender Matt Gonzalez Chief Attorney Francisco Ugarte Genna Ellis Beier Emilou H. MacLean OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO
Martin S. Schenker Timothy W. Cook Francisco M. Unger COOLEY LLP
Attorneys for Petitioners-Plaintiffs

20

21

22

23

24

25

26

27

28

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NOTICE OF MOTION, MOTION AND MEMO IN SUPPORT OF MOTION FOR PROVISIONAL CLASS CERTIFICATION

Case 3:20-cv-02731-VC Document 6-1 Filed 04/20/20 Page 1 of 11

1 WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org
2 SEAN RIORDAN (SBN 255752) sriordan@aclunc.org
3 ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org
4 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN
5 CALIFORNIA 39 Drumm Street
6 San Francisco, CA 94111 Telephone: (415) 621-2493
7 Facsimile: (415) 255-8437
8 Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page
9

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.orga GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: 415-553-9319 Fax: 415-553-9810

10

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12

13 ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUIZ TOVAR, LAWRENCE
14 MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA
15 YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,
16 Petitioners-Plaintiffs,
17 v.
18 DAVID JENNINGS, Acting Director of the
19 San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T.
20 ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director
21 of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND
22 CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa
23 Verde Detention Facility,

CASE NO.
DECLARATION OF ANGEL ZEPEDA

24

Respondents-Defendants.

25

26

27

28

DECLARATION OF ANGEL ZEPEDA

Case 3:20-cv-02731-VC Document 6-1 Filed 04/20/20 Page 2 of 11

1 BREE BERNWANGER* (NY SBN 5036397) MARTIN S. SCHENKER (SBN 109828)

bbernwanger@lccrsf.org

mschenker@cooley.com

2 TIFANEI RESSL-MOYER (SBN 319721)

COOLEY LLP

tresslmoyer@lccrsf.org

101 California Street, 5th Floor

3 HAYDEN RODARTE (SBN 329432)

San Francisco, CA 94111

hrodarte@lccrsf.org

Telephone: (415) 693-2000

4 LAWYERS’ COMMITTEE FOR

Facsimile: (415) 693-2222

CIVIL RIGHTS OF

5 SAN FRANCISCO BAY AREA

TIMOTHY W. COOK (Mass. BBO# 688688)*

131 Steuart St #400

tcook@cooley.com

6 San Francisco, CA 94105

FRANCISCO M. UNGER (Mass. BBO#

Telephone: (415) 814-7631

698807)*

7

funger@cooley.com

JUDAH LAKIN (SBN 307740)

COOLEY LLP

8 judah@lakinwille.com

500 Boylston Street

AMALIA WILLE (SBN 293342)

Boston, MA 02116

9 amalia@lakinwille.com

Telephone: (617) 937-2300

LAKIN & WILLE LLP

Facsimile: (617) 937-2400

10 1939 Harrison Street, Suite 420

Oakland, CA 94612

11 Telephone: (510) 379-9216

Facsimile: (510) 379-9219

12

JORDAN WELLS (SBN 326491)

13 jwells@aclusocal.org

STEPHANIE PADILLA (SBN 321568)

14 spadilla@aclusocal.org

AMERICAN CIVIL LIBERTIES UNION

15 FOUNDATION OF SOUTHERN CALIFORNIA

1313 West Eighth Street

16 Los Angeles, CA 90017

Telephone: (213) 977-9500

17 Facsimile: (213) 977-5297

18

Attorneys for Petitioners-Plaintiffs

19

*Motion for Admission Pro Hac Vice Forthcoming

20

21

22

23

24

25

26

27

28

DECLARATION OF ANGEL ZEPEDA RIVAS

Case 3:20-cv-02731-VC Document 6-1 Filed 04/20/20 Page 3 of 11

1

DECLARATION OF ANGEL DE JESUS ZEPEDA RIVAS

2 I, Angel de Jesus Zepeda Rivas, declare the following based on my personal knowledge:

3

1. I make this declaration from my personal knowledge and, if called to testify to these facts,

4 could and would do so competently.

5

2. My full name is Angel de Jesus Zepeda Rivas. I was born in El Salvador and I am 32

6 years old. I have been in the United States since 2008. I have a two-year-old US citizen daughter. Her

7 mother and I have been in a committed relationship for several years but are not married. I have a good

8 work history. I worked for over two years for My Move.

9

3. I have been detained at Yuba County Jail in Marysville, CA since November 21, 2019,

10 when ICE came to my house to detain me. I have not been given a bond by ICE, and the judge cannot

11 grant me bond until I have been detained for 6 months.

12

4. I am in withholding only proceedings, as my prior removal in absentia prevents me from

13 seeking asylum. I passed my reasonable fear interview, as the asylum officer found I have a reasonable

14 fear of torture. From around 2002-2004, I endured sexual and physical abuse by Barrio 18 gang

15 members who wanted me to sell drugs for them at my Christian school. They called me “marica,” a

16 derogatory word meaning “faggot.” My friends and I refused, so they subjected us to sexual and

17 physical abuse. We tried to tell the police, but the police did not help us. I fled to the United States.

18 Because I didn’t report a change in my address properly, I was ordered removed in absentia. I was only

19 17 years old. I was deported from the United States in 2007. Upon returning to El Salvador, I was again

20 threatened and beaten up. I was also assaulted by police. I have a head injury and still suffer headaches

21 from one of the attacks. Afraid for my life, I returned to the United States in 2008.

22

5. I have no criminal convictions and to my knowledge have never been charged with a

23 crime. In late summer 2018, I was arrested because I happened to be near the scene of a bar fight. I was

24 released quickly and there were no charges brought against me.

25

6. I have type 2 diabetes. I was diagnosed around early 2019, prior to being detained at

26 Yuba. I was taking medication and had my diabetes under control at the time I was detained. When I

27 got to Yuba, I told the medical staff that I had diabetes and was taking medicine to control it. They told

28
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DECLARATION OF ANGEL ZEPEDA

Case 3:20-cv-02731-VC Document 6-1 Filed 04/20/20 Page 4 of 11

1 me they would keep me under medical review. For about five days after that, they took my blood from

2 my finger, and my blood sugar levels were okay. But I think that was because I had been taking

3 medication to control the diabetes for so long.

4

7. About two weeks after I was detained, my body started feeling really hot and I got

5 constant nose bleeds. Those were symptoms I’d experienced before I was diagnosed with diabetes. I

6 went to see medical staff, and I remember that they pricked my finger to test my blood sugar. I

7 remember it was high then, and they tested it for the next two days, and it started to come down. I could

8 see the number on the little machine that reads your blood sugar levels. They told me not to eat any

9 sweets, like the desserts they give for food or sell at the commissary. But I wasn’t given any

10 medication.

11

8. From December and February, I would sometimes feel hot in my body and feel really

12 dizzy. In February, I remember that I saw medical staff and my blood sugar levels were high. They told

13 me I could exercise or take medicine. I remember my doctor outside of Yuba telling me that exercising

14 could help, so I decided to try exercising. They didn’t give me any more information, just to have a

15 daily exercise routine. But they didn’t give me a routine to follow. I tried to do exercise. I would run up

16 and down the stairs, and with some other detainees, we’d do pushups and sit ups. The most exercise

17 you can do is run up and down the stairs, because there isn’t any other space. The space on the roof

18 where we go for “outside” time is very small, and there isn’t enough room to run or really do exercise. I

19 was doing this exercise routine about three days a week until everyone in my pod got sick. Now, I can’t

20 exercise because my feet are so swollen and painful. It is also really hard to do exercise when you feel

21 depressed.

22

9. Since February 28, 2020, I have submitted at least ten requests to see the doctor. I have

23 saved copies of many of these requests, but have thrown some away. On March 5, 2020, I asked to see

24 a doctor because I was feeling hot all through my body and feeling a tingling sensation and numbness,

25 all the way from my feet through my chest. Two or three days later, I saw the medic, they took my

26 blood pressure and I was sent back to my pod. On March 20, I requested again to see a medic because

27 the heat in my body and tingling hadn’t gone away, and on top of that, I felt like I couldn’t catch my

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DECLARATION OF ANGEL ZEPEDA

Case 3:20-cv-02731-VC Document 6-1 Filed 04/20/20 Page 5 of 11

1 breath and felt a stabbing sensation in my chest. I was really scared. A few days later, the medical staff

2 took my blood pressure again and sent me back to my Pod. I don’t remember them telling me what my

3 blood pressure was at that time.

4

10. For the past two weeks or so, my feet have become so swollen that I am currently unable

5 to walk normally. This swelling starts at my knees all the way to my feet. I also continue to feel like my

6 body is hot, and like I have tingling and numbness all over my body. I requested to see the doctor again

7 on April 9th, and the medical staff said they would do an x-ray. I told them that I hadn’t injured myself

8 and that these were symptoms of my diabetes. I believe they drew my blood then, and the day after I

9 saw medical staff, they told me I am pre-diabetic and gave me Metformin. But the pain and swelling in

10 my feet didn’t go away, so I asked to see the doctor again on April 15th. Instead, they took me for x-

11 rays. I haven’t gotten results from the x-rays.

12

11. Since I came to Yuba, I have also been diagnosed with hypertension. This was first

13 discovered about two weeks ago, when they took my blood pressure and it was over 160. Since then,

14 across a number of tests, it hasn’t gone below 160. Medical staff have told me this means I have high

15 blood pressure. I remember a recent reading of my blood pressure was 163, and I am having trouble

16 breathing. Sometime around April 12th I began taking medication for hypertension. On the morning of

17 April 18, my blood pressure was taken again and it was 185. They took it again and it was 176. Medical

18 staff gave me a pill that they said would help bring my blood pressure down. They said it was related to

19 my swollen feet. Later in the afternoon, they took my blood pressure again, and it had gone up to 190.

20 I’m really scared. I was feeling a lot of pressure in my chest, and I’m worried I’m going to have a heart

21 attack. My feet are still swollen. I don’t understand how, when I came to Yuba I had no symptoms and

22 I was feeling healthy, and now five months later, I have high blood pressure and so much pain.

23

12. When they take my blood pressure, I see them taking another person’s blood pressure

24 right before me, and then they don’t clean the cuff, and take my blood pressure. And that’s directly on

25 my skin.

26

13. I also have allergies and take medication for that. At times, my allergies make it difficult

27 to breathe, cause me to sneeze, give me a very runny nose, cause a very thick mucus in my sinuses, or

28
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DECLARATION OF ANGEL ZEPEDA

Case 3:20-cv-02731-VC Document 6-1 Filed 04/20/20 Page 6 of 11

1 make me very congested. I have been taking allergy medication at Yuba since around the middle of

2 April, but it hasn’t helped yet. I also suffer from recurring frequent headaches and sometimes

3 migraines, due to an injury from when I was physically assaulted in El Salvador. The headaches get

4 very bad at times and it’s really difficult. I have been given ibuprofen and Tylenol at Yuba, but neither

5 help with the pain. All the noise here inside make it worse. I spend a lot of time lying down to try to

6 relax but the pain doesn’t go away.

7

14. At Yuba County Jail, I am housed in C Pod. Before C Pod, I was in B Pod. They are set

8 up in the same way. There are about 37 people here, and it’s really hard to get away from people and

9 find calm. It is impossible at any time during the day or night for me to be socially distant from other

10 people. The place is just too small for so many people.

11

15. When I arrived, this unit was full, with 50 people. There are two levels in C Pod. On the

12 first floor are all the bunk beds. The beds are less than a meter apart. Right now where I’m sleeping, I

13 am on the top bunk, and since I moved into a corner, there is one bunk bed that is empty next to me,

14 and then in the next bed there is someone else. But that is rare. All the lower bunks are taken and

15 almost everyone is sleeping with someone in the bed next to them. Although I’m on the top bunk and

16 there isn’t someone in the bed next to me on the top bunk, there is someone on the bottom bunk below

17 me. He is about one meter away from me. There are 25 bunk beds in total, and all of the bottom bunks

18 are occupied because many people have injuries or pain that keeps them from getting in the top bunk.

19 So they are assigned a lower bunk.

20

16. On the second floor are the tables, where we eat and gather. The tables each seat 5 or 6

21 people each and are at most 1.5 meters apart. The tables are made of metal and are bolted to the floor.

22 The metal benches are also affixed to the floor and you cannot move them. Even without 50 people,

23 there aren’t enough tables for us to be able to sit far enough apart. We are sitting right next to each

24 other, without much distance. Some people now eat in their beds. But every time I go to eat, I am

25 within two meters of other people.

26

27

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DECLARATION OF ANGEL ZEPEDA

Case 3:20-cv-02731-VC Document 6-1 Filed 04/20/20 Page 7 of 11

1

17. I know the distance between the tables and beds because we’ve measured it. There are

2 people in C Pod who have worked in construction, and so we’ve counted the distance between the

3 tables and the beds using our feet.

4

18. We get soap every two or three days. They are tiny bars of soap. It’s not enough. They

5 give us a cleaning liquid to wash the bathrooms, which is really harsh and smells very strong of

6 chemicals. Since we don’t have enough soap, we use that to wash our hands. When we use that on our

7 bare hands, it burns.

8

19. We have to do all the cleaning. Daily, we sweep, mop, and clean the bathrooms. The

9 showers are disgusting. Even if when we use the disinfectant, and clean them every day, they’re still

10 dirty. But we don’t get any protection to clean, not even gloves for the harsh chemicals.

11

20. Staff wear own masks and gloves, but me and other detainees do not have access to them.

12 When we have asked for gloves and masks, they have only said “maybe tomorrow,” but we never get

13 them.

14

21. There are only two urinals. There is often a line to use the urinal, especially in the

15 mornings when we first wake up. And people are one after another in line. That’s the same at night,

16 when everyone needs to use the sinks to brush our teeth. It feels impossible to maintain distance.

17

22. We haven’t been told anything about the virus. About three weeks ago, they put up a flier

18 that says there is free soap. Then they put up a poster about the symptoms of COVID-19 but no one has

19 told us about the virus or what we should do. About two weeks ago, a Sargent came by C Pod. There

20 were four of us sitting at a table on the second floor. He looked at us and said, “guys, keep your

21 distance. Six feet,” and then casually walked away. We don’t have anywhere else to be. We see on the

22 news that we are supposed to maintain six feet of distance, but this was the first time that anyone at the

23 facility had told us.

24

23. When we go to see the medical staff, they call our names and we walk about 30 steps

25 down a hallway to the pharmacy. We’re one after another as we walk. They open the door and we sit in

26 another hallway that they use as a waiting room. The chairs used to be right next to each other, but on

27 April 18th for the first time, the chairs were spaced farther apart. On that day, there were three of us that

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Case 3:20-cv-02731-VC Document 6-1 Filed 04/20/20 Page 8 of 11

1 went to the clinic from C Pod, and there were two other people from B pod. The Sargent came by, with

2 some other officials I didn’t recognize. They had masks and they were spraying what smelled like

3 bleach all over. They shut us in a small room while they sprayed. There was a mattress on the floor and

4 some sheets. That room is probably three meters by three meters, and the five of us were in there for

5 maybe five minutes, without any protection like masks.

6

24. To deliver our medication, staff come twice a day, in the morning and again in the

7 afternoon. There are probably 15 people taking medications. In the morning, they come early, maybe

8 around 6am. They call our names, and we get up to get our medications. Before, we would all get up

9 and stand in a line, one after another, to get our medication. About a week ago, there was some kind of

10 argument between the officer and a detainee, so now they call us up by name, one-by-one. In the

11 afternoon, when they come to deliver medications, we basically have get in line. With their masks on

12 and everyone awake and talking, its much harder to hear them, so we have to gather closer together.

13

25. They have started taking our temperatures every morning. I think this has been happening

14 for at least the past two weeks. It’s in the early morning. They wake us up, and everyone gets in line.

15 Since people are still half asleep, we don’t think about it and one person is right behind the next. The

16 nurse and the guard have gloves and a mask on, but they don’t say anything about people standing so

17 close together. They don’t change their gloves or masks, and they use the same thermometer.

18 Sometimes they use an under-the-tongue reader. They also use a machine that you insert your pointer

19 finger in, and it reads your temperature. I don’t think they clean the machine between detainees. And

20 then we see the nurse and guard go to the next pod, and take their temperatures, too. We see that those

21 people are in line one behind the next, too.

22

26. I also worry about our clothes and our sheets, that they aren’t cleaned well. They take our

23 clothes to laundry every two or three days. When our clothes get taken to the laundry, they sometimes

24 come back really stinky. It's like they don’t use laundry detergent. So many people prefer to wash their

25 own clothes, in the shower or the sink. When we get clothes that are in decent condition, like ones that

26 aren’t like beggars’ clothes with holes and no elastic, we wash those ourselves in the shower and try to

27 hold onto them for more time. Our sheets are the same way. They smell bad a lot of the time, too. Lots

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Case 3:20-cv-02731-VC Document 6-1 Filed 04/20/20 Page 9 of 11

1 of guys here have rashes all over, I have a rash right now on my chest. It's like a ton of little spider bites

2 all over. Once, I saw an officer drop a food tray on the ground, and then grab a sheet from the laundry

3 bin to clean it up with. Then, the officer threw the sheet straight back in the laundry bin.

4

27. About a month ago, someone came into C Pod with a cough and a fever. And then another

5 person seemed to get sick, and since we can’t stay far enough away from each other and don’t have any

6 kind of protection or enough soap, in the end about 15 people were sick.

7

28. I got what felt like the flu, too. I got a fever, cough, and body ache. The cough was bad,

8 and I felt short of breath. I didn’t want to get out of bed for days and I didn’t feel strong enough to

9 walk. I just went to get food, and then back to lay down. I felt like that for maybe four days. They gave

10 us some medication, we weren’t told what, and I slowly started to feel better. They didn’t do any tests.

11 The original person that was put in C Pod with symptoms was removed from the pod, but only after

12 many others had gotten sick.

13

29. About three weeks ago, they brought a new person into C Pod. He told us he came from

14 Santa Rita jail. It just so happened that the same day, I went to see the nurse for my allergies. I was

15 worried, because we didn’t know what kind of precautions they were taking with new people, and we

16 all are afraid of what could happen if someone with the virus comes in. So I asked the nurse what steps

17 they were taking, and about this new detainee. She told me that the person had been in quarantine for

18 two weeks before being placed in C Pod. When I went back to my pod, I asked him if he had been

19 quarantined, and he told me that he had only been in isolation for six hours after arriving at the facility.

20

30. On Friday, April 17, 2020, another new person from Santa Rita Jail was brought to Yuba

21 and put in C Pod. I talked with him, and he told me he has been at Yuba for about two weeks. He was

22 in booking by himself for five days, then he went to the F Tank, and then he was brought to C Pod.

23

31. It is incredibly frightening to be away from my daughter and my partner during this time. I

24 am terrified I will get the virus. My daughter was hospitalized in early April for something unrelated to

25 COVID-19. It was terrifying not to be there for her. I am afraid, because I’m far from my family. I

26 don’t want anything to happen to me or to my family. I feel pretty desperate. There are times when I’m

27 in bed and I cry, because I’m scared and far away from my little girl. It’s really hard.

28
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1

32. If I am released, I would go stay with my partner’s 23-year-old US citizen daughter in

2 Oakland to be in quarantine and protect my family. I am committed to sheltering in place as required by

3 state and local ordinances and complying with any conditions of release.

4

33. I understand that, as a class representative, I represent the interests of everyone in the class,

5 and not just myself. I understand I need to stay informed about what is happening with my case and stay

6 in touch with my attorney to give them information they need. I am committed to being a class

7 representative because I know how dangerous it is to be here, and I want all detained immigrants to

8 benefit from this case just as much as I do. I have never served as a class representative in any prior

9 action.

10

11

I, Angel de Jesus Zepeda Rivas, declare under penalty of perjury that the foregoing is true and

12

correct to the best of my recollection. I sign this from Marysvillle, California.

13

14

Date: April 18, 2020

//s// Angel de Jesus Zepeda Rivas

15

Angel de Jesus Zepeda Rivas

16

17

18

19

20

21

22

23

24

25

26

27

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Case 3:20-cv-02731-VC Document 6-1 Filed 04/20/20 Page 11 of 11

1

CERTIFICATE OF INTERPRETATION AND AFFIRMATION

2

I, Theodora Simon, certify that I am fluent in Spanish and English and that I am

3

competent to interpret between these languages. I further certify that I have read the foregoing to

4

Angel de Jesus Zepeda Rivas in Spanish. I further declare that I am competent to render this

5

interpretation and that I would testify to the same under the penalty of perjury if I were called

6

upon to do so.

7

I further certify that on April 18, 2020 I read the foregoing to Angel de Jesus Zepeda

8

Rivas and that he affirmed that the foregoing is true and correct. I have not been able to obtain a

9

signature from Angel de Jesus Zepeda Rivas because Yuba Detention Center is located

10

approximately two hours away from my home by car, and at the time I reviewed the foregoing

11

declaration with him, the county where I reside was, and remains, under a “shelter in place”

12

order.

13

14

Date: April 18, 2020

//s// Theodora J Simon

15

Theodora J Simon

16

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18

19

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9
DECLARATION OF ANGEL ZEPEDA

Case 3:20-cv-02731-VC Document 6-2 Filed 04/20/20 Page 1 of 10

1 WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org
2 SEAN RIORDAN (SBN 255752) sriordan@aclunc.org
3 ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org
4 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN
5 CALIFORNIA 39 Drumm Street
6 San Francisco, CA 94111 Telephone: (415) 621-2493
7 Facsimile: (415) 255-8437
8 Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page
9

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: 415-553-9319 Fax: 415-553-9810

10

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12

13 ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUIZ TOVAR, LAWRENCE
14 MWAURA, LUCIANO GONZALO 15 MENDOZA JERONIMO, CORAIMA
YARITZA SANCHEZ NUÑEZ, JAVIER 16 ALFARO, DUNG TUAN DANG,

DECLARATION OF BRENDA RUBI RUIZ TOVAR

17

Petitioners-Plaintiffs,

18

v.

19 DAVID JENNINGS, Acting Director of the

20 San Francisco Field Office of U.S.

Immigration and Customs Enforcement; 21 MATTHEW T. ALBENCE, Deputy Director

22

and Senior Official Performing the Duties of the Director of the U.S. Immigration and

23 Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS

24 ENFORCEMENT; GEO GROUP, INC.;

NATHAN ALLEN, Warden of Mesa Verde 25 Detention Facility,

26

Respondents-Defendants.

27

28
DECLARATION OF BRENDA RUBI RUIZ TOVAR

Case 3:20-cv-02731-VC Document 6-2 Filed 04/20/20 Page 2 of 10

1 BREE BERNWANGER* (NY SBN 5036397) MARTIN S. SCHENKER (SBN 109828)

bbernwanger@lccrsf.org

mschenker@cooley.com

2 TIFANEI RESSL-MOYER (SBN 319721) COOLEY LLP

tresslmoyer@lccrsf.org

101 California Street, 5th Floor

3 HAYDEN RODARTE (SBN 329432)

San Francisco, CA 94111

hrodarte@lccrsf.org

Telephone: (415) 693-2000

4 LAWYERS’ COMMITTEE FOR

Facsimile: (415) 693-2222

CIVIL RIGHTS OF

5 SAN FRANCISCO BAY AREA

TIMOTHY W. COOK (Mass. BBO# 688688)*

131 Steuart St #400

tcook@cooley.com

6 San Francisco, CA 94105

FRANCISCO M. UNGER (Mass. BBO#

Telephone: (415) 814-7631

698807)*

7

funger@cooley.com

JUDAH LAKIN (SBN 307740)

COOLEY LLP

8 judah@lakinwille.com

500 Boylston Street

AMALIA WILLE (SBN 293342)

Boston, MA 02116

9 amalia@lakinwille.com

Telephone: (617) 937-2300

LAKIN & WILLE LLP

Facsimile: (617) 937-2400

10 1939 Harrison Street, Suite 420

Oakland, CA 94612

11 Telephone: (510) 379-9216

Facsimile: (510) 379-9219

12

JORDAN WELLS (SBN 326491)

13 jwells@aclusocal.org

STEPHANIE PADILLA (SBN 321568)

14 spadilla@aclusocal.org

AMERICAN CIVIL LIBERTIES UNION

15 FOUNDATION OF SOUTHERN

CALIFORNIA

16 1313 West Eighth Street

Los Angeles, CA 90017

17 Telephone: (213) 977-9500

Facsimile: (213) 977-5297

18

Attorneys for Petitioners-Plaintiffs

*Motion for Admission Pro Hac Vice Forthcoming

19

20

21

22

23

24

25

26

27

28

DECLARATION OF BRENDA RUBI RUIZ TOVAR

Case 3:20-cv-02731-VC Document 6-2 Filed 04/20/20 Page 3 of 10

1

DECLARATION OF BRENDA RUBI RUIZ TOVAR

2 I, Brenda Rubi Ruiz Tovar, declare the following based on my personal knowledge:

3

1. I was born in Colima, Mexico in 1988. I am 31 years old. I have resided in the

4 United States since 2002, after I was granted a green card.

5

2. The facts stated in this declaration are true and of my own personal knowledge,

6 except as to anything that was told to me by my attorney.

7

3. I am a single bisexual woman. I have one 11-year old child who is a U.S. citizen.

8 My dad is a U.S. citizen and my mother is a lawful permanent resident. My parents live in

9 Fresno, California. I have two siblings, one of whom is a permanent resident, and one of whom

10 is a U.S. citizen.

11

4. In 2013, I was arrested for possession of a controlled substance, with intent to

12 distribute. I plead guilty and was sentenced to three years in prison. I completed my sentence in

13 August 2018 and I was then transferred to immigration custody. I have been detained at the

14 Yuba County Jail since around August 12, 2018. As of today, I have been detained at Yuba for

15 612 days.

16

5. During my removal proceedings, I was granted protection under the Convention

17 Against Torture (“CAT”) because of the extreme danger to be killed and tortured in Mexico.

18 The government appealed, and the case got sent back to the immigration judge. The judge then

19 granted me CAT protection a second time, and the government appealed again. My case is still

20 on appeal. I have not had any bond hearings during my case.

21

6. I suffer from Post-Traumatic Stress Disorder and Generalized Anxiety Disorder.

22 When I was a child, I was sexually assaulted multiple times by an older man. Being raped at an

23 early age has caused me long-term problems with my menstrual cycle, causing irregular

24 periods, which remind me of the rape. The doctors have prescribed me with anti-depressants,

25 which I take daily at Yuba County Jail.

26

7. Around March 9, 2020, I noticed there was an older Philippine detainee at our

27 area who had severe medical problems that appeared to match the symptoms I’ve learned

28
1 DECLARATION OF BRENDA RUBI RUIZ TOVAR

Case 3:20-cv-02731-VC Document 6-2 Filed 04/20/20 Page 4 of 10

1 correspond with coronavirus. She had a fever, she was sneezing and coughing, and had

2 problems breathing. She went to medical but after a while she was sent back to our population.

3 Some of us felt really bad for her, so we started taking care of her. We would put cold rags on

4 her forehead, bring her water, and try to comfort her. We would get really close to her and had

5 no gloves or anything to protect ourselves. Our priority was to make her feel better.

6

8. A day or so after I was taking care of the woman, I started coughing and had a

7 sore throat. I was really worried that I was getting coronavirus. I put a request with medical and

8 I was seen by a doctor that same day. The doctors did not test for the virus and the visit was

9 very short. They checked my blood pressure and temperature. After I got a few medications

10 (Tylenol for my headache, Robitussin for my cough, and an allergy pill) but I am still very

11 worried about the situation.

12

9. Around March 12, 2020, the Philippine woman got worse. She had a medical

13 episode and was taken to medical. She started shaking and we noticed that she could not

14 breathe. Her eyes were red. Not knowing how to help her, we tried to help her breathe, we

15 grabbed her jaw and moved it open and close to try to get her to breath. Medical staff came to

16 our dormitory and checked on her. I heard that she had a fever of 102 degrees. After some time,

17 she was rushed to the hospital. She was brought back to the jail hours later and was placed in

18 one of the three cells available for isolated detention. I believe that she had the coronavirus and

19 ICE detained her on her own as an attempt to prevent further spreading of the virus. But it did

20 not matter; many of us started showing symptoms like coughing and sore throat.

21

10. I’ve had symptoms since March 10. It started with a cough. When I coughed, it

22 was a dry cough and lasted throughout the day. I had a sore throat. It hurt when I swallow. At

23 night, I would start coughing uncontrollably, waking me up. I also had problems breathing. It’s

24 hard to describe the feeling. When an episode happened, I felt pressure in my chest, and I could

25 not breathe normally. I would start panting trying to get short breaths in.

26

11. There has been no testing for coronavirus at the jail. On March 19, 2020, I heard

27 from another detainee that she went to medical and heard that ICE just got the coronavirus test

28

DECLARATION OF BRENDA RUBI RUIZ TOVAR

Case 3:20-cv-02731-VC Document 6-2 Filed 04/20/20 Page 5 of 10

1 the day before, on March 18, 2020. ICE has not told us anything about the test or whether we

2 will be tested. ICE does not give us much information; we mostly know what is going one by

3 asking one another.

4

12. On Friday, March 27, 2020, I was quarantined. The day before, a female detainee

5 came back from a hearing really sick. She was coughing, had a fever, and was vomiting. I

6 believe the woman was suffering from symptoms related to coronavirus. The woman was

7 quarantined, placed away from the other detainees. The woman and I are part of the same

8 dormitory area, Pod R. The pod houses 18 detainees. On March 27, 2020, after lunch, county

9 officers came to three of us and told us to gather all our belongings because we were being

10 moved. I learned that the officers had asked women who had shown virus-related symptoms to

11 move. During quarantine, I learned that the officers wanted to determine if we were contagious

12 to other detainees, including the woman who went to court and showed symptoms.

13

13. At around 1:00 pm, two other women and I were moved to a small medical cell.

14 The cell was medium size, with two very small rooms inside, made out of brick walls and a

15 metal door. I shared one of the rooms with a female detainee and the other room was occupied

16 by the third woman. The rooms were very small. There was not enough space in the medical

17 cell to be socially-distanced from each other. The cell had one dirty toilet, with feces all around

18 it. The shower had a dirty smelly shower curtain. The three of us shared the only phone in the

19 cell. I was being quarantined but was not aware for how long. That night, a nurse took our

20 temperature, said we had no fever, and told us we had to stay in the medical cell. The next day,

21 we requested cleaning supplies because the cell was extremely dirty, smelly, and it was hard to

22 stay in there with that filth. We were given chemicals but no masks to clean it up. The nurse did

23 not come back that Saturday. On Sunday March 29, 2020, we were told that because we had no

24 fever, we could return to the dorm. We never got a coronavirus test or another fever test while

25 in quarantine.

26

14. Our dorm setup does not permit social distancing. There are nine bunkbeds and 18

27 people, meaning it is completely full. In between each bunk there is about a foot or so of

28

DECLARATION OF BRENDA RUBI RUIZ TOVAR

Case 3:20-cv-02731-VC Document 6-2 Filed 04/20/20 Page 6 of 10

1 distance. If I am in my bed, I can reach out my hand and touch the bed to the side of me. In the

2 middle is the eating area – there are three tables. Each table has space for six people, three on

3 each side. The tables and benches are nailed to the floor and cannot be moved. During

4 mealtimes, the guards bring in trays and water, and we lined up to get our food trays. When we

5 are lined up, we are very close together.

6

15. The bathrooms and showers are at the end of the dormitory and they are

7 connected. There are two toilets, which each have their own sink. The first toilet is separated

8 from the second by a curtain and the toilets are only a few feet away from each other. Even

9 when you are in the bathroom, you do not have any privacy or space. The guards give us bars of

10 soap for the bathrooms but we have to advocate for ourselves because sometimes the soap runs

11 out. After the second toilet, there is a metal wall that goes up halfway to the ceiling. After that is

12 the shower area which is about 10 feet wide. Inside there are two shower heads. There is

13 nothing inside the shower area to divide the shower heads, not even a curtain.

14

16. All of the bunkbeds are on one side of the room. On the other side is where there

15 is a television, and a little bookshelf. There is a table that is stuck to the wall. We play puzzles

16 at that table. There is only one telephone for the whole unit which is next to that recreation area.

17 When you are on the phone, you are close enough to the bunks to be able to sit down on a bed.

18

17. Five times a week for one hour each time, our dormitory goes to a cage on the

19 roof of the jail for yard time. The yard is about the same size as the dormitory. On the right-

20 hand side there are metal bars for doing exercises. I have never seen those bars be cleaned.

21 There is also a basketball court on the roof that detainees are still using to play basketball. On

22 the left side there is a bathroom and it is disgusting, covered in poop. I do not use the bathroom

23 when I am in the yard for that reason. There is a sink next to the bathroom and a water fountain.

24 There is calcium buildup around the fountain; when the water comes out it stains the water

25 fountain. I do not use the water fountain either.

26

18. On Wednesday, April 15th, in the afternoon, I went to the yard and I noticed fleas

27 sticking to my feet, on my shirt, all over me. I do not know where they came from but I know I

28

DECLARATION OF BRENDA RUBI RUIZ TOVAR

Case 3:20-cv-02731-VC Document 6-2 Filed 04/20/20 Page 7 of 10

1 picked them up when I went up to the yard. I started to itch all over. I put in a request to see

2 medical to get help for the itching. To this day I have not seen medical and I am still itching.

3

19. As of now, a lot of my symptoms of coronavirus have passed, but not all. I still

4 get headaches and have to get medication for it. I fear that, as the poor conditions in detention

5 continue, I will again contract the virus and my symptoms will start again.

6

20. We have asked ICE for information to know what is going on. ICE officers have

7 told me and others that “there is no virus in the county.” I do not believe them. They did give us

8 information about how to wash our hands. They gave use wipes to clean the telephone we all

9 use. ICE officers get upset when we ask for new information. Officers put a sign that there is

10 free soap available, and I’ve gotten some. It is a small bar of soap, like the ones they give at

11 hotels. I’m not sure whether the soap has the chemicals needed to get rid of bacteria and the

12 virus.

13

21. After the Philippine woman got worse, ICE brought us a bunch of chemicals to

14 clean up the jail. ICE had all of us detainees clean the open areas, bathrooms, dorms, and almost

15 all of the areas we have access to. I did not understand why they would expose all of us to the

16 virus by tying to clean it. They did not give us gloves, masks, or any protective gear. I asked for

17 a mask when I went to medical to cover my cough and the staff said that, unless you have a

18 fever, they cannot give them out. For some time, they turned off the air conditioning but didn’t

19 tell us why. The jail got really hot because we did not have air conditioning. The officers said

20 that our cable box suddenly did not work, so we could not watch the news to learn what was

21 going on with the virus. This all added to our anxiety not knowing what was going on with the

22 virus. The air conditioning and the cable are now working again.

23

22. I am really worried for my safety. I am worried that more and more detainees

24 will worsen and the virus will affect us all. I have not noticed ICE officers doing much to

25 contain the virus or ease our anxieties. They should test us if they have the test. They

26 should give us masks if they have them. There is a lot of people who cough and do not

27 cover their cough, so I worry the virus is spreading. We can clean and clean, but if people

28

DECLARATION OF BRENDA RUBI RUIZ TOVAR

Case 3:20-cv-02731-VC Document 6-2 Filed 04/20/20 Page 8 of 10

1 keep coughing, then we cannot stop the spread of the virus. I do not feel safe inside this

2 place. I do not know what will happen to those of us who already show symptoms. More

3 and more people ask for sick calls but are not taken to the medical office. The check-ups

4 happen at the dormitories and they do the basic: they check for fever and check blood

5 pressure. Response to our sick calls are again taking longer to be responded to. One of the

6 detainees put out multiple medical requests and it took her about a week to get a response.

7 As more detainees have symptoms, there are more requests, medical gets overwhelmed and

8 their response delays.

9

23. I worry for the safety of my family. I need to be home taking care of my parents

10 and my child. My parents are older: my mother is her 50s and my father is in his 60s. My mom

11 suffers from asthma and heart problems. My dad lately has gotten weaker, often gets a cold. I

12 would like to be home to ensure that my parents are well taken care of. My son suffers from

13 allergies and, around Spring, he usually goes to severe episodes of allergic reactions. I worry for

14 their health.

15

24. If I am released, I would go live with my parents in Fresno, CA. My sister would

16 take me home. My social worker would be able to get me in touch with medical services so I

17 can get the care I need for my PTSD. I would not have to pay rent with my parents and, when

18 the BIA finishes reviewing my case, I am hopeful that they will sustain the grant of relief by the

19 Immigration Judge. If I am released, I am committed to following all public health guidelines

20 and rules, including the current shelter in place rules, to ensure the safety of myself and others.

21

25. I spoke with my attorneys about the responsibilities involved in being a class

22 representative. I understand that, as a class representative, I represent the interests of everyone

23 in the class, and not just myself. I also understand that I am responsible for staying reasonably

24 informed about the case and providing my attorneys with any information they need to

25 prosecute the case. I am committed to be a class representative because I believe it is very

26 important that all people who are facing the current dangerous conditions in detention benefit

27 from this case just as I do. I have never been a class representative in any other action.

28

DECLARATION OF BRENDA RUBI RUIZ TOVAR

Case 3:20-cv-02731-VC Document 6-2 Filed 04/20/20 Page 9 of 10

1 I, Brenda Rubi Ruiz Tovar, declare under penalty of perjury that the foregoing is true and

2 correct to the best of my recollection. I sign this at Marysville, California.

3 April 18, 2020 Date
4

//s// Brenda Rubi Ruiz Tovar Brenda Rubi Ruiz Tovar

5

6

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DECLARATION OF BRENDA RUBI RUIZ TOVAR

Case 3:20-cv-02731-VC Document 6-2 Filed 04/20/20 Page 10 of 10

1

CERTIFICATE OF INTERPRETATION AND AFFIRMATION

2

I, Hector Vega, declare that I am competent to interpret from English to Spanish. I certify

3 that on April 18, 2020, I read the above English declaration to Brenda Rubi Ruiz Tovar in the

4 Spanish language via telephone and she confirmed the contents are true and correct to the best of

5 her recollection. I sign this at San Francisco, CA.

6

I read the foregoing to Brenda Ruiz Tovar and that she affirmed that the foregoing is true

7 and correct. I have not been able to obtain a signature from Ms. Ruiz Tovar because Yuba County

8 Jail is located approximately three hours away from my home by car, and at the time I reviewed

9 the foregoing declaration with him, the county where I reside was, and remains, under a “shelter

10 in place” order.

11 April 18, 2020 12 Date

//s// Hector A. Vega Hector A. Vega

13

14

15

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17

18

19

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DECLARATION OF BRENDA RUBI RUIZ TOVAR

Case 3:20-cv-02731-VC Document 6-3 Filed 04/20/20 Page 1 of 15

1 WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org
2 SEAN RIORDAN (SBN 255752) sriordan@aclunc.org
3 ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org
4 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN
5 CALIFORNIA 39 Drumm Street
6 San Francisco, CA 94111 Telephone: (415) 621-2493
7 Facsimile: (415) 255-8437
8 Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page
9

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: 415-553-9319 Fax: 415-553-9810

10

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12

13 ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUIZ TOVAR, LAWRENCE
14 MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA
15 YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,
16 Petitioners-Plaintiffs,
17 v.
18 DAVID JENNINGS, Acting Director of the
19 San Francisco Field Office of U.S. Immigration and Customs Enforcement;
20 MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of
21 the Director of the U.S. Immigration and Customs Enforcement; U.S.
22 IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.;
23 NATHAN ALLEN, Warden of Mesa Verde Detention Facility,
24 Respondents-Defendants.
25

DECLARATION OF LAWRENCE KURIA MWAURA

26

27

28
DECLARATION OF LAWRENCE KURIA MWAURA

Case 3:20-cv-02731-VC Document 6-3 Filed 04/20/20 Page 2 of 15

1 BREE BERNWANGER* (NY SBN 5036397) MARTIN S. SCHENKER (SBN 109828)

bbernwanger@lccrsf.org

mschenker@cooley.com

2 TIFANEI RESSL-MOYER (SBN 319721) COOLEY LLP

tresslmoyer@lccrsf.org

101 California Street, 5th Floor

3 HAYDEN RODARTE (SBN 329432)

San Francisco, CA 94111

hrodarte@lccrsf.org

Telephone: (415) 693-2000

4 LAWYERS’ COMMITTEE FOR

Facsimile: (415) 693-2222

CIVIL RIGHTS OF

5 SAN FRANCISCO BAY AREA

TIMOTHY W. COOK (Mass. BBO# 688688)*

131 Steuart St #400

tcook@cooley.com

6 San Francisco, CA 94105

FRANCISCO M. UNGER (Mass. BBO#

Telephone: (415) 814-7631

698807)*

7

funger@cooley.com

JUDAH LAKIN (SBN 307740)

COOLEY LLP

8 judah@lakinwille.com

500 Boylston Street

AMALIA WILLE (SBN 293342)

Boston, MA 02116

9 amalia@lakinwille.com

Telephone: (617) 937-2300

LAKIN & WILLE LLP

Facsimile: (617) 937-2400

10 1939 Harrison Street, Suite 420

Oakland, CA 94612

11 Telephone: (510) 379-9216

Facsimile: (510) 379-9219

12

JORDAN WELLS (SBN 326491)

13 jwells@aclusocal.org

STEPHANIE PADILLA (SBN 321568)

14 spadilla@aclusocal.org

AMERICAN CIVIL LIBERTIES UNION

15 FOUNDATION OF SOUTHERN

CALIFORNIA

16 1313 West Eighth Street

Los Angeles, CA 90017

17 Telephone: (213) 977-9500

Facsimile: (213) 977-5297

18 Attorneys for Petitioners-Plaintiffs

19

*Motion for Admission Pro Hac Vice Forthcoming

20

21

22

23

24

25

26

27

28
DECLARATION OF LAWRENCE KURIA MWAURA

Case 3:20-cv-02731-VC Document 6-3 Filed 04/20/20 Page 3 of 15

1

DECLARATION OF LAWRENCE KURIA MWAURA

2 My name is Lawrence Kuria Mwaura. I do hereby declare that I am competent to testify and if

3 called to do so shall testify as follows:

4

1. I, Lawrence Kuria Mwaura, was born on February 5, 1993 in Kenya. I entered the

5 United States on October 20, 2002, and was granted asylum with my mother on August 8, 2003.

6 I was granted United States legal permanent residence on October 3, 2006. My mother, brother,

7 and sister were also granted asylum and are now naturalized U.S. citizens. I am married to a

8 U.S. citizen.

9

2. I am currently detained at Yuba County Jail in Marysville, California, where I am

10 housed in C-Pod.

11

3. On May 2, 2013, I was convicted under California Penal Code Section 211

12 robbery in Los Angeles, California. I was sentenced to serve four years in state prison. In

13 addition, I have a conviction under California Penal Code Section 211 dated August 13, 2013. I

14 was sentenced to five years in prison to run concurrent with my first conviction.

15

4. On April 12, 2019, I was released from state criminal custody at Duel Vocational

16 Institute (“Duel”) in Tracey, CA and detained by the Department of Homeland Security,

17 Immigration and Customs Enforcement (“ICE”). Because of my prior convictions, I was put

18 into removal proceedings before an Immigration Judge. I applied for relief from removal

19 through adjustment of status, as well as protection under the Convention Against Torture due to

20 my fear of returning to Kenya. The Immigration Judge denied relief in my case, and I appealed

21 the decision to the Board of Immigration Appeals (“BIA”). I then appealed the BIA’s denial to

22 the Ninth Circuit Court of Appeals in February 2020, where my case is now. I have a temporary

23 stay of removal in place. My attorney told me that the opening brief in my Ninth Circuit case is

24 due June 1, 2020. I have never had a bond hearing since I entered into ICE detention on April

25 12, 2019.

26

5. In March 2018, while at Duel in Tracey, I contracted Coccidioidomycosis, also

27 known as Valley Fever. Every time I breathed, it felt like my lungs were being ripped apart. It

28

1

DECLARATION OF LAWRENCE KURIA MWAURA

Case 3:20-cv-02731-VC Document 6-3 Filed 04/20/20 Page 4 of 15

1 was extremely painful. I was hospitalized at San Joaquin Hospital in the ICU. I thought I was

2 going to die because of the damage to my lungs and how hard it was to breathe.

3

6. My doctors at San Joaquin Hospital prescribed Fluconazole to treat the mold

4 spores which caused the Valley Fever. The doctors told me that I would most likely have to take

5 medication for the rest of my life and the damage to my lungs would be permanent. I also began

6 getting my titers check to ensure that the medication was working. The doctors at Duel told me

7 I needed my titers checked every 90 days, regardless of whether I am on medication. Based off

8 what the doctors explained to me and my own research, a titer check allows doctors to monitor

9 blood cell count and see whether my Valley Fever is getting better or worse. I took Fluconazole

10 for 8 months, and my condition improved. But then it quickly worsened, and I had to be sent to

11 a lung specialist at San Joaquin, who prescribed Voriconazole. This medication made me

12 feel dizzy and light-headed, and caused strange sensations in my feet. I took Voriconazole until

13 a doctor at Yuba told me he had spoken to a lung specialist who I had never seen, and they

14 decided I no longer needed the Voriconazole. The Yuba said they would still monitor my titers.

15 My wife sent my medical documents to inform Yuba medical staff that I needed a titers check

16 every 90 days. She had to consistently ask Yuba officials before they actually checked my titers

17 when I first entered Yuba. Yuba medical staff have not checked my titer count since late

18 November or early December 2019. I told medical staff on multiple occasions that I needed

19 more frequent titer checks. I was never told what my titer level was during this last check.

20

7. The lung specialist at San Joaquin told me that I have scars on my lungs from the

21 Valley Fever, which makes my lungs extremely sensitive to cold temperatures and smoke and

22 things in the air. I still have trouble breathing when the dorms get cold here in Yuba. I always

23 wear a sweatshirt and as much clothing as the officers give me, but I still get cold and have

24 trouble breathing. I feel a pain in the bottom of my lungs which forces me to take short breaths.

25 For example, I experience this pain and difficulty breathing when I get out of the shower

26 because I am moving from a warmer temperature to a colder one.

27

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1

8. The doctor at San Joaquin who diagnosed me also told me that Valley Fever could

2 return any time. He told me that if it returned, it could eat away at my brain, my skeletal system,

3 my nervous system, and paralyze me. I am currently terrified of contracting COVID-19 and

4 dying because my respiratory system is weak, particularly as I have scarred lungs.

5

9. The televisions in C-Pod at Yuba play the news, which consists almost entirely of

6 COVID-19 coverage. The news tells us about the importance of social distancing. However,

7 social distancing does not exist and is impossible at Yuba.

8

10. I am in an open dormitory in C-Pod. As of today, there are a total of 36 detainees

9 in the dorm with 25 bunks in total. The dorm can hold a total of 50 men. I currently sleep on the

10 bottom bunk of a two-person bunk bed. Up until yesterday evening, April 17, I had a bunkmate

11 sleeping three feet above me in the top bunk. Behind my bunk, there are two bunks within 2 feet

12 of me. There are two more bunks within 4 feet of my bunk: one to my right, and one directly in

13 front of my bunk when I lie down. As of today, 8 detainees of the 36 total detainees do not have

14 a bunk mate.

15

11. I was transferred to C-pod from F-Pod on March 27, 2020. All of the detainees

16 have been trying to ask questions of medical staff, officers, and other detainees and share to

17 determine whether there are special quarantine procedures due to COVID. We are scared that

18 someone will bring the virus in from the outside. In this way, many other detainees and I

19 believe that the new procedure for detainees transferred into Yuba is being quarantined for 14

20 days, and if their temperature reads within the normal range, they are released into a normal

21 pod, like C-pod. On April 17, 2020, the first new detainee was introduced into C-Pod since I

22 was transferred here. He told me that he came from Santa Rita Jail, spent 5 days in a small

23 booking cell in an upper floor of Yuba, and then spent 9 days in “quarantine” in F-pod. The new

24 detainee that arrived on April 17 told me that the only monitoring the medical staff did before

25 putting him with us in C-pod was to test his temperature.

26

12. At meal (also called “chow”) times, which happen three times per day, all 36

27 detainees currently in my dormitory line up to get food. We line up with about one foot or less

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1 between each of us. The chow officer brings a cart of food and a cart of beverages into the dorm

2 from the general cafeteria. For only the last two weeks ago, the chow officer has worn a mask.

3 Before that, the chow officer did not wear a mask. Then two detainees from C-Pod volunteer as

4 “porters” and distribute the trays of food and beverages to the rest of the detainees. These

5 detainee-porters are not paid for this. The porter-detainees are each given a pair of gloves by to

6 distribute the food and beverages. They are never given any masks while distributing meals.

7

13. There is also no distance between us when we eat our meals at the tables. In the

8 dining area, there are 5 metal tables with attached benches. Three men sit at two of those tables.

9 There are an additional two tables with four attached stools, which people don’t generally use to

10 eat at. On the lower tier where the bunks are, there is a small area with two tables with benches

11 called the “day room.” Generally, there are 12 detainees who eat there. They sit elbow to elbow,

12 filling the table completely up. The remaining men—about 21 detainees—sit on their bunks and

13 eat their meals. Some of these men sit together on the same bunk and eat their meals together.

14

14. It is impossible for detainees here to maintain social distance from one another.

15 All detainees are only allowed one hour for recreation a day, five days per week. The detainees

16 are taken to the roof. The roof is a caged area of about 40 feet by 20 feet, about half the size of a

17 basketball court. Not all of the inmates can fit, so we go in groups of about 25. Even though this

18 is our “outside” time, there are no sunlight or trees, just cement walls and floor. The upper part

19 of the roof is covered with steel bars and chicken-wire.

20

15. The roof is the dirtiest area in the whole of C-Pod. I have not seen anyone clean

21 this area. The metal toilets and sink are encrusted and stink of grime and human waste. The

22 floor of the roof area is covered in dust and dirt. This is the only place for us to do exercise. I

23 can’t do any exercise near the ground—like push-ups or sit ups—because I can see the dust and

24 dirt coming up from the floor.

25

16. Detainees also cannot social distance when they use the bathroom areas. There

26 are only three shower stalls, shared among 36 men. When a detainee stands at a sink, he is one

27 and half feet from the detainee at the sink next to him. There are five toilets in total, split

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1 between two toilet areas in C-pod: three toilets in a row upstairs, and two toilets next to each

2 other downstairs. The toilets have no door for privacy and only a low barrier about three feet tall

3 separating one toilet from another. The barrier starts at about two feet off the ground. When one

4 detainee is using a toilet, either standing or sitting, the detainee at the toilet next to him is only

5 three feet away.

6

17. This enclosed environment also contributes to detainees feeling hopeless and

7 trapped, without any recourse to protect ourselves from the COVID-19 pandemic. I am reading

8 a book at our library here which says that humans need a certain amount of sunlight and could

9 be susceptible to more disease if they are forced to be without sunlight for extended periods of

10 time. Being so trapped during this health crisis makes me feel extremely tense and stressed all

11 of the time. In June 2019, a psychiatrist here at Yuba told me that I fit the criteria for Post-

12 Traumatic Stress Disorder. I feel depressed and in very low spirits, desperately looking for ways

13 to lighten my mood. Other detainees have expressed to me that they feel stress, anxiety, and

14 depressed. Many men here take medication for psychological conditions, such as sleeping aides.

15 People’s behavior and moods shows that they are crying on the inside.

16

18. Since I have been in C-pod, every morning a nurse enters the dorm with gloves

17 and a mask and checks all detainees’ temperatures. There is not always a clear procedure during

18 the temperature check. The inconsistency means that some detainees’ temperatures do not get

19 checked. On weekends, temperature check happens a little later in the day. Starting a week ago,

20 an officer accompanies this nurse into the dorm and usually one of them announces,

21 “Temperature checks, stay in your bunks.” The nurse then checks detainees’ temperature by

22 holding a device that looks like a price-scanner a few inches away from the detainee’s forehead.

23 I have seen detainees who are in the bathroom area, the phone-booth area, or on the upper floor

24 at the tables not receive a temperature check because the officer accompanying the nurse

25 doesn’t order them down.

26

19. Before a week ago, the temperature check procedure was different. An officer

27 would accompany the nurse into the open dormitory floor and announce, “Line up, temperature

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Case 3:20-cv-02731-VC Document 6-3 Filed 04/20/20 Page 8 of 15

1 check.” We would stand in line—a foot or less away from one another—and the nurse would

2 perform the forehead temperature check.

3

20. When detainees get a temperature check, there is a computer screen facing only

4 the nurse which shows the temperature. We cannot see our own temperature. The nurse does not

5 tell us our temperature, write down the temperature readings, or check our wrist band to record

6 our name and temperature.

7

21. Officers, medical staff, and other Yuba workers come in and out of Yuba and C-

8 Pod all of the time from the outside. We detainees are forced to be close to them in different

9 ways. Once an hour each day, an officer performs a check of the dorm by walking through the

10 bunks. This officer will walk in the narrow space between the bunks, meaning that that officer

11 will be within 2 feet or less of each detainee on his bunk. There are two 12-hour dorm officer

12 shifts. Whenever officers change shifts, they walk through our bunks to verify each detainee’s

13 identity. If a detainee is asleep, the officer taps their mattress firmly or taps the detainee’s foot

14 to wake him and verify his last name. Since the beginning of April 2020, officers who performs

15 this check in C-pod have worn gloves and a mask. Before then, officers would wear this

16 protection inconsistently depending on the officer.

17

22. Another way detainees have to be close to officers is when we receive mail. This

18 happens in two ways. Officers will distribute mail leaving it on our bunks. Alternatively,

19 officers will call all detainees who have mail to a table to collect their mail. They don’t call us

20 one-by-one to wait for each to get their mail and distance themselves. We all have to go up to

21 the table together to collect our mail. An officer who hands out the mail to the detainees at this

22 table wears gloves and a mask.

23

23. Officers get within three feet of us when they take our laundry three times a

24 week.

25

24. Officers walk through each bunk again twice a day to spray chemicals on the

26 ground between the bunks. Those officers wear gloves and masks.

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1

25. The officers in the control booth between the Pods at Yuba do not wear masks. I

2 have seen officers take their masks and gloves off when they enter the control booth from the

3 Pods or other areas of Yuba. When we need to speak to the officers in the control booth, we

4 enter a sally port, which is within arm’s reach of the officers in the booth. There is an open

5 airway between the sally port and the control booth. During those conversations, the officers are

6 not wearing gloves or masks. The officers in the sally port who handle paperwork do so without

7 wearing gloves. The officers there consistently hand paperwork directly to detainees and other

8 officers with their bare hands.

9

26. This past Monday or Tuesday, April 13 or April 14, 2020, two maintenance

10 workers came into C-Pod without masks or gloves to unclog the sinks—one on the upper floor

11 and one on the dorm floor—which have been clogged since the time I came into C-pod. Other

12 detainees who have been in C-pod longer have told me that the sinks have been clogged for

13 weeks before that. The clogged sinks were filthy and stank badly, like something was rotting in

14 them. The water drained very slowly from the sinks, leaving a dirty residue in the sinks.

15 Because there are 36 men in C-pod sharing only a few sinks, we were forced to use the clogged

16 sinks. I was on my bunk when I saw the unmasked and ungloved maintenance workers enter. I

17 had to use the restroom and walk within five feet of those workers. After the maintenance

18 workers left, the sinks still appear filthy, but they drain water better than before.

19

27. Once per day, officers spray down high-touch surfaces, such as tables, sinks,

20 toilets, showers, phone booths, and stairwells, with disinfectant. I asked the officers what is in

21 the disinfectant, and they told me it is a 10-to-1 ratio bleach-and-water solution.

22

28. There are high-touch surfaces and items that officers do not spray or otherwise

23 disinfect. For example, the shower doors are wooden and do not have handles, and detainees

24 open those doors to enter the shower by grabbing the top of the door and pulling it open towards

25 themselves. I have not seen officers disinfectant the tops of those door. The handles of brooms,

26 mops, sweepers, dustpans, plungers, and toilet-scrubbers, which detainees use very frequently to

27 clean common spaces, never get disinfected. From my own experience and what I see other

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1 detainees do, we do not use gloves to touch these items 99% of the time. The remaining 1%

2 recycle gloves from the detainee-porters who distribute meals.

3

29. The detainees are responsible for all of the daily cleaning of our bunks and the

4 common spaces. We rotate based on our bunk location to perform cleaning chores twice per

5 day. We do everything. We mop and sweep the floors, mop and clean the showers, clean the

6 sinks, and wash the walls, the stairwells, the windows, the phones, and the tables and chairs. We

7 do not wear masks and are not given masks from Yuba to do this cleaning. When I asked for a

8 mask from a nurse once, she told me, “Sorry, we don’t issue masks.”

9

30. There are no sanitizing wipes provided to detainees, either for use on our hands or

10 to wipe down and disinfectant surfaces or other items. Instead, we are given paper towels and 4

11 spray bottles, each with a cleaning solution in different colors and smells: one to clean the floor,

12 one to clean tiles and bathroom surfaces, one to clean the steel toilets and tables, and one for

13 windows. The bottles themselves do not have labels indicating their uses. Since I have been in

14 C-pod, I’m not aware of an officer explaining how to use the cleaning supplies. The only reason

15 I know is because I was a “porter” in F-pod before. Those cleaning solution bottles had labels

16 and I became familiar with each one’s color and use. We have not been told the specific purpose

17 of the paper towels. Almost all detainees use the surface-cleaning chemical solutions to wash

18 their hands after they use the bathroom.

19

31. Before they transferred me and other detainees out of F-pod, the officers in F-pod

20 told us that they were going to use that pod as a quarantine space for new detainees and for

21 people with COVID-19. I do not know how officers would know who has COVID-19 to put

22 them in quarantine since we do not have COVID-19 tests at Yuba. A new detainee who came to

23 C-pod on April 17, 2020 confirmed to me and other detainees that F-pod is currently a

24 quarantine area.

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32. At Yuba, an officer will open the door to the chemical room in the Pod every so

26 often when the spray bottles get low, and an assigned porter, who is always a detainee, will go

27 in the chemical room and refill the bottles. The chemical room in C-pod is located about 6 or 7

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DECLARATION OF LAWRENCE KURIA MWAURA

Case 3:20-cv-02731-VC Document 6-3 Filed 04/20/20 Page 11 of 15

1 feet from my bunk. Unlike in F-pod, the cleaning solution bottles here in C-pod are not labeled.

2 When I was a porter in F-pod, I would have to dilute the chemicals with water every day to

3 make them last longer. I was only able to do this because there was no Material Safety Data

4 Sheet (“MSDS”) enforcing or educating me about how to top up the spray bottles with the

5 stored chemicals. I became educated about MSDS from my experience and training as a fire-

6 fighter and in my vocational training in building maintenance at Duel. An MSDS is a folder of

7 documents stored along with chemicals provided by a chemical manufacturer. There is a

8 requirement that an MSDS must be accessible and available near the chemical storage area. Any

9 business or activity where people use these chemicals must have an MSDS accessible and

10 available. The MSDS describes the use of the chemicals and how they are allowed to be

11 changed based on the information specific to each chemical.

12

33. I am afraid that the disinfectant spray bottles in C-Pod do not have the correct

13 amount of chemicals in them and are not properly disinfecting the high-touch surfaces and other

14 items we use. This adds to me being terrified of contracting COVID-19 because the chemicals

15 are not sufficiently effective to disinfect, making them pointless to protect us from infection in

16 C-pod. On top of this, we are given cloth rags to clean the very dirty common spaces, like

17 toilets, sinks, and tables where we eat meals. These rags have never been laundered since I came

18 to C-pod. These same rags are used to clean all the areas in C-pod, transferring germs directly

19 from surface to surface, from areas like bathrooms to meal areas.

20

34. Detainees cannot keep themselves clean enough. We are not provided hand

21 sanitizer. Many detainees have told me that they cannot afford to buy their own soap from the

22 commissary. Officers have told us that we can request an “indigent kit” from them regardless of

23 how much many we have in our account. This kit contains a pen-filler to write, a comb, a

24 single-use paper packet of shampoo and of conditioner, and a small two-inch by two-inch bar of

25 soap. Sometimes the officers forget to provide a kit upon a detainee’s request, and that detainee

26 will go without being able to clean themselves. I have had to speak up on behalf of other

27 detainees who cannot afford their own soap and need to request a kit. About half the time, the

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Case 3:20-cv-02731-VC Document 6-3 Filed 04/20/20 Page 12 of 15

1 officer does not complete this request and we have to ask them again. I have seen some

2 detainees donate some of their soap on a weekly basis to those detainees who cannot afford their

3 own soap or do not receive the 2x2 soap from officers so that the detainee can clean himself

4 better. Officers in C-pod are inconsistent about their willingness to provide us kits with the

5 supplies we need to keep ourselves clean.

6

35. I am very scared about the hygiene of the common spaces all of the detainees in

7 C-pod have to use. For example, the corner of the showers have heavy mold that is not able to

8 be scrubbed off with the chemical spray bottles. In late December 2019 and early January 2020,

9 there was an inspection of Yuba in which government inspectors came to evaluate the

10 conditions of the jail. The rest of the detainees and I in C-Pod saw the inspectors come in. At

11 that time, the maintenance at Yuba painted those corners of the showers where there was mold

12 to cover up the mold. After the inspectors came, a few weeks later the mold ate through the

13 paint and was visible again.

14

36. The mold is still here in the corner of the showers and it terrifies me every time I

15 get in the shower. The Valley Fever which I suffered involves mold spores in my lungs, so I

16 shower as quickly as possible and try not to breath in the steam from the hot water. It is very

17 scary every time I take a shower; I dread it every day.

18

37. The air vents in C-Pod are clogged with thick dust. I can look into the vents and

19 see the dust. When the heat kicks on, the air flowing out of these vents smells like smoke. When

20 this happens, I have difficulty breathing and have to take short breaths because I can feel a

21 severe pain, like a thousand needles puncturing the bottom of my lungs. There is supposed to be

22 air being sucked in through another set of vents to recycle it, but these are so clogged with dust

23 too, that I don’t think the air can be recycled properly. The dirty air vents terrify me, as I know

24 it is terrible for my lungs and dangerous to my health to breath in dirty dusty air.

25

38. I am afraid because I hear on the news that people with underlying medical issues,

26 especially respiratory issues, are most vulnerable from serious complications and dying if they

27 contract COVID-19.

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Case 3:20-cv-02731-VC Document 6-3 Filed 04/20/20 Page 13 of 15

1

39. There are sick detainees in my dorm who are constantly going in and out of the

2 medical dorm, where they get their vitals checked. I know they’re sick because they told me

3 they put in medical requests because they experienced coughing or sneezing. People are very

4 scared that any of these symptoms could be COVID-19. We detainees know these symptoms

5 from the news constantly playing.

6

40. There are paper signs posted about COVID-19 on the glass sally port windows

7 visible to detainees. These 19 signs explain symptoms, that the virus attacks vital organs, and

8 that we should try to maintain 6 feet of distance, wash our hands frequently, and sleep turned

9 away from the detainee in the bunk next to ours. This is the only information Yuba provides us

10 detainees. I have never heard a Yuba or ICE officer explain COVID-19 or what we should do to

11 protect ourselves. I have never heard other detainees say that officers have mentioned this

12 either. This makes me feel that we are being provided as little information as possible to keep us

13 from knowing more and asking questions and making requests for protection from infection.

14

41. Detainees that I see sneezing and coughing will go in and out of the medical dorm

15 and come back to my dorm without a mask or gloves. Detainees are not given masks or gloves.

16 On April 16, 2020, one detainee went to Sacramento for court, and he was given a mask to wear

17 at that court. But when he came back to C-Pod he immediately took it off. The detainees here

18 were so surprised to see a detainee with a mask that we yelled out when we saw him came in

19 with one.

20

42. When we see Yuba staff wear masks and gloves more, but we cannot wear these

21 and have no information or protection, it makes me feel worthless. I often speak to other

22 detainees here about how they feel about our lack of protection and information. They have told

23 me it makes them feel like Yuba is abandoning us, that COVID-19 is very likely already

24 present, and that we will be left to die in here.

25

43. My worst fear about staying in detention during COVID-19 is dying among

26 strangers. I think about this all the time. I imagine Yuba officials having to contact my family

27 because I have died from COVID-19. I imagine my family having to make funeral plans for me.

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DECLARATION OF LAWRENCE KURIA MWAURA

Case 3:20-cv-02731-VC Document 6-3 Filed 04/20/20 Page 14 of 15

1 Being unable to protect myself from infection here, especially because of my medical

2 conditions, makes me feel like nothing—like dirt.

3

44. If I am released, my wife will pick me up and take me to our home in Burbank,

4 California. I can quarantine there and protect my family. I will comply with any shelter-in-place

5 orders or restrictions set on me by the Court.

6

45. I understand that, as a class representative, I represent the interests of everyone in

7 the class, and not just myself. I understand that I need to stay informed about what is happening

8 with my case and stay in touch with my attorneys to give them the information they need. I am

9 committed to being a class representative because I know how dangerous it is to be here in

10 Yuba, and I want everyone to benefit from this case just as much as I do. I have never served as

11 a class representative in any prior action.

12 I, Lawrence Kuria Mwaura, declare under penalty of perjury that the foregoing is true and

13 correct to the best of my recollection. I sign this from Marysville, California.

14 Date: April 18, 2020 15

//s// Lawrence Kuria Mwaura Lawrence Kuria Mwaura

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1

CERTIFICATE OF AFFIRMATION

2

I further certify that on April 18, 2020 I read the foregoing to my client Lawrence Kuria

3 Mwaura and that he affirmed that the foregoing is true and correct. I have not been able to

4 obtain a signature from Lawrence Mwaura because Yuba County Jail is located approximately

5 six hours away from my home by car, and at the time I reviewed the foregoing declaration with

6 him, Los Angeles County where I reside was, and still remains, under a “shelter in place” order.

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

8 //s// Douglas Jalaie_________________________ DOUGLAS JALAIE, ESQ.
9

Executed on: April 18th, 2020

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DECLARATION OF LAWRENCE KURIA MWAURA

Case 3:20-cv-02731-VC Document 6-4 Filed 04/20/20 Page 1 of 8

1 WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org
2 SEAN RIORDAN (SBN 255752) sriordan@aclunc.org
3 ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org
4 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN
5 CALIFORNIA 39 Drumm Street
6 San Francisco, CA 94111 Telephone: (415) 621-2493
7 Facsimile: (415) 255-8437
8 Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page
9

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: 415-553-9319 Fax: 415-553-9810

10

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12

13 ANGEL DE JESUS ZEPEDA RIVAS,

CASE NO.

BRENDA RUIZ TOVAR, LAWRENCE

14 MWAURA, LUCIANO GONZALO

DECLARATION OF LUCIANO

MENDOZA JERONIMO, CORAIMA

GONZALO MENDOZA JERONIMO

15 YARITZA SANCHEZ NUÑEZ, JAVIER

ALFARO, DUNG TUAN DANG,

16

Petitioners-Plaintiffs,

17

v.

18

DAVID JENNINGS, Acting Director of the

19 San Francisco Field Office of U.S. Immigration

and Customs Enforcement; MATTHEW T.

20 ALBENCE, Deputy Director and Senior

Official Performing the Duties of the Director

21 of the U.S. Immigration and Customs

Enforcement; U.S. IMMIGRATION AND

22 CUSTOMS ENFORCEMENT; GEO GROUP,

INC.; NATHAN ALLEN, Warden of Mesa

23 Verde Detention Facility,

24

Respondents-Defendants.

25

26

27

28
DECLARATION OF LUCIANO GONZALO MENDOZA JERONIMO

Case 3:20-cv-02731-VC Document 6-4 Filed 04/20/20 Page 2 of 8

1 BREE BERNWANGER* (NY SBN 5036397) MARTIN S. SCHENKER (SBN 109828)

bbernwanger@lccrsf.org

mschenker@cooley.com

2 TIFANEI RESSL-MOYER (SBN 319721)

COOLEY LLP

tresslmoyer@lccrsf.org

101 California Street, 5th Floor

3 HAYDEN RODARTE (SBN 329432)

San Francisco, CA 94111

hrodarte@lccrsf.org

Telephone: (415) 693-2000

4 LAWYERS’ COMMITTEE FOR

Facsimile: (415) 693-2222

CIVIL RIGHTS OF

5 SAN FRANCISCO BAY AREA

TIMOTHY W. COOK (Mass. BBO# 688688)*

131 Steuart St #400

tcook@cooley.com

6 San Francisco, CA 94105

FRANCISCO M. UNGER (Mass. BBO#

Telephone: (415) 814-7631

698807)*

7

funger@cooley.com

JUDAH LAKIN (SBN 307740)

COOLEY LLP

8 judah@lakinwille.com

500 Boylston Street

AMALIA WILLE (SBN 293342)

Boston, MA 02116

9 amalia@lakinwille.com

Telephone: (617) 937-2300

LAKIN & WILLE LLP

Facsimile: (617) 937-2400

10 1939 Harrison Street, Suite 420

Oakland, CA 94612

11 Telephone: (510) 379-9216

Facsimile: (510) 379-9219

12

JORDAN WELLS (SBN 326491)

13 jwells@aclusocal.org

STEPHANIE PADILLA (SBN 321568)

14 spadilla@aclusocal.org

AMERICAN CIVIL LIBERTIES UNION

15 FOUNDATION OF SOUTHERN CALIFORNIA

1313 West Eighth Street

16 Los Angeles, CA 90017

Telephone: (213) 977-9500

17 Facsimile: (213) 977-5297

18

Attorneys for Petitioners-Plaintiffs

*Motion for Admission Pro Hac Vice Forthcoming

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DECLARATION OF LUCIANO GONZALO MENDOZA JERONIMO

Case 3:20-cv-02731-VC Document 6-4 Filed 04/20/20 Page 3 of 8

1

DECLARATION OF LUCIANO GONZALO MENDOZA JERONIMO

2

I, Luciano Gonzalo Mendoza Jeronimo, declare the following based on my personal

3 knowledge:

4

1. I make this declaration from my personal knowledge and, if called to testify to

5 these facts, could and would do so competently.

6

2. My full legal name is Luciano Gonzalo Mendoza Jeronimo, however in detention

7 I am being called Jeronimo Gonzalo Mendoza due to ICE error. I was born in Guatemala and I

8 am 31 years old. I am indigenous Mayan Mam. My best language is Mam, but I also speak

9 Spanish. I have lived in the United States since my last entry in December of 2010. I am

10 married to Santos Paulina Carrillo Medoza (“Santa”) and we have 2 children together, a nine-

11 year-old daughter and a four-year-old son. My wife and daughter were granted asylum by an

12 Immigration Judge in San Francisco in January of 2017. Today, they are lawful permanent

13 residents and my son is a United States citizen, as he was born in Berkeley, CA. My family

14 lives together in Oakland, CA. We are a very close-knit family. We attend church together and

15 enjoy walks in the park.

16

3. I first entered the United States when I was around 16 years old. I was removed to

17 Guatemala in 2009. I then met my wife and we lived together in Todos Santos, Guatemala, but

18 because I opposed forced recruitment of indigenous men and refused to join their patrol, I was

19 beaten by the National Civil Police and local security forces and jailed for a few days. I was

20 badly injured. I fled Guatemala in December of 2010. I have not left the United States since that

21 time. Based on her successful asylum claim, my wife filed a petition for me in January of 2019.

22 We knew there was a risk I would be arrested given my removal order. However, we decided to

23 take this risk as I cannot live safely in Guatemala. I am very afraid to return to Guatemala. I was

24 then arrested by ICE on February 11, 2020 near my home and my prior removal order was

25 reinstated. I received a positive reasonable fear determination by the San Francisco Asylum

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1 DECLARATION OF LUCIANO GONZALO MENDOZA JERONIMO

Case 3:20-cv-02731-VC Document 6-4 Filed 04/20/20 Page 4 of 8

1 Office on February 26, 2020 and am now in withholding-only proceedings before the San

2 Francisco Immigration Court.

3

4. Through my attorney, I have filed a request with ICE/ERO to be released from

4 detention. This has been denied 2 times because I am supposedly a flight risk.

5

5. I have only one non-violent misdemeanor conviction. In 2017, I was convicted of

6 driving without a license and seat belt in Oakland, CA. I have paid all fines. I also was arrested

7 a few times in Shelton, WA in 2008 and 2009. I believe I was arrested for driving without a

8 license, having no insurance, using a fake name and failing to stop. I was then turned over to

9 ICE custody. I have no other arrest or criminal record, but I feel very ashamed about my

10 criminal record. I am not a violent man. I am a family man. I understand the importance of

11 obeying all laws in this country and do my best to do so.

12

6. I currently have no medical conditions, but I am extremely worried about my wife

13 who still suffers depression and anxiety due to her problems in Guatemala.

14

7. Here at Yuba I am in B Pod. There are about 27 or 28 people in B Pod right now.

15 Most of us are ICE detainees, although there are a few County inmates. There are two floors,

16 one where we sleep and the second floor where we eat and congregate.

17

8. There used to be about 50 people in B Pod, but as they have moved some people

18 out, they haven’t brought new people in. We were never told why people were moved out. I do

19 not know if it was because they were sick or some other reason. However, about 2 or 3 weeks

20 ago they brought new detainees in and we all got very angry and upset as we are all so worried

21 about possibly getting the virus. Now, no new detainees are coming in. But even with fewer

22 people in B Pod, it still is not possible for us to stay two meters away from each other most of

23 the time.

24

9. There are about 25 bunk beds. I estimate that the beds are not much more than

25 one meter apart. I am on the lower bunk, and the two lower bunks on either side of me are

26

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2 DECLARATION OF LUCIANO GONZALO MENDOZA JERONIMO

Case 3:20-cv-02731-VC Document 6-4 Filed 04/20/20 Page 5 of 8

1 occupied. When I sleep, I’m only a meter away from two other people here. It’s difficult for

2 people to get into the upper bunks, so all or almost all of the lower bunks are taken.

3

10. The area where we eat is on the second floor. There are probably about seven

4 tables, and two downstairs. When we eat, we try to stay away from each other since there aren’t

5 as many people now as there were before. Some people go down to eat on their beds, and

6 people try to spread out as much as they can at different tables. But still, we are generally within

7 one meter of one another while we eat.

8

11. During the day, I am usually on my bed or in the day room passing time. There

9 are usually 10-15 people in the day room on the second floor, and we are about 4 feet away

10 from each other. It would definitely be better if there were fewer people. That would make me

11 feel safer and less afraid of getting sick.

12

12. The guard brings food to our Pod and we all line up. We stand close to each other

13 in line. The guard then reads our names and two detainees actually distribute the trays and juice

14 boxes. The detainees are wearing gloves, but not facemasks. I do not know if the gloves are

15 changed daily. I would say the guard is about 5 feet away from us when he reads our names.

16

13. I usually see about 4-5 different guards in a day. I feel very worried and scared, as

17 do many of my pod mates, since we do not know where they go when they leave the jail and

18 what they are doing, or what precautions they take when they come back to Yuba to not bring

19 the virus in. We feel very anxious that they will bring the virus to us.

20

14. They give us soap every two or three days, but it’s not enough. Sometimes we ask

21 for more soap but we don’t get it. We try to share it in the housing unit but it runs out. When the

22 soap runs out, we use the disinfectant that they give us to clean the bathroom to wash our hands.

23 It turns our skin white and it burns.

24

15. They haven’t told us much about COVID-19. We have not been given very much

25 information about how to protect ourselves or what precautions to take, apart from a few signs

26 they posted to wash our hands when we go to the bathroom. The signs are in Spanish, and since

27

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3 DECLARATION OF LUCIANO GONZALO MENDOZA JERONIMO

Case 3:20-cv-02731-VC Document 6-4 Filed 04/20/20 Page 6 of 8

1 I don’t really read Spanish well, I’m not sure what else they say. I do not think the officers have

2 told us to do “social distancing” or keep a safe distance away from each other or from the

3 guards. They speak English, so I may have not understood. I have heard about how critical

4 social distancing is from the outside world—from my wife and my attorney, especially, and

5 other detainees talk about it, too. They haven’t given us any more information about how to

6 protect ourselves or what to do.

7

16. I have never received gloves or a mask. Staff have gloves and masks.

8

17. I’m not aware of anyone being tested for COVID-19.

9

18. I am scared. We could get sick at any time. I worry about what would happen if I

10 got sick while I can’t be with family. I think about this a lot. And I’m worried for my family.

11 My detention is very challenging for my wife as we have no family or friends to help, which of

12 course is now even more difficult with the shelter-in-place order. My wife is an essential worker

13 as she is in the food industry. I worry about what would happen if she were to get sick, and

14 worry about being so far from my children.

15

19. If I am released my wife will pick me up and care for me. I will self-quarantine

16 for 14 days in a separate room in our home in Oakland, CA and then follow any other shelter-

17 in-place order or requirements set by the government or this Court. I do not want my young

18 children, my wife or myself to be infected with the virus. I will do everything possible to make

19 sure that we are all safe and healthy. If I am released, I am committed to following all public

20 health guidelines and rules, including the current shelter in place rules, to ensure the safety of

21 myself and others.

22

20. I understand that, as a class representative, I represent the interests of everyone in

23 the class, and not just myself. I understand I need to stay informed about what is happening with

24 my case and stay in touch with my attorney to give them information they need. I am committed

25 to being a class representative because I know how dangerous it is to be here, and I want

26 everyone to benefit from this case just as much as I do.

27

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4 DECLARATION OF LUCIANO GONZALO MENDOZA JERONIMO

Case 3:20-cv-02731-VC Document 6-4 Filed 04/20/20 Page 7 of 8

1

21. I would like to fight for the rights of all detained immigrants in Yuba County who

2 are currently detained and are at risk of contracting COVID-19

3

22. I have never served as a class representative in any prior action.

4

I, Luciano Gonzalo Mendoza Jeronimo, declare under penalty of perjury that the

5 foregoing is true and correct to the best of my recollection. I sign this at Marysville, California.

6 Date: April 20, 2020 7

//s// Luciano Gonzalo Mendoza Jeronimo Luciano Gonzalo Mendoza Jeronimo

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5 DECLARATION OF LUCIANO GONZALO MENDOZA JERONIMO

Case 3:20-cv-02731-VC Document 6-4 Filed 04/20/20 Page 8 of 8

1

CERTIFICATE OF INTERPRETATION AND AFFIRMATION

2

I, Angela Martin, certify that I am fluent in Mam, Spanish and English and that I am

3 competent to interpret between these languages. I further certify that I have read the foregoing to

4 Luciano Gonzalo Mendoza Jeronimo in Mam. I further declare that I am competent to render this

5 interpretation and that I would testify to the same under the penalty of perjury if I were called

6 upon to do so.

7

I further certify that on April 20, 2020 I read the foregoing to Luciano Gonzalo Mendoza

8 Jeronimo and that he affirmed that the foregoing is true and correct. I have not been able to

9 obtain a signature from Luciano Gonzalo Mendoza Jeronimo because Yuba County Jail is

10 located approximately two hours away from my home by car, and at the time I reviewed the

11 foregoing declaration with him, the county where I reside was, and remains, under a “shelter in

12 place” order.

13 Date: April 20, 2020 14

//s// Angela Martin Angela Martin

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6 DECLARATION OF LUCIANO GONZALO MENDOZA JERONIMO

Case 3:20-cv-02731-VC Document 6-5 Filed 04/20/20 Page 1 of 9

1 WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org
2 SEAN RIORDAN (SBN 255752) sriordan@aclunc.org
3 ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org
4 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN
5 CALIFORNIA 39 Drumm Street
6 San Francisco, CA 94111 Telephone: (415) 621-2493
7 Facsimile: (415) 255-8437
8 Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page
9

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: 415-553-9319 Fax: 415-553-9810

10

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12

13 ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUIZ TOVAR, LAWRENCE
14 MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA
15 YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,
16 Petitioners-Plaintiffs,
17 v.
18 DAVID JENNINGS, Acting Director of the
19 San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T.
20 ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director
21 of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND
22 CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa
23 Verde Detention Facility,

DECLARATION OF CORAIMA YARITZA SANCHEZ NUÑEZ

24

Respondents-Defendants.

25

26

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DECLARATION OF CORAIMA YARITZA SANCHEZ NUÑEZ

Case 3:20-cv-02731-VC Document 6-5 Filed 04/20/20 Page 2 of 9

1 BREE BERNWANGER* (NY SBN 5036397) MARTIN S. SCHENKER (SBN 109828)

bbernwanger@lccrsf.org

mschenker@cooley.com

2 TIFANEI RESSL-MOYER (SBN 319721)

COOLEY LLP

tresslmoyer@lccrsf.org

101 California Street, 5th Floor

3 HAYDEN RODARTE (SBN 329432)

San Francisco, CA 94111

hrodarte@lccrsf.org

Telephone: (415) 693-2000

4 LAWYERS’ COMMITTEE FOR

Facsimile: (415) 693-2222

CIVIL RIGHTS OF

5 SAN FRANCISCO BAY AREA

TIMOTHY W. COOK (Mass. BBO# 688688)*

131 Steuart St #400

tcook@cooley.com

6 San Francisco, CA 94105

FRANCISCO M. UNGER (Mass. BBO#

Telephone: (415) 814-7631

698807)*

7

funger@cooley.com

JUDAH LAKIN (SBN 307740)

COOLEY LLP

8 judah@lakinwille.com

500 Boylston Street

AMALIA WILLE (SBN 293342)

Boston, MA 02116

9 amalia@lakinwille.com

Telephone: (617) 937-2300

LAKIN & WILLE LLP

Facsimile: (617) 937-2400

10 1939 Harrison Street, Suite 420

Oakland, CA 94612

11 Telephone: (510) 379-9216

Facsimile: (510) 379-9219

12

JORDAN WELLS (SBN 326491)

13 jwells@aclusocal.org

STEPHANIE PADILLA (SBN 321568)

14 spadilla@aclusocal.org

AMERICAN CIVIL LIBERTIES UNION

15 FOUNDATION OF SOUTHERN

CALIFORNIA

16 1313 West Eighth Street

Los Angeles, CA 90017

17 Telephone: (213) 977-9500

Facsimile: (213) 977-5297

18

Attorneys for Petitioners-Plaintiffs

19

*Motion for Admission Pro Hac Vice Forthcoming

20

21

22

23

24

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26

27

28

DECLARATION OF CORAIMA YARITZA SANCHEZ NUÑEZ

Case 3:20-cv-02731-VC Document 6-5 Filed 04/20/20 Page 3 of 9

1

DECLARATION OF CORAIMA YARITZA SANCHEZ NUÑEZ

2 I, Coraima Yaritza Sanchez Nuñez, declare the following based on my personal knowledge:

3

1. I make this declaration from my personal knowledge and, if called to testify to

4 these facts, could and would do so competently.

5

2. My full name is Coraima Yaritza Sanchez Nuñez. I was born in Michoacán,

6 Mexico. I am 26 years old. I was brought to the United States when I was around one (1) year

7 old, in approximately 1993. I have never left the United States since I entered as a baby. I have

8 only known the United States and went to elementary, middle and high school in this country.

9 My family is settled in Sonoma County. I am married to a U.S. citizen. I have an older brother

10 who has Deferred Action for Childhood Arrivals (“DACA”) status and a younger sister who is a

11 U.S. citizen. I also held DACA status since approximately 2013 but it was revoked in

12 approximately 2018. With my DACA work authorization, I proudly worked as a Full-Time

13 Lead Teller at Chase Bank for just under five (5) years.

14

3. On March 12, 2018, I was convicted of a felony DUI pursuant to California

15 Vehicle Code Section 23153(b) for drinking and driving in 2017. I was put on probation and for

16 almost one and half years, I tested negative for alcohol during probation visits. Unfortunately, I

17 violated probation in 2019. I was not driving but I did make a mistake since I was not supposed

18 to drink any alcohol during the probation period.

19

4. I know that once I successfully complete probation, I can move to reduce the

20 felony to a misdemeanor and through evidence of my discretion, have a good chance of re-

21 applying for DACA. If successful, I would have status again and probably be able to move to

22 terminate removal proceedings against me.

23

5. I was detained by ICE inside Sonoma County jail when I was released from jail

24 after violating my probation. I was detained first in San Francisco and then transferred to the

25 Mesa Verde Detention Facility. I retained counsel to represent me for both removal proceedings

26 and a bond redetermination hearing.

27

6. A bond hearing was held in front of Immigration Judge Nelson of the San

28 Francisco Immigration Court on October 17, 2019. The Immigration Judge did not take

1 DECLARATION OF CORAIMA YARITZA SANCHEZ NUÑEZ

Case 3:20-cv-02731-VC Document 6-5 Filed 04/20/20 Page 4 of 9

1 testimony from me, she just asked for arguments from my attorney and the government

2 attorney. My attorney summarized the facts and why I was not a danger to society and not a

3 flight risk. She also presented a letter from a rehabilitation center that said that I had a reserved

4 spot to ensure my rehabilitation upon release. Nevertheless, the Judge determined I was a

5 danger to society and denied my release. My family and I decided to not to appeal because of a

6 lack of resources and because of the difficulty in gauging the outcome.

7

7. Still detained at Mesa Verde, removal proceedings against me continued. At the

8 time I was still not married and the only form of relief I applied for was asylum and withholding

9 of removal, and withholding of removal under the Convention Against Torture in the

10 alternative. My Individual Hearing took place on November 13, 2019. Despite evidence,

11 country conditions, letters in support and credible testimony, Judge Nelson denied all my claims

12 on the date of the individual hearing. I timely appealed to the Board of Immigration Appeals by

13 mailing the notice on December 6, 2019. My appeal is still pending at the Board of Immigration

14 Appeals.

15

8. I also recently married while detained. My husband is a U.S. citizen and will be

16 filing form I-130, Petition for Alien Relative, in order to begin the Immigrant Visa process on

17 my behalf. I know that my criminal history is not a bar to admissibility and other than my

18 unlawful presence in the United States, there are no bars to admissibility for my U.S. legal

19 permanent residence.

20

9. I have been detained since August 2019 and soon it will be one (1) year since I

21 have been detained.

22

10. I have always suffered from asthma and complications. I have suffered asthma

23 attacks after simply being exposed to dust or animal hair. Anytime I suffer from a cold or flu, I

24 have difficulty breathing because of my asthma. At the Mesa Verde detention center, I have

25 been issued an inhaler and nasal spray to deal with my asthma. I was also prescribed medication

26 to deal with the wheezing associated with my asthma. Even without significant exertion, I can

27 suffer from my asthma. The last time I was hospitalized due to an asthma attack was

28 approximately 6 years ago.
2 DECLARATION OF CORAIMA YARITZA SANCHEZ NUÑEZ

Case 3:20-cv-02731-VC Document 6-5 Filed 04/20/20 Page 5 of 9

1

11. At Mesa Verde, there are no soap dispensers in the communal restrooms. On April

2 17, 2020, the facility installed a soap dispenser at the entrance of our dorm. The facility gives us

3 one hotel-size shampoo bottle and one bar soap every other day. We are expected to rely on

4 those items for all our multiple hygiene needs, including washing our hands, bathing, and

5 cleaning our personal products. I do not believe that one hotel-size shampoo bottle and one bar

6 soap is enough to keep proper hygiene.

7

12. I am currently housed in Dorm B with approximately 48 other female detainees. A

8 few detainees in my dorm are responsible for cleaning our dorm and communal restrooms—this

9 responsibility falls solely on detainees and not facility staff. Based on my observations, the

10 detainees use the hotel-size shampoo bottles, toothpaste, and lotion to clean the dorm and

11 restrooms. Those detainees clean the restrooms once in the morning and once in the afternoon.

12 Facility staff do not clean the dorms, communal areas, or restrooms. There are two restrooms in

13 Dorm B—one on each side of the dorm. Each restroom has approximately 5 sinks, 5 toilet

14 stalls, and 5 showers. The sinks are close enough that if I am standing at the sink to wash my

15 hands, I am shoulder to shoulder with the detainee standing at the next sink. The showers are

16 small stalls with plastic curtains. There is black mold in the showers and around the sink area.

17

13. The facility was not providing us with facemasks until yesterday. All detainees in

18 my dorm received facemasks yesterday but we have not been provided with any other form of

19 personal protective equipment. On a few occasions, I have observed detainees who clean our

20 dorm and restrooms wear gloves but only while they clean. Most facility staff do not wear

21 facemasks. I have only seen a few staff members wear face masks. I know that one of the

22 recommendations from healthcare professionals to avoid the spread of COVID-19 is to wear a

23 facemask and I am surprised that most facility staff do not wear facemasks despite entering in

24 and out of the facility.

25

14. In the facility, we are also not able to engage in proper social distancing. The bunk

26 beds are spaced less than 6 feet from each other because I am able to reach over to touch the

27 other bed. I currently sleep on a top bunk and, while there is no detainee sleeping in the bottom

28 bunk, there are detainees sleeping in the bunks next to mine. When we go to the dining hall, we
3 DECLARATION OF CORAIMA YARITZA SANCHEZ NUÑEZ

Case 3:20-cv-02731-VC Document 6-5 Filed 04/20/20 Page 6 of 9

1 are required to stand in line right next to each other. There is no way that we can socially

2 distance. The same is true when we sit down to eat. Each table seats approximately 4 to 5

3 detainees, and we all sit next to each other when we eat. The tables are close to each other and

4 are bolted down to the floor. The chairs are affixed to the tables. The tables are less than 6 feet

5 apart from each other. I have never heard facility staff instruct us to sit apart from each other or

6 stand 6 feet apart from others while we are in line. This is extremely concerning to me because I

7 keep hearing in the news that one of the ways to avoid contracting COVID-19 is to engage in

8 social distancing but it is impossible for me to do that in the facility.

9

15. Since the pandemic, the only change I have observed is that the facility installed a

10 napkin dispenser and soap dispenser at the entrance of our dorm. The dispenser holds dry

11 napkins that we can use to wipe things down. I do not know how this is useful because the

12 napkins are not anti-bacterial wipes and but instead regular napkins that only serve to clean up

13 spills.

14

16. About two weeks ago, there was a new detainee that entered our dorm. After

15 speaking with her and other detainees, I learned that she had been transferred to Mesa Verde

16 from Yuba County Jail and was not quarantined or isolated before being placed in our dorm.

17 Sometime in March, there was also a large group of new detainees that entered our Dorm.

18

17. I live in fear of COVID-19 infection and because of that, I have started a hunger

19 strike by not partaking in the general meals. I started the hunger strike on April 9, 2020. I know

20 that those who have serious underlying medical conditions, including asthma like me, are at

21 higher risk for severe illness from COVID-19. I really do feel like I am in a death trap and it’s

22 just a matter of time before infection will harm me. The purpose of the hunger strike is to call

23 attention to the inhumane conditions we are living in inside the facility, including not receiving

24 antibacterial soap, cleaning supplies, protective equipment, poor medical care, and calling for

25 our liberation from immigration detention. Facility staff have threatened those of us who are

26 participating in the hunger strike with stripping us from our commissary privileges. There were

27 close to 40 detainees in my dorm who started the hunger strike with me but because of the

28 threats, there are now around 5 detainees, including myself, participating in the strike. On at
4 DECLARATION OF CORAIMA YARITZA SANCHEZ NUÑEZ

Case 3:20-cv-02731-VC Document 6-5 Filed 04/20/20 Page 7 of 9

1 least two occasions, two different facility officers walked through our dorm and threaten to

2 revoke our commissary if we participated in the hunger strike. I heard one of those officers tell

3 us, “I don’t know why you are starving yourself when ICE doesn’t care about what happens to

4 you.” I depend on access to the commissary to purchase hygiene items like shampoo,

5 conditioner, toothpaste and deodorant. I also use the commissary to purchase food. We only get

6 access to the commissary once a week—on Thursdays. I am more worried that if I don’t

7 advocate for our rights by participating in the hunger strike, I may die from COVID-19. This is

8 why I continue to participate in the hunger strike. However, other detainees have backed down

9 from participating in the hunger strike because of the threats and fears of losing their

10 commissary privileges.

11

18. I am really worried for myself and all immigrant detainees. Being stuck in a

12 congregate setting in immigration detention feels like a death trap because we cannot engage in

13 social distancing, we are forced to make do with the hotel-sized shampoo bottles and bar soaps,

14 and we are not provided with any protective equipment to prevent the spread of the virus. I also

15 know that having asthma puts me at a greater risk of COVID-19 complications.

16

19. If I am released, I would go live with my family in Sonoma County until my

17 husband and I find our own place to live. I am also committed to sheltering in place as required

18 by state and local ordinances.

19

20. I spoke with my attorneys about the responsibility involved in being a class

20 representative. I understand that, as a class representative, I represent the interests of everyone

21 in the class, and not just myself. I understand I need to stay informed about what is happening

22 with my case and stay in touch with my attorney to give them information they need. I am

23 committed to being a class representative because I know how dangerous it is to be here, and I

24 want everyone to benefit from this case just as much as I do. I would like to fight for the rights

25 of all detained immigrants in Yuba County and Mesa Verde who are currently detained and are

26 at risk of contracting COVID-19. I intend to vigorously pursue the claims that have been made

27 in the lawsuit on behalf of all others in the same situation and I will participate in this litigation

28
5 DECLARATION OF CORAIMA YARITZA SANCHEZ NUÑEZ

Case 3:20-cv-02731-VC Document 6-5 Filed 04/20/20 Page 8 of 9

1 as my counsel and I determine is appropriate. I intend to remain involved with this case and

2 represent the proposed class of detained immigrants if I am released from custody.

3

21. I have never served as a class representative in any prior action.

4 I, Coraima Yaritza Sanchez Nuñez, declare under penalty of perjury that the foregoing is true and

5 correct to the best of my recollection. I sign this from Bakersfield, California.

6 Date: April 18, 2020 7

//s// Coraima Yaritza Sanchez Nuñez Coraima Yaritza Sanchez Nuñez

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6 DECLARATION OF CORAIMA YARITZA SANCHEZ NUÑEZ

Case 3:20-cv-02731-VC Document 6-5 Filed 04/20/20 Page 9 of 9

1

CERTIFICATE OF AFFIRMATION

2

I certify that this declaration is based on information told to me by Coraima Yaritza Sanchez

3 Nuñez and that she affirmed that the foregoing is true and correct. I have not been able to obtain a

4 signature from Coraima Yaritza Sanchez Nuñez because Mesa Verde Processing Center is located

5 approximately 2.5 hours away from my home by car, and at the time I reviewed the foregoing

6 declaration with her, the county and state where I reside was, and remains, under a “shelter in

7 place” order.

8 Date: April 18, 2020 9

//s// Angelica Salceda Angelica Salceda

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7 DECLARATION OF CORAIMA YARITZA SANCHEZ NUÑEZ

Case 3:20-cv-02731-VC Document 6-6 Filed 04/20/20 Page 1 of 10

1 WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org
2 SEAN RIORDAN (SBN 255752) sriordan@aclunc.org
3 ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org
4 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN
5 CALIFORNIA 39 Drumm Street
6 San Francisco, CA 94111 Telephone: (415) 621-2493
7 Facsimile: (415) 255-8437
8 Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page
9

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: 415-553-9319 Fax: 415-553-9810

10

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12

13 ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUIZ TOVAR, LAWRENCE
14 MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA
15 YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,
16 Petitioners-Plaintiffs,
17 v.
18 DAVID JENNINGS, Acting Director of the
19 San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T.
20 ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director
21 of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND
22 CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa
23 Verde Detention Facility,

DECLARATION OF JAVIER ALFARO

24

Respondents-Defendants.

25

26

27

28
DECLARATION OF JAVIER ALFARO

Case 3:20-cv-02731-VC Document 6-6 Filed 04/20/20 Page 2 of 10

1 BREE BERNWANGER* (NY SBN 5036397) MARTIN S. SCHENKER (SBN 109828)

bbernwanger@lccrsf.org

mschenker@cooley.com

2 TIFANEI RESSL-MOYER (SBN 319721)

COOLEY LLP

tresslmoyer@lccrsf.org

101 California Street, 5th Floor

3 HAYDEN RODARTE (SBN 329432)

San Francisco, CA 94111

hrodarte@lccrsf.org

Telephone: (415) 693-2000

4 LAWYERS’ COMMITTEE FOR

Facsimile: (415) 693-2222

CIVIL RIGHTS OF

5 SAN FRANCISCO BAY AREA

TIMOTHY W. COOK (Mass. BBO# 688688)*

131 Steuart St #400

tcook@cooley.com

6 San Francisco, CA 94105

FRANCISCO M. UNGER (Mass. BBO#

Telephone: (415) 814-7631

698807)*

7

funger@cooley.com

JUDAH LAKIN (SBN 307740)

COOLEY LLP

8 judah@lakinwille.com

500 Boylston Street

AMALIA WILLE (SBN 293342)

Boston, MA 02116

9 amalia@lakinwille.com

Telephone: (617) 937-2300

LAKIN & WILLE LLP

Facsimile: (617) 937-2400

10 1939 Harrison Street, Suite 420

Oakland, CA 94612

11 Telephone: (510) 379-9216

Facsimile: (510) 379-9219

12

JORDAN WELLS (SBN 326491)

13 jwells@aclusocal.org

STEPHANIE PADILLA (SBN 321568)

14 spadilla@aclusocal.org

AMERICAN CIVIL LIBERTIES UNION

15 FOUNDATION OF SOUTHERN CALIFORNIA

1313 West Eighth Street

16 Los Angeles, CA 90017

Telephone: (213) 977-9500

17 Facsimile: (213) 977-5297

18

Attorneys for Petitioners-Plaintiffs

*Motion for Admission Pro Hac Vice Forthcoming

19

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DECLARATION OF JAVIER ALFARO

Case 3:20-cv-02731-VC Document 6-6 Filed 04/20/20 Page 3 of 10

1

DECLARATION OF JAVIER ALFARO

2 I, Javier Alfaro, declare under the penalty of perjury that the following is true and correct to the

3 best of my knowledge:

4

1. I was born on January 8, 1981. I have lived in the United States since 2000

5 without leaving. I am currently in removal proceedings after a January 2020 arrest by

6 immigration authorities at the Fresno County courthouse. My removal proceedings follow from

7 a conviction which resulted in my losing my Temporary Protected Status, without my

8 knowledge.

9

2. I live in Mendota, California. I have lived at the same address in Mendota for

10 more than seven years. I live with my wife and three children: a daughter who is 15 years old; a

11 son who is eight years old; and my baby girl, who was born in June 2019. I also have two other

12 children who do not live with me; one lives in El Salvador.

13

3. I have lived in Mendota for practically the entire time that I have lived in the

14 United States. The only other place I lived was in Virginia where my wife and I lived for three

15 months just before the birth of my eldest daughter because I was having difficulty finding work

16 in Mendota.

17

4. I met my wife in around 2003 while we were working in the farms in Salinas. I

18 love her very much. My children are the reason I live. They are very important to me. It is

19 extraordinarily difficult for me that I am not with my infant daughter in particular because she is

20 so young.

21

5. I want to be a good father to my children, make sure that they have a good

22 education, ensure that they have a strong grounding in their faith, and make sure that they are

23 happy. I try to spend time with them, playing with them, taking them places where they want to

24 go, and making sure that they value themselves and the choices they make in their lives.

25

6. I am regretful of the mistakes that I have made in my life as I know that this is

26 why I am not with my family. I hope to be released and given another opportunity. If I am

27 released, I want to dedicate myself fully to my family.

28

1

DECLARATION OF JAVIER ALFARO

Case 3:20-cv-02731-VC Document 6-6 Filed 04/20/20 Page 4 of 10

1

7. I have worked in farms, as a driver, and as a long-distance trucker over the past

2 20 years. My work has been fairly regular over this time. I have consistently paid taxes.

3

8. I first was granted Temporary Protected Status (TPS) when El Salvador was

4 designated for TPS in 2001. I have consistently renewed my TPS status. Recently, I consulted a

5 notario who told me that, because of litigation in the case of Ramos v. Nielsen, TPS-holders

6 from El Salvador did not need to formally submit papers in order for their TPS to be extended.

7 This was the same notario who had helped me fill out my applications previously, so I trusted

8 that this was accurate information. Moreover, I never received any notice that my TPS had been

9 withdrawn. Therefore, up until my arrest by ICE, I believed that my TPS was current.

10

9. In 2018, I was convicted of one felony count of California Penal Code § 273.5. I

11 plead guilty on the date of a scheduled preliminary hearing because I wanted to return home to

12 my children. I did not understand what the consequences would be for my TPS. I was not

13 advised of the consequences by my attorney. I only understood that there would be

14 consequences when I was arrested by ICE. Now?

15

10. The conviction related to an incident with a woman who was not my wife. I

16 regret deeply that I had been unfaithful to my wife, and I am so grateful that my wife has

17 forgiven me for my mistakes. If I could go back and undo the damage that I have caused in my

18 own life and for my family, I never would have had that relationship.

19

11. I’m seeking to terminate my removal proceedings because of the unlawful way I

20 was arrested. My immigration attorney is also currently seeking post-conviction relief related to

21 my conviction. If I am successful in securing post-conviction relief, I believe I should be able to

22 regain my TPS. I will also be seeking other forms of immigration relief, including a U visa,

23 asylum, and non-LPR cancellation of removal.

24

12. On January 14, 2020, I was arrested by ICE at the Fresno County Courthouse

25 when I went to a hearing in connection with my case. Inside the courthouse, and outside of the

26 courtroom door, one man and one woman in civilian clothing stopped me. They asked me my

27

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2

DECLARATION OF JAVIER ALFARO

Case 3:20-cv-02731-VC Document 6-6 Filed 04/20/20 Page 5 of 10

1 name and nothing else. I told them my name. They then put me up against the wall and put

2 handcuffs on me.

3

13. I told the agents that I was going to court and had an obligation to attend my

4 hearing. I was surprised that they ultimately told me that they were immigration authorities.

5 When they told me they were from ICE, I said I did not have an immigration problem. I told

6 them that I had legal status to be in the United States, as I believed that my TPS was still

7 current. They told me that my authorization to be in the United States had expired. They

8 grabbed my identification documents from my pants pocket after my arrest, but otherwise did

9 not ask me questions.

10

14. After my arrest, the agents brought me to a van and drove me to another building

11 near the court, and that evening brought me to Mesa Verde Detention Center in Bakersfield. I

12 have been detained at Mesa Verde Detention Center since that day.

13

15. At Mesa Verde Detention Center, I am in C Block. I have been in C Block since

14 I arrived.

15

16. There is space for 100 detainees in C Block, and it has been full or almost full

16 since I arrived. I think that there are now about 98 or 99 people in our unit; I think there is only

17 one bed or two beds free.

18

17. Since I arrived in January, it has seemed that within hours of someone leaving, a

19 new person comes in to take their place. This happened last week with the few departures, and

20 the new people who came in to replace them. One person left and another person took his bunk

21 within hours of the person leaving. We do not know if the people coming to our unit have been

22 exposed to the coronavirus, but it makes us nervous.

23

18. We sleep in one big dormitory room in bunk beds. There are fifty bunk beds and

24 they are bolted to the ground. They are so close to one another that I can reach out my arms and

25 touch another bunk bed. I sleep on the bottom bunk and if I sit up, I will bump my head on the

26 upper bunk.

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3

DECLARATION OF JAVIER ALFARO

Case 3:20-cv-02731-VC Document 6-6 Filed 04/20/20 Page 6 of 10

1

19. I know that there are people who are more likely to get very sick from

2 coronavirus, and it doesn’t seem that they are protected in any way here in the detention center.

3 For instance, there are older people in our big dormitory room and they sleep on the bunk beds

4 like everyone else. There are two people who are in their seventies in the dorm.

5

20. Most of what I know about the coronavirus I have learned from watching the

6 news. The authorities at the detention center have not shared much with us. They have told us

7 that we should wash our hands with soap and water, but they have not mentioned “social

8 distancing” to us. I learned about “social distancing” from watching the news in the detention

9 center.

10

21. Even if the authorities had told us about social distancing, it doesn’t seem like

11 there would be any way to practice social distancing in the detention center. We interact with

12 dozens of other detainees on a regular basis and in close quarters. We are right up against one

13 another all day every day—when we sleep, when we eat, when we go to the yard for recreation,

14 and when we go to the bathroom.

15

22. There is no space or separation, and the authorities have not done anything to

16 stagger the times that we eat or limit access to the bathrooms or other common spaces. When

17 we watch television, people sit right next to one another. We all eat our meals together, and

18 every one of the four seats at a fixed table – bolted to the ground – is full. The bathroom stalls

19 and sinks are so close to one another that you are always within arm’s reach of the person in the

20 next stall or at the next sink.

21

23. I worry that it is not very clean and sanitary here in our common spaces. My

22 fellow detainees are responsible for cleaning the common spaces, and I believe that they are

23 paid a dollar a day for their work in cleaning the bathrooms or the cafeteria area. I have

24 sometimes helped people clean, and the guards do not give a sufficient amount of time to clean

25 the common spaces, even now despite the pandemic. I think it usually is only around ten or

26 fifteen minutes to clean the cafeteria area, for instance, and that is not enough time. We use and

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DECLARATION OF JAVIER ALFARO

Case 3:20-cv-02731-VC Document 6-6 Filed 04/20/20 Page 7 of 10

1 re-use the same little towel over and over again to dry our hands or wipe surfaces, and it smells

2 and is unsanitary.

3

24. There was a protest last week outside in the recreation yard where we were

4 screaming that we wanted our freedom. We used socks – which is all we had – as masks to

5 show that we did not have the most basic things that we needed to protect ourselves. I

6 participated in this protest.

7

25. We also had a hunger strike and I participated in this hunger strike; our whole

8 unit did. I thought it was important to participate because I wanted to be free and was afraid that

9 I and other detainees were all going to get coronavirus because of the conditions inside the

10 detention centers. We were seeking protection for everyone through this protest. We were

11 getting the food from the commissary, using our own money, but we refused to eat in the

12 cafeteria. I helped shared food from the commissary for others who did not have money, and

13 those who were older and sick; other detainees did too so that we would all support one another.

14 For about 72 hours, we refused to eat meals at the cafeteria.

15

26. We had to stop the protest because the authorities from the detention center

16 threatened that they were going to prevent us from using the commissary if we refused to eat in

17 the cafeteria. Besides food, we used the commissary to buy shampoo, soap, toiletries, coffee and

18 other things. I often have to buy soap and cleaning supplies from the commissary because

19 otherwise I would not have enough to stay clean or clean my things. The detention center

20 authorities were even going to deny us things that we had already ordered and purchased with

21 our own money. We decided that we had no other option but to stop the protest, especially

22 because we were worried about those who were older and sick and needed the food, and were

23 more at risk from the coronavirus.

24

27. In the yard, where we have recreation, we have typically all gone out at the same

25 time. Over the last week, the authorities at the detention center have only allowed 50 of us to go

26 out at the same time. However, this was after the protest at the detention center. It does not

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5

DECLARATION OF JAVIER ALFARO

Case 3:20-cv-02731-VC Document 6-6 Filed 04/20/20 Page 8 of 10

1 seem like the restriction was a response to the need for social distancing, but instead a response

2 to the protest so that we would not be engaged in other protests.

3

28. I have had some health issues, including high cholesterol, which I take medicine

4 for because of the risk of heart problems associated with it. I have taken medication for my high

5 cholesterol for years. I have also had some other illnesses since I have been here, including

6 headaches and cold-like symptoms a few weeks ago.

7

29. I have never been tested for the coronavirus and I don’t know of anyone at the

8 detention center who has been tested for the coronavirus. I have asked around and I don’t think

9 that anyone has been tested. I have had my temperature taken, but not often. I think the last time

10 that I had my temperature taken is when I went to the medical unit a few weeks ago.

11

30. I have also never heard of anyone here who has been isolated or quarantined.

12 There are new people who have arrived, from other detention facilities or prison, for example,

13 and I don’t think they were quarantined before they joined our unit.

14

31. On Friday, for the first time, authorities here gave each of us masks. They did not

15 explain to us why they were giving us masks or how or when to wear them, but they gave us

16 each one. Some of the staff wear masks or other protective equipment here, but not everyone.

17

32. I am very worried about my health and the health of other people at the detention

18 center because of the risk of the coronavirus. I know that we all just want to return home to our

19 families. I am worried about what will happen to me. I know that I need to stay healthy to be

20 able to come home to my children. I don’t know that I have the power to stay healthy here in the

21 detention center; it seems so much of what I need to do is out of my control.

22

33. If I am released from detention, my sister-in-law would be able to pick me up

23 and I would live with my family at the address where I have lived for many years.

24

34. I spoke with my attorney about what it means to be a class representative in this

25 case. I understand that I am representing the interests of other people who are detained and not

26 just my own interests. I also know that it is my responsibility to stay reasonably informed about

27 the case and provide my attorneys with the information they need to prosecute the case. I am

28

6

DECLARATION OF JAVIER ALFARO

Case 3:20-cv-02731-VC Document 6-6 Filed 04/20/20 Page 9 of 10

1 committed to play the role of a class representative because I know that it is not just me who is

2 suffering, but everyone else who is detained with me. This is my first time serving as a class

3 representative.

4 I, Javier Alfaro, declare under penalty of perjury that the foregoing is true and correct to the best

5 of my recollection. I sign this at Bakersfield, California.

6

April 19, 2020

Date 7

//s// Javier Alfaro Javier Alfaro

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DECLARATION OF JAVIER ALFARO

Case 3:20-cv-02731-VC Document 6-6 Filed 04/20/20 Page 10 of 10

CERTIFICATE OF INTERPRETATION AND AFFIRMATION 1

2 I, Emilou MacLean, declare that I am competent to interpret from English to Spanish. I certify that on April 19, 2020, I read the above English declaration to Javier Alfaro in the Spanish

3 language via telephone and he confirmed the contents are true and correct to the best of his

recollection. I have not been able to obtain a signature from Mr. Alfaro because Mesa Verde 4 Detention Center is located approximately five hours away from my home by car, and at the

5

time I reviewed the foregoing declaration with him, the county and state where I reside was, and remains, under a “shelter in place” order. I sign this in San Francisco, California.

6 April 19, 2020
7 Date

//s// Emilou MacLean Emilou MacLean

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DECLARATION OF JAVIER ALFARO

Case 3:20-cv-02731-VC Document 6-7 Filed 04/20/20 Page 1 of 9

1 WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org
2 SEAN RIORDAN (SBN 255752) sriordan@aclunc.org
3 ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org
4 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN
5 CALIFORNIA 39 Drumm Street
6 San Francisco, CA 94111 Telephone: (415) 621-2493
7 Facsimile: (415) 255-8437
8 Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page
9

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: 415-553-9319 Fax: 415-553-9810

10

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12

13 ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUIZ TOVAR, LAWRENCE
14 MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA
15 YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,
16 Petitioners-Plaintiffs,
17 v.
18 DAVID JENNINGS, Acting Director of the
19 San Francisco Field Office of U.S. Immigration and Customs Enforcement;
20 MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of
21 the Director of the U.S. Immigration and Customs Enforcement; U.S.
22 IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.;
23 NATHAN ALLEN, Warden of Mesa Verde Detention Facility,
24 Respondents-Defendants.
25

DECLARATION OF DUNG TUAN DANG

26

27

28
DECLARATION OF DUNG TUAN DANG

Case 3:20-cv-02731-VC Document 6-7 Filed 04/20/20 Page 2 of 9

1 BREE BERNWANGER* (NY SBN 5036397) MARTIN S. SCHENKER (SBN 109828)

bbernwanger@lccrsf.org

mschenker@cooley.com

2 TIFANEI RESSL-MOYER (SBN 319721)

COOLEY LLP

tresslmoyer@lccrsf.org

101 California Street, 5th Floor

3 HAYDEN RODARTE (SBN 329432)

San Francisco, CA 94111

hrodarte@lccrsf.org

Telephone: (415) 693-2000

4 LAWYERS’ COMMITTEE FOR

Facsimile: (415) 693-2222

CIVIL RIGHTS OF

5 SAN FRANCISCO BAY AREA

TIMOTHY W. COOK (Mass. BBO# 688688)*

131 Steuart St #400

tcook@cooley.com

6 San Francisco, CA 94105

FRANCISCO M. UNGER (Mass. BBO#

Telephone: (415) 814-7631

698807)*

7

funger@cooley.com

JUDAH LAKIN (SBN 307740)

COOLEY LLP

8 judah@lakinwille.com

500 Boylston Street

AMALIA WILLE (SBN 293342)

Boston, MA 02116

9 amalia@lakinwille.com

Telephone: (617) 937-2300

LAKIN & WILLE LLP

Facsimile: (617) 937-2400

10 1939 Harrison Street, Suite 420

Oakland, CA 94612

11 Telephone: (510) 379-9216

Facsimile: (510) 379-9219

12

JORDAN WELLS (SBN 326491)

13 jwells@aclusocal.org

STEPHANIE PADILLA (SBN 321568)

14 spadilla@aclusocal.org

AMERICAN CIVIL LIBERTIES UNION

15 FOUNDATION OF SOUTHERN CALIFORNIA

1313 West Eighth Street

16 Los Angeles, CA 90017

Telephone: (213) 977-9500

17 Facsimile: (213) 977-5297

18

Attorneys for Petitioners-Plaintiffs

*Motion for Admission Pro Hac Vice Forthcoming

19

20

21

22

23

24

25

26

27

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DECLARATION OF DUNG TUAN DANG

Case 3:20-cv-02731-VC Document 6-7 Filed 04/20/20 Page 3 of 9

1

DECLARATION OF DUNG TUAN DANG

2

1. My name is Dung Tuan Dang. I was born in Vietnam in 1970. I make this

3 declaration based on my personal knowledge, except as to any matters that were reported to me

4 by my attorney.

5

2. I am currently detained at the Mesa Verde Detention Facility in Bakersfield,

6 California. I have been detained here since June 7, 2019.

7

3. I have not had a bond hearing because I am subject to mandatory detention. This

8 means that in over 10 months, no immigration judge has reviewed whether I can be released

9 from custody on a bond or some other conditions.

10

4. I entered the United States as a lawful permanent resident in October 30, 1989. I

11 have resided in the United States since that time—over thirty years. This is my home.

12

5. I am an Amerasian. My father was a U.S. soldier during the Vietnam War and my

13 mother was Vietnamese. I do not know the identity of my father. My mother abandoned me

14 when I was 4 months old. I do not know her identity. I was taken in by a Vietnamese family

15 who later adopted me and then they brought me to the United States under the Homecoming

16 Act. My adopted sister, two adopted brothers, adopted mother, and adopted father all reside in

17 San Jose California, where I also resided before my last arrest. They are all naturalized U.S.

18 citizens. I am single and do not have any children. I worked for the last 25 years with my father

19 doing gardening and landscaping with his business.

20

6. I suffered a lot of trauma as a young person in Vietnam, and it’s haunted me ever

21 since coming to the United States. For a long time, I was not able to ask for help dealing with

22 the pain and depression. This has led me to make a lot of poor decisions out of anger and out of

23 fear that I truly regret. The incident for which I was convicted and the later probation violation

24 stemmed from these problems. I am finally ready to accept help now. Recently, I was diagnosed

25 with Persistent Depressive Disorder and Alcohol Abuse Disorder by a licensed psychologist.

26 The psychologist recommended dual diagnosis treatment upon my reentry and suggested

27

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DECLARATION OF DUNG TUAN DANG

Case 3:20-cv-02731-VC Document 6-7 Filed 04/20/20 Page 4 of 9

1 several Vietnamese counseling/treatment programs in the Bay Area. I am committed to getting

2 the treatment I need when I am released. My adopted family will support me and, if necessary,

3 help pay for this treatment. Now I have a plan and am ready to get this treatment.

4

7. On November 20, 2019, the immigration judge terminated my lawful permanent

5 resident status on the basis of my criminal conviction. In 2014, I was convicted of Penal Code

6 section 245(a)(4) (assault with a deadly weapon), a felony, and Penal Code section 594(a)/(b),

7 (misdemeanor vandalism), in San Jose, California. I was at first given 3 years probation and

8 given an 8-month county jail sentence. Then, in 2016, I admitted a probation violation for

9 trespass, disturbing the peace, a DUI, and failure to report. I was scared to report after missing

10 an appointment. For the probation violation, I was given the low term of a two-year prison

11 sentence, but, with all of my credits, I only had to serve approximately 6 months and 23 days in

12 prison. I was then picked up by ICE and taken to Mesa Verde Detention Facility.

13

8. The immigration judge also denied my application for Withholding of Removal

14 and Relief under the Convention Against Torture. I was stoned and beaten as a child because

15 my father was a U.S. soldier, then arrested for no reason and shackled by my legs in wooden

16 shackles, then forced as a 13-year-old into a forced labor camp under terrible conditions. I

17 escaped after 6 months and hid in an abandoned bunker in the mountains with other Amerasian

18 children. Despite this persecution and torture, the Judge denied my application to stay in the

19 U.S. I appealed my case to the Board of Immigration Appeals and the appeal is still pending. I

20 plan on filing a Petition for Review in the Ninth Circuit if the appeal is denied. I will continue to

21 fight my case as long as possible because I am deeply afraid of going back to Vietnam.

22

9. Even if my removal order is upheld, I do not believe that I will be actually

23 removed to Vietnam because I came to the U.S. prior to 1996. I understand that only a very few

24 Vietnamese who came to the U.S. prior to 1996 have been actually removed to Vietnam and

25 that most Vietnamese ordered removed are allowed to stay under an Order of Supervision,

26 where they check-in periodically with ICE.

27

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DECLARATION OF DUNG TUAN DANG

Case 3:20-cv-02731-VC Document 6-7 Filed 04/20/20 Page 5 of 9

1

10. I would like to be released to my family because I am terrified of dying of

2 COVID-19. Where I am detained at Mesa Verde, I cannot take basic steps to protect myself

3 from the virus, and I am afraid that if I catch it, I will suffer severe consequences without being

4 able to receive adequate medical care.

5

11. I am housed in unit C. There are currently around 100 people in the unit. The

6 numbers in the unit change because people come and go; some days all of the beds are full.

7 Other times, there are maybe one to two beds that are empty. I don’t have a cell or private living

8 quarter-it is a dorm setting with bunk beds. I sleep on the bottom and someone else sleeps on

9 the top.

10

12. New people have come into Dorm C recently who are coughing and sound sick. It

11 makes me scared to hear them. I do not know if they have the coronavirus or not.

12

13. Our living quarters are so close that if I am standing next to my bunk bed, I can

13 touch the other bunks on both sides of me.

14

14. The room I am housed in is set up into two bigger partitions. There are 24 double

15 bunks on one side, and 25 double bunks on the other side. There are bathrooms in the middle.

16 On each side of the dorm there are two urinals and three toilet stalls. In the morning there is a

17 line for the bathrooms. There is no distancing when you are in line. When you stand to go pee at

18 a urinal, and if someone else is peeing at the same time, they are standing right next to you –

19 they could be inches away depending on the size of the person. The closed toilet stalls are

20 separated by wood panels. The panels do not go all the way up to the ceiling. If someone stands

21 in the stall next to you, you can see their head. They are the same distance away as the distance

22 between the urinals. In the restroom area there are five sinks for washing your hands and

23 brushing your teeth. The sinks are in an open area without dividers. The distance between the

24 sinks is about a hand length if you stretch your fingers out wide.

25

26

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3

DECLARATION OF DUNG TUAN DANG

Case 3:20-cv-02731-VC Document 6-7 Filed 04/20/20 Page 6 of 9

1

15. There are five showers for each side of the dorm. They are separated by panels

2 that are the same height as those for the toilet stalls. When you shower you can see the person’s

3 head next to you showering.

4

16. The detainees at the facility are “hired” to clean the bathrooms once daily, as well

5 as other parts of the dorm. We get paid $1 per day. I am in charge of mopping one side of the

6 dorm underneath the bunkbeds. I get a mop, gloves, and some kind of cleaning solution. I have

7 to wear my own shoes.

8

17. To eat, the guards take us downstairs to the chow hall. We get in line, collect a

9 tray, get our seat, and eat. We are inches apart when we are in line. Two detainees are hired to

10 pass out the food trays. They wear gloves but no masks as they are passing out the food. There

11 is no barrier between the servers and those in line. The people serving the food are an arm’s

12 length distance or less from the detainees lined up to receive trays. The distance can be as little

13 as one foot away.

14

18. There are 4 chairs connected to each table and there is no room for social

15 distancing. You are essentially shoulder to shoulder with the person seated next to you at the

16 table. The table (and its seats) is bolted to the floor and cannot be moved. The distance from one

17 table to the next is less than six feet. No changes have been made to make sure there are fewer

18 people eating at the tables.

19

19. Social distancing is impossible in this facility.

20

20. We do not have Kleenex or hand sanitizer anywhere in unit C.

21

21. I participated in a hunger strike about a week ago with other detainees because we

22 were all scared that we were not being protected from coronavirus. Our goal was to get public

23 attention and management attention and have people released from custody. Everybody but

24 about ten people in Dorm C participated. We skipped meals for 3 days starting April 10th and

25 ending on Monday night, April 13th. This didn’t lead to any changes to make us safer. The

26 detention center has made no effort to keep us apart at a safe distance from each other. No

27

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DECLARATION OF DUNG TUAN DANG

Case 3:20-cv-02731-VC Document 6-7 Filed 04/20/20 Page 7 of 9

1 masks have been distributed. They have not told us how to make mask ourselves. Some guards

2 wear masks. Others don’t.

3

22. I believe I am especially at risk because of my health conditions. I have latent

4 Tuberculosis and take medication for this called Isoniazid. I was on medication for latent

5 Tuberculosis when I was in prison as well. My attorney informed me that this condition puts me

6 at higher risk of having severe symptoms of COVID and requiring hospitalization.

7

23. My attorney tried to get me released because of my medical condition and the

8 coronavirus. He contacted my deportation officer at ICE in Bakersfield. He said they told him

9 they reviewed my medical records but denied my release after the review.

10

24. Other medical conditions I have is that I cough every morning and have yellow

11 mucous that comes out of my nose and mouth. This condition has persisted for the last 1 ½

12 years. I also have bad allergies, and congestion all the time. I have difficulty breathing out of

13 my nose since I am always congested. I also believe that I have high blood pressure but am not

14 on any medication for that. I am not sure what other medical conditions I have. I have asked for

15 my records for a long time now and they were not given to me. My attorney demanded them,

16 and they were just given to my attorney on April 16, 2020. Now I understand that my latent

17 tuberculosis puts me at high risk for coronavirus.

18

25. Just as I did with the hunger strike, I would like to continue to fight for the rights

19 of all detainees who are at risk of contracting the coronavirus. I understand that, as a class

20 representative, I represent the interests of everyone in the class, and not just myself. I

21 understand I need to stay informed about what is happening with my case and stay in touch with

22 my attorneys to give them the information they need. I am committed to being a class

23 representative because I know how dangerous it is to be here, and I want everyone to benefit

24 from this case just as much as I do. I have never served as a class representative in a prior

25 action.

26

27

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5

DECLARATION OF DUNG TUAN DANG

Case 3:20-cv-02731-VC Document 6-7 Filed 04/20/20 Page 8 of 9

1

26. If released from custody, I will stay with my adopted family in their house in San

2 Jose which includes my adopted sister who works as a project manager at Kaiser, my adopted

3 mother and my adopted father. They have told me that they will gladly take me in. I will

4 quarantine upon release for 14 days. They have a space in the house where I can quarantine

5 from them. I will follow all shelter in place orders in California and Santa Clara County.

6

27. If released from custody I will be on PCRS (Post Release Community

7 Supervision) for about 2 more years. The first thing I will do if released is to contact PCRS

8 which I understand is run by the Santa Clara County Probation Department. I will follow and do

9 whatever they say. I don’t want to ever go back to jail, prison, or immigration detention. I also

10 will refrain from drinking any alcoholic beverages.

11

28. If released from custody and lose my appeal with the Board of Immigration

12 Appeals, I understand that I will be under an Order of Supervision with ICE. I will be required

13 to check-in and follow certain other requirements. I will do whatever they tell me to do.

14

29. If released from custody, I would follow any conditions of supervision ordered by

15 this Court as well.

16

17

18

19

20

21

22

23

24

25

26

27

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6

DECLARATION OF DUNG TUAN DANG

Case 3:20-cv-02731-VC Document 6-7 Filed 04/20/20 Page 9 of 9

1

AFFIRMATION

2

I, Michael K. Mehr, certify that Mr. Dang’s sister, Nga Hong Dang, translated the above

3 to Mr. Dang in Vietnamese and that she is competent to translate from English to Vietnamese. I

4 further certify that on April 18, 2020, Mr. Dang affirmed that the foregoing is true and correct. I

5 have not been able to obtain a signature from Mr. Dang because Mesa Verde Processing Center

6 is located approximately three and a half hours away from my home be car, and at the time I

7 reviewed the foregoing declaration with him, the county and state where I reside was, and

8 remains, under a “shelter in place” order.

9

/s/ Michael K. Mehr

Michael K. Mehr, SB#71925

10

Law Office of Mehr & Soto, LLP

100 Doyle St., Suite A

11

Santa Cruz, CA. 95062

MMehr51@gmail.com

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

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7

DECLARATION OF DUNG TUAN DANG

Case 3:20-cv-02731-VC Document 6-8 Filed 04/20/20 Page 1 of 5

1 WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org
2 SEAN RIORDAN (SBN 255752) sriordan@aclunc.org
3 ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org
4 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN
5 CALIFORNIA 39 Drumm Street
6 San Francisco, CA 94111 Telephone: (415) 621-2493
7 Facsimile: (415) 255-8437
8 Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page
9

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: 415-553-9319 Fax: 415-553-9810

10

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12

13 ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUIZ TOVAR, LAWRENCE
14 MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA
15 YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,
16 Petitioners-Plaintiffs,
17 v.
18 DAVID JENNINGS, Acting Director of the
19 San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T.
20 ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director
21 of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND
22 CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa
23 Verde Detention Facility,

CASE NO.
DECLARATION OF WILLIAM S. FREEMAN IN SUPPORT OF MOTION OF CLASS CERTIFICATION

24

Respondents-Defendants.

25

26

27

28
DECLARATION OF WILLIAM S. FREEMAN IN SUPPORT OF MOTION OF CLASS CERTIFICATION

Case 3:20-cv-02731-VC Document 6-8 Filed 04/20/20 Page 2 of 5

1 BREE BERNWANGER* (NY SBN 5036397) MARTIN S. SCHENKER (SBN 109828)

bbernwanger@lccrsf.org

mschenker@cooley.com

2 TIFANEI RESSL-MOYER (SBN 319721)

COOLEY LLP

tresslmoyer@lccrsf.org

101 California Street, 5th Floor

3 HAYDEN RODARTE (SBN 329432)

San Francisco, CA 94111

hrodarte@lccrsf.org

Telephone: (415) 693-2000

4 LAWYERS’ COMMITTEE FOR

Facsimile: (415) 693-2222

CIVIL RIGHTS OF

5 SAN FRANCISCO BAY AREA

TIMOTHY W. COOK (Mass. BBO# 688688)*

131 Steuart St #400

tcook@cooley.com

6 San Francisco, CA 94105

FRANCISCO M. UNGER (Mass. BBO#

Telephone: (415) 814-7631

698807)*

7

funger@cooley.com

JUDAH LAKIN (SBN 307740)

COOLEY LLP

8 judah@lakinwille.com

500 Boylston Street

AMALIA WILLE (SBN 293342)

Boston, MA 02116

9 amalia@lakinwille.com

Telephone: (617) 937-2300

LAKIN & WILLE LLP

Facsimile: (617) 937-2400

10 1939 Harrison Street, Suite 420

Oakland, CA 94612

11 Telephone: (510) 379-9216

Facsimile: (510) 379-9219

12

JORDAN WELLS (SBN 326491)

13 jwells@aclusocal.org

STEPHANIE PADILLA (SBN 321568)

14 spadilla@aclusocal.org

AMERICAN CIVIL LIBERTIES UNION

15 FOUNDATION OF SOUTHERN CALIFORNIA

1313 West Eighth Street

16 Los Angeles, CA 90017

Telephone: (213) 977-9500

17 Facsimile: (213) 977-5297

18

Attorneys for Petitioners-Plaintiffs

*Motion for Admission Pro Hac Vice Forthcoming

19

20

21

22

23

24

25

26

27

28
DECLARATION OF WILLIAM S. FREEMAN IN SUPPORT OF MOTION OF CLASS CERTIFICATION

Case 3:20-cv-02731-VC Document 6-8 Filed 04/20/20 Page 3 of 5

1 I, William S. Freeman, declare as follows:

2

1. I am an attorney admitted to practice in California. I am Senior Counsel at the

3 American Civil Liberties Union Foundation of Northern California (“ACLUF-NC”), counsel for

4 Petitioners in this action. I submit this declaration in support of Petitioners’ Motion for Class

5 Certification. I have personal knowledge of the facts stated in this declaration.

6

2. The ACLUF-NC is a non-profit corporation that is tax-exempt under § 501(c)(3)

7 of the Internal Revenue Code. It is a nonpartisan organization dedicated to defending the civil

8 liberties and civil rights guaranteed by the federal and state constitutions. The ACLUF-NC does

9 not receive government funding. The ACLUF-NC litigates civil rights cases, frequently in

10 conjunction with private counsel, combining our expertise in civil rights and impact litigation

11 with the resources and experience of the private bar.

12

3. I have been an active member of the State Bar of California since 1978. I

13 received a J.D. degree from Harvard Law School in 1978, where I served as an editor of the

14 Harvard Law Review, and a B. A. degree, summa cum laude, from Harvard College in 1974.

15 During my career I have focused on complex civil litigation, including serving as lead counsel

16 on over 30 class actions in state and federal court.

17

4. Prior to my current position with the ACLUF-NC, I worked as a Trial Attorney in

18 the Civil Division of the United States Department of Justice in Washington, D.C. (1978-81); an

19 associate (1981-86) and partner (1986-2010) of the law firm Cooley LLP in San Francisco and

20 Palo Alto, California; and a partner of the law firm Jones Day in Palo Alto, California (2010-

21 16).

22

5. I have held my current position with the ACLUF-NC since January 2017. During

23 that time, I have participated in a broad variety of cases in federal and state courts seeking to

24 vindicate the rights of ACLUF-NC clients. I have served as lead or co-lead counsel for certified

25 classes in each of the following cases:

26

a. Saravia v. Sessions (280 F.Supp.3d 1168 (N.D.Cal. 2017), affirmed, 905 F.3d

27

1137 (9th Cir. 2018)) (preliminary injunction issued to prevent government from

28

1

DECLARATION OF WILLIAM S. FREEMAN IN SUPPORT OF MOTION OF CLASS CERTIFICATION

Case 3:20-cv-02731-VC Document 6-8 Filed 04/20/20 Page 4 of 5

1

detaining immigrant teenagers without hearing based on allegations of gang

2

affiliation).

3

b. Sanchez v. California Department of Transportation (Alameda Superior Court,

4

No. RG16842117) (injunctive and damages action challenging Caltrans’ seizure

5

and destruction of property of unhoused persons residing on its rights-of-way;

6

settlement currently pending court approval).

7

6. The following additional cases are also representative of my civil rights work on

8 behalf of plaintiffs:

9

a. Sacramento Regional Coalition to End Homelessness, et al. v. City of

10

Sacramento, (U.S.D.C., Ed.D. Cal., Case No. 2:18-CV-00878-MCE-AC

11

(injunction issued prohibiting enforcement of city ordinance restricting

12

panhandling as violation of First Amendment rights).

13

b. Asian Americans Advancing Justice-Los Angeles v. Padilla (San Francisco

14

Superior Court, No. CPF-18-516155; First District Court of Appeal No. A155392,

15

2019 WL 5689985 (11/4/2019)) (writ of mandate requiring Secretary of State to

16

increase provision of facsimile ballots to non-English proficient voters).

17

c. Harris v. City of Fontana (San Bernardino Superior Court, No. CIVDS1710589)

18

(writ of mandate issued invalidating city’s restrictions on cultivation of marijuana

19

for personal use).

20

7. Other members of the ACLUF-NC who are representing Plaintiffs and the

21 putative class in this litigation are Sean Riordan and Angélica Salceda, each of whom has deep

22 experience representing plaintiffs in civil rights cases. Both are members in good standing of

23 the California State Bar and of the Bar of this Court. Mr. Riordan graduated from the U.C.L.A.

24 School of Law in 2007 and has worked at ACLU-NC since September 2018. Previously, he

25 worked for the Office of the Federal Public Defender for the Eastern District of California

26 between January 2015 and July 2018 and for the American Civil Liberties Union Foundation of

27 San Diego and Imperial Counties between October 2008 and December 2014. Mr. Riordan also

28

2

DECLARATION OF WILLIAM S. FREEMAN IN SUPPORT OF MOTION OF CLASS CERTIFICATION

Case 3:20-cv-02731-VC Document 6-8 Filed 04/20/20 Page 5 of 5

1 clerked for a judge in the Central District of California from September 2007 to September

2 2008. Ms. Salceda graduated from U. C. Berkeley School of Law in 2013 and has worked at

3 ACLU-NC since August 2013.

4

8. I am not aware of any conflict among potential class members in this case.

5

9. I am not aware of any conflict between ACLUF-NC and any members of the

6 potential class that would prevent ACLUF-NC from representing the class.

7 I declare under penalty of perjury that the foregoing is true and correct. Executed this 20 day of

8 April 2020 in Hillsborough, California.

9

10

/s/ William S. Freeman William S. Freeman

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

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3

DECLARATION OF WILLIAM S. FREEMAN IN SUPPORT OF MOTION OF CLASS CERTIFICATION

Case 3:20-cv-02731-VC Document 6-9 Filed 04/20/20 Page 1 of 6

1 WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org
2 SEAN RIORDAN (SBN 255752) sriordan@aclunc.org
3 ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org
4 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN
5 CALIFORNIA 39 Drumm Street
6 San Francisco, CA 94111 Telephone: (415) 621-2493
7 Facsimile: (415) 255-8437
8 Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page
9

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: 415-553-9319 Fax: 415-553-9810

10

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12

13 ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUIZ TOVAR, LAWRENCE
14 MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA
15 YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,
16 Petitioners-Plaintiffs,
17 v.
18 DAVID JENNINGS, Acting Director of the
19 San Francisco Field Office of U.S. Immigration and Customs Enforcement;
20 MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of
21 the Director of the U.S. Immigration and Customs Enforcement; U.S.
22 IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.;
23 NATHAN ALLEN, Warden of Mesa Verde Detention Facility,
24 Respondents-Defendants.
25

CASE NO.
DECLARATION OF BREE BERNWANGER IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

26

27

28

DECLARATION OF BREE BERNWANGER IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Case 3:20-cv-02731-VC Document 6-9 Filed 04/20/20 Page 2 of 6

1 BREE BERNWANGER* (NY SBN 5036397) MARTIN S. SCHENKER (SBN 109828)

bbernwanger@lccrsf.org

mschenker@cooley.com

2 TIFANEI RESSL-MOYER (SBN 319721)

COOLEY LLP

tresslmoyer@lccrsf.org

101 California Street, 5th Floor

3 HAYDEN RODARTE (SBN 329432)

San Francisco, CA 94111

hrodarte@lccrsf.org

Telephone: (415) 693-2000

4 LAWYERS’ COMMITTEE FOR

Facsimile: (415) 693-2222

CIVIL RIGHTS OF

5 SAN FRANCISCO BAY AREA

TIMOTHY W. COOK (Mass. BBO# 688688)*

131 Steuart St #400

tcook@cooley.com

6 San Francisco, CA 94105

FRANCISCO M. UNGER (Mass. BBO#

Telephone: (415) 814-7631

698807)*

7

funger@cooley.com

JUDAH LAKIN (SBN 307740)

COOLEY LLP

8 judah@lakinwille.com

500 Boylston Street

AMALIA WILLE (SBN 293342)

Boston, MA 02116

9 amalia@lakinwille.com

Telephone: (617) 937-2300

LAKIN & WILLE LLP

Facsimile: (617) 937-2400

10 1939 Harrison Street, Suite 420

Oakland, CA 94612

11 Telephone: (510) 379-9216

Facsimile: (510) 379-9219

12

JORDAN WELLS (SBN 326491)

13 jwells@aclusocal.org

STEPHANIE PADILLA (SBN 321568)

14 spadilla@aclusocal.org

AMERICAN CIVIL LIBERTIES UNION

15 FOUNDATION OF SOUTHERN CALIFORNIA

1313 West Eighth Street

16 Los Angeles, CA 90017

Telephone: (213) 977-9500

17 Facsimile: (213) 977-5297

18

Attorneys for Petitioners-Plaintiffs

*Motion for Admission Pro Hac Vice Forthcoming

19

20

21

22

23

24

25

26

27

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DECLARATION OF BREE BERNWANGER IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Case 3:20-cv-02731-VC Document 6-9 Filed 04/20/20 Page 3 of 6

1 I, Bree Bernwanger, declare:

2

1. I have personal knowledge of the matters in this Declaration and if asked to testify

3 thereto could do so competently.

4

2. I am an attorney and have been licensed to practice law in the State of New York

5 since 2012 (NY 5036397). I have passed the California Bar Examination and my application for

6 admission to practice in California is currently pending. I am seeking admission in this matter

7 pro hac vice in this action pursuant to the exception to Northern District Local Rule 11(b),

8 permitting attorneys residing in California to secure admission pro hac vice by order of the

9 assigned judge. I am a Senior Staff Attorney in the Immigrant Justice program at the Lawyers’

10 Committee for Civil Rights of the San Francisco Bay Area (“LCCR”), where I manage all

11 litigation and systemic-reform advocacy related to immigrants’ rights. From 2017-2019, I also

12 managed LCCR’s full removal defense docket, primarily involving asylum, withholding of

13 removal, and Special Immigrant Juvenile Status cases, and mentored pro bono attorneys

14 representing immigrants in removal proceedings and seeking asylum affirmatively at the

15 Asylum Office.

16

3. Founded in 1968, LCCR is a 501(c)(3) nonprofit organization working to protect

17 and promote the rights of people of color, immigrants, and low-income people in California.

18 With the help of our pro bono attorney network, we provide free legal aid to impacted

19 communities, engage in impact litigation, and advocate for policy change on our three main

20 issue areas: Immigrant, Racial, and Economic Justice. LCCR’s Immigrant Justice program

21 focuses on the direct representation of asylum seekers and unaccompanied immigrant children

22 and impact litigation defending and advancing the rights of immigrants.

23

4. I received a J.D. from Georgetown Law in 2010. I began my career working on

24 civil rights impact litigation and policy as a pro bono fellow at the New York Civil Liberties

25 Union (2011). I then worked as a litigation associate at the law firm of Sidley Austin LLP in

26 New York (2011-2013). In both roles, I worked on complex civil litigation. I also have served

27

1

28

DECLARATION OF BREE BERNWANGER IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Case 3:20-cv-02731-VC Document 6-9 Filed 04/20/20 Page 4 of 6

1 as a Clinical Fellow in Albany Law School’s clinical program (2014-2015), where I taught and

2 supervised students handling family and immigration matters, and as the Director of the

3 Unaccompanied Immigrant Children and Immigrant Families Project at Fordham Law School

4 (2015-2017), where I was developed and supervised student and alumni pro bono efforts on

5 behalf of detained immigrant families and was involved in policy advocacy related to

6 unaccompanied immigrant children and immigrant families. Through a partnership between

7 Fordham Law and the Dilley Pro Bono Project (DPBP), I served as Managing Attorney for

8 DPBP from August 2016-January 2017, where I was responsible for the provision of pro bono

9 representation to thousands of families in the South Texas Family Residential Center, the

10 nation’s largest immigration detention center. I supervised a staff of attorneys and legal

11 assistants as well as a rotating team of volunteers. I also monitored detention conditions and

12 participated in systemic advocacy on behalf of detained families. When I joined LCCR, I

13 remained affiliated with Fordham Law as an Adjunct Professor. In January 2018, I began

14 teaching Immigration, Enforcement, and Protection, a January-term seminar course on the

15 intersection between immigration enforcement and humanitarian protection.

16

5. LCCR has a long history of litigating cutting-edge immigrants’ rights issues,

17 including as class counsel. During my time at LCCR, I have served as co-counsel for certified

18 classes in the following cases:

19

a. Unknown Parties v. Nielsen, 4:15-cv-00250, 2020 WL 813774, ---

20

F.Supp.3d ---- (D. Ariz. Feb. 19, 2020) (permanent injunction issued after

21

holding that conditions of confinement in civil immigration detention in

22

Border Patrol’s Tucson Sector violated substantive due process).

23

b. J.L v. Cissna, 374 F.Supp.3d 855 (N.D. Cal. 2019) (denying government’s

24

motion to dismiss class action challenge to unlawful policy that would

25

foreclose class of California immigrant youth from humanitarian

26

immigration relief); sub nom J.L. v. Cuccinelli, No. 18-cv-04914-NC,

27

2

28

DECLARATION OF BREE BERNWANGER IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Case 3:20-cv-02731-VC Document 6-9 Filed 04/20/20 Page 5 of 6

1

2019 WL 6911973 (approving classwide settlement agreement prohibiting

2

Defendants from imposing policy and setting adjudication timeline for

3

class members’ petitions for humanitarian immigration relief).

4

6. LCCR has an extensive history litigating class action cases and immigrants’ rights

5 cases. The below following cases are representative of LCCR’s work as co-counsel on behalf of

6 plaintiffs in class action and immigrants’ rights cases.

7

a. Sanchez v. California Department of Transportation (Alameda Superior

8

Court, No. RG16842117) (injunctive and damages class action

9

challenging Caltrans’ seizure and destruction of property of unhoused

10

persons residing on its rights-of-way; settlement currently pending court

11

approval).

12

b. Uelian de Abadia-Peixoto, et al., v. DHS, 3:11-cv-4001-RS (N.D. Cal.) (in

13

2014, secured class-wide settlement agreement that limits the Department

14

of Homeland Security’s ability to shackle detained immigrants during

15

their bond and merits hearings).

16

c. Martins v. USCIS, 3:13-cv-00591 (N.D. Cal.). (in 2013, secured

17

nationwide settlement in a case challenging a USCIS policy and practice

18

of misapplying FOIA exceptions to withhold asylum seekers’ interview

19

notes).

20

7. Additional class co-counsel from LCCR include Tifanei Ressl-Moyer and Hayden

21 Rodarte. Tifanei Ressl-Moyer is a Thurgood Marshall Civil Rights Fellow at LCCR, a position

22 she has held since 2019. Previously, she was an attorney at Disability Rights California, where

23 she served as class co-counsel in Mays v. Sacramento, No. 2:18-cv-02081 (E.D. Cal.), a class

24 action challenge to conditions of confinement in the Sacramento County Jail. Tifanei is a 2010

25 graduate of the University of Cincinnati and in 2016 earned her J.D. from New England Law

26 School. She has been admitted to practice in California since 2018 (SB #319721). Hayden

27

3

28

DECLARATION OF BREE BERNWANGER IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Case 3:20-cv-02731-VC Document 6-9 Filed 04/20/20 Page 6 of 6

1 Rodarte is a Justice Catalyst Fellow at LCCR, a position he has held since 2019. He holds a

2 B.A. (2013) and an M.A. (2014) from Stanford University and a J.D. (2019) from Yale Law

3 School. He has been admitted to practice in California since 2019 (SB #329432).

4

8. LCCR is committed to dedicating the resources necessary to adequately and fairly

5 represent the Proposed Class in collaboration with co-counsel the San Francisco Public

6 Defender’s Office, the ACLU Foundation of Northern California, the ACLU Foundation of

7 Southern California, Lakin & Wille, and Cooley LLP.

8

9. Neither LCCR nor its co-counsel in this case will receive remuneration from the

9 representative Plaintiffs or class members in this case.

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

11 Executed this 18th day of April, 2020 in Berkeley, California:

12

13

______________________________

Bree Bernwanger

14

Lawyers’ Committee for Civil Rights

of the San Francisco Bay Area

15

131 Steuart Street Suite 400

16

San Francisco, CA 94105 bbernwanger@lccrsf.org

17

415-543-9444

18

19

20

21

22

23

24

25

26

27

4

28

DECLARATION OF BREE BERNWANGER IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Case 3:20-cv-02731-VC Document 6-10 Filed 04/20/20 Page 1 of 12

1 WILLIAM S. FREEMAN (SBN 82002)

MANOHAR RAJU (SBN 193771)

wfreeman@aclunc.org

Public Defender

2 SEAN RIORDAN (SBN 255752)

MATT GONZALEZ (SBN 153486)

sriordan@aclunc.org

Chief Attorney

3 ANGÉLICA SALCEDA (SBN 296152)

GENNA ELLIS BEIER (CA SBN 300505)

asalceda@aclunc.org

genna.beier@sfgov.org

4 AMERICAN CIVIL LIBERTIES UNION

EMILOU H. MACLEAN (CA SBN 319071)

FOUNDATION OF NORTHERN CALIFORNIA emilou.maclean@sfgov.org

5 39 Drumm Street

FRANCISCO UGARTE (CA SBN 241710)

San Francisco, CA 94111

francisco.ugarte@sfgov.org

6 Telephone: (415) 621-2493

OFFICE OF THE PUBLIC DEFENDER

Facsimile: (415) 255-8437

SAN FRANCISCO

7

555 Seventh Street

Attorneys for Petitioners-Plaintiffs

San Francisco, CA 94103

8 Additional Counsel Listed on Following Page Direct: 415-553-9319

Fax: 415-553-9810

9

10

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12 ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUIZ TOVAR, LAWRENCE
13 MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA
14 YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,
15 Petitioners-Plaintiffs,
16 v.
17 DAVID JENNINGS, Acting Director of the San
18 Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T.
19 ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of
20 the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND
21 CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa
22 Verde Detention Facility,

CASE NO.
DECLARATION OF MARTIN S. SCHENKER IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

23

24

Respondents-Defendants.

25

26

27

28
COOLEY LLP
ATTORNEYS AT LAW SAN FRANCISCO

DECLARATION OF MARTIN S. SCHENKER IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Case 3:20-cv-02731-VC Document 6-10 Filed 04/20/20 Page 2 of 12

1 BREE BERNWANGER* (NY SBN 5036397) MARTIN S. SCHENKER (SBN 109828)

bbernwanger@lccrsf.org

mschenker@cooley.com

2 TIFANEI RESSL-MOYER (SBN 319721)

COOLEY LLP

tresslmoyer@lccrsf.org

101 California Street, 5th Floor

3 HAYDEN RODARTE (SBN 329432)

San Francisco, CA 94111

hrodarte@lccrsf.org

Telephone: (415) 693-2000

4 LAWYERS’ COMMITTEE FOR

Facsimile: (415) 693-2222

CIVIL RIGHTS OF

5 SAN FRANCISCO BAY AREA

TIMOTHY W. COOK (Mass. BBO# 688688)*

131 Steuart St #400

tcook@cooley.com

6 San Francisco, CA 94105

FRANCISCO M. UNGER (Mass. BBO#

Telephone: (415) 814-7631

698807)*

7

funger@cooley.com

JUDAH LAKIN (SBN 307740)

COOLEY LLP

8 judah@lakinwille.com

500 Boylston Street

AMALIA WILLE (SBN 293342)

Boston, MA 02116

9 amalia@lakinwille.com

Telephone: (617) 937-2300

LAKIN & WILLE LLP

Facsimile: (617) 937-2400

10 1939 Harrison Street, Suite 420

Oakland, CA 94612

11 Telephone: (510) 379-9216

Facsimile: (510) 379-9219

12

JORDAN WELLS (SBN 326491)

13 jwells@aclusocal.org

STEPHANIE PADILLA (SBN 321568)

14 spadilla@aclusocal.org

AMERICAN CIVIL LIBERTIES UNION

15 FOUNDATION OF SOUTHERN CALIFORNIA

1313 West Eighth Street

16 Los Angeles, CA 90017

Telephone: (213) 977-9500

17 Facsimile: (213) 977-5297

18

Attorneys for Petitioners-Plaintiffs

*Motion for Admission Pro Hac Vice Forthcoming

19

20

21

22

23

24

25

26

27

28
COOLEY LLP
ATTORNEYS AT LAW SAN FRANCISCO

DECLARATION OF MARTIN S. SCHENKER IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Case 3:20-cv-02731-VC Document 6-10 Filed 04/20/20 Page 3 of 12

1

I, Martin S. Schenker, declare as follows:

2

1. I am a partner with the law firm of Cooley LLP, co-counsel of record in the above-

3 captioned matter for named Plaintiffs Angel De Jesus Zepeda Rivas, Brenda Ruiz Tovar,

4 Lawrence Mwaura, Luciano Gonzalo Mendoza Jeronimo, Coraima Yaritza Sanchez Nuñez,

5 Javier Alfaro, Dung Tuan Dang, and the purported Class. I have knowledge of the following,

6 and if called as a witness, I could and would testify competently thereto.

7

2. Cooley LLP has a robust Commercial Class Action Litigation practice with

8 practitioners highly experienced in class certification procedures, the negotiation and creative

9 structuring of class action settlements and, when necessary, trial of these class actions. Attached

10 hereto as Exhibit A is a true and correct copy of Cooley LLP’s Commercial Class Action

11 Litigation page, located at https://www.cooley.com/services/practice/commercial-class-action-

12 litigation and accessed on April 17, 2020.

13

3. In addition, Cooley LLP’s Pro Bono practice includes impact litigation in a wide

14 variety of contexts. For example, in December 2011, Cooley LLP and the Prison Law Office filed

15 a class action lawsuit against Fresno County on behalf of all then-present and future prisoners in

16 the Fresno County Jail to challenge the adequacy of medical and mental health care and safety

17 conditions in the jail. In May 2015, a settlement agreement was reached, resulting in a consent

18 decree with a comprehensive plan to improve the quality and accessibility of health care and safety

19 in the Fresno County Jail. In 2017, Cooley LLP and the American Civil Liberties Union

20 represented a class of undocumented children in a class action lawsuit against federal immigration

21 authorities (discussed further below). Attached hereto as Exhibit B is a true and correct copy of

22 Cooley LLP’s Pro Bono Firm Resume.

23

4. I am a partner in the Business Litigation practice group at Cooley LLP. I received

24 a bachelor’s degree with highest honors from UC Davis in 1978, a master’s degree from the

25 London School of Economics and Political Science in 1979, and a J.D. magna cum laude from

26 Harvard Law School in 1983. During my last year in law school, I worked with the Southern

27 Poverty Law Center for approximately six months investigating conditions in the State of

28
COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

1 DECLARATION OF MARTIN S. SCHENKER IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Case 3:20-cv-02731-VC Document 6-10 Filed 04/20/20 Page 4 of 12

1 Alabama’s juvenile detention facilities, including spending a month working out of the Center’s

2 offices in Montgomery, Alabama, and thereafter analyzing potential Constitutional challenges to

3 conditions in those facilities. After receiving my J.D., I clerked for the Honorable Mariana R.

4 Pfaelzer on the federal district court in Los Angeles for one year, and have been in private practice

5 as a litigator for over 30 years. I joined Cooley as a partner in 1999. I am a member of the California

6 Bar and am admitted to practice law before all state and federal courts in the State of California

7 and the United States Courts of Appeals for the Ninth Circuit.

8

5. My practice focuses on complex business litigation, and I have significant trial

9 experience. I have litigated numerous “bet the company” cases and multiple cases with hundreds

10 of millions, and even billions, of dollars at stake, and have tried many cases in both state and

11 federal courts. I have been selected for Northern California Super Lawyers lists for 2006-2017.

12

6. In 2017, Cooley LLP, the American Civil Liberties Union, and Holly S. Cooper

13 represented a class of undocumented children in a class action lawsuit entitled Saravia v. Sessions

14 et al., Case No. 3:17-CV-03615-VC (N.D. Cal.). I served as co-lead counsel in that action. The

15 case challenged the federal government’s use of substantiated claims of gang affiliation to detain

16 children who had previously been released to sponsors. On November 20, 2017, the United States

17 District Court for the Northern District of California issued a preliminary injunction requiring the

18 teenagers be given notice of the reasons for their arrests, access to the evidence being offered

19 against them, and a prompt hearing in front of a judge. On October 1, 2018, the preliminary

20 injunction was affirmed by the Ninth Circuit.

21

7. The Cooley team in this case also includes Timothy Cook and Francisco Unger,

22 both members of the Massachusetts Bar. Timothy Cook’s practice focuses on complex civil

23 litigations in state and federal courts and in arbitration proceedings. He is admitted to practice law

24 before all Massachusetts state courts and the United States District Court, District of

25 Massachusetts. He received his J.D. magna cum laude from Boston College Law School in 2013,

26 and his B.A. magna cum laude from Union College in 2010. Francisco Unger’s practice focuses

27 on complex civil litigation and securities enforcement matters. He received his J.D. Yale Law

28
COOLEY LLP
ATTORNEYS AT LAW SAN FRANCISCO

DECLARATION OF MARTIN S. SCHENKER IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Case 3:20-cv-02731-VC Document 6-10 Filed 04/20/20 Page 5 of 12

1 School in 2017, and his B.A. from Princeton University in 2012.

2 I declare under penalty of perjury under the laws of the State of California that the foregoing

3 is true and correct. Executed this 17th day of April 2020 at Napa, California.

4

5

6

/s/ Martin S. Schenker

Martin S. Schenker

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
COOLEY LLP
ATTORNEYS AT LAW SAN FRANCISCO

DECLARATION OF MARTIN S. SCHENKER IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Case 3:20-cv-02731-VC Document 6-10 Filed 04/20/20 Page 6 of 12
EXHIBIT A

Case 3:20-cv-02731-VC Document 6-10 Filed 04/20/20 Page 7 of 12

Commercial Class Action Litigation

One of the most active class action practices in the US with experience
covering every need

Why Cooley
• 60+ litigators nationwide who have litigated state and federal class actions involving consumer protection, fraud, wage
and hour, RICO, health care, finance and banking, copyright, Internet transactions and payment processing, privacy, antitrust, mass torts and statutory violations
• On average, we handle 50+ unrelated, new class actions every year, giving us a level of experience that is hard to top • 25+ motion to dismiss wins in privacy and data breach class actions in recent years • Unique insight into the needs of retail and consumer products companies gained from our representation of 700+
companies in this space
• Defended 60+ different California Song Beverly Credit Card Act and federal Fair and Accurate Credit Transaction Act
("FACTA") class actions for retailers and online businesses arising from credit card transactions, including the defeat of class certification for StubHub in an action brought under the Fair Credit Reporting Act for the alleged violation of FACTA, the first such action filed against an online business
• Served as defense counsel in two of the most important class actions for the food & beverage and oil/gas industries
according to Law360
• Our litigators have won large, complex and highly-publicized cases, including a class action where the proposed class
would have included nearly 50% of the American population
• We know class certification procedures inside and out and our work shows it - we scored a huge win by defeating class
certification in what could have involved one of the largest classes ever
• We are skilled in the negotiation and creative structuring of class action settlements - we were the first firm to negotiate
unique style of cy pres remedy setting up privacy rights foundation to resolve a major class action
• Leaders in defending companies in class actions involving the collection of personal identification information at the
point-of-sale
• Focused experience representing food& beverage companies in class actions alleging product mislabeling, false
advertising, deceptive marketing, fraud, and unjust enrichment

"Smart and effective in their briefing and arguments, and they know how to take off their gloves and litigate.”
– Client quote, Legal 500

Recognition
• BTI: Class Actions Powerhouse • Chambers USA: Commercial Litigation • Legal 500 US: Commercial Litigation • Law360: Litigation Powerhouse • Daily Journal: Top Women Lawyers (Class Action
Co-Chair) • Law360: Six-Time Privacy Practice Group of the
Year; Seven-Time Privacy MVP (cyber/data/privacy Chair) • The Recorder: Privacy Litigation Department of the Year (2015, 2017) • Washington Business Journal: A Top Washington Lawyer for Corporate Litigation and for Employment Litigation

Case 3:20-cv-02731-VC Document 6-10 Filed 04/20/20 Page 8 of 12

Litigation Powerhouse Law360 praises Cooley for its first-class litigation work and
dominant victories.
Read more >

"Their capacity to handle really complex matters and arguments is very impressive.”
– Chambers USA

Commercial Class Action Litigation
The prevalence of commercial class actions (those not involving securities violations) has dramatically increased over the past several years and has become a growing threat to many businesses. The stakes are high and potential exposure is significant, particularly in cases with potentially large classes of plaintiffs.
Cooley has in-depth experience representing companies, across many industries, in various types of commercial class actions. In both state and federal courts, including the Judicial Panel on Multidistrict Litigation, our lawyers have litigated matters involving consumer protection, fraud, wage and hour, RICO, healthcare, finance and banking, copyright, products liability, internet transactions and payment processing, privacy, antitrust, mass torts and statutory violations.
We work closely with clients to obtain favorable resolutions as early and as efficiently as possible, whether by obtaining precertification or post-certification dismissals, defeating class certification motions, negotiating favorable settlements before or after class certification, or litigating cases through trial and appeal.
Areas of Practice
• Antitrust • California Song Beverly Credit Card Act and federal Fair and Accurate Credit Transaction Act • Consumer protection statutes • Contract • Copyright • Digital rights • Employment • Fair Credit Reporting Act, Truth-in-Lending Act and Federal Electronic Funds Transfers Act • False and deceptive advertising • Fraud • Gift cards • Healthcare • Internet • Mass torts • Privacy/cyber security • RICO • Telephone Consumer Protection Act (TCPA) • Wage and hour

Case 3:20-cv-02731-VC Document 6-10 Filed 04/20/20 Page 9 of 12
Representative Matters
• Defeated class cert in Google Gmail class actions, which implicated billions of emails exchanged with 400+ million
Gmail users
• Settled one of the largest right of publicity class actions ever filed for Facebook, where the proposed class would have
included nearly 50% of the American population
• Landmark appellate victory for Sony in a case involving an issue of first impression related to the Video Privacy
Protection Act (VPPA)
• Obtained dismissal of claims and denial of class certification in several federal consumer class actions brought
against E*TRADE alleging violations of the Truth-in-Lending Act and California's consumer protection statute, §17200
• Complete victory for eBay, obtaining dismissal of all claims in data breach class action • Secured two separate settlements for Sony with the direct and indirect purchasers of lithium batteries in a multi-year
antitrust class action
• Negotiated unique style of cy pres remedy, resolving Beacon privacy class action for Facebook • Resolved more than a dozen class actions for eBay and its subsidiaries involving state auction laws, consumer fraud
and protection statutes, online payment processing and ticket resales
• Appointed Lead and Liaison Counsel for CenturyLink in multidistrict litigation involving 75+ consolidated lawsuits and
600+ defendants concerning allegations of improper collection of "access charges" for wireless calls
• Obtained a published appellate decision in a class action against The TJX Companies and retailers doing business in
California brought under the Song Beverly Credit Card Act, which limited the statute's reach to purchase transactions and a one-year limitations period

Case 3:20-cv-02731-VC Document 6-10 Filed 04/20/20 Page 10 of 12
EXHIBIT B

Case 3:20-cv-02731-VC Document 6-10 Filed 04/20/20 Page 11 of 12
Pro Bono

Commitment
Commitment to the community is an important part of our culture at Cooley. We strive to give generously of our time, talents and resources to the communities in which we practice, and pro bono work is one of the primary ways we fulfill that goal. We give pro bono matters the same staffing, attention and resources as other matters. We assign pro bono matters the same weight and credit as other matters when evaluating attorneys’ contributions to the firm. We encourage attorneys in all practice groups and at all levels of practice to be actively involved in our pro bono work.

Pro Bono Facts
• 68,000+ pro bono hours annually • 800 attorneys participated in 2019 • 900 pro bono clients served

Representative Matters
• Chavez v. County of Santa Clara and Mays v. County of Sacramento: Together with co-counsel, Cooley brought and favorably settled two lawsuits challenging solitary confinement practices and other persistent harmful and unconstitutional conditions in northern California jails. In March 2019, a federal judge approved a settlement that required significant reforms in Santa Clara County jails, including improved screening for and access to mental and medical health resources and alternatives to solitary confinement. Under a June 2019 settlement in Mays v. County of Sacramento, Sacramento County was also required to change its practices around solitary confinement, improve its medical and mental healthcare systems, and take steps to prevent the unnecessary incarceration of people with mental illness.
• Saravia v. Sessions: Cooley and the ACLU obtained an injunction, which led to the release of 30 teenagers from federal custody and protection for a class of similarly situated teens. The injunction was upheld by the Ninth Circuit in October 2018. The teens had been transported across the country—without notice to their families or attorneys—and illegally detained in jail-like facilities based on unsubstantiated claims of gang affiliation.
• Hall v. Mims: Cooley and co-counsel Prison Law Office and Disability Rights California brought and ultimately successfully settled a class action lawsuit alleging that conditions at the Fresno County Jail constituted cruel and unusual punishment because prisoners were denied adequate medical, dental and mental health care, and were vulnerable to attack by other prisoners because of inadequate security. The lawsuit also alleged that prisoners with disabilities were not provided reasonable accommodations in violation of the Americans with Disabilities Act. The consent decree included a remedial plan addressing each of these issues.
• LaFollette v. Padilla: Cooley and co-counsel ACLU challenged the process for rejecting ~40,000 absentee ballots in California based on perceived signature mismatches. A state court ruled that voters must receive notice and an opportunity to remedy. While the case was on appeal, California lawmakers wrote these requirements into law.
• Long Island Housing Services v. Village of Mastic Beach: Cooley and co-counsel Lawyers’ Committee for Civil Rights Under Law successfully settled a case against the Village of Mastic Beach on Long Island for unlawfully pursuing code enforcement activities in a racially discriminatory manner against low-income tenants.
• Mejia-Jacobo v. Suhr: Cooley and co-counsel Asian Americans Advancing Justice–Asian Law Caucus represented a monolingual Spanish-speaking domestic violence survivor who was mistakenly arrested for assault after the San Francisco Police Department failed to provide her with an interpreter. The suit resulted in strengthening the city’s language access policies and a substantial monetary settlement for our client.
• Lopez-Venegas v. Holder: Cooley and the ACLU settled a class action lawsuit to redress deceptive tactics used by immigration enforcement officers who denied plaintiffs their constitutional right to see a judge and have a fair hearing in connection with signing voluntary return documents. The government was subject to compliance monitoring under the consent decree for several years.

April 2020

Cooley LLP

Case 3:20-cv-02731-VC Document 6-10 Filed 04/20/20 Page 12 of 12
Cooley Pro Bono
Ongoing Litigation
• Sines v. Kessler: Cooley filed a complaint in federal court on behalf of plaintiffs injured in violence stemming from a rally planned by neo-Nazis and white supremacists in Charlottesville in August 2017. The case survived a motion to dismiss and trial is scheduled for late 2020.
• Hecox v. Little: Cooley, the American Civil Liberties Union, the ACLU of Idaho and Legal Voice filed a lawsuit in April 2020 challenging Idaho’s recently-passed law that bans transgender and many intersex women and girls from participating in school sports. The lawsuit was filed on behalf of a track athlete at Boise State University who is transgender and a junior at Boise High School who is cisgender and concerned about being subjected to invasive sex verification testing under the new law.
• Lucas R. v. Azar: In June 2018, Cooley filed a class action lawsuit, together with co-counsel National Center for Youth Law and others, to ensure due process and safe conditions for detained immigrant children. The litigation is ongoing.
Other Areas of Pro Bono Practice
• Amicus briefs: Cooley regularly files amicus briefs in district courts and appellate courts around the country on issues of special importance. Recently Cooley has represented nonprofit organizations on amicus briefs in cases addressing family separation, sanctuary jurisdictions, DACA rescission, the “travel ban,” LGBTQ rights, and the standard of review in innocence cases.
• Immigration: Cooley assists individuals pursuing asylum, Special Immigrant Juvenile status (for abused and neglected children), and special forms of immigration relief for domestic violence survivors.
• Innocence: Cooley represents several individuals seeking post-conviction relief and regularly represents the Innocence Network in filing amicus briefs related to the reliability of scientific evidence and other important issues.
• LGBTQ Advocacy: Cooley’s pro bono practice supports the rights of the LGBTQ community through litigation, amicus briefs, individual representation in matters ranging from name changes to asylum applications, and transactional assistance to LGBTQ advocacy and support organizations.
• Nonprofit Advising: Cooley attorneys represented over 400 nonprofit organizations last year on a wide variety of legal issues, allowing those nonprofits to focus their efforts and resources on carrying out their missions.
Recent Accolades
• Lawyers’ Committee for Civil Rights of the San Francisco Bay Area “James T. Caleshu Award” (2020) • American Bar Association “Pro Bono Publico Award” (2018) • Swords to Plowshares “Pro Bono Law Firm of the Year” (2017) • Casa Cornelia “La Mancha Pro Bono Publico Award” (2017) • OneJustice “Champion of Justice Award” (2017) • Advancing Justice–Asian Law Caucus “Pro Bono Honoree” (2017) • Northern California Innocence Project “Pro Bono Award” (2017) • Appleseed Network “Pro Bono Partner Award” (2017) • Legal Services for Children 2016 “Pro Bono Leadership Award” • Disability Rights California 2016 “Pro Bono Achievement Award” • ABA Section of Litigation 2015 “John Minor Wisdom Public Service and Professionalism Award” • The State Bar of California 2015 “President’s Pro Bono Service Award” • Human Rights Campaign 2015 "National Ally of Justice Award” • Washington Legal Clinic for the Homeless 2015 “Outstanding Firm Award” • Jewish Family Services of San Diego 2015 “President’s Community Partnership Award” • The Legal Aid Society of New York’s 2014 “Pro Bono Publico Award” • Centro Legal de la Raza 2013 “Pro Bono Champion Award” • Legal Aid Society of San Diego 2013 “Law Firm of the Year”

April 2020

Cooley LLP

Case 3:20-cv-02731-VC Document 6-11 Filed 04/20/20 Page 1 of 5

1 WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org
2 SEAN RIORDAN (SBN 255752) sriordan@aclunc.org
3 ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org
4 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN
5 CALIFORNIA 39 Drumm Street
6 San Francisco, CA 94111 Telephone: (415) 621-2493
7 Facsimile: (415) 255-8437
8 Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page
9

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: 415-553-9319 Fax: 415-553-9810

10

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12

13 ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUIZ TOVAR, LAWRENCE
14 MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA
15 YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,
16 Petitioners-Plaintiffs,
17 v.
18 DAVID JENNINGS, Acting Director of the
19 San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T.
20 ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director
21 of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND
22 CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa
23 Verde Detention Facility,

CASE NO.
DECLARATION OF GENNA ELLIS BEIER IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

24

Respondents-Defendants.

25

26

27

28
DECLARATION OF GENNA ELLIS BEIER IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Case 3:20-cv-02731-VC Document 6-11 Filed 04/20/20 Page 2 of 5

1 BREE BERNWANGER* (NY SBN 5036397) MARTIN S. SCHENKER (SBN 109828)

bbernwanger@lccrsf.org

mschenker@cooley.com

2 TIFANEI RESSL-MOYER (SBN 319721)

COOLEY LLP

tresslmoyer@lccrsf.org

101 California Street, 5th Floor

3 HAYDEN RODARTE (SBN 329432)

San Francisco, CA 94111

hrodarte@lccrsf.org

Telephone: (415) 693-2000

4 LAWYERS’ COMMITTEE FOR

Facsimile: (415) 693-2222

CIVIL RIGHTS OF

5 SAN FRANCISCO BAY AREA

TIMOTHY W. COOK (Mass. BBO# 688688)*

131 Steuart St #400

tcook@cooley.com

6 San Francisco, CA 94105

FRANCISCO M. UNGER (Mass. BBO#

Telephone: (415) 814-7631

698807)*

7

funger@cooley.com

JUDAH LAKIN (SBN 307740)

COOLEY LLP

8 judah@lakinwille.com

500 Boylston Street

AMALIA WILLE (SBN 293342)

Boston, MA 02116

9 amalia@lakinwille.com

Telephone: (617) 937-2300

LAKIN & WILLE LLP

Facsimile: (617) 937-2400

10 1939 Harrison Street, Suite 420

Oakland, CA 94612

11 Telephone: (510) 379-9216

Facsimile: (510) 379-9219

12

JORDAN WELLS (SBN 326491)

13 jwells@aclusocal.org

STEPHANIE PADILLA (SBN 321568)

14 spadilla@aclusocal.org

AMERICAN CIVIL LIBERTIES UNION

15 FOUNDATION OF SOUTHERN CALIFORNIA

1313 West Eighth Street

16 Los Angeles, CA 90017

Telephone: (213) 977-9500

17 Facsimile: (213) 977-5297

18

Attorneys for Petitioners-Plaintiffs

*Motion for Admission Pro Hac Vice Forthcoming

19

20

21

22

23

24

25

26

27

28
DECLARATION OF GENNA ELLIS BEIER IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Case 3:20-cv-02731-VC Document 6-11 Filed 04/20/20 Page 3 of 5

1 I, Genna Ellis Beier, declare as follows:
2 1. I am an attorney admitted to practice in California. I am a litigation and appeals
3 specialist at the San Francisco Office of the Public Defender. I submit this declaration in
4 support of Petitioners’ Motion for Class Certification. I have personal knowledge of the facts
5 stated in this declaration.
6 2. The San Francisco Office of the Public Defender (SFPD) is a government agency
7 funded by the City and County of San Francisco that provides zealous representation to indigent
8 community members. The Public Defender, Manohar Raju, is the only elected Public Defender
9 in the state of California. In 2017, the SFPD launched an Immigration Defense Unit, now
10 comprised of nine attorneys and five support staff, which represents detained non-citizens with
11 cases before the San Francisco Immigration Court. The goal of the unit is to work toward
12 ensuring universal access to counsel for detained immigrants facing deportation in the San
13 Francisco Immigration Court. The unit regularly visits detainees at Yuba County Jail and Mesa
14 Verde ICE Processing Center, and builds relationships with their families and communities as
15 part of a holistic defense model. We represent clients in applications for immigration relief
16 before the Immigration Court, the Board of Immigration Appeals (BIA), and the Ninth Circuit
17 Court of Appeals. We also file habeas corpus petitions in federal district court, and post-
18 conviction relief motions in California state superior courts. Since its inception, the immigration
19 unit has provided representation to more than 200 immigrants detained the Yuba County and
20 Mesa Verde Detention Center.
21 3. I have been an active member of the State Bar of California since 2014. I received
22 a J.D. degree from University of California at Berkeley School of Law, where I founded and co-
23 chaired the Berkeley Immigration Group (BIG), a student organization that lends support to
24 immigrant advocacy efforts. I graduated with a B.A. degree, cum laude, from Pomona College
25 in 2008. During my legal career, I have focused exclusively on representing immigrants and
26

27

28

1

DECLARATION OF GENNA ELLIS BEIER IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Case 3:20-cv-02731-VC Document 6-11 Filed 04/20/20 Page 4 of 5

1 refugees in their legal proceedings to secure lasting relief from removal. My immigration

2 practice has centered on complex removal defense and litigation.

3

4. Prior to my current position with the SFPD, I worked as a deportation defense

4 attorney at the private firm, Van Der Hout, LLP (2014-2018), where I represented hundreds of

5 non-citizen clients in immigration matters before U.S. Citizenship & Immigration Services

6 (USCIS), the Immigration Court, the BIA, the Ninth Circuit, and federal district court.

7

5. I have practiced deportation defense at the SFPD since June of 2018. During that

8 time, I have represented dozens of non-citizen clients in their removal proceedings. Since June

9 of 2019, I have served as the team lead for agency and Ninth Circuit appeals and federal court

10 litigation. I currently represent seven non-citizens in their pending matters before the BIA, and

11 six individuals with pending Petitions for Review before the Ninth Circuit. I have served as lead

12 or co-lead counsel for in each of the following cases:

13

a. Avilez v. Barr, et al., 19-cv-08296-CRB, 2020 WL 1704456 (N.D. Cal.

14

Apr. 8, 2020) (writ of habeas corpus granted to immigrant detainee,

15

ordering bond hearing at which government bears the burden to justify his

16

continued detention).

17

b. Primero Garcia v. Barr, et al., 20-cv-01389-NC, 2020 WL 1139660 (N.D.

18

Cal. Mar. 9, 2020) (temporary restraining order granted to immigrant

19

detainee to prevent government from removing petitioner while he pursues

20

motion to reopen).

21

c. Landeros Jimenez v. Wolf, et al., 5:19-cv-07996-NC, Dkt. 25 (N.D. Cal.

22

Mar. 6, 2020) (motion to enforce and temporary restraining order granted

23

to order direct release of immigrant detainee).

24

6. Other members of the SPFD who are representing Plaintiffs in this litigation are

25 Francisco Ugarte and Emilou Maclean, each of whom has deep experience representing

26 plaintiffs in immigration and civil rights cases. Both are members in good standing of the

27 California State Bar and of the Bar of this Court. Mr. Ugarte graduated from the CUNY School

28

2

DECLARATION OF GENNA ELLIS BEIER IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Case 3:20-cv-02731-VC Document 6-11 Filed 04/20/20 Page 5 of 5

1 of Law and has worked at the SFPD since August 2014. Previously, he worked for Dolores

2 Street Community Services between March 2008 and July 2014 and for Leonard Carder, LLP

3 between November 2005 and March 2008. Ms. Maclean graduated from Georgetown

4 University Law Center in 2006. She has worked at SFPD since September 2019. Previously, she

5 represented plaintiffs in immigration and civil rights cases at the Center for Constitutional

6 Rights and the National Day Laborer Organizing Network.

7

7. I am not aware of any conflict among potential class members in this case.

8

8. I am not aware of any conflict between SFPD and any members of the potential

9 class that would prevent SFPD from representing the class.

10 I declare under penalty of perjury that the foregoing is true and correct. Executed this 19th day

11 of April 2020 in Oakland, California.

12

/s/ Genna Ellis Beier

Genna Ellis Beier

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

DECLARATION OF GENNA ELLIS BEIER IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Case 3:20-cv-02731-VC Document 6-12 Filed 04/20/20 Page 1 of 4

1 -WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org
2 SEAN RIORDAN (SBN 255752) sriordan@aclunc.org
3 ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org
4 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN
5 CALIFORNIA 39 Drumm Street
6 San Francisco, CA 94111 Telephone: (415) 621-2493
7 Facsimile: (415) 255-8437
8 Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page
9

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: 415-553-9319 Fax: 415-553-9810

10

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12

13 ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUIZ TOVAR, LAWRENCE
14 MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA
15 YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,
16 Petitioners-Plaintiffs,
17 v.
18 DAVID JENNINGS, Acting Director of the
19 San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T.
20 ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director
21 of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND
22 CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa
23 Verde Detention Facility,

CASE NO.
DECLARATION OF JORDAN WELLS IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

24

Respondents-Defendants.

25

26

27

28
DECLARATION OF JORDAN WELLS IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Case 3:20-cv-02731-VC Document 6-12 Filed 04/20/20 Page 2 of 4

1 BREE BERNWANGER* (NY SBN 5036397) MARTIN S. SCHENKER (SBN 109828)

bbernwanger@lccrsf.org

mschenker@cooley.com

2 TIFANEI RESSL-MOYER (SBN 319721)

COOLEY LLP

tresslmoyer@lccrsf.org

101 California Street, 5th Floor

3 HAYDEN RODARTE (SBN 329432)

San Francisco, CA 94111

hrodarte@lccrsf.org

Telephone: (415) 693-2000

4 LAWYERS’ COMMITTEE FOR

Facsimile: (415) 693-2222

CIVIL RIGHTS OF

5 SAN FRANCISCO BAY AREA

TIMOTHY W. COOK (Mass. BBO# 688688)*

131 Steuart St #400

tcook@cooley.com

6 San Francisco, CA 94105

FRANCISCO M. UNGER (Mass. BBO#

Telephone: (415) 814-7631

698807)*

7

funger@cooley.com

JUDAH LAKIN (SBN 307740)

COOLEY LLP

8 judah@lakinwille.com

500 Boylston Street

AMALIA WILLE (SBN 293342)

Boston, MA 02116

9 amalia@lakinwille.com

Telephone: (617) 937-2300

LAKIN & WILLE LLP

Facsimile: (617) 937-2400

10 1939 Harrison Street, Suite 420

Oakland, CA 94612

11 Telephone: (510) 379-9216

Facsimile: (510) 379-9219

12

JORDAN WELLS (SBN 326491)

13 jwells@aclusocal.org

STEPHANIE PADILLA (SBN 321568)

14 spadilla@aclusocal.org

AMERICAN CIVIL LIBERTIES UNION

15 FOUNDATION OF SOUTHERN CALIFORNIA

1313 West Eighth Street

16 Los Angeles, CA 90017

Telephone: (213) 977-9500

17 Facsimile: (213) 977-5297

18

Attorneys for Petitioners-Plaintiffs

*Motion for Admission Pro Hac Vice Forthcoming

19

20

21

22

23

24

25

26

27

28
DECLARATION OF JORDAN WELLS IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Case 3:20-cv-02731-VC Document 6-12 Filed 04/20/20 Page 3 of 4

1 I, Jordan Wells, declare as follows:

2

1. I am a staff attorney at the American Civil Liberties Union of Southern California

3 (“ACLU SoCal”), counsel for Plaintiffs-Petitioners in this putative class action. I submit this

4 declaration in support of Plaintiffs’-Petitioners’ Motion for Provisional Class Certification. I

5 have personal knowledge of the facts stated in this declaration.

6

2. I was admitted to the practice of law in New Jersey in 2013, in New York in

7 2014, and in California in 2019. I am a 2013 graduate of the New York University School of

8 Law, cum laude, where I was a McKay Scholar.

9

3. In October 2018, I began working at ACLU SoCal, a nonprofit, nonpartisan

10 organization dedicated to defending civil liberties and civil rights guaranteed by the federal and

11 state constitutions. ACLU SoCal has extensive expertise in class litigation, immigrants’ rights

12 litigation, and First Amendment litigation. I am presently lead counsel in a habeas appeal

13 challenging retaliatory actions by United States Immigration and Customs Enforcement in

14 response to my client’s criticism of the agency. See Bello Reyes v. McAleenan, No. 19-CV-

15 3630-SK, 2019 WL 5214051 (N.D. Cal. July 16, 2019), appeal docketed, No. 19-16441 (9th

16 Cir. Feb. 18, 2020).

17

4. From 2013 to 2018, I was an attorney at the New York Civil Liberties Union

18 (NYCLU), ACLU SoCal’s sister affiliate in New York.

19

5. At the NYCLU, I litigated a wide range of civil liberties cases:

20

a. I assisted in preparing class action lawsuits and was appointed class

21

counsel in Ligon v. City of New York, No. 12-CV-2274 (Mar. 28, 2012

22

S.D.N.Y.), a successful complex class action in the Southern District of

23

New York that sought to end unconstitutional stops, frisks, and arrests.

24

b. I was party or amicus counsel in numerous habeas corpus actions at the

25

trial court and appellate levels of the state and federal judiciary.

26

Representative matters include Sajous v. Decker, No. 18-CV-2447, 2018

27

28

1

DECLARATION OF JORDAN WELLS IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Case 3:20-cv-02731-VC Document 6-12 Filed 04/20/20 Page 4 of 4

1

WL 2357266 (S.D.N.Y. May 23, 2018) (lead counsel in widely cited case

2

establishing a framework for evaluating due process challenges to ICE

3

detention); Lora v. Shanahan, 804 F.3d 601, 608 (2d Cir. 2015) (amicus

4

counsel in appeal holding prolonged immigration detention absent a bond

5

hearing violates due process); People ex rel. Wells v. DeMarco, 168

6

A.D.3d 31, 88 N.Y.S.3d 518 (N.Y. App. Div. 2018) (lead counsel in

7

appellate decision holding New York law enforcement officers have no

8

authority to make immigration arrests).

9

c. I was party or amicus counsel in numerous First Amendment cases.

10

Representative matters include Charles v. City of New York, No. 12-cv-

11

6180, 2017 WL 530460 (E.D.N.Y. Feb. 8, 2017) (party counsel; decision

12

denying qualified immunity in case challenging retaliatory arrest); United

13

States v. Erie Cty., 763 F.3d 235, 236 (2d Cir. 2014) (intervening party

14

counsel; decision upholding public’s fundamental right of access to

15

judicial documents); Barboza v. D'Agata, 151 F. Supp. 3d 363, 370

16

(S.D.N.Y. 2015) (party counsel in successful damages action arising from

17

arrest under unconstitutionally overbroad criminal statute regulating

18

speech).

19

6. I am not aware of any conflict among potential class members in this case.

20

7. I am not aware of any conflict between ACLU SoCal and any members of the

21 potential class that would prevent ACLU SoCal from representing the proposed class.

22

I declare under penalty of perjury that the foregoing is true and correct. Executed this 20

23 day of April 2020 in Fresno, California.

24

25

________________________________

Jordan Wells 26

27

28

2

DECLARATION OF JORDAN WELLS IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Case 3:20-cv-02731-VC Document 6-13 Filed 04/20/20 Page 1 of 5

1 WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org
2 SEAN RIORDAN (SBN 255752) sriordan@aclunc.org
3 ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org
4 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN
5 CALIFORNIA 39 Drumm Street
6 San Francisco, CA 94111 Telephone: (415) 621-2493
7 Facsimile: (415) 255-8437
8 Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page
9

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: 415-553-9319
Fax: 415-553-9810

10

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12

13 ANGEL DE JESUS ZEPEDA RIVAS,

CASE NO.

BRENDA RUIZ TOVAR, LAWRENCE

14 MWAURA, LUCIANO GONZALO

DECLARATION OF JUDAH LAKIN

MENDOZA JERONIMO, CORAIMA 15 YARITZA SANCHEZ NUÑEZ, JAVIER
ALFARO, DUNG TUAN DANG,

IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

16

Petitioners-Plaintiffs,

17

v.

18

DAVID JENNINGS, Acting Director of the

19 San Francisco Field Office of U.S. Immigration

and Customs Enforcement; MATTHEW T.

20 ALBENCE, Deputy Director and Senior

Official Performing the Duties of the Director

21 of the U.S. Immigration and Customs

Enforcement; U.S. IMMIGRATION AND

22 CUSTOMS ENFORCEMENT; GEO GROUP,

INC.; NATHAN ALLEN, Warden of Mesa

23 Verde Detention Facility,

24

Respondents-Defendants.

25

26

27

28
DECLARATION OF JUDAH LAKIN IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Case 3:20-cv-02731-VC Document 6-13 Filed 04/20/20 Page 2 of 5

1 BREE BERNWANGER* (NY SBN 5036397) MARTIN S. SCHENKER (SBN 109828)

bbernwanger@lccrsf.org

mschenker@cooley.com

2 TIFANEI RESSL-MOYER (SBN 319721)

COOLEY LLP

tresslmoyer@lccrsf.org

101 California Street, 5th Floor

3 HAYDEN RODARTE (SBN 329432)

San Francisco, CA 94111

hrodarte@lccrsf.org

Telephone: (415) 693-2000

4 LAWYERS’ COMMITTEE FOR

Facsimile: (415) 693-2222

CIVIL RIGHTS OF

5 SAN FRANCISCO BAY AREA

TIMOTHY W. COOK (Mass. BBO# 688688)*

131 Steuart St #400

tcook@cooley.com

6 San Francisco, CA 94105

FRANCISCO M. UNGER (Mass. BBO#

Telephone: (415) 814-7631

698807)*

7

funger@cooley.com

JUDAH LAKIN (SBN 307740)

COOLEY LLP

8 judah@lakinwille.com

500 Boylston Street

AMALIA WILLE (SBN 293342)

Boston, MA 02116

9 amalia@lakinwille.com

Telephone: (617) 937-2300

LAKIN & WILLE LLP

Facsimile: (617) 937-2400

10 1939 Harrison Street, Suite 420

Oakland, CA 94612

11 Telephone: (510) 379-9216

Facsimile: (510) 379-9219

12

JORDAN WELLS (SBN 326491)

13 jwells@aclusocal.org

STEPHANIE PADILLA (SBN 321568)

14 spadilla@aclusocal.org

AMERICAN CIVIL LIBERTIES UNION

15 FOUNDATION OF SOUTHERN CALIFORNIA

1313 West Eighth Street

16 Los Angeles, CA 90017

Telephone: (213) 977-9500

17 Facsimile: (213) 977-5297

18

Attorneys for Petitioners-Plaintiffs

*Motion for Admission Pro Hac Vice Forthcoming

19

20

21

22

23

24

25

26

27

28
DECLARATION OF JUDAH LAKIN IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Case 3:20-cv-02731-VC Document 6-13 Filed 04/20/20 Page 3 of 5

1 I, Judah Lakin, declare as follows:

2

1. I am an attorney admitted to practice in California. I am a partner at Lakin &

3 Wille LLP, counsel for Petitioners in this action. I submit this declaration in support of

4 Petitioners’ Motion for Class Certification. I have personal knowledge of the facts stated in this

5 declaration.

6

2. I received my J.D. from University of California, Berkeley School of Law in

7 2015, my M.Ed. from Rhode Island College in 2009, and my B.A. from Brown University in

8 2004. From 2015-2016, I served as a deportation defense attorney with Dolores Street

9 Community Services in San Francisco representing clients in immigration court and on appeal

10 before the immigration agencies and the federal courts. From 2016-2017, I served as a judicial

11 law clerk for the Honorable Judge Richard A. Paez on the U.S. Court of Appeals for the Ninth

12 Circuit. From 2017-2019, I was an associate at Van Der Hout LLP, where I practiced

13 immigration law before federal agencies and the federal courts. I have been a partner at Lakin &

14 Wille LLP since I co-founded the firm in 2019.

15

3. I have extensive experience in complex immigration matters, including expertise

16 in immigration detention.

17

4. I currently serve as co-class counsel in the certified class action, Aleman Gonzalez

18 v. Sessions, 325 F.R.D. 616 (N.D. Cal. June 5, 2018), affirmed sub. nom. Aleman Gonzalez v.

19 Barr, -- F.3d --, 2020 WL 1684034 (9th Cir. Apr. 7, 2020) (preliminary injunction ordering the

20 government to provide prolonged detention bond hearings for all individuals detained pursuant

21 to 8 U.S.C. § 1231(a)(6) in the Ninth Circuit).

22

5. The following cases are also representative of my work in the federal courts on

23 behalf of noncitizen petitioners and plaintiffs:

24

a. Ortega v. Bonnar, 415 F. Supp. 3d 963 (N.D. Cal. 2019) (enjoining ICE

25

from re-arresting petitioner and holding that it would be a violation of due

26

27

28

1

DECLARATION OF JUDAH LAKIN IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Case 3:20-cv-02731-VC Document 6-13 Filed 04/20/20 Page 4 of 5

1

process to permit ICE to re-arrest petitioner without a hearing in front of a

2

neutral adjudicator).

3

b. Meza v. Bonnar, 2018 WL 2554572 (N.D. Cal. June 4, 2018) (enjoining

4

ICE from re-arresting petitioner and holding that there are serious

5

questions going to the merits of petitioner’s claim that the Constitution

6

requires periodic bond hearings for noncitizens in removal proceedings

7

who have been detained for lengthy periods and petitioner’s claim that she

8

has a vested liberty interest in her conditional release such that she may

9

not be re-detained absent due process).

10

c. Sliusar v. Whitaker, 761 F. App’x 718 (9th Cir. 2019) (holding that an

11

immigration judge must consider all of the documentary evidence in the

12

record, regardless of its type, before ruling on requests for withholding of

13

removal and Convention Against Torture protection even if she finds a

14

related asylum application to be frivolous).

15

6. My law partner, Amalia Wille, also represents Petitioners and the putative class in

16 this litigation. She is a member of the California State Bar. She received her J.D. from

17 University of California, Berkeley School of Law in 2013, and her B.A. from Georgetown

18 University in 2006. From 2013-2019, she was an associate attorney at Van Der Hout LLP,

19 where she practiced in complex immigration matters before the immigration agencies and

20 federal courts. She also currently serves as co-class counsel in Aleman Gonzalez v. Sessions,

21 325 F.R.D. 616 (N.D. Cal. June 5, 2018).

22

7. I am not aware of any conflict among potential class members in this case.

23

8. I am not aware of any conflict between Lakin & Wille LLP and any members of

24 the potential class that would prevent Lakin & Wille LLP from representing the class.

25

26

27

28

2

DECLARATION OF JUDAH LAKIN IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Case 3:20-cv-02731-VC Document 6-13 Filed 04/20/20 Page 5 of 5

1

I declare under penalty of perjury that the foregoing is true and correct. Executed this 17th

2 day of April 2020 in Oakland, California.

3

4

Judah Lakin

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

DECLARATION OF JUDAH LAKIN IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Case 3:20-cv-02731-VC Document 6-14 Filed 04/20/20 Page 1 of 3

1 WILLIAM S. FREEMAN (SBN 82002)

MANOHAR RAJU (SBN 193771)

wfreeman@aclunc.org

Public Defender

2 SEAN RIORDAN (SBN 255752)

MATT GONZALEZ (SBN 153486)

sriordan@aclunc.org

Chief Attorney

3 ANGÉLICA SALCEDA (SBN 296152)

GENNA ELLIS BEIER (CA SBN 300505)

asalceda@aclunc.org

genna.beier@sfgov.org

4 AMERICAN CIVIL LIBERTIES UNION

EMILOU H. MACLEAN (CA SBN 319071)

FOUNDATION OF NORTHERN

emilou.maclean@sfgov.org

5 CALIFORNIA

FRANCISCO UGARTE (CA SBN 241710)

39 Drumm Street

francisco.ugarte@sfgov.org

6 San Francisco, CA 94111

OFFICE OF THE PUBLIC DEFENDER

Telephone: (415) 621-2493

SAN FRANCISCO

7 Facsimile: (415) 255-8437

555 Seventh Street

San Francisco, CA 94103

8 Attorneys for Petitioners-Plaintiffs

Direct: 415-553-9319

Additional Counsel Listed on Following Page Fax: 415-553-9810

9

10

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12

13 ANGEL DE JESUS ZEPEDA RIVAS,

Case No.

BRENDA RUIZ TOVAR, LAWRENCE

14 MWAURA, LUCIANO GONZALO

[PROPOSED] ORDER GRANTING

MENDOZA JERONIMO, CORAIMA

PETITIONERS-PLAINTIFFS’

15 YARITZA SANCHEZ NUÑEZ, JAVIER

MOTION FOR PROVISIONAL

ALFARO, DUNG TUAN DANG,

CLASS CERTIFICATION

16

Petitioners-Plaintiffs,

17

v.

18

DAVID JENNINGS, Acting Director of the

19 San Francisco Field Office of U.S. Immigration

and Customs Enforcement; MATTHEW T.

20 ALBENCE, Deputy Director and Senior

Official Performing the Duties of the Director

21 of the U.S. Immigration and Customs

Enforcement; U.S. IMMIGRATION AND

22 CUSTOMS ENFORCEMENT; GEO GROUP,

INC.; NATHAN ALLEN, Warden of Mesa

23 Verde Detention Facility,

24

Respondents-Defendants.

25

26

27

28

[PROPOSED] ORDER GRANTING PETITIONERS-PLAINTIFFS’ MOTION FOR PROVISIONAL CLASS CERTIFICATION

Case 3:20-cv-02731-VC Document 6-14 Filed 04/20/20 Page 2 of 3

1 BREE BERNWANGER* (NY SBN 5036397) MARTIN S. SCHENKER (SBN 109828)

bbernwanger@lccrsf.org

mschenker@cooley.com

2 TIFANEI RESSL-MOYER (SBN 319721)

COOLEY LLP

tresslmoyer@lccrsf.org

101 California Street, 5th Floor

3 HAYDEN RODARTE (SBN 329432)

San Francisco, CA 94111

hrodarte@lccrsf.org

Telephone: (415) 693-2000

4 LAWYERS’ COMMITTEE FOR

Facsimile: (415) 693-2222

CIVIL RIGHTS OF

5 SAN FRANCISCO BAY AREA

TIMOTHY W. COOK (Mass. BBO# 688688)*

131 Steuart St #400

tcook@cooley.com

6 San Francisco, CA 94105

FRANCISCO M. UNGER (Mass. BBO#

Telephone: (415) 814-7631

698807)*

7

funger@cooley.com

JUDAH LAKIN (SBN 307740)

COOLEY LLP

8 judah@lakinwille.com

500 Boylston Street

AMALIA WILLE (SBN 293342)

Boston, MA 02116

9 amalia@lakinwille.com

Telephone: (617) 937-2300

LAKIN & WILLE LLP

Facsimile: (617) 937-2400

10 1939 Harrison Street, Suite 420

Oakland, CA 94612

11 Telephone: (510) 379-9216

Facsimile: (510) 379-9219

12

JORDAN WELLS (SBN 326491)

13 jwells@aclusocal.org

STEPHANIE PADILLA (SBN 321568)

14 spadilla@aclusocal.org

AMERICAN CIVIL LIBERTIES UNION

15 FOUNDATION OF SOUTHERN CALIFORNIA

1313 West Eighth Street

16 Los Angeles, CA 90017

Telephone: (213) 977-9500

17 Facsimile: (213) 977-5297

18

Attorneys for Petitioners-Plaintiffs

*Motion for Admission Pro Hac Vice Forthcoming

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[PROPOSED] ORDER GRANTING PETITIONERS-PLAINTIFFS’ MOTION FOR PROVISIONAL CLASS CERTIFICATION

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The Court has considered the parties’ briefing, evidence, and arguments as well as the

2 authorities cited in support of their positions. Upon due consideration, the Court hereby

3 GRANTS Plaintiffs’ Motion for Provisional Class Certification. The Court provisionally certifies

4 the following proposed class and subclasses for the purpose of issuing the preliminary injunction

5 Plaintiffs seek:

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1. Class: All civil immigration detainees at Yuba County Jail and Mesa Verde ICE

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Processing Facility.

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2. YCJ Subclass: All civil immigration detainees at Yuba County Jail.

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3. Mesa Verde Subclass: All civil immigration detainees at Mesa Verde ICE

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Processing Facility.

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IT IS SO ORDERED.

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13 Dated: _

, 2020

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United States District Judge

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[PROPOSED] ORDER GRANTING PETITIONERS-PLAINTIFFS’ MOTION FOR PROVISIONAL CLASS

CERTIFICATION

 
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DAVID L. ANDERSON (CABN 149604) United States Attorney SARA WINSLOW (DCBN 457643) Chief, Civil Division WENDY M. GARBERS (CABN 213208) ADRIENNE ZACK (CABN 291629) Assistant United States Attorneys
450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Telephone: (415) 436-7031 FAX: (415) 436-6748 adrienne.zack@usdoj.gov
Attorneys for Federal Defendants
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, et al., Plaintiffs,
v. DAVID JENNINGS, et al.,
Defendants.

) Case No. 20-cv-02731 VC ) ) FEDERAL DEFENDANTS’ OPPOSITION TO ) MOTIONS FOR TRO AND PROVISIONAL ) CLASS CERTIFICATION, AND MOTION TO ) STAY IN LIGHT OF FRAIHART ) ) ) )

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TABLE OF CONTENTS

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

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

A. CDC and ICE Guidance.......................................................................................................2

B. The Facilities........................................................................................................................2

1. Mesa Verde ICE Processing Facility. ......................................................................3

2. Yuba County Jail......................................................................................................6

LEGAL STANDARDS ...............................................................................................................................7

A. Preliminary Injunctive Relief Standards. .............................................................................7

B. Class Certification Standards. ..............................................................................................9

ARGUMENT .............................................................................................................................................10

I. UNDER THE FIRST-TO-FILE DOCTRINE, THIS ACTION SHOULD BE STAYED IN LIGHT OF FRAIHAT. .............................................................................................10

II. PLAINTIFFS HAVE FAILED TO MEET THEIR HEAVY BURDEN OF ESTABLISHING THAT THEY ARE ENTITLED TO PRELIMINARY INJUNCTIVE RELIEF..................................................................................................................12

A. The Court Lacks Jurisdiction To Hear Petitioners’ § 2241 Habeas Petition. ....................12

B. Plaintiffs Do Not Satisfy The Requirements For Preliminary Injunctive Relief. ..............14

1. Plaintiffs Are Unlikely To Succeed On The Merits...............................................14

(i) Statutory Bases For Detention. ..................................................................15

(ii) Plaintiffs Have Not Established That The Conditions Of Their Confinement Violate The Fifth Amendment. ............................................16

(iii) Plaintiffs Have Not Established That They Are Being Subjected To Punishment. .........................................................................18

2. Plaintiffs Have Not Shown Irreparable Harm........................................................18

3. The Balance Of Interests And Public Interest Favors Respondents. .....................19

III. THE REQUEST FOR PROVISIONAL CLASS CERTIFICATION SHOULD BE DENIED. ........................................................................................................................................20

A. No Class Should Be Certified In This Matter, Instead the Action Should Be Stayed In Light of Fraihat. ................................................................................................20

B. Plaintiffs Cannot Establish Sufficient Commonality To Warrant Provisional Class Certification..............................................................................................................20

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C. Plaintiffs Cannot Establish Sufficient Typicality To Warrant Class Certification. ......................................................................................................................23
D. Plaintiffs Have Not Established Adequacy........................................................................26 IV. PLAINTIFFS’ PROPOSED TRO IS UNWORKABLE AND UNLAWFUL. .............................27 V. OBJECTIONS TO PLAINTIFFS’ DECLARATIONS .................................................................31 CONCLUSION ..........................................................................................................................................33

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TABLE OF AUTHORITIES

Page(s)
Cases
Albino-Martinez v. Adducci, No. 2:20-cv-10893, 2020 WL 1872362 (E.D. Mich. April 14, 2020) .................................................. 25
Armentero v. INS, 382 F.3d 1153 (9th Cir. 2004) .............................................................................................................. 13
Awshana v. Adducci, --- F. Supp. 3d ---, 2020 WL 1808906 (E.D. Mich. April 9, 2020) ...................................................... 25
Baatz v. Columbia Gas Transmission, LLC, 814 F.3d 785 (6th Cir. 2016) .......................................................................................................... 10, 20
Barajas v. Lynch, No. LACV1604682VBFJEM, 2016 WL 4035677 (C.D. Cal. July 8, 2016)........................................ 13
Basank v. Decker, No. 20-cv-2518, ___ F. Supp. 3d ___, 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020) ...................................................................................... 17
Bent v. Barr, No. 19-cv-06123-DMR, 2020 WL 1812850 (N.D. Cal. Apr. 9, 2020) .......................................... 17, 18
Blackie’s House of Beef, Inc. v. Castillo, 659 F.2d 1211 (D.C. Cir. 1981) ............................................................................................................ 19
Bodley v. Whirlpool Corp., No. 17-CV-05436-JST, 2018 WL 2357640 (N.D. Cal. May 24, 2018) ............................................... 12
Bracy v. Gramley, 520 U.S. 899 (1997).............................................................................................................................. 27
Caribbean Marine Services Co., Inc. v. Baldrige, 844 F.2d 668 (9th Cir. 1988) ................................................................................................................ 19
Castillo v. Barr, No. cv-20-00605, 2020 WL 1502864 (C.D. Cal. Mar. 27, 2020)......................................................... 17
Cau v. Lynch, No. CV1507601FMODTB, 2016 WL 1358656 (C.D. Cal. Feb. 16, 2016) ......................................... 13
Clardy v. Pinnacle Foods Grp., LLC, No. 16-CV-04385-JST, 2017 WL 57310 (N.D. Cal. Jan. 5, 2017) ................................................ 10, 12
Dada v. Witte, No. CV 20-1093, 2020 WL 1674129 (E.D. La. Apr. 6, 2020) ............................................................. 14
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).............................................................................................................................. 32

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Dawson v. Asher, No. 20-cv-0409-JLR-MAT, 2020 WL 1304557 (W.D. Wash. March 19, 2020) ............... 16, 17, 19, 25

Dawson v. Asher, No. 20-cv-0409-JLR-MAT, 2020 WL 1704324 (W.D. Wash. Apr. 8, 2020) .......................... 16, 17, 19

DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189 (1989).............................................................................................................................. 17

Disney Enters., Inc. v. VidAngel, Inc., 869 F.3d 848 (9th Cir. 2017) .................................................................................................................. 8

Doe v. Barr, No. 20-cv-02141-LB, 2020 WL 1820667 (N.D. Cal. Apr. 12, 2020) .................................................. 17

Douglas v. Barr, No. 2:19-CV-10035-AB-MAA, 2019 WL 6310270 (C.D. Cal. Nov. 25, 2019) .................................. 13

Earth Island Inst. v. Carlton, 626 F.3d 462 (9th Cir. 2010) .................................................................................................................. 8

Farmer v. Brennan, 511 U.S. 825 (1994)........................................................................................................................ 17, 19

Flynt Distrib. Co., Inc. v. Harvey, 734 F.2d 1389 (9th Cir. 1984) .............................................................................................................. 32

Garcia v. Google, Inc., 786 F.3d 733 (9th Cir. 2015) .................................................................................................................. 8

Gen. Tel. Co. v. Falcon, 457 U.S. 147 (1982)................................................................................................................................ 9

Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) .............................................................................................................. 26

Hassoun v. Searls, --- F., Supp. 3d ---, 2020 WL 1819670 (W.D.N.Y. April 10, 2020)............................................................... 25

Henry v. Home Depot U.S.A., Inc, No. 14-CV-04858-JST, 2016 WL 4538365 (N.D. Cal. Aug. 31, 2016)......................................... 11, 12

Jennings v. Rodriguez, 138 S. Ct. 830 (2018) ...................................................................................................................... 15, 21

Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004) ................................................................................................................ 16

Kohn Law Grp., Inc. v. Auto Parts Mfg. Mississippi, Inc., 787 F.3d 1237 (9th Cir. 2015) ........................................................................................................ 10, 11

Landscape Specialists, Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, No. SACV191419JVSKESX, 2020 WL 968693 (C.D. Cal. Jan. 8, 2020)........................................... 10

Los Angeles Memorial Coliseum Commission v. National Football League,

634 F.2d 1197 (9th Cir.1980) ............................................................................................................... 19

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Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873 (9th Cir. 2009) ............................................................................................................ 8, 19

Matter of Guerra, 24 I. & N. Dec. 37 (BIA 2006) ............................................................................................................. 15

Matter of Urena, 25 I. & N. Dec. 140 (BIA 2009) ........................................................................................................... 16

Mazurek v. Armstrong, 520 U.S. 968 (1997)................................................................................................................................ 8

Mazza v. Am. Honda Motor Co., 666 F.3d 581 (9th Cir. 2012) ................................................................................................................ 23

Nken v. Holder, 556 U.S. 418 (2009).............................................................................................................................. 19

Ortuno v. Jennings, No. 20-cv-02064-MMC, 2020 WL 1701724 (N.D. Cal. Apr. 8, 2020).............................. 17, 18, 22, 24

Parsons v. Ryan, 754 F.3d 657 (9th Cir. 2014) ................................................................................................................ 26

Ramirez v. Culley, No. 2:20-cv-609, 2020 WL 1821305 (D. Nev. April 9, 2020) ............................................................. 25

Renteria v. Sessions, No. CV1801797PHXJATBSB, 2018 WL 5017001 (D. Ariz. Aug. 24, 2018) ..................................... 13

Republic of the Philippines v. Marcos, 862 F.2d 1355 (9th Cir. 1988) .............................................................................................................. 32

Rivera v. Holder, 307 F.R.D. 539 (W.D. Wash. 2015) ..................................................................................................... 13

Rovio Entertainment Ltd. v. Royal Plush Toys, Inc., 907 F. Supp. 2d 1086 (N.D. Cal. 2012) .................................................................................................. 7

Rumsfeld v. Padilla, 542 U.S. 426 (2004)........................................................................................................................ 12, 13

Rutledge v. Elec. Hose & Rubber Co., 511 F.2d 668 (9th Cir. 1975) .................................................................................................................. 9

Sacal-Micha v. Longoria, __F. Supp. 3d __, 2020 WL 1518861 (S.D. Tex. Mar. 27, 2020) ............................................ 17, 19, 24

Saillant v. Hoover, No. 1:20-cv-6090JPW, 2020 WL 1891854 (M.D. Pa. April 16, 2020)................................................ 25

Saravia v. Sessions, 280 F. Supp. 3d 1168 (N.D. Cal. 2017) ................................................................................................ 14

Sierra On-Line, Inc. v. Phoenix Software, Inc.,

739 F.2d 1415 (9th Cir. 1984) .......................................................................................................... 8, 27

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Stanley v. Univ. of S. California, 13 F.3d 1313 (9th Cir. 1994) .................................................................................................................. 8

Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832 (9th Cir. 2001) .................................................................................................................. 7

Tenrreiro v. Ashcroft, No. CV 04-768-PA, 2004 WL 1588217 (D. Or. July 12, 2004)........................................................... 13

Thakker v. Doll, ___ F.Supp.3d ___, 2020 WL 1671563 (M.D. Pa. March 31, 2020) ................................................... 17

Tomassi v. City of Los Angeles, No. CV 08-1851 DSF SSX, 2008 WL 4722393 (C.D. Cal. Oct. 24, 2008) ............................. 28, 29, 30

Umarbaev v. Lowe, No. 1:20-CV-00413, 2020 WL 1814157 (M.D. Pa. Apr. 9, 2020)....................................................... 25

United States ex rel. Jordan v. Northrop Grumman Corp., No. CV 95-2985 ABC, 2003 WL 27366247 (C.D. Cal. Feb. 24, 2003)............................................... 32

United States v. Martinez-Fuerte, 428 U.S. 543 (1976).............................................................................................................................. 19

Verma v. Doll, No. 4:20-cv-14, 2020 WL 1814149 (M.D. Pa. April 9, 2020) ............................................................. 25

Wairimu v. Dir., Dep’t of Homeland Sec., No. 19-CV-174-BTM-MDD, 2019 WL 460561 (S.D. Cal. Feb. 5, 2019) ........................................... 13

Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011)....................................................................................................................... passim

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008)........................................................................................................................ 8, 11, 19

Youngberg v. Romeo, 457 U.S. 307 (1982)........................................................................................................................ 16, 20

Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180 (9th Cir. 2001) ................................................................................................................ 9

Statutes

8 U.S.C. § 1182(d)(5) ............................................................................................................................... 36

8 U.S.C. § 1225(b) .................................................................................................................................... 36

8 U.S.C. § 1226(a) .................................................................................................................................... 23

8 U.S.C. § 1226(c) .............................................................................................................................. 22, 24

8 U.S.C. § 1226(c)(2)................................................................................................................................ 22

8 U.S.C. § 1231(a)(2)................................................................................................................................ 22

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8 U.S.C. § 1231(a)(6)................................................................................................................................ 23 28 U.S.C. § 2241(a) .................................................................................................................................. 17 42 U.S.C. §§ 1320d................................................................................................................................... 41 28 U.S.C. § 2241(c)(3)................................................................................................................................ 7 Rules Fed. R. Civ. P. 23(a) ................................................................................................................................. 11 Fed. R. Civ. P. 23(a)(2)............................................................................................................................. 33 Fed. R. Civ. P. 23(b)(2)................................................................................................................. 12, 39, 41 Regulations 8 C.F.R. § 236.1(c)(8) ......................................................................................................................... 23, 36 Other Authorities Class Certification in the Age of Aggregate Proof,
84 N.Y.U. L. Rev. 97 (2009) ................................................................................................................ 33

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The Federal Defendants respectfully submit this opposition to plaintiff’s motion for a temporary restraining order and motion for provisional class certification. (ECF 5, 6.) Defendants also move for a stay of this action, in light of the district court’s nationwide provisional class certification and preliminary injunction in Faour Abdallah Fraihat, et al. v. U.S. Immigration and Customs Enforcement, et al., No. 19-1546 JGB (C.D. Cal.).
INTRODUCTION Plaintiffs seek to certify a class of all civil immigration detainees at Yuba County Jail (“YCJ”) and Mesa Verde ICE Processing Facility (“MVDF”) (with subclasses for each facility) and seek an unworkable and improper temporary restraining order that establishes a system by which defendants would be required to disclose confidential medical information to counsel for plaintiffs, as putative class counsel, without the permission of putative class members, and which will allow plaintiffs’ counsel to pick and choose at their discretion which detainees will be presented to this Court for consideration for release. Rather than grant this extraordinary and improper relief, the Court should stay this matter under the first-to-file doctrine in light of Fraihat, et al. v. U.S. Immigration and Customs Enforcement, et al., No. 19-1546 JGB (C.D. Cal.), which is nation-wide class action, in which a preliminary injunction has been entered that orders relief that overlaps with the relief sought by plaintiffs here. Moreover, the Court does not have jurisdiction over this matter because plaintiffs are confined in the Eastern District of California and plaintiffs’ immediate custodians are in the Eastern District of California. This case should therefore be dismissed or transferred. If the Court proceeds with this case, it should deny plaintiffs’ motion for a temporary restraining order and for provisional class certification. A temporary restraining order is not required because defendants are not violating plaintiffs’ Fifth Amendment rights, and plaintiffs have not shown irreparable harm. Defendants are adequately protecting plaintiffs and have taken substantial steps to reduce populations at YCJ and MVDF, screen detainees and individuals entering the facilities, increase sanitization, provide masks, and numerous other measures. There are currently no suspected or confirmed cases of COVID-19 at either facility. Finally, the proposed class and subclasses lack commonality and typicality because plaintiffs are not seeking common relief for all class members but rather individualized release determinations.

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FACTUAL BACKGROUND

A. CDC and ICE Guidance.

The Centers for Disease Control (CDC) has issued Interim Guidance on Management of

Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (dated March 23, 2020,

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

detention.pdf).

On April 10, 2020, ICE released its ERO COVID-19 Pandemic Response Requirements (PRR), a

guidance document that builds upon previously issued guidance and sets forth specific mandatory

requirements 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 during this pandemic. See Declaration of Erik Bonnar (submitted herewith) ¶ 7;

Declaration of Polly E. Kaiser (submitted herewith) ¶ 7; PRR available at

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

B. The Facilities.

Pursuant to contracts with ICE, the Mesa Verde Detention Facility (MVDF) and the Yuba

County Jail (YCJ) house immigration detainees. The clinical health care services at both facilities are

overseen by Field Medical Coordinators (FMCs), who work for the ICE Health Service Corps (IHSC).

3/27/20 Declaration of Capt. Jennifer Moon (MVDF), attached as Exhibit A to the Declaration of Erik

Bonnar, ¶¶ 1-2; 3/26/20 Declaration of Capt. Jennifer Moon (YCJ), attached as Exhibit A to the

Declaration of Polly E. Kaiser, ¶¶ 1-2. IHSC comprises a multidisciplinary workforce that consists of

U.S. Public Health Service Commissioned Corps officers, federal civil servants, and contract health

professionals. Bonnar Dec., Exh. A ¶ 4; Kaiser Dec., Exh. A ¶ 4. IHSC’s FMCs do not provide hands-

on care or direct the care at MVDF or YCJ, but instead ensure that the provision of medical care by the

facilities’ contractors meets detention standards, as required by ICE’s contracts with the facilities.

Bonnar Dec., Exh. A ¶ 3; Kaiser Dec., Exh. A ¶ 3. ICE is in daily contact with both facilities, and ICE

staff is on site daily at MVDF. Bonnar Dec. ¶ 14; Kaiser Dec. ¶ 11.

Since the onset of reports of COVID-19, ICE epidemiologists have been tracking the outbreak,

regularly updating infection prevention and control protocols, and issuing guidance to field staff on

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screening and management of potential exposure among detainees. Bonnar Dec., Exh. A ¶ 5; Kaiser Dec., Exh. A ¶ 5.
In testing for COVID-19, IHSC is also following CDC guidance to safeguard those in its custody and care. Bonnar Dec., Exh. A ¶ 6; Kaiser Dec., Exh. A ¶ 6. Both MVDF and YCJ have testing capability. Bonnar Dec. ¶ 12; Kaiser Dec. ¶ 10(m).
Despite the spread of COVID-19 in the general population, neither of the facilities at issue currently has any suspected or confirmed COVID-19 cases. Bonnar Dec. ¶ 13; Kaiser Dec. ¶ 12; see also https://www.ice.gov/coronavirus (last visited April 24, 2020).
In response to the COVID-19 pandemic, ICE has taken affirmative steps to reduce the number of immigration detainees at MVDF and YCJ to 75 percent or less of capacity by reconsidering custody determinations and parole requests, and issuing orders of supervision on release for those aliens who are not subject to mandatory custody, do not pose a danger to the community or flight risk, and/or there is no significant likelihood of removal in the foreseeable future. Bonnar Dec. ¶ 8; Kaiser Dec. ¶ 8; see also PRR, available at https://www.ice.gov/doclib/coronavirus/eroCOVID19responseReqsCleanFacilities.pdf, p.13 (“Efforts should be made to reduce the population to approximately 75% of capacity”). ICE will continue to evaluate for potential release those individuals who may be at high risk for COVID-19. Bonnar Dec. ¶ 9; Kaiser Dec. ¶ 8. Indeed, ICE has informed the undersigned that plaintiffs Angel de Jesus Zepeda Rivas and Luciano Gonzalo Mendoza Jeronimo were released on April 24, 2020.1
In addition, both facilities have provided masks to detainees, and are taking various other measures to promote sanitation, screening, social distancing, and quarantine. Bonnar Dec. ¶¶ 10-12 & Exh. A ¶¶ 8-12, 15-20; Kaiser Dec. ¶¶ 9-11 & Exh. A ¶¶ 7-11, 14-19.
1. Mesa Verde ICE Processing Facility. MVDF is a private detention center owned and managed by The GEO Group, Inc., an independent contractor. Bonnar Dec. ¶ 5. Since the World Health Organization (WHO) declared COVID-19 a global pandemic on March

1 Undersigned counsel was informed of this information too late to prepare a declaration.

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11, 2020, ICE has taken affirmative steps to reduce the number of detainees at MVDF by reconsidering

custody determinations and parole requests, and issuing orders of supervision on release for those aliens

who are not subject to mandatory custody, do not pose a danger to the community or flight risk, and/or

there is no significant likelihood of removal in the foreseeable future. Bonnar Dec. ¶ 8. ICE has

reduced the MVDF detainee population to less than 75 percent of its capacity, and will continue to

evaluate for potential release those individuals who may be at high risk for COVID-19. Id. ¶¶ 8-9. As

relevant specific information is provided on any particular detainee, ICE may exercise its discretion to

release the detainee, provided he or she is not subject to mandatory custody, a danger to the community,

or deemed a flight risk such that measures for alternatives to detention are inappropriate. Id. ¶ 9.

Medical care and screening at MVDF is provided by the GEO medical staff onsite, and is

overseen by IHSC. Id. ¶ 6. The following screening and isolation procedures are in place for detainees

at the MVDF facility. Each detainee is medically screened upon admission, including travel history,

medical history, and body temperature. Bonnar Dec., Exh. A ¶¶ 7-8, 18. Detainees are also assessed for

respiratory illness, and asked about contact with COVID-19-infected individuals, as well as travel

through areas with sustained community transmission. Id. ¶ 8. Based on the results, the detainee may

be monitored or isolated. Id. ¶ 9. Detainees presenting symptoms compatible with COVID-19 will be

placed in isolation, where they will be tested; if they test positive, they will remain isolated and be

treated. Id. In case of clinical deterioration, they will be referred to a local hospital. Id. Detainees who

have known exposure to a person with COVID-19, but are themselves asymptomatic, are placed in

cohorts with restricted movement for the 14-day incubation period, and are monitored daily for fever

and respiratory illness symptoms. Id. ¶ 10. Those who show onset of fever and/or respiratory illness are

referred to a medical provider. Id. Per ICE policy, detainees diagnosed with any communicable disease

who require isolation are placed in an appropriate setting in accordance with CDC or state and local

health department guidelines. Id. Detainees with signs and symptoms consistent with COVID-19 will

be housed in the negative isolation room with enhanced respiratory droplet nuclei precaution for the

staff. Id. ¶ 11. MVDF has identified housing units for quarantine in accordance with these procedures.

Id. ¶ 20.

In addition, all detainees have been given surgical masks as of April 20, 2020. Bonnar Dec. ¶

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11(d). The detainees have been educated on proper usage of masks. Id. The masks will be replaced every Monday, Wednesday and Friday, supplies permitting. Id.
MVDF medical staff are required to wear surgical masks at all times, and to wear N95 masks during patient encounters. Id. ¶ 11(e). Medical staff also have their temperatures taken daily on-site. Id. MVDF has the capability to conduct on-site testing of COVID-19; to date, the medical staff have not conducted any testing for COVID-19 since they have not encountered any detainee experiencing symptoms consistent with COVID-19. Id. ¶ 12. In order to promote social distancing, the MVDF medical staff is only seeing one detainee in the medical unit at a time, and is also limiting seating in the waiting area to one detainee at a time. Id. If it is necessary for any detainee to depart the facility for any off-site appointment, his or her temperature is screened before any departure from the facility and after his or her return to the facility. Id.
All social visits have stopped, and legal visitors, staff, and vendors are screened when they enter MVDF. Bonnar Dec., Exh. A ¶¶ 16-17. Detainees have telephone access to attorneys, and any legal visitor requesting an in-person visit is required to wear protective gear. Bonnar Dec., Exh. A ¶ 16.
MVDF has increased sanitation frequency, including frequent cleaning of all common area high contact surfaces, such as door handles, telephones, dining halls, and medical areas, which is being conducted throughout the day. Bonnar Dec. ¶ 11(b). Sanitation supplies are provided, including, but not limited to, soap, all-purpose cleaner, disinfectant, and a bathroom-specific cleaning solution. Id. at ¶ 11(c). Each detainee is provided a bar of soap, which may be replaced upon request when used up. Id. Each detainee has access to liquid soap available in soap dispensers near wash basins in each dormitory. Id. The facility has installed an additional four soap dispensers in each dormitory for a total of five total. Id. Staff also have access to soap and hand sanitizer. Id.
The facility provides education on COVID-19 to staff and detainees (including townhalls, postings throughout the facility, and electronic messages to detainees through tablets), and provides detainees daily access to sick call. Bonnar Dec. ¶ 11(a) & Exh. A ¶ 19.
Finally, MVDF has staggered beds in its Dorm A and Dorm B in order to increase distancing between detainees. The same will be done in the remaining dormitories when space permits. Bonnar Dec. ¶ 11(f).

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2. Yuba County Jail.

YCJ is a county-owned and operated facility that houses both county jail inmates and ICE

detainees. Kaiser Dec. ¶ 5.

Since the World Health Organization (WHO) declared COVID-19 a global pandemic on March

11, 2020, ICE has taken affirmative steps to reduce the number of detainees at YCJ by reconsidering

custody determinations and parole requests, and issuing orders of supervision on release for those aliens

who are not subject to mandatory custody, do not pose a danger to the community or flight risk, and/or

there is no significant likelihood of removal in the foreseeable future. Kaiser Dec. ¶ 8. The current

population at YCJ, including both ICE detainees and county inmates, is at 64 percent of its capacity. Id.

ICE will continue to evaluate for potential release those individuals who may be at high risk for

COVID-19. Id. As relevant specific information is provided on any particular detainee, ICE may

exercise its discretion to release the detainee, provided he or she is not subject to mandatory custody, a

danger to the community, or deemed a flight risk such that measures for alternatives to detention are

inappropriate. Id.

Medical care and screening at YCJ is provided by the contract medical staff onsite, and is

overseen by IHSC. Kaiser Dec. ¶ 6. The following screening and isolation procedures are in place for

detainees at YCJ. Each detainee is medically screened upon admission, including travel history, medical

history, and body temperature. Kaiser Dec., Exh. A ¶¶ 7-8, 17. Detainees are also assessed for

respiratory illness, and asked about contact with COVID-19-infected individuals, as well as travel

through areas with sustained community transmission. Id. ¶ 8. Based on the results, the detainee may

be monitored or isolated. Id. ¶ 9. Detainees presenting symptoms compatible with COVID-19 will be

placed in isolation, where they will be tested; if they test positive, they will remain isolated and be

treated. Id. In case of clinical deterioration, they will be referred to a local hospital. Id. Detainees who

have known exposure to a person with COVID-19, but are themselves asymptomatic, are placed in

cohorts with restricted movement for the 14-day incubation period, and are monitored daily for fever

and respiratory illness symptoms. Id. ¶ 10. Those who show onset of fever and/or respiratory illness are

referred to a medical provider. Id. Per ICE policy, detainees diagnosed with any communicable disease

who require isolation are placed in an appropriate setting in accordance with CDC or state and local

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health department guidelines. Id. YCJ has identified housing units for quarantine in accordance with these procedures. Id. ¶ 19.
The facility has provided masks to all detainees, and staff at the facility are required to wear masks at all times (including N95 masks for medical staff in contact with quarantined detainees). Kaiser Dec. ¶ 10(j)-(l).
In addition, YCJ has suspended in-person social visitation and facility tours. Id. ¶ 9. Attorney contact visits are discouraged, and YCJ continues to provide detainees telephonic access to attorneys. Id. All staff, vendors, and attorneys are screened upon entry. Kaiser Dec., Exh. A ¶ 16. YCJ has increased sanitation frequency and provided sanitation supplies: The facility is sanitized twice daily, additional cleaning supplies have been offered to detainees, two handwashing stations have been added, and each detainee is issued a bar of soap that may be replaced once used up. Kaiser Dec. ¶ 10(g)-(i) & Exh. A ¶ 14.
The facility provides education on COVID-19 to staff and detainees (including postings in English and Spanish on proper handwashing and other preventative measures, as well as videos on handwashing and sanitizing common surfaces), and provides detainees daily access to sick calls. Kaiser Dec. ¶ 10(e)-(f) & Exh. A ¶¶ 11, 18.
LEGAL STANDARDS A. Preliminary Injunctive Relief Standards. Federal district courts may grant writs of habeas corpus if the petitioner is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). The standard for issuing a temporary restraining order is “substantially identical” to the standard for issuing a preliminary injunction.2 Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). “A restraining order is an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Rovio Entertainment Ltd. v. Royal Plush Toys, Inc., 907 F. Supp. 2d 1086, 1093 (N.D. Cal. 2012) (Armstrong, J.) (internal quotation omitted).

2 Pursuant to the Court’s order (ECF No. 33), Defendants advise that the Court may consider the motion for temporary restraining order as one for a preliminary injunction. However, the Court should deny the motion no matter the type of order or injunction sought.

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Preliminary injunctions are “never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555

U.S. 7, 24 (2008) (citation omitted). “[P]laintiffs seeking a preliminary injunction face a difficult task in

proving that they are entitled to this extraordinary remedy.” Earth Island Inst. v. Carlton, 626 F.3d 462,

469 (9th Cir. 2010) (internal quotation omitted). Plaintiffs’ burden is aptly described as a “heavy” one.

Id. A preliminary injunction requires “substantial proof” and a “‘clear showing’” that it is warranted.

Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis original; internal quotation omitted).

“A plaintiff seeking a preliminary injunction must show that: (1) she is likely to succeed on the

merits, (2) she is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of

equities tips in her favor, and (4) an injunction is in the public interest.” Garcia v. Google, Inc., 786 F.3d

733, 740 (9th Cir. 2015) (internal quotation omitted). Alternatively, a plaintiff can show that there are

“serious questions going to the merits and the balance of hardships tips sharply towards [plaintiff], as

long as the second and third Winter factors are satisfied.” Disney Enters., Inc. v. VidAngel, Inc., 869

F.3d 848, 856 (9th Cir. 2017) (internal quotation omitted).

The purpose of preliminary injunctive relief is to preserve the status quo pending final judgment,

rather than to obtain a preliminary adjudication on the merits. Sierra On-Line, Inc. v. Phoenix Software,

Inc., 739 F.2d 1415, 1422 (9th Cir. 1984). “A preliminary injunction can take two forms.” Marlyn

Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 878 (9th Cir. 2009). “A prohibitory

injunction prohibits a party from taking action and ‘preserves the status quo pending a determination of

the action on the merits.’” Id. (internal quotation omitted). “A mandatory inunction orders a

responsible party to take action.” Id. at 879 (internal quotation omitted). “A mandatory injunction goes

well beyond simply maintaining the status quo pendente lite and is particularly disfavored.” Id. (internal

quotation omitted). “In general, mandatory injunctions are not granted unless extreme or very serious

damage will result and are not issued in doubtful cases.” Id. (internal quotation omitted). Where a

plaintiff seeks mandatory injunctive relief, “courts should be extremely cautious.” Stanley v. Univ. of S.

California, 13 F.3d 1313, 1319 (9th Cir. 1994) (internal quotation omitted). Thus, in a mandatory

injunction request, the moving party “must establish that the law and facts clearly favor her position, not

simply that she is likely to succeed.” Garcia, 786 F.3d at 740 (emphasis original).

Here, rather than preserving the status quo, Plaintiffs seek mandatory injunctive relief in the form

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of an order requiring a process for release. Plaintiffs do not even meet the standard for prohibitory

preliminary injunctive relief, let alone the heightened standard for a mandatory injunction.

B. Class Certification Standards.

A party seeking certification of a proposed class must demonstrate the existence of the four

required elements set forth in Rule 23(a) of the Federal Rules of Civil Procedure.

Specifically, the moving party must show that: (1) the 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 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”). See Fed. R. Civ. P. 23(a); see also Wal-Mart Stores, Inc. v. Dukes,

564 U.S. 338, 345 (2011) (“Class certification is governed by Federal Rule of Civil Procedure 23.”). 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). Dukes, 564 U.S. at 345; see also Zinser v. Accufix Research Inst., Inc., 253

F.3d 1180, 1186 (9th Cir. 2001). Plaintiffs seek certification under Rule 23(b)(2). (ECF 6 at 18.) Rule

23(b)(2) permits class actions for declaratory or injunctive relief where “the party opposing the class has

acted or refused to act on grounds that generally apply to the class.” 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.” Dukes, 564 U.S. at 360 (citation omitted).

The party seeking class certification bears the burden of demonstrating that it has met all four

Rule 23(a) prerequisites and that the class lawsuit falls within one of the three types of actions permitted

under Rule 23(b). Zinser, 253 F.3d at 1186. Moreover, the failure to meet “any one of Rule 23’s

requirements destroys the alleged class action.” Rutledge v. Elec. Hose & Rubber Co., 511 F.2d 668,

673 (9th Cir. 1975). The Supreme Court has held that “actual, not presumed, conformance with Rule

23(a) [is] indispensable.” Gen. Tel. Co. v. Falcon, 457 U.S. 147, 160 (1982); Dukes, 564 U.S. at 350

(Rule 23 “does not set forth a mere pleading standard.”). A court should only certify a class “if the trial

court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.”

Dukes, 564 U.S. at 350-51 (internal quotation omitted).

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ARGUMENT I. UNDER THE FIRST-TO-FILE DOCTRINE, THIS ACTION SHOULD BE STAYED IN
LIGHT OF FRAIHAT. The instant putative class action substantially overlaps with Fraihat, et al. v. U.S. Immigration and Customs Enforcement, et al., No. 19-1546 JGB (C.D. Cal.). See ECF No. 26-1 (order granting motions for class certification and preliminary injunction). Not only was Fraihat first filed, but there has already been a provisional class certification order and preliminary injunction entered therein, which includes members of the proposed class in this case. Under the first-to-file doctrine, this action should be stayed pending Fraihat. Defendants are filing a motion to stay concurrently with this brief. Moreover, the preliminary injunction that has already been issued in Fraihat, which covers the MVDF and YCJ facilities at issue in this motion, removes the exigency of this matter and counsels against granting the expedited relief plaintiffs seek. “The first-to-file rule allows a district court to stay proceedings if a similar case with substantially similar issues and parties was previously filed in another district court.” Kohn Law Grp., Inc. v. Auto Parts Mfg. Mississippi, Inc., 787 F.3d 1237, 1239 (9th Cir. 2015); see also Clardy v. Pinnacle Foods Grp., LLC, No. 16-CV-04385-JST, 2017 WL 57310, at *2 (N.D. Cal. Jan. 5, 2017) (“The first-to-file rule allows a district court to transfer, stay, or dismiss an action when a similar complaint has already been filed in another federal court.”). “The purpose of the well-established firstto-file rule is to promote efficiency and to avoid duplicative litigation and thus it should not be lightly disregarded.” Clardy, at *2. “When applying the first-to-file rule, courts should be driven to maximize ‘economy, consistency, and comity.’” Kohn Law Grp., Inc., 787 F.3d at 1240. The rule applies with particular force in putative class actions. “Litigating a class action requires both the parties and the court to expend substantial resources. Perhaps the most important purpose of the first-to-file rule is to conserve these resources by limiting duplicative cases.” Baatz v. Columbia Gas Transmission, LLC, 814 F.3d 785, 791 (6th Cir. 2016). The first-to-file rule also avoids the potential for inconsistent judgments. See Landscape Specialists, Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, No. SACV191419JVSKESX, 2020 WL 968693, at *4 (C.D. Cal. Jan. 8, 2020) (“staying the case will serve the purposes of the first-to-file rule by promoting judicial efficiency and avoiding inconsistent

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judgments”). Significantly, the rule “does not only apply when the allegations and parties are exactly

the same.” Henry v. Home Depot U.S.A., Inc, No. 14-CV-04858-JST, 2016 WL 4538365, at *4 (N.D.

Cal. Aug. 31, 2016). “The issues in both cases also need not be identical, only substantially similar.”

Kohn Law Grp., Inc., 787 F.3d at 1240.

The instant lawsuit is substantially similar to Fraihat. Both lawsuits are brought against ICE and

concern whether ICE has taken sufficient measures to protect detainees from COVID-19. Plaintiffs here

argue that a “systemic remedy” is needed at MVDF and YCJ in order to address the COVID-19 crisis.

(See, e.g., ECF 5 at p. 29.) That is precisely what Fraihat provides. In its April 20, 2020 order

provisionally certifying a nationwide class of detainees in ICE detention and entering a temporary

restraining order, the Fraihat court mandated a “system-wide” response to COVID-19. (ECF 26-1 at p.

24 (p. 23 of Fraihat order) (“the common question driving this case is whether Defendants’ system-wide

response—or lack of one—to COVID-19 violates Plaintiffs’ rights”).) The class provisionally certified

in Fraihat is nationwide (id. at p. 22 (p. 21 of Fraihart order), and thus applies to the MVDF and YCJ

facilities at issue here.

The Fraihat court ordered injunctive relief that encompasses further reduction of the MVDF and

YCJ populations to allow for greater social distancing and that also requires implementation of

additional precautions to protect all detainees from COVID-19. This is the same type of relief that

plaintiffs seek here. Specifically, the Fraihat order requires that ICE:

• “identify and track all ICE detainees with Risk Factors” and reconsider whether these

detainees should be released, taking into account “the willingness of the detainees with

Risk Factors to be released, and other information on post-release planning”;

• “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”; and

• “monitor and enforce facility-wide compliance with the Pandemic Response

Requirements and the Performance Standard,” which provide for a comprehensive

approach to ensure that conditions at the detention facilities appropriately protect all

detainees from COVID-19. (ECF 26-1 at pp. 39-40 (pp. 38-39 of Fraihat order).)

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The relief the Fraihat court has already ordered at MVDF and YCJ substantially overlaps with the relief

that plaintiffs seek here—an order requiring “ICE to release people from Mesa Verde and YCJ in order

to facilitate social distancing.” (ECF 5 at p. 31; see also ECF 5-7 (plaintiff’s proposed TRO, which

provides for an individualized release assessment based on putative class members’ “current medical

conditions”.))

The first-to-file rule does not permit these overlapping putative class actions to proceed in

tandem. Fraihat was filed first and is substantially further along than this case, which was just filed on

April 20, 2020. The Fraihat court has already entered a preliminary injunction, which provides similar

COVID-19 relief to that requested by plaintiffs here. Under the first-to-file doctrine, this action should

be stayed in deference to Fraihat. See Henry, 2016 WL 4538365, at *1 (applying first-to-file rule to

“two overlapping class actions against Home Depot”); Clardy, 2017 WL 57310, at *1 (staying N.D. Cal.

putative class action in deference to “putative class action in Illinois involv[ing] the same Defendant,

overlapping putative classes, and substantially similar issues”); Bodley v. Whirlpool Corp., No. 17-CV-

05436-JST, 2018 WL 2357640, at *2 (N.D. Cal. May 24, 2018) (applying first-to-file rule to two

“substantially similar” class actions, even though “the two lawsuits [were] not identical”). Doing so will

both promote efficiency and protect the government from being subjected to inconsistent orders.

II. PLAINTIFFS HAVE FAILED TO MEET THEIR HEAVY BURDEN OF ESTABLISHING THAT THEY ARE ENTITLED TO PRELIMINARY INJUNCTIVE RELIEF.

If the Court declines to stay this case, the Court should deny plaintiffs’ motion for a temporary

restraining order.

A. The Court Lacks Jurisdiction To Hear Petitioners’ § 2241 Habeas Petition.

Plaintiffs are detained in facilities in the Eastern District of California. Accordingly, this Court

lacks jurisdiction over their habeas petition. “Writs of habeas corpus may be granted by the Supreme

Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions.”

28 U.S.C. § 2241(a). The Supreme Court has made clear that in “core” habeas petitions—petitions like

this one that challenge the petitioner’s physical confinement—the petitioner must file the petition in the

district in which he is confined and name his immediate custodian as the respondent. See Rumsfeld v.

Padilla, 542 U.S. 426, 437 (2004). In its analysis of the proper forum for habeas challenges to present

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confinement, the Supreme Court examined “two related subquestions.” Id. at 434. First, it decided who
is the proper respondent, and concluded was the “warden of the facility where the [petitioner] is being
held.” Id. at 435. Second, the Court examined whether the federal district court in which the petition is
filed has “territorial jurisdiction,” i.e., because the “immediate custodian and the [petitioner] reside”
there. Id. at 444.
The Court’s analysis of these two subquestions led it to conclude that the federal habeas statute
requires a habeas petitioner to challenge his detention in the district in which he is confined:
The proviso that district courts may issue the writ only “within their respective jurisdictions” forms an important corollary to the immediate custodian rule in challenges to present physical custody under § 2241. Together they compose a simple rule that has been consistently applied in the lower courts, including in the context of military detentions: Whenever a § 2241 habeas petitioner seeks to challenge his present physical custody within the United States, he should name his warden as respondent and file the petition in the district of confinement.
Id. at 446-47 (citation omitted). In so doing, the Supreme Court rejected the “legal reality of control”
standard and held that legal control over the detained individual does not determine the proper
respondent in a habeas petition that challenges present physical confinement. Id. at 437-40.
Since the Supreme Court’s decision in Padilla, the Ninth Circuit has not addressed the immediate
custodian and district of confinement rule in the immigration context. A decision issued just prior to
Padilla, which had relaxed the immediate physical custodian requirement in immigration habeas cases,
was withdrawn. See Armentero v. INS, 382 F.3d 1153 (9th Cir. 2004). District courts in this circuit have divided over the question.3 Defendants recognize that this Court has concluded that this district could be
proper for an immigration-related habeas petition filed by a petitioner physically confined in the Eastern

3Compare, e.g., Douglas v. Barr, No. 2:19-CV-10035-AB-MAA, 2019 WL 6310270, at *3 (C.D. Cal.

Nov. 25, 2019) (“This Court is not authorized to issue a writ of habeas corpus directed outside its

territorial jurisdiction.”); Wairimu v. Dir., Dep’t of Homeland Sec., No. 19-CV-174-BTM-MDD, 2019

WL 460561, at *2 (S.D. Cal. Feb. 5, 2019); Barajas v. Lynch, No. LACV1604682VBFJEM, 2016 WL

4035677, at *1 (C.D. Cal. July 8, 2016) (holding that habeas petition for individual detained at MVDF

must be filed in the Eastern District of California); Tenrreiro v. Ashcroft, No. CV 04-768-PA, 2004 WL

1588217, at *1 (D. Or. July 12, 2004) (finding that an immigration detainee in Tacoma, Washington,

must file petition in the Western District of Washington, not Oregon, and name the Tacoma warden);

with, e.g., Renteria v. Sessions, No. CV1801797PHXJATBSB, 2018 WL 5017001, at *3 (D. Ariz. Aug.

24, 2018) (allowing the Attorney General and DHS Secretary to be named as custodians); Cau v. Lynch,

No. CV1507601FMODTB, 2016 WL 1358656, at *3 (C.D. Cal. Feb. 16, 2016), report and

recommendation adopted, No. CV1507601FMODTB, 2016 WL 1354947 (C.D. Cal. Apr. 4, 2016);

Rivera v. Holder, 307 F.R.D. 539, 544 n.1 (W.D. Wash. 2015) (finding the immediate custodian rule

inapplicable and allowing the Attorney General and DHS Secretary as custodians).
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District of California post-Padilla. See Saravia v. Sessions, 280 F. Supp. 3d 1168, 1183 (N.D. Cal. 2017).

Plaintiffs’ circumstances are distinguishable from those that led the Court to allow a San Francisco

Immigration Official to be named in Saravia. First, the Court held that “a petitioner held in federal

detention in a non-federal facility pursuant to a contract should sue the federal official most directly

responsible for overseeing that contract facility when seeking a habeas writ.” Id. at 1185. Here, the ICE

official most directly responsible for overseeing the contract facility at YCJ is Assistant Field Office

Director Dana Fishburn, who is assigned to the Sacramento Sub-Office, located in the Eastern District of

California. See Declarations of Dana Fishburn ¶¶ 1-2, submitted herewith. The ICE official most directly

responsible for overseeing the contract facility at MVDF is Assistant Field Office Director Alexander

Pham, who is assigned to the Bakersfield Sub-Office, located in the Eastern District of California. See

Declaration of Alexander Pham ¶ 1, submitted herewith. Second, unlike Saravia, in which petitioners

challenged the fact of their detention, this petition is a challenge of the conditions of confinement in YCJ

and MVDF, over which the actual wardens of YCJ and MVDF have control.

Therefore, venue is improper in this judicial district because plaintiffs’ immediate custodians

(the Warden of MVDF and the Sheriff of Yuba County and/or the AFOD responsible for YCJ and

MVDF), as well as the detention centers where plaintiffs are housed, are located in the Eastern District

of California. See Dada v. Witte, No. CV 20-1093, 2020 WL 1674129, at *3 (E.D. La. Apr. 6, 2020)

(rejecting argument that New Orleans ICE Field Office was the immediate custodian, as opposed to the

warden of each facility where each plaintiff was held). Thus, only the U.S. District Court for the Eastern

District of California has jurisdiction over plaintiffs’ challenge to their detention.

B. Plaintiffs Do Not Satisfy The Requirements For Preliminary Injunctive Relief.

1. Plaintiffs Are Unlikely To Succeed On The Merits.

Defendants have taken substantial steps to protect the detainees at MVDF and YCJ, including the

promotion of social distancing at the facilities. See Bonnar Dec. ¶¶ 8 (MVDF population is at less than

75 percent of capacity), 11(f) (beds in Dorms A and B have been staggered); Kaiser Dec. ¶ 8 (YCJ

population is at 64 percent of capacity). ICE has exercised its discretion to reduce the detainee

populations at the facilities by releasing eligible detainees with underlying medical conditions. Bonnar

Dec. ¶¶ 8-9, 15; Kaiser Dec. ¶¶ 8, 13. Defendants have also provided masks to the detainees,

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implemented screening procedures for detainees and staff, and taken various other measures to protect them from the pandemic. Bonnar Dec. ¶¶ 11-12; Kaiser Dec. ¶¶ 10-11. As of April 24, 2020, there are no suspected or confirmed cases of COVID-19 at either YCJ or MVDF. Bonnar Dec. ¶ 13; Kaiser Dec. ¶ 12,
(i) Statutory Bases For Detention. Many of the plaintiffs are detained under 8 U.S.C. § 1226(c) and § 1231, which mandate detention pending completion of removal proceedings or during the removal period. Congress has expressly prohibited release for individuals detained under 8 U.S.C. §§ 1226(c) or 1231. When Section 1226(c) governs detention, the government “may release” the detainee “only if” release is “necessary” for witness-protection purposes and “the alien satisfies the [Secretary of Homeland Security]” that he “will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding.” 8 U.S.C. § 1226(c)(2). Outside of the narrow circumstances of release for witness protection purposes, Congress has determined that these individuals must not be released from detention pending removal, even on bond. The Supreme Court has emphasized that Section 1226(c) “mandates detention of any alien falling within its scope and that detention may end prior to the conclusion of removal proceedings ‘only if’ the alien is released for witness-protection purposes.” Jennings v. Rodriguez, 138 S. Ct. 830, 847 (2018). For aliens who have final removal orders, custody is generally mandatory during the removal period under 8 U.S.C. § 1231(a)(2). Once the removal period has expired, custody becomes discretionary under 8 U.S.C. § 1231(a)(6), and release on supervision may be appropriate if there is no significant likelihood of removal in the foreseeable future. In contrast, an immigration detainee held under 8 U.S.C. § 1226(a) may be released in the exercise of ICE’s discretion. Further, if such an individual is detained, ICE or an immigration judge has determined that the individual is a danger to persons or property, a threat to national security, or a flight risk that cannot be ameliorated by bond. See 8 C.F.R. § 236.1(c)(8); Matter of Guerra, 24 I. & N. Dec. 37, 38 (BIA 2006).

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(ii) Plaintiffs Have Not Established That The Conditions Of Their Confinement Violate The Fifth Amendment.
Plaintiffs fail to show that their detention is not proportionately related to the government’s nonpunitive responsibilities and administrative purposes. “[A] restriction is punitive where it is intended to punish, or where it is excessive in relation to its non-punitive purpose.” Jones v. Blanas, 393 F.3d 918, 93334 (9th Cir. 2004) (internal quotation omitted). While civil detainees retain greater liberty protections than individuals convicted of crimes, see, e.g., Youngberg v. Romeo, 457 U.S. 307, 321–22 (1982), the continued immigration detention of Plaintiffs pending removal cannot be described as punitive or excessive in relation to the legitimate government purpose of protecting the public and ensuring their removal. See, e.g., Dawson v. Asher, No. 20-cv-0409-JLR-MAT, 2020 WL 1304557, at *2 (W.D. Wash. March 19, 2020) (Dawson I). The COVID-19 outbreak does not change this analysis or weaken the government’s legitimate interest in plaintiffs’ detention pending removal. Id.
In their motion, plaintiffs focus on the fact that ICE utilizes alternatives to detention (“ATD”) for certain individuals and points to this program as a cure-all. (ECF No. 5 at 23.) However, while ATD may assist in ameliorating flight risk, it does not ameliorate danger. In fact, many detainees at YCJ and MVDF are detained because Congress has determined them to be in a class of individuals that are both a danger and a flight risk mandating detention, 8 U.S.C. § 1226(c), or because ICE or an immigration judge has determined they are a danger or a flight risk that cannot be ameliorated by bond or ATD. See generally Matter of Urena, 25 I. & N. Dec. 140 (BIA 2009). These considerations show the government’s continued legitimate interest in plaintiffs’ detention pending removal.
In denying a request for release from immigration detention in the Western District of Washington last month, when Seattle was the epicenter of the COVID-19 outbreak in this country, the court noted that “Plaintiffs do not cite to authority, and the court is aware of none, under which the fact of detention itself becomes an ‘excessive’ condition solely due to the risk of a communicable disease outbreak — even one as serious as COVID-19.” Dawson I, 2020 WL 1304557, at *2. Denying a second TRO motion in the same case, the Dawson court noted that, “under the Fifth Amendment, Respondents are not required to eliminate any risk to Petitioners. Instead, Respondents are required to provide for their ‘reasonable safety.’” Dawson v. Asher, No. 20-cv-0409-JLR-MAT, 2020 WL 1704324, at *12

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(W.D. Wash. Apr. 8, 2020) (Dawson II) (quoting DeShaney v. Winnebago County Dept. of Social Services,

489 U.S. 189, 200 (1989)).

As in Dawson, plaintiffs here have not established that their conditions of detention are

unconstitutional. It is clear from news reports COVID-19 is spreading in the general population. In

contrast, there is no evidence that anyone at MVDF or YCJ has tested positive for COVID-19, and ICE

is undertaking appropriate measures to prevent the spread of the disease. See, e.g., Dawson II, 2020 WL

1704324, at *12; Dawson I, 2020 WL 1304557, at *2-3; Sacal-Micha v. Longoria, __F. Supp. 3d __, 2020

WL 1518861, at *6 (S.D. Tex. Mar. 27, 2020) (“the fact that ICE may be unable to implement the

measures that would be required to fully guarantee Sacal’s safety does not amount to a violation of his

constitutional rights and does not warrant his release”) (citing Farmer v. Brennan, 511 U.S. 825, 832

(1994)). As set forth above, ICE has undertaken measures at both MVDC and YCJ to reduce the

populations, screen incoming detainees, and provide a sanitary environment for those in their care.

Other courts have ordered release from ICE detention due to the COVID-19 pandemic, usually

based on individualized decisions related to each detainee’s specific factual situation, or conditions at

the facility that are not present here. In Ortuno v. Jennings, No. 20-cv-02064-MMC, 2020 WL

1701724, at *5 (N.D. Cal. Apr. 8, 2020), the Court granted certain detainees’ request for release from

MVDF and YCJ, while denying others’ requests for release from the same facilities, demonstrating that

the various detainees at MVDF and YCJ lack commonality, and indeed have different interests. See also

Doe v. Barr, No. 20-cv-02141-LB, 2020 WL 1820667 at *4-*5, *11 (N.D. Cal. Apr. 12, 2020) (granting

TRO releasing YCJ detainee based in part on his medical conditions); Bent v. Barr, No. 19-cv-06123-

DMR, 2020 WL 1812850 at *2, *6 (N.D. Cal. Apr. 9, 2020) (conditionally granting TRO releasing

MVDF detainee based in part on his medical conditions).

In Basank v. Decker and Thakker v. Doll, there were confirmed COVID-19 cases at the jails

housing the petitioners—unlike at MVDF and YCJ. See Basank v. Decker, No. 20-cv-2518, ___ F.

Supp. 3d ___, 2020 WL 1481503, at *2 (S.D.N.Y. Mar. 26, 2020); Thakker v. Doll, ___ F.Supp.3d ___,

2020 WL 1671563 at *1 (M.D. Pa. March 31, 2020) (detention facilities included the York County

Prison and the Pike County Correctional Facility, both of which have confirmed COVID-19 cases,

according to https://www.ice.gov/coronavirus). Similarly, in Castillo v. Barr, No. cv-20-00605, 2020

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WL 1502864 (C.D. Cal. Mar. 27, 2020), the court specifically noted that DHS’s Office of Inspector General had found “significant” health and safety risks in the detention center at issue – unlike the facilities at issue in the present case. Id. at *1.
To the extent plaintiffs rely on a letter from Drs. Scott Allen and Josiah Rich, that unsworn letter provides no basis for this Court to depart from the well-reasoned Dawson opinion. Drs. Allen and Rich serve as contracted subject matter experts in detention health for DHS’s Office for Civil Rights and Civil Liberties (OCRCL). There is no evidence that Drs. Allen and Rich have ever visited the facilities at issue in this case (let alone recently), that they are aware of the procedures and protocols adopted by those facilities to protect detainees from COVID-19, or that they are even aware that ICE has in fact reduced the detainee population at both facilities in light of the COVID-19 emergency. See Bonnar Dec. ¶ 5 (no visits to MVDF by OCRCL); Exh. 2 ¶ 5 (same regarding YCJ within last five years). Defendants’ evidence shows that the detainee population at MVDF has been reduced to less than 75 percent of capacity and YCJ is at 64 percent of capacity. Bonnar Dec. ¶ 8; Kaiser Dec. ¶ 8.
(iii) Plaintiffs Have Not Established That They Are Being Subjected To Punishment.
Defendants have a non-punitive purpose in detaining Plaintiffs. Ortuno, 2020 WL 1701724, at *4. Plaintiffs cannot plausibly argue that defendants are subjecting them to punishment. ICE has implemented procedures and protocols to protect the detainees in its care, including at the facilities at issue in this case and has also exercised its discretion to reduce the detainee populations at those facilities. See generally Bonnar and Kaiser Decs. The continued lack of any suspected or confirmed COVID-19 cases at MVDF and YCJ underscores the effectiveness and care that defendants have taken to protect vulnerable detainees. These precautions taken by ICE at the two facilities at issue carry far more weight than the generalized opinions expressed in the various declarations submitted by plaintiffs’ proffered experts about populations in immigration detention centers in general and other detention and institutional settings.
Plaintiffs have not shown that they are likely to succeed on the merits. 2. Plaintiffs Have Not Shown Irreparable Harm.
Plaintiffs have not demonstrated that they will suffer irreparable injury absent the mandatory

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injunctive relief they seek. Plaintiffs must demonstrate “immediate threatened injury.” Caribbean

Marine Services Co., Inc. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) (citing Los Angeles Memorial

Coliseum Commission v. National Football League, 634 F.2d 1197, 1201 (9th Cir.1980)). Merely

showing a “possibility” of irreparable harm is insufficient. See Winter, 555 U.S. at 22. Moreover,

mandatory injunctions are not granted unless extreme or very serious damage will result. Marlyn

Nutraceuticals, Inc., 571 F.3d at 879 (internal citation omitted). “Issuing a preliminary injunction based

only on a possibility of irreparable harm is inconsistent with [the Supreme Court’s] characterization of

injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the

plaintiff is entitled to such relief.” Winter, 555 U.S. at 22. The standard “is not guaranteed safety–an

impossible standard to meet no matter the circumstances–but rather a likelihood of irreparable harm.”

Dawson II, 2020 WL 1704324, at *12; see also Sacal-Micha, __F. Supp. 3d __, 2020 WL 1518861, at

*6 (“the fact that ICE may be unable to implement the measures that would be required to fully

guarantee Sacal’s safety does not amount to a violation of his constitutional rights and does not warrant

his release”) (citing Farmer, 511 U.S. at 832).

In light of the numerous precautions defendants have taken to protect plaintiffs from the risk of

COVID-19, it is speculative to assume that only plaintiffs’ release into the general population will spare

them from the disease. See Bonnar Dec. ¶¶ 10-12; Kaiser Dec. ¶¶ 9-11. COVID-19 is spreading in the

general population, but not in either of the facilities where plaintiffs are detained. As in Dawson I,

“[t]here is no evidence of an outbreak at the detention center or that Defendants’ precautionary measures

are inadequate to contain such an outbreak or properly provide medical care should it occur.” 2020 WL

1304557, at *3 (footnote omitted).

Plaintiffs have not shown irreparable harm.

3. The Balance Of Interests And Public Interest Favors Respondents.

It is well settled that the public interest in enforcement of United States’ immigration laws is

significant. See, e.g., United States v. Martinez-Fuerte, 428 U.S. 543, 556-58 (1976); Blackie’s House

of Beef, Inc. v. Castillo, 659 F.2d 1211, 1221 (D.C. Cir. 1981) (“The Supreme Court has recognized that

the public interest in enforcement of the immigration laws is significant.”) (citing cases); see also Nken

v. Holder, 556 U.S. 418, 435 (2009) (“There is always a public interest in prompt execution of removal

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orders: The continued presence of an alien lawfully deemed removable undermines the streamlined removal proceedings IIRIRA established, and permits and prolongs a continuing violation of United States law.”) (internal quotation omitted).
Moreover, the public interest is best served by allowing immigration detention facilities to follow the orderly medical processes and protocols implemented by government professionals, as ICE has been doing. See, e.g., Bonnar Dec. ¶ 8 (describing ICE’s reduction of detainee population at MVDF); Kaiser Dec. ¶ 8 (describing ICE’s reduction of immigration detainee population at YCJ); Youngberg, 457 U.S. at 322-23 (urging judicial deference and finding presumption of validity regarding decisions of government professionals concerning conditions of confinement).
Plaintiffs have not shown that the balance of hardships and public interest tips in their favor. III. THE REQUEST FOR PROVISIONAL CLASS CERTIFICATION SHOULD BE
DENIED. Plaintiffs request for provisional class certification should be denied. The proposed class overlaps with the provisionally certified class in Fraihat, and the two actions cannot proceed in tandem. Moreover, the remedy that plaintiffs seek does not equally apply to all class members. Plaintiffs propose that some class members be released, while others remain detained—which bucket each class member will be placed in is to be determined through individual habeas applications. The individualized proceedings that plaintiffs propose are antithetical to classwide treatment, and the motion for class certification should be denied. A. No Class Should Be Certified In This Matter, Instead the Action Should Be Stayed
In Light of Fraihat. As set forth above, this action should be stayed, under the first-to-file rule, in deference to Fraihat, where a provisional class has already been certified. It is not appropriate to certify overlapping classes, as doing so both wastes judicial resources and “subjects [the parties] to inconsistent rulings.” Baatz, 814 F.3d at 791. For this reason alone, plaintiffs’ motion for provisional class certification should be denied, and this matter should be stayed. B. Plaintiffs Cannot Establish Sufficient Commonality To Warrant Provisional Class
Certification. Plaintiffs do not demonstrate that class treatment is otherwise appropriate. Although plaintiffs

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argue that “[t]he proposed class is a quintessential Rule 23(b)(2) class” because an “injunction or

declaration will provide relief on a class-wide basis” (ECF 6 at 18), the proposed TRO that plaintiffs

have submitted demonstrate that this is not the case. Notably, plaintiffs are not seeking the closure of

MVDF and YCJ and release of all detainees therein. Instead, plaintiffs seek individualized habeas

proceedings, through which the MVDF and YCJ populations will be further reduced by releasing some

indeterminate number of proposed class members and continuing to detain others. (ECF 5-7 at 5.)

Moreover, plaintiffs’ counsel proposes to pick and choose on behalf of which individual class members

they will advocate for release by bringing their individual habeas applications first—presumably by

selecting class members whose medical conditions put them at risk for COVID-19 complications (ECF

5-7 at 9) and whose individual circumstances will permit counsel to argue that they are neither a flight

risk nor a danger to the community. In short, plaintiffs’ requested TRO provides for individualized

proceedings, not classwide treatment.

But, to obtain class certification, plaintiffs must demonstrate that the proposed class is entitled to

common relief as to each count on which certification is sought. See Fed. R. Civ. P. 23(a)(2), (b)(2).

The Supreme Court has repeatedly held that “what matters to class certification . . . 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.” Dukes, 564 U.S. at 350 (quoting

Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 131–32 (2009)).

The commonality requirement is especially rigorous when applied to a class that seeks

certification under Rule 23(b)(2). As the Supreme Court recently noted in reviewing a Ninth Circuit

immigration detention case, “Rule 23(b)(2) applies only when a single injunction or declaratory

judgment would provide relief to each member of the class.” Jennings, 138 S. Ct. at 852(quoting Dukes,

564 U.S. at 360). For certification under Rule 23(b)(2), plaintiffs must show 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.” Dukes, 564 U.S. at 360. Accordingly, plaintiffs bear the burden of demonstrating that any

factual differences among the proposed class members are unlikely to affect their entitlement to relief.

See id. Class certification under Rule 23(a) and (b)(2), therefore, requires two steps: (1) the

identification of a common legal problem, and (2) a showing that the common legal issue may be

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resolved as to all class members simply by virtue of their membership in the class. Dukes, 564 U.S. at

350 (concluding that the common legal problem “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.”).

Plaintiffs’ proposed class and proposed class TRO order fails to meet the commonality

requirement. Some class members will be released under plaintiff’s proposed TRO, and many will not.

Plaintiffs suggest that the class members’ underlying medical conditions will dictate which class

members get released and which do not. (ECF 5-7 at 9.) See, e.g., Ortuno v. Jennings, No. 20-cv-

02064-MMC, 2020 WL 1701724, at *5 (N.D. Cal. Apr. 8, 2020) (granting certain detainees’ request for

release from MVDF and YCJ, while denying others’ requests for release from the same facilities, based

on their underlying medical conditions). But, the proposed class members have vastly different risk

profiles for COVID-19 based on preexisting conditions, age, and a host of other factors. See CDC

Guidance, People Who are at Higher Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019-

ncov/need-extra-precautions/people-at-higher-risk.html (last accessed April 23, 2020). For example,

plaintiff Coraima Yaritza Sanchez Nunez is 26 years old, but has asthma. (ECF 6-5 at ¶¶ 2, 10.) This is

different from plaintiff Javier Alfaro, who is 39 years old, but does not have any other medical

conditions that place him at increased risk for severe COVID-19 illness. (ECF 6-6.) Whether any

particular class member will be released under the proceeding proposed in plaintiffs’ TRO, is an

individualized, and not common question, involving wide factual variation. Such “[d]issimilarities

within the proposed class” defeat commonality. Dukes, 564 U.S. at 530.

Additionally, the circumstances within each facility are not uniform. At YCJ, ICE detainees are

intermingled with county inmates. Kaiser Dec. ¶ 5. Neither ICE nor the Court have the authority to

mandate the actions taken by YCJ with respect to county inmates. At MVDF, the beds in two dorms

have been staggered to allow six feet distancing. Bonnar Dec. ¶ 11(f). These differences within the

subclasses further show that they lack commonality.

Detainees are also held under differing statutory authorities, which makes considerations

regarding detention and release vary from one individual to the other. See, e.g., 8 U.S.C. § 1225(b)

(requiring mandatory detention for aliens pending final determination in credible fear proceedings);

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§ 1226(c) (requiring mandatory detention for aliens who have committed certain criminal offenses);

§ 1231(a)(2) (requiring mandatory detention during the 90-day removal period after a final order of

removal is entered). Even where a detainee is eligible for release, ICE must assess whether the detainee

is a danger to the community or a flight risk. See 8 C.F.R. § 236.1(c)(8). In addition, 8 U.S.C.

§ 1182(d)(5) grants the Attorney General discretion to “parole [aliens] into the United States temporarily

under such conditions as he may prescribe.” Plaintiffs cannot show that a single common remedy is

appropriate for everyone in the proposed class, especially where detention for some individuals is

mandated by statute and release requires an assessment of dangerousness and flight risk that is, by

nature, made on a case-by-case basis. Plaintiff Javiar Alfaro, for example, has been convicted of felony

infliction of corporal injury on a spouse/cohabitant, whereas plaintiff Coraina Sanchez Nunez’s criminal

conviction was for a DUI. (Declaration of Alexander Pham at ¶¶ 5, 15.) In deciding which individual

habeas applications to pursue, plaintiffs’ counsel is likely to analyze the class members’ varying

criminal histories and flight risk profiles, and pursue just those who are good candidates for release.

(ECF 5-7 at 9.)

Because plaintiffs cannot meet their burden to demonstrate commonality the Court must deny

their motion to certify a class. See Mazza v. Am. Honda Motor Co., 666 F.3d 581, 596 (9th Cir. 2012)

(common issues do not predominate where “an individualized case” must be made on behalf of each

class member in order to obtain relief).

C. Plaintiffs Cannot Establish Sufficient Typicality To Warrant Class Certification.

Plaintiffs’ proposed class also fails to satisfy the typicality requirement. The commonality and

typicality requirements of Rule 23(a) are interrelated and, in some instances, merge. Dukes, 564 U.S. at

349 n.5. “Both [requirements] serve as guideposts for determining whether under the particular

circumstances maintenance of a class action is economical and whether the 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.” Id. Because the putative class members’ circumstances and ultimate

eligibility for relief are too varied to satisfy the commonality requirement, plaintiffs are also unable to

satisfy Rule 23(a)(3).

The different forms of relief requested demonstrate that plaintiffs cannot establish typicality.

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Plaintiffs request that the Court order defendants to release some, but not all, class members in order to

facilitate social distancing. (ECF 5 at 31.) To do so, plaintiffs propose implementation of a system

where the Court reduces the population based on individualized factors. (ECF 5-7.) The proposed relief

demonstrates that the individual decision to release any putative class member will be different based on

their individual circumstances. Under plaintiffs’ proposal, some class members will be released from

YCJ and MVDF, whereas other detainees will remain in custody. While plaintiffs focus their typicality

argument on the need for social distancing (ECF 6 at 15), plaintiffs ignore that their proposed remedy is

vastly different for different class members. Plaintiffs seek a supposed classwide remedy on an

individualized basis (ECF 5-7)—a contradiction in terms, which demonstrates class treatment is not

appropriate.

In addition, each plaintiff’s claim to release must be decided on a case-by-case basis and is

subject to unique defenses based on the facts and circumstances of each individual class member. See

Sacal-Micha, 2020 WL 1518861, at *5 (noting that decisions from other district courts demonstrate

individualized nature of analysis to determine whether release is appropriate). The relief sought in

plaintiffs’ proposed TRO (ECF 5-7) underscores this point. Plaintiffs request individualized medical

and other information for each YCJ and MVDF detainee. (ECF 5-7.) Plaintiffs then propose to file

“individual applications for release,” implicitly dependent on class counsel acting as quasi-ICE officers

exercising “prosecutorial discretion” over which cases merit release and should be presented to the

Court. (Id. at 5.) In other words, plaintiffs are requesting that they take on the policy role of deciding

who among the detained population is entitled to relief in the form of release from detention. This

proposed relief is wholly inconsistent with the requirement that relief be common among the class.

Dukes, 564 U.S. at 360.

Hundreds of other ICE detainees have sought release across the country. See, e.g., Dawson v.

Asher, No. C20-0409 JLR-MAT (W. D. Wash. Mar. 19, 2020); Francisco M. v. Decker, No. 20-2176

(CCC) (D.N.J. Mar. 25, 2020); Patel v. Barr, No. C20-488-RSM-BAT (W.D. Wash. April 2, 2020).

This fact cuts against class certification. That numerous detainees nationwide are having their cases for

release heard on an individualized basis, with some detainees obtaining release and others not,

demonstrates that classwide relief is not appropriate. See, e.g., Ortuno, 2020 WL 1701724, at *5

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(granting relief to some petitioners but not others); Murai v. Adducci, No. 3:20-cv-10816-RHC-PTM,

ECF No. 8 (E.D. Mich. April 16, 2020) (denying TRO where facility has no confirmed cases of COVID-

19); Saillant v. Hoover, No. 1:20-cv-6090JPW, 2020 WL 1891854 (M.D. Pa. April 16, 2020) (denying

habeas petition where facility has taken steps to address COVID-19 and petitioner made no allegation

that he had a risk factor making him more susceptible to the disease); Albino-Martinez v. Adducci, No.

2:20-cv-10893, 2020 WL 1872362, at *4 (E.D. Mich. April 14, 2020) (denying temporary restraining

order requesting release in light of COVID-19 when the “battle against COVID-19 is ever evolving and

changing”); Ramirez v. Culley, No. 2:20-cv-609, 2020 WL 1821305 (D. Nev. April 9, 2020) (denying

TRO where detention facility did not present constitutionally unsafe conditions and no evidence of

COVID-19 present at the facility); Hassoun v. Searls, --- F. Supp. 3d ---, 2020 WL 1819670 (W.D.N.Y.

April 10, 2020) (denying release of petitioner with underlying health concerns and who has not followed

medical advice that housed separately from other detainees and where facility has taken steps to address

the spread of COVID-19); Awshana v. Adducci, --- F. Supp. 3d ---, 2020 WL 1808906 (E.D. Mich. April

9, 2020) (denying release where detention facility has no confirmed or suspected COVID-19 cases and

petitioners have no conditions that place them in higher risk categories); N.Z.M. v. Wolf, No. 5:20-cv-24,

ECF No. 20 (S.D. Tex. April 9, 2020) (denying TRO where petitioner did not present evidence of higher

risk factors for COVID-19 and facility had no known reported cases); Verma v. Doll, No. 4:20-cv-14,

2020 WL 1814149, at *6 (M.D. Pa. April 9, 2020) (denying release because facility has taken

reasonable steps to limit spread of COVID-19 through facility and explaining that there is “no perfect

solution to preventing the spread of COVID-19 in detention facilities”); Dawson, 2020 WL 1304557 at

*3 (holding potential exposure to COVID-19 insufficient to justify release). Indeed, as the court in

Umarbaev v. Lowe observed 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.” Umarbaev v. Lowe, No. 1:20-CV-00413, 2020 WL 1814157, at *7 (M.D.

Pa. Apr. 9, 2020) (denying a TRO for release of petitioner with risk factors but who has been receiving

medical care in detention and monitored during 14-day quarantine period). Such individualized

considerations are entirely inappropriate for a Rule 23(b)(2) class, inasmuch as the relief must equally

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benefit all class members. Dukes, 564 U.S. at 360.

To the extent that plaintiffs rely on Parsons v. Ryan, 754 F.3d 657 (9th Cir. 2014), that case is

readily distinguishable due to the nature of the relief sought. In Parsons, the Ninth Circuit found that a

class action based on detention conditions satisfied Rule 23(b)(2) because the remedy sought was

applicable on a classwide basis. Id. at 689. But the Parsons remedy was not release of only some

inmates. Plaintiffs in Parsons sought a change in policy that would increase access to medical services

for all inmates, relief that the Ninth Circuit found applied to all class members. Id. at 663, 689. In

contrast, plaintiffs here are not seeking uniform relief, but instead are asking for either release or to be

detained in a less crowded facility. Plaintiffs cannot meet their burden of establishing typicality.

D. Plaintiffs Have Not Established Adequacy.

The named plaintiffs—who will surely urge class counsel to advocate for their release first—

have a conflict of interest with other members of the class who will not be released. Thus, plaintiffs

cannot establish adequacy either.

The adequacy requirement serves to protect the due process rights of absent class members who

will be bound by the judgment. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998),

overruled on other grounds by Dukes, 564 U.S. 338. Assessing the adequacy of class representation

turns on two inquiries: “(1) do the named plaintiffs and their counsel have any conflicts of interest with

other class members, and (2) will the named plaintiffs and their counsel prosecute the action vigorously

on behalf of the class?” Id.

Plaintiffs seek a reduction in the YCJ and MVDF detainee populations, not the release of all

detainees. (ECF 5 at 31.) They further propose staggered applications for release until the detainee

populations are sufficiently reduced to permit what plaintiffs deem adequate social distancing. (ECF 5-7

at 5.) This proposal violates Dukes’ requirement that classwide injunctive relief equally benefit the

entire proposed class. 564 U.S. at 360 (Rule 23(b)(2) “does not authorize class certification when each

individual class member would be entitled to a different injunction or declaratory judgment against the

defendant.”) (emphasis in original). Accordingly, the named plaintiffs’ interests are not aligned with all

members of the putative class, and, as with commonality and typicality, plaintiffs have failed to establish

adequacy. The request for provisional class certification should be denied.

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IV. PLAINTIFFS’ PROPOSED TRO IS UNWORKABLE AND UNLAWFUL. Even if the Court were to provisionally certify plaintiffs’ proposed classes4 and find that
plaintiffs are entitled to a TRO or preliminary injunction, the order proposed by plaintiffs is legally improper and presents numerous practical difficulties.
First, plaintiffs’ proposed order includes a declaratory judgment that is not appropriate in a TRO. See ECF No. 5-7 at 3, ¶ 1. The purpose of preliminary injunctive relief is to preserve the status quo pending final judgment, rather than to obtain a preliminary adjudication on the merits. Sierra On-Line, 739 F.2d at 1422. By seeking to have the Court definitively declare that “conditions of confinement . . . are unconstitutional,” the proposed order would be an improper full adjudication on the merits of some of plaintiffs’ claims. ECF No. 5-7 at 3, ¶ 1. The Court should strike paragraph 1.
Second, as discussed above, plaintiffs’ proposed order is objectionable because it permits class counsel to determine the order of applications for release that they would present to the Court with no oversight or guidelines. Id. ¶ 2(f). Class counsel may not be given the role of an ICE official to exercise discretion and determine who of approximately 427 individuals warrants first consideration for release by the Court. Indeed, it is conceivable that class counsel would advocate for release of the named plaintiffs first, some of whom have no underlying medical conditions that place them at higher risk, even over individuals whose circumstance may be more compelling. Class counsel should not be given such latitude to usurp the power of the government or the Court.
Third, plaintiffs’ proposed method of collecting information violates detainees’ privacy interests. If the Court certifies a provisional class pursuant to Federal Rule of Civil Procedure 23(b)(2), all ICE detainees at MVDF and YCJ would be class members and would not have the ability to opt out. Paragraph 2(b) of the proposed order would require defendants to provide sensitive medical information5 regarding every detainee class member to class counsel, whom class members have not asked to represent them. Medical information is among the most sensitive private information. See

4 If the Court declines to certify the proposed classes, the proposed TRO would be an improper backdoor attempt to obtain discovery where it is not otherwise permitted. See, e.g., Bracy v. Gramley, 520 U.S. 899, 904 (1997) (“A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of ordinary course.”).

5 Additionally, in paragraph 2(b), plaintiffs demand that defendants provide class members “current medical conditions.” It is unclear what “current medical conditions” means.

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generally Health Insurance Portability and Accountability Act, 42 U.S.C. §§ 1320d, 1320d-6. Requiring

defendants to produce this information to class counsel without regard to the desires of individual

detainees contravenes detainee privacy rights. Plaintiffs’ proposal differs from other circumstances

where courts have required defendants to turn over information on all class members or potential class

members notwithstanding privacy concerns. For example, in Tomassi v. City of Los Angeles, No. CV

08-1851 DSF SSX, 2008 WL 4722393, at *4 (C.D. Cal. Oct. 24, 2008), the court balanced the privacy

right of putative class members and class counsel’s need for information and found that defendants were

required to provide a list of potential class member names and addresses. However, medical

information is far more sensitive than names and addresses. In this instance, such sensitive information

tips the balance in favor of protecting class members’ privacy rights. Defendants therefore object to

providing ICE detainee medical information as proposed in paragraph 2(b).

Fourth, the forms proposed by plaintiffs conflict with the text of the proposed order. Paragraph

2(a) instructs that “Defendants shall obtain from every member” a potential release address and contact

information. (emphasis added). However, Form A, which plaintiffs propose to collect such information,

does not require the detainee to complete the form and states that “if you do NOT want to be considered

for release, do not fill out this form.” As plaintiffs recognize in the proposed form, detainees should not

be forced to give defendants this information. The proposed order therefore cannot require defendants

to obtain information from detainees who do not wish to provide this information.

Fifth, plaintiffs proposed forms fail to distinguish between non-ICE detainees and ICE detainees

at YCJ. Plaintiffs’ suit and proposed subclass definition include only individuals held in ICE custody,

not those criminal defendants held by Yuba County. See ECF No. 6 at 11. Therefore, care must be

taken to distinguish between ICE detainees, who would be subject to an order in this case, and Yuba

County inmates, who are not provisional class members. Form A requires changes to make clear that

only ICE detainees at YCJ would be permitted to be considered for release. Moreover, ICE detainees

are not totally segregated from Yuba County inmates and outright differential treatment should be

avoided.

Sixth, plaintiffs proposed timelines are internally conflicting and unworkable. Paragraph 2(b)

permits defendants to begin providing medical information “at a rate of 25 class members per day,” but

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paragraph 2(c) states that within 72 hours, that medical information “shall” be provided to each class

member. These timelines are conflicting. Moreover, the timelines proposed by plaintiffs are

unworkable. Defendants are unable to obtain medical information for every potential class member in

the time proposed. See First Fishburn Dec. ¶ 6. Defendants are also unable to present the factors that

might counsel against release, such as criminal history, flight risk factors, immigration history, or

unsuitability of proposed release location or sponsor, within 24 hours of class counsel submitting an

application. Id. ¶ 9. The A-files for individuals detained at YCJ and MVDF are located in many

locations, including ICE offices at immigration courts, other regional ICE office, and offices for FOIA

processing. Id. There is also no limit on the number of applications class counsel would be able to

present each day, potentially overwhelming the limited resources of defendants. Further, defendants’

limited resources are better devoted to protecting the detainees and continuing to review cases for

release under defendants’ policies already in place, rather than creating this parallel and entirely new

process proposed by plaintiffs.

Seventh, defendants are unable to provide for translation of plaintiffs’ proposed forms, either in

writing or orally. The process for ICE to obtain translation of document takes weeks and sometimes

months. See First Fishburn Dec. ¶ 4. Defendants are unable to obtain translations on the timeline

proposed by plaintiffs. To orally translate the forms, each of the approximately 427 detainees would

need to be transferred to an ICE sub-office to have the translation done, and such movement of detainees

is discouraged due to the pandemic. Id.

Should the Court order preliminary injunctive relief, rather than order a process which requires

defendants to violate putative class members privacy, defendants propose that the Court order

defendants to reduce the populations at MVDF and YCJ to numbers that permit social distancing.

Defendants would then determine which class members would be released and provided weekly updates

to the Court regarding the class members released and the current populations at MVDF and YCJ. Id.

¶ 9.

If the Court is inclined to order an individualized review process, to correct the issues identified

above, defendants propose the following. Defendants would provide provisional class counsel a list of

the names of any provisionally certified class members. Id. ¶ 5. Class counsel would be responsible for

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translating any and all forms and notices. Id. ¶¶ 4, 8. Defendants could post notices and distribute

forms, but class members would be responsible for completing the forms, which should include, in

addition to the information proposed by plaintiffs, information about where a class member would go if

released, and whether that location has been approved by the individual’s parole and/or probation

officer. Id. ¶¶ 4-8. Class members would then mail the forms to class counsel and provide a copy to

defendants through the kite process. Id. ¶ 4.

Should the Court order any putative class member to be released, defendants respectfully request

that such an order(s) expire when the current state and local shelter-in-place orders are lifted, and that

each of the released putative class members be required to self-report to ICE within 24 hours after the

lifting of both the shelter-in-place order for the State of California and any shelter-in-place order for the

county where s/he resides. In addition, defendants respectfully request that release ordered include the

following conditions of release:

1. The released class member is to reside and shelter in place at the address specified in the release

order.

2. The released class member must obtain approval of the address from his parole officer (if any);

and also provide defendants with w/ the name, date of birth, DHS alien number (if any), and

telephone number of the person at the residence who will be responsible for the class member, so

that defendants may conduct their usual vetting process and advise the Court of any objections.

3. The released class member shall be transported by a person to be specified in said order from

his/her place of detention to the residence where s/he will reside and shelter in place.

4. Pending further order of the Court, the released class member shall not leave the residence where

s/he will shelter in place, except to obtain medical care, to appear at immigration court

proceedings, or to obey any order issued by the Department of Homeland Security.

5. The released class member shall not violate any federal, state, or local law.

6. If a released class member violates the conditions ordered by this Court or DHS, ICE may re-

detain him at any time to complete removal proceedings without advance notice to the Court or

the class member.

7. If a released class member’s removal order becomes final and a travel document is obtained, ICE

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may re-detain him/her to effectuate his removal without advance notice to the Court or

petitioner.

These additional conditions will place released class members on the same footing as detainees

who obtain discretionary release pursuant to defendants’ statutory and regulatory authority. To the

extent any class member is subject to mandatory statutory detention, any TRO ordering their continued

release would be based solely on the COVID-19 pandemic. As such, there is no justification for

requiring less supervision and authority over these individuals than defendants have over released

detainees who are not subject to mandatory detention.

V. OBJECTIONS TO PLAINTIFFS’ DECLARATIONS

Defendants recognize that the COVID-19 public health emergency has made it difficult for

plaintiffs’ counsel to obtain signed declarations from plaintiffs. That does not change the fact that the

declarations purporting to establish plaintiffs’ individual situations and the conditions at the detention

facilities are inherently unreliable. Plaintiffs have not submitted any declarations that they signed.

Instead, some plaintiffs have had unsigned declarations submitted by counsel; others purport to be

submitted by translators, which state that they were read to plaintiffs in Spanish or Vietnamese, while

submitted to the Court only in English. But, the translators’ certifications are also unsigned.

In this regard, defendants object to the following declarations as not being signed by the

declarants, who are plaintiffs in this case: Angel de Jesus Zepeda Rivas (ECF 6-1); Brenda Ruiz Tovar

(ECF 6-2); Lawrence Kuria Mwaura (ECF 6-3); Luciano Gonzalo Mendoza Jeronimo (ECF 6-4);

Coraima Yaritza Sanchez Nunez (ECF 6-5); Javier Alfaro (ECF 6-6); and Dung Tuan Dang (ECF 6-7).

In addition, defendants object that the following unsigned declarations were read to the

declarants in Spanish or Vietnamese, but submitted to the Court only in English, with no way for the

Court or defendants to confirm the accuracy of the translation: Angel de Jesus Zepeda Rivas (ECF 6-1);

Brenda Ruiz Tovar (ECF 6-2); Luciano Gonzalo Mendoza Jeronimo (ECF 6-4); Javier Alfaro (ECF 6-

6); and Dung Tuan Dang (ECF 6-7).

Defendants object to the following declarations as being replete with hearsay and/or not based on

the personal knowledge of the declarant and/or based on outdated information: Lisa Knox (ECF 5-4);

Kathleen Anne Kavangh (ECF 5-5); and Sean Riordan (ECF 5-6).

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The Court should afford little or no weight to these unreliable declarations. Courts may, in their

discretion, give some weight to hearsay and otherwise inadmissible evidence when considering whether

to issue emergency relief. See, e.g., Republic of the Philippines v. Marcos, 862 F.2d 1355, 1363 (9th

Cir. 1988); Flynt Distrib. Co., Inc. v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984). The above

declarations warrant little or no weight because they are significantly lacking in foundational support

and other indicia of reliability.

Likewise, plaintiffs’ declarations from physicians warrant little or no weight because they lack a

sufficient factual basis about the current conditions at MVDF and YCJ. Opinions based on scientific,

technical, or specialized knowledge are governed by Federal Rule of Evidence 702, which provides that

a qualified witness may testify in the form of opinion or otherwise as to scientific, technical or other

specialized knowledge if:

(a) the expert’s scientific, technical, or otherwise specialized knowledge will help the trier of fact

to understand the evidence or to determine a fact in issue, (b) the testimony is based upon sufficient facts

or data, (c) the testimony is the product of reliable principles and methods; and (d) the expert has

reliably applied the principles and methods to the facts of the case.

Rule 702 requires courts to ensure that expert opinions are not only relevant, but also reliable.

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993). To be reliable, the underlying

facts or data upon which an expert relies must be reliable; when an expert does not cite factual support

for their opinion, it lacks indicia of reliability. See, e.g., United States ex rel. Jordan v. Northrop

Grumman Corp., No. CV 95-2985 ABC, 2003 WL 27366247, at *3 (C.D. Cal. Feb. 24, 2003) (finding

expert testimony unreliable because it amounted to “conclusory opinions lacking any factual basis.”).

Here, the declarant physicians’ opinions are not based on sufficient facts or data because they

either fail to state if they know of the current conditions at MVDF and YCJ, or base their opinions on

their experiences at other immigration facilities from previous months or years, well before COVID-19.

For example, while Dr. Greifinger provides citations to support some of his factual assertions, he does

not provide any specific references to current conditions at MVDF and YCJ; his opinions based on

detention conditions are not indicative of the current conditions in the facilities at issue. For example,

Dr. Greiginger refers to declarations of two attorneys who visited the facilities, the declaration regarding

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YCJ does not specify when the attorney made her most recent visit, see Declaration of Kathleen Anne

Kavanaugh, (ECF 5-5), and the declaration regarding MVDF describes a visit from March 13, 2020 – a

relatively long time ago in the fast-moving COVID-19 situation – and is replete with hearsay, as noted

above. See Declaration of Lisa Knox (ECF 5-4).

CONCLUSION

For the foregoing reasons, the Court should stay this matter pending Freihat to prevent

overlapping claims and because it was first-filed. In the alternative, the Court should dismiss or transfer

this case as filed in the improper district or deny plaintiffs’ motion for class certification and motion for

a temporary restraining order.

DATED: April 25, 2020

Respectfully submitted,

DAVID L. ANDERSON United States Attorney

/s/ Adrienne Zack ADRIENNE ZACK Assistant United States Attorney

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DAVID L. ANDERSON (CABN 149604) United States Attorney SARA WINSLOW (DCBN 457643) Chief, Civil Division WENDY M. GARBERS (CABN 213208) ADRIENNE ZACK (CABN 291629) Assistant United States Attorneys
450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Telephone: (415) 436-7031 FAX: (415) 436-6748 adrienne.zack@usdoj.gov
Attorneys for Federal Defendants
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, et al., Plaintiffs,
v. DAVID JENNINGS, et al,
Defendant.

) Case No. 20-cv-02731 VC ) ) DECLARATION OF ERIK BONNAR IN ) SUPPORT OF FEDERAL DEFENDANTS’ ) OPPOSITION TO TRO AND MOTION TO ) STAY IN LIGHT OF FRAIHART ) ) ) )

I, Erik Bonnar, declare as follows:

1. I am the Deputy Field Office Director for U.S. Immigration and Customs Enforcement (“ICE”), Enforcement and Removal Operations (“ERO”), in the San Francisco Field Office (“ERO San Francisco”). I have held this position since March 2009. Concurrently, from September 2017 to June 2019, I was the Acting Field Office Director for ERO San Francisco. From January 2006 through March 2009, I was the Assistant Field Office Director for the ERO San Francisco Bakersfield, California sub-office. From July 2002 to January 2006, I was Supervisory Detention and Deportation Officer in the Bakersfield, California sub-office.

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2. In my capacity as Deputy Field Office Director, I am responsible for direction and oversight of ICE immigration enforcement operations within the California counties of Fresno, Inyo, Kern, Kings, Madera, Mariposa, Merced, Mono and Tulare, the state of Hawaii and the U.S. territories of Guam and the Northern Mariana Islands. My office is responsible for the identification, apprehension, detention and removal of illegal aliens from the United States. This responsibility includes the immigration case docket management and oversight of aliens detained at the Mesa Verde Detention Facility (“MVDF”) pending removal.
3. The facts in this declaration are based on my personal knowledge, consultation with other ICE personnel, and review of official documents and records maintained by the agency and Department and other relevant sources obtained during the regular course of business. I provide this declaration based on the best of my knowledge, information, belief, and reasonable inquiry for the above captioned case.
4. The Immigration and Nationality Act (“INA”) authorizes detention of aliens pending removal under sections 235, 236, and 241 of the INA. In some cases, aliens convicted of certain crimes are subject to mandatory custody under INA section 236(c) and are ineligible for release from ICE custody pending completion of removal proceedings. In other cases, aliens may be detained by ICE as a matter of discretion under sections 235 and 236(a) of the INA pending removal, because they have been found to be a danger to the community or pose a flight risk. For aliens who have final administrative removal orders custody is generally mandatory during the removal period under section 241(a)(2) of the INA, and once the removal period has expired custody becomes discretionary under section 241(a)(6) of the INA where release on supervision may be appropriate if there is no significant likelihood of removal in the foreseeable future.
5. The MVDF is a private detention center owned and managed by The GEO Group, Inc. (“GEO”). GEO is an independent contractor that provides the facility, management, personnel and services for 24-hour supervision of aliens in ICE custody at MVDF. Besides its own private internal oversight and inspection processes, the federal government also mandates oversight through
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various inspection processes by ICE and other entities. However, to my knowledge, the DHS’ Office of Civil Rights and Civil Liberties has never visited, toured or inspected MVDF.
6. Medical care, including screening, at MVDF is provided by the GEO medical staff on-site and is overseen by the ICE Health Services Corps (“IHSC”), which provides medical services through a combination of U.S. Public Health Service Commissioned Corps (“USPHS”) officers, federal civil servants, and contract health professionals.
7. On April 10, 2020, ICE released its ERO COVID-19 Pandemic Response Requirements (“PRR”), a guidance document that builds upon previously issued guidance and sets forth specific mandatory requirements 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 during this pandemic.1
8. MVDF has the capacity to house 400 detainees, including 100 females and 300 males, in four separate dormitory units. MVDF has the capability to identify, isolate, and segregate detainees from each other. On March 11, 2020, the World Health Organization (“WHO”) declared COVID-19 a global pandemic. Since that time, in accordance with ICE policy, ERO Bakersfield sub-office has taken affirmative steps to reduce the number of detainees at MVDF by reconsidering custody determinations, parole requests, and issuing orders of supervision on release for those aliens who are not subject to mandatory custody, pose a danger to the community or flight risk; and/or there is no significant likelihood of removal in the foreseeable future. Consequently, from March 11, 2020 to present, ICE has reduced the MVDF detainee population from 355 to 283, which is less than 75% of its capacity.
9. ICE will continue to evaluate cases that may be high-risk for COVID-19, and as more relevant specific information is provided on any particular detainee, release may be appropriate provided they are not mandatory custody, a danger to the community, or deemed a flight risk where measures for alternatives to detention are inappropriate.
1 https://www.ice.gov/doclib/coronavirus/eroCOVID19responseReqsCleanFacilities.pdf
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10. Pursuant to ICE ERO protocols and under the direction of my office, MVDF implemented several processes to protect the detainee population. For example, MVDF stopped all social visitations and has permission to limit attorney contact visits as appropriate, while continuing to provide access to attorneys through various telephonic means as established under the Lyon v. U.S. Immigration and Customs Enforcement settlement agreement. MVDF staff is still scheduling attorney contact visits but are notifying attorneys in advance that they must wear appropriate personal protective equipment and submit to medical screening prior to entering the facility.
11. In addition to the screening and other protective measures described in Captain Moon’s declaration of March 27, 2020 (a true and correct copy of which is attached hereto as Exhibit A), MVDF has implemented several other measures to protect the detainee population from COVID19 infection. These measures include, but are not limited to the following:
a. MVDF provides education regarding COVID-19 to staff and detainees, including holding townhalls for staff, posting CDC information throughout the facility, and providing electronic informational messages to detainees through tablets;
b. MVDF has increased sanitation frequency, including frequent cleaning of all common area high contact surfaces, such as door handles, telephones, dining halls, and medical areas, which is being conducted throughout the day;
c. Sanitation supplies are provided, including, but not limited to, soap, all-purpose cleaner, disinfectant, and a bathroom-specific cleaning solution. Each detainee is provided a bar of soap, which may be replaced upon request when used up. A soap and towel dispenser have been installed in the front of each dorm. In addition, each dorm has two bathroom areas, and two soap dispensers have been installed in each bathroom area with a total of five liquid soap dispensers in each dormitory. MVDF staff also have access to soap and hand sanitizer. MVDF informed the IHSC FMC that hand sanitizer is not available to detainees because it is alcohol-based and poses a serious risk to the health of detainees if consumed. Per the CDC, soap and water are more effective than hand sanitizers at
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removing certain kinds of germs. However, MVDF stated that mounted hand sanitizer is available at the medical station and the lab station. d. As of April 17, 2020, MVDF began distributing surgical masks to detainees. As of April 20, 2020, IHSC FMC confirmed with the medical staff at MVDF that each detainee received a surgical mask and was educated on proper wear to prevent infection and spread.2 These masks will be replaced every Monday, Wednesday and Friday, supplies permitting. e. MVDF medical staff have their temperatures taken daily on-site. Since April 6, 2020 all MVDF medical staff are required to wear surgical masks at all times. As of April 16, 2020, all MVDF medical staff are required to wear an N95 mask during patient encounters, including pill call. f. As of this week, all beds in Dorms A and B, have been staggered to allow six feet distancing. The same will be done in the remaining dormitories when space permits.
12. In addition to the in-take and 14-day screening for symptoms of COVID-19, the MVDF medical staff will continue to examine any detainee who submits a request to see medical due to symptoms consistent with COVID-19. MVDF has the capability to conduct on-site testing of COVID-19; to date, MVDF medical staff has not conducted any testing for COVID-19 since they have not encountered any detainee experiencing symptoms consistent with COVID-19. In order to promote social distancing, the MVDF medical staff is only seeing one detainee in the medical unit at a time and is also limiting seating in the waiting area to one detainee at a time. If it is necessary for any detainee to depart the facility for any off-site appointment, his/her temperature is screened before any departure from the facility and after his/her return to the facility.
2 Use of Cloth Face Coverings to Help Slow the Spread of COVID-19, CDC, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/diy-cloth-face-coverings.html (recommending face coverings in public settings where other social distancing measures are difficult to maintain).
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13. As of April 24, 2020, the IHSC FMC confirmed with the MVDF Health Service Administrator that there are still zero suspected cases of COVID-19 and zero confirmed cases of COVID-19 at MVDF.
14. ERO management staff, including myself, hold several meetings every week and are in constant communication twenty-four hours a day, seven days a week over MVDF and issues stemming from COVID-19. Additionally, ICE staff is in daily contact with the Facility Administrator and his staff, including medical, at MVDF over the health and safety of detainees. Given the ICE protocols, MVDF staff and ICE officers are taking appropriate measures to ensure the health and safety of detainees and will continue to do so. ICE is on-site daily and can address any issues, as presented or directed, to ensure the ICE protocols are in place and to report back any issues they may observe that need to be addressed.3
15. ICE will continue to review its detained population for people who are “at higher risk for severe illness,” as identified by the CDC, to determine if detention remains appropriate, considering the detainee’s health, public safety and mandatory detention requirements, and adjust custody conditions when appropriate, to protect health, safety and well-being of its detainees. I declare under penalty of perjury that the foregoing is true and correct. Executed on April 24,
2020, at San Francisco, California.
_______________________ ERIK BONNAR
3 Due to a recent local press report concerning MVDF detainees on a possible hunger strike, MVDF staff identified those detainees as being housed in housing units C and D. Thereafter, MVDF staff held an in-person town hall for those detainees and provided information regarding formal hunger strike protocols, which is defined as missing at least nine consecutive meals. To my knowledge, none of the detainees had missed nine consecutive meals. MVDF staff informed detainees that should they choose to engage in a hunger strike then food they purchase from commissary would also be taken away. Following this town hall, the detainees resumed regular meals.
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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Sofia Bahena Ortuño; Gennady Valeryevich Lavrus; Claude Bent; Charles Joseph; Salomon Medina Calderon; Ricardo Vasquez Cruz; J. Elias Solorio Lopez; Olvin Said Torres Murillo; Julio Cesar Buendia Alas; Marco Montoya Amaya; Mauricio Ernesto Quinteros Lopez; Roxana del Carmen Trigueros Acevedo; Ernesto Ambrocio Uc
Encarnacion,

Case No. 20-cv-02064-MMC

Petitioners-Plaintiffs, v. DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT,
Respondents-Defendants. __________________________________________________

DECLARATION OF CAPTAIN JENNIFER MOON
I, Captain Jennifer Moon, MPH, MSN, FNP-BC, make the following statements under oath and subject to the penalty of perjury:

1. I am employed by U.S. Department of Homeland Security, Immigration and Customs Enforcement (ICE), and currently serve as the Deputy Assistant Director for Healthcare Compliance with ICE Health Service Corps (IHSC). I have held this position since November 1, 2018.
2. In my current position, I provide oversight of the Medical Case Management Unit to which the Field Medical Coordinators (FMCs) report. The FMCs serve as medical
1

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consultants to the ICE field offices and oversee clinical services at Inter-Governmental Service Agreement (IGSA) facilities that house ICE detainees, including the Mesa Verde ICE Processing Facility (MVIPC).
3. IHSC’s FMCs ensure that the provision of medical care by contractors to the ICE detainees within the IGSA facilities meets detention standards, as required by the IGSA contract. The FMCs do not provide hands-on care or direct the care within the IGSAs but monitor the medical care and services provided by the contract facilities. Medical staff at the contract facilities are directly responsible for medical care at the facility.
4. IHSC comprises a multidisciplinary workforce that consists of U.S. Public Health Service Commissioned Corps (USPHS) officers, federal civil servants, and contract health professionals.
5. Since the onset of reports of Coronavirus Disease 2019 (COVID-19), ICE epidemiologists have been tracking the outbreak, regularly updating infection prevention and control protocols, and issuing guidance to field staff on screening and management of potential exposure among detainees.
6. In testing for COVID-19, IHSC is also following guidance issued by the Centers for Disease Control (CDC) to safeguard those in its custody and care.
7. Each detainee is screened for disabilities upon admission. Identified disabilities are further evaluated and reasonable accommodations are provided as medically appropriate.
8. At the MVIPC, during intake medical screenings, detainees are assessed for fever and respiratory illness, are asked to confirm if they have had close contact with a person with laboratory-confirmed COVID-19 in the past 14 days, and whether they have traveled from or through area(s) with sustained community transmission in the past two weeks.
9. The detainee’s responses and the results of these assessments will dictate whether to monitor or isolate the detainee. Those detainees who present symptoms compatible with COVID-19 will be placed in isolation, where they will be tested. If testing is positive, they will remain isolated and treated. In case of any clinical deterioration, they will be referred to a local hospital.
10. In cases of known exposure to a person with confirmed COVID-19, asymptomatic detainees are placed in cohorts with restricted movement for the duration of the most recent incubation period (14 days after most recent exposure to an ill detainee) and are monitored daily for fever and symptoms of respiratory illness. Cohorting is an infectionprevention strategy which involves housing detainees together who were exposed to a person with an infectious organism but are asymptomatic. This practice lasts for the duration of the incubation period of 14 days, because individuals with these and other communicable diseases can be contagious before they develop symptoms and can serve as undetected source patients. Those that show onset of fever and/or respiratory illness are referred to a medical provider for evaluation. Cohorting is discontinued when the 14day incubation period completes with no new cases. Per ICE policy, detainees diagnosed with any communicable disease who require isolation are placed in an appropriate setting in accordance with CDC or state and local health department guidelines. The Health
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Services Administrator, site and regional medical directors, and ICE Field Medical Coordinator are notified through their chain of command. Persons Under Investigation are also be screened for Influenza. Local public health and CDC will be notified with completion of proper forms for reporting. Nurses who screen new arrivals wear personnel protective equipment per protocol. 11. MVIPC houses cases with signs and symptoms consistent with COVID-19 in the negative isolation room with enhanced respiratory droplet nuclei precaution for the staff. 12. The MVIPC provides daily access to sick calls in a clinical setting and has access to specialty care services and hospital care. 13. As of March 27, 2020, IHSC has the following information:
a. There are zero suspected cases of COVID-19 in the MVIPC.
b. There are zero confirmed cases of COVID-19 in the MVIPC.
14. The MVIPC has a population within its approved capacities and is not overcrowded. 15. The MVIPC has increased sanitation frequency and provide sanitation supplies such as
disinfectant, soap and hand sanitizer. Frequent cleaning of all common area high contact surfaces, such as door handles, dining halls, and medical areas, is being conducted throughout the day 16. The MVIPC screens all legal visitors for signs and symptoms, and any legal visitor requesting a detainee visit is required to wear a self-supplied N-95 mask, gloves, and goggles. 17. The MVIPC is screening all staff and vendors when they enter the facilities including body temperatures. 18. The MVIPC is screening all detainee intakes when they enter the facilities including travel histories, medical histories and checking body temperatures and has procedures to continue monitoring the populations’ health. 19. The MVIPC provides education on COVID-19 to staff and detainees to include the importance of hand washing and hand hygiene, covering coughs with the elbow instead of with hands, and requesting to seek medical care if they feel ill. The facilities provide detainees daily access to sick call.
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20. The MVIPC has identified housing units for the quarantine of patients who are suspected of or test positive for COVID-19 infection to be addressed as set forth in paragraphs 8, 9 and 10, supra.
I declare, under penalty of perjury under 28 U.S.C. § 1746, that the foregoing is true and correct to the best of my knowledge and based on information obtained from other individuals employed by ICE.

DATED: March 27, 2020

_____________________________________ Captain Jennifer Moon, MPH, MSN, FNP-BC, Deputy Assistant Director for Healthcare Compliance ICE Health Service Corps Enforcement and Removal Operations U.S. Immigration and Customs Enforcement

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DAVID L. ANDERSON (CABN 149604) United States Attorney SARA WINSLOW (DCBN 457643) Chief, Civil Division WENDY M. GARBERS (CABN 213208) ADRIENNE ZACK (CABN 291629) Assistant United States Attorneys
450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Telephone: (415) 436-7031 FAX: (415) 436-6748 adrienne.zack@usdoj.gov
Attorneys for Federal Defendants
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, et al.,, Plaintiffs,
v. DAVID JENNINGS, et al,
Defendant.

) Case No. 20-cv-02731 VC ) ) DECLARATION OF POLLY E. KAISER IN ) SUPPORT OF FEDERAL DEFENDANTS’ ) OPPOSITION TO TRO AND MOTION TO ) STAY IN LIGHT OF FRAIHART ) ) ) )

I, Polly E. Kaiser, declare as follows:

1. I am the Deputy Field Office Director for U.S. Immigration and Customs Enforcement (“ICE”), Enforcement and Removal Operations (“ERO”), in the San Francisco Field Office (“ERO San Francisco”). I have held this position since July 2016. From December 2014 to July 2016, I was an Assistant Field Office Director for ERO San Francisco. From August 2008 to December 2014, I was a Supervisory Detention and Deportation Officer for ERO San Francisco.

2. In my capacity as Deputy Field Office Director, I am responsible for direction and oversight of ICE immigration enforcement operations within the California counties of Alameda, Alpine, Amador, Butte, Calaveras, Colusa, Contra Costa, Del Norte, El Dorado, Glenn, Humboldt, Lake,
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Lassen, Marin, Mendocino, Modoc, Monterey, Napa, Nevada, Placer, Plumas, Sacramento, San Benito, San Francisco, San Joaquin, San Luis Obispo, San Mateo, Santa Clara, Santa Cruz, Shasta, Sierra, Siskiyou, Solano, Sonoma, Stanislaus, Sutter, Tehama, Trinity, Tuolumne, Yolo and Yuba. My office is responsible for the identification, apprehension, detention and removal of illegal aliens from the United States. This responsibility includes the immigration case docket management and oversight of aliens detained at the Yuba County Jail (“YCJ”) pending removal.
3. The facts in this declaration are based on my personal knowledge, consultation with other ICE personnel, and review of official documents and records maintained by the agency and Department and other relevant sources obtained during the regular course of business. I provide this declaration based on the best of my knowledge, information, belief, and reasonable inquiry for the above captioned case.
4. ICE is charged with removing aliens who lack lawful immigration status in the United States. Detention is an important and necessary part of immigration enforcement. ICE detains aliens to secure their presence both for immigration proceedings and their removal, with a special focus on those who represent a risk to public safety, or for whom detention is mandatory by law.
5. The YCJ is a county owned and operated facility that houses county jail inmates and ICE detainees. Through ICE’s Inter-Governmental Service Agreement (“IGSA”) with Yuba county, the county provides the facility (“YCJ”), management, personnel and services for 24-hour supervision of aliens in ICE custody at YCJ. Besides its own county and state oversight and inspection processes, the federal government also mandates oversight through various inspection processes by ICE and other entities. However, to my knowledge, the DHS’ Office of Civil Rights and Civil Liberties (“CRCL”) has not visited, toured or inspected YCJ within at least the last five years.
6. Medical care, including screening, at YCJ is provided by the contract medical staff on-site and is overseen by the ICE Health Services Corps (“IHSC”), which provides medical services through a
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combination of U.S. Public Health Service Commissioned Corps (“USPHS”) officers, federal civil servants, and contract health professionals.
7. On April 10, 2020, ICE released its ERO COVID-19 Pandemic Response Requirements (“PRR”), a guidance document that builds upon previously issued guidance and sets forth specific mandatory requirements 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 during this pandemic.1
8. YCJ currently has the capacity to house up to 420 individuals. With a max capacity for ICE detainees capped at 210 of that 420. YCJ houses both male and female detainees, however the numbers of each is not specifically limited by sex, but rather by availability. YCJ has the capability to identify, isolate, and segregate detainees from each other. Three ICE detainees, who have pre-existing conditions and deemed high-risk for COVID19 based on CDC guidelines, have been removed from general population as a preventive measure and relocated to another facility where they are more closely monitored 24/7, including having their temperatures taken twice a day. The three ICE detainees are asymptomatic for COVID-19. On March 11, 2020, the World Health Organization (“WHO”) declared COVID-19 a global pandemic. Since that time, the ERO Stockton sub-office has taken affirmative steps to reduce the number of detainees at YCJ by reconsidering custody determinations, parole requests, and issuing orders of supervision on release for those aliens who are not subject to mandatory custody, pose a danger to the community or flight risk; and/or there is no significant likelihood of removal in the foreseeable future. Consequently, from March 11, 2020 to present, ICE has reduced the YCJ detainee population from 168 to 144. The ICE population at YCJ is less than 50% of YCJ’s total capacity. As of April 24, 2020, YCJ’s total population to include ICE detainees is at 64% of its total capacity. However, these numbers do not reflect the fluctuation of additional book ins and releases between March 11, 2020 and present. At present, there are 8 female ICE detainees and 136 male ICE detainees. These numbers fluctuate on a daily basis. ICE will continue to
1 https://www.ice.gov/doclib/coronavirus/eroCOVID19responseReqsCleanFacilities.pdf
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evaluate cases that may be high-risk for COVID-19, and as more relevant specific information is provided on any particular detainee, release may be appropriate provided they are not mandatory custody, a danger to the community, or deemed a flight risk where measures for alternatives to detention are inappropriate.
9. Pursuant to ICE ERO protocols and under the direction of my office, YCJ implemented several processes to protect the detainee population. For example, YCJ stopped all social visitations and tours. YCJ has encouraged attorney visits to be non-contact. YCJ continues to provide access to attorneys through various telephonic means as established under the Lyon v. U.S. Immigration and Customs Enforcement settlement agreement. YCJ staff are notifying attorneys in advance that they must submit to medical screening prior to entering the facility.
10. In addition to the screening and other protective measures described in Captain Moon’s declaration of March 26, 2020 (a true and correct copy of which is attached hereto as Exhibit A), YCJ has implemented several other measures to protect the detainee population from COVID-19 infection. These measures include, but are not limited to the following:
a. YCJ has implemented ICE COVID-19 screening protocols, including a 14-day quarantine for new book-ins.
b. YCJ medical staff is also screening for COVID-19 during all in-take and 14 day physical exams;
c. YCJ is also affirmatively taking the temperatures of all detainees on a daily basis in every housing unit;
d. YCJ will isolate, medically assess, and monitor any detainee who has a temperature of 100.4 or above; the detainee will be housed in the medical unit, cared for, and monitored for as long as medically necessary depending a variety of factors and what additional medical care, if any, becomes necessary.
e. YCJ has provided education regarding COVID-19 to staff and detainees, including postings in both the English and Spanish languages on proper hand washing and other preventative measures. Postings will be provided in additional languages upon request;
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f. YCJ has added instructions on hand washing, sanitizing common surfaces and other health and wellness information by video for detainees;
g. YCJ is ensuring the facility, to include the housing units, are sanitized twice daily; h. Additional cleaning supplies have been offered to detainees who have been educated on
how to sanitize the phones for common use before and after each use; i. YCJ has added two handwashing stations within the facility to encourage and aid in
recommended handwashing. Each detainee is issued a bar of soap that may be replaced when requested by the detainee. In addition, hand sanitizer is available for use by staff at the facility. j. YCJ has issued washable cloth masks to all detainees to wear; k. YCJ medical staff is required to wear N95 masks during any contact with any detainee who is being quarantined in POD F; l. YCJ and ICE staff are required to wear masks at the facility at all times; m. YCJ has the capability to conduct on-site testing of COVID-19;
11. ICE ERO management staff, including myself, conference daily over YCJ and any issues stemming from COVID-19. Additionally, my staff is in daily contact with YCJ management to include medical over the health and safety of detainees. Given the ICE protocols, YCJ staff and ICE officers are taking appropriate measures to ensure the health and safety of detainees and will continue to do so. YCJ medical staff will examine any detainee promptly who submits a medical request due to symptoms consistent with COVID-19. Out of an abundance of caution, YCJ has tested two ICE detainees who were asymptomatic, but during the in-take screening one of the detainees claimed to have been previously quarantined in another jail due to possible exposure to someone who may have had COVID-19 prior to arriving at YCJ, and the other ICE detainee was transported with that detainee to YCJ. They were immediately quarantined and monitored pending the results. They both tested negative for COVID-19 but were nevertheless quarantined for 14-days. They did not develop any symptoms and are no longer quarantined. My staff is onsite daily and is able to address issues as presented and report back any issues they may observe that need to be addressed by my staff or by me.
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12. As of April 24, 2020, the IHSC FMC confirmed with YCJ that there are zero suspected cases of COVID-19 and zero confirmed cases of COVID-19 at YCJ.
13. ICE will continue to review its detained population for people who are “at higher risk for severe illness,” as identified by the CDC, to determine if detention remains appropriate, considering the detainee’s health, public safety and mandatory detention requirements, and adjust custody conditions when appropriate, to protect health, safety and well-being of its detainees. I declare under penalty of perjury that the foregoing is true and correct. Executed on April 24,
2020, at Walnut Creek, California. _______________________ POLLY E. KAISER
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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Sofia Bahena Ortuño; Gennady Valeryevich Lavrus; Claude Bent; Charles Joseph; Salomon Medina Calderon; Ricardo Vasquez Cruz; J. Elias Solorio Lopez; Olvin Said Torres Murillo; Julio Cesar Buendia Alas; Marco Montoya Amaya; Mauricio Ernesto Quinteros Lopez; Roxana del Carmen Trigueros Acevedo; Ernesto Ambrocio Uc Encarnacion,
Petitioners-Plaintiffs, v.
DAVID JENNINGS, Acting Director of the
San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior
Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT,
Respondents-Defendants.

Case No. 20-cv-02064-MMC

DECLARATION OF CAPTAIN JENNIFER MOON
I, Captain Jennifer Moon, MPH, MSN, FNP-BC, make the following statements under oath and subject to the penalty of perjury:

1. I am employed by U.S. Department of Homeland Security, Immigration and Customs Enforcement (ICE), and currently serve as the Deputy Assistant Director for Healthcare Compliance with ICE Health Service Corps (IHSC). I have held this position since November 1, 2018.

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2. In my current position, I provide oversight of the Medical Case Management Unit to which the Field Medical Coordinators (FMCs) report. The FMCs serve as medical consultants to the ICE field offices and oversee clinical services at Inter-Governmental Service Agreement (IGSA) facilities that house ICE detainees, including the Yuba County Jail.
3. IHSC’s FMCs ensure that the provision of medical care by contractors to the ICE detainees within the IGSA facilities meets detention standards, as required by the IGSA contract. The FMCs do not provide hands-on care or direct the care within the IGSAs but monitor the medical care and services provided by the contract facilities. Medical staff at the contract facilities are directly responsible for medical care at the facility.
4. IHSC comprises a multidisciplinary workforce that consists of U.S. Public Health Service Commissioned Corps (USPHS) officers, federal civil servants, and contract health professionals.
5. Since the onset of reports of Coronavirus Disease 2019 (COVID-19), ICE epidemiologists have been tracking the outbreak, regularly updating infection prevention and control protocols, and issuing guidance to field staff on screening and management of potential exposure among detainees.
6. In testing for COVID-19, IHSC is also following guidance issued by the Centers for Disease Control (CDC) to safeguard those in its custody and care.
7. Each detainee is screened for disabilities upon admission. Identified disabilities are further evaluated and reasonable accommodations are provided as medically appropriate.
8. At the Yuba County Jail, during intake medical screenings, detainees are assessed for fever and respiratory illness, are asked to confirm if they have had close contact with a person with laboratory-confirmed COVID-19 in the past 14 days, and whether they have traveled from or through area(s) with sustained community transmission in the past two weeks.
9. The detainee’s responses and the results of these assessments will dictate whether to monitor or isolate the detainee. Those detainees who present symptoms compatible with COVID-19 will be placed in isolation, where they will be tested. If testing is positive, they will remain isolated and treated. In case of any clinical deterioration, they will be referred to a local hospital.
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10.In cases of known exposure to a person with confirmed COVID-19, asymptomatic detainees are placed in cohorts with restricted movement for the duration of the most recent incubation period (14 days after most recent exposure to an ill detainee) and are monitored daily for fever and symptoms of respiratory illness. Cohorting is an infection-prevention strategy which involves housing detainees together who were exposed to a person with an infectious organism but are asymptomatic. This practice lasts for the duration of the incubation period of 14 days, because individuals with these and other communicable diseases can be contagious before they develop symptoms and can serve as undetected source patients. Those that show onset of fever and/or respiratory illness are referred to a medical provider for evaluation. Cohorting is discontinued when the 14-day incubation period completes with no new cases. Per ICE policy, detainees diagnosed with any communicable disease who require isolation are place in an appropriate setting in accordance with CDC or state and local health department guidelines.
11.The Yuba County Jail, which manages both males and females, provides daily access to sick calls in a clinical setting, specialty care services and hospital care as appropriate.
12.As of March 26, 2020, there are zero suspected cases of COVID-19 in the Yuba County Jail and zero confirmed cases.
13.The Yuba County Jail has a population within its approved capacities and is not overcrowded.
14.The Yuba County Jail has increased sanitation frequency and provides sanitation supplies including disinfectants, sanitizer, and soap in every housing unit at the jail. The administration is encouraging both staff and the jail general population to use these tools often and liberally.
15.The Yuba County Jail has limited professional visits to noncontact visits and suspended in person social visitation and facility tours.
16. The Yuba County Jail is screening all staff and vendors when they enter the facilities including body temperatures.
17.The Yuba County Jail is screening all detainee intakes when they enter the facilities including travel histories, medical histories and checking body temperatures and have procedures to continue monitoring the populations’ health.
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18.The Yuba County Jail provides education on COVID-19 to staff and detainees to include the importance of hand washing and hand hygiene, covering coughs with the elbow instead of with hands, and requesting to seek medical care if they feel ill. The facilities provide detainees daily access to sick call.
19.The Yuba County Jail has identified housing units for the quarantine of patients who are suspected of or test positive for COVID-19 infection to be addressed as set forth in paragraphs 8, 9 and 10, supra. I declare, under penalty of perjury under 28 U.S.C. § 1746, that the
foregoing is true and correct to the best of my knowledge and based on information obtained from other individuals employed by ICE. DATED: March 26, 2020 _____________________________________
Captain Jennifer Moon, MPH, MSN, FNP-BC, Deputy Assistant Director for Healthcare Compliance ICE Health Service Corps Enforcement and Removal Operations U.S. Immigration and Customs Enforcement
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DAVID L. ANDERSON (CABN 149604) United States Attorney SARA WINSLOW (DCBN 457643) Chief, Civil Division WENDY M. GARBERS (CABN 213208) ADRIENNE ZACK (CABN 291629) Assistant United States Attorneys
450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Telephone: (415) 436-7031 FAX: (415) 436-6748 adrienne.zack@usdoj.gov
Attorneys for Federal Defendants
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, et al.,, Plaintiffs,
v. DAVID JENNINGS, et al,
Defendant.

) Case No. 20-cv-02731 VC ) ) DECLARATION OF ) ASSISTANT FIELD OFFICE ) DIRECTOR DANA FISHBURN IN SUPPORT ) OF FEDERAL DEFENDANTS’ OPPOSITION ) TO TRO AND MOTION TO STAY IN LIGHT ) OF FRAIHART ) )

I, Dana Fishburn, declare as follows: 1. I am an Assistant Field Office Director (“AFOD”) with the Department of Homeland Security (“DHS”), Immigration and Customs Enforcement (“ICE”), Enforcement and Removal Operations (“ERO”) in the San Francisco Field Office (“ERO San Francisco”). I have held this position since October 2, 2016. Concurrently, from April 1, 2019 to November 15, 2019, I was the Acting Deputy Field Office Director for ERO Las Vegas, and also served as Acting Deputy Field Office Director for ERO San Francisco from June 2, 2017 to March 30, 2019. I am currently assigned to the Sacramento Sub-Office within the San Francisco Field Office which is responsible for oversight of the ICE Detainees held at Yuba County Jail (“YCJ”) in Marysville, California. I have worked in various other positions within ICE and legacy INS since 1996.

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2. Among my responsibilities as the AFOD, I oversee the management of the detained docket for the aliens who are detained at YCJ. This declaration is based upon my personal and professional knowledge and information obtained from various records and systems maintained by DHS and YCJ in the regular course of business. The facts in this declaration are based on my personal knowledge, knowledge, information, belief, reasonable inquiry and review of information obtained from various records, systems, databases, other DHS employees, employees of DHS contract facilities, and information portals maintained and relied upon by DHS in the regular course of business.
3. I have carefully reviewed the proposed TRO order (“order”) submitted by the plaintiffs and write this declaration to address the unnecessary logistical and operational and practical problems it would pose to ICE and my staff.
4. As to paragraph 2.a. of the proposed order, Defendants are able to provide an untranslated Form A to detainees within 72 hours. However, Defendants are unable to force any detainee to complete the form, or to complete and return the form within any specific time frame, let alone within 72 hours. Thus, it is logistically impossible, impractical, overly burdensome, and unreasonable to require Defendants to return their forms, let alone within 72 hours. Further, due to operational and staffing requirements, Defendants are on-site at Yuba County Jail and Mesa Verde Detention Facility daily to facilitate immigration court and calls under the Lyon Settlement Agreement. Instead, Defendants propose that Plaintiffs provide an address to which provisional class members may mail their forms and Plaintiffs provide a copy to their Deportation Officer at the same time through the kite process. Mail is collected daily from provisional class members. Further, it is not practical, reasonable or necessary to require Defendants to translate Plaintiffs’ forms. ICE obtains translations at no cost through another agency program within DHS to translate certain documents which on average takes weeks and sometimes months, depending on the current status of their workload. Here, no language has even been proposed and it would nevertheless be overly burdensome and would not be available within the time frame proposed. Thus, it is neither practical nor reasonable to expect Defendants to provide written translations of Plaintiffs’ forms. Moreover, it would be overly burdensome, impractical, and logistically and operationally problematic to orally translate the form within the proposed time frame to each class member, 427. It would take several weeks, since each
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class member would need to be transported to the sub-offices, Bakersfield and Sacramento, and due to the COVID-19 pandemic, ERO is limiting unnecessary transportations of large groups of detainees unless for immigration court or removal. It would also present an unnecessary logistical hardship for each class member. Defendants propose that Plaintiffs translate their own forms.
Lastly, Plaintiffs’ Form A fails to include necessary information regarding the proposed address, including whether or not his/her parole and/or probation officer has approved that he/she may reside there. Defendants are aware that the courts in this jurisdiction have released immigration detainees without first confirming whether or not the petitioner has permission from his/her parole officer that she/he can at that address. Indeed, in two recent cases, the parole office denied placement at the address petitioners provided after the petitioners had already been released. Defendants propose that Form A require information confirmation that the class member has permission from his/her parole officer he/she can reside at that address and provide the name of the parole officer and his/her number.
5. As to paragraph 2.b. of the proposed order, for the reasons described above, class members should provide their own forms to counsel and the court. Without any formal Protective Order in place or releases executed by class members, Defendants believe that to provide any medical information concerning provisional class members is unnecessary and impractical under the expedited time frame proposed. . Here, the medical information is unnecessary and irrelevant to the underlying basis for the TRO motion to release all detainees at Mesa Verde Detention Facility (MVDF) and Yuba County Jail (YCJ), and thus, the Department should not be required to release said information. Notwithstanding our legal and factual objections to the TRO and the proposed order of discovery, Defendants do not anticipate a logistical problem in providing all the names of detainees housed at MVDF and YCJ within three business days. However, it is logistically unnecessary and impractical to providing a rolling list of class members daily and would be unprecedented in any class action in this jurisdiction, and to my knowledge, within the Ninth Circuit.
6. As to paragraph 2.c. of the proposed order, as discussed above, the medical information Plaintiffs seek on an expedited basis is unnecessary and irrelevant to the provisional class definition . . Moreover, this would be overly burdensome and logistically unnecessary. Medical records and information are maintained by the facilities and require specific requests on an individual basis to
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retrieve. There is a process by which the attorneys and the detainees may request their medical records by submitting Form ICE IHSC 007 and/or making a direct request to the Medical Health Administrator of the facility after the detainee completes a release form. Therefore, due to the existing process already in place it is unnecessary and overly burdensome for Defendants to produce any additional information.
7. As to paragraph 2.d. of the proposed order, for the reasons stated in paragraph 4, it is logistically impractical and operationally unfeasible to distribute class notices to all class members within 24 hours of the order. Defendants propose the following: Within two days of receipt of Plaintiffs’ notice, to be provided by class counsel, Defendants will post the notice in the housing units and other areas. As to telephone calls with class counsel, the terms of the Lyon Settlement Agreement is controlling.
8. As to paragraph 2.e. of the proposed order, for the reasons stated in paragraph 4 of this declaration, it is not reasonable, practical or necessary for Defendants to translate Plaintiffs’ notice. Defendants propose Plaintiffs translate their own notice and forms.
9. As to paragraph 2.f. of the proposed order, the Plaintiffs’ proposal for an on-going expedited individual application process, and 24-hour response to those applications, for potentially 427 class members, many of whom could apply on the same day, is not practical or feasible for ICE and its staff. The process outlined by the Plaintiffs creates an unnecessary and overly burdensome process for the government. The process proposed for determining release would require individual review of each class members’ A-file, which may be located in other locations, including ICE offices at immigration courts, other regional ICE offices, and offices for FOIA processing., and review of his/her criminal and immigration histories, DHS databases, and the vetting of the class members’ proposed address and sponsor.
In accordance with ICE Pandemic Practices and Policy, MVDF and YCJ have reduced its detainee population to less than 75% of its capacity, and will continue to reduce its population; however, at this time, the government objects to the expedited application for release because the process is burdensome and not feasible on any continuing basis within the time frame proposed, especially if more than one detainee submits an application at the same time. Provisional class members at MVDF and YCJ are being detained because they are either subject to mandatory custody under the Immigration and
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Nationality Act, or were found to be a danger and/or flight risk by ICE and/or the Immigration Judge, and therefore, Defendants oppose release in these cases.
In the event the court grants the TRO motion and the order is not stayed, ICE will endeavor to reduce its detainee population, within a reasonable period, to a number that permits social distancing at MVDF and YCJ. ICE will determine which class members are to be released to the community and provide weekly updates to the court on the class members released and current number of class members at MVDF and YCJ.
10. I affirm, under penalty of perjury, that the foregoing is true and correct to the best of my knowledge and belief. Executed in Sacramento, California.
Dated: April 24, 2020
________________________________________ Dana L. Fishburn Assistant Field Office Director Enforcement and Removal Operations U.S. Immigration and Customs Enforcement U.S. Department of Homeland Security
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DAVID L. ANDERSON (CABN 149604) United States Attorney SARA WINSLOW (DCBN 457643) Chief, Civil Division WENDY M. GARBERS (CABN 213208) ADRIENNE ZACK (CABN 291629) Assistant United States Attorneys
450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Telephone: (415) 436-7031 FAX: (415) 436-6748 adrienne.zack@usdoj.gov
Attorneys for Federal Defendants
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, et al., Plaintiffs,
v. DAVID JENNINGS, et al.,
Defendant.

) Case No. 20-cv-02731 VC ) ) DECLARATION OF ASSISTANT FIELD ) OFFICE DIRECTOR ALEXANDER PHAM IN ) SUPPORT OF FEDERAL DEFENDANTS’ ) OPPOSITION TO TRO AND MOTION TO ) STAY IN LIGHT OF FRAIHART ) ) )

I, Alexander Pham, hereby declare: 1. I am an Assistant Field Office Director (“AFOD”) with the Department of Homeland Security (“DHS”), Immigration and Customs Enforcement (“ICE”), Enforcement and Removal Operations (“ERO”), in the San Francisco Field Office (“ERO San Francisco”). I have held this position since April 2019. I am currently assigned to the Bakersfield Sub-Office within ERO San Francisco, which is responsible for oversight of the Mesa Verde Detention Facility (“MVDF”) in Bakersfield, California. Among my responsibilities as an AFOD, I oversee the management of the detained docket for the aliens who are detained at the MVDC. Prior to being an AFOD, I was a Supervisory Detention and Deportation Officer (“SDDO”) from February 2011 to April 2019. I have otherwise worked in various other positions within ICE since May 2005.

DECLARATION OF ASSISTANT FIELD OFFICE DIRECTOR ALEXANDER PHAM Case No. 20-cv-02731 VC

Case 3:20-cv-02731-VC Document 37-6 Filed 04/25/20 Page 2 of 9
2. This declaration is based upon my personal and professional knowledge and information, belief, reasonable inquiry and review of information obtained from various records, systems, databases, other DHS employees, employees of DHS contract facilities, and information portals maintained and relied upon by DHS in the regular course of business.
3. ICE is charged with removing aliens who lack lawful immigration status in the United States. Detention is an important and necessary part of immigration enforcement. The Immigration and Nationality Act (“INA”) authorizes detention of aliens pending removal under sections 235, 236, and 241 of the INA. In some cases, aliens convicted of certain crimes are subject to mandatory custody under section 236(c) of the INA and are ineligible for release from ICE custody pending completion of removal proceedings. In other cases, aliens may be detained by ICE as a matter of discretion under sections 235 and 236(a) of the INA pending removal because they have been found to be a danger to the community or pose a flight risk. For aliens who have final administrative removal orders, custody is generally mandatory during the removal period under section 241(a)(2) of the INA, and once the removal period has expired custody becomes discretionary under section 241(a)(6) of the INA where release on supervision may be appropriate if there is no significant likelihood of removal in the foreseeable future.
4. To provide context for the reasons why each of the seven named Plaintiffs is in custody, ICE has conducted a preliminary review of their case histories and each follows. Javier Alfaro
5. Javier Alfaro (“Alfaro”) is a 39-year old male native and citizen of El Salvador who illegally entered the United without admission or parole. On October 5, 2012, he was arrested for obstruction of a public officer in violation of section 148(a)(1) of the Cal. Penal Code (“CPC”). Exhibit (“Exh.”) 1. It appears that no charges were filed. Id. On May 10, 2018, he was arrested for infliction of corporal injury on a spouse/cohabitant (CPC § 273.5), felony false imprisonment with violence (CPC §§ 136/137), felony kidnapping (CPC § 207(a)) and threaten with intent to terrorize (CPC § 422). Id. On or about May 14, 2010, Alfaro was charged by felony complaint with felony kidnapping, two felony counts of terrorist threats, and two felony counts of dissuading a witness in violation of CPC § 136.1(c)(1). Exh. 2. At a preliminary hearing held on May 30, 2018, the District Attorney move to orally amend Count 3 of
DECLARATION OF ASSISTANT FIELD OFFICE DIRECTOR ALEXANDER PHAM Case No. 20-cv-02731 VC

Case 3:20-cv-02731-VC Document 37-6 Filed 04/25/20 Page 3 of 9
the Complaint to charge infliction of corporal injury on a spouse or cohabitant (CPC § 273.5). Id. On June 27, 2018, Alfaro was convicted of felony infliction of corporal injury on a spouse/cohabitant in violation of CPC § 273.5 and the remaining charges were dismissed. Exhs. 1 & 2. Imposition of sentencing was suspended, and he was ordered to served 97 days in jail and three years of probation. Exh. 2. On June 19, 2019, Alfaro failed to appear for his court hearing and a warrant was issued for his arrest. Id. On June 26, 2019, Alfaro appeared in court with counsel and admitted that he knowingly violated probation by being terminated from Batterer’s Treatment Program, failing to appear at a probation appointment and failing to appear to court. Id. He was sentenced to an additional 104 days jail and his probation was reinstated. Id. On October 2, 2019, Alfaro failed to appear for his court hearing and a warrant was issued for his arrest. Id. On October 5, 2018, Alfaro was encountered for driving without a license and no vehicle registration and was arrested for failing to appear on a felony charge. Exh. 1. On October 8, 2019, Alfaro appeared in court with counsel and admitted that he violated probation for driving on a suspended license. Exh. 2. Alfaro was sentenced to an additional 142 days in jail and his probation was reinstated. Id.
6. On January 14, 2020, Alfaro was arrested by ICE1 and placed in removal proceedings and charged with inadmissibility under section 212(a)(6)(A)(i) of the Immigration and Nationality Act (“INA”), as an alien present in the United States without being admitted or paroled by an immigration official. Exh. 3. Due to his criminal conviction, he is subject to mandatory custody under section 236(c) of the INA. He is scheduled for a hearing before an Immigration Judge on May 5, 2020.
7. All new arrivals are given a number of handouts, including the CDC educational handout on COVID-19, which advises detainees that they should avoid close contact with others. This information is also sent out via tablet messages and reinforced through posters and town hall meetings with the detainees. While it is true that detainees are given ten minutes in between meal periods to clean the cafeteria, post-meal periods, detainees are allowed as much time as it takes to complete a comprehensive cleaning. The towels that are provided to detainees for cleaning are used only for one area and are laundered daily. Due to a recent local press report concerning MVDF detainees on a
1 Alfaro was arrested in accordance with ICE policy. See https://www.ice.gov/ero/enforcement/sensitive-loc.
DECLARATION OF ASSISTANT FIELD OFFICE DIRECTOR ALEXANDER PHAM Case No. 20-cv-02731 VC

Case 3:20-cv-02731-VC Document 37-6 Filed 04/25/20 Page 4 of 9
possible hunger strike, MVDF staff identified those detainees as being housed in housing units C and D. Thereafter, MVDF staff held an in-person town hall for those detainees and provided information regarding formal hunger strike protocols, which is defined as missing at least nine consecutive meals. During the town-hall, MVDF staff informed detainees that according to protocol, after detainees have missed nine consecutive meals, they would lose access to their food commissary items. After the hunger strike protocols were announced, the dormitory representatives informed the facility administrator that detainees would be attending facility provided food services. Following this town hall, the detainees resumed regular meals. At this town hall, the detainees were also informed that they could continue to purchase non-food items from the commissary, including shampoo, soap and other toiletries. The items available for purchase in the commissary are brand name. MVDF provides each detainee, free of charge, bar soap, shampoo, toothpaste and a toothbrush. Reasonable requests for additional supplies of these items are furnished free of charge. Cleaning supplies, such as disinfectants, are supplied by the facility and are not available for purchase from the commissary for safety reasons.
8. According to the ICE Health Service Corps (“IHSC”) Field Medical Coordinator (“FMC”), Alfaro was diagnosed with hyperlipidemia which is controlled by medication. Lab tests conducted on February 15, 2020 showed that his lipid panel lab values were within normal limits.
9. I obtained copies of the documents attached to this declaration, which are true and correct copies of documents from the above-named Petitioner’s A-File or the DHS’s databases:
Exhibit 1: FBI Record of Arrests and Prosecutions (RAP) Sheet, Apr. 2, 2020; Exhibit 2: Fresno County Superior Court Documents – Case #F18903135. Dung Tuan Dang 10. Dung Tuan Dang (“Dang”) is a 49-year old native and citizen of Vietnam who was admitted into the United States as a lawful permeant resident on October 30, 1989. He was arrested on three occasion, on January 6, 2004, April 23, 2011, and February 9, 2012, for disorderly conduct intoxication drugs and or alcohol, in violation of section CPC § 647(f). For these three arrests, he was detained for intoxication only, and no charges were filed. On April 14, 2014, he was convicted of CPC § 602(m), and sentenced to one (1) day jail, a fine, and two (2) years’ probation. On May 21, 2014,
DECLARATION OF ASSISTANT FIELD OFFICE DIRECTOR ALEXANDER PHAM Case No. 20-cv-02731 VC

Case 3:20-cv-02731-VC Document 37-6 Filed 04/25/20 Page 5 of 9
Dang was charged with assault with a deadly weapon in violation of CPC § 245(a)(1) and vandalism in violation of CPC § 594(a)(b)(2)(A). Exh. 3. The charges were based on an incident wherein Dang entered a convenience store while intoxicated so the store clerk asked him to leave. Exh. 4. When Dang left, he shattered the front glass window of the store with a trash can, and then held a shard of glass in a threatening manner toward at the store clerk. Id. On July 10, 2014, he was convicted of assault with force likely to cause great bodily injury in violation of section 245(a)(4). Exh. 3. Sentencing was suspended and he was placed on probation, which he was found in violation of on November 17, 2016, because he was arrested and convicted on August 25, 2016 for driving under the influence (“DUI”) with a blood alcohol content (“BAC”) of 0.08% or above in violation of section 23152(b) of the Cal. Vehicle Code (“CVC”) and disturbing the peace (CPC § 415(2)). For these convictions, he was sentenced to twenty-seven (27) days and one day in jail, respectively, and placed on three (3) years of probation on each conviction. Id. The court reinstated Dang’s probation on the aggravated assault and vandalism case, which he was found in violation of again on November 15, 2018. Id. As a result of this second violation, Dang was remanded to state prison for two years for the aggravated assault, to run concurrent with the six-month sentence on the vandalism charge. Id.
11. Upon release from prison on June 7, 2019, Dang was taken into ICE custody and placed into removal proceedings and charged with removability pursuant to section 237(a)(2)(A)(iii) of the INA, an alien who after admission was convicted of an aggravated felony. Due to his aggravated felony convictions, he is subject to mandatory custody under section 236(c) of the INA. During removal proceedings, he requested and was granted five continuances. On November 21, 2019, an Immigration Judge issued a written decision and denied his applications for relief and ordered him removed to Vietnam. Exh. 5. On December 20, 2019, Dang appealed this decision to the Board of Immigration Appeals (“BIA”), which is pending. On March 20, 2020, San Francisco ERO received a request for humanitarian parole from his attorney citing medical conditions that may put him in at risk due to COVID-19. On the same date, San Francisco ERO contacted Mesa Verde Medical to obtain information regarding claimed medical conditions. On March 25, 2020, his humanitarian parole request was denied due to public safety and attorney was notified. If his appeal is ultimately denied, Vietnam has been issuing travel documents for its citizens who arrived prior to 1996.
DECLARATION OF ASSISTANT FIELD OFFICE DIRECTOR ALEXANDER PHAM Case No. 20-cv-02731 VC

Case 3:20-cv-02731-VC Document 37-6 Filed 04/25/20 Page 6 of 9
12. The MVDF informed the IHSC FMC that hand sanitizer is not available to detainees because it is alcohol-based and poses a risk to detainee health if abused. However, MVDF stated that mounted hand sanitizer is available at the medical station and the lab station. Detainees have access to liquid soap and water for hand hygiene. As of April 20, 2020, IHSC FMC confirmed with the MVDF that each detainee received a surgical mask and was educated on proper wear to prevent infection and spread. At intake, new arrivals are also given surgical masks and instructed on how to properly wear them. In addition, instructional postings on how to wear face masks were placed in all the dorms in both English and Spanish. The masks will be replaced every Monday, Wednesday and Friday.
13. According to the IHSC FMC, MVDF medical staff diagnosed Dang with hypertriglyceridemia and latent tuberculosis (“TB”). A chest x-ray was completed on June 10, 2019, which showed no evidence of active tuberculosis. However, Dang was given a prophylactic course of medication for the TB that was completed in January 2020.2 The MVDF medical staff will continue to monitor him for TB.
14. I obtained copies of the documents attached to this declaration, which are true and correct copies of documents from the above-named Petitioner’s A-File or the DHS’s databases:
Exhibit 3: Santa Clara County Superior Court Documents – Case #C1483830; Exhibit 4: Immigration Judge Written Decision and Removal Order, Nov. 21, 2019; and Coraima Sanchez Nunez 15. Coraima Sanchez Nunez (“Sanchez Nunez”) is 26-year old native and citizen of Mexico who illegally entered the United without admission or parole. On December 9, 2017, 2012, she was arrested for felony driving under the influence (“DUI”) of drugs/alcohol in violation of section 23153(a) of the Cal. Vehicle Code (“CVC”). Exh. 6. The arrest was a result of a high-speed rear end collision wherein the vehicle Sanchez Nunez was trying collided with a vehicle that was stopped at a stoplight, which had three passengers, two adults and a six-year old child. Exh. 7. The driver of the stopped
2 It appears that Isoniazid is being tested as a potential treatment for COVID-19. See Ali Rismanbaf, “Potential Treatments for COVID-19; a Narrative Literature Review,” 8 Arch Acad Emerg Med., 8(1): e29 (2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7085862/#B26 (citing Smith M, Smith JC. Repurposing Therapeutics for COVID-19: Supercomputer-Based Docking to the SARS-CoV-2 Viral Spike Protein and Viral Spike Protein-Human ACE2 Interface (2020)).
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Case 3:20-cv-02731-VC Document 37-6 Filed 04/25/20 Page 7 of 9
vehicle suffered a laceration on her forehead and complained of chest and back pain and was transported to the hospital. Id. Sanchez Nunez’s passenger who was sitting in her car suffered facial lacerations and had to be transported to the hospital for stitches. Id. Upon her arrest for DUI, she submitted to a blood test. Id. Sanchez Nunez was also search and a small plastic baggie with a white powdery substance was discovered in her jacket pocket. Id. This substance later tested positive for cocaine. Id. On January 19, 2018, Sanchez Nunez was charged with three counts in total. Exh. 8. The first two counts were for felony DUI resulting in bodily injury in violation of CVC §§ 23153(a) & (b), both of which carried two enhancements, one for causing great bodily injury or death to more than one victim (CVC § 23558) and the second for having a blood alcohol level/content (“BAC”) of 0.20% or more (CVC § 23538(b)(2)). Id. The third count was for possession of cocaine. Id. On May 8, 2018, Sanchez Nunez was convicted of DUI resulting in bodily injury with a BAC of 0.08% or above in violation of CVC § 23153(b), and admitted both the enhancements under CVC §§ 23558 and CVC § 23538(b)(2). Id. Her BAC was noted as 0.24%. Id. She was sentenced to 180 days in jail and 36 months of probation and ordered to complete a First Offender Drinking Driver Program for three months. Id. On July 9, 2019, Sanchez Nunez appeared in court with counsel and admitted to violating probation and was sentenced to an additional 53 days in jail and her probation was reinstated. Id.
16. On August 21, 2019, upon her release from Sonoma Jail, ICE arrested Sanchez Nunez and served her a Notice to Appear, charging her under §212 (a)(6)(A)(i) of the Immigration Nationality Act (INA), an alien present in the United States without being admitted or paroled by an immigration official. On October 17, 2019, an Immigration Judge held a bond hearing, found that Sanchez Nunez failed to establish that she is not a danger to the community, and denied bond. She reserved appeal of that order, but no appeal was ever taken. On November 13, 2019, an Immigration Judge denied all her applications for relief and ordered her removed to Mexico. On December 9, 2019, she filed an appeal with the BIA, which is currently pending. Even if Sanchez Nunez successfully reduced her DUI with bodily injury conviction from a felony to a misdemeanor, she would still be barred from DACA eligibility as any DUI conviction is considered a “significant misdemeanor.” FAQs – Criminal Convictions, USCIS, https://www.uscis.gov/archive/frequently-asked-questions#criminal_convictions. In addition,
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Case 3:20-cv-02731-VC Document 37-6 Filed 04/25/20 Page 8 of 9
she is ineligible for adjustment of status in the United States as she has not been admitted or paroled. See INA § 245(a).
17. According to the IHSC FMC, during intake, Sanchez Nunez denied any medical conditions, but stated that she was feeling anxious and hopeless and was referred to mental health. She was diagnosed with anxiety and depression by a social worker and referred to a psychiatrist. She was placed on medication. When seen by a medical service provider in August 2019, she revealed for the first time that she was diagnosed with asthma in 2000 and stated that the frequency of her asthma is random and is aggravated by pets. She reported that her last hospitalization for asthma occurred in 2012. MVDF medical diagnosed Sanchez Nunez with mild/intermittent asthma that is controlled and treated with an inhaler and medication. Sanchez Nunez’s mental and medical conditions are being monitored on a regular basis.
18. A variety of sanitation supplies are provided to detainees including a bathroom-specific cleaning solution. Detainees have regular access to two types of all-purpose cleaner (Tri-Base and Clean By Proxy), disinfectant (GS Disinfectant), and glass cleaner, which they are encouraged to use. Towels are distributed to detainees for cleaning purposes and are laundered on a daily basis. A soap and towel dispenser have been installed in the front of each dorm. In addition, each dorm has two bathroom areas, and two soap dispensers have been installed in each bathroom area with a total of five liquid soap dispensers in each dormitory. Sanchez Nunez is assigned to Dorm B. As of this week, all beds in Dorms A and B, have been staggered to allow six feet distancing.
19. I obtained copies of the documents attached to this declaration, which are true and correct copies of documents from the above-named Petitioner’s A-File or the DHS’s databases:
Exhibit 5: FBI Record of Arrests and Prosecutions (RAP) Sheet, Oct. 11, 2019; Exhibit 6: California Highway Patrol Traffic Collision Report, Dec. 9, 2017; and Exhibit 7: Sonoma County Superior Court Records. I affirm under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. Executed at Bakersfield, California. Dated: April 24, 2020
DECLARATION OF ASSISTANT FIELD OFFICE DIRECTOR ALEXANDER PHAM Case No. 20-cv-02731 VC

Case 3:20-cv-02731-VC Document 37-6 Filed 04/25/20 Page 9 of 9 ________________________________________ Alexander Pham Assistant Field Office Director Enforcement and Removal Operations U.S. Immigration and Customs Enforcement U.S. Department of Homeland Security
DECLARATION OF ASSISTANT FIELD OFFICE DIRECTOR ALEXANDER PHAM Case No. 20-cv-02731 VC

Case 3:20-cv-02731-VC Document 37-7 Filed 04/25/20 Page 1 of 4
U.S. Customs and Border Protection U.S. Department of Homeland Security
NNSV Query Result

04/02/2020 14:27 EDT
REQUEST
.QR.

Generated By:

Request Message Detail

.FBI

.PUR/C.ATN/

Page 1 of 6

Date and Time 04/02/2020 14:26:49

Seq 67812615

RESPONSE Source III
FL01NN67812615

Date and Time 04/02/2020 14:26:49

THIS INTERSTATE IDENTIFICATION INDEX RESPONSE IS THE RESULT OF YOUR

RECORD REQUEST FOR FBI/

. INDIVIDUAL'S RECORD WILL BE

COMPLETE WHEN ALL RESPONSES ARE RECEIVED FROM THE FOLLOWING SOURCES:

FBI

- FBI/

CALIFORNIA

- STATE ID/CA33119054

END

RESPONSE

Source Nlets

Date and Time 04/02/2020 14:26:52

Status Unacknowledged
Status Unacknowledged

For Official Use Only / Law Enforcement Sensitive

Case 3:20-cv-02731-VC Document 37-7 Filed 04/25/20 Page 2 of 4
U.S. Customs and Border Protection U.S. Department of Homeland Security
NNSV Query Result

04/02/2020 14:27 EDT

Generated By:

Page 2 of 6

CR.CAIII0000 11:26 04/02/2020 00000 11:26 04/02/2020 16243

TXT HDR ATN/ **********************

CRIMINAL HISTORY RECORD

***********************

**************************** Introduction ****************************

This rap sheet was produced in response to the following request:

State Id Number Purpose Code Attention

33119054 () C

The information in this rap sheet is subject to the following caveats:

RESTRICTED - DO NOT USE FOR EMPLOYMENT, LICENSING, PLACEMENT OR CERTIFICATION PURPOSES(CA; 2020-04-02)

DO NOT COLLECT DNA. DNA SAMPLE HAS BEEN RECEIVED, TYPED, AND UPLOADED INTO THE CAL-DNA DATA BANK. FOR INFO (510) 620-3300 OR PC296.PC296@DOJ.CA.GOV
(CA; 2018-07-09)
** PALM PRINT ON FILE AT DOJ FOR ADDITIONAL INFORMATION PLEASE E-MAIL PALM.PRINT@DOJ.CA.GOV(CA; 2012-10-05)

*************************** IDENTIFICATION ***************************

Subject Name(s)

ALFARO, JAVIER

Subject Description

FBI Number

State Id Number 33119054

Driver's License Number D5908297 ()

Sex Male

Race White

Height 5'09"

Weight 140

Date of Birth

Hair Color Black

Eye Color Brown

Scars, Marks, and Tattoos

Code

Description, Comments, and Images

TAT CHEST

,

TAT L ARM

,

Place of Birth EL SALVADOR

Citizenship EL SALVADOR

Ethnicity Hispanic Or Latino

************************** CRIMINAL HISTORY **************************

=============================== Cycle 001 ==============================

Earliest Event Date

2012-10-05

------------------------------------------------------------------------

Arrest Date

2012-10-05

Arrest Case Number

12195422-478737

Arresting Agency

CA0100300 CAPDFIREBAUGH

Subject's Name

ALFARO,JAVIER

Comment(s)

ARREST/DETAINED/CITED

Charge

1

Charge Description PD REPORT # 120002276.1

Statute OBSTRUCT/ETC PUBLIC OFFICER/ETC (148(A)(1) PC )

State Offense Code 48122

For Official Use Only / Law Enforcement Sensitive

Case 3:20-cv-02731-VC Document 37-7 Filed 04/25/20 Page 3 of 4
U.S. Customs and Border Protection U.S. Department of Homeland Security
NNSV Query Result

04/02/2020 14:27 EDT

Generated By: DAVID CHEW

Severity Misdemeanor

Disposition ( 2013-01-28; PROS REL-DET ONLY-OTHER)

=============================== Cycle 002 ==============================

Earliest Event Date

2018-05-10

------------------------------------------------------------------------

Arrest Date

2018-05-10

Arrest Case Number

18338816-478737

Arresting Agency

CA0100900 CAPDMENDOTA

Subject's Name

ALFARO,JAVIER

Comment(s)

ARREST/DETAINED/CITED

Charge

1

Statute INFL CRPL INJ:SPOUSE/COHAB/DATE (273.5(A) PC )

State Offense Code 38080

Severity Felony

Charge

2

Statute FALSE IMPRISONMENT W/VIOLENCE/ETC (236 PC )

State Offense Code 56020

Severity Felony

Charge

3

Statute KIDNAPPING (207(A) PC )

State Offense Code 10016

Severity Felony

Charge

4

Statute THREATEN CRIME WITH INTENT TO TERRORIZE (422 PC

)

State Offense Code 16001

Severity Felony

------------------------------------------------------------------------

Court Disposition

(Cycle 002)

Court Case Number

F18903135

Final Disposition Date 2018-06-27

Court Agency

CA010023J CASCFRESNO CENTRAL

Subject's Name

ALFARO,JAVIER

Charge

1

Statute KIDNAPPING (207(A) PC )

State Offense Code 10016

Severity Unknown

Disposition (DISMISSED)

Charge

2

Statute THREATEN CRIME WITH INTENT TO TERRORIZE (422 PC

)

State Offense Code 16001

Severity Unknown

Disposition (DISMISSED)

Charge

3

Statute THREATEN CRIME WITH INTENT TO TERRORIZE (422 PC

)

State Offense Code 16001

Severity Unknown

Disposition (DISMISSED)

Charge

4

Statute PREVNT/DISUADE WITNS THREAT/FORC (136.1(C)(1)PC

)

State Offense Code 48058

Severity Unknown

Disposition (DISMISSED)

Charge

5

Statute INFLICT CORPORAL INJ SPOUSE/COHAB (273.5(A) PC )

State Offense Code 38028

Severity Felony

Disposition (CONVICTED-PROB/JAIL)

Court Comment (2019-06-26) CONVICTION CERT BY CLERK OF THE

COURT

Court Comment (2019-06-26) FOR CERT INFO SEE AUTOMATED

ARCHIVE SYS

Court Comment (2019-06-26) PROB VIOL/REV AND/OR REINSTATE

W/SEN MOD

Court Comment (2019-10-08) CONVICTION CERT BY CLERK OF THE

COURT

Court Comment (2019-10-08) FOR CERT INFO SEE AUTOMATED

ARCHIVE SYS

Court Comment (2019-10-08) PROB VIOL/REV AND/OR REINSTATE

W/SEN MOD

Court Comment (2019-10-08) SENTENCE MODIFIED

Court Comment CONDITION OF PROB-FIREARM RESTRICTION

Court Comment CONVICTION CERT BY CLERK OF THE COURT

Court Comment COURT ACTION

Court Comment FOR CERT INFO SEE AUTOMATED ARCHIVE SYS

------------------------------------------------------------------------

Sentencing

(Cycle 002)

Sentence

IMP SEN SS; 036 MONTHS PROBATION; 097 DAYS JAIL

------------------------------------------------------------------------

For Official Use Only / Law Enforcement Sensitive

Page 3 of 6

Case 3:20-cv-02731-VC Document 37-7 Filed 04/25/20 Page 4 of 4
U.S. Customs and Border Protection U.S. Department of Homeland Security
NNSV Query Result

04/02/2020 14:27 EDT

Generated By: DAVID CHEW

Sentencing

(Cycle 002)

Sentence

001 DAYS JAIL

------------------------------------------------------------------------

Sentencing

(Cycle 002)

Sentence

104 DAYS JAIL

=============================== Cycle 003 ==============================

Earliest Event Date

2019-06-24

------------------------------------------------------------------------

Arrest Date

2019-06-24

Arrest Case Number

1924421-7089535

Arresting Agency

CA0100000 CASOFRESNO

Arresting Agency

CA010013G CAPRFRESNO

Subject's Name

ALFARO,JAVIER

Comment(s)

ARREST/DETAINED/CITED

Comment(s)

WARRANT F18903135

Charge

1

Statute PROBATION VIOL:REARREST/REVOKE (1203.2 PC )

State Offense Code 50037

Severity Other

Disposition (DISPO SEE MATCH ARR/DET/CITE NUMB(FDSMN))

=============================== Cycle 004 ==============================

Earliest Event Date

2019-10-05

------------------------------------------------------------------------

Arrest Date

2019-10-05

Arrest Case Number

19368599-7089535

Arresting Agency

CA0100300 CAPDFIREBAUGH

Subject's Name

ALFARO,JAVIER

Comment(s)

ARREST/DETAINED/CITED

Charge

1

Statute BENCH WARRANT:FAIL APPEAR:FELONY CHG (979 PC )

State Offense Code 66102

Severity Felony

Charge

2

Statute NO REG:VEHICLE/TRAILER/ETC (4000(A)(1) VC )

State Offense Code 54657

Severity Infraction

Charge

3

Statute DRIVE W/O LICENSE (12500(A) VC )

State Offense Code 54107

Severity Misdemeanor

********************** NON CRIMINAL INFORMATION **********************

************************* INDEX OF AGENCIES **************************

Agency

CASOFRESNO; CA0100000;

------------------------------------------------------------------------

Agency

CAPRFRESNO; CA010013G;

------------------------------------------------------------------------

Agency

CAPDFIREBAUGH; CA0100300;

------------------------------------------------------------------------

Agency

CAPDMENDOTA; CA0100900;

------------------------------------------------------------------------

Agency

CASCFRESNO CENTRAL; CA010023J;

Page 4 of 6

* * * END OF RECORD * * * </NLETS>

RESPONSE

Source Nlets

Date and Time 04/02/2020 14:26:51

Status Unacknowledged

For Official Use Only / Law Enforcement Sensitive

Case 3:20-cv-02731-VC Document 37-8 Filed 04/25/20 Page 1 of 18

Case 3:20-cv-02731-VC Document 37-8 Filed 04/25/20 Page 2 of 18

Case 3:20-cv-02731-VC Document 37-8 Filed 04/25/20 Page 3 of 18

Details

Case 3:20-cv-02731-VC Document 37-8 Filed 04/25/20 Page 4 of 18
Disposition Events

Plea

Judicial Officer Whitehead, Denise

001

Kidnapping

002

Criminal Threats

003

Corporal Injury - On Spouse/Cohabitant

004

Dissuade Witness By Force

005

Criminal Threats

Not Guilty Not Guilty Not Guilty Not Guilty Not Guilty

Plea

Judicial Officer Harrell, Alvin M, III

003

Corporal Injury - On Spouse/Cohabitant

Nolo Contendere

Disposition

Judicial Officer Harrell, Alvin M, III

001

Kidnapping

002

Criminal Threats

003

Corporal Injury - On Spouse/Cohabitant

004

Dissuade Witness By Force

005

Criminal Threats

Dismissal - Before Trial (N- Plea Negotiation) Dismissal - After Trial (N- Plea Negotiation) Pled Nolo Contendere Dismissal - Before Trial (N- Plea Negotiation) Dismissal - Before Trial (N- Plea Negotiation)

Page 2 of 16

003

Corporal Injury - On Spouse/Cohabitant

Sentence

(The Defendant's TIME CREDITS are as follows: Total: 97 Actual: 49 GTWT: 48 Treatment: 0 Tentative Release Date: 06/27/2018)

Formal Probation 06/27/2018
3 Years 06/27/2021
Imposition of Sentence Suspended Status

Status Active

Date 06/27/2018

Comment

Fresno County Jail Fresno County Jail 06/27/2018 Incarcerated
97 Days

Amend Reason Court Order

003

Corporal Injury - On Spouse/Cohabitant

Amended Sentence

https://publicportal.fresno.courts.ca.gov/FRESNOPORTAL/Home/WorkspaceMode?p=0

4/23/2020

Details

Case 3:20-cv-02731-VC Document 37-8 Filed 04/25/20 Page 5 of 18
(The Defendant's TIME CREDITS are as follows: Total: 97 Actual: 49 GTWT: 48 Treatment: 0 Tentative Release Date: 06/27/2018)

Formal Probation 06/27/2018
3 Years 06/26/2021
Imposition of Sentence Suspended Status
Status Active Revoked

Date 06/27/2018 06/19/2019

Comment

Fresno County Jail Fresno County Jail 06/27/2018 Incarcerated
97 Days

Page 3 of 16

Amend Reason Probation Violated, Revoked, and/or Reinstated With Sent Mod

003

Corporal Injury - On Spouse/Cohabitant

Amended Sentence

(The Defendant's TIME CREDITS are as follows: Total: 97 Actual: 49 GTWT: 48 Treatment: 0 Tentative Release Date: 06/27/2018)

(The Defendant's TIME CREDITS are as follows: Total: 104 Actual: 52 GTWT: 52 Treatment: 0 Tentative Release Date: 6/26/19)

Formal Probation 06/27/2018
3 Years 07/03/2021
Imposition of Sentence Suspended Status
Status Active Revoked Reinstated same Terms and Conditions

Date 06/27/2018 06/19/2019 06/26/2019

Comment

Fresno County Jail Fresno County Jail 06/27/2018 Incarcerated
97 Days
Fresno County Jail Fresno County Jail 06/26/2019 Incarcerated
104 Days

https://publicportal.fresno.courts.ca.gov/FRESNOPORTAL/Home/WorkspaceMode?p=0

4/23/2020

Details

Case 3:20-cv-02731-VC Document 37-8 Filed 04/25/20 Page 6 of 18
Amend Reason Court Order

003

Corporal Injury - On Spouse/Cohabitant

Amended Sentence

(The Defendant's TIME CREDITS are as follows: Total: 97 Actual: 49 GTWT: 48 Treatment: 0 Tentative Release Date: 06/27/2018)

(The Defendant's TIME CREDITS are as follows: Total: 104 Actual: 52 GTWT: 52 Treatment: 0 Tentative Release Date: 6/26/19)

Formal Probation 06/27/2018
3 Years 07/04/2021
Imposition of Sentence Suspended Status
Status Active Revoked Reinstated same Terms and Conditions Revoked

Date 06/27/2018 06/19/2019 06/26/2019 10/02/2019

Comment

Fresno County Jail Fresno County Jail 06/27/2018 Incarcerated
97 Days
Fresno County Jail Fresno County Jail 06/26/2019 Incarcerated
104 Days

Page 4 of 16

Amend Reason Probation Violated, Revoked, and/or Reinstated With Sent Mod

003

Corporal Injury - On Spouse/Cohabitant

Amended Sentence

(The Defendant's TIME CREDITS are as follows: Total: 112 Actual: 56 GTWT: 56 Treatment: 0 Tentative Release Date: 10/23/19)

Formal Probation 06/27/2018
3 Years 07/09/2021
Imposition of Sentence Suspended Status
Status Active Revoked Reinstated same Terms and Conditions Revoked Reinstated same Terms and Conditions

Date 06/27/2018 06/19/2019 06/26/2019 10/02/2019 10/08/2019

Comment

https://publicportal.fresno.courts.ca.gov/FRESNOPORTAL/Home/WorkspaceMode?p=0

4/23/2020

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Page 1 of 1

C1483830
The State of California vs DANG, DUNG TUAN

Case Information
Case Type: Complaint - Felony Case Number: C1483830 Filing Date: 7/10/2014 Case Status: Dismissed Court Location: Hall of Justice

PARTIES HEARINGS

Show All  entries ▴ Type
Defendant

First Name DUNG

Search: Middle Name TUAN

Print
Last Name DANG

Showing 1 to 1 of 1 entries
Attorneys
Bold Shows Lead Attorney
Show All  entries ▴ Representing
DUNG TUAN DANG

First Name

Search: Middle Name

Previous 1 Next
Last Name Public Defender

Showing 1 to 1 of 1 entries
Show All  entries Department
Department 24 Department 24 Department 35

Type VOP: Arraignment VOP: Arraignment Hearing: Probation and Sentencing

Search: ▾ Date
11/15/2018 11/17/2016 9/8/2014

Time 10:00AM 8:30AM 9:00AM

Previous 1 Next
Result Held Held Held

Showing 1 to 3 of 3 entries

Previous 1 Next

https://portal.scscourt.org/case/MjE5NDkxOQ==

4/23/2020

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Case 3:20-cv-02731-VC Document 37-12 Filed 04/25/20 Page 1 of 9

STATE OF CALIFORNIA
TRAFFIG COLLISION REPORT
CHP 555 Page 1 (Rev 7-03) OPI 061

1 9 Pago

of

SPECIAL CONDITIONS

N1JMBER INJUREO

FElbHIT &RUN

CITY

JUDICIAL DISTRICT LOCAL REPORT NUMBER

• 3

' -S-AN+TA-RO-SA- - - - - - - - - - - CE_N_tR__AL_------117-0016246

NUMBER KILLED HIT &RUN

COUNTY

REPORTING DISTRICT

BEAT

0

MISD NOR SONOMA COUNTY

1060100003

1

z
0

COLLISION OCCURRED ON
COFFEYLN

MO

DAY

YEAR TIME (2400)

12/09/2017

2310

I - MILEPOST INFORMATION
<{

u • • 0

AT INTFRSFCTION WITH

°'" .....J firl

45 Feet

PARTY DRIVERS LICENSE NUMBER

f---+--------------~---~l-~-ss-~---------1------ 1 F8095372 VAL

OF

E OF PINER Rn

l ~E

I AIRB2G

: SAFETY EQUIP.
G

DAY OF WEEK

TOW AWAY

S M T W T F(s' ~ YES

NO

STATE HWY REL

~ D YES

NO

VEH YEAR MAKE/MODEUCOLOR
2015 NISSAN I ALT/MA I GRY

NCIC #
4905
PHOTOGRAPHS BY
KERTIANIS
LICENSE NUMB!:R

•

NONE
STATE
CA

DRIVER NAME (FIRST, MIDDLE, LAST)

1-.i.;;13clj(~1-C:...O.:..:...R:...A:...IM.:..:...A:...Y.:...A:...R:...:...IT_..:ZA_S_A_N_C_H_E_Z_-_N_U_N_E__ Z _ _ _ _ _ _ _ _ _~ OWNER'S NAME

•

SAME AS DRIVER

PEDES- STREET ADDRESS !RIAN
=
vr• rPARKED CITY/STATE/ZIP

BICY- SEX CLIST
n F

I HAIR
BRO

- - - - - - - - - - - - - - - - - - - - - - l OWNER'S ADDRESS

SAME AS DRIVER

I EYES
BRO

- - - - - , - - - - . . - - - - - - - - - - , - - - - - i DISPOSITION OF VEHICLE ON ORDERS OF

0 O OFFICER ~ DRIVER

OTHER

HEIGHT
5'02

WEIGHT
120

BIRTHDATE

I RHACE

Mo.

Day

Year

PERFORMANCE
PRIOR MECHANICAL DEFECTS:

~ NONE APPARENT

0 REFER TO NARRATIVE

OTHER
•

HOME PHONE INSURANCE CARRIER

UNKNOWN

BUSINESS PHONE
POLICY NUMBER
UNKNOWN

VEHICLE IDENTIFICATION NUMBER:

VEH ICLE TYPE
01

DESCRIBE VEHICLE DAMAGE

• • • UNK.

NONE

• • MOD. ~ MAJOR

MINOR ROLL-OVER

SHADE IN DAMAGED AREA
X ·-

DIR OF TRAVEL ION STREET OR HIGHWAY

W

PINER RD

SPEED LIMIT
I35

CA CAL-T

DOT TCP/PSC

MC/MX

x~
X

~~E PARTY DRIVERS LICENSE NUMBER

: SAFETY EQUIP, VEHYEAR MAKE/MODEUCOLOR

12- -

-

-

-

-

-

-

-

-

I
~

-

-

-

I ~LASS
~---

I AIR:
~---

-

-

-

-

-G -

-

t-2-0-1-0 -

-

TOYOTA I RAV4 I ElW

ClRMR NAME (FIRST, MIDDLE, LASTI

LICENSE NUMBER

STATE
CA

1IJ-c1- "C

"

1•- ' PEOES- STREETADDRESS TRIAN PARKFO C'ITYISTAffl.?IP

n.._. . VEHICLE
I---'- s

nT BICY- SEX F

I HAlR
BLK

- - - - - - - - - - - - - - - - - - - - - - - - i OWNER'S NAME

119 SAME AS DRIVER

-------------------------tOWNER'S ADDRESS

~ SAME AS DRIVER

I EYES
BRO

_ _- , - - - - - , - - - - - - - - - - , , - - - - - - i DISPOSITION OF VEHICLE ON ORDERS OF

0 O OFFICER ~ DRIVER

OTHER

HEIGHT
5'00

WEIGHT
125

BIRTHDATE Mo.

I RACE
0
/ "' H

CREAMS
PRIOR MECHANICAL DEFECTS:

~ NONE APPARENT

0 REFER TO NARRATIVE

OTHER
•

HOME PHONE INSURANCE CARRIER

DIR OF TRAVEL I ON STREET OR H IGHWAY

BUSINESS PHONE POLICY NUMBER I SPEED LIMIT

VEHICLE IDENTIFICATION NUMBER:

VEHICLE TYPE

01

I I

I

DESCRIBE VEHICLE DAMAGE

• • • UNK.

NONE

• • MOD. ~ MAJOR

MINOR ROLL-OVER

SHADE IN DAMAGED AREA

CA

DOT

W

PINER RD

35

CAL-T

TCP/PSC

MC/MX

PARTY DRIVERS LICENSE NUMBER

I STATE

I CLASS

I A IR BAG t SAFETY EQUIP. VEH YEAR MAKE/MODEUCOLOR

LICENSE NUMBER

STATE

I

! - - DRIVER

- + NAME

--------
(FIRST. MIDDLE, LAST)

-

-

-

-

-

-

~

-

-

-

~

-

-

-

~

--

-I

-

--

-

-

-----

--- -------------------------- -- --

-----

I--n '- " ' - < 1 - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - ~ 0 W NER'SNAME

•

SAME AS DRIVER

PEDES- STREET ADDRESS

•TRIAN
= 1--'= =--1-------------------f---,-. .,...,..;,;.,.,=,!/,:'i.':.:~'!,e·.~u·.1.:c..___---l owNER'SADDRESS

PARKED CITY/STATE/ZIP

~ n-ll'

V~ E

CE OJ.J

'""

•

SAME AS DRIVER

rr Hfl~l E I-1~...l..t.,-:-:--::---r-----,-,,.,.,..fl"'-,;j"r;-P...,_O,>.LL:::Cl,t:::'""""'f_'w,r-i,:1"'=',I;-lM,1!.E!::::~.:_1____-,----i DISPOSITION OF VEHICLE ON ORDERS°'

s1r.v- SEX I HAIR "'1'f !i,.j'i~s,~

~ F1hl-\1v - " f RTHDAT£i

I R~c.

Si'\r.. ' ·dlr-1.-{l t>~~,; . ~, \fl,\C Mh Day Year

~l<IOk MtLHANILAL uHtcLI 5:

0 O O OFFICER

DRIVER

OTHER

D KH+K IONAKKAIIV~

UIHeH HUMe ~HUl~e
n
IN!:!URANc;I:: CAl{RU:R
DIR OF TRAVEL I ON STREET OR HIGHWAY

POLICY NUMBER I SPEED LIMIT

VCI IICLC IDCNTlrtCATION NUMDCl1;

VfHIC'L f TYPij CA

C'lF~C'Rlf'F VFH!C'l F C'lAMAGf

• • • UNK. • • • MOD.

NONE MAJOR

DOT

MINOR ROLL-OVER

(
_

~
)

CAL-T

TCP/PSC

MC/MX

PREPARER'$ NAME
KERTIANIS, JOSHUA J

• DISPATCH NOTIFIED

~ YES

NO

• NIA
35

REVIEWER 'S NAME
FARRINGTON, JUSTIN F

DATE REVIEWED
12/10/20 17

Case 3:20-cv-02731-VC Document 37-12 Filed 04/25/20 Page 2 of 9

STATE OF CALIFORNIA
TRAFFIC COLLISION CODING
CHP 555 Page 2 (Rev. 7-03) OPI 061

!JAIi: '-'1 UiLLll:,ICJN (MO. OM Yli&.r,i
12/09/2017

TIMls (.t400)
2310

OWNER

PROPERTY DAMAGE DESCRIPTION OF DAMAGE

11./CIC-#
4905

];,;;;~~
IOWNERAODRESS

Page 2 of 9

ru~mrn

I•,.. • 17-0016246

NOTIFIED
Nu

SEATING POSITION

;\
~

1 2 3 4 5 6
~

1-DRIVr."R 2 TO 6 - PASSENGERS 7- STATION WAGON REAR 8 • REAR OCC. TRK. OR VAN 9 • POSITION UNKNOWN 0-0THER

SAFETY EQUIPMENT

OCCUPANTS A- NONE IN VEHICLE B· UNKNOWN C-tAPEIE'tTtJSE'D

L • AIR BAG DEPLOYED M -AIR BAG NOT DEPLOYED N-OTHER
r NOT nE'aurm=o

D • lAP OCLT NOTUSCD

1:.- 61 IUULDl:Jt l lAhNl:.U.; Ubf;;IJ

CHILD kE:.brkAIN r

F • SHOULDER HARNESS NOT USED G - LAP/SHOULDER HARNESS USED H • LAP/SHOULDER HARNESS NOT USED J • PASSIVE RESTRAINT USED K • PASSIVE RESTRAINT NOT USED

Q • IN VEHICLE USED R • IN VEHICLE NOT USED S • IN VEHICLE USE UNKNOWN T - IN VEHICLE IMPROPER USE U • NONE IN VEHICLE

M f C BICYCLE· HELMET

DRIVER PASSENGER

V-NO

X-NO

W YE'S Y Y!sS

1:JC.CIE:.D f-kOM '/I:.IIICLf.:
0 • NOT EJECTED 1 - FULLY EJECTED 2. PARTIALLY EJECTED 3- UNKNOWN

INATTENTION CODES
A- CELLPHONE HANDHELD B - CELLPHONE HANDSFREE C - ELECTRONIC EQUIPMENT D RADIO/CD !-SMOKING I· -E:;AIINU G-CHILDREN H-ANIMALS 1- PERSONAL HYGIENE J-READING K-OTHER

ITEMS MARKED BELOW FOLLOWED BY AN ASTERISK(•) SHOULD Bl!! l!!XPLAIN!D IN THI!! NAft.ft.ATIVI!!.

PRIMARY COLLISION FACTOR

LIST NUMBER l#l OF PARTY AT FAULT

1 23153 (A) VC A VCSECTIONVIOI..ATION:

,o crreoX~ YES

BOTHER IMPROPER DRIVING":

TRAFFIC CONTROL DEVICES
X A CONTROLS FUNCTIONING
B CONTROLS NOT FUNCTIONING* C CONTROLS OBSCURED D NO CONTROLS PRESENT/ FACTOR'

1 2 ~ X

SPECIAL INFORMATION
A HAZARDOUS MATERIAL 8 CELL PHONE HANDHELD IN USE C CELL PHONE HANDSFREE IN USE D CELL PHONE NOT IN USE

1 I2
X
X

MOVEMENT PRECEDING COLLISION
A STOPPED B 1-'R.UC.:f;;f;;l..llNc; S ! R.A!c;H !
C RANOFFROAO D MAKING RIGHT TURN

- C OTHER THAN DRIY_E~:
D UNKNOWN*

TYPE OF COLLISION A HEAD-ON

E SCHOOL BUS RELATED F 75 FT MOTORTRUCK COMBO

E MAKING LEFT TURN F MAKING U TURN

B SIDESWIPE
X C REAR END

G 32 FT TRAILER COMBO H

G BACKING
H SLOWING I STOPPING

WEATHER (MARK 1 TO 2 ITEMS)

D BROADSIDE

I

• A CLEAR

E HIT OBJECT

J

8 CLOUDY

F OVERTURNED

K

I PASSING OTHER VEHICLE
J CHANGING LANES
K PARKING MANEUVER

C RAINING

G VEHICLE/ PEDESTRIAN

L

L ENTERING TRAFFIC

D SNOWING

H OTHER".

M

M OTHER UNSAFE TURNING

E FOG/VISIBILITY

FT.

N

N XING INTO OPPOSING LANE

F OTI Icn.•.

MOTOR VCIIICLC INVOLVCD WITJI

0

Cl PARKf::D

G WINO

LIGHTING A DAYLIGHT

B DUSK-DAWN
X C DARK· STREET LIGHTS

0 DARK· NO STREET LIGHTS

E DARK· STREET LIGHTS NOT FUNCTIONING"

ROADWAY SURFACE

A ORY

B WET

..

C SNOWY-ICY

.. A NON • COLLISION

-

B PEDESTRIAN

X C OTHER MOTOR VEHICLE
D MOTOR VEHICLE ON OTHER ROADWAY

1 2

OTHER ASSOCIATED FACTOR(S) (MARK 1 TO 2 ITEMS)

E PARKED MOTOR VEHICLE F TRAIN G BICYCLE H ANIMAL:
I FIXED OBJECT:

A VC SECTION VIOLATION:
'si ~' VC SECTIONVIDIAllON;
{. . llfeMB VC SECTION VlO\.ATION;

• CITED YES
,o r1
• Cll~O YES
,o r1

m'l:J
Fi

~~s

-· --
J OTHER OBJECT:

D
E VISION OBSCUREMENT:

1 I2
~
X

P MERGING
Q TRAVELING WRONG WAY
R OTHER*:

SOBRIETY· DRUG

I

PHYSICAL (MARK 1 TO 2 JTEMS)

A HAD NOT BEEN DRINKING

B HBD • UNDER INFLUENCE

D SLIPPERY (MUDDY, OILY, ETC.)

F INATTENTION':

C HBO· NOT UNDER INFLUENCE'

ROADWAY CONDITION(S) (MARK 1 TO 2 JTEMS)
A HOLES, DEEP RUT"

PEDESTRIAN'S ACTIONS
> A NO PEDESTRIANS INVOLVED

G STOP & GO TRAFFIC H ENTERING JLEAVING RAMP I PREVIOUS COLLISION

D HBO - IMPAIRMENT UNKNOWN' E UNDER DRUG INFLUENCE* F IMPAIRMENT· PHYSICAL•

B LOOSE MATERIAL ON ROADWAY" C OBSTRUCTION ON ROADWAY"

B CROSSING IN CROSSWALK AT INTERSECTION

J UNFAMILIAR WITH ROAD
K DEFECTIVE VEH. EQUIP.: CITED

G IMPAIRMENT NOT KNOWN H NOT APPLICABLE

0 CONSTRUCTION • REPAIR ZONE E REDUCED ROADWAY WIDTH

C CROSSING IN CROSSWALK· NOT AT INTERSECTION

~ eYEnS

I SLEEPY/ FATIGUED

F FLOODED*

0 CROSSING- NOTIN CROSSWALK

L UNINVOLVED VEHICLE

G OTHER*
X H NO UNUSUAL CONDITIONS

E IN ROAD - INCLUDES SHOULDER F NOTIN ROAD

XX

MOTHER': N NONE APPARENT

G APPROACHING/ LEAVING SCHOOL BUS

0 RUNAWAY VEHICLE

SKETCH

~'°""'"'

®
". PU"l•tRd ....._ "

MISCELLANEOUS
Class II

- - - - - -'

4
------

N=>rro~•
I

36

Case 3:20-cv-02731-VC Document 37-12 Filed 04/25/20 Page 3 of 9

STATE OF CALIFORNIA
INJURED/ WITNESS/ PASSENGERS
CriP 555 Page 3 (Rev 1-03) OPI 061

C'\ATE'C'\FCC'\tllSIClN {MCl DAY YfAR)
12/09/2017

TIMI.' (2400)
2310

NCIC#
4UOb

WITNESS PASSENGER

AGE

SEX

ONLY

ONLY

Xl'1

I I

24 M

NAME I D.0.8. / ADDRESS

SH

I

(INJURED ONLY) TRANSPORTED BY:

f'AIAl INJURY
I I

EXTENT OF INJURY ( "X" ONE )

Oh't-rff INJURY
I I

(l'IIIHt Vl&lliLl: INJURY
I I

GOMr-LAIUI OF PAIN
I I

I
TAKEN TO;

Page 3 of 9

OFF!CERI.D.
SR46P

NUMBER
17-0016146

INJURED WAS ( "X" ONE)
DRIVER PASS, PED. BICYCLIST OTHER

PARTY NUMBER

SEAT POS.

I I I I I I r 1 r7

TEL

AJR ·SAFETY EJECTED BAG ' EQUIP.
'

t"lfSC:RIEIE !N lllRtfS

n,

n 26 M n n

NAME I D.0.8. / ADDRESS
J

(INJURED ONLY) TRANSPORTED BY;
AMR

DESCRIBE INJURIES
facial lacerations

n,

n 35 F n

n

NAME/D.O.B./ AODRESS

C

I

(INJURED ONLY) TRANSPORTED BY;
AMR

Oli.3CRl81! ll~JURl!l3
Facial laceration and complaint of back pain

n,

n 45 M n

n

NAME/ 0.0.B, / ADDRESS
DI

(INJURED ONLY) TRANSPORTED BY:

DESCRIBE INJURIES
Complaint of back pain

n•

Ix]

06 F

n

n

NAME 10.0.B. / ADDRESS
C
(INJURED ONLY) TRANSPORTED BY:

DESCRIBE INJURIES
None

I'

I I

NAME I D.O.B. / ADDRESS

(INJURED ONLY) TRAN&l'ORTED BYI

DESCRIBE INJURIES

11 n

n VICTIM OF VIOLENT CRIME NOTIFIED

Ix]

n n n Ix] n n 1 03 M: H 0

TELEPHONE

TAKEN TO:
SANTA ROSA MEMORIAL

n VICTIM OF VIOLENT CRIME NOTIFIED

Ix]

n Ix] n n n n 2 01 M: G 0

TELEPHONE

TAKEN TO:
KAISER

n VICTIM OF VIOLENT CRIME NOTIFIED

n

Ix] n Ix] n n n 2 04 p: G 0

TELEPHONE

TAKEN TO:

n VICTIM OF VIOLENT CRIME NOTIFIED

n

n n n n n n 2 05 p: Q 0

TELEPHONE

TAKEN TO:

,-1 VICTIM OF VIOLENT CRIME NOTIFIED

1-1

n n 1-1 lnl n 11 I

T

TELEPHONE

TAl<CN TO:

PREPARER'$ NAME
KERTIANIS, JOSHUA J

f;;;;;R

n VICTIM OF VIOLENT CRIME NOTIFIED

l"o

OAY
123/97/2017

I YEAR REVIEWER'S NAME
FARRINGTON, JUSTIN F

IMO

OAY

YEAR

12/10/2017

Case 3:20-cv-02731-VC Document 37-12 Filed 04/25/20 Page 4 of 9

STATE OF CALIFORNIA
N.t\RRATIVE/SUPPLEMENTAL
CHP 556 (Rev 7-90) OPI 042

[lATE'" ClF INGIClE'"NTI (l(;(;lfRRE'"NGE'"
12/09/2017

TTIME'" (2400) 2310

"X"ONC
~ NARRATIVI.!
• SUPPLEMENTAL

•"X"ONC COLL1310N Rl.!POR.T
• OTHER:

NC:!C: NllME!E'"R
4905

•!'r'PCSUPPLCMCNIAL DAUPDATI.!

• {"X" APPLICAl>LC)

• HAZARDOUS MATERIALS

•

rATAL SCHOOL BUS

CITY I COUNTY/ JUDICIAL DISTRICT
SANTA ROSA
L()(,A!!UN/bUbJ~C,I
COFFEY LN I 45 Feet E OF PINER RD

I SONOMA COUNTY

I CENTRAL

Assisting Officers: (SR524) LARON, TYLER
NOTIFICATION:

INlfME!E'"R
·(7-00·/6246

Page 4 of 9

• lllT&.RUNUPDAT!!. • OTHER:

IRE PORTING DISTRlCT / BEAT 1060100003 I 1

CITATION NUMBER

flTATt: 1IIOI IWAY Rt:LAILll

D l3cl 'l[f,

N{}

On 12/9/17, at 2310 hours, I was on patrol in the area of Piner Rd. and Coffey Ln. While traveling eastbound on Piner Rd. I saw what appeared to be two vehicles involved in a collision and a marked CHP patrol vehicle on scene blocking traffic.

I observed a grey Nissan Altima (CA license plate

) -Vl- straddling the

number one and two westbound lanes of Piner Rd. just east of Coffey Ln. Vl had

major front-end damage. A blue Toyota Rav 4 (CA license plate

) -V2- was

in thQ numbQr two lanQ in front of Vl and had major rear and damage.

A male, later identified as

, was laying in the parking lot of the

adJacent gas station holding his head and his face was covered in blood. A

female, later identified as Coraima Sanchez Nunez, was crying next to

and saying she was sorry. Sanchez Nunez was later identified as the driver of

Vl.

A female, later identified as

, was standing on the sidewalk

with a male, later identified as

, and a child, later identified

as

.

had blood on her forehead and was later identified

as the driver of V2.

All times, speed, and measurements are approximations.

STATEMENTS:

I contacted

who told me the t0Llow1ng 1n essence:

was driving westbound on Piner Rd. in the number two lane in V2.

PREPARER'$ NAME
KERTIANIS, JOSHUA J

11.D. NUMBE~R469

MONTH/ DAY /YEAR
I 12/9/2017

!REVIEWER'S NAME
FARRINGTON, JUSTIN F

IMONTH/DA'r'l'r'EAR 12/10/2017

38

Case 3:20-cv-02731-VC Document 37-12 Filed 04/25/20 Page 5 of 9

STATE OF CALIFORNIA
NARRATIVE/SUPPLEMENTAL
CHP 556 (Rev 7-90) OPI 042

t1AI!:. ti~ 11,c.101:.NT/ occurmrncc
12/09/2017

ITIMl!{NOO) 2310

"X" ONE
00 NARRAllVI:
• SUPPLEMENTAL

"X"ONE
LJ CULLISIUN Hl:!-'UfU
• OTHER:

NOIO llUMBER
4905

orricr;n LD. NUM0Gn
lSR469

TYPE SUPPLEMENTAL
LJ llAUPUA!!:.

• ('X" APPLICABLE)

• HAZARDOUS MATERIALS

•

l'AIAL SCHOOL BUS

CITY I COUNTY I .lll[lJC!Al [ll$TRICT
SANTA ROSA
LOCATION/SUBJECT
COFFEY LN I 45 Foot E OF PINER RD

I SONOMA COUNTY

I CENTRAL

Page 5 of 9

INUMllCn
17-0016246

• ! UT & Rur, ur~ATC
• OTHER:

IREPORTING DISTRICT /BEAT 1060100003 I 1

CITATION NUMBER

• fig 6'fATt: l IIOI IWAY llELATCD

YLC

NO

was stopped at the intersection with Coffey Ln. at a red signal. There

were no vehicles in front of

. Vl collided with V2 from the rear.

had a laceration on her forehead and complaint of chest and back pain.

was later transported to Kaiser Hospital by AMR.

I contacted a witness on scene, identified as following in essence:

, and he told me the

was traveling westbound on Piner Rd. approaching Coffey Ln. As Ward came

around a curve in the roadway he heard Vl 's tires lock up and collided with V2

who was stopped at a red signal, V2 was in the number one car in the number two

lane on westbound Piner Rd, stopped at the intersection of Coffey Ln.

believed Vl was traveling between 45 to 50 miles per hour as it had passed him

prior to the collision. Vl was in the number one lane and was changing to the

number two lane prior to the collision.

identified Sanchez Nunez as the

driver of Vl and

as the passenger in Vl.

I contacted

who told me the following in essence:

was in the left rear passenger seat of V2.

was sitting next to his

six-year-old daughter,

, who was in a booster seat in the center rear

passenger seat.

, his wife, was driving.

was sleeping and awoke

when the collision occurred.

had complaint of back pain and

was

uninjured.

I went to contact Sanchez Nunez who was seated on the ground in the parking lot. Sanchez Nunez had both of her arms extended to her sides. I asked Sanchez
Nunez why she had her hands out and she replied, "because you're going to arrest me, a.t-eu' L you'?"

I asked Sanchez Nunez to stand up and she did. I asked Sanchez Nunez what

happened and she didn't respond. I

PREPARER"S NAME
KERTIANIS, JOSHUA J

11.D. NUMBE~R469

asked Sanchez Nunez if she was

MONTH/OAY /YEAR
I 12/9/2017

IREVIEWER'S NAME IFARRINGTON, JUSTIN F

driving the
IMONTH /DAY I YEAR 12110/2017

39

Case 3:20-cv-02731-VC Document 37-12 Filed 04/25/20 Page 6 of 9

STATE OF CALIFORNIA
NARRA"FIVE/SUPPLEMENTAL
Cl'IP 556 (Rev 7-90) OPI 042

or DAT!: INOIOC:NT/ OOOURRENOE 12/09/2017

ITIME {~400) 2310

"X'ONE
lg] NARRATIVE

•"X"ONE COLLISION RE:f'OfH

LJ SUPPLEMENTAL

LJ OTHER:

NOIONUMOCn
4905

ornci:n t.o. NUMm:n
lSH469

TYPE SUPPLEMENTAL
• 8AUPUAfE:

("X" APPLICABLE)
•

• HAZARDOUS MATER!ALS

•

MJAL SCHOOL BUS

CITY/ COUNTY/ ,lllDIC:!Al DISTRICT
SANTA ROSA
LOCAIIONISUBJl:C[
COFFEY LN I 45 FHt E OF PINER RD

I SONOMA COUNTY

I CENTRAL

Page 6 of 9

INUMBER
1 l-0016246

• IIIT & RUN UPMT!! • OTHER:

IREPORTING DISTRICT /BEAT 1060100003 I 1

CITATION NUMBER
HATI:. HIGHWAY R!alATED
Om IEJ,o

vehicle and she didn't respond. It appeared that Sanchez Nunez was very

concerned about the health of

so I decided to wait to conduct my

interview until after

was transported. I asked Officer Van Gundy to

stand by with Sanchez Nunez. While I was speaking with Sanchez Nunez I noted

that she had the smell of alcohol coming from her person and glassy and watery

eyes.

I contacted

who was on a backboard being treated by AMR. I asked

if he knew what happened? He said "no." I asked

where he was

sitting and he said "no. 11 I asked

if he knew his name and he said "no."

CHP officers had told me

was telling Sanchez Nunez "don't tell them

shit" already so it was apparent to me that

was just being

uncooperative.

was transported to Memorial Hospital with facial

lacerations. At the time of this report I had not received the results from CT

scans that were taken of

but was notified that

was going to need

stitches for the laceration.

DUI INVESTIGATION:

Based l my contact with Sanchez Nunez l decided to conduct a UUl investigation. I asked Sanchez Nunez the DUI investigation questions. Sanchez Nunez refused
to answer most of my questions, her answers are on the DUI Investigation Report form.

I checked Sanchez Nunez's eyes for Horizontal Gaze Nystagmus and noticed lack of smooth pursuit in both eyes and distinct and continuous Nystagmus at maximum
deviation in in both eyes. I asked Sanchez Nunez if she would he willing to perform some field sobriety tests to help me determine if she was under the iu.Elueuce o.E alcohol. Saucl1e:1. Nuue:1. s a i d she would 110 L. 1 asked Sauche:1. Nuue:1. if she would be willing to perform the PAS test and she told me she would not.

Based on my investigation I believed Sanchez Nunez was under the influence of

PREPARER'S NAME
KERTIANIS, JOSHUA J

11.0. NUMBE~R469

IMONTH /DAY' YEAR 1219/2017

IREVIEWER'S NAME IFARRINGTON, JUSTIN F

IMONTH I DAY I YEAR 12/10/2017

40

Case 3:20-cv-02731-VC Document 37-12 Filed 04/25/20 Page 7 of 9

STATE OF CALIFORNIA
NARRATIVE/SUPPLEMENTAL
CHP 556 (Rev 7-90) OPI 042

OATG or INCIOl:NT/ OCCURRENCE
12109/2011

T!M!, {~400)

I

2310

"X-ONE
[g] NAHRAflvl:
• SUPPLEMENTAL

•"X"ONE LCILL!~l(JN l,:!:l-C/k.f
• OTHER:

NrlC' NllMRFR

0FFIC.FR I ['I NllMl:lFR

490b

1SR469

•TYPI: SUPPLl:Ml:N IAL DAUl'MTC

rx· APPL1t:ABLI:)
• rATAL

• HAZARDOUS MATERIALS

• SCHOOL BUS

CITY I COUNTY I JUDICIAL DISTRICT
SANTA ROSA
Lt,J(,Al!Ol~/;:,UUJL01
COFFEY LN I 45 Foot E OF PINER RD

I SONOMA COUNTY

I CENTRAL

Page 7 of 9

Nt/MlilFR
I·I7-00'/6246

• IU[&flUNUl'UArl,
• OTHER:

IREPORTING DISTRICT /BEAT 1060100003 I 1

CITATION NUMBER
<;;TATS Hl~HW"-Y RFLA.TSD
Om l&l,o

alcohol. I subsequently placed Sanchez Nunez under arrest for 23153(a) VC. I placed Sanchez Nunez in handcuffs, checked them for tightness, and double locked

them.

It should be noted that throughout my involvement in this incident portions of the incident were recorded as I was equipped with a body worn camera. This report is merely a summary of the incident and is not intended to be an exact transcription of the entire investigation or of what may have been captured with
the camera. Video captured was later booked into VeriPic.

PC TO SEARCH:

I informed Sanchez Nunez of implied consent and Trombetta. Sanchez Nunez chose to submit to the blood test.

I searched Sanchez Nunez incident to arrest prior to placing her in my patrol vehicle. In her right front jacket pocket, I located the keys to Vl. In the same pocket, I located a small plastic baggie with a white powdery substance. The bag has a slight tear and the powdery substance had gotten all over the keys. Based on my training and experience I believed this to be cocaine. I placed Sanchez Nunez in the back seat of my patrol vehicle and advised her of her Miranda Rights. I asked Sanchez Nunez about the cocaine and she told me she
did not know what was in the bag, why it was in her pocket, or who it belonged to.

I transported Sanchez Nunez to Memorial Hospital for a blood draw and medical clearance. RN Evans conducted the blood draw at 0029 hours. I later booked the
sample into SRPD Evidence along with the cocaine which was weighed at 0.2 grams. 1 us.,<.! a NareoLle l<ieullfleaLlou KlL (NlK) ou LI,., sul,slauee au<.! l l tested positive for cocaine.

I placed Sanchez Nunez in the back of my patrol car and transported her to

PREPARE R'S NAME
KERTIANIS, JOSHUA J

11.0. NUMBE~R469

IMONTH I DAY /YEAR I 1219/2017

IREVIEWER'S NAME IFARRINGTON, JUSTIN F

MONTH I DAY I YEAR
! 12110/2017

41

Case 3:20-cv-02731-VC Document 37-12 Filed 04/25/20 Page 8 of 9

STATE OF CALIFORNIA
NARRATIVE/SUPPLEMENTAL
CHP 556 (Rev 7-90) OPI 042

[IATE- (l~ IN{'.l(lE-Nl/(l(;(;tJHRI.-N(,lc
12/09/2017

ITIMI:" (2400\ 2310

"X-ONE
00 NARRATIVE
• SUPPLEMENTAL

"X"ONE
LJ COLLISION REPORT
• OTHER;

r~ctc NUM• CR 4905

lorr1crn I,•. NUMEJER
SR469

rx· TYPE: SUPPLEME:NTAL

APPLICABLE)

LJ BA UPDATE
• HAZARDOUS MATERIALS

LJ ~AIAL
• SCHOOL BUS

CITY/ cout;rv / JUOIOIAL DISTRICT SANTA ROSA
LOCATION/SUBJE:CT
COFF/iY LN 145 Foot Ea OF PINE:R RD

I SONOMA COUNTY

I CENTRAL

NUM8EiR
I 17-0016246

Page 8 of 9

LJ Hll & "UN UPDATE
• OTHER;

IRFPORTING DISTRICT/ BEAT 1060100003 I 1

CITATION NUMBE:R

• !RI 5TATC l!IO!IWA'( f'lCLATeD

,CS

NO

Sonoma County MADF where she was booked for 23153(a) VC and 11350(a) H&S.

SUMMARY:
Sanohez Nunez was traveling westbound on Piner Rd. approaching Coffey Ln. Due to Sanchez Nunez's level of intoxication she collided with the rear of V2 which had been stopped at a red signal. The passenger in Vl and driver of V2 both sustained facial lacerations and were transported to the hospital. Sanchez Nunez was determined to be under the influence of alcohol and had cocaine in her
possession. Sanchez Nunez was booked at Sonoma County MADF for 23153(a) VC and 11350(a) H&S.
Vl was towed by Performance Towing for 2265l(h) VC.

AREA OF IMPACT:

The Area of Impact (AOI) was located approximately 45' east of the east curb
prolongation of Coffey Ln. and approximately a· south of the north curb of Piner
Rd.

CAUSE:
Sanchez Nunez caused the collision by driving under the influence of alcohol, in violation of 23153(a) VC which states, "It is unlawful for a person, while
under the influence of any alcoholic beverage, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes hoci"ily injury t.o any person other than the driver."

RECOMMENDATIONS:

Case closed, forward to the Sonoma County District Attorney's Office for

PREPARER'S NAME
KERTIANIS, JOSHUA J

I1.0. NUM8E~R469

MONTH /DAY/YEAR IREVIEWER'S NAME
I 12/9/2017 FARRINGTON, JUSTIN F

IMONTH/ DAY/ YEAR I 1211012011

42

Case 3:20-cv-02731-VC Document 37-12 Filed 04/25/20 Page 9 of 9

STATE OF CALIFORNIA

NARRA11VE/SUPPLEMENTAL

CHP 556 (Rov. 7-80) OPI 042
IJAtl: (;~ 11-1{,l[Jf:1'11/ OCC.Ukkl:.N(,1:.

IIIMf:(~400)

12/09/2017

2310

N{,IC, NUMElf:k
4905

1;~~;~IJ. 1-IUMElEk

"X-ONE
~ NARRATIVE
• SUPPLEMENTAL

•"X"ONE COLLISION REPORT
• OTHER:

TYPE SUPPLEMENTAL
LJ BA UPDATE

• ("X" APPLICABLE)

• HAZARDOUS MATERIALS

•

FATAL SCHOOL BUS

CITY I C:ClllNTY / .lllC'IIC:IAL C'l!STRIC:T
SANTA ROSA
LULAIIC,,N/~UYJ&.{. I
COFFfiY I.N I 45 Feet F OF PINFR Rll

I SONOMA COUNTY

I CENTRAL

pr9secution.

INUMOCR
17-0016246

Page 9 of 9

• HIT & KUN Ul'!JAII:.

• OTHER;
IRE'f'(lRTING OISTRIC:T I BE'AT 1060100003 I 1

C:ITATIClN NUME'lfR

• !RI &!All lll[,IIWA11t[LAH'O

YH

NO

PREPARER'S NAME
KERTIANIS, JOSHUA J

11.0. NUMBE~R469

IMONTH / DAy I YEAR
12/9/2017

IREVIEWER'S NAME
FARRINGTON, JUSTIN F

43

IMONTH I DAY I YEAR
12/10/2017

Case 3:20-cv-02731-VC Document 37-13 Filed 04/25/20 Page 1 of 34

•

1 JILL R. RAVITCH, #129787 District Attorney, County of Sonoma
2 Scott K Uemura, #280412 Deputy District Attorney
3 600 Administration Dr, Room 2121 Santa Rosa, CA 9~401
4 Telephone: (707) 565-23 I I
5 Attorney for the People

FILED
JAN 19 2018
Clerk o~~Jlerior , curl of Callfumia,
u~J~\ 'A~unt, o~So oma

6

7
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
g
IN AND FOR THE COUNTY OF SONOMA
9

10
THE PEOPLE OF THE STATE OF
11 CALIFORNIA
Plaintiff, 12
vs. 13

COURT CASE NO.
FELONY COMPLAINT Section(s) VC23153(a), VC23153(b),
HS11350

14 CORAIMA YARITZA SANCHEZ NUNEZ

DOB:

ID NO. 651441

15

DA CASE NO. 0936642

16

Defendant.

Appearance Date: January 19, 2018

17

18

19

The District Attorney of the County of Sonoma, State of California, hereby accuses the

20 above named defendant of the following criminal offenses:

21 COUNT 1
22

23

On or about December 9, 2017, in the County of Sonoma, State of California, the

24 crime of Driving Under rhe Influence Of An Alcoholic Beverage Causing Injury In violation

25 of VC23 I 53(a), a Felo11y, was cormnltled i11 that CORAiMA YARII ZA SANGI l [ l NUNEL.
26 drove a vehiole while under the influence of an alooholio beverage and concurrently acted 27

28

PAGE- I -

FELONY COMPLAINT

Case 3:20-cv-02731-VC Document 37-13 Filed 04/25/20 Page 2 of 34

illegally and/or negligently in driving the vehicle, thus causing bodily injury to J E 1

2 M

-M

3

4

ENHANCEMENT 1

5

VC23558: Special Allegation-Bodily Injury To More Than One Victim

6 It is further alleged as to Count 1that the Defendant, CORAIMA YARITZA

7 SANCHEZ NUNEZ, in violation of Vehicle Code section 23558, proximately caused bodily
8

9 injury and death to

Vi

10

11

ENHANCEMENT 2

12

VC23538(b)(2): Blood Alcohol Level .20 or More

n

It is further alleged that the defendant's concentration of blood alcohol was 0.20

14 percent by weight or more, within the meaning of Vehicle Code section 23538(b)(2).
15

16 COUNT2
17 On or about December 9, 2017, in the County of Sonoma, State of California, the
18
19 crime of Driving With A .08% Blood Alcohol Content Causing Injury in violation of

20 VC23153(b), a Felony, was committed in that CORAIMA YARITZA SANCHEZ NUNEZ

21 drove a vehicle while having a 0.08 percent or more, by weight, of alcohol in her blood and

22 concurrently acted illegally and/or negligently in driving the vehicle, thus causing bodily

23 injury to J E
24

M

-M

25

26

27

28

PAGE-2-

FELONY COMPLAINT

Case 3:20-cv-02731-VC Document 37-13 Filed 04/25/20 Page 3 of 34

ENHANCEMENT 1 1

2

VC23558: Special Allegation-Bodily Injury To More Than One Victim

3

It is further alleged as to Count 2that the Defendant, CORAIMA YARITZA

4 SANCHEZ NUNC:Z, in violation of Vehicle Code section 23568, proximately caused bodily

5 injury and death to

.

6

7 ENHANCEMENT 2
8
VC23538(b)(2): Blood Alcohol Level .20 or More 9

10

It is further alleged that the defendant's concentration of blood alcohol was 0.20

11 percent by weight or more, within the meaning of Vehicle Code section 23538(b)(2).

12

13

COUNT3

14

On or about December 9, 2017, in the County of Sonoma, State of California, the

15 crime of Possessing A Controlled Substance in violation of HS11350, a Misdemeanor,
16 was committed in that CORAIMA YARITZA SANCHEZ NUNEZ did possess cocaine, a
17
controlled substance. 18

19

20

NOTICE: Conviction for these offenses may require you to provide specimens and samples

21 pursuant to Penal Code Section 296 if you are convicted of a felony offense or have a prior

22 qualifying offense in your criminal background. Willful refusal to provide the specimens and

23 samples is a crime. 24

25

NOTICE: PURSUANT TO PENAL CODE SECTION 29810(a)(l)

26

NOTICE: Conviction ofthis offonse will require you to relinquish all firearms you own,

27 possess, or have under your custody or control in the manner provided in Penal Code section 29810.

28

PAGE-3-

FELONY COMPLAINT

Case 3:20-cv-02731-VC Document 37-13 Filed 04/25/20 Page 4 of 34

1

NOTICE. PURSUANT TO PENAL CODE SECTION ?Q810(a)(2)

2

NOTICE: Conviction of this offense will prohibit you from owning, purchasing, receiving,

3 possessing, or having under your custody or control any firearms, ammunition, and ammunition

4 feeding devices, including but not limited to magazines.

5

6

MARSY'S LAW

7

Information contained in the reports being distributed as discovery in this case may contain

8 confidential information protected by Marsy's Law and the amendments lo the Stale of California

9 Constitution Section 28. Any victim(s) in any above referenced charge(s) is entitled to be safe and

IO free from intimidation, harassment, and abuse. The defcndant(s), defense counsel, and any other

11 person acting on behalf of the defendant(s) is admonished not to use any information contained in

12 the reports to locate or harass any victim or the victim(s)s' family and to not disclose any

13 information that is otherwise privileged and confidential by law. Additionally, it is a misdemeanor

14 violation of Penal Code Section 1054.2(a)(3) to disclose the address and telephone number of a

15 victim or witness to a defendant, defendant's family member, or anyone else. Note exceptions

16 provided in Penal Code Section 1054.2(a)(l) and (2).

17

Discovery Request: Pursuant to Penal Code Section 1054.S(b), the People are hereby

18 informally requesting that defense counsel provide discovery to the people a~ required by Penal

19 Code Section 1054.3.

20

Complainant therefore prays that a warrant issue and that said defendant be dealt with

21 according to law. I declare under penalty ofperjury under the laws of the State of California, based

22 on information and belief, that the foregoing is true and correct.

23 Dated: January 17, 2018

24

JILL R. RAVITCH

nTSTRTCT ATIORNRY

76

By:~-?--

SCO KUE

27

DEPUTY DISTRICT ATTORNEY

28

PAGE-4-

FELONY COMPLAINT

Case 3:20-cv-02731-VC Document 37-13 Filed 04/25/20 Page 5 of 34

'-'

,.

l

2

Cul Cha.tge

3

1

VC23153(a)

4
2
5

VC23153(l,)

6

3

7

HS11350

8

9

10

11 12

13 14

15

16

17 18

19

20

21
22
23 24

'-'

-"'::

S''lJMMA RY PAGE '

.
Rlingc

C
''
·Defcndant(s)

16-2-3 Prison+$3901,000
16-2-J l'rison + $390-1,000

Coraima Yaritza San,hez Nunez
Coraima Yariltit Sanchez Nunez

0-365+$01,000

Coraima Yaritza Sauche:,,, Nw,ez

'

Special

.,
Effect

Allooation

VC23558,

VC:23538(

b)(?.)

VC23558,

VC23538( b)(2)

26

27

28

PAGE-5-

FELONY COMPLAINT

Case 3:20-cv-02731-VC Document 37-13 Filed 04/25/20 Page 6 of 34
***IN CUSTODY***
l J ll appearing lhal the offense(s) of _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
in the complaint has been committed and there is sufficient cause to believe the dell:n<lanl guilty, I order that he be held to answer to the Superior Court. It is further ordered that
he _ _ _ _ _ _ _ _ _ _ _ _ _ _., be committed to the Sheriff ofthe County of Sonoma, and be held in custody until bail is posted in the amount of($_ _ _ _ _ _ _ _~
- - - - - - - - - - - - - - - - - - - - dollars.

***OUT OF CUSTODY*** [ ] It appearing that the offense(s) of _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

in the complaint has been committed and there is sufficient cause to believe the defendant

guilty, I order that he be held to answer to the Superior Court. The defendant remains

released as follows:

[ l Own Recognizance

[ l Supervised Own Recognizance

[ l Cited to Appear

[ l Cash Bail in the amount of$_ _ _ _ _ _ having been posted

[ l Bail Bond #

in the amount of$- - - - - - -

remains in full force and effect.

Dated

Judge of the Superior Court

Case 3:20-cv-02731-VC Document 37-13 Filed 04/25/20 Page 7 of 34
CRIMINAL

CASE SUMMARY
CASE No. SCR-712030-1

People vs. SANCHEZ NUNEZ, CORAIMA YARITZA

§

Location: Criminal

§ §

DMV Court Code:

49100 Superior Court, Criminal

§

Hlcd on: 01/19/2016

§

Case Number History: SR0-1716246-1

CASE INFORMATION

Offense
.lurisclk,tic,n; Santa Rosa 002. DUI .08 ALCUHUL:BUDL Y INJ
(ORIGINAL Complaint) Arrest: 12/09/2017
002. GB! INJURY/DEATH MULTIPLE (ORIGINAi. Complaint)
002. BAC .20 OR GREATER (ORIGINAL Complaint)

Statute 23153(b)
23558 23538(b)(2)

Statistical Closures 03/12/2018 Conviction - Plea of Guilty/Nola Contendere

Bonds

Surety Bond #SVI00-4873143

12/11/20 I7

Posted

5/8/2018

Exonerated

Counts: 002, 002, 002

$ I00,000.00

Deg Date

Case Type: Felony

F

12/09/2017 Case Plags: Dail To Appear

Firearm Prohibition

Advisement Required

E 12/09/2017

E 12/09/2017

DATE

Current Case Assignment
Case Number Court Date Assigned flMV Court Cod<

CASE ASSIGNMENT
SCR-712030-1 Criminal 01/19/2018 49100 Sup<;>rior Court, Criminal

DATE
08/0?/"/(I 19

EVENT8 & ORDER8 OF THE COURT
QJ Violation of Probation (9:00 AM) (Judicial Officer: Wong, Corona)
Sentencing; TASC Update Resource: Court Reporter Hertel, Lucia Resource: Courtroom Clerk Carroll, Jennifer Resource: Location Courtroom 9
MINUTES Amended Sentence (Judicial Officer: Wong, Cerena) Reason: Violation of Probation 002. DUI .08 ALCOHOL:BODLY !NJ (ORIGINAL Complaint) Violation of Probation Probation Type: Formal Probation Start llatc· 0,108/?018
Trrm· 16 Months End Date: 05/31/2021 Status: Reinstated (Active) Status Date, 08/02/2019
Cond1hon
1 Dcft.·ndanl is to partidpat<.· and rnmpk~lc programs or, assistance and counseling as directed by Probation Officer. Do not leave the program without prior written consent., 05/08/2018, Active 05/08/2018 2. Provide two blood and saliva samples pursuant to 296 PC, for DNA Testing, 05/08/2018, Active 05/08/2018

INDEX

PAGE I OF28

Printed on 10/16/2019 al 1:45 PM

Case 3:20-cv-02731-VC Document 37-13 Filed 04/25/20 Page 8 of 34
CRIMINAL
CASE SUMMARY
CASE No. SCR-712030-1
3. Defe11<l:t11l h, lo buLmll lu wa1rn.11Ue;1ii, ~eatdt ,rnd M:i.t.llll' of, person. property, personal business or vehicle at any time of the day or night., 05/08/2018, Active 05/08/2018 4 l>cfondunl t:-1 lo ,<mbmtl lo wurrnnllmm fmnrnh uud imtzurn of, residence anytime day or night and any reasonable hour of the night by any probation officer or law enforcement officer., 05/08/2018, Active 05/08/2018 5. Submit to random chemical testing as directed either, by Probation or Law Enforcement., 05/08/2018, Active 0'.l/08/LOl8 6. Although not a ltrm of µwLaliun, you will be. responsible, to µay a c.:hernic.:al foe le~l m the amount of, $9.00, 0)/08/2018, Active 05/08/2018 7. Do not possess or use any alcohol, 05/08/2018, Active 05/08/2018 8. Do not possess or use controlled substances or associated, paraphernalia without a valid prescription, 05/08/2018, Active 05/08/2018 9. Do not commit a criminal offense, refuse a blood alcohol, test, or drive with any measurable amount of alcohol in blood., 05/08/20 I8, Active 05/08/20 I 8 I0. Stay out of places where alcohol is the primary item of sale, 05/08/2018, Active 05/08/2018 11. Do not drive without California license and insurance, in effect., 05/08/2018, Active 05/08/2018 12. Defendant referred to 3 Month First Offender Drinking, Driver Program., 05/08/2018, Active 05/08/2018 13. Enroll within 21 days and complete as directed, 05/08/2018, Active 05/08/2018 14. Seek/maintain employment or enroll in educational program, 05/08/2018, Active 05/08/2018 15. Defendant is not to own, possess, have under custody or, control any firearms or ammunition pursuant to Federal and State Law., 05/08/2018, Active 05/08/2018 16. Be of good conduct and obey all laws., 05/08/2018, Active 05/08/2018 17. Pay restitution fine pursuant to 1202.4(a)(3)(b) PC, which includes a I0% Administration fee, $330.00, 05/08/2018, Active 05/08/2018 18. Restitution fine per 1202.44 PC, suspended unless, Probation is revoked., $300.00, 05/08/2018, Active 05/08/2018 19. Although not a condition of probation, pay a report, preparation fee of, $890.00, 05/08/2018, Active 05/08/2018 20. Although not a condilion of probation, pay a Probation, supervision fee of, $890.00, 05/08/2018, Active 05/08/2018 21. Other Orders, Waives hearings, minimum $25 per month each beginning 8/1/18, 05/08/2018, Active 05/08/2018 22. Pay fine of, $2242; Administration fee $71, 05/08/2018, Active 05/08/2018 23. Restitution Reserved, 05/08/2018, Active 05/08/2018 24. Defendant advised of right to restitution hearing, per 1214 PC (Cervantes) within 90 days., 05/08/2018, Active 05/08/2018 25. All fines, fees and/or restitution to be paid to Probation, as directed by Probation Officer., 05/08/2018, Active 05/08/2018 26. Do not drive with any alcohol in system., 05/08/2018, Active 0'108/?018 27. Other Orders, Driving privilege will not be restored until 1no"r,,rnnr I, gh•<~n t<1 DMV 01al V.lat-;(111 advl.,~tmml given, 0>/08/?018, Active o,/08/7018 28. All other terms and condillons remain in full force, and offoot., 08/02/2019, Active 08/02/2019 29. Other Orders, Four month program at Women's Recovery Services including aftercare. Report to Probation within 1 working day ifyou leave treatment or are asked to leave, 08/02/2019, Active 08/02/2019 30. Tl, Defendant may be released to TASC/Women's

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Case 3:20-cv-02731-VC Document 37-13 Filed 04/25/20 Page 9 of 34
CRIMINAL
CASE SUMMARY
CASE No. SCR-712030-1
Recovery Scrv1ces/Probat1on for placement in a residential treatment program if/when bed space becomes available., 08/02/2019, Active 08/02/2019 11 Dc,fomlaul tu IC•main in r,u..;tody until brJd spacr. becomes, available, 08/02/2019, Active 08/02/2019 32. Defendant is to participate and complete residential drug, rehabilitation program and not leave without prior written conse:nt of the: program dire:ctor or Probation Officer., 08/02/2019, Active 08/02/2019 33. AILlwug!J nut a e;o11ditio11 of v1ol,utiou, <lc:Jcu<luut wui ve:::s, custody credits while in rcsidcntiul trcutmcnt progrurn, 08/02/2019, Active 08/02/2019 34. Report to Probation Department, within 2 working days of release from treatment., 08/02/2019, Active 08/02/2019 Programs First Offender Drinking Driver Program Ordered Order Date: 05/08/2018 Duration: 3 Months DL Condition~ Type: DUI Conviction BAC/Drugs: Alcohol RAC Level 0.24 Adult Confinement Type: *Jail Start Date: 08/02/2019 Term Type: Jail Term Term: 53 Days Credit for Time Served - Actual: 27 Days Conduct Credit: 26 Days Comment: For VOP Total credit for time served of 53 days
002. Ulll lNJURY/DEATH MULTIPLE (ORlUlNAL Complamt)
Violation of Probation
Probation Type: Formal Probation Start Date: 05/08/2018 Term: 36 Months End Date: 05/3 l/202 l Status: Reinstated (Active) Status Date: 08/02/20 l 9 Condition
I. Defendant is to participate and complete programs of, assistance and counseling as directed by Probation Officer. Do not leave the program without prior written consent., 05/08/2018, Active 05/08/20 l 8 2. Provide two blood and saliva samples pursuant to 296 PC, for DNA Testing, 05/08/2018, Active 05/08/2018 3. Defendant is to submit to warrantless search and seizure of, person, property, personal business or vehicle at any time of the day or night., 05/08/2018, Active 05/08/2018 4. Defendant is to submit to warrantless search and seizure of, residence anytime day or night and any reasonable hour of the night by any probation officer or law enforcement officer., 05/08/2018, Active 05/08/2018 5. Submit to random chemical testing as directed either, by Probation or Law Enforcement., 05/08/2018, Active 0908/7018 6. Although not a term of probation, you will be responsible, to lJay a d1e;mwal foe; lctit m the amount uI, $9.00, 0)/08/2018, Acltvc 05/08/1018 7. Do not possess or use any alcohol, 05/08/2018, Active 01/08/?018 8. Do not possess or use controlled substances or associated, paraphernalia without a valid prescription, 05/08/2018, Active 05/08/2018 9. Do not commit a criminal offense, refuse a blood alcohol, test, or drive with any measurable amount of alcohol in blood.,

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Case 3:20-cv-02731-VC Document 37-13 Filed 04/25/20 Page 10 of 34
CRIMINAL
CASE SUMMARY
CASE No. SCR-712030-1
05/08/2018. Active 05/08/2018 10. Stay out of places where alcohol is the primary item of sale, 05/08/2018, Active 05/08/2018 11 D(J t1(Jl chi V(~ willt(Jul California lil:c,u.-.,~ and in~uranr.~, in effect., 05/08/2018, Active 05/08/2018 12. Defendant referred to 3 Month First Offender Drinking, Driver Program., 05/08/2018, Active 05/08/2018 13. Enroll within 21 days and complete as directed, 05/08/2018, Active 05/08/2018 14. Seek/maiulalu crnployme;ul 01 crnoll iu cducalioual program, 05/08/2018, Active 05/08/2018 15. Defeu<luul is nol lo own, vm,MHi&, have uude1 <.:w.tody or, control any firearms or ammunition pursuant to Federal and State Law., 05/08/2018, Active 05/08/2018 16. Be of good conduct and obey all laws., 05/08/2018, Active 05/08/2018 I/. Pay restitution fine pursuant to 1202.4(a)(3)(b) PC, which includes a 10% Administration fee, $330.00, 05/08/2018, Active 05/08/2018 18. Rc~tiluliou Iiuc vc1 1202.44 PC, ~u.svc11dt<l u11ks~, Probation is revoked., $300.00, 05/08/2018, Active 05/08/2018 19. Although not a condition of probation, pay a report, preparation fee of, $890.00, 05/08/2018, Active 05/08/2018 20. Although not a condition of probation, pay a Probation, supervision fee of, $890.00, 05/08/2018, Active 05/08/2018 21. Other Orders, Waives hearings, minimum $25 per month each beginning 8/1118, 05/08/2018, Active 05/08/2018 22. Pay fine of, $2242; Administration fee $71, 05/08/2018, Active 05/08/2018 23. Restitution Reserved, 05/08/2018, Active 05/08/2018 24. Defendant advised ofright to restitution hearing, per 1214 PC (Cervantes) within 90 days., 05/08/2018, Active 05/08/2018 25. All fines, fees and/or restitution to be paid to Probation, as directed by Probation Officer., 05/08/2018, Active 05/08/2018 26. Do not drive with any alcohol in system., 05/08/2018, Active 05/08/2018 27. Other Orders, Driving privilege will not be restored until proof of UDP is given to UMV. Oral Watson advisement given., 05/08/2018, Active 05/08/2018 28. All other terms and conditions remain in full force, and effect., 08/02/2019, Active 08/02/2019 29. Other Orders, Four month program at Women's Recovery Services including aftercare. Report to Probation within l working day if you leave treatment or are asked to leave, 08/02/2019, Active 08/02/2019 30. Tl, Defendant may be released to TASC/Women's Recovery Services/Probation for placement in a residential treatment program if/when bed space becomes available., 08/02/2019, Active 08/02/2019 31. Defendant to remain in custody until bed space becomes, available, 08/02/2019, Active 08/02/2019 32. Defendant is to participate and complete residential drug, rehabilitation program and not leave without prior written consent of the program director or Probation Officer., 08/02/2019, Active 08/02/2019 33. Allhough not a condition of probation, defendant waives, custody credits while in residential treatment program, 08/02/2019. Active 08/02/2019 J4. RcpC11l tCJ Pmk1.lio11 Dc.pa1lmcnl. wilhiu 2 workinv day~ uf release from treatment., 08/02/2019, Active 08/02/2019 Pror,rams First onender Drinking Driver Program Ordered Order Date: 05/08/2018 Duration: 3 Months DL Conditions

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Case 3:20-cv-02731-VC Document 37-13 Filed 04/25/20 Page 11 of 34
CRIMINAL
CASE SUMMARY
CASE No. SCR-712030-1
Type: DUI Conviction BAC/llrugs: Alcohol BAC Level 0.24 Adult Confinement
Type: *Jail
Start Date: 08/02/2019 Term Type: Jail Term Term: 53 Days Credit for Time Served - Actual: 27 Days Conducl Credit: 26 Days Conurwnl· For VOP T(1tul titticlit ftn lime .<:m vml of 'i'.1 duyf, OOL UAC .~O OR UllliA I ER (OIUG!NAL Complaint) Violation of Probation
Probation Type: Formal Probation Start Date: 05/08/2018 Term: 36 Months End Date: 05/31/2021 Status: Reinstated (Active) 8tatus llate: 08/02/20 I9 Condition
1. Defendant is to participate and complete programs of, assistance and counseling as directed by Probation Officer. Do not leave the program without prior written consent., 05/08/2018, Active 05/08/2018 2. Provide two blood and saliva samples pursuant to 296 PC, for DNA Testing, 05/08/2018, Active 05/08/2018 3. Defendant is to submit to warrantless search and seizure of, person, property, personal business or vehicle at any time of the day or night., 05/08/2018, Active 05/08/2018
4. Defendant is to submit to warrantless search and seizure of,
residence anytime day or night and any reasonable hour of the night by any probation officer or law enforcement officer., 05/08/2018, Active 05/08/2018 5. Submit to random chemical testing as directed either, by Probation or Law Enforcement., 05/08/2018, Active 05/08/2018 6. Although not a term of probation, you will be responsible, to pay a chemical fee test in the amount of, $9.00, 05/08/2018, Active 05/08/2018 7. Do not possoss or uso any alcohol, 05/08/2018, Active 05/08/2018 8. Do not possess or use. controlled substances or associated, paraphernalia without a valid prescription, 05/08/2018, Active 05/08/2018 9. Do not commit a criminal offense, refuse a blood alcohol, test, or drive with any measurable amount of alcohol in blood., 05/08/2018, Active 05/08/2018 10. Stay out of places where alcohol is the primary item of sale, 05/08/2018, Active 05/08/2018 11. Do not drive without California license and insurance, in effect., 05/08/2018, Active 05/08/2018 12. Defendant referred to 3 Month First Offender Drinking, Driver Program., 05/08/2018, Active 05/08/2018 13. Enroll within 21 days and complete as directed, 05/08/2018, Active 05/08/2018 14. Seek/maintain employment or enroll in educational program, 05/08/2018, Active 05/08/2018 15. Dcfcmlrn1l b 110L to own, po::s:sc:S.!I, have uu<lc:;1 cu:stody 01, coutwl auy foeaim~ 01 auunuuiliou pm~ua11t Lo Fedeial au<l
State I aw, 01/08/?0!8, Active 01/08/?018
16. He of good conduct and obey all laws., 0;/08/2018, Active 05/08/2018 17. Pay restitution fine pursuant to l202.4(a)(3)(b) PC, which includes a 10% Administration fee, $330.00, 05/08/2018, Active 05/08/2018 18. Restitution fine per 1202.44 PC, suspended unless,

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Case 3:20-cv-02731-VC Document 37-13 Filed 04/25/20 Page 12 of 34
CRIMINAL
CASE SUMMARY
CASE No. SCR-712030-1
Prnlmtiou i.; ,c·.vokrd, $.l00 00, 0o/08/2018, Active 0o/08/2018 19. Although not a condition of probation, pay a report, preparation fee of, $890.00, 05/08/2018, Active 05/08/2018 20. Allhout,h 11ol a wmllliun ofpwli;1llrn1, p:ty ~,. P1ohallo11, supervision fee of, $890.00, 05/08/2018, Active 05/08/2018 21. Olher Or<lei::,, Waive.!. hearing.!., minimum $25 µer mouth each beginning 8/1/18, 05/08/2018, Active 05/08/2018 22. Pay fine of, $2242; Administration fee $71, 05/08/2018, Active 05/08/20 I 8 23. Reslltutwn Reserved, 05/08/2018, Active 05/08/2018 24. Defendant advised ofright to restitution hearing, per 1.l14 PC (Cct vautcs) within 90 days., 05/08/2018, Active 05/08/2018 25. All fines, fees and/or restitution to be paid to Probation, as directed by Probation Officer., 05/08/2018, Active 05/08/2018 26. Do not drive with any alcohol in system., 05/08/2018, Active 05/08/2018 27. Other Orders, Driving privilege will not be restored until proof of DDP is given to DMV. Oral Watson advisement given., 05/08/2018, Active 05/08/2018 28. All other terms and conditions remain in full force, and effect., 08/02/20 I9, Active 08/02/2019 29. Other Orders, Four month program at Women's Recovery Services including aftercare. Report to Probation within l working day if you leave treatment or are asked to leave, 08/02/2019, Active 08/02/2019 30. Tl, Defendant may be released to TASC/Women's Recovery Services/Probation for placement in a residential treatment program if/when bed space becomes available., 08/02/2019, Active 08/02/2019 31. Defendant to remain in custody until bed space becomes, available, 08/02/2019, Active 08/02/2019 32. Defendant 1s to part1c1pate and complete residential drug, rehabilitation program and not leave without prior written consent of the program director or Probation Officer., 08/02/2019, Active 08/02/2019 11 Although not a r.on<lition of probation, <lefrn<lant waivM, custody credits while in residential treatment program, 08/02/2019, Active 08/02/2019 34. Report to Probation Department, within 2 working days of release from treatment., 08/02/2019, Active 08/02/2019 Programs First Offender Drinking Driver Program Ordered Order Date: 05/08/2018 Duration: 3 Months DL Conditions Type: DUI Conviction BAC/Drugs: Alcohol BAC Level 0.24 Adult Confinement Type: *Jail Start Date: 08/02/2019 Term Type: Jail Term Term: 53 Days Credit for Time Served - Actual: 27 Days Conduct Credit: 26 Days Comment: For VOP Total credit for time served of 53 <lays

!!old;

Journal Fntry lktail-.·

Voputy V1.vtnct Attornlly l<obert kladc 1s prcwcnt Urjendant rs pre,v<'nt m <'Ustody lJC'jC'mwe•

counsel appearing: J. Passalacqua Probation Officer is present and gives oral report: S.

Misetich Probation reinstated Modification to Terms ofProbation;

Held

Parties

Plaintiff THE PEOPLE OF THE STATE OF CALIFORNIA

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Case 3:20-cv-02731-VC Document 37-13 Filed 04/25/20 Page 13 of 34

CRIMINAL

CASE SUMMARY

CASE No. SCR-712030-1

PrC!sr.mt.

Attorney
Defendant AttoJ IUJ)'

OFFICE OF THE NSTR/CTAITORNFl' COUNTY ()F SONOMA SANCHEZ NUNEZ, CORA/MA YARITZA
l'tu,wlt1l.ljUl1, Jue

08/02/2019

Amended Sentence (Judicial Officer: Wong, Cerena) Reason: Violation of Probation
002. DUI .08 ALCOHOL:BODLY JNJ (ORIGINAL Complaint)
Violation of Probation
Probation Type: Pormal Probation Slutl Dnl,, 01/08/?018 Term: 36 Months End Date: 05/31/202 l Status: Reinstated (Active) Status Date: 08/02/2019 Co11dilio11
1. Defendant is to participate and complete programs of, assistance and counseling as directed by Probation Officer. Do not leave the program without prior written consent., 05/08/2018, Active 05/08/2018 2. Provide two blood and saliva samples pursuant to 296 PC, for DNA Testing, 05/08/2018, Active 05/08/2018 3. Defendant is to submit to warrantless search and seizure of, person, property, personal business or vehicle at any time of the day or night., 05/08/2018, Active 05/08/2018 4. Defendant is to submit to warrantless search and seizure of, residence anytime day or night and any reasonable hour of the night by any probation officer or law enforcement officer., 05/08/2018, Active 05/08/2018 5. Submit to random chemical testing as directed either, by Probation or Law F.nforce.ment, 05/08/?018, Active 01/08/?018 6. Allh(Jugh not a lurn of prnbation, you will be responsible, to pay a chemical fee test in the amount of, $9.00, 05/08/2018, Active 05/08/2018 7. Do not possess or use any alcohol, 05/08/2018, Active 05/08/2018 8. Do not µossess 01 use c.onliolled suLstanc.es 01 assoc.iated, paraphernalia without a valid prescription, 05/08/2018, Active 05/08/2018 9. Do not commit a criminal offense, refuse a blood alcohol, test, or drive with any measurable amount of alcohol in blood., 05/08/2018, Active 05/08/2018 10. Stay out of places where alcohol is the primary item of sale, 05/08/2018, Active 05/08/2018 11. Do not drive without California license and insurance, in effect., 05/08/2018, Active 05/08/2018 12. Defendant referred to 3 Month First Offender Drinking, Driver Program., 05/08/2018, Active 05/08/2018 13. Enroll within 21 days and complete as directed, 05/08/2018, Active 05/08/2018 14. Seek/maintain employment or enroll in educational program, 05/08/2018, Active 05/08/2018 15. Defendant is not to own, possess, have under custody or, control any firearms or ammunition pursuant to Federal and State Law., 05/08/2018, Active 05/08/2018 16. Be of good conduct and obey nll lnws., 05/08/2018, Active 05/08/2018 l /. Pay rcslllut10111i11e pursuant lo 1102.4(aJ(5)(b) PC, which includes n I0% Administration fee, $330.00, 0:,/08/2018, Active 05/08/2018 18. Rcst1tut10n fmc per l:.W.:l.44 PC, suspended unlmrn, Probutmn is revoked., $300.00, 05/08/2018, Active 05/08/2018 19. Although not a condition of probation, pay a report, preparation fee of, $890.00, 05/08/2018, Active 05/08/2018 20. Although not a condition of probation, pay a Probation, supervision fee of, $890.00, 05/08/2018, Active 05/08/2018

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Case 3:20-cv-02731-VC Document 37-13 Filed 04/25/20 Page 14 of 34
CRIMINAL
CASE SUMMARY
CASE No. SCR-712030-1
21. Olher Orders, Waives hearings, minimum $25 per monlh each beginning 8/1/18, 05/08/2018, Active 05/08/2018 22. Pay fine of, $2242; Administration fee $71, 05/08/2018, Acllvc Q;/08/2018 23. Restitution Reserved, 05/08/2018, Active 05/08/2018 24. Defendant advised of right to restitution hearing, per 1214 l'C (Cervantes) within 90 days., 05/08/2018, Active 05/08/2018 25. All fines, fees and/or restitution to be paid to Probation, as directed by Probation Officer., 05/08/2018, Active 05/08/2018 26. Oo not drive with any alcohol m system., 05/08/2018, Active 05/08/2018 27. Other Orders, Driving pnvilege will not be restored until proof ofDDP is given to DMV. Oral Watson advisement given., 05/08/2018, Active 05/08/2018 28. All other terms and conditions remain in full force, and effect., 08/02/2019, Active 08/02/2019 29. Other Orders, Four month program at Women's Recovery Services including aftercare. Report to Probation within l working day if you leave treatment or are asked to leave, 08/02/2019, Active 08/02/2019 30. Tl, Defendant may be released to TASC/Women's Recovery Services/Probation for placement in a residential treatment program if/when bed space becomes available., 08/02/2019, Active 08/02/2019 31. Defendant to remain in custody until bed space becomes, available, 08/02/2019, Active 08/02/2019 32. Defendant is to participate and complete residential drug, rehabilitation program and not leave without prior written consent of the program director or Probation Officer., 08/02/2019, Active 08/02/2019 33. Although not a condition of probation, defendant waives, custody credits while in residential treatment program, 08/02/2019, Active 08/02/2019 34. Report to Probation Department, within 2 working days of release from treatment., 08/02/2019, Active 08/02/2019 Programs First Offender Drinking Driver Program Ordered Order Date: 05/08/2018 Duration: 3 Months DL Conditions Type; DUI Convicliou BAC/Drugs: Alcohol BAC Level 0.24 Adult Confinement Type: *Jail Start Date: 08/02/2019 Term Type: Jail Term Term: 53 Days Credit for Time Served - Actual: 27 Days Conduct Credit: 26 Days Comment: For VOP Total credit for time served of 53 days 002. GB! INJURY/DEATH MULTIPLE (ORIGINAL Complaint)
Violation of Probation Probation
Typo: Formal Probation Slat l D111,,. 05/08/2018 Term: 36 Months Eud Dale: 05/3 l/2021 ~lulu_;,. l{c:;rn:.lalc,;d (A(;tJvc,) Status Date: 08/02/2019 ( ·oudtllon
I. Defendant is to participate and complete programs of, assistance and counseling as directed by Probation Officer. Do not leave the program without prior written consent., 05/08/2018, Active 05/08/2018 2. Provide two blood and saliva samples pursuant to 296 PC, for

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Case 3:20-cv-02731-VC Document 37-13 Filed 04/25/20 Page 15 of 34
CRIMINAL
CASE SUMMARY
CASE No. SCR-712030-1
DNA lcstmg, Oo/08/Wl8, Active 0:,/08/2018 3. Defendant is to submit to warrantless search and seizure of, person, property, personal business or vehicle at any time of the duy or nighl., 05/08/2018, Aclive 05/08/2018 4. Defendant is to submit to warrantless search and seizure of, residence anytime day or night and any reasonable hour of the night by any probation officer or law enforcement officer., 05/08/2018, Active 05/08/2018 5. Submit to random chemical testing as directed either, by Probation or Law Enforcement., 05/08/2018, Active 05/08/2018 6. AILhough nol a Lenn of probalion, you will be responsible, Lo pay a chemical fee test m the amount of, $9.00, 0:,/08/Wl8, Active 05/08/2018 7. Do not possess or use any alcohol, 05/08/2018, Active 05/08/2018 8. Do not possess or use controlled substances or associated, paraphernalia without a valid prescription, 05/08/2018, Active 05/08/2018 9. Do not commit a criminal offense, refuse a blood alcohol, test, or drive with any measurable amount of alcohol in blood., 05/08/2018, Active 05/08/2018 10. Stay out of places where alcohol is the primary item of sale, 05/08/2018, Active 05/08/2018 11. Do not drive without California license and insurance, in effect., 05/08/2018, Active 05/08/2018 12. Defendant referred to 3 Month First Offender Drinking, Driver Program., 05/08/2018, Active 05/08/2018 13. Enroll within 21 days and complete as directed, 05/08/2018, Active 05/08/2018 14. Seek/maintain employment or enroll in educational program, 05/08/2018, Active 05/08/2018 15. Defendant is not to own, possess, have under custody or. control any firearms or ammunition pursuant to Federal and State Law., 05/08/2018, Active 05/08/2018 16. Be of good conduct and obey all laws., 05/08/2018, Active 05/08/2018 17. Pay restitution fine pursuant to 1202.4(a)(J)(b) PC, which includes a 10% Administration fee, $330.00, 05/08/2018, Active 05/08/2018 18. Restitution fine per 1202.44 PC, suspended unless, Probation is revoked., $300.00, 05/08/2018, Active 05/08/2018 19. Although not a condition of probation, pay a report, preparation fee of, $890.00, 05/08/2018, Active 05/08/2018 20. Although not a condition of probation, pay a Probation, supervision fee of, $890.00, 05/08/2018, Active 05/08/2018 21. Other Orders, Waives hearings, minimum $25 per month each beginning 8/1/18, 05/08/2018, Active 05/08/2018 22. Pay fine of, $2242; Administration fee $71, 05/08/2018, Active 05/08/2018 23. Restitution Reserved, 05/08/20 I8, Active 05/08/2018 24. Defendant advised ofright to restitution hearing, per 1214 PC (Cervantes) within 90 days., 05/08/2018, Active 05/08/2018 25. All fines, fees and/or restitution to be paid to Probation, as directed by Probation Officer., 05/08/2018, Active 05/08/2018 26. Do not drive with any alcohol in system., 05/08/2018, Active 05/08/2018 27. Other Orders, Driving privilege will not be restored until proof ofDDP is given to DMV. Oral Watson advisement given., 05/08/2018, Active 05/08/2018 :l8. All other terms nnd cond1t10ns remn.m m full force, and cHect., 08/02/20 l 9, Active 08/02/2019 ?CJ Othe1 01de,..,, Pom month JH<1gta111 al Wome-11'~ R(':COVt'JY Services including aftercare. Report to Probation within I working <lay if you leave treatment or are asked to leave, 08/02/2019, Active 08/02/2019 30. Tl, Defendant may be released to TASC/Women1s Recovery Services/Probation for placement in a residential treatment

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Case 3:20-cv-02731-VC Document 37-13 Filed 04/25/20 Page 16 of 34
CRIMINAL
CASE SUMMARY
CASE No. SCR-712030-1
p1ogtum if/when bed !l{iucc become:,: uvuilublc., 08/02/2019. Active 08/02/2019 31. Defendant to remain in custody until bed space becomes, ,v,lbulc. 08/02/2019. Active 08/02/2019 32. Defendant is to participate and complete residential drug, 1ehaLilitatiou µ10g1am au<l not leave without {Jtio1 wfitlcn w11~cnt of the program director or Probation Officer., 08/02/2019, Active 08/02/2019 33. Although not a condition of probation, defendant waives, custody credtts while In restdenttal treatment program, 08/02/2019, Active 08/02/2019 34. Report to Probation Dcpm1mcnt, within 2 working days of release from treatment., 08/02/2019, Active 08/02/2019 Programs First Offender Drinking Driver Program Ordered Order Date: 05/08/2018 Duration: 3 Months DL Conditions Tyµe. DUI Couvictiou BAC/Drugs: Alcohol BAC Level 0.24 Adult Confinement Type: *Jail Start Date: 08/02/2019 Term Type: Jail Term Term: 53 Days Credit for Time Served - Actual: 27 Days Conduct Credit: 26 Days Comment: For VOP Total credit for time served of 53 days
002. BAC .20 OR GREATER (ORIGINAL Complaint) Violation of Probation
Probation Type: Formal Probation Start Date: 05/08/2018 Term: 36 Months End Dute: 05/31/2021 Status: Reinstated (Active) Status Date: 08/02/2019 Condition
l. Defendant is to participate and complete programs of, assistance and counseling as directed by Probation Officer. Do not leave the program without prior written consent., 05/08/2018, Active 05/08/2018 2. Provide two blood and saliva samples pursuant to 296 PC, for DNA Testing, 05/08/2018, Active 05/08/2018 3. Defendant is to submit to warrantless search and seizure of, person, property, personal business or vehicle at any time of the day or night., 05/08/2018, Active 05/08/2018 4. Defendant is to submit to warrantless search and seizure of, residence anytime day or night and any reasonable hour of the night by any probation officer or law enforcement officer., 05/08/2018, Active 05/08/2018 5. Submit to random chemical testing as directed either, by Probation or Law Enforcement., 05/08/2018, Active 05/08/2018 6. Although not a term of probation, you will be responsible, to pay a dt~mical fee lc:6L iu lhc: atnouul of, $9.00, 05/08/2018, Acti vc 05/08/2018 7. Do not po6.:>L66 01 U6C: any akohol, 05/08/2018, Active: 03/08/2018 8. Do nol possess or use controlled substances or associated, paraphornalm without a vnhd prnr.c-.nptmn, 0-VOS/J.018, Ar,tlvo 05/08/2018 9. Do not commit a criminal offense, refuse a blood alcohol, test, or drive with any measurable amount of alcohol in blood., 05/08/2018, Active 05/08/2018 10. Stay out of places where alcohol is the primary item of sale,

PAGE I0OF28

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Case 3:20-cv-02731-VC

Document 37-13 Filed 04/25/20
CRIMINAL
CASE SUMMARY
CASE NO. SCR-712030-1

Page 17 of 34

05/08/2018, Active 05/08/2018 11. Do not drive without California license and insurance, in effect., 05/08/2018, Active 05/08/2018 12. Deiendaul referred Lo 3 Mouth Fust OHemlet Dtmkmg, Duve1 Program., 05/08/2018, Active 05/08/2018 13. Enroll within 21 days and complete as directed, 05/08/2018, Active 05/08/2018 14. Seek/maintain employment or enroll in educational program, 01/08/2018 Active 01/08/2018 15. Defe.ndant is not to own, possess, have under custody or, control any firearms or ammunition pursuant to Federal and State Law., 05/08/2018, Active 05/08/2018 16. Be of good conduct and obey all laws., 05/08/2018, Active 05/08/2018 17. Pay restitution fine pursuant to l202.4(a)(3)(b) PC, which includes a 10% Administration fee, $330.00, 05/08/2018, Active 05/08/2018 18. Restitution fine per 1202.44 PC, suspended unless, Probation is revoked., $300.00, 05/08/2018, Active 05/08/2018 19. Although not a condition of probation, pay a report, preparation fee of, $890.00, 05/08/2018, Active 05/08/2018 20. Although not a condition of probation, pay a Probation, superv1s1on foe of, $890.00, 05/08/2018, Active 05/08/2018 21. Other Orders, Waives hearings, minimum $25 per month each beginning 8/1/18, 05/08/20 I8, Active 05/08/2018 22. Pay fine of, $2242; Administration fee $71, 05/08/2018, Active 05/08/2018 23. Restitution Reserved, 05/08/2018, Active 05/08/2018 24. Defendant advised of right to restitution hearing, per 1214 PC (Cervantes) within 90 days., 05/08/2018, Active 05/08/2018 25. All fines, fees and/or restitution to be paid to Probation, as directed by Probation Officer., 01/08/2018, Active 01/08/2018 26. Do not drive with any alcohol in system., 05/08/2018, Active 05/08/2018 27. Other Orders, Driving privilege will not be restored until proof ofDDP is given to DMV. Oral Watson advisement given., 05/08/2018, Active 05/08/2018 28. All other terms and conditions remain in full force, and effect., 08/02/2019, Active 08/02/2019 29. Other Orders, Four month program at Women's Recovery Services including aftercare. Report to Probation within 1 working day ifyou leave treatment or are asked to leave, 08/02/2019, Active 08/02/2019 30. Tl, Defendant may be released to TASC/Women1s Recovery Services/Probation for placement in a residential treatment program if/when bed space becomes available., 08/02/2019, Active 08/02/2019 31. Defendant to remain in custody until bed space becomes, available, 08/02/2019, Active 08/02/2019 32. Defendant is to participate and complete residential drug, rehabilitation program and not leave without prior written consent of the program director or Probation Officer., 08/02/2019, Active 08/02/2019 33. Although not a condition of probation, defendant waives, custody credits while in residential treatment program, 08/02/2019, Active 08/02/2019 34. RCJJOIL lo P10Latiou OeJJailrneul, within 2 wotkiug day!> of release. from treatment., 08/02/2019, Active 08/02/2019

First Offender Drinking Driver Progrum Ordered Urdcr Unto: 05/08/20 IS Duration: 3 Months
DL Conditions Type: DUI Conviction BAC/Drugs: Alcohol BAC Level 0.24

PAGE II OF28

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Case 3:20-cv-02731-VC Document 37-13 Filed 04/25/20
CRIMINAL
CASE SUMMARY
CASE No. SCR-712030-1
Adult C'C111finrmrnl Type: *Jail Start Date: 08/02/2019 [(,1m ly1m Intl [l,tltl Term: 53 Days Credit for Time Served - Aclual: 27 Days Conduct Credit: 26 Days Comment: For VOP Total credit for time served of 53 dnys

Page 18 of 34

07/09/?0l 9

c5J Violution ofFonnnl Probution (1.30 PM) (Ju<lioiul Ofiioei. U1iot.le, Mmk A.)
Hearing Added succcssjil.lly using integration with Justicehub Resource: Court Reporter Hertel, Lucia Resource: Courtroom Clerk Carroll, Jennifer Resource: Location Courtroom 9

MINUTES

~ Probation Report - Filed (Judicial Officer: Urioste, Mark A. )

Held;

Journal Entry Details:

Deputy District Attorney Robert Blade is present. Probation Officer Jose Farias is present.

Defendant is present in custody. Defense counsel appearing: A1. Fiumara, not present. Defense

counsel relieved. Defense counsel appearing: Joe Passalacqua. Defense counsel is appearing

generally. No Bail. Probation Report Filed. Probation Summarily Revoked. Defendant

informed ofright to a Violation ofProbation hearing. Defendant waives Violation of

Probation hearing. Defendant admits Violation ofProbation. Court finds Defendant in

Violation ofProbation. Refer to TASC. Matter continued to: 08/02/19 at 9:00 a.m. in Dept. 9

for VOP Sentencing; TASC Update.;

Held

Parties

Plaintiff THE PEOPLE OF THE STATE OF CALIFORNIA

Present.

Attorney

OFFICE OF THE DISTRICT AITORNEY COUNTY OF SONOMA

Defendant SANCHEZ NUNEZ, CORA/MA YARITZA

Attorney Passalacqua, Joe

SCHEDULED HEARINGS

Q Violation of Probation (08/0?/?019 at 9:00 AM) (Judicial Officer· Wong, Cerona)

Sentencing; TASC Update

Resource: Court Reporter Hertel, Lucia Re.some,: Comt1oom Ck1k C.u10l1, Ju111ilt1

Resource: Location Courlroom 9 Held

Parties Present:

Plaintiff
Attorney
Defendant Attorney

THE PEOPLE OF THE STATE OF CALIFORNIA OFFICE OF THE DISTRICT AITORNEY COUNTY OF SONOMA SANCHEZ NUNEZ, CORA/MA YARITZA Passalacqua, Joe

07/09/2019

~ Probation Report - Filed (Judicial Officer: Urioste, Mark A )

07/09/2019 0?/77/?0l 9

Bond Setting No Bail
Defonctant wmpletect jail time anct relea,;;ed NO COMMENT

01/18/2019 0l/07/2019

New Turn In Dale by Work H.clcasc l/18/2019
~ Enrollment in Supervised Electric Confinement - Filed

01/02/2019 Defendant booked into Jail to commence serving jail time

PAGE 120F28

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Case 3:20-cv-02731-VC
/v()C'()MMFNT

Document 37-13 Filed 04/25/20
CRIMINAL
CASE SUMMARY
CASR NO. SCR-7120:10-1

Page 19 of 34

10/09/2018

ffl Notice of Completion of FODDP Prog.mm - filed

06/28/2018

ffl Notice of Enrollment in FODDP Program - Filed

05/08/2018 *Conviction Certified By Clerk of the Court

(ll/08/7018

/3] Probation Reiport fileid

05/08/2018 Pretrial Release Terminated

05/08/2018

['.I Sentencing (9:00 AM) (Judicial Officer: Thisllelhwaile, Jamie E)
Resource: Court Reporter Ferronato, Rose Resource: Courtroom Clerk Rossi, Jennifer Resource: Locution Courtroom 9
MINUTES
Pretrial Release Terminated
lfiJ Probation Report - Filed
*Conviction Certified By Clerk of the Court Disposition (Judicial Officer: Thistlethwaite, Jamie E)
Interim Condition for SANCHEZ NUNEZ, CORAIMA YARITZA (Judicial Officer: Thistlethwaite, Jamie E Exp: 05/08/2018)
- Do not own, possess, 01 use any weapons 01 ammunition - Although not a term of probation, you will be responsible for ajee per chemical test m the amount oj: - Report to the Jail Lobby, located in the Main Adult
Detention Facility (MADF) as directed or immediately upon release - Inform your Probation Officer as to your residence and employment and contact telephone numbers - Make all court appearance & appointments (including intake) - Do not possess or use any controlled substances
or associatedparaphernalia without a valid prescription. - Uo not possess or use any alcohol - Submit to random chemical testing as directed either by
Probation or Law Enforcement - Defendant to submit to warrantless search and seizure of person, property, effects, business or vehicle any time ofday or night. - Do not own, possess, or use any firearms - Do not leave Sonoma County without notifying your
Probation Officer. Do not leave the State ofCalifornia without Court approval. - Be of good conduct and abide by all laws. - Pay Pre-Trial Services fee in an amount to be determined by
the Probation Department - Defendant agrees with all terms and conditions - Other Orders
Wear CAM monitor for 60 days or until further order ofthe court. Contat CAM within 48 hours. - Release to Pretnal Services with Basic Supervision Sentence (Judicial Officer: l'hlstlethwaite, Jamie E)
002. DUI .08 ALCOllOL:llODLY IN.I (ORIGINAL Complilint) Jui\ St~11lc~11u-.
Adult Confinement Type.: *Jud Facility: Main Adult Detention Facility Start Date: 06/22/2018 Start Time: 7:00 PM Term Type: Jail Term Term: 180 Days

PAGE 13 Of 28

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Case 3:20-cv-02731-VC Document 37-13 Filed 04/25/20 Page 20 of 34
CRIMINAL
CASE SUMMARY
CASE No. SCR-712030-1
C(lnum~nl Tolul CTS 1 day; SupC>;rVi-'•r:d c:k:ctronk confinr.ment; Jail alternative programs approved Probation Typr;.. P011md f'Ioh&ll011 Start Date: 05/08/2018 Term. 36 Monlhs End Date: 05/08/2021 Status: Summarily Revoked (InActive) Status Date: 0710912019 Cond1lion
1. Defendanl is to participate and complete programs of. assistance and counseling as directed by Probation Officer. Do not leave the program without prior written consent., 05/08/2018, Active 05/08/2018 2. Provide two blood and saliva samples pursuant to 296 PC, for DNA Testing, 05/08/2018, Active 05/08/2018 3. Defendant is to submit to warrantless search and seizure of, person, property, personal business or vehicle at any time of the day or night., 05/08/2018, Active 05/08/2018 4. Defendant is to submit to warrantless search and seizure of, residence anytime day or night and any reasonable hour of the night by any probation officer or law enforcement officer., 05/08/2018, Active 05/08/2018 5. Submit to random chemical testing as directed either, by Probation or Law Enforcement., 05/08/2018, Active 05/08/2018 6. Although not a term of probation, you will be responsible, to pay a chemical fee test in the amount of, $9.00, 05/08/2018, Active 05/08/2018 7. Do not possess or use any alcohol, 05/08/2018, Active 05/08/2018 8. Do not possess or use controlled substances or associated, paraphernalia without a valid prescription, 05/08/2018, Active 05/08/2018 9. Do not commit a criminal offense, refuse a blood alcohol, test, or drive with any measurable amount of alcohol in blood., 05108/2018, Active 05/0812018 10. Stay out of places where alcohol is the primary item of sale, 05/08/2018, Active 05/08/2018 11. Do not drive without California license and insurance, in effect., 05/08/2018, Active 05/08/2018 12. Defendant referred to 3 Month First Offender Drinking, Driver Program., 05/08/2018, Active 05/08/2018 13. Enroll within 21 days and complete as directed, 05108/2018, Active 05/08/2018 14. Seek/maintain employment or enroll in educational program, 05/08/2018, Active 05/08/2018 15. Defendant is not to own, possess, have under custody or, control any firearms or ammunition pursuant to Federal and State Law., 05/08/2018, Active 05/08/2018 16. Be of good conduct and obey all laws., 05/08/2018, Active 05/08/2018 17. Defendant ordered to report to Probation Department, today 518/18 after court, 05/08/2018, Active 05/08/2018 18. Pay restitution fine pursuant to 1202.4(a)(3)(b) PC, which includes a 10% Administration fee, $330.00, 05/08/2018, Active 05/08/2018 19. Restitution fine per 1202.44 PC, suspended unless, Piobuliou i, 1evoked., $300.00, 03/08/2018, Active 03/08/2018 :W. Allhough uol u wmhlion ol µ10bul1011, µuy u rcµor l, preparation fre o( ~8QO 00, 0,/08/7018, Active 0,/08/7018 21. Although uot a <.:oudlllon of probation, pay a Probation, supervision fee of, $890.00, 05/08/2018, Active 05/08/2018 22. Other Orders, Waives hearings, minimum $25 per month each beginning 8/1/18, 05/08/2018, Active 05/08/2018 23. Pay fine of, $2242; Administration fee $71, 05/08/2018, Active 05/08/2018

PAGE 14 OF 28

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Case 3:20-cv-02731-VC Document 37-13 Filed 04/25/20 Page 21 of 34
CRIMINAL
CASE SUMMARY
CASE No. SCR-712030-1
74 Restitution Resorvod, 05/08/7.018, Active 0'i'./08/?018 25. Defendant advised of right to restitution hearing, per 1214 PC (Cervantes) within 90 days., 05/08/2018, Aclive 05/08/2018 26. All fines, fees and/or restitution to be paid to Probation, as directed by Probation Officer., 05/08/2018, Active 05/08/2018 27. Do not drive with any alcohol in system., 05/08/2018, Active 05/08/2018 28. Other Orders, Driving privilege will not be restored until ptoof of DDP is given Lo DMV. Owl Walson advisement given.. 05/08/2018. Active 05/08/2018
Programs First Offender Drinking Driver Program Ordered Order Date: 05/08/2018 Duration: 3 Months Work Release Recommended Order Date: 05/08/2018 Enroll 13y Date: 05/18/2018
DL Conditions Type: DUI Conviclion BAC/Drugs: Alcohol BAC Level 0.24
002. GB! INJURY/DEATH MULTIPLE (ORIGINAL Complainl)
Jail Sentence Adult Confinement
Type:* Jail Facility: Main Adult Detention Facility Start Date: 06/22/2018 Start Time: 7:00 PM Term Type: Jail Term Term: 180 Days
Comment: Total CTS: I day; Supervised electronic confinement; Jail
alternative programs approved Probation
Typrt· Formal Probation Start Date: 05/08/2018 Term: 36 Months End Date: 05/08/2021 Status: Summarily Revoked (InActive) Status Date: 07/09/2019 Condition
I. Defendant ls to participate and complete programs of, assistance and counseling as directed by Probation Officer. Do not leave the program without prior written consent., 05/08/2018, Active 05/08/2018 2. Provide two blood and saliva samples pursuant to 296 PC, for DNA Testing, 05/08/2018, Active 05/08/2018 3. Defendant is to submit to warrantless search and seizure of, person, property, personal business or vehicle at any time of the day ornight., 05/08/2018, Active 05/08/2018 4. Defendant is to submit to warrantless search and seizure of, residence anytime day or night and any reasonable hour of the night by any probation officer or law enforcement officer., 05/08/2018, Active 05/08/2018 5. Submit to random chemical testing as directed either, by Prnbation 01 Law Eufo1ceme11l., 05/08/2018, Active 05/08/2018 6. Although not a term of probation, you will be responsible, to pay a chemical foe test in the amount ot; $9 00, 05/08/2018, Active 0.1/08/2018 7. Do not possess or use any alcohol, 05/08/2018, Active 05/08/2018 8. Do not possess or use controlled substances or associated, paraphernalia without a valid prescription, 05/08/2018, Active 05/08/2018

PAGE t50F28

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Case 3:20-cv-02731-VC Document 37-13 Filed 04/25/20 Page 22 of 34
CRIMINAL
CASE SUMMARY
CASE No. SCR-712030-1
9. Uo not commit o. crlmino.1 offense, rcfuso a blood alcohol, test, or drive with any measurable amount of alcohol in blood., 05/08/2018, Active 05/08/2018 IO Stay out of plnc:~r. wh~rn nkohol ir. tlrn primary itr.':m of sale, 05/08/2018, Active 05/08/2018 11. Do not drive without California license and insurance, in effect., 05/08/2018, Active 05/08/2018 12. Defendant referred to 1 Month First Offender Drinking, Driver Program., 05/08/2018, Active 05/08/2018 13. Enroll within 21 <luys and complete ws <li1ccte<l, 05/08/2018, Acli vc 03/08/2018 Iii. Scck/malnlaJu f.mµloymcul 01 cuwll in c.<luc;diomt! program, 05/08/2018, Active 05/08/2018 15. Defendant is not to own, possess, have under custody or, control any firearms or ammunition pursuant to Federal and State Law., 05/08/2018, Active 05/08/2018 l 6. Be of good conduct and obey all laws., 03/08/2018, Active 05/08/2018 17. Defendant ordered to report to Probation Department, today 5/8/18 after court, 05/08/2018, Active 05/08/2018 18. Pay restitution fine pursuant to 1202.4(a)(3)(b) PC, which includes a 10% Administration fee, $330.00, 05/08/2018, Active 05/08/2018 19. Restitution fine per 1202.44 PC, suspended unless, Probation is revoked., $300.00, 05/08/2018, Active 05/08/2018 20. Although not a condition of probation, pay a report, preparation fee of, $890.00, 05/08/2018, Active 05/08/2018 21. Although not a condition of probation, pay a Probation, supervision fee of, $890.00, 05/08/2018, Active 05/08/2018 22. Other Orders, Waives hearings, minimum $25 per month each beginning 8/1/18, 05/08/2018, Active 05/08/2018 23. Pay fme of, $2242; Admm1strat10n fee $71, 05/08/2018, Active 05/08/2018 24. Restitution Reserved, 05/08/2018, Active 05/08/2018 25. Defendant advised of right to restitution hearing, per 1214 PC (Cervantes) within 90 days., 05/08/2018, Active 05/08/2018 26. All fines, fees and/or restitution to be paid to Probation, as directed by Probation Officer., 05/08/2018, Active 05/08/2018 27. Do not drive with any alcohol in system., 05/08/2018, Active 05/08/2018 28. Other Orders, Driving privilege will not be restored until proof ofDDP is given to DMV. Oral Watson advisement p,iven, 0)/08/?018, Active o,/08/?018 Programs First Offender Drinking Driver Program Ordered Order Date: 05/08/2018 Duration: 3 Months Work Release Recommended Order Date: 05/08/2018 Enroll By Date: 05/18/2018 DL Conditions Type: DUI Conviction BAC/Drugs: Alcohol BAC Level 0.24 002. BAC .20 OR GREATER (ORIGINAL Complaint)
!nil Scntcnrc Adult \c111finunu1t
Type: 'lull facility: Mai11 Adull Dcl(;llliou Facility Start Date: 06/22/2018 Start Time: 7:00 PM Term Type: Jail Term Term: 180 Days
Comment: Total CTS: 1 day; Supervised electronic confinement; Jail

PAGE 16 OF28

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Case 3:20-cv-02731-VC Document 37-13 Filed 04/25/20 Page 23 of 34
CRIMINAL
CASE SUMMARY
CASE NO. SCR-712030-1
alternative programs approved Probalion
Type: Formal Probation Start Dato: 05/08/2018 Term: 36 Months End Date: 05/08/2021 Status: Summarily Revoked (InActive) Status Date: 07/09/2019 Condition
1. Defendant is to participate and complete programs of, assistance and counseling as directed by Probation Officer. Do not leave the program without prior written consent., 05/08/2018, Active 05/08/2018 2. Provide two blood and saliva samples pursuant to 296 PC, for DNA Testing, 05/08/2018, Active 05/08/2018 3. Defendant is to submit to warrantless search and seizure of. person, property, personal business or vehicle at any time of the day ornight., 05/08/2018, Active 05/08/2018 4. Defendant is to submit to warrantless search and seizure of, residence anytime day or night and any reasonable hour of the night by any probation officer or law enforcement officer., 05/08/2018, Active 05/08/2018 5. Submit to random chemical testing as directed either, by Probation or Law Enforcement., 05/08/2018, Active 05/08/2018 6. Although not a term of probation, you will be responsible, to pay a chemical fee test in the amount of, $9.00, 05/08/2018, Active 05/08/2018 7. Do not possess or use any alcohol, 05/08/2018, Active 05/08/2018 8. Do not possess or use controlled substances or associated, paraphernalia without a valid prescription, 05/08/2018, Active
o,1osno1s
9. Do not commit a criminal offense, refuse a blood alcohol, test, or drive with any measurable amount of alcohol in blood., 05/08/2018, Active 05/08/2018 10. Stny out of plnem1 where uleohol is the primury item of sale, 05/08/2018, Active 05/08/2018 11. Do not drive without California license and insurance, in effect., 05/08/2018, Active 05/08/2018 12. Defendant referred to 3 Month First Offender Drinking, Driver Program., 05/08/2018, Active 05/08/2018 11 Enroll within ?, 1 days and complete as directed 05/08/2018, Active 05/08/2018 14. Seek/maintain employment or enroll in educational program, 05/08/2018, Active 05/08/2018 15. Defendant is not to own, possess, have under custody or, control any firearms or ammunition pursuant to Federal and State Law., 05/08/2018, Active 05/08/2018 16. Be of good conduct and obey all laws., 05/08/2018, Active 05/08/2018 17. Defendant ordered to report to Probation Department, today 5/8/18 after court, 05/08/2018, Active 05/08/2018 18. Pay restitution fine pursuant to 1202.4(a)(3)(b) PC, which includes a 10% Administration fee, $330.00, 05/08/2018, Active 05/08/?0l8 I 9. Ror.titution fino par 1202,44 PC, r.ur.pt:lndod unless, Probation is revoked., $300.00, 05/08/2018, Active 05/08/2018 '..W. Although not a cond1t10n of probat10n, pay a rtporl, preparation fco of, $890.00, 05/08/20 i 8, Active (J,!08/20 i8 21. Although not a condition of probation, pay a Probation, wpc«biou [cc o[, $890.00, 0.5/08/2018, Active 0.5/08/2018 22. Other Orders, Waives hearings, minimum $25 per month each beginniog 8/1/18, 05/08/2018, Active 05/08/2018 23. Pay fine of, $2242; Administration fee $71, 05/08/2018, Active 05/08/2018 24. Restitution Reserved, 05/08/2018, Active 05/08/2018

PAGE 17 OF 28

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Case 3:20-cv-02731-VC Document 37-13 Filed 04/25/20 Page 24 of 34
CRIMINAL
CASE SUMMARY
CASE NO. SCR-712030-1
25. Defendant a<lvh:ed of right to restllutlon hearing, per 1214 PC (Cervantes) within 90 days., 05/08/2018, Active 05/08/2018
26. All fines. fees and/or restitution to be paid to Probation. ns
directed by Probation Officer., 05/08/2018, Active 05/08/2018 27. Do not drive with any alcohol in system., 05/08/2018, Active 05/08/2018 28. Other Orders, Driving privilege will not be restored until proof ofDDP is given to DMV. Oral Watson advisement given., 05/08/2018, Active 05/08/2018 P1og1ums
Ph.!t Offc.:11dc1 Dliuk.iug D1ivc1 Pwgutrn
Ordered Order Date: 05/08/2018
Ouration: 3 Months
Work Release Recommended Order Date: 05/08/2018 Enroll By Date: 05/18/2018
DL Cou<litium Type: DUI Conviction BAC/Drugs: Alcohol BAC Level 0.24

Held;

Journal Entry Details:

Deputy District Attorney Scott Uemura is present. Probation Officer is present: J. Farias

Defendant present Defense counsel appearing: J. Milligan Bail exonerated Pre Trial Release

terminated Probation Report Filed Court has read and reviewed reports and other documents.

Defendant waives formal arraignment. No legal cause whyjudgment should not be

pronounced Defendant having been convicted, Court pronounces sentence. Defendant

sentenced Imposition ofsentence suspended Defendant waives time for sentencing People's

F.:xhibit #1.· Color photograph People's F."(hibit #I withdrawn and returnd to Mr Uemura

Medical records ofthe victim,

Vi//abona is ordered sealed Have no contact with

Villa bona, her husband and child Formal Probation granted with standard terms for

36 months Balance ofcounts dismissed;

Held

Parties

Plaintiff THE PEOPLE OF THE STATE OF CALIFORNIA

Present:

Attorney FIUMARA, MICHAEL A

Attorney

OFFICE OF THE DISTRICT ATTORNEY COUNTY OF SONOMA

Defendant SANCHEZ NUNEZ, CORA/MA YARITZA

05/08/2018 Bail Bond Exonerated

05/08/2018

Sentence (Judicial Officer: Thistlethwaite, Jamie E)
002. DUI .08 ALCOHOL:BODLY !NJ (ORIGINAL Complaint) Jail Sentence
Adult Confinement Type: *Jail Facility: Main Adult Detention Facility Start Date: 06/22/2018 Start Time: 7:00 PM Term Type: Jail Term Term: 180 Days Comment: Totul CTS: 1 dny; Supervised electronic confinement; .Jnil alternative programs approved
J11uLalio11 Jype: J.c,nnal 1'wLul1011 Start Date: 05/08/2018 Tr-1 m 16 Monlh'i End Date: 05108/2021 Status: Summarily Revoked (InActive) Status Date: 07/09/2019 Condition

PAGE 18 OF28

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Case 3:20-cv-02731-VC Document 37-13 Filed 04/25/20 Page 25 of 34
CRIMINAL

CASE SUMMARY

CASE No. SCR-712030-1

Programs

I. DcfcwJunl b lo µmlitiµutc uu<l t:omµlclc 111ogwms oC assistance and counseling as directed by Probation Officer. Do not
leave the program without prior written consent., 05/08/2018, Adlvo 05/08/2018 2. Provide two blood and saliva samples pursuant to 296 PC, for DNA Tesliug, 05/08/2018, Aclive 05/08/2018 3. Defendant is to submit to warrantless search and seizure of, person, property, personal business or vehicle at any time Clfthe day or night., 05/08/2018, Active 05/08/2018 4. Defendant 1s to submit to wurruntlcss scurch und seizure of, residem:e anyllme day or night and any reasonable htmr of lhe night by any probation officer or law enforcement officer., 05/08/2018, Active 05/08/2018 5. Submit to random chemical testing as directed either, by Probation or Law Enforcement., 05/08/2018, Active 05/08/2018 6. Although not a term of probation, you will be responsible, to pay a chemical fee test in the amount of, $9.00, 05/08/2018, Active 05/08/2018 7. Do not possess or use any alcohol, 05/08/2018, Active 05/08/2018 8. Do not possess or use controlled substances or associated, paraphernalia without a valid prescription, 05/08/2018, Active
05/08/2018 9. Do not commit a criminal offense, refuse a blood alcohol, test, or drive with any measurable amount of alcohol in blood., 05/08/2018, Active 05/08/2018 10. Stay out of places where alcohol is the primary item of sale, 05/08/2018, Active 05/08/2018 11. Do not drive without California license and insurance, in effect., 05/08/2018, Active 05/08/2018 12. Defendant referred to 3 Month First Offender Drinking, Driver
Program., 05/08/2018, Active 05/08/2018 IJ. Enroll w1thm i1 days and complete as directed, 05/08/2018, Active 05/08/2018 14. Seek/maintain employment or enroll in educational program, 05/08/2018, Active 05/08/2018 1-i De-frndant j<; not to own, pos<;e-<;<;, havr unde.r r.mtody or, control any firearms or ammunition pursuant to Federal and State Law., 05/08/2018, Active 05/08/2018 16. Be of good conduct and obey all laws., 05/08/2018, Active 05/08/2018 17. Defendant ordered to report to Probation Department, today 5/8/18 after court, 05/08/2018, Active 05/08/2018 18. Pay restitution fine pursuant to 1202.4(u)(3)(b) PC, which includes a 10% Administration fee, $330.00, 05/08/2018, Active 05/08/2018 19. Restitution fine per 1202.44 PC, suspended unless, Probation is revoked., $300.00, 05/08/2018, Active 05/08/2018 20. Although not a condition of probation, pay a report, preparation fee of, $890.00, 05/08/2018, Active 05/08/2018 21. Although not a condition of probation, pay a Probation, supervision fee of, $890.00, 05/08/2018, Active 05/08/2018 22. Other Orders, Waives hearings, minimum $25 per month each beginning 8/1/18, 05/08/2018, Active 05/08/2018 23. Pay fine of, $2242; Administration fee $71, 05/08/2018, Active 05/08/2018 74 Restitution Reserved. 0"0S/?018. Active 0,/08/7018 25. Defendant advised of right to restitution hearing, per 1214 PC (C'c1',1111lc<) wilhiu 90 <illy.,. 01/08/7018. Aiclivc 01/08/7018 ?6 All fine~, fee.11 nnd/or re11titution to he pnid to Prohntion, n11 directed by Probalion Officer., 03/08/2018, Aclivc 03/08/2018 27. Do not drive with any alcohol in system., 05/08/2018, Active 05/08/2018 28. Other Orders, Driving privilege will not be restored until proof ofDDP is given to DMV. Oral Watson advisement given., 05/08/2018, Active 05/08/2018

PAGE l9OF28

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Case 3:20-cv-02731-VC Document 37-13 Filed 04/25/20 Page 26 of 34
CRIMINAL
CASE SUMMARY
CASE No. SCR-712030-1
1:irst (lffonder L>rinking [>river !1rogram Ordered Order Date: 05/08/2018 Dut11l1011. 3 Moulhi
Work Release
Recommended Order Date: 05/08/2018 Enroll By Date: 05/18/2018 DL Conditions Iype: lJUI Convlclton RAC/Drngs· Alcohol llAC Level 0.24 002. GB! INJURY/DEATH MULTIPLE (ORIGINAL Complaint)
Jail Sentence
Adult Confinement Type: *Jail Facility: Main Adult Detention Facility Start Date: 06/22/2018 Start Time: 7:00 PM Term Type: Jail Term Term: 180 Days Comment: Total CTS: 1 day; Supervised electronic confinement; Jail alternative programs approved
Probation Type: Formal Probation Start Date: 05/08/2018 Term: 36 Months End Date: 05/08/2021 Status: Summarily Revoked {lnActive) Status Date: 07/09/2019 Condition
1. Defendant is to participate and complete programs of,
assistance and counseling as directed by Probation Officer. Do not
leave the program without prior written consent., 05/08/2018, Active 05/08/2018 2. Provide two blood and saliva samples pursuant to 296 PC, for DNA Testing, 05/08/2018, Active 05/08/2018 3. Defendant is to submit to warrantless search and seizure of, person, property, personal business or vehicle at any time of the day or night., 05/08/2018, Active 05/08/2018 4. Ddeudant i5 lo 5uLrnil lo wa11a11tle5~ 5emd1 aud ~eilute of, residence anytime day or night and any reasonable hour of the night by any probation officer or law enforcement officer., 05/08/2018, Active 05/08/2018 5. Submit to random chemical testing as directed either, by Probation or Law Enforcement., 05/08/2018, Active 05/08/2018 6. Although not a term of probation, you will be responsible, to pay a chemical fee test in the amount of, $9.00, 05/08/2018, Active 05/08/2018 7. Do not possess or use any alcohol, 05/08/2018, Active 05/08/2018 8. Do not possess or use controlled substances or associated, paraphernalia without a valid prescription, 05/08/2018, Active 05/08/2018 9. Do not commit a criminal oITense, refuse a blood alcohol, test, or drive with nny mcnsurnblc runount of nlcohol in blood., 05/08/2018, Active 05/08/2018 10. Stay out of places where alcohol is the primary item of sale, 0:,/08/WIB, AcUvc 0:>/08/2018 11. Do not ddve without Callfo111la lkeuse and l11suia11ce, 111 effect., 05/08/2018, Active 05/08/2018 11.. Uefendant referred to J Month First Offender lJrinking, Driver Program., 05/08/2018, Active 05/08/2018 13. Enroll within 21 days and complete as directed, 05/08/2018, Active 05/08/2018 14. Seek/maintain employment or enroll in educational program, 05/08/2018, Active 05/08/2018

PAGE20OF 28

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Case 3:20-cv-02731-VC Document 37-13 Filed 04/25/20 Page 27 of 34
CRIMINAL
CASE SUMMARY
CASE No. SCR-712030-1
l:>. Dcfcndrrnt 1s not to own. po::i::icss. have under custody or, control any firearms or ammunition pursuant to Federal and State Law., 05/08/2018, Active 05/08/2018 16. Ile of good conduct and obey all laws, 0908/?0l 8, Ar-tivo 05/08/2018 17. Defendant ordered to report to Probation Department, today 5/8/18 after court, 05/08/2018, Active 05/08/2018 18. Pay restitution fine pursuant to 1202.4(a)(3)(b) PC, which includes a 10% Administration fee, $330.00, 05/08/2018, Active 05/08/2018 19. Re.\tiluli<m line pm 1202.44 PC, _i.,u.;,peudecl unlcM>, Probation Is revoked., $JOU.OU, 05/08/2018, Acllvc 03/08/2018 20. Although not a condition of probation, pay a report, preparation fee of, $890.00, 05/08/2018, Active 05/08/2018 21. Although not a condition of probation, pay a Probation, supervision fee of, $890.00, 05/08/2018, Active 05/08/2018 12. Other Orders, Waives hearmgs, mm1mum $2) per month each beginning 8/1/18, 05/08/2018, Active 05/08/2018 23. Pay fine of, $2242; Administration fee $71, 05/08/2018, Active 05/08/2018 24. Restitution Reserved, 05/08/2018, Active 05/08/2018 25. Defendant advised of right to restitution hearing, per 1214 PC (Cervantes) within 90 days., 05/08/2018, Active 05/08/2018 26. All fines, fees and/or restitution to be paid to Probation, as directed by Probation Officer., 05/08/2018, Active 05/08/2018 27. Do not drive with any alcohol in system., 05/08/2018, Active 05/08/2018 28. Other Orders, Driving privilege will not be restored until proof
of DDP is given to DMV. Oral Watson advisement given.,
05/08/2018, Active 05/08/2018 Programs
First Offender Drmkmg Dnver Program Ordered Order Date: 05/08/2018 Duration: 3 Months
Work Release Recommended Order Date: 05/08/2018 Enroll By Date: 05/18/2018
DL Conditions Type: DUI Conviction BAC/Drugs: Alcohol BAC Level 0.24
002. BAC .20 OR GREATER (ORIGINAL Complaint)
Jail Sentence
Adult Confinement Type: *Jail Facility: Main Adult Detention Facility Start Date: 06/22/2018 Start Time: 7:00 PM Term Type: Jail Term Term: 180 Days Comment: Total CTS: 1 day; Supervised electronic confinement; Jail alternative programs approved
Probation Type: Formal Probation Start Date: 05/08/2018 Term: 36 Months l•'.nct Iintr.· ()11()8/20?-I Slulu~. Surnmudly R.cvolu.:d (InActivc) Status LJate: 0"//09/2019 Condition
I. Defendant is to participate and complete programs of, assistance and counseling as directed by Probation Officer. Do not leave the program without prior written consent., 05/08/2018, Active 05/08/2018 2. Provide two blood and saliva samples pursuant to 296 PC, for

PAGE21 OF28

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Case 3:20-cv-02731-VC Document 37-13 Filed 04/25/20 Page 28 of 34
CRIMINAL
CASE SUMMARY
CASE No. SCR-712030-1
DNATcsliug, 05/08/2018, Aclivc 05/08/2018 3. Defendant is to submit to warrantless search and seizure of, person, property, personal business or vehicle at any time of the day m ulghl.. 05/08/2018. Active 05/08/2018 4. Defendant is to submit to warrantless search and seizure of, residence anytime day or night and any reasonable hour of the night by any probation officer or law enforcement officer., 05/08/2018, Active 05/08/2018
5. Submit to random chemical testing as directed either, by
Probat10n or Law Enforcement., 05/08/:!018, Active 05/08/1018 6. Although nol a term of'proballon, you will be responsible, lo pay a chemical fee test in the amount of, $9.00, 05/08/2018, Active 05/08/20 i 8 7. Do not possess or use any alcohol, 05/08/2018, Active 05/08/20!8 8. Do not possess or use controlled substances or associated, paraphernalia without a valid prescription, 05/08/2018, Active 05/08/2018 9. Do not commit a criminal offense, refuse a blood alcohol, test, 01 ,hive wilh auy measurable amounl of alcohol iu blou<l., 05/08/20 I8, Active 05/08/20 i 8 I0. Stay out of places where alcohol is the primary item of sale, 05/08/20!8, Active 05/08/2018 11. Do not drive without California license and insurance, in effect., 05/08/20! 8, Active 05/08/2018 12. Defendant referred to 3 Month First Offender Drinking, Driver Program., 05/08/2018, Active 05/08/2018 13. Enrol! within 21 days and complete as directed, 05/08/2018, Active 05/08/2018 14. Seek/maintain employment or enroll in educational program, 05/08/2018, Active 05/08/2018 15, Defendant is not to own, possess, have under custody or, control any fJrearms or amrnumt1on pursuant to Federal and State Law., 05/08/20!8, Active 05/08/20!8 16. Be of good conduct and obey al! laws., 05/08/2018, Active 05/08/2018 17. Defendant ordered to report to Probation Department, today 5/8/18 after court, 05/08/2018, Active 05/08/2018 18. Pay restitution fine pursuant to 1202.4(a)(3)(b) PC, which includes a !0% Administration fee, $330.00, 05/08/2018, Active 05/08/2018 19. Restitution fine per 1202.44 PC, suspended unless, Probation is revoked., $300.00, 05/08/2018, Active 05/08/2018 20. Although not a condition of probation, pay a report, preparation fee of, $890.00, 05/08/2018, Active 05/08/2018 21. Although not a condition of probation, pay a Probation, supervision fee of, $890.00, 05/08/2018, Active 05/08/2018 22. Other Orders, Waives hearings, minimum $25 per month each beginning 8/1/18, 05/08/2018, Active 05/08/2018 23. Pay fine of, $2242; Administration fee $71, 05/08/2018, Active 05/08/20 i 8 24. Restitution Reserved, 05/08/20!8, Active 05/08/2018 25. Defendant advised of right to restitution hearing, per 1214 PC (Cervantes) within 90 days., 05/08/2018, Active 05/08/2018 26. All fines, fees and/or restitution to be paid to Probation, as directed by Probation Officer., 05/08/2018, Active 05/08/2018 27. Do not drive with any alcohol in system., 05/08/2018, Active 05/08/2018 28. ()ther ()rders. Drivin~ privileQe will not be restored until proof' of'DDP i'I given lo DMV Orn! Wul<1<m ndvi<1t•.mr.nl givrn, 05/08/2018, Aclivc 05/08/2018 Programs First OftCnder Drinking Driver Program Ordered Order Date: 05/08/2018 Duration: 3 Months Work Release

PAGE 22 OF28

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Case 3:20-cv-02731-VC Document 37-13 Filed 04/25/20 Page 29 of 34
CRIMINAL
CASE SUMMARY
CASE No. SCR-712030-1
lkcommcndcd Order Date: 05/08/2018 Enroll By Date: 05/18/2018 Dl C'ouditi<.111::,, Type: DUI Conviction DAC/Drugs: Alcohol BAC Level 0.24

05/08/2018 05/08/2018

Interim Condition for SANCHEZ NUNEZ, CORAIMA YARITZA (Judicial Officer: Thistlcthwaitc, Jamie E Exp: 05/08/2018)
- Do not own, possess, or use any weapons or ammunition - Although not a term of probation, you will be responsible for a fee per chemical test in the amount of - Report to the Jail Lobby, located in the Main Adult Detention Facility (MADF) as directed or immediately upon release - Inform your Probation Officer as to your residence and employment and contact telephone numbers -Make all coml aµµeaiance & aµpoiullnenls (iuclu<li11g intake) - Do not possess or use any controlled substances
or associated paraphernalia without a validprescription. - Do not possess or use any alcohol - Submit to random chemical testing as directed either by Probation or Law Enforcement - Defendant to submit to warrantless search and seizure of person, property, effects, business or vehicle any time ofday or night. - Do not own, possess, or use any firearms - Do not leave Sonoma County without notifying your Probation Officer. Do not leave the State ofCalifornia without Court approval. - Be of good conduct and abide by all laws. - Pay Pre-Trial Services fee in an amount to be determined by the Probation Department - Defendant agrees with all terms and conditions - Other Orders
Wear CAAtf monitor for 60 days or until further order ofthe court. Contat CAM within 48 hours. - Relea£e to Pretrial Service6 with BaBic Supi,rvision Disposition (Judicial Officer: Thistlethwaite, Jamie E)

05/03/2018

~ Defendant's Sentencing Memorandum - Filed
Supplement

04/24/2018 Pretrial Release Continued

04/24/2018

gJ Report from Probation Officer (9:00 AM) (Judicial Officer: Thistlethwaite, Jamie E)
Presentence Resource: Court Reporter Simson, Luci Resource: Courtroom Clerk Rossi, Jennifer Resource: Location Courtroom 9

MINUTES

Pretrial Release Continued

Held;

Journal Entry Details:

Deputy District Attorney Scott Uemura is present. Defendant present Defense counsel appearing: M. Fiumara. not present, .I Afilligan appearing Probation Officer is pre.\·ent· .I Fw lu.'I' P1 e 11 iul Refou.1£:.: co11fbmuf,

Held

Parties Present:

Plaint/[( Atto1·ney

THE PEOPLE OF THE STATE OF CALIFORNIA FIUMARA, MICHAEL A

Attorney Defendant

OFFICE OF THE DISTR/(:T A7TORNEY COUNTY OF SONOMA SANCHEZ NUNEZ, CORA/MA YARITZA

PAGE23 Of 28

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Case 3:20-cv-02731-VC

Document 37-13 Filed 04/25/20
CRIMINAL
CASE SUMMARY
CASE No. SCR-712030-1

Page 30 of 34

04/20/2018

SCHEDULED HEARINGS

'5:J Sentencing (05/08/2018 at 9:00 AM) (Judicial Officer: Thistlethwaite. Jamie E)

Resource: Court Reporter Ferronato, Rose Resource: Courtroom Clerk Rossi, Jennifer Resource: Location Courtroom 9

Held

Parties Present.

Plaintiff Attorney

THE PEOPLE OF THE STATE OF CALIFORNIA FIUMARA, MICHAEL A

Attu1ney
Defendant

OFFICE OF THE DISTRICT ATTORNEY COUNTY OF SONOMA SANCHEZ NUNEZ, CORAIMA YARITZA

mDefendant's Sentencing Memorandum - Filed

03/12/2018

ffl Fingerprint Form Filed

03/12/2018

ffl Tahl Waiver - Filed

03/12/2018

'5:J Plea (8:30 AM) (Judicial Officer: Thistlethwaite, Jamie E)
Resource: Court Reporter Ferronato, Rose Resource: Courtroom Clerk Rossi, Jennifer Resource: Location Courtroom 9
MINUTES
Defendant understands and waives each right Defendant knowingly and intelligently waives rights
~ Tahl Waiver Filed ~ Addendum to Tahl Waiver Filed ~ Fingerprint Form Filed
Pion (Judicial Officer: Thi~tlcthwaitc, Jamie E) 002. DUI .08 ALCOHOL:BODLY !NJ (ORIGINAL Complaint) *No Contest Charge#: 002 Allegation:
002. GB! INJURY/DEATH MULTIPLE (ORIGINAL Complaint) Admit Charge#: 002 Allegation: E0I
002. BAC .20 OR GREATER (ORIGINAL Complaint) Admit Charge#: 002 Allegation: E02

Disposition (Judicial Officer: Thistlethwaite, Jamie E) 002. DUI .08 ALCOI-IOL:BODLY !NJ (ORIGINAL Complaint) Found Guilty - Plea of Guilty/Nolo Contendere Charge#: 002 Allegation:
002. GB! INJURY/DEATH MULTIPLE (ORIGINAL Complaint) Admitt<:d Char~c #: 002 Allc~ation: E0I
00? l1AC .20 OR GREATER (ORIGINAL Complaint) Admitted Charge#: 002 Allegation: E02

Held;

PAGE24 Of 28

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Case 3:20-cv-02731-VC Document 37-13 Filed 04/25/20 Page 31 of 34
CRIMINAL
CASE SUMMARY
CASE NO. SCR-712030-1
Journal Entry Dctatl/l: Deputy District Attorney Scott Uemura is present. Defendant present Defense counsel M. Fiumara, not present, J. Milligan appearing. Watson Waiver Filed Pre Trial Release conlimwd Deji.indanl advised offuti11·£• <'<mse,1m~m1cis Dl'Jimdant undcrstmuJs and wuii•o.\ cim:h right TAHL waiver filed Defendant enters a plea ofNo Contest to Count 2 Enhancements 23558 VC und 23538(b)(2) VC admitted Defendunt slipulutes tu fuctuul busis fur pleu, counsel's investigation Defendant knowingly, intelligently, freely, voluntarily waives rights Court finds defendant guilty People's motion to dismiss counts remaining at sentencing granted Plea per 1192.5PC, 36 months 17(b) PC after 18 months, restitution reserved, custody term to be determined by the Court Fingerprint form filed Referred to Probation Dept. for RPO re: Presentence Referred to Probation Dept.for RPO: Prop 63 Report due 4/17/18 Repu1 t lo P, ubuttun tuduy tu :.et uµ mte, view 01 ul WutJu11 udv1Je111ent gtve11 Defe11dunt tJ prohibitedfi·om owning, purchasing, receiving, possessing or having custody or control ofany firearms, ammunition and ammunition feeding devices, including but not limited to magazines. Defendant provided with firearm relinquishment forms. Continued to 4124/18 at 9:00am in Courtroom 9; Held

SCHEDULED HEARINGS

l2J Report from Probation Officer (04/24/2018 at 9:00 AM) (Judicial

Officer: Thistlethwaite, Jamie E)

Presentence

Resource: Court Reporter Simson, Lue!

Resource: Courtroom Clerk Rossi, Jennifer

Resource: Location Courtroom 9

Held

Parties Present:

Plaintiff Attorney

THEPEOPLEOFTHESTATEOFCALIFORNIA FIUMARA, MICHAELA

Attorney

OFFICE OF THE DISTRICT ATFORNEY COUNTY OF SONOMA

Defendant SANCHEZ NUNEZ. CORA/MA YARITZA

03/12/2018 *Defense Counsel Concurred in Defendants Plea or Admission

03/12/2018 *Charges and Direct Consequence of Plea

03/12/2018 *Court Found Plea- Knowledgeable, Intelligently Made, Volun

03/12/2018 *Right to Confront And Cross Examine Witnesses

01/1?/?018 *Privile-ge: Again'>t f'ompu\<;ory Self-Incrimination

03/12/2018 *Right to Trial by Jury Waived

03/12/2018

Disposition (Judicial Officer: Thistlethwaite, Jamie E) 002. DUI .08 ALCOHOL:BODLY !NJ (ORIGINAL Complaint) Found Guilty - Plea of Guilty/Nolo Contendere Charge#: 002 Allegation:

002. GB! INJURY/DEATH MULTIPLE (ORIGINAL Complaint) Admitted Charge#: 002 Allegation: E0l

002. BAC .20 OR GREATER (ORIGINAL Complaint) Admitted l :hargc #: (J(Jl Allegation: 602

03/12/2018

Plea (Judicial Officer: Thistlethwaite, Jamie E) 002. DU! .08 ALCOHOL:BODLY !NJ (ORIGINAL Complaint) *No Contest Charge#: 002 Allegation:

PAGE25 OF28

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Case 3:20-cv-02731-VC Document 37-13 Filed 04/25/20
CRIMINAL
CASE SUMMARY
CASE No. SCR-712030-1
002. GB! INJURY/DEATH MULTIPLE (ORIGINAL Complaint) Admit Charge#: 002 Allegation: E0I

Page 32 of 34

002. BAC .20 OR GREATER (ORIGINAL Complaint) Admit Charge#: 002 Allegation: E02

03/12/2018 03/12/2018 03/12/2018 02/27/2018

ffl Addt'-ndum to Tahl Walve-:r Flk:d
Defendant knowingly and intelligently waives rights Defendant understands and waives each right Pretrial Release Continued

02/27/2018
01/19/2018 01/19/2018 01/19/2018

gJ Plea (8:30 AM) (Judicial Officer: Thistlethwaite, Jamie E)
Resource: Court Reporter Ferronato, Rose Resource: Courtroom Clerk Shields, Julia Resource: Location Courtroom 9

MINUTES

Pretrial Release Continued

Held; Journal Entry Details:

Deputy District Attorney Scott Uemura is present. Defendant present Defense counsel appearing: J. Milligan Pre Trial Release continued Parties slip to chain ofcustody for

subpoenaed records Medical Records from Santa Rosa Memorial Hospital may be released to thePeople for copying purposes Continued to 3-12-18@ 830am in 9;

Held

Parties Present:

Plaintiff Attorney Defendant

THE PEOPLE OF THE STATE OF CALIFORNIA OFFICE OF THE DISTRICT ATFORNEY COUNTY OF SONOMA SANCHEZ NUNEZ, CORA/MA YARJTZA

SCHEDULED HEARINGS
gJ Plea (03/12/2018 at 8:30 AM) (Judicial Officer: Thistlethwaite, Jamie E)
Resource: Court Reporter Ferronato, Rose Resource: Courtroom Clerk Rossi, Jennifer Resource: Location Courtroom 9
Held

Pretrial Release Granted

Defendant arraigned on Complaint by Court /Stipulation

~ Complaint Filed

01/19/2018

gJ Re: Complaint or Discharge (8:30 AM) (Judicial Officer: Owen, Knoel)
Resource: Court Reporter Cooper, Ellen Resource: Courtroom Clerk Rossi, Jennifer
l<O!;OUrol}· [ oontton ( 'omtroom (J
MINUTES fkfcndnnt nrraigncd on Complaint by Court /Stipulation Pretrial Release Granted
Interim Condition for SANCHEZ NUNEZ, CORAIMA YARITZA (Judicial Officer: Owen, Knoel Exp: 05/08/2018)
- Do not own, possess, or use any weapons or ammunition

PAGE26 Of 28

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Case 3:20-cv-02731-VC Document 37-13 Filed 04/25/20 Page 33 of 34

CRIMINAL

CASE SUMMARY

CASE No. SCR-712030-1

- Although not a term of probation, you wlll be responsible

for a fee per chemical test in the amount of

- Report to the Jail Lobby, located in the Main Adult LJc:.tcntwn f lwlflly (MALJf) us du ected ut wmwdwtaly upun , alutmt

- Inform your Probation Officer as to your residence and employment and contact telephone numbers

- Make all court appearance & appointments (including intake) - Do not possess 01 use auy co11L1olle<l subla11ces
or associated paraphernalia without a valid prescription.

- Do not possess or use any alcohol

- Submit to random chemical testing as directed either by Probatwn or Law 1'..njorcement

- Defendant to submit to warrantless search and seizure of

person, property, effects, business or vehicle any time ofday or night.

- Do not own, possess, or use any firearms

- Do not leave Sonoma County without notifying your Probation Officer. Do not leave the State a/California without Court approval.

- Be of good conduct and abide by all laws.

- Pay Pre-Trial Services fee in an amount to be <letennine<l by

the Probation Oepartment

- Defendant agrees with all terms and conditions

- Other Orders

Wear CA/vi monitor for 60 days or until further order ofthe court. Con/at CAM within 48

hours.

- Release to Pretrial Services with Basic Supervision

Held;

Journal Entry Details:

Deputy District Attorney Scott Uemura is present. Defendant present Defense counsel appearing: M Fiumara Defense counsel is appearing generally Defense provided with copy o

Complaint Defendant stipulates to arraignment Defendant waives reading ofComplaint

Defendant waives reading ofconstituti(mal rights Pre Trial release granted Pre Trial conditions attached Stipulation to chain ofcustody for medical records from Kaiser to be

provided to the People Proofofself-help meetings shown to the court by counsel Bail bond

remains in place Continued to 2/27/18 8:30 am Dept. 9;

Held

Parties Present:

Plaintiff Attorney

THE PEOPLE OF THE STATE OF CALIFORNIA FIUMARA, MICHAEL A

Attorney

OFFICE OF THE DISTRICT ATTORNEY COUNTY OF SONOMA

Defendant SANCHEZ NUNEZ. CORAIMA YARITZA

SCHEDULED HEARINGS

'5J Plea (02/27/2018 at 8:30 AM) (Judicial Officer: Thistlethwaite, Jamie E)

Resource: Court Reporter Ferronato, Rose

Resource: Courtroom Clerk Shields, Julia

Resource: Location Courtroom 9

Held

Parties

Plaintiff THE PEOPLE OF THE STATE OF CALIFORNIA

Present:

Attorney

OFFICE OF THE DISTRICT ATTORNEY COUNTY OF SONOMA

Defendant SANCHEZ NUNEZ, CORAIMA YARITZA

01/19/2018

Interim Condition for SANCHEZ NUNEZ, CORAIMA YARITZA (Judicial Officer: Owen, Knoel Exp: 0:l/08/2018)
- Do not own, possr8s, or n,;;c any weapon.;; or ammunition - Although not a term of probatwn. vou will be responsible }Or aJee per chemical test in the amount of -Rq101t to the Jui! Lobby, locut(;{l in the Muin A<lult
Detention Facility (MADF) as directed or immediately upon release - Inform your Probation Officer
as to your residence and employment and contact telephone numbers - Make all court appearance & appointments (including intake) - Do not possess or use any controlled substances
or associated paraphernalia without a valid prescription.

PAGE27 Of 28

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Case 3:20-cv-02731-VC Document 37-13 Filed 04/25/20 Page 34 of 34

CRIMINAL

CASE SUMMARY
CASE NO. SCR-712030-1

12/20/2017

Do not possi:ss or uso any alcohol - Submit to random chemical testing as directed either by
Probation or Law Enforcement - Dvfoml:mt le, wLmtl lo WJ.IIJ.JJllcu; icJ.rch and tclzurc of person, property, effects, business or vehicle any time ofday or night.
- Do not own, possess, or use any firearms
- Do not leave Sonoma County without notifying your Prubatiun Officer. Du nut leave the State u/Culifurniu without Cvurt uµpruvul. - Be of good conduct and abide by all laws. - Pay Pre-Trial Services fee in an amount to be determined by the Probation lJeparlment - Defendant agrees with all terms and conditions - Other Orders Wear CAM monitor for 60 days or until further order ofthe court. Contat CAM within 48 hours. - Release to Pretrial Services with Basic Supervision
QJ Bail to Appear (8:30 AM) (Judicial Officer: Averill, Shelly J)
Re'.m1rcc-· Court Reporter Martine?, Carlo" Rcsouicc: Couilroom Clerk McKinney, Eiicu Resource: Location Courtroom 9

MINUTES

Held;

Journal Entry Details:

Deputy District Attorney Scott Uemura is present Defendant present Defense counsel
appearing: M Fiumara ProofofM meetings provided to Court Continued/or filing of
Complaint Matter continued to 01/19/2018 at 8:30 a.m. in Courtroom 9 for Complaint;

Held

Parties Present:

Plaintiff Attonwy

THE PEOPLE OF THE STATE OF CALIFORNIA OFFICE OF THE DISTRICT AITORNEY COUNTY OF SONOMA

Vejendant SANCHKt, NUNKL, CURA/MA YAR/1ZA

SCHEDULED HEARINGS

QJ Re: Complaint or Discharge (01/19/2018 at 8:30 AM) (Judicial Officer: Owen, Knoel)

Resource: Court Reporter Cooper, Ellen

Resource: Courtroom Clerk Rossi, Jennifer

Resource: Location Courtroom 9

Held

Parties

Plaintiff THF. PF.OP/,F, OF THF.STATF. OF C'AUFORNIA

Present:

Attorney FIUMARA, MICHAEL A

Attorney

OFFICE OF THE DlSTRlCTATTORNEY COUNTY OF SONOMA

Defendant SANCHEZ NUNEZ, CORA/MA YARITZA

12/12/2017

CANCELED On View (1:30 PM) (Judicial Officer: Averill, Shelly J) Canceled due to one ofthe Case Flags added Party Bailed to Appear,Cite To Appear, OR

12/11/2017

Bail Bond Filed SVI 00-4873143

12/10/2017

Bond Setting Jail Bail Setting Any

$ 100,000,00

PAGE28 OF 28

Printed on 10/16/2019 al 1:45 PM

Case 3:20-cv-02731-VC Document 37-14 Filed 04/25/20 Page 1 of 8

DAVID L. ANDERSON (CABN 149604) United States Attorney SARA WINSLOW (DCBN 457643) Chief, Civil Division WENDY M. GARBERS (CABN 213208) ADRIENNE ZACK (CABN 291629) Assistant United States Attorneys
450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Telephone: (415) 436-7031 FAX: (415) 436-6748 adrienne.zack@usdoj.gov
Attorneys for Federal Defendants
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, et al., Plaintiffs,
v. DAVID JENNINGS, et al.,
Defendant.

) Case No. 20-cv-02731 VC ) ) DECLARATION OF ASSISTANT FIELD ) OFFICE DIRECTOR DANA L. FISBURN IN ) SUPPORT OF FEDERAL DEFENDANTS’ ) OPPOSITION TO TRO AND MOTION TO ) STAY IN LIGHT OF FRAIHART ) ) )

I, Dana L. Fishburn, declare as follows: 1. I am an Assistant Field Office Director (“AFOD”) with the Department of Homeland Security (“DHS”), Immigration and Customs Enforcement (“ICE”), Enforcement and Removal Operations (“ERO”) in the San Francisco Field Office (“ERO San Francisco”). I have held this position since October 2, 2016. Prior to this, I was a Detention Standards Compliance Officer (“DSCO”) from January 2011 to October 2016 assigned at the Yuba County Jail (“YCJ”). I am currently assigned to the Sacramento Sub-Office within the San Francisco Field Office which is responsible for oversight of the ICE Detainees held at Yuba County Jail in Marysville, California. I have worked in various other positions within ICE since 1996.

DECLARATION OF ASSISTANT FIELD OFFICE DIRECTOR DANA L. FISHBURN Case No. 20-cv-02731 VC

Case 3:20-cv-02731-VC Document 37-14 Filed 04/25/20 Page 2 of 8
2. Among my responsibilities as the AFOD, I oversee the management of the detained docket for the aliens who are detained at YCJ. This declaration is based upon my personal and professional knowledge and information, belief, reasonable inquiry, and review of information obtained from various records, systems and databases maintained by DHS and YCJ in the regular course of business.
3. ICE is charged with removing aliens who lack lawful immigration status in the United States. Detention is an important and necessary part of immigration enforcement. The Immigration and Nationality Act (“INA”) authorizes detention of aliens pending removal under sections 235, 236, and 241 of the INA. In some cases, aliens convicted of certain crimes are subject to mandatory custody under section 236(c) of the INA and are ineligible for release from ICE custody pending completion of removal proceedings. In other cases, aliens may be detained by ICE as a matter of discretion under sections 235 and 236(a) of the INA pending removal, because they have been found to be a danger to the community and/or pose a flight risk. For aliens who have final administrative removal orders, custody is generally mandatory during the removal period under section 241(a)(2) of the INA, and once the removal period has expired custody becomes discretionary under section 241(a)(6) of the INA where release on supervision may be appropriate if there is no significant likelihood of removal in the foreseeable future.
4. To provide context for the reasons why each of the seven named Plaintiffs is in custody, ICE has conducted a preliminary review of their case histories and each follows.
Angel de Jesus Zepeda Rivas 5. Angel de Jesus Zepeda Rivas (“Zepeda”) is a 32-year old male native and citizen of El
Salvador who illegally re-entered the United States after having been lawfully removed on October 4, 2007. Exhibit (“Exh.”) 1. On September 2, 2018, he was arrested for infliction of corporal injury on a spouse/cohabitant in violation of section 273.5 of the Cal. Penal Code (“CPC”). Exh. 2. No charges were filed due to victim unavailability. Id.
6. On November 21, 2019, ICE arrested Zepeda during a targeted fugitive operation in Oakland, California. He was taken into ICE custody and was issued a Notice of Intent to Reinstate a
DECLARATION OF ASSISTANT FIELD OFFICE DIRECTOR DANA L. FISHBURN Case No. 20-cv-02731 VC

Case 3:20-cv-02731-VC Document 37-14 Filed 04/25/20 Page 3 of 8
prior order of removal (“Form I-871”). As he claimed fear of return to El Salvador, his case was referred for an asylum interview, and the officer found that Zepeda demonstrated a reasonable fear of return to his county. He was placed in withholding only proceedings and has a status conference before the Immigration Judge on April 24, 2020. He is currently detained at YCJ and assigned to C-Dorm. Zepeda becomes eligible for an Aleman-Gonzalez bond hearing in less than three weeks. See Aleman Gonzalez v. Barr, No. 18-16465, 2020 WL 1684034 (9th Cir. Apr. 7, 2020).
7. YCJ has provided education on COVID-19 to detainees to include the importance of handwashing, sanitizing common surfaces (including telephones before and after each use), and other health and wellness information by video for detainees. YCJ has implemented ICE COVID-19 screening protocols, including a 14-day quarantine for new book-ins, regardless if they were transferred from another detention facility or not. Due to COVID-19, detainees are no longer cleaning, instead, officers are doing this to ensure CDC guidelines are met. YCJ medical staff only allows one detainee in each room that is located six feet apart. During pill calls, a deputy is present to remind detainees not to get to close and to maintain social distance. Per protocol, YCJ medical staff clean all medical equipment between patients. YCJ has issued washable cloth masks to all detainees to wear.
8. According to the ICE Health Service Corps (“IHSC”) Field Medical Coordinator (“FMC”), at intake, Zepeda’s vital signs were within normal limits and his blood sugar levels were normal. Labs were drawn on January 7, 2020 and March 23, 2020, which showed that Zepeda’s hemoglobin were in pre-diabetic range. Labs were drawn on April 17, 2020 showed his glucose level is 86, which is within normal range. On various other dates, Zepeda was treated for headaches, allergies and flu-like symptoms, which were treated with medication and subsided. On April 16, 2020, Zepeda presented to medical with swollen feet, which YCJ medical determined was the result of untreated hypertension. He was prescribed Lisinopril (Prinivil Zestril). YCJ medical staff is regularly monitoring his blood sugar levels and his hypertension.
9. I obtained copies of the documents attached to this declaration, which are true and correct copies of documents from the above-named Petitioner’s A-File or the DHS’s databases:
Exhibit 1: Warrant of Removal/Deportation (Form I-205); and Exhibit 2: FBI Record of Arrests and Prosecutions (RAP) Sheet, Mar. 9, 2020.
DECLARATION OF ASSISTANT FIELD OFFICE DIRECTOR DANA L. FISHBURN Case No. 20-cv-02731 VC

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Lawrence Mwaura 10. Lawrence Mwaura (“Mwaura”) is a 27-year-old native and citizen of Kenya, who
entered the United States on October 20, 2002 at Atlanta, Georgia as a B-2 visitor. On June 19, 2003, an application for relief from removal was filed on his behalf, which was granted on August 8, 2003. On October 3, 2006, he was arrested for grand theft (CPC § 487(a)), but no charges were filed. Exh. 3. On February 11, 2010, Mwaura was arrested for battery on a person; the case was handled informally, and no charges were filed. Id. On February 2, 2011, Mwaura adjusted his status to that of a lawful permanent resident. On February 11, 2012, Mwaura was arrested for felony charges of robbery (CPC § 211), burglary (CPC § 459), and conspiracy to commit a crime. Id. The arrest stemmed from an armed robbery of two victims wherein Mwaura pointed a handgun at the victim demanding her purse, which he took from her person. Exh. 5. On July 20, 2012, while the robbery and burglary charges were pending, Mwaura was arrested for felony possession of concentrated cannabis. Id. On May 2, 2013, he was convicted of two counts of robbery in violation of CPC § 211 and sentenced to four years on the first charge and one year on the second charge, to run consecutive, for a total of a five-year term. Exh. 4. While in prison, Mwaura was charged with felony possession of drugs in prison. Exh. 3. There is no disposition for that case. Id.
11. On April 12, 2019, ICE officers arrested him upon his release from prison and placed him in removal proceedings by charging him with removability under section 237(a)(2)(A)(iii) of the INA, as an alien convicted of an aggravated felony. He is currently detained at YCJ and assigned to CDorm. Due to his aggravated felony convictions, he is subject to mandatory custody under section 236(c) of the INA. On September 6, 2019, an Immigration Judge denied all his applications for relief and ordered him removed to Kenya. On October 7, 2019, he filed an appeal with the Board of Immigration Appeals (“BIA”). On February 21, 2020, the BIA affirmed the Immigration Judge’s decision and dismissed Mwaura’s appeal. On February 25, 2020, he filed a Petition for Review (“PFR”) with the Ninth Circuit Court of Appeals, which is currently pending. On March 20, 2020, ICE received a request for humanitarian parole from his attorney citing medical conditions that may put him in at risk due to COVID-19. On March 26, 2020, his attorney was notified that his humanitarian parole request was denied due to public safety concerns.
DECLARATION OF ASSISTANT FIELD OFFICE DIRECTOR DANA L. FISHBURN Case No. 20-cv-02731 VC

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12. YCJ has provided education on COVID-19 to detainees to include the importance of handwashing, sanitizing common surfaces (including telephones before and after each use), and other health and wellness information by video for detainees. YCJ has implemented ICE COVID-19 screening protocols, including a 14-day quarantine for new book-ins, regardless if they were transferred from another detention facility or not. Due to COVID-19, detainees are no longer doing any of the cleaning, instead, officers are doing this to ensure CDC guidelines are met. YCJ medical staff only allows one detainee in each room that is located six feet apart. During pill calls, a deputy is present to remind detainees not to get to close and to maintain social distance. Per protocol, YCJ medical staff clean all medical equipment between patients. YCJ has issued washable cloth masks to all detainees to wear.
13. According to the IHSC FMC, YCJ medical staff stated that Mwaura was previously diagnosed with Valley Fever in 2018 and prescribed Voriconazole, which he is currently taking. Labs were drawn on May 20, 2019, July 24, 209, July 25, 2019, September 13, 2019 and November 22, 2019, which all shows that his labs are within normal limits.
14. I obtained copies of the documents attached to this declaration, which are true and correct copies of documents from the above-named Petitioner’s A-File or the DHS’s databases:
Exhibit 3: Criminal History Report, Aug. 21, 2019; Exhibit 4: Los Angeles County Superior Court Documents – Case #SA080009-01; and Exhibit 5: Los Angeles County Superior Court Documents Probation Report, Mar. 19,
2012. Luciano Gonzalo Mendoza Jeronimo
15. Luciano Gonzalo Mendoza Jeronimo (“Mendoza”) is a 31-year old male native and citizen of Guatemala who illegally re-entered the United States after having been lawfully removed from the United States to Guatemala on April 24, 2009 to Guatemala. Exh. 6. On February 11, 2020, a San Francisco targeted fugitive operation located and arrested Mendoza at his residence and issued him a Notice of Intent to Reinstate his prior order of removal. As he expressed fear of returning to Guatemala, he was referred to the asylum office for a reasonable fear interview. On February 28, 2020, Stockton ERO received a request for release from custody on own recognizance, alternative to
DECLARATION OF ASSISTANT FIELD OFFICE DIRECTOR DANA L. FISHBURN Case No. 20-cv-02731 VC

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detention, bond or humanitarian parole from his attorney. On March 2, 2020, APSO determined that Mendoza had established a reasonable fear of returning to Guatemala and referred the case to Immigration Judge for review in withholding only proceedings. On March 27, 2020, ICE informed his attorney that his parole request was denied as he is ineligible for parole since he was not an arriving alien. On April 24, 2020, his case was scheduled for a hearing on his application for relief on April 30, 2020.
16. YCJ has provided education on COVID-19 to detainees to include the importance of handwashing, sanitizing common surfaces (including telephones before and after each use), and other health and wellness information by video for detainees. YCJ is screening all staff and vendors when they enter the facilities including body temperatures. YCJ has implemented ICE COVID-19 screening protocols, including a 14-day quarantine for new book-ins, regardless if they were transferred from another detention facility or not. YCJ has added two handwashing stations within the facility to encourage and aid in recommended handwashing. Each detainee is issued a bar of soap that may be replaced when requested by the detainee. Signs are posted in the English and Spanish languages stating that if any detainee needs extra soap, that s/he should make a request and it is free. YCJ has issued washable cloth masks to all detainees to wear.
17. According to the IHSC FMC, Mendoza does not have any medical conditions. 18. I obtained copies of the documents attached to this declaration, which are true and correct copies of documents from the above-named Petitioner’s A-File or the DHS’s databases: Exhibit 6: Warrant of Removal/Deportation (Form I-205).
Brenda Rubi Ruiz Tovar 19. Brenda Rubi Ruiz Tovar (“Ruiz”) is a 32-year-old native and citizen of Mexico, who
was admitted to the United States as a lawful permanent resident on February 20, 2002 at El Paso, Texas. On July 18, 2014, she was arrested in Fresno, California for possession of methamphetamine with intent to distribute, in violation of Title 21 USC §§ 841(a)(1) and 841(b)(1)(C). On January 11, 2016, she was convicted of charges and sentenced to 36 months in federal prison.
DECLARATION OF ASSISTANT FIELD OFFICE DIRECTOR DANA L. FISHBURN Case No. 20-cv-02731 VC

Case 3:20-cv-02731-VC Document 37-14 Filed 04/25/20 Page 7 of 8
20. On May 9, 2017, Ruiz was encountered and interviewed by an ICE officer pursuant to her incarceration at Federal Correctional Institution located in Dublin, California. She was placed in removal proceedings and charged with deportability under section 237(a)(2)(A)(iii) of the INA, as an alien convicted of an aggravated felony. Due to her aggravated felony conviction, she is subject to mandatory custody under section 236(c) of the INA. On October 3, 2018, upon completion of her criminal sentence, she was released into ICE custody. She is detained at the YCJ and currently assigned to R-Dorm. On January 29, 2019, an Immigration Judge ordered her removed to Mexico, but granted her application for the removal to be deferred; DHS appealed. On February 19, 2019, DHS filed a notice of appeal with the BIA. On July 18, 2019, BIA vacated the Immigration Judge’s decision and remanded for a new decision. On September 19, 2019 the Immigration Judge again granted relief. On October 2, 2019, DHS filed a second notice of appeal with the BIA, which is currently pending. On April 1, 2020, ICE received a request for humanitarian parole from her attorney citing medical conditions that may put her at risk due to COVID-19. ICE reviewed that request and notified her attorney that the request for release was denied due to her public safety risk.
21. As of April 24, 2020, the IHSC FMC confirmed with YCJ that there have been zero suspected cases of COVID-19 and zero confirmed cases of COVID-19 at YCJ. YCJ has the capability to conduct on-site testing of COVID-19 and has to date tested two asymptomatic ICE detainees out of an abundance of caution as one of the detainees at intake claimed to have been previously quarantined in another jail due to possible exposure to someone who may have had COVID-19 prior to arriving at YCJ, and the other ICE detainee was transported with that detainee to YCJ. They were immediately quarantined for the 14-day period and monitored, did not develop any symptoms, and have been released into the general population. YCJ is utilizing a procedure known as cohorting, which is an infection-prevention strategy that involves housing detainees together who may have been exposed to disease but are asymptomatic. Cohorting is discontinued when the 14-day incubation period completes with no new cases. Due to COVID-19, detainees are no longer doing any of the cleaning, instead, officers are doing this to ensure CDC guidelines are met.
22. According to the IHSC FMC, Ruiz does not have any medical conditions. She has received treatment for toenail fungus, eczema, rash, constipation, headaches, cough and sore throat.
DECLARATION OF ASSISTANT FIELD OFFICE DIRECTOR DANA L. FISHBURN Case No. 20-cv-02731 VC

Case 3:20-cv-02731-VC Document 37-14 Filed 04/25/20 Page 8 of 8
23. I obtained copies of the documents attached to this declaration, which are true and correct copies of documents from the above-named Petitioner’s A-File or the DHS’s databases:
Exhibit 7: U.S. District Court for the Eastern District of California Second Amended Judgement and Plea Agreement.
I affirm under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. Executed at Sacramento, California.
Dated: April 24, 2020
________________________________________ Dana L. Fishburn Assistant Field Office Director Enforcement and Removal Operations U.S. Immigration and Customs Enforcement U.S. Department of Homeland Security
DECLARATION OF ASSISTANT FIELD OFFICE DIRECTOR DANA L. FISHBURN Case No. 20-cv-02731 VC

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Case 3:20-cv-02731-VC Document 37-16 Filed 04/25/20 Page 1 of 6
U.S. Customs and Border Protection U.S. Department of Homeland Security
NNSV Query Result

03/09/2020 19:13 EDT

Generated By:

REQUEST

Request Message Detail

2L01NN60258450.QR.CAICE39T1.FBI

.PUR/C.ATN/

Page 1 of 6

Date and Time 03/09/2020 19:13:01

Seq 60258450

RESPONSE

Source

Date and Time

III

03/09/2020 19:13:01

FL01NN60258450

CAICE39T1

THIS INTERSTATE IDENTIFICATION INDEX RESPONSE IS THE RESULT OF YOUR

RECORD REQUEST FOR FBI/

INDIVIDUAL'S RECORD WILL BE

COMPLETE WHEN ALL RESPONSES ARE RECEIVED FROM THE FOLLOWING SOURCES:

FBI

- FBI/

CALIFORNIA

- STATE ID/CA37900930

END

RESPONSE

Source Nlets

Date and Time 03/09/2020 19:13:03

Status Unacknowledged
Status Unacknowledged

For Official Use Only / Law Enforcement Sensitive

Case 3:20-cv-02731-VC Document 37-16 Filed 04/25/20 Page 2 of 6
U.S. Customs and Border Protection U.S. Department of Homeland Security
NNSV Query Result

03/09/2020 19:13 EDT

Generated By:

Page 2 of 6

CR.CAIII0000 16:13 03/09/2020 00000 16:13 03/09/2020 40213 CAICE39T1 *NN60258450 TXT HDR/2L01NN60258450 ATN/ ********************** CRIMINAL HISTORY RECORD

***********************

**************************** Introduction ****************************

This rap sheet was produced in response to the following request:

State Id Number Purpose Code Attention

37900930 () C

The information in this rap sheet is subject to the following caveats:

RESTRICTED - DO NOT USE FOR EMPLOYMENT, LICENSING, PLACEMENT OR CERTIFICATION PURPOSES(CA; 2020-03-09)

DO NOT COLLECT DNA. DNA SAMPLE HAS BEEN RECEIVED, TYPED, AND UPLOADED INTO THE CAL-DNA DATA BANK. FOR INFO (510) 620-3300 OR PC296.PC296@DOJ.CA.GOV
(CA; 2018-10-15)
** PALM PRINT ON FILE AT DOJ FOR ADDITIONAL INFORMATION PLEASE E-MAIL PALM.PRINT@DOJ.CA.GOV(CA; 2018-09-03)

*************************** IDENTIFICATION ***************************

Subject Name(s)

RIVAS, ANGEL JESUS

Subject Description

FBI Number

State Id Number 37900930

Sex Male
Height 5'04"
Hair Color Black

Race White
Weight 215
Eye Color Brown

Date of Birth

Place of Birth EL SALVADOR

Citizenship EL SALVADOR

Ethnicity Hispanic Or Latino

************************** CRIMINAL HISTORY **************************

=============================== Cycle 001 ==============================

Earliest Event Date

2018-09-02

------------------------------------------------------------------------

Arrest Date

2018-09-02

Arrest Case Number

0118AD5235-010BMA268

Arresting Agency

CA0010000 CASOOAKLAND

Subject's Name

RIVAS,ANGEL JESUS

Comment(s)

ARREST/DETAINED/CITED

Charge

1

Statute INFL CRPL INJ:SPOUSE/COHAB/DATE (273.5(A) PC )

State Offense Code 38080

Severity Felony

Disposition (PROS REL-DET ONLY-VIC UNAV/DECLINE TEST)

********************** NON CRIMINAL INFORMATION **********************

************************* INDEX OF AGENCIES **************************

Agency

CASOOAKLAND; CA0010000;
For Official Use Only / Law Enforcement Sensitive

Case 3:20-cv-02731-VC Document 37-16 Filed 04/25/20 Page 3 of 6
U.S. Customs and Border Protection U.S. Department of Homeland Security
NNSV Query Result

03/09/2020 19:13 EDT

Generated By:

Page 3 of 6

* * * END OF RECORD * * * </NLETS>

RESPONSE

Source Nlets

Date and Time 03/09/2020 19:13:03

Status Unacknowledged

For Official Use Only / Law Enforcement Sensitive

Case 3:20-cv-02731-VC Document 37-16 Filed 04/25/20 Page 4 of 6
U.S. Customs and Border Protection U.S. Department of Homeland Security
NNSV Query Result

03/09/2020 19:13 EDT

Generated By:

Page 4 of 6

CR.WVFBINF00 16:13 03/09/2020 00000 16:13 03/09/2020 40211 CAICE39T1 *NN60258450 TXT HDR/2L01NN60258450 ATN/ ********************** CRIMINAL HISTORY RECORD

***********************

**************************** Introduction ****************************

This rap sheet was produced in response to the following request:

FBI Number Request Id Purpose Code Attention

NN60258450 C

The information in this rap sheet is subject to the following caveats:

This record is based only on the FBI number in your request-UCN: Because additions or deletions may be made at any time, a new
copy should be requested when needed for subsequent use.(US; 2020-03-09)

All entries contained in this FBI record are based on fingerprint comparisons and pertain to the same individual.(US; 2020-03-09)

The use of this record is regulated by law. It is provided for official use only and may be used only for the purpose requested.(US; 2020-03-09)

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - * FEDERAL DEOXYRIBONUCLEIC ACID (DNA) INDICATOR * * * * DNA NOT IN CODIS - COLLECT DNA * * * - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -(US; 2020-03-09)

*************************** IDENTIFICATION ***************************

Subject Name(s)

ZEPEDA-RIVAS, ANGEL DE JESUS RIVAS, ANGEL JESUS (AKA) ZEPEDA RIVAS, ANGEL DE JESUS ZEPEDA-RIVAS, ANGEL (AKA)

(AKA)

Subject Description

FBI Number

State Id Number CA37900930 (CA)

Miscellaneous Numbers

AR

17209646

FN

Sex Male

Race White

Height 5'04"

Weight 138

Date of Birth

Hair Color Black

Eye Color Brown

Fingerprint Pattern LSLSLSLSLSLSLSLSLS (Other)

Scars, Marks, and Tattoos

Code

Description, Comments, and Images

SC ABDOM

, SCAR ON ABDOMEN

Place of Birth El Salvador

Citizenship El Salvador Unknown

Fingerprint Images

Photo Images

Photo Image Available

Capture Date

2005-06-15

(No Photo Image Transmitted )

Photo Image Available

For Official Use Only / Law Enforcement Sensitive

Case 3:20-cv-02731-VC Document 37-16 Filed 04/25/20 Page 5 of 6
U.S. Customs and Border Protection U.S. Department of Homeland Security
NNSV Query Result

03/09/2020 19:13 EDT

Generated By:

Capture Date

2005-06-15

(No Photo Image Transmitted )

Photo Image Available

Capture Date

2019-11-21

(No Photo Image Transmitted )

Page 5 of 6

************************** CRIMINAL HISTORY **************************

=============================== Cycle 001 ==============================

Earliest Event Date

2005-06-15

------------------------------------------------------------------------

Arrest Date

2005-06-15

Arrest Case Number

34762215

Arresting Agency

TXCBP9000 CBP-OBP STATION EAGLE PASS

Charge

1

Charge Literal ALIEN INADMISSIBILITY UNDER SECTION 212

Severity Unknown

------------------------------------------------------------------------

Court Disposition

(Cycle 001)

Court Case Number

Court Agency

Charge

1

Charge Literal 8 USC 1182 REM PROC

Disposition ( REMOVED TO EL SALVADOR ON 10-4-2007)

=============================== Cycle 002 ==============================

Earliest Event Date

2007-08-17

------------------------------------------------------------------------

Arrest Date

2007-08-17

Arrest Case Number

69716857

Arresting Agency

NYCBP0200 DHS-CUST BOR PAT ROCHESTER

Charge

1

Charge Literal ALIEN REMOVAL UNDER SECTION 212 AND 237

Severity Unknown

------------------------------------------------------------------------

Court Disposition

(Cycle 002)

Court Case Number

Court Agency

Charge

1

Charge Literal ALIEN REMOVAL UNDER SECTION 212 AND 237

Disposition ( BAG AND BAGGAGE)

=============================== Cycle 003 ==============================

Earliest Event Date

2019-11-21

------------------------------------------------------------------------

Arrest Date

2019-11-21

Arrest Case Number

6324440239

Arresting Agency

CAICE1600 ICE/ERO SAN FRAN SAN FRANCISCO

Subject's Name

ZEPEDA-RIVAS,ANGEL DE JESUS

Charge

1

Charge Literal 2019-11-21 212A9CIII PREVIOUSLY ORDERED REMOVED

AND ENTERED OR ATTEMPTED TO ENTER WITHOUT BEING

ADMI

Severity Unknown

Charge

2

Charge Literal 2019-11-21 8 USC 1326 RE-ENTRY OF REMOVED ALIENS

Severity Unknown

************************* INDEX OF AGENCIES **************************

Agency Agency Email Address Address

CBP-OBP STATION; TXCBP9000;
2285 DEL RIO BLVD EAGLE PASS, TX 78852

------------------------------------------------------------------------

Agency

DHS-CUST BOR PAT; NYCBP0200;

Agency Email Address

Address

171 PATTONWOOD DR

ROCHESTER, NY 14617

------------------------------------------------------------------------

Agency

ICE/ERO SAN FRAN; CAICE1600;

Agency Email Address

Address

6TH FL

630 SANSOME ST

SAN FRANCISCO, CA 94111

* * * END OF RECORD * * * </NLETS>

For Official Use Only / Law Enforcement Sensitive

Case 3:20-cv-02731-VC Document 37-16 Filed 04/25/20 Page 6 of 6
U.S. Customs and Border Protection U.S. Department of Homeland Security
NNSV Query Result

03/09/2020 19:13 EDT

Generated By:

Page 6 of 6

For Official Use Only / Law Enforcement Sensitive

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WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org SEAN RIORDAN (SBN 255752) sriordan@aclunc.org ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: (415) 553-9319 Facsimile: (415) 553-9810

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUBI RUIZ TOVAR, LAWRENCE KURIA MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,

CASE NO. 3:20-CV-02731-VC
REPLY IN SUPPORT OF PETITIONERS-PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER

Petitioners-Plaintiffs,

JUDGE VINCE CHHABRIA

v.

DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,

Respondents-Defendants.

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BREE BERNWANGER* (NY SBN 5036397) bbernwanger@lccrsf.org TIFANEI RESSL-MOYER (SBN 319721) tresslmoyer@lccrsf.org HAYDEN RODARTE (SBN 329432) hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA 131 Steuart St #400 San Francisco, CA 94105 Telephone: (415) 814-7631
JUDAH LAKIN (SBN 307740) judah@lakinwille.com AMALIA WILLE (SBN 293342) amalia@lakinwille.com LAKIN & WILLE LLP 1939 Harrison Street, Suite 420 Oakland, CA 94612 Telephone: (510) 379-9216 Facsimile: (510) 379-9219

MARTIN S. SCHENKER (SBN 109828) mschenker@cooley.com COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111 Telephone: (415) 693-2000 Facsimile: (415) 693-2222
TIMOTHY W. COOK (Mass. BBO# 688688)* tcook@cooley.com FRANCISCO M. UNGER (Mass. BBO# 698807)* funger@cooley.com COOLEY LLP 500 Boylston Street Boston, MA 02116 Telephone: (617) 937-2300 Facsimile: (617) 937-2400

JORDAN WELLS (SBN 326491) jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568) spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA 1313 West Eighth Street Los Angeles, CA 90017 Telephone: (213) 977-9500 Facsimile: (213) 977-5297

Attorneys for Petitioners-Plaintiffs *Motion for Admission Pro Hac Vice Forthcoming

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I. INTRODUCTION Defendants’ Opposition (“Opp.”, ECF 37) almost totally avoids the key issue established
by Plaintiffs: the impossibility of achieving proper social distancing in the crowded facilities at Mesa Verde and Yuba. According to the unrebutted testimony of Dr. Greifinger, the existing configurations of these facilities, combined with the inadequate response of Defendants to date, make it inevitable that a COVID-19 outbreak will occur in both facilities (if it has not already) and that, when it does, many people will become sick and die. Defendants have failed to refute this claim, either on the merits or through their unavailing threshold defenses. The Court should grant Plaintiffs’ motion to safeguard their due process rights and mitigate the spread of the virus. II. RESPONSE TO DEFENDANTS’ EVIDENCE
A. Detainees at Mesa Verde and Yuba Face Unacceptable Risk of Illness and Death
Defendants have not presented a single medical expert to rebut Plaintiffs’ showing that Mesa Verde and Yuba, as currently configured and managed, “have a very high risk of infection, if there is not infection already.” Greifinger, ECF 5-2 ⁋ 58. Defendants do not even address Plaintiffs’ medical experts’ opinions, and barely mention the damning facts upon which the experts relied. Defendants fail to contest Plaintiffs’ comprehensive showing that “ICE’s response to the COVID-19 pandemic, both nationally and at … the Mesa Verde and Yuba County ICE detention centers, is deficient,” id. ⁋⁋ 44, 45-56; “or that these deficiencies, combined with “the limits of the infrastructure” of these facilities, mean that at current population levels COVID-19 presents a “grave and unacceptable risk of pervasive infections, leading to serious illness and death.” Id. ⁋ 59. Nor do Defendants contest that a COVID-19 outbreak would be catastrophic for detainees, staff and the surrounding communities, as “prison health is public health.” Hernandez, ECF 35 ⁋⁋ 22-28.
B. Defendants’ “Pandemic Response Requirements” are Largely Suggestions That Cannot Be Implemented at Mesa Verde and Yuba
Defendants tout ICE’s April 10, 2020 “Pandemic Response Requirements” (“PRR”) document (Bonnar, ECF 37-1, ⁋ 7; Kaiser, ECF 37-3, ⁋ 7), as though it could somehow solve the
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problems created by the facilities’ design and overcrowding. But Dr. Greifinger reviewed the PRR and concluded that its “protocols fall short of what is needed to address the threats” at Mesa Verde and Yuba. Greifinger, ECF 5-2 ⁋ 46. Moreover, “guidance” documents are hardly selfexecuting, and many of the PRR’s recommendations, including the most critical recommendations regarding social distancing, are not being followed. Id. ⁋⁋ 46, 47. Many of the measures outlined in the PRR are mere recommendations to be implemented “whenever possible” or “if practicable,” and they are “impossible to carry out given the limits of the infrastructure.” Id. ⁋⁋ 47, 47(b). Defendants’ response to this testimony is deafening silence.1
Defendants boast that there are no “suspected or confirmed” cases in either Mesa Verde or Yuba. Opp. at 1. But this claim is meaningless because ICE concedes that “many individuals infected with COVID-19 do not display symptoms” (PRR at 11), and because Defendants admit they have tested only two detainees. Bonnar, ECF 37-1 ⁋ 12; Kaiser, ECF 37-3 ⁋ 11. Besides, this claim assumes, contrary to settled law, that Plaintiffs are not entitled to relief unless they can demonstrate an active outbreak is underway. See Helling v. McKinney, 509 U.S. 25, 33 (1993).
C. Defendants Are Not Reducing Detainee Populations Defendants’ claim that “ICE has taken affirmative steps to reduce the number of detainees” at Mesa Verde and Yuba (Opp. at 4, 6) is contradicted by their own declarants. Mr. Bonnar and Ms. Kaiser state that the current number of detainees in both facilities is 427 (283 at Mesa Verde and 144 at Yuba) (ECF 37-1 ⁋ 8; ECF 37-3 ⁋ 8). This is an imperceptible decline of 1.4% since these declarants stated a total of 436 detainees on April 2 (286 at Mesa Verde and 150 at Yuba).2 This de minimis reduction reflects that, when forced through litigation to release detainees, Defendants often make new arrests to refill empty beds. Dr. Greifinger has testified without contradiction, moreover, that the 75% threshold suggested in the PRR is arbitrary and inadequate. Greifinger, ECF 5-2 ⁋ 48(a). Defendants have not tried to prove—nor could they—
1 Powerful evidence against the efficacy of ICE’s guidance is provided by ICE’s own daily tracking of “confirmed cases” inside its detention facilities nationwide. Declaration of Hayden Rodarte, submitted herewith, at ⁋ 2 and Ex. 1. The case count, which stood at 2 on March 27, was at 61 on the date the PRR was issued and in the last two weeks has quintupled to 317. Id. 2 See Exs. B and C to Rodarte at ⁋ 2 (Bonnar) and ⁋ 2 (Kaiser).
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that merely reaching 75% of total capacity in the aggregate will actually enable detainees to achieve the necessary social distancing.3
D. Social Distancing—the Critical Tool to Limit the Risk of Infection—Is Not Currently Achievable at Mesa Verde or Yuba and the other Half Measures Taken by Defendants Are Insufficient
As Dr. Greifinger states, “the importance of social distancing in preventing the spread of COVID-19 is unparalleled;” it is “the single most critical tool to limit risk of COVID infection” and, without it, “other mitigation measures are markedly less effective in halting or slowing the spread of disease.” Supplemental Declaration of Greifinger, submitted herewith, ⁋ 6; see also Greifinger, ECF 5-2 ⁋ 30. This requires detainees to maintain a distance of at least ten feet from each other while sleeping and six feet from each other at all times, including while eating, bathing, recreating, and engaging in any other activities. Greifinger, ECF 5-2, ⁋⁋ 43, 35.
Defendants have done little to enable social distancing. Ms. Kaiser is unable to identify any steps whatsoever taken at Yuba to implement any form of social distancing. At Mesa Verde, the only claimed change in practice involves “staggering” some bunks in Dorms A and B. Bonnar, ECF 37-1 ⁋ 11(f).4 Mr. Bonnar says that “the same will be done in the remaining dormitories “when space permits” (id.), but cannot explain when “space” will ever “permit,” since ICE appears to have no plan to further reduce the population at Mesa Verde. Dorm C, for example, may continue to operate at 98% - 100% of capacity. Alfaro, ECF 6-6 ⁋ 16; Dang, ECF 6-7 ⁋ 11. And at Yuba, many sleeping quarters will remain filled to capacity with fully occupied bunk beds. Ruiz Tovar, ECF 6-2 ⁋ 14; Mwaura, ECF 6-3 ⁋ 9; Zepeda, ECF 6-1 ⁋ 15.
Defendants point to no actions taken in either facility to make social distancing possible when detainees are eating, recreating, or using bathrooms. Detainees are “inches apart” when they line up for and eat food, and distancing remains impossible in bathrooms. Dang, ECF 6-7 ⁋⁋ 14, 17-18; Sanchez Nunez, ECF 6-5 ⁋⁋ 12, 14; Zepeda, ECF 6-1 ⁋ 16; Alfaro, ECF 6-6 ⁋ 22.
3 Moreover, Defendants’ aggregation of population data masks extreme overcrowding in certain sleeping quarters. For example, as noted below, at least Dorm C at Mesa Verde currently operates at 98-100% of capacity. 4 This vague claim leaves many questions unanswered, inter alia: Are detainees still sleeping in top and bottom bunks? How many bunks have actually been “staggered”?
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Defendants belatedly have taken some steps in response to the pandemic but, as Dr. Greifinger has shown, without social distancing none of these measures are effective in curbing the spread of COVID-19. For example, Defendants claim to have distributed masks to detainees, but even if true, “[t]he cloth face cover is not a substitute for social distancing.”5
In sum, the record reflects that Defendants have done remarkably little to mitigate the risk of COVID-19. Moreover, they have persistently refused to take the necessary step of reducing the populations of both facilities so that proper social distancing can be achieved.
III. ARGUMENT A. The Court Has Jurisdiction to Hear this Petition The Court should reject Defendants’ argument that it lacks jurisdiction because Plaintiffs
are physically detained outside of this District. See Opp. at 12-13. As a threshold matter, the Court need not reach the habeas immediate custodian issue, because Plaintiffs also brought their claims under 28 U.S.C. § 1331, and the Court therefore has independent jurisdiction over Plaintiffs’ claims for declaratory and injunctive relief. See Complaint ⁋ 13. See also, e.g., Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 697-99, nn.18-19 (1949); Ex Parte Young, 209 U.S. 123, 145 (1908). Defendants have not disputed that § 1331 jurisdiction over named Defendants is proper and that venue lies in this District. Given the irreparable harm facing Plaintiffs every day, Plaintiffs urge this court to avoid wading into the issue of habeas jurisdiction, and simply proceed under § 1331.
Should the Court reach the issue, habeas jurisdiction is proper.6 This Court has ruled that where, as here, “a petitioner is held in a facility solely pursuant to a contract, rather than by the state or federal government itself,” the petitioner should sue a federal immigration official, not the detention facility’s warden. Saravia v. Sessions, 280 F.Supp.3d 1168, 1185 (N.D. Cal. 2017),
5 https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html 6 Defendants’ insistence that the only proper respondents are located in the Eastern District is based on Rumsfeld v. Padilla, 542 U.S. 426, 437 (2004), but Padilla expressly reserved the question whether its rule applies in the immigration detention context. Id. at 435 n.8. Numerous judges in this District subsequently held that Padilla’s immediate custodian rule does not apply to immigration detainees. See, e.g., Carmona v. Aitken, No. 14-CV-05321JSC, 2015 WL 1737839, at *4 (N.D. Cal. 2015); Sales v. Johnson, 323 F.Supp.3d 1131, 1138 (N.D. Cal. 2017).
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aff’d, 905 F.3d 1137 (9th Cir. 2018). The ICE Field Office Director (“FOD”) is a proper respondent because he “has full authority to direct the local warden to release petitioner.” Zabadi v. Chertoff, No. C05-01796 WHA, 2005 WL 1514122 at *3 (N.D. Cal. June 17, 2005); see also Khodr v. Adduci, 697 F.Supp.2d 774, 776 (E.D. Mich. 2010) (same); Roman v. Ashcroft, 340 F.3d 314, 320-222 (6th Cir. 2003) (same). This is consistent with governing regulations, which provide that the Field Office Director is responsible for making custody determinations. See 8 C.F.R. §§ 236(d), 241.4(d).
Defendants argue that this Court’s decision in Saravia dictates that Assistant Field Office Directors Fishburn and Pham are the proper respondents because they are “most directly responsible for overseeing” Mesa Verde and Yuba. See Opp. at 14. But Saravia defines the “official with most immediate control over the facility” as the “official tasked with ensuring that [the detention facility] complies with the requirements of its contract.” Saravia, 280 F.Supp.3d at 1186. Here, Defendants’ own evidence shows that the San Francisco Field Office is responsible for oversight of Mesa Verde and Yuba, and that it directs the implementation of processes in response to COVID-19 at these facilities. See Bonnar ¶¶ 1-2, 6, 10, 14; Kaiser ¶¶ 1-2, 6, 11. No evidence in the record suggests that Pham and Fishburn are ultimately responsible for the contracts with these facilities.
Moreover, as this Court has recognized, the ICE Field Office Director may be a proper respondent particularly where, as here, “it is difficult to discern who has oversight responsibility with respect to a given contract facility.” Saravia, 280 F.Supp.3d at 1187 n.9. ICE publicly identifies the San Francisco Field Office as controlling Mesa Verde and Yuba and directs all comments and complaints regarding these facilities to be filed with the FOD in San Francisco.7 Thus, even if it could be said that individuals in the Eastern District technically have some oversight over Mesa Verde and Yuba, habeas petitioners cannot be expected to know how the Field Office has internally divided such responsibilities. See Saravia, 280 F.Supp.3d at 1187 n.9;
7 See https://www.ice.gov/detention-facility/mesa-verde-ice-processing-facility and https://www.ice.gov/detentionfacility/yuba-county-jail (Apr. 25, 2020) (identifying each facility as controlled by the “San Francisco Field Office” and specifically directing “Feedback or Complaints” to the San Francisco Field Office Director).
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Hensley v. Municipal Court, 411 U.S. 345, 350 (1973) (“we have consistently rejected interpretations of the habeas corpus statute that would suffocate the writ in stifling formalisms or hobble its effectiveness with the manacles of arcane and scholastic procedural requirements”). Accordingly, at a minimum, David Jennings is a proper respondent to Plaintiffs’ habeas petition.
B. This Action Should Not Be Stayed This action should not be stayed due to the injunction issued in Fraihat, et al. v. U.S. Immigration and Customs Enforcement, et al. Plaintiffs respectfully refer to the Court to their accompanying Opposition to Motion to Stay. C. Plaintiffs Have Established That They Are Entitled to Injunctive Relief
1. Plaintiffs are Likely to Succeed on the Merits Defendants’ first argument on the merits—that the government is prohibited by statute from releasing persons subject to “mandatory detention”—is easily refuted. Courts regularly release such persons when their continued detention violates the Constitution. See, e.g., Doe v. Barr, No. 20-cv-02141-LBR, 2020 WL 1820667, at *9-10 (N.D. Cal. Apr. 12, 2020) (release from Yuba of Petitioner detained under 8 U.S.C. § 1226(c)); Bent v. Barr, No. 19-cv-06123DMR, 2020 WL 1812850 at *4-6 (N.D. Cal. Apr. 9, 2020) (same from Mesa Verde); Bahena Ortuño v. Jennings, No. 20-cv-02064-MMC, 2020 WL 1701724, at *3-5 (N.D. Cal. Apr. 8, 2020) (four people under different detention authorities released from Mesa Verde and Yuba). Nor can Defendants refute Plaintiffs’ evidence that their failure to accommodate social distancing violates the Fifth Amendment. Defendants argue that “[t]he COVID-19 outbreak does not change [the constitutional] analysis or weaken the government’s legitimate interest in plaintiffs’ detention pending removal.” Opp. at 16. Clearly, however, the pandemic does change the analysis because, as Plaintiffs’ unrebutted expert testimony demonstrates, it renders the conditions of Plaintiffs’ confinement “excessive” in relation to the government’s interests. Jones v. Blanas, 393 F.3d 918, 932 (9th Cir. 2004). Defendants fail to explain how, in the midst of the pandemic, continuing to detain the entire Plaintiff class serves their objective of ensuring attendance at immigration hearings, especially when they concede the efficacy of “alternative,
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less harsh” substitutes for detention. Opp. at 16; see Jones at 393. Moreover, while Defendants claims Plaintiffs pose a danger, they fail to articulate what the danger is, who poses it, and why conditions of release could not mitigate it. See Mot., ECF 5 at 16-17.
Defendants cite Bahena Ortuño, where Judge Chesney granted emergency release from Mesa Verde and Yuba to Plaintiffs with medical vulnerabilities while denying, without prejudice, emergency relief for other detainees whose medical vulnerabilities were a matter of dispute. Opp. at 17. But Judge Chesney expressly reserved the issue “whether, during the COVID-19 pandemic, it is unconstitutional for respondents to detain in crowded facilities persons who are not at such increased risk.” Bahena Ortuño v. Jennings, No. 20-cv-2064-MMC, 2020 WL 1701724, *3 n.4 (N.D. Cal. Apr. 8, 2020). Two federal courts have answered the question reserved by Judge Chesney in the affirmative. See Roman v. Wolf, 2020 WL 1952656, *8-9 (issuing preliminary injunction and ordering release of hundreds of individuals to enable social distancing)8; Savino v. Souza, 2020 WL 1703844, *9 (D. Mass. Apr. 8, 2020) (certifying class of detainees). Based on Plaintiffs’ uncontested evidence regarding the facility conditions and population levels, the same answer holds here.
2. The Remaining Equities Tip Sharply in Plaintiffs’ Favor Defendants’ assertion that Plaintiffs’ claim of unconstitutional conditions is “speculative” is belied by an extensive factual record. In any event, the law does not require that Plaintiffs wait for an outbreak to happen to face a serious risk of irreparable harm. See Helling v. McKinney, 509 U.S. 25, 24. And a violation of constitutional rights, without more, constitutes irreparable harm. Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976). Finally, defendants argue that carrying out the immigration laws is in the public interest, but fail to acknowledge, much less rebut, Plaintiffs’ evidence that continued detention at high levels harms not only Plaintiffs but also the general public. Hernandez, ECF 35 ⁋⁋ 23-31.
8 Plaintiffs note that on April 26, a Ninth Circuit motions panel granted the government a temporary administrative stay of the district court’s preliminary injunction decision, pending a decision whether to grant a further stay pending appeal. Hernandez-Roman v. Wolf, 9th Cir. No. 20-55436 (Dkt. No. 5).
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Defendants’ interests can be served through other measures, but Plaintiffs’ injuries can be remedied in no other way. The balance of equities thus tips sharply in Plaintiffs’ favor.
D. The Relief Requested by Plaintiffs is Appropriate Contrary to Defendants’ assertion (Opp. at 27), Plaintiffs’ proposed order creating an individualized review process does not create a scheme that “permits class counsel to determine the order of applications for release.” Rather, it leaves it to the Court to determine the order of the release applications it wishes to consider. A similar scheme to the one proposed by Plaintiffs was recently adopted in Savino v. Souza in relation to a less populous ICE contract facility, with the court reviewing a subgroup of 10 class members each day. See e.g., No. 20-cv-10617-WGY, 2020 WL 1703844, ECF 77 (April 10, 2020); Id. at ECF 86 (“[T]he Court will continue, on an individual basis, to work through the difficult issues of bail in the present crisis.”). Regarding Defendants’ third through seventh objections to logistical aspects of Plaintiffs’ proposed order (Opp. at 27-29), while there is insufficient space to refute each one here, Plaintiffs are agreeable to reasonable amendments on the condition that they can be identified quickly and do not delay the process of releasing class members during this public health emergency.9 In the alternative, Plaintiffs would find workable, with some modifications, Defendants’ proposal “that the Court order defendants to reduce the population at MVDF and YCJ to numbers that permit social distancing.” Opp. at 29. A similar remedy was recently ordered in Roman v. Wolf, requiring the defendants “to immediately reduce the detainee population at [the Adelanto ICE Processing Center] to such a level that would allow the remaining detainees to maintain a social distance of 6 feet from each other at all times and at all places, including while sleeping, eating, showering, and going about other daily activities, except where there is a medical necessity or a safety emergency.” Roman v. Wolf, ED cv-20-768-TJH (PVCx), ECF 55 at 2 (C.D. Cal. Apr. 23, 2020) (emphasis added). Such an order would be workable here. To achieve this, Defendants would have to reduce the population in each dorm and unit at each facility; the aggregate numbers Defendants have used in this litigation obscure whether
9 For example, requiring individual detainees to mail information to class counsel would introduce unreasonable delay.
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the reductions have been concentrated in certain dorms, such that others remain too crowded for social distancing. Additionally, the Court should order that no one be exempt from consideration simply because of their statutory detention authority or their criminal history.
Without more information, Plaintiffs cannot assess precisely how many individuals must be released, but as a starting point, Plaintiff Sanchez Nuñez has stated that in her dorm, it is impossible to practice social distancing with 48 of the 100 beds occupied. See Sanchez Nuñez, ECF 6-5 ¶ 12; see also Greifinger Supp. ¶ 20. The Court need not set an endpoint to begin a systemic release process; rather, since current populations are far above safe levels, the Court can issue an order effectuating reduction in the population levels while setting periodic reporting. In such reporting, Defendants would need to present evidence specifically detailing how social distancing has become possible within each section of the facility.
Plaintiffs strenuously oppose Defendants’ proposed additional conditions of release. First, it is too early to predict when facilities of confinement will become safe relative to the moment when California may make a politically influenced decision to relax or end shelter-inplace. As Dr. Hernandez explains, even at that point, congregate settings like detention centers will remain inherently dangerous for the spread of infectious disease “even if things improved somewhat outside the detention facilities.” Hernandez ¶ 33. Second, Defendants should not be able to re-detain—without judicial review—any Plaintiff who they contend violates a condition of release or is removable. See Bahena Ortuño, Order Re: Joint Statement Regarding Release Conditions, ECF 43 at 2 (“If respondents are of the view that a petitioner has violated a condition of release or it obtains a travel document for a petitioner . . . , they may move the Court for reconsideration of the order of release.”). Prior to any Plaintiff being forced to return to either facility, the Court should require a hearing to determine whether there is justification for their return, and whether such re-detention would be constitutional. Cf. Morrissey v. Brewer, 408 U.S. 471 (1972); Ortega v. Bonnar, 415 F.Supp.3d 963, 970 (N.D. Cal. 2019). Third, aside from the requirements to abide by the shelter-in-place orders and obey all laws, the other conditions set forth by Defendants are unduly burdensome and unnecessary.
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E. Interim Relief in This Case Should Take Whatever Form Is Most Likely to Lead to Reductions in the Populations of Mesa Verde and Yuba
In response to the Court’s order (ECF 33), Plaintiffs recognize the Court’s discretion to fashion the relief it deems appropriate. Plaintiffs propose that the form of the order should correlate to the scope of the relief. If the interim relief is narrow and contemplates a series of steps that the Court wishes to assess over time, a TRO is appropriate. If, on the other hand, the interim relief is more sweeping (such as the alternative relief proposed by Defendants), then it should be more durable in the form of a preliminary injunction.

IV. CONCLUSION For the foregoing reasons, the Court should enter an order providing the interim relief

requested by Plaintiffs. Dated: April 27, 2020

Respectfully submitted,

/s/ William S. Freeman William S. Freeman Sean Riordan Angélica Salceda AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA

Bree Bernwanger Tifanei Ressl-Moyer Hayden Rodarte LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA
Judah Lakin Amalia Wille LAKIN & WILLE LLP
Jordan Wells Stephanie Padilla AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA

Manohar Raju Public Defender Matt Gonzalez Chief Attorney Francisco Ugarte Genna Ellis Beier Emilou H. MacLean OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO
Martin S. Schenker Timothy W. Cook Francisco M. Unger COOLEY LLP
Attorneys for Petitioners-Plaintiffs

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WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org SEAN RIORDAN (SBN 255752) sriordan@aclunc.org ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: (415) 553-9319 Facsimile: (415) 553-9810

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUBI RUIZ TOVAR, LAWRENCE KURIA MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,

CASE NO. 3:20-CV-02731-VC
SUPPLEMENTAL DECLARATION OF ROBERT B. GREIFINGER, MD IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER

Petitioners-Plaintiffs, JUDGE VINCE CHHABRIA

v.

DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,

Respondents-Defendants.

CASE NO. 3:20-CV-02731-VC SUPPLEMENTAL DECLARATION OF ROBER B. GREIFINGER, MD ISO MOTION FOR TRO

Case 3:20-cv-02731-VC Document 39-1 Filed 04/27/20 Page 2 of 8

BREE BERNWANGER* (NY SBN 5036397) bbernwanger@lccrsf.org TIFANEI RESSL-MOYER (SBN 319721) tresslmoyer@lccrsf.org HAYDEN RODARTE (SBN 329432) hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA 131 Steuart St #400 San Francisco, CA 94105 Telephone: (415) 814-7631
JUDAH LAKIN (SBN 307740) judah@lakinwille.com AMALIA WILLE (SBN 293342) amalia@lakinwille.com LAKIN & WILLE LLP 1939 Harrison Street, Suite 420 Oakland, CA 94612 Telephone: (510) 379-9216 Facsimile: (510) 379-9219

MARTIN S. SCHENKER (SBN 109828) mschenker@cooley.com COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111 Telephone: (415) 693-2000 Facsimile: (415) 693-2222
TIMOTHY W. COOK (Mass. BBO# 688688)* tcook@cooley.com FRANCISCO M. UNGER (Mass. BBO# 698807)* funger@cooley.com COOLEY LLP 500 Boylston Street Boston, MA 02116 Telephone: (617) 937-2300 Facsimile: (617) 937-2400

JORDAN WELLS (SBN 326491) jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568) spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA 1313 West Eighth Street Los Angeles, CA 90017 Telephone: (213) 977-9500 Facsimile: (213) 977-5297

Attorneys for Petitioners-Plaintiffs *Motion for Admission Pro Hac Vice Forthcoming

CASE NO. 3:20-CV-02731-VC SUPPLEMENTAL DECLARATION OF ROBER B. GREIFINGER, MD ISO MOTION FOR TRO

Case 3:20-cv-02731-VC Document 39-1 Filed 04/27/20 Page 3 of 8
Supplemental Declaration of Robert B. Greifinger, MD I, Robert B. Greifinger, declare as follows:
1. I am a physician who has worked in health care for prisoners for more than 30 years. I have managed the medical care for inmates in the custody of New York City (Rikers Island) and the New York State prison system. I have been an independent consultant on prison and jail health care since 1995. My clients have included the U.S. Department of Justice, Division of Civil Rights (for 23 years) and the U.S. Department of Homeland Security, Section for Civil Rights and Civil Liberties (for six years). I am familiar with immigration detention centers, having toured and evaluated the medical care in approximately 20 immigration detention centers, out of the several hundred correctional facilities I have visited during my career. I currently monitor the medical care in three large county jails for Federal Courts.
2. I provided an earlier declaration in this case, dated April 19, 2020, and now provide this supplemental declaration after reviewing materials provided by the Defendants to the Court concerning the adequacy of ICE’s response to the coronavirus pandemic at Mesa Verde Detention Center and Yuba County Jail.
3. In addition to the documents I reviewed previously, I have reviewed the following declarations filed on April 24, 2020: the declaration of Erik Bonnar concerning Mesa Verde (“Bonnar Declaration”), the declaration of Polly Kaiser concerning Yuba County Jail (“Kaiser Declaration”), and the two declarations of Capt. Jennifer Moon dated March 26, 2020 (“Moon Declarations”).
4. From the evidence I have reviewed, it is my opinion that ICE has failed to adequately comprehend and respond to the COVID-19 pandemic for those detained in ICE custody at Mesa Verde and Yuba County Jail.
5. The importance of social distancing in preventing the spread of COVID-19 is unparalleled. Social distancing is the most critical tool to limit risk of COVID infection. Without proper social distancing in all aspects of the detainee’s experience at the facility, other mitigation measures are markedly less effective in halting or slowing the spread of disease.
1 CASE NO. 3:20-CV-02731-VC SUPPLEMENTAL DECLARATION OF ROBER B. GREIFINGER, MD ISO MOTION FOR TRO

Case 3:20-cv-02731-VC Document 39-1 Filed 04/27/20 Page 4 of 8
6. The Bonnar and Kaiser Declarations hardly mention social distancing. As with ICE’s April 10 Pandemic Response Requirements, ICE continues to describe social distancing as aspirational. The Bonnar Declaration, for instance, describes that more distance between bunks will be provided at Mesa Verde “when space permits.” Social distancing in the middle of this unprecedented pandemic cannot be dependent on “resources” or “availability.” Social distancing is a necessity. Moreover, the more time which passes before the implementation of social distancing, the greater the risks of an outbreak at the facility and the greater the likely effects on those at the facility. The fact that a detention center has the “capability” to implement protective measures is irrelevant if those measures are not actually implemented.
7. The Kaiser Declaration does not mention any measures at all to increase social distancing at Yuba. The Bonnar Declaration describes only limited changes at Mesa Verde which purport to increase social distancing, but these can only be described as experimental or piecemeal. Specifically, the Bonnar Declaration vaguely describes “staggered” beds in two of the units at Mesa Verde. This is inadequate for various reasons. First, the two Mesa Verde units with staggered sleeping house a minority of those detained at the detention facility. From the reports of Plaintiffs, and from the Bonnar Declaration, even staggering beds would be impossible in units C and D, which remain effectively at capacity. There is no evidence that ICE is taking steps to release the number of people required to allow even staggered sleeping arrangements to be a possibility elsewhere in the facility. Second, staggering beds such that they are six feet apart does not guarantee that individuals will remain six feet apart in the dormitory. Even getting in and out of beds that are six feet apart from one another would mean that individuals come within the zone of six feet. Third, when considering prolonged contact in confined spaces such as cells and dormitories, six feet of distancing is not enough. Fourth, sleeping arrangements are only one part of the puzzle; social distancing must be guaranteed not just for sleeping, but also for eating, recreation, using the restroom, and all other aspects of a detainee’s day. From the declarations of Plaintiffs in this case, even in the units which have staggered sleeping arrangements, there remains inadequate social distancing not just in sleeping but in other aspects of the days of detained individuals. The Bonnar Declaration’s only other reference to social distancing, aside
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Case 3:20-cv-02731-VC Document 39-1 Filed 04/27/20 Page 5 of 8
from the staggered sleeping arrangements in two of the units, is an effort to ensure social distancing in the medical unit. This is wholly insufficient.
8. Instead of identifying necessary steps taken to ensure meaningful social distancing, the Bonnar and Kaiser Declarations emphasize other reforms such as the introduction of masks, increased education, and (at Yuba) the taking of detainees’ temperatures. These reforms are not a substitute for social distancing, and each has very limited effect without meaningful social distancing.
9. In particular, surgical and cloth masks specifically are intended to help contain infectious droplets in infected people, but they offer no protection to vulnerable people who may breathe in the droplets that are released despite the masks. For this reason, the CDC is clear that masks are not a substitute for social distancing.1
10. Similarly, educating detainees about COVID-19 without ensuring that they have the capacity to implement social distancing in their daily lives is inadequate. In a detention center, individual detainees have limitations on their ability to control where, when and how they sleep, eat and go about their lives. Without reforms to ensure that individuals can protect themselves from COVID-19, education has an inherently limited effect.
11. The Kaiser Declaration notes that Yuba County Jail is taking the temperature of detainees on a daily basis. Taking the temperature of detainees neglects the significance of asymptomatic and pre-symptomatic people who are both infected and able to transmit the infection.
12. Testing for COVID-19 at Mesa Verde and Yuba is clearly inadequate from reports that only two people at both facilities have been tested in the months since COVID-19 has been a known risk. If ICE is not testing people, they do not know if there is already an infection, and they cannot take measures to decrease the risk to others. Without substantial
1 See, e.g., CDC, “Recommendation Regarding the Use of Cloth Face Coverings, Especially in Areas of Significant Community Based Transmission,” revised Apr. 3, 2020, at https://www.cdc.gov/coronavirus/2019-ncov/preventgetting-sick/cloth-face-cover.html (last accessed Apr. 25, 2020) (“It is critical to emphasize that maintaining 6-feet social distancing remains important to slowing the spread of the virus. CDC is additionally advising the use of simple cloth face coverings to slow the spread of the virus and help people who may have the virus and do not know it from transmitting it to others.”).
3 CASE NO. 3:20-CV-02731-VC SUPPLEMENTAL DECLARATION OF ROBER B. GREIFINGER, MD ISO MOTION FOR TRO

Case 3:20-cv-02731-VC Document 39-1 Filed 04/27/20 Page 6 of 8
testing, I do not consider credible the suggestion that the lack of confirmed cases at either facility means that there is no virus that causes COVID-19 at these facilities.
13. The Declarations affirm the “capability” of testing but note that testing will be conducted when a detainee “experienc[es] symptoms consistent with COVID-19.” The CDC identifies as symptoms of COVID-19 fever, cough, shortness of breath or difficulty breathing, chills, repeated shaking with chills, muscle pain, headache, sore throat, and new loss of taste or smell.2 The Plaintiffs in this case have reported that they and others have experienced such symptoms but have not been tested. Moreover, in any population of more than 400 people over a weeks-long period, such symptoms would be expected among a significant number of people. This leads me to conclude that the screening for symptoms that require testing is severely lacking.3
14. Further, the Declarations of Kaiser and Bonnar state that the facilities “have the capability to conduct on-site testing of COVID-19.” That is doubtful and indicates a lack of understanding of how testing is accomplished. More likely, the facilities may have the capability to obtain samples and to then send those samples to a laboratory for testing, assuming they have the appropriate swabs and collection vials for transportation to the laboratory.
15. In my opinion, the Moon Declarations presented in this case are of limited utility in evaluating the effectiveness of ICE’s COVID-19 response at Mesa Verde and Yuba. Since Capt. Moon appears to be the most senior person identified by Defendants as having responsibility for ensuring the health and safety of detainees at Mesa Verde and Yuba, the gaps and omissions in her declarations are particularly troubling.
16. It is now almost one month since the Moon Declarations were signed, which is an extraordinarily long time in terms of this fast-moving pandemic. The fact of continued reliance on month-old declarations is telling about the inadequacy of ICE’s response to COVID-19; the
2 CDC, “Symptoms of Coronavirus,” revised Mar. 20, 2020, at https://www.cdc.gov/coronavirus/2019ncov/symptoms-testing/symptoms.html (last accessed Apr. 25, 2020). 3 Even the two people tested at Yuba County Jail were not tested because they were symptomatic but because of the possibility that they were exposed prior to their entry into the Yuba County Jail population. Kaiser Declaration ¶ 11.
4 CASE NO. 3:20-CV-02731-VC SUPPLEMENTAL DECLARATION OF ROBER B. GREIFINGER, MD ISO MOTION FOR TRO

Case 3:20-cv-02731-VC Document 39-1 Filed 04/27/20 Page 7 of 8
failure of the Bonnar and Kaiser Declarations to identify more significant changes at these two facilities over the past month is highly concerning.
17. The Moon Declarations are also vague and not provided by anyone who has a direct role in managing the facilities or the health of detainees. As Captain Moon writes, the ICE Health Service Corps (IHSC) provides “oversight” and “monitor[s]” the medical care at these sites, but IHSC does not provide care or have a management, supervision, implementation or enforcement role at the facilities.
18. Some of the additional flaws of the Moon Declarations are: a. The Moon Declarations state that ICE “follow[s] guidance issued by the Centers for Disease Control” without referring to any particular guidance. As elaborated above and in my prior declaration in this case, ICE does not seem to be adhering to CDC guidance in preventing the spread of COVID-19 at these two facilities. b. Most glaringly, the Moon Declarations do not acknowledge, let alone explain, how ICE is addressing the need for all detainees and staff to practice social distancing. The failure to ensure meaningful social distancing is a fatal flaw in any policy addressing COVID-19 in a congregate setting. c. The Moon Declarations miss the mark in analyzing whether an individual has possible exposure to COVID-19. In considering whether a detainee has possible exposure, ICE’s focus on “close contact” with “laboratoryconfirmed COVID-19” cases results in a dramatic undercounting of people who may be exposed to COVID-19 by contact with asymptomatic individuals or even symptomatic individuals who have not been tested; or people who have been in contact with individuals with confirmed COVID19 but without their knowledge. d. The Moon Declarations, like the Bonnar and Kaiser Declarations, do not adequately recognize the risk posed by staff, vendors and
5 CASE NO. 3:20-CV-02731-VC SUPPLEMENTAL DECLARATION OF ROBER B. GREIFINGER, MD ISO MOTION FOR TRO

Case 3:20-cv-02731-VC Document 39-1 Filed 04/27/20 Page 8 of 8
contractors who come to and go from the facility. e. The isolation and quarantine procedures outlined in the Moon
Declarations do not comply with best practice. Among other things, as noted previously, the CDC identifies “cohorting” as a suboptimal practice of group quarantining. Where cohorting can be an effective mitigation strategy in the absence of sufficient space for medical isolation, it requires adequate space for appropriate groupings, and there is no evidence that that exists or is being marshalled for this purpose at either of these facilities. 19. In light of these recognized failures, it is my expert opinion that the response to the threat of COVID-19 in Mesa Verde and Yuba is wholly insufficient to the crisis at hand. 20. It is my professional opinion that the only way to achieve meaningful social distancing in these facilities is to significantly decrease their population levels. Detainees who have provided declarations in this case have described the absolute inability to practice social distancing in sleeping, eating, recreating and using the restroom. This is true even in units that are apparently only at around 50% capacity, and months into the pandemic. This leads me to conclude that the population levels, even at 50% of capacity, are insufficient to permit social distancing. The fact that the mitigation measures are so inadequate months into the pandemic leads me to conclude that ICE will not ensure that the protection the health of detainees and the broader communities from the threat of COVID-19 without external intervention.
Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct.
th
Executed this 26 day of April 2020 in New York City, New York.
Robert B. Greifinger, M.D.
6 CASE NO. 3:20-CV-02731-VC SUPPLEMENTAL DECLARATION OF ROBER B. GREIFINGER, MD ISO MOTION FOR TRO

Case 3:20-cv-02731-VC Document 39-2 Filed 04/27/20 Page 1 of 3

WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org SEAN RIORDAN (SBN 255752) sriordan@aclunc.org ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: (415) 553-9319 Facsimile: (415) 553-9810

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUBI RUIZ TOVAR, LAWRENCE KURIA MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,
Petitioners-Plaintiffs,
v.

CASE NO. 3:20-CV-02731-VC
DECLARATION OF HAYDEN RODARTE IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER
JUDGE VINCE CHHABRIA

DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,

Respondents-Defendants.

CASE NO. 3:20-CV-02731-VC DECLARATION OF HAYDEN RODARTE ISO MOTION FOR TEMPORARY RESTRAINING ORDER

Case 3:20-cv-02731-VC Document 39-2 Filed 04/27/20 Page 2 of 3

BREE BERNWANGER* (NY SBN 5036397) bbernwanger@lccrsf.org TIFANEI RESSL-MOYER (SBN 319721) tresslmoyer@lccrsf.org HAYDEN RODARTE (SBN 329432) hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA 131 Steuart St #400 San Francisco, CA 94105 Telephone: (415) 814-7631
JUDAH LAKIN (SBN 307740) judah@lakinwille.com AMALIA WILLE (SBN 293342) amalia@lakinwille.com LAKIN & WILLE LLP 1939 Harrison Street, Suite 420 Oakland, CA 94612 Telephone: (510) 379-9216 Facsimile: (510) 379-9219

MARTIN S. SCHENKER (SBN 109828) mschenker@cooley.com COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111 Telephone: (415) 693-2000 Facsimile: (415) 693-2222
TIMOTHY W. COOK (Mass. BBO# 688688)* tcook@cooley.com FRANCISCO M. UNGER (Mass. BBO# 698807)* funger@cooley.com COOLEY LLP 500 Boylston Street Boston, MA 02116 Telephone: (617) 937-2300 Facsimile: (617) 937-2400

JORDAN WELLS (SBN 326491) jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568) spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA 1313 West Eighth Street Los Angeles, CA 90017 Telephone: (213) 977-9500 Facsimile: (213) 977-5297

Attorneys for Petitioners-Plaintiffs *Motion for Admission Pro Hac Vice Forthcoming

CASE NO. 3:20-CV-02731-VC DECLARATION OF HAYDEN RODARTE ISO MOTION FOR TEMPORARY RESTRAINING ORDER

Case 3:20-cv-02731-VC Document 39-2 Filed 04/27/20 Page 3 of 3
I, Hayden Rodarte, declare as follows: 1. I am an attorney admitted to practice in California and a member of the bar of this
Court. I am a Justice Catalyst fellow and attorney employed at the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area and co-counsel for Petitioners-Plaintiffs in this action. I submit this declaration in support of Petitioners-Plaintiffs’ Motion for Temporary Restraining Order. I have personal knowledge of the facts stated in this declaration.
2. Attached as Exhibit A hereto are a table of data and an accompanying line graph showing the number of COVID-19 cases among individuals in U.S. Immigration and Customs Enforcement (“ICE”) detention per day, as reported by ICE at https://www.ice.gov/coronavirus (click on “Confirmed Cases”). This webpage is updated on a nearly daily basis, sometimes multiple times per day, and ICE provides a date- and time-stamp each time it updates this data. I have verified all of the historical data for dates prior to April 24, 2020 using a search tool located at www.web.archive.org, popularly referred to as the “wayback machine.” The accompanying line graph correctly represents the data appearing in the table.
3. Attached as Exhibit B to this declaration is a true and correct copy of the declaration of Erik Bonnar filed at ECF No. 29-1 in Bahena Ortuño v. Jennings, No. 3:20-cv02064-MMC (N.D. Cal.) (“Bahena Ortuño”).
4. Attached as Exhibit C to this declaration is a true and correct copy of the declaration of Polly E. Kaiser filed at ECF No. 29-2 in Bahena Ortuño.
I declare under penalty of perjury that the foregoing is true and correct. Executed this 26th day of April 2020 in Oakland, California.
/s/ Hayden Rodarte Hayden Rodarte
1 CASE NO. 3:20-CV-02731-VC DECLARATION OF HAYDEN RODARTE ISO MOTION FOR TEMPORARY RESTRAINING ORDER

Case 3:20-cv-02731-VC Document 39-3 Filed 04/27/20 Page 1 of 2

Date 3/27/20 3/28/20 3/29/20 3/30/20
3/31/20 4/1/20 4/2/20 4/4/20 4/6/20 4/7/20 4/8/20 4/9/20
4/10/20 4/11/20 4/12/20 4/13/20 4/14/20 4/15/20 4/16/20 4/17/20 4/18/20 4/19/20 4/20/20 4/21/20 4/22/20 4/23/20 4/24/20 (last checked 4/26/20 12:11 PST)

Number of Confirmed COVID-19 Cases Among ICE Detainees 2 2 2 4
4 4 6 8 13 19 32 48 61 61 61 72 77 89 100 124 124 124 220 253 287 297 317

Case 3:20-cv-02731-VC Document 39-3 Filed 04/27/20 Page 2 of 2

CCaasese33:2:200-c-vc-v0-022076341-M-VMCC DDooccuummeennt t3299-4-1 FFileiledd0044/2/072/2/200 PPaaggee11oof f33

1 DAVID L. ANDERSON (CABN 149604) United States Attorney
2 SARA WINSLOW (DCBN 457643) Chief, Civil Division
3 Assistant United States Attorney

4

450 Golden Gate Avenue, Box 36055

San Francisco, California 94102-3495

5

Telephone: (415) 436-6925

FAX: (415) 436-6748

6

sara.winslow@usdoj.gov

7 Attorneys for Respondents

8 UNITED STATES DISTRICT COURT
9 NORTHERN DISTRICT OF CALIFORNIA
10 SAN FRANCISO DIVISION
11

12 ORTUNO, et al.,
13
14 v.
15 JENNINGS, et al.,
16
17

Petitioners, Respondents.

) No. 20-2064 MMC ) ) SUPPLEMENTAL DECLARATION OF ) ERIK BONNAR IN SUPPORT OF ) RESPONDENTS’ OPPOSITION TO ) MOTION FOR TEMPORARY ) RESTRAINING ORDER ) )

18

I, Erik Bonnar, declare as follows:

19

1. I make this declaration to supplement and update the declaration I submitted in this case March

20

30, 2020. The facts in this declaration are based on my personal knowledge, consultation with

21

other ICE personnel, and review of official documents and records maintained by the agency and

22

Department and other relevant sources obtained during the regular course of business. I provide

23

this declaration based on the best of my knowledge, information, belief, and reasonable inquiry

24

for the above captioned case.

25

26

2. From March 11, 2020 to present, ICE has reduced the MVDF detainee population from 355 to

286, approximately twenty percent. At present, MVDF houses 56 female ICE detainees in one 27
dormitory unit (with the capacity to hold 100 detainees) and 230 male ICE detainees divided into 28

DECLARATION OF ERIK BONNAR No. 20-2064 MMC

CCaasese33:2:200-c-vc-v0-022076341-M-VMCC DDooccuummeennt t3299-4-1 FFileiledd0044/2/072/2/200 PPaaggee22oof f33

1

three separate dormitory units depending on their criminal history risk classification levels, and 3

2

male detainees housed in separate units due to COVID-19 protective screening measures. ICE

3

will continue to evaluate cases that may be high-risk for COVID-19, and as more relevant

4

specific information is provided on any particular detainee, release may be appropriate provided

5

they are not mandatory custody, a danger to the community, or deemed a flight risk where

6

measures for alternatives to detention are inappropriate.

7

3. ICE ERO management staff, including myself, conference daily over MVDF and issues

8

stemming from COVID-19. Additionally, my staff is in daily contact with the Facility

9

Administrator and his staff, including medical, at MVDF over the health and safety of detainees.

10

Given the ICE protocols, MVDF staff and ICE officers are taking appropriate measures to ensure

11

the health safety of detainees and will continue to do so. My staff is on-site daily and can

12

address any issues, as presented or direct, to ensure the ICE protocols are in place and to report

13

back any issues they may observe that need to be addressed by me or my staff.

14

4. As the IHSC declaration of Jennifer Moon reflects, MVDF has implemented ICE COVID-19

15

screening protocols, including the 14-day quarantine for new detainees who may be

16

asymptomatic but traveled to certain areas at high-risk for COVID-19. At present, MVDF has

17

three detainees who meet that criteria and are currently quarantined from the general population.

18

MVDF medical staff is also medically screening for COVID-19 during intake and 14-day

19

physical exams. MVDF medical staff will examine any detainee who submits a request to see

20

medical due to symptoms consistent with COVID-19. MVDF has the capability to conduct on-

21

site testing of COVID-19; to date, MVDF medical staff has not conducted any testing for

22

COVID-19 since they have not encountered any detainee experiencing symptoms consistent with

23

COVID-19.

24

25

26

27

28
DECLARATION OF ERIK BONNAR No. 20-2064 MMC

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1 5. On April 2, 2020, Plaintiff Roxana Del Carmen Trigueros-Acevedo was released on parole from

2

ICE custody after posting bond in the amount of $4,000.00. Ms. Espinoza Ayala was also

3

released on parole from ICE custody after posting bond in the same amount.

4

I declare under penalty of perjury that the foregoing is true and correct. Executed on April 2,

5 2020, at San Francisco, California.

6

_______________________

7

ERIK BONNAR

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
DECLARATION OF ERIK BONNAR No. 20-2064 MMC

CCaasese33:2:200-c-vc-v0-022076341-M-VMCC DDooccuummeennt t3299-5-2 FFileiledd0044/2/072/2/200 PPaaggee11oof f33

1 DAVID L. ANDERSON (CABN 149604) United States Attorney
2 SARA WINSLOW (DCBN 457643) Chief, Civil Division
3 Assistant United States Attorney

4

450 Golden Gate Avenue, Box 36055

San Francisco, California 94102-3495

5

Telephone: (415) 436-6925

FAX: (415) 436-6748

6

sara.winslow@usdoj.gov

7 Attorneys for Respondents

8 UNITED STATES DISTRICT COURT
9 NORTHERN DISTRICT OF CALIFORNIA
10 SAN FRANCISO DIVISION
11

12 ORTUNO, et al.,
13
14 v.
15 JENNINGS, et al.,
16
17

Petitioners, Respondents.

) No. 20-2064 MMC ) ) SUPPLEMENTAL DECLARATION OF ) POLLY E. KAISER IN SUPPORT OF ) RESPONDENTS’ OPPOSITION TO ) MOTION FOR TEMPORARY ) RESTRAINING ORDER ) )

18

I, Polly E. Kaiser, declare as follows:

19

20

1. I make this declaration to supplement and update the declaration previously submitted on March

21

30, 2020. The facts in this declaration are based on my personal knowledge, consultation with

22

other ICE personnel and review of official documents and records maintained by the agency and

23

Department and other relevant sources obtained during the regular course of business. I provide

24

this declaration based on the best of my knowledge, information, belief and reasonable inquiry

25

for the above referenced case.

26

27

28
DECLARATION OF POLLY E. KAISER No. 20-2064 MMC

CCaasese33:2:200-c-vc-v0-022076341-M-VMCC DDooccuummeennt t3299-5-2 FFileiledd0044/2/072/2/200 PPaaggee22oof f33

1 2. From March 11, 2020 to present, in addition to ICE reducing its YCJ detainee population by

2

approximately ten percent, YCJ county population has been significantly reduced as well and

3

YCJ continues to significantly reduce its overall population. At present, there are 9 female ICE

4

detainees and 141 male ICE detainees at YCJ. Of the 150 ICE detainees, four ICE detainees,

5

who have pre-existing conditions and deemed high-risk for COVID-19 based on CDC

6

guidelines, have been removed from general population as a preventive measure and relocated to

7

another facility where they are more closely monitored 24/7, including having their temperatures

taken twice a day. The four ICE detainees are asymptomatic for COVID-19. In addition, one 8

male ICE detainee is housed separately in the YCJ medical unit and monitored 24/7 due to his 9
recent medical procedure unrelated to COVID-19. ICE will continue to evaluate cases that may 10
be high-risk for COVID-19, and as more relevant specific information is provided on any
11 particular detainee, release may be appropriate provided they are not mandatory custody, a

12 danger to the community, or deemed a flight risk where measures for alternatives to detention are

13

inappropriate.

14

15

3. YCJ has continued to implement processes and protocols to protect the detainee population.

16

YCJ has added instructions on hand washing, sanitizing common surfaces and other health and

17

wellness information by video for detainees. YCJ is ensuring the entire facility, to include the

18

housing units, are sanitized twice daily. Additional cleaning supplies have been offered to

19

detainees who have been educated on how to sanitize the phones for common use before and

20

after each use. YCJ has added two handwashing stations within the facility to encourage and aid

21

in recommended handwashing. YCJ continues to identify additional ways to safeguard ICE

22

detainees and are working on a social distancing protocol. ICE ERO management staff,

23

including myself, conference daily over YCJ and any issues stemming from COVID-19.

24

Additionally, my staff is in daily contact with YCJ management to include medical over the

25

health and safety of detainees. Given the ICE protocols, YCJ staff and ICE officers are taking

appropriate measures to ensure the health and safety of detainees and will continue to do so. My 26
staff is on-site daily and is able to address issues as presented and report back any issues they 27
may observe that need to be addressed by my staff or by me. 28

DECLARATION OF POLLY E. KAISER No. 20-2064 MMC

CCaasese33:2:200-c-vc-v0-022076341-M-VMCC DDooccuummeennt t3299-5-2 FFileiledd0044/2/072/2/200 PPaaggee33oof f33

1

2 4. As the IHSC declaration of Jennifer Moon reflects, YCJ has implemented ICE COVID-19

3

screening protocols, including a 14-day quarantine for new book-ins unless the individual was

4

transferred from another detention facility and had been in custody 14 days or longer. At

5

present, YCJ has no ICE detainees who meet that criteria and none are currently quarantined

6

from the general population for that reason. As mentioned above, four ICE detainees have been

7

removed from general population and transferred to another facility to be more closely

monitored 24/7 due to their pre-existing medical conditions which makes them at high-risk for 8
COVID-19. YCJ medical staff is also screening for COVID-19 during all in-take and 14 day 9
physical exams. YCJ is also affirmatively taking the temperatures of all detainees on a daily 10
basis in every housing unit. Should an individual have a temperature of 100.4, or above, they 11
will immediately be sent to the medical unit for additional assessment and will be housed
12 separately in the medical unit, continue to be monitored and be provided care as appropriate to

13

their condition. In addition, YCJ medical staff will examine any detainee who submits a medical

14

request due to symptoms consistent with COVID-19. YCJ has the capability to conduct on-site

15

testing of COVID-19; to date, YCJ medical staff has not conducted any testing for COVID-19

16

since they have not encountered any individual experiencing symptoms consistent with COVID-

17

19.

18

19

I declare under penalty of perjury that the foregoing is true and correct. Executed on April 2,

20 2020, at San Francisco, California.

21

_______________________

POLLY E. KAISER

22

23

24

25

26

27

28
DECLARATION OF POLLY E. KAISER No. 20-2064 MMC

 
 Case 3:20-cv-02731-VC Document 40 Filed 04/27/20 Page 1 of 10

WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org SEAN RIORDAN (SBN 255752) sriordan@aclunc.org ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: (415) 553-9319 Facsimile: (415) 553-9810

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUBI RUIZ TOVAR, LAWRENCE KURIA MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,
Petitioners-Plaintiffs,

CASE NO. 3:20-CV-02731-VC
OPPOSITION TO MOTION TO STAY IN LIGHT OF FRAIHAT (ECF NO. 38)
JUDGE VINCE CHHABRIA

v.

DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,

Respondents-Defendants.

CASE NO. 3:20-CV-02731-VC OPPOSITION TO MOTION TO STAY IN LIGHT OF FRAIHAT

Case 3:20-cv-02731-VC Document 40 Filed 04/27/20 Page 2 of 10

BREE BERNWANGER* (NY SBN 5036397) bbernwanger@lccrsf.org TIFANEI RESSL-MOYER (SBN 319721) tresslmoyer@lccrsf.org HAYDEN RODARTE (SBN 329432) hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA 131 Steuart St #400 San Francisco, CA 94105 Telephone: (415) 814-7631
JUDAH LAKIN (SBN 307740) judah@lakinwille.com AMALIA WILLE (SBN 293342) amalia@lakinwille.com LAKIN & WILLE LLP 1939 Harrison Street, Suite 420 Oakland, CA 94612 Telephone: (510) 379-9216 Facsimile: (510) 379-9219

MARTIN S. SCHENKER (SBN 109828) mschenker@cooley.com COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111 Telephone: (415) 693-2000 Facsimile: (415) 693-2222
TIMOTHY W. COOK (Mass. BBO# 688688)* tcook@cooley.com FRANCISCO M. UNGER (Mass. BBO# 698807)* funger@cooley.com COOLEY LLP 500 Boylston Street Boston, MA 02116 Telephone: (617) 937-2300 Facsimile: (617) 937-2400

JORDAN WELLS (SBN 326491) jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568) spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA 1313 West Eighth Street Los Angeles, CA 90017 Telephone: (213) 977-9500 Facsimile: (213) 977-5297

Attorneys for Petitioners-Plaintiffs *Motion for Admission Pro Hac Vice Forthcoming

CASE NO. 3:20-CV-02731-VC OPPOSITION TO MOTION TO STAY IN LIGHT OF FRAIHAT

Case 3:20-cv-02731-VC Document 40 Filed 04/27/20 Page 3 of 10
I. INTRODUCTION Defendants seek to stay this action, including Plaintiffs-Petitioners’ motion for
emergency preliminary relief, based on the preliminary injunction issued in Faour Abdallah Fraihat, et al v. U.S. Immigration and Customs Enforcement, et al, Case No. 5:19-cv-01546JGB-SHK (C.D. Cal.). The Court should not grant the requested stay for any of several reasons.
First, the parties in the two cases are different. The subclasses in Fraihat are nationwide in scope but include only medically vulnerable people and people with disabilities, making those subclasses both broader and narrower than the putative class in this case of all ICE detainees at Mesa Verde ICE Processing Facility (“Mesa Verde”) and Yuba County Jail (“Yuba”).
Second, the issues in the two cases are different. Fraihat addresses ICE’s defective policies in responding to COVID-19 nationwide and requires implementation of new policies but does not require either social distancing or release. In Fraihat, “[t]he class’s interest is not in release” and it “do[es] not seek any individualized determination by this Court of whether they are entitled to release” but asks “whether ICE’s systematic actions … in response to COVID-19 amount to violations of the class members’ constitutional or statutory rights.” (Fraihat ECF 132, Order at 26 n.22, 27.) By contrast, this action challenges ICE’s failure to allow for social distancing at two specific facilities and specifically seeks immediate release of class members to enable the necessary social distancing. This remedy is in harmony with, but distinct from, Fraihat’s precatory language instructing ICE to consider the releasing detainees.
Third, even if the minimum requirements of the first-to-file rule were met, the Court should exercise its discretion to deny the stay given that the ongoing COVID-19 pandemic imperils every ICE detainee at Mesa Verde and Yuba and that Fraihat does not require social distancing or release of any class members from those facilities. II. FACTUAL AND PROCEDURAL BACKGROUND
On August 19, 2019, several ICE detainees and two organizations filed Fraihat as a putative class action challenging conditions within ICE detention centers around the country. (Fraihat ECF 1, Complaint for Declaratory and Injunctive Relief.) Specifically, the Fraihat
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complaint challenges (1) ICE’s failure to monitor and oversee medical and mental health care, (2) ICE’s failure to monitor and oversee segregation, and (3) ICE’s failure to monitor and oversee disability-related practices. The Fraihat complaint claims these practices violate the Due Process Clause of the Fifth Amendment and the Rehabilitation Act.
On March 24, 2020, the Fraihat plaintiffs filed emergency motions for a preliminary injunction and certification of a nationwide subclasses based on the threat COVID-19 posed to putative class members. (Fraihat ECF 81, 83.) The Fraihat plaintiffs sought an order requiring ICE, inter alia, to identify “all people in ICE custody with one or more [COVID-19] Risk Factors,” assess precautions that should be implemented to ensure the health and safety of such persons during the COVID-19 pandemic, “release individuals with one or more Risk Factors,” and modify its existing COVID-19 protocols. (Fraihat ECF 81.) The Fraihat plaintiffs sought provisional certification of two subclasses of people in ICE custody: (1) people who have a Risk Factor placing them at heightened risk from COVID-19 and (2) people whose disabilities place them at heightened risk from COVID-19. The Fraihat defendants filed an opposition to these motions and the plaintiffs filed reply briefs.
On April 20, 2020, Judge Bernal in the Central District of California issued an order granting the Fraihat plaintiffs’ motion to certify subclasses and motion for a preliminary injunction. Judge Bernal certified the risk factor and disability subclasses. (Fraihat ECF 132, Order at 21-22). Judge Bernal then “narrowly tailored” the preliminary injunction order to address “[t]he most systemic [ICE] deficiencies,” which he described as:
(1) lack of any requirement, to the Court’s knowledge, that Field Offices make individualized custody determinations for at risk detainees, as opposed to a mere request that they do so; (2) discrepancy between the risk factors identified in the Subclass definition and the risk factors triggering individualized custody determinations under the Docket Review Guidance; (3) lack of a performance standard for the safe detention of at risk detainees pending custody decisions, or in the event ICE deems detainees ineligible for release; (4) inconstant adherence to ICE detention standards pertinent to COVID-19. (Fraihat Order at 37.) Judge Bernal also ordered as follows: • Defendants shall provide ICE Field Office Directors with the Risk Factors
identified in the Subclass definition;
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• Defendants shall identify and track all ICE detainees with Risk Factors. Most should be identified within ten days of this Order or within five days of their detention, whichever is later;
• Defendants shall make timely custody determinations for detainees with Risk Factors, per the latest Docket Review Guidance. In making their determinations, Defendants should consider the willingness of detainees with Risk Factors to be released, and offer information on post-release planning, which Plaintiffs may assist in providing;
• Defendants shall provide necessary training to any staff tasked with identifying detainees with Risk Factors, or delegate that task to trained medical personnel;
• The above relief shall extend to detainees with Risk Factors regardless of whether they have submitted requests for bond or parole, have petitioned for habeas relief, have requested other relief, or have had such requests denied;
• Defendants shall promptly issue a performance standard or a supplement to their Pandemic Response Requirements (“Performance Standard”) 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;
• Defendants shall monitor and enforce facility-wide compliance with the Pandemic
(Id. at 38-39.)
On April 20, 2020, Plaintiffs filed this action on behalf of a putative class and subclasses
of immigration detainees at Mesa Verde and Yuba. Plaintiffs concurrently filed motions for
provisional class certification and for a temporary restraining order. Plaintiffs’ motions seek the
release of putative class members because the lack of social distancing at the facilities will not
adequately protect the class members.
On April 25, 2020, Defendants filed a motion to stay this action in light of Fraihat. (ECF
38.)
III. STANDARD FOR A STAY UNDER THE FIRST-TO-FILE RULE
The burden is on the moving party to show that a stay is appropriate. See Clinton v.
Jones, 520 U.S. 681, 708 (1997). “The first-to-file rule may be applied when a complaint
involving the same parties and issues has already been filed in another district.” Kohn Law Grp.,
Inc. v. Auto Parts Mfg. Mississippi, Inc., 787 F.3d 1237, 1240 (9th Cir. 2015) (quotations
omitted). Courts analyze three factors in determining whether the rule may be applied: (1)
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Case 3:20-cv-02731-VC Document 40 Filed 04/27/20 Page 6 of 10
chronology of the lawsuits, (2) similarity of the parties, and (3) similarity of the issues. Id. In a class action, “the classes, and not the class representatives, are compared.” Adoma v. University of Phoenix, 711 F.Supp.2d 1142, 1147 (E.D. Cal. 2010).
Where the first-to-file rule does apply, “it is discretionary.” Alltrade Inc. v. Uniweld Products, Inc., 946 F.2d 622, 628 (9th Cir. 1991). Accordingly, district court judges may “dispense with the first-filed principle for reasons of equity.” Id. IV. ARGUMENT
A. The First-to-File Rule Does Not Apply Because the Parties and Issues are not Substantially Similar 1. The Parties are Different
The classes at issue in Fraihat and in this action are not substantially similar. In a class action, “the classes, and not the class representatives, are compared.” Adoma, 711 F.Supp.2d at 1147. The two Fraihat subclasses include only ICE detainees with articulated risk factors or disabilities. Fraihat Order at 21-22. By contrast, the proposed class here includes all Mesa Verde and Yuba detainees in ICE custody. Defendants fail to explain how the parties are substantially similar given that the defining characteristics of Fraihat subclass members (particular COVID19 risk factors and disability) are absent in many—if not most—of the putative class members in this action. See, e.g., Decl. Luciano Mendoza Jeronimo, ECF 6-4, at ¶ 7 (“I currently have no medical conditions. . . .”).
Though there may be some crossover between the classes, Defendants have come forward with no information suggesting that the class members in Fraihat and this case are substantially identical. Defendants have access to detainees’ medical records and are uniquely positioned to assert whether all plaintiffs here fall within the Fraihat class. See Bonnar, ECF 371 at ¶¶12-14; Kaiser, ECF 37-3, at ¶¶10-12. Defendants are also required to identify serious mental health issues that may constitute disabilities. See Franco-Gonzalez v. Holder, Case No.
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Case 3:20-cv-02731-VC Document 40 Filed 04/27/20 Page 7 of 10
10-cv-02211 DMG, 2014 WL 5475097, *1 (C.D. Cal., Oct. 29, 2014) (requiring the Department of Homeland Security to screen all detainees in California for “a serious mental disorder or defect that may render them incompetent to represent themselves in immigration proceedings”). Defendants accordingly fail to show that the parties in the two cases are sufficiently similar.
2. The Issues are Different The issues in the two cases are not substantially similar. While both cases broadly implicate the Constitution’s Due Process Clause and the COVID-19 pandemic, as in other instances where courts have declined to apply the first-to-file rule, “the two cases … require[] resolution of differing legal issues.” Lovell v. United Airlines, 728 F.Supp.2d 1096, 1108 (D. Haw. 2010) (citing Cedars–Sinai Medical Center v. Shalala, 125 F.3d 765 (9th Cir.1997). In this action, the Court must resolve whether due process prohibits the detention of ICE detainees at Mesa Verde and Yuba in conditions that make social distancing impossible. See Complaint at pp. 32-34. The Fraihat court, by contrast, addressed “Defendants’ system-wide response” and “nationwide measures … in response to COVID-19 to protect the health of vulnerable immigration detainees” nationwide. Fraihat Order at 23. Thus, the questions going to the plaintiffs’ likelihood of success in each case are distinct. The questions concerning remedy are also distinct. In this case, Plaintiffs and the putative class seek release from unsafe conditions that do not allow social distancing. See Complaint, ECF 1 at pp. 32-34. But in Fraihat, “[t]he class’s interest is not in release,” Fraihat Order at 26 n.22, and “Plaintiffs do not seek any individualized determination by this Court of whether they are entitled to release” but “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,” id. at 27. Fraihat did not order anyone released, nor did it contemplate such a remedy. Instead it requires ICE to make “timely custody determinations for detainees with Risk Factors.” Fraihat Order at 38. Defendants are simply wrong in asserting that the Fraihat relief “encompasses
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Case 3:20-cv-02731-VC Document 40 Filed 04/27/20 Page 8 of 10
further reduction of the MVDF and Yuba populations to allow for greater social distancing and that also requires implementation of additional precautions to protect all detainees from COVID19.” (Opp. at 11.)
J.P. v. Sessions, Case No. 18-06081 JAK, 2019 WL 6723686 (C.D. Cal. Nov. 5, 2019) illustrates why the claims here not substantially similar. In J.P., the denied the government’s motion to dismiss under the first-to-file rule, certified a provisional class and granted injunctive relief in a class action challenging the government’s family separation policies. The court ruled that “the application of the first-to-file rule … would not sufficiently serve the requisite interests of efficiency and economy at are the basis for the rule,” even though the class raised similar issues and was comprised of the same members as a prior class already certified in the Southern District of California (the “Ms. L case”). Id. at *13. The Southern District had already certified a nearly identical class in Ms. L—namely, “all adult parents who are, or will be, detained in immigration custody, and whose minor children have been, or will be, separated from them pursuant to the family separation policy.” Id. at * 12. The Central District found the two suits to be generally “similar,” the classes to be virtually identical, and some of the relief sought to be identical. But the court found “the ‘central questions’ presented by the two cases are distinct”: in Ms. L the main issue was “whether the family separation process violated the Constitution,” while in J.P. the main issue was “whether Defendants’ alleged failure to provide sufficient mental health and trauma services to individuals separated pursuant to the [family separation] policy violates the Constitution.” Id. at *12. Thus, “a successful defense in one action may not determine the outcome of the other,” id., and the first-to-file rule should not apply. The Court should reach a similar conclusion here given that this case and Fraihat concern distinct “central questions” and distinct remedies.
Defendants’ authority on class actions is materially distinguishable given that the claims in Fraihat and the claims here turn on distinct facts. See Henry v. Home Depot, No. 14-CV04858-JST, 2016 WL 4538365, at *4 (N.D. Cal. Aug. 31, 2016) (“Henry and Bell now present the exact same legal issue: whether Home Depot’s midnight clock-out policy deprived its
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Case 3:20-cv-02731-VC Document 40 Filed 04/27/20 Page 9 of 10
employees of overtime wages in violation of California law.”); Clardy v. Pinnacle Foods, Case No. 16-CV-04385-JST, 2017 WL 57310, at *3 (N.D. Cal. Jan. 5, 2017) (“[B]oth actions allege that Defendant misrepresented the ingredients contained in the products at issue by labeling the boxes they are sold in with either ‘Real Ingredients’ or ‘Nothing Artificial,’ even though Defendant knew that artificial and/or unnatural ingredients were used.”); Bodley v. Whirlpool Corp., Case No. 17-CV-05436-JST, 2018 WL 2357640, *3 (N.D. Cal. May 24, 2018) (“[T]he cases are clearly based on an identical core of factual allegations.”). In contrast to these cases, the facts underlying the claims in Fraihat and the facts underlying Plaintiffs’ claims are distinct. Fraihat turned on ICE’s nationwide policies (see, e.g., Fraihat Order at 23 (the “shared factual question is therefore what, if any, nationwide measures ICE has taken in response to COVID19”) while Plaintiffs’ claims turn on the actual congregate environments at Mesa Verde and Yuba. Defendants have not shown that the issues in the two cases are substantially similar.
B. Even if the First-to-File Rule Applies, the Court Should Not Stay this Action Given the Urgent Need to Create Social Distancing at Mesa Verde and Yuba
The Court has discretion to decline to stay this case, even if it finds that Defendants have carried their burden of showing the first-to-file rule applies. As Plaintiffs explain in great detail in their other filings, there is a need to swiftly address the unconstitutional risks at Mesa Verde and Yuba through judicially mandated social distancing. Fraihat will not address this unique and urgent need. Notably, the Fraihat plaintiffs sought to incorporate social distancing into its remedy. (Fraihat ECF 81 at 3 (seeking an order that would “assur[e] that all [ICE detainees with articulated risk factors] have timely access to … social distancing measures”)). But the order in Fraihat does not require social distancing at either of the facilities that are at issue in this action. Moreover, Fraihat’s relief only applies to ICE detainees with articulated risk factors and disabilities and does not address the significant risks COVID-19 poses to other ICE detainees.
For similar reasons, there is no “efficiency rationale” to the stay Defendants’ request. See Henry, 2016 WL 4538365, at *4 (noting “efficiency rationale of the first-to-file rule by conserving judicial resources and preventing duplicative litigation”). If this Court stays
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Plaintiffs’ motions, judges in the Northern District of California will continue to have to address

the lack of social distancing at Mesa Verde and Yuba and requests for release in a piecemeal fashion in individual actions. See Pride v. Correa, 719 F.3d 1130, 1137 (9th Cir. 2013) (holding that an individual inmate’s claim for injunctive relief for individual medical care was not

precluded by class action which sought systemic reform relating to same general subject matter); Parsons v. Ryan, 754 F.3d 657, 677–78 (9th Cir. 2014) (same). Accordingly, even assuming the first-to-file requirements were satisfied, a stay would be inappropriate given the equities presented by the unique circumstances of this case.

V. CONCLUSION

Defendants’ motion for a stay should be denied, because they fail to satisfy two of the requirements under the first-to-file rule and in any event because the equities require an urgent and effective remedy for Mesa Verde and Yuba detainees.

Dated: April 27, 2020

Respectfully submitted,
/s/ William S. Freeman William S. Freeman Sean Riordan Angélica Salceda AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA

Bree Bernwanger Tifanei Ressl-Moyer Hayden Rodarte LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA
Judah Lakin Amalia Wille LAKIN & WILLE LLP
Jordan Wells Stephanie Padilla Michael Kaufman AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA

Manohar Raju Public Defender Matt Gonzalez Chief Attorney Francisco Ugarte Genna Ellis Beier Emilou H. MacLean OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO
Martin S. Schenker Timothy W. Cook Francisco M. Unger COOLEY LLP
Attorneys for Petitioners-Plaintiffs

8 CASE NO. 3:20-CV-02731-VC OPPOSITION TO MOTION TO STAY IN LIGHT OF FRAIHAT

 
 Case 3:20-cv-02731-VC Document 41 Filed 04/27/20 Page 1 of 10

WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org SEAN RIORDAN (SBN 255752) sriordan@aclunc.org ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: (415) 553-9319 Facsimile: (415) 553-9810

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUBI RUIZ TOVAR, LAWRENCE KURIA MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,
Petitioners-Plaintiffs,

CASE NO. 3:20-CV-02731-VC
REPLY IN SUPPORT OF PETITIONERS-PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
JUDGE VINCE CHHABRIA

v.

DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,

Respondents-Defendants.

CASE NO. 3:20-CV-02731-VC REPLY ISO PETITIONERS-PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Case 3:20-cv-02731-VC Document 41 Filed 04/27/20 Page 2 of 10

BREE BERNWANGER* (NY SBN 5036397) bbernwanger@lccrsf.org TIFANEI RESSL-MOYER (SBN 319721) tresslmoyer@lccrsf.org HAYDEN RODARTE (SBN 329432) hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA 131 Steuart St #400 San Francisco, CA 94105 Telephone: (415) 814-7631
JUDAH LAKIN (SBN 307740) judah@lakinwille.com AMALIA WILLE (SBN 293342) amalia@lakinwille.com LAKIN & WILLE LLP 1939 Harrison Street, Suite 420 Oakland, CA 94612 Telephone: (510) 379-9216 Facsimile: (510) 379-9219

MARTIN S. SCHENKER (SBN 109828) mschenker@cooley.com COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111 Telephone: (415) 693-2000 Facsimile: (415) 693-2222
TIMOTHY W. COOK (Mass. BBO# 688688)* tcook@cooley.com FRANCISCO M. UNGER (Mass. BBO# 698807)* funger@cooley.com COOLEY LLP 500 Boylston Street Boston, MA 02116 Telephone: (617) 937-2300 Facsimile: (617) 937-2400

JORDAN WELLS (SBN 326491) jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568) spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA 1313 West Eighth Street Los Angeles, CA 90017 Telephone: (213) 977-9500 Facsimile: (213) 977-5297

Attorneys for Petitioners-Plaintiffs *Motion for Admission Pro Hac Vice Forthcoming

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I. INTRODUCTION The Court should grant provisional class certification so it can adjudicate the common
question of whether Defendants’ failure to implement safe social distancing for hundreds of similarly situated detainees at Yuba County Jail (“Yuba”) and Mesa Verde ICE Processing Facility (“Mesa Verde”) violates their Fifth Amendment rights.
Defendants do not dispute that COVID-19 poses a grave risk to all detainees. Instead, Defendants claim that Plaintiffs have failed to satisfy the elements of Rule 23 because, according to Defendants, Plaintiffs seek divergent and individualized relief: either being released or remaining in detention in a less crowded facility. (Opposition Brief, ECF 37 “Opp.” at 26). But this framing is a straw man that mischaracterizes the common question at the heart of this case: whether Defendants’ failure to implement safe social distancing violates all class members’ Fifth Amendment rights. When viewed through the proper lens, Defendants’ attack unravels. All class members have suffered the same injury—the substantial risk of contracting COVID-19 due to the lack of social distancing—and all class members would benefit from the same remedy—an order requiring social distancing at Yuba and Mesa Verde.
The proposed class meets the Rule 23 requirements and an injunction ordering adequate social distancing at Yuba and Mesa Verde benefits all class members, regardless of how the order is implemented or who is released first. The Court should provisionally certify the proposed class.1 II. THE PROPOSED CLASS MEETS RULE 23(A) REQUIREMENTS. 2
A. The Proposed Class Meets the Commonality Requirement. When assessing commonality, courts seek to determine whether Defendants’ policies or practices “violate class members’ rights in a systematic way.” Saravia v. Sessions, 280 F.Supp.3d 1168, 1204 (N.D. Cal. 2017). For the reasons set forth more fully in Plaintiffs’ TRO
1 Defendants also contend the Court should not certify the proposed class because of the provisional prior class certification order in Fraihat v. U.S. Immigration & Customs Enforcement, No. 19-1546-JGB (C.D. Cal.). As explained in Plaintiffs’ Opposition to Defendants’ Motion to Stay, filed contemporaneously herewith, the provisional class in Fraihat is substantially different from the putative class here, and the issues in the two cases are substantially different. 2 Defendants do not dispute that the proposed class is sufficiently numerous.
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papers, all class members suffer the same deprivation of their constitutional rights because they are unable to achieve social distancing. See, e.g., TRO Brief, ECF 5 at 5-8. Defendants’ conduct “violate[s] class members’ rights in a systematic way” by exposing all of them to the risk of COVID-19 due to the lack of social distancing at Yuba and Mesa Verde. See Saravia, 280 F.Supp.3d at 1204.
Defendants contend that differences in the health and age of class members, differences in facility conditions, the underlying reasons for class members’ detainment, and the administration of class-wide relief defeat commonality. See Opp. at 21-22. Each of these arguments fails.
First, Defendants’ focus on variations in class members’ health conditions and age presupposes that only those with existing health conditions or elderly class members have a right to social distancing. Opp. at 22. But the undisputed expert testimony demonstrates that younger adults and people without known underlying conditions are also at risk of serious complications or death if they contract COVID-19. See Greifinger, ECF 5-2 ¶ 8. Accordingly, even a “significant variation among the Detainees does not defeat commonality or typicality” because “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.’” Savino v. Souza, 2020 WL 1703844, at *7 (D. Mass. Apr. 8, 2020) (citation omitted). As the Ninth Circuit acknowledged in Parsons v. Ryan, “although a presently existing risk may ultimately result in different future harm for different inmates—ranging from no harm at all to death—every inmate suffers exactly the same constitutional injury when he is exposed to a single statewide [] policy or practice that creates a substantial risk of serious harm.” 754 F.3d 657, 678 (9th Cir. 2014); see also Postawko v. Mo. Dep’t of Corrections, 910 F.3d 1030, 1038-39 (8th Cir. 2018) (“Here the physical symptoms eventually suffered by each class member may vary, but the question asked by each class member is susceptible to common resolution.”).
Second, Defendants erroneously suggest that commonality among these detained class
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members does not exist because “the circumstances within each facility are not uniform.” Opp. at 22. But variances between and within the facilities do not defeat class certification because each proposed subclass independently meets class certification requirements and, within each facility, all class members are deprived of minimally adequate social distancing. Courts have routinely found common issues of fact and law in classes comprised of detainees in such circumstances, including for those housed in different facilities. Parsons, 754 F.3d at 676 (finding commonality met where “policies and practices of . . . systematic application expose[d] all inmates in [ten state prison facilities] to a substantial risk of serious harm”); Savino, 2020 WL 1703844, at *7 (certifying class alleging unconstitutional conditions at two ICE facilities); Rosas v. Baca, 2012 WL 2061694, at *3 (C.D. Cal. 2012) (provisionally certifying class alleging unconstitutional deliberate indifference by staff at three interconnected jails).
Third, the underlying reason for each class members’ detention has no bearing on the adjudication of their class-wide claims. See Opp. at 22-23. Indeed, “[t]he specific reason why each Petitioner and putative class member is being detained is immaterial, here. The issue before the Court is whether the manner of their detention—the conditions of confinement—violates their Fifth Amendment substantive due process rights.” Roman v. Wolf, CV-20-768, ECF 52 at 4 (C.D. Cal. Apr. 23, 2020).3 The Ninth Circuit has affirmed class certification of immigration detainees to address common constitutional violations, notwithstanding that class members were held under different statutory provisions. See Rodriguez v. Hayes, 591 F.3d 1105, 1123 (9th Cir. 2010) (“The nature of the particular statute authorizing the detention of individual class members will play some role in determining whether class members are entitled to relief, as well. Nonetheless, the constitutional issue at the heart of each class member’s claim for relief is common.”).
Fourth, Defendants conflate the common class-wide violation—whether Defendants’ failure to provide social distancing violates class members’ Fifth Amendment rights—with how the Court should administer relief. Defendants mistakenly argue that commonality is defeated
3 Plaintiffs note that the preliminary injunction in Roman has been administratively stayed by the Ninth Circuit. 3
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because “[s]ome class members will be released under plaintiff’s proposed TRO, and many will not.” Opp. at 22. Commonality exists when a class-wide proceeding has the capacity “to generate common answers apt to drive the resolution of the litigation.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (Opp. at 21). When, as here, “the lawsuit challenges a system-wide practice or policy that affects all of the putative class members[,]” “commonality is satisfied[.]” Rosas, 2012 WL 2061694, at *3 (quoting Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001)) (certifying class alleging constitutional violations stemming from Sherriff’s deliberate indifference to violence against inmates at three jails).
Here, an order that Defendants enable adequate social distancing benefits all class members. Consider a small room housing three detainees: if adequate social distancing could be achieved with two detainees remaining in the room, releasing one detainee would remedy the constitutional violation for all three detainees.
Notably, Defendants do not contend that class members’ constitutional claims are different; instead, they focus on which class members might receive prioritized review for relief. But Plaintiffs’ proposed order is just that: a common-sense proposal for the Court to fashion class-wide relief requiring social distancing at Yuba and Mesa Verde to protect class members’ common constitutional rights. While the Court may grant relief in a way that prioritizes certain detainees in its implementation of an injunction, as the court did in Savino, 2020 WL 1703844, at *8-9, the Court “has broad discretion to fashion injunctive relief.” Melendres v. Maricopa County, 897 F.3d 1217, 1221 (9th Cir. 2018). The Court is free to impose any process that remedies Defendants’ failure to implement social distancing at Yuba and Mesa Verde.
Defendants’ cited cases are off-base. Unlike a case requiring an individualized showing that each consumer viewed a disputed advertisement to demonstrate the reliance prong of a consumer-protection claim, Mazza v. Am. Honda Motor Co., 666 F.3d 581, 596 (9th Cir. 2012) (Opp. at 23), or a case requiring a showing that millions of independent employment decisions discriminated against every female employee in a national retailer on the basis of sex, Wal-Mart, 564 U.S. at 352 (Opp. at 22), this case presents a common question posed by similarly situated detainees that is amenable to a common answer.
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B. The Proposed Class Meets the Typicality Requirement. The proposed class also meets the typicality standard of Rule 23(a)(3). Here again, Defendants’ attack focuses on a proposed order, rather than the nature of the class representatives’ claims. Opp. at 24. If the Government’s view were correct, no class action could ever be certified in any action challenging unconstitutional conditions such as prison overcrowding if the result was the release of only some class members. But the Supreme Court has approved the use of prison depopulation orders in class cases, even though the relief sought required the release of some but not all prisoners. See, e.g., Brown v. Plata, 563 U.S. 493, 502-03 (2011) (affirming class-wide injunction of court-mandated population limit to remedy constitutional violations caused by overcrowding). Courts have implicitly rejected Defendants’ black-and-white logic. See Pierce v. Cty. of Orange, 526 F.3d 1190, 1196, 1207 (9th Cir. 2008) (describing injunctive relief, including jail population caps and affirming that “population caps may be an appropriate remedy when overcrowding rises to the level of constitutional violation”); see also Duran v. Elrod, 713 F.2d 292, 297 (7th Cir. 1983) (affirming district court order requiring release of certain pre-trial detainees to address overcrowding in class action on behalf of all pre-trial detainees); Inmates of the Allegheny Cty. Jail v. Wecht, 565 F. Supp. 1278, 1297 (W.D. Pa. 1983) (reducing overcrowding “is within our power to correct the constitutional violations”). Indeed, Defendants’ opposition contravenes controlling case law and this Court’s decision recognizing the propriety of class litigation to establish constitutional processes for release from unlawful confinement, even if all individuals ultimately do not win release under the process established. Rodriguez, 591 F.3d at 1123-24 (finding common underlying constitutional claim to bond hearing process warranted certification); Saravia, 280 F.Supp.3d at 1204 (holding common underlying constitutional claim to release or bond hearing warranted certification). Tellingly, Defendants do not cite any cases holding that claims like those asserted by the class representatives here are atypical of the absent class members. Instead, Defendants argue only that the ability of courts to make individualized determinations in habeas petitions brought
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by individuals prevents class relief. See, e.g., Sacal-Micha v. Longoria, 2020 WL 1518861, at *6 (S.D. Tex. Mar. 27, 2020) (collecting cases); see also Opp. at 24-25 (same). But those cases have no bearing on whether these plaintiffs’ claims are representative of the rest of the proposed class. If anything, different individual habeas outcomes weigh in favor of certifying the class. See Rodriguez, 591 F.3d at 1123 (certifying class because answering a common constitutional question would “render management of these claims more efficient for the courts” and “obviate[e] the severe practical concerns that would likely attend [class members] were they forced to proceed alone”).4
At bottom, “Petitioners’ claim and the claim of the putative class members are the same—a Fifth Amendment substantive due process claim—and the remedy sought is the same— a reduction in [Defendants’] detainee population.” Roman, ECF 52, at 5. Defendants’ efforts to unravel typicality by focusing on the proposed mechanism to order social distancing is misguided, and the Court should find that the proposed class meets the typicality requirement.
C. The Proposed Class Meets the Adequacy Requirement. Courts deny challenges to adequacy that merely repeat arguments against commonality and typicality. See Rodriguez, 591 F.3d at 1125 (rejecting Defendants’ “challenge [to] Petitioner’s adequacy only by re-asserting their commonality and typicality arguments”). No conflict exists between proposed class representatives and absent class members. Defendants conjure a hypothetical conflict in which class representatives will urge their own release over absent class members, but that has no support in the record or reality. Indeed, Plaintiffs proposed a process that would afford discretion to the Court to determine who should be released. Once again, Defendants attempt to reframe the mechanism of relief as a request for multiple injunctions. Opp. at 26. But the class seeks a single order requiring social distancing. Accordingly, the proposed class representatives adequately represent the class because all class members seek the same injunction and declaratory judgment, and all class members stand to benefit from an order requiring social distancing.
4 Moreover, even if the Court were to accept Defendants’ contention that inconsistent individual adjudications are inimical to (b)(2) class certification, the better result would be to certify the class under Rule 23(b)(1).
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III. THE PROPOSED CLASS MEETS THE REQUIREMENT OF RULE 23(B). As with their challenge under Rule 23(a), Defendants’ argument under Rule 23(b)(2)
targets the proposed mechanism for administering class-wide relief rather than the reality that requiring social distancing benefits all class members. Opp. at 21-22. Notably, Defendants have not cited a single case holding that a proposed process to address a class-wide constitutional violation destroys Rule 23(b)(2) certification. Indeed, while Plaintiffs do propose a workable process here, such a proposal is unnecessary: “Plaintiffs do not need to specify the precise injunctive relief they will ultimately seek at the class certification stage.” B.K. by next friend Tinsley v. Snyder, 922 F. 3d 957, 972 (9th Cir. 2019). Defendants quibble with who should be released first. But even those who remain detained stand to benefit from less-crowded facilities.
It is noteworthy that despite taking issue with Plaintiffs’ specific proposed order, Defendants do not contend that “crafting uniform injunctive relief will be impossible.” B.K., 922 F.3d at 973. In fact, they have done the opposite. If the Court finds preliminary relief appropriate, “Defendants propose that the Court order defendants to reduce the populations at MVDF and YCJ to numbers that permit social distancing. Defendants would then determine which class members would be released and provid[e] weekly updates to the Court regarding the class members released and the current populations at MVDF and YCJ.” Opp. at 29. Defendants’ own proposal demonstrates that final injunctive relief or declaratory relief is viable on a classwide basis. See Rule 23(b)(2).
A “preliminary injunction [that] clarifies how the federal government must treat those people [in detention,]” meets the requirements of Rule 23(b)(2) because it “can protect all class members’ . . . rights . . .. ” Saravia, 280 F.Supp.3d at 1205. Consistent with that principle, courts around the country have provisionally certified classes of detainees alleging violation of their Fifth Amendment rights because of ICE’s failure to provide social distancing at other ICE facilities. See Savino, 2020 WL 1703844, at *7 (certifying class of immigrant detainees alleging Fifth Amendment violations because of risk of contracting COVID-19 at ICE facility); Roman, ECF-52, at 6-7 (C.D. Cal. Apr. 23, 2020) (same); also Wilson v. Williams, 2020 WL 1940882, at *8 (N.D. Ohio Apr. 22, 2020) (certifying subclass of medically vulnerable inmates seeking
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habeas relief because of risk of contracting COVID-19 at detention facility). This case should be no exception. The proposed class satisfies Rule 23(b)(2).

IV. CONCLUSION. For the reasons stated in the opening brief and above, this Court should provisionally
certify the proposed class and subclasses.

Dated: April 27, 2020
Bree Bernwanger Tifanei Ressl-Moyer Hayden Rodarte LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA
Judah Lakin Amalia Wille LAKIN & WILLE LLP
Jordan Wells Stephanie Padilla AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA

Respectfully submitted,
/s/ William S. Freeman William S. Freeman Sean Riordan Angélica Salceda AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA
Manohar Raju Public Defender Matt Gonzalez Chief Attorney Francisco Ugarte Genna Ellis Beier Emilou H. MacLean OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO
Martin S. Schenker Timothy W. Cook Francisco M. Unger COOLEY LLP
Attorneys for Petitioners-Plaintiffs

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 Case 3:20-cv-02731-VC Document 50 Filed 04/27/20 Page 1 of 4

DAVID L. ANDERSON (CABN 149604) United States Attorney SARA WINSLOW (DCBN 457643) Chief, Civil Division WENDY M. GARBERS (CABN 213208) ADRIENNE ZACK (CABN 291629) Assistant United States Attorneys
450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Telephone: (415) 436-7031 FAX: (415) 436-6748 adrienne.zack@usdoj.gov
Attorneys for Federal Defendants
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, et al., Plaintiffs,
v. DAVID JENNINGS, et al.,
Defendants.

) Case No. 20-cv-02731 VC ) ) FEDERAL DEFENDANTS’ REPLY IN ) SUPPORT OF MOTION TO STAY IN LIGHT ) OF FRAIHAT ) ) ) ) )

OPP TO TRO AND MOTION TO STAY Case No. 20-cv-02731 VC

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INTRODUCTION

The Court should grant defendants motion to stay under the first-to-file rule. Both this case and

Fraihat seek custody determinations for individuals held in immigration detention in Mesa Verde

Detention Facility and Yuba County Jail, including some named plaintiffs herein. Moreover, the cases

raise similar claims for relief and a goal of both cases is compliance with guidelines that require social

distancing. Permitting both cases to proceed could result in ICE being subject to conflicting orders, an

outcome the first-to-file rule seeks to avoid.

ARGUMENT

First, this case should be stayed because defendants should not be subject to potentially

competing orders that mandate simultaneous, yet different, requirements to review detainee custody

requirements. See Landscape Specialists, Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, No.

SACV191419JVSKESX, 2020 WL 968693, at *4 (C.D. Cal. Jan. 8, 2020) (“staying the case will serve

the purposes of the first-to-file rule by promoting judicial efficiency and avoiding inconsistent

judgments”). In Fraihat, the court ordered defendants to make timely custody determinations for

detainees with risk factors. ECF 26-1 at pp. 39-40 (pp. 38-39 of Fraihat order). Here, plaintiffs seek a

competing process of custody review, with the Court making custody determinations based on

applications brought by plaintiffs. ECF Nos. 5 at 9; 5-7 at 5. Requiring defendants to both conduct their

own court-ordered review and simultaneously have the Court conducting review is a waste of judicial

and government resources. And plaintiffs have proposed no order in which they may present

applications, leaving room for conflict with the court’s order in Fraihat requiring review of detainees

with risk factors. Because the one of the purposes of the first-to-file rule is to prevent such overlap, the

Court should stay this case.

Second, this litigation and Fraihat raise substantially similar questions. In Fraihat, plaintiffs

raised claims of medical indifference in violation of the Fifth Amendment and punitive conditions of

confinement in violation of the Fifth Amendment. ECF 26-1 at p. 28 (p. 27 of Fraihat order). Here,

plaintiffs make claims of deliberate indifference (to medical issues) under the Fifth Amendment and

excessive risk (so as to be punitive) under the Fifth Amendment. ECF No. 5 at 19-20. While there may

be some small differences in the claims, these are substantially similar and warrant a stay in this case.

OPP TO TRO AND MOTION TO STAY

Case No. 20-cv-02731 VC

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Kohn Law Grp., Inc. v. Auto Parts Mfg. Mississippi, Inc., 787 F.3d 1237, 1239 (9th Cir. 2015) (“The

issues in both cases also need not be identical, only substantially similar.”).

Finally, the named plaintiffs show that there is overlap between the proposed classes here and the

Fraihat class. The first-to-file doctrine does not require that the parties be identical, but merely that they

be substantially similar. In Adoma v. Univ. of Phoenix, Inc., the court found this prong satisfied when

“both classes [sought] to represent at least some of the same individuals.” Adoma v. Univ. of Phoenix,

Inc., 711 F. Supp. 2d 1142, 1148 (E.D. Cal. 2010). Here, “at least some of the same individuals” are

included in both classes—the named plaintiffs here provide an easy illustration. Subclass One in

Fraihat consists of those with risk factors, namely being over the age of 55; being pregnant; or having

chronic health conditions, including: cardiovascular disease (congestive heart failure, history of

myocardial infarction, history of cardiac surgery); high blood pressure; chronic respiratory disease

(asthma, chronic obstructive pulmonary disease including chronic bronchitis or emphysema, or other

pulmonary diseases); diabetes; cancer; liver disease; kidney disease; autoimmune diseases (psoriasis,

rheumatoid arthritis, systemic lupus erythematosus); severe psychiatric illness; history of

transplantation; and HIV/AIDS. ECF 26-1 at p. 22 (p. 21 of Fraihat order). Based on the claimed

medical conditions of three of the seven named plaintiffs, they would clearly fall into the Fraihat class.

Plaintiff Zepeda Rivas, while now released, states that he has diabetes. ECF No. 1 ¶ 15. Plaintiff

Mwaura has chronic lung disease caused by a prior condition of Valley Fever. Id. ¶ 19. Plaintiff

Sanchez Nunez has asthma. Id. ¶ 24. Because the parties in Fraihat and this action substantially

overlap, the Court should stay this matter under the first-to-file doctrine.

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OPP TO TRO AND MOTION TO STAY

Case No. 20-cv-02731 VC

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CONCLUSION

For the foregoing reasons and those advanced in defendants’ motion, the Court should stay this

matter pending Fraihat to prevent overlapping claims and inconsistent orders, and because Fraihat was

first-filed.

DATED: April 27, 2020

Respectfully submitted,

DAVID L. ANDERSON United States Attorney

/s/ Adrienne Zack ADRIENNE ZACK Assistant United States Attorney

OPP TO TRO AND MOTION TO STAY

Case No. 20-cv-02731 VC

3

 
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

ANGEL DE JESUS ZEPEDA RIVAS, et al.,
Plaintiffs,
v.
DAVID JENNINGS, et al., Defendants.

Case No. 20-cv-02731-VC
ORDER GRANTING MOTION FOR PROVISIONAL CLASS CERTIFICATION, GRANTING MOTION FOR A TEMPORARY RESTRAINING ORDER, AND DENYING MOTION FOR A STAY

A group of ICE detainees at the Mesa Verde Detention Facility and the Yuba County Jail have filed a proposed habeas class action challenging the conditions of their confinement. They contend they are at serious risk of becoming infected with Covid-19 because ICE has refused to alter conditions at the facilities so as to enable people to keep their distance from one another. The plaintiffs have filed a motion to provisionally certify a class of all detainees at the facilities, along with a motion for a temporary restraining order requiring ICE to take measures that will enable social distancing. The government, for its part, has moved for a stay of these proceedings in light of a separate case in which a federal judge certified a nationwide class of immigration detainees challenging ICE’s overall response to the pandemic. The motion for provisional class certification is granted, as is the motion for a temporary restraining order. The motion for a stay is denied. As described more fully below, ICE is ordered to provide information to class counsel and to the Court to facilitate consideration of applications by detainees to be released on bail while this case is pending. In roughly 14 days, after individual bail applications have been processed, the Court will hold a preliminary injunction hearing to determine what measures, if

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any, ICE must take to ensure social distancing and other protections for the people who remain detained at the facilities. Because time is of the essence, and because federal courts around the country have addressed most issues raised by these motions (including the public health threat currently posed by crowded detainee populations and ICE’s failure to respond), this ruling assumes that the reader is familiar with the legal arguments and factual materials submitted by the parties.
Provisional Class Certification 1. There is nothing about the procedural posture of this lawsuit—such as the fact that it seeks habeas relief or that it is on behalf of immigration detainees—that precludes provisional class certification.1 2. The government’s arguments regarding commonality, typicality, adequacy, and Rule 23(b) do not defeat class certification. At root, this lawsuit is not about whether any particular person should be released; it is about the conditions of confinement at the facilities. The primary question is whether the people detained at those facilities are being exposed to an unreasonable risk of infection in violation of the Due Process Clause. As the plaintiffs argue in their papers, “class members have suffered the same injury—the substantial risk of contracting COVID-19 due to the lack of social distancing—and all class members would benefit from the same remedy—an order requiring social distancing at Yuba and Mesa Verde.” Dkt. 41 at 3. The likelihood that some people would need to be released as part of the effort to alleviate dangerous conditions at the jail (presumably by prioritizing people who have health vulnerabilities and whose records indicate they are not a danger to the community) does not change the ultimate relief the plaintiffs seek. And therefore it is not a reason to deny provisional class certification.2 Nor, incidentally, is exposure to the virus a significant danger merely to people in high-risk
1 See Jennings v. Rodriguez, 138 S. Ct. 830, 840–41 (2018); Rodriguez v. Hayes, 591 F.3d 1105, 1117 (9th Cir. 2010); Padilla v. ICE, 953 F.3d 1134, 1151 (9th Cir. 2020). 2 See Parsons v. Ryan, 754 F.3d 657, 689 (9th Cir. 2014); Rodriguez, 591 F.3d at 1123; Savino v. Souza, 2020 WL 1703844, at *7 (D. Mass. Apr. 8, 2020); cf. Saravia v. Sessions, 280 F. Supp. 3d 1168, 1203-05 (N.D. Cal. 2017), aff'd sub nom. Saravia for A.H. v. Sessions, 905 F.3d 1137 (9th Cir. 2018); see also Brown v. Plata, 563 U.S. 493 (2011).
2

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groups; as explained in Savino v. Souza, it is dangerous to everyone. 2020 WL 1703844, at *7.3
Temporary Restraining Order
1. The Northern District of California is the proper forum for this action, as explained in
Saravia v. Sessions, 280 F. Supp. 3d 1168, 1186–87 & n.9 (N.D. Cal. 2017), aff'd sub nom.
Saravia for A.H. v. Sessions, 905 F.3d 1137 (9th Cir. 2018).4
2. As many courts have explained, ICE detainees in this situation have standing to sue in
federal court.5
3. On this record, the plaintiffs have demonstrated an exceedingly strong likelihood that
they will prevail on their claim that current conditions at the facilities violate class members’ due
process rights by unreasonably exposing them to a significant risk of harm.6 There is no need to
repeat a discussion of the “tinderbox” risk of the virus spreading in crowded detention facilities.7
Nor is there need to recount the health risks posed by the virus—not just for people in high-risk
categories but for healthy people as well.8 In detention facilities throughout the nation, ICE has
failed to take sufficient action to address the obvious health risks to detainees.9 And as several
3 See also Greifinger Decl., Dkt. 5-2 at ¶ 8, 24. 4 See also Rodriguez Sanchez v. Decker, 2019 WL 3840977 (S.D.N.Y. Aug. 15, 2019); https://www.ice.gov/detention-facility/mesa-verde-ice-processing-facility, and https://www.ice.gov/detentionfacility/yuba-county-jail (identifying each facility as controlled by the “San Francisco Field Office” and specifically directing “Feedback or Complaints” to the San Francisco Field Office Director). 5 See, e.g., Franco v. Jennings, Case No. 20-cv-02474-CRB (N.D. Cal. Apr. 24, 2020), Dkt. 16 at 3-4; Bent v. Barr, Case No. 19-cv-06123-DMR (N.D. Cal. Apr 9, 2020), Dkt. 26 at 5-7; Dawson v. Asher, 2020 WL 1704324, at *8 (W.D. Wash. Apr. 8, 2020). 6 See Youngberg v. Romeo, 457 U.S. 307 (1982); Gordon v. County of Orange, 888 F.3d 1118 (9th Cir. 2018); Helling v. McKinney, 509 U.S. 25, 32 (1993). 7 See Greifinger Decl. ¶¶ 16-24; Hernandez Decl. ¶¶ 19-21; Basank v. Decker, 2020 WL 1481503, at *3 (S.D.N.Y. Mar. 26, 2020); Bent, supra at 11; United States v. Daniels, Case No. 19-cr-00709-LHK (NC), Dkt. 24 at 5–6; Doe v. Barr, Case No. 20-cv-02141-LB (N.D. Cal. Apr. 12, 2020) Dkt. 27 at 3. 8 See Greifinger Decl. ¶ 8, 24; Hernandez Decl. ¶ 13; Savino v. Souza, 2020 WL 1703844, at *7. 9 Faour Abdallah Fraihat, et al. v. U.S. Immigrations and Customs Enforcement, et al., Case No. 5:19-cv-1546-JGB-SHK (C.D. Cal. Apr. 20, 2020), Dkt. 132 at 29-34; Roman, supra, at *3; Pimentel-Estrada v. Barr, Case No. 20-cv-00495-RSM-BAT (W.D. Wa. Apr. 28, 2020), Dkt. 51 at 31; Coronel v. Decker, 2020 WL1487274, at *4 (S.D.N.Y. Mar. 27, 2020); Basank, supra, at *3; Thakker v. Doll, 2020 WL 1671563, at *8 (M.D. Pa. Mar. 31, 2020); Malam v. Adducci, 2020 WL 1672662, at *12 (E.D. Mich. Apr. 5, 2020), as amended (Apr. 6, 2020); Gayle v. Meade, Case No. 20-cv-21553 (S.D. Fl. Apr. 22, 2020), Dkt. 63 at 67; Greifinger Decl. ¶¶ 44-57; Rodarte Decl. Ex A.
3

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courts in this district have already explained, the same is true of ICE’s performance at these local facilities.10 Although ICE has recently begun taking modest measures, it is undisputed that the agency has not come close to achieving social distancing for most detainees—for example, people are still sleeping in barracks-style dorms within arms-reach of one another.11 What’s more, at the hearing on these motions, counsel for ICE asserted that it will take a significant amount of time for the agency to prepare a list of detainees with health vulnerabilities because it is “burdensome.” The fact that ICE does not have such a list at the ready, six weeks after Governor Newsom shut down the entire state and one week after this lawsuit was filed, speaks volumes about where the safety of the people at these facilities falls on ICE’s list of priorities.12
4. For similar reasons, the plaintiffs have demonstrated a strong likelihood of irreparable harm to the class.13 Although ICE notes that it has discovered no cases of Covid-19 at the two facilities, this is not especially comforting given that only two detainees have been tested.14 Moreover, people are regularly being transported from facilities with COVID-19 cases to Mesa Verde or Yuba County. For example, in the past several months, the Northern District of California has seen dozens of offenders sentenced for street-level drug crimes and transported on detainers from the Santa Rita Jail in Alameda County to these ICE facilities.
5. The public interest and the balance of hardships also counsels in favor of emergency relief to initiate the process of mitigating health risks at the facilities. The conditions of confinement do not merely threaten detainees; they also threaten facility staff, not to mention the greater community whose health is put at risk by the congregation of large groups in cramped
10 Bahena Ortuno v. Jennings, Case No. 20-cv-02064-MMC (N.D. Cal. Apr. 8, 2020), Dkt. 38 at 6-7; Bent, supra, at 10-11; Doe, supra, at 16; see generally Greifinger Decl.; Greifinger Supp. Decl. 11 See Greifinger Decl. ¶¶ 34-43; Greifinger Supp. Decl. ¶ 7; Kavanagh Decl. ¶ 5; Knox Decl. ¶ 9, 16, 17; Tovar Decl. ¶ 14; Mwaura Decl. ¶ 10; Dang Decl. ¶ 13; Nunez Decl. ¶ 14; Alfaro Decl. ¶ 16; Bonnar Decl. ¶ 11(f). 12 See Hernandez Decl. ¶¶ 13-18; Greifinger Decl. ¶¶ 14-15. 13 Helling, 509 U.S. at 33; Fraihat, supra, at 36; Coronel, supra, at *2; Roman, supra, at 21; Bahena Ortuno, supra, at 7-8; Bent, supra, at 12-13; Doe, supra, at 18. 14 See Kaiser Decl. ¶ 11; Bonnar Decl. ¶ 12.
4

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spaces.15 As discussed in the next paragraph, the emergency relief ordered here—requiring ICE to provide information and access to detainees to facilitate a process of considering bail requests—will simply entail some hard work on ICE’s part. And of course, as bail requests are considered, care will be taken both to avoid releasing detainees who are a danger to the community and to minimize the possibility that released detainees will fail to appear for their removal proceedings.
6. ICE is thus hereby ordered to provide the Court and class counsel with information and records regarding each detainee at the facilities. This includes names, ages, any health vulnerabilities, and any criminal information (including rap sheets and I-213 forms). ICE is also ordered to ensure that class counsel has the ability to promptly communicate with detainees. The purpose of this order is to enable the Court to implement a system for considering individual bail applications, modeled after a system created and successfully implemented by Judge Young in the District of Massachusetts.16 In extraordinary cases like this, federal judges have the authority to release detainees on bail while their habeas cases are pending.17 Judge Young, after certifying a class of ICE detainees at a facility in Massachusetts, considered bail requests as a precursor to a preliminary injunction hearing. Similarly, this Court—likely with the assistance of several Magistrate Judges—will consider bail applications from class members over a roughly 14-day period. After that period, the parties and the Court will have a better understanding of the number of people who will continue to be detained during the public health crisis, which in turn could affect the relief (if any) to be ordered by way of preliminary injunction to help ensure social
15 Hernandez Decl. ¶ ¶ 22-28; Greifinger Decl. ¶ 24; Coronel, supra, at *7. 16 See Savino v. Souza, Case No. 20-cv-10617-WGY (D. Mass. Apr. 8, 2020). 17 Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001); Savino, supra, at 26-28; Coronel, supra, at *8; Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992); Dotson v. Clark, 900 F.2d 77, 79 (6th Cir. 1990); Martin v. Solem, 801 F.2d 324, 329 (8th Cir. 1986); Cherek v. U.S., 767 F.2d 335, 337 (7th Cir. 1985); Pfaff v. Wells, 648 F.2d 689, 693 (10th Cir. 1981); In re Wainwright, 518 F.2d 173, 174 (5th Cir. 1975) (per curiam); Woodcock v. Donnelly, 470 F.2d 93, 94 (1st Cir. 1972); Baker v. Sard, 420 F.2d 1342, 1343 (D.C. Cir. 1969) (per curiam). See also Land v. Deeds, 878 F.2d 318, 318 (9th Cir. 1989); In re Roe, 257 F.3d 1077, 1080 (9th Cir. 2001); Nadarajah v. Gonzales, 443 F.3d 1069, 1084 (9th Cir. 2006); United States v. McCandless, 841 F.3d 819, 822 (9th Cir. 2016) (per curiam); Tam v. I.N.S., 14 F. Supp. 2d 1184, 1192 (E.D. Cal. 1998).
5

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distancing at the facilities. All information must be provided to the Court and class counsel on a rolling basis, but by no later than Friday at noon. A case management conference will take place Thursday at 4:00 p.m. for the purpose of assessing progress in compliance with this order, scheduling a preliminary injunction hearing, and discussing the process by which the Court will consider individual bail applications.18
7. ICE, while opposing any form of emergency relief, argued in its papers and at the hearing that if the Court is inclined to grant such relief, it should take a different form. Specifically, rather than being ordered to provide information that would permit the prompt consideration of bail requests, ICE asks that the Court simply order the agency to release a set number of detainees from the facilities. ICE does not specify the number of detainees it should be told to release. It has not explained how many of the detainees would pose a danger to the community if released. And it has not specified how many detainees would actually need to be released to alleviate the health risks at the facilities. It seems, at first glance anyway, that ICE is asking the Court to strike with a blunt instrument rather than using a more cautious and methodical approach to address the constitutional problem presented by this case. But in any event, given ICE’s failure thus far to respond meaningfully to the crisis despite the wave of court rulings from around the country documenting the agency’s inaction, given that ICE does not even currently possess a list of detainees with health vulnerabilities, and given the lack of specificity in ICE’s alternative remedy proposal, it appears likely that the approach of ordering ICE to release a random number of detainees, rather than simply ordering ICE to provide information that will facilitate consideration of individualized bail requests, would create delay rather than meaningful improvements in the conditions of confinement at the facilities.
Motion For A Stay Pending Related Litigation Whether to stay a proposed class action based on the pendency of an overlapping class
18 ICE has requested a 48-hour stay of this temporary restraining order so that it can consider whether to appeal. Because this order requires ICE only to provide documents and to give class counsel access to detainees, that request is denied.
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action in another court is a matter of judicial discretion. A stay is not warranted here. In the

nationwide class action proceeding in the Central District of California, Judge Bernal has ordered

preliminary relief at too high a level of generality to protect the immediate interests of the class

members in this case (or, for that matter, in Judge Young’s case). See Fraihat v. ICE, Case No.

5:19-cv-1546-JGB-SHK (C.D. Cal. Apr. 20, 2020), Dkt. 132 at 38-39. It does not appear that

Judge Bernal intended, by the general nationwide relief he ordered, to interfere with the ability of

facility-specific litigation to proceed. Nor, in any event, does a nationwide class action covering

specific relief at specific facilities seem manageable. Denial of this motion is without prejudice

to raising the issue again if the cases develop in such a way as to create conflicting obligations

for ICE.

IT IS SO ORDERED.

Dated: April 29, 2020

______________________________________
VINCE CHHABRIA United States District Judge

7

 
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WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org SEAN RIORDAN (SBN 255752) sriordan@aclunc.org ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney
GENNA ELLIS BEIER (CA SBN 300505)
genna.beier@sfgov.org
EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: (415) 553-9319 Facsimile: (415) 553-9810

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUBI RUIZ TOVAR, LAWRENCE KURIA MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,
Petitioners-Plaintiffs,

CASE NO. 3:20-CV-02731-VC
PETITIONERS-PLAINTIFFS’ MEMORANDUM OF LAW REGARDING STATUTORY AUTHORITY OF MAGISTRATE JUDGES
JUDGE VINCE CHHABRIA

v.

DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,

Respondents-Defendants.
CASE NO. 3:20-CV-02731-VC Petitioners-Plaintiffs’ Memorandum of Law Regarding Statutory Authority of Magistrate Judges

Case 3:20-cv-02731-VC Document 62 Filed 05/01/20 Page 2 of 7

BREE BERNWANGER (NY SBN 5036397) bbernwanger@lccrsf.org TIFANEI RESSL-MOYER (SBN 319721) tresslmoyer@lccrsf.org HAYDEN RODARTE (SBN 329432) hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA 131 Steuart St #400 San Francisco, CA 94105 Telephone: (415) 814-7631
JUDAH LAKIN (SBN 307740) judah@lakinwille.com AMALIA WILLE (SBN 293342) amalia@lakinwille.com LAKIN & WILLE LLP 1939 Harrison Street, Suite 420 Oakland, CA 94612 Telephone: (510) 379-9216 Facsimile: (510) 379-9219

MARTIN S. SCHENKER (SBN 109828) mschenker@cooley.com COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111 Telephone: (415) 693-2000 Facsimile: (415) 693-2222
TIMOTHY W. COOK (Mass. BBO# 688688) tcook@cooley.com FRANCISCO M. UNGER (Mass. BBO# 698807) funger@cooley.com COOLEY LLP 500 Boylston Street Boston, MA 02116 Telephone: (617) 937-2300 Facsimile: (617) 937-2400

JORDAN WELLS (SBN 326491) jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568) spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA 1313 West Eighth Street Los Angeles, CA 90017 Telephone: (213) 977-9500 Facsimile: (213) 977-5297

Attorneys for Petitioners-Plaintiffs

CASE NO. 3:20-CV-02731-VC Petitioners-Plaintiffs’ Memorandum of Law Regarding Statutory Authority of Magistrate Judges

Case 3:20-cv-02731-VC Document 62 Filed 05/01/20 Page 3 of 7
I. INTRODUCTION Pursuant to the Court’s request at the April 29, 2020 Case Management Conference,
Petitioners submit this brief to address the question of whether a magistrate judge may rule on class members’ individual requests for release on bail without requiring consent of the parties. The clear answer to this question under Ninth Circuit law is that magistrate judges do have such authority, and that consent is not required.
II. MAGISTRATE JUDGES HAVE JURISDICTION UNDER 28 U.S. CODE § 636(B)(1)(A) TO ORDER BAIL RELEASE PENDING A HABEAS DECISION WITHOUT CONSENT OF THE PARTIES. A. Release on Bail is Not Akin to Injunctive Relief.
Under 28 U.S. Code § 636(b)(1)(A), this Court can designate a magistrate judge to rule on pretrial matters “except a motion for injunctive relief…”. This limitation respecting injunctive relief can only be surmounted with consent of the parties. U.S.C. § 636(c)(1). This limitation, however, is inapposite here. Ninth Circuit authority makes clear that orders on bail pending habeas decisions are not tantamount to injunctive relief under the statute.
In this Circuit, an order denying bail pending decision on a petition for a writ of habeas corpus is not appealable, either as an appeal from a final judgment under 28 U.S.C. § 1291 or under the collateral order exception contained in § 1292(b). Land v. Deeds, 878 F.2d 318 (9th Cir. 1989). Land has been consistently followed in this Circuit. United States v. Reynolds, 956 F.2d 192, 193 (9th Cir. 1992); United States v. McCandless, 841 F.3d 819, 821–22 (9th Cir. 2016)1. This line of cases compels the conclusion that a bail determination cannot be the
1 An earlier case, Marino v. Vasquez, 812 F.2d 499, 507 (9th Cir. 1987), deemed a bail order appealable as a collateral order in the context of the underlying proceeding. Marino preceded all three cases discussed above— McCandless (2016), Reynolds (1992), and Land (1989). McCandless did not acknowledge Vasquez and reached the opposite conclusion.
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equivalent of an injunction, because if it were, it would be appealable under 28 U.S.C. § 1291, which grants appellate jurisdiction of “[i]nterlocutory orders … granting, continuing, modifying, refusing or dissolving injunctions….” Yet in each of these cases, the Circuit decided that the decision was non-appealable.2
B. Bail Pending Habeas Litigation and Preliminary Injunctions Are Governed by Different Legal Standards.
That release on bail in habeas cases and injunctive relief are not analogous to one another is borne out by the Ninth Circuit’s use of different legal tests in ruling on these forms of relief. In lieu of the four-factor test for injunctive relief, bail pending a habeas decision “is reserved for extraordinary cases involving special circumstances or a high probability of success.” Land, 878 F.2d at 319 (citing Aronson v. May, 85 S.Ct. 3, 5, 13 L.Ed.2d 6 (1964)). Additional factors considered for a bail order beyond special circumstances and probability of success are specific to the bail context, rather than replications of the general standards for injunctive relief. See Marino v. Vasquez, 812 F.2d 499, 508-509 (9th Cir.1987) (holding that courts must also consider petitioner’s flight risk and danger to community); see also Tsehai v. Schwarte, No. 1:05-CV01160-OWW-TA, 2006 WL 2583612, at *1 (E.D. Cal. Sept. 7, 2006). While there is a certain degree of overlap between some of the factors, the tests substantially diverge, reflecting their different purposes and function in the litigation process. As the Ninth Circuit pointed out in McCandless, unlike injunctive relief, a “bail determination cannot materially advance the ultimate termination of the litigation.” Because they entail different legal standards and different
2 While the Ninth Circuit noted in McCandless that the question of district courts’ authority to grant bail pending resolution of a habeas petition remains unsettled, McCandless makes clear that where such orders issue they are not akin to injunctive relief.
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legal effects, there is no principled basis under Ninth Circuit authority for deeming bail determinations tantamount to injunctive relief. Moreover, the emphasis of the Ninth Circuit’s test for bail release on exigent special circumstances is perfectly suited to the instant case.
C. A Recent Southern District of New York Case Noted by This Court Does Not Provide a Basis For Deviating From Ninth Circuit Authority.
During yesterday’s Case Management Conference, the Court pointed the parties to a recent S.D.N.Y. case that considered whether magistrate judges have statutory authority to rule on bail release pending habeas litigation. See Arana v. Barr, No. 19CV7924 (PGG) (DF), 2020 WL 1502039, at *5 (S.D.N.Y. Mar. 27, 2020), report and recommendation adopted in part, rejected in part, No. 19 CIV. 7924 (PGG), 2020 WL 1659713 (S.D.N.Y. Apr. 3, 2020).3 However, as Arana itself notes, several courts in the Second Circuit have indicated that magistrate judges do have statutory authority to decide on habeas bail releases. See Boddie v. New York State Div. of Parole, No. 08 CIV. 9287 LAP/DF, 2009 WL 1531595, at *1 (S.D.N.Y. May 28, 2009) (magistrate judge denying petitioner’s motion for release on bail); see also Word v. Lord, No. 00CIV.5510(LAP)(HBP), 2001 WL 1150345, at *1 (S.D.N.Y. Sept. 27, 2001) (magistrate judge denying habeas petitioner’s motion for release on bail); see also D'Alessandro v. Mukasey, No. 08CV914RJAVEB, 2009 WL 799957, at *1 (W.D.N.Y. Mar. 25, 2009), modified, No. 08-CV-914 RJA VEB, 2009 WL 10194901 (W.D.N.Y. Mar. 26, 2009), and aff'd,
3 Plaintiffs are also aware of two decisions by a single Magistrate Judge in the District of Arizona stating, without analysis, that the court “construes the [request for release on bail] as a request for injunctive relief.” See Gray v. Ryan, No. CV1700963PHXGMSESW, 2017 WL 4124053, at *1 n.1 (D. Ariz. Aug. 10, 2017), report and recommendation adopted, No. CV1700963PHXGMSESW, 2017 WL 4100077 (D. Ariz. Sept. 15, 2017); see also Thomas v. USA, No. CV1802803PHXDGCESW, 2019 WL 1493875, at *1 n.1 (D. Ariz. Mar. 5, 2019), report and recommendation adopted, No. CV182803PHXDGCESW, 2019 WL 1489277 (D. Ariz. Apr. 4, 2019). For the reasons stated above, however, Petitioners-Plaintiffs believe that these decisions, which did not provide any analysis of the issue, are incorrect.
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Case 3:20-cv-02731-VC Document 62 Filed 05/01/20 Page 6 of 7
No. 08-CV-914 RJA VEB, 2009 WL 931164 (W.D.N.Y. Apr. 2, 2009) (magistrate judge granting immigrant detainee’s habeas petition for release on bail).
The court in Arana only attempted to distinguish one of these three cases, Boddie, and it did so only on the ground that Boddie did not involve a “colorable claim of entitlement to [habeas bail] relief” in view of procedural barriers and lack of merit. The court in Arana just as quickly acknowledged that this was a spurious distinction: “…of course, the validity of an application for relief does not determine whether a magistrate judge has the statutory power to adjudicate it…” Arana at *5. Meanwhile, Arana’s pronouncement that magistrate judges lack jurisdiction turned on the conclusory assertion, based on a recent case, Basank v. Decker, No. 20cv2518 (AT), at Dkt. 11 (S.D.N.Y. Mar. 26, 2020) (granting TRO releasing immigrant detainees due to risks posed by COVID-19) that “[r]ecent circumstances have demonstrated… the similarity between requiring a habeas respondent to release a petitioner immediately, under Mapp, and granting injunctive relief.” Ibid. (emphasis added). The court in Arana provided no principle underlying its assertion about the statutory authority of magistrate judges beyond its remark on the “obvious parallels” between “the nature of [habeas bail] relief and the injunction recently issued in Basank…” Ibid. Arana advances no argument, meanwhile, that bail release and injunctive relief involve the same legal standards or involve the same legal consequences. And, as explained above, any such contentions would be contrary to Ninth Circuit authority. Arana has no Ninth Circuit counterparts, and provides no sound principle for deeming release on bail and injunctive relief analogous under 28 U.S. Code § 636(b)(1)(A).
More importantly, whatever the law may be in the Second Circuit and other circuits, Ninth Circuit law remains firmly to the contrary, holding that a bail determination is not appealable. McCandless, 841 F.3d at 821-22 n.1.
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III. CONCLUSION. For the reasons stated above, this Court may designate magistrate judges to rule on
individualized bail releases pending habeas litigation without requiring consent of the parties.

Dated: May 1, 2020
Bree Bernwanger Tifanei Ressl-Moyer Hayden Rodarte LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA Judah Lakin Amalia Wille LAKIN & WILLE LLP Jordan Wells Stephanie Padilla AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA

Respectfully submitted,
/s/ William S. Freeman William S. Freeman Sean Riordan Angélica Salceda AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA
Manohar Raju Public Defender Matt Gonzalez Chief Attorney Francisco Ugarte Genna Ellis Beier Emilou H. MacLean OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO
Martin S. Schenker Timothy W. Cook Francisco M. Unger COOLEY LLP
Attorneys for Petitioners-Plaintiffs

5 CASE NO. 3:20-CV-02731-VC Petitioners-Plaintiffs’ Memorandum of Law Regarding Statutory Authority of Magistrate Judges

 
 Case 3:20-cv-02731-VC Document 229 Filed 05/22/20 Page 1 of 24

WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org SEAN RIORDAN (SBN 255752) sriordan@aclunc.org ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney FRANCISCO UGARTE (SBN 241710) francisco.ugarte@sfgov.orga GENNA ELLIS BEIER (SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (SBN 319071) emilou.maclean@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: 415-553-9319 Fax: 415-553-9810

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUIZ TOVAR, LAWRENCE MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,
Petitioners-Plaintiffs,

CASE NO. 3:20-CV-02731-VC
PETITIONERS-PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR PRELIMINARY INJUNCTION
DATE: JUNE 2, 2020 TIME: 10:00 A.M.

v.

DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,

Respondents-Defendants.

CASE NO. 3:20-CV-02731-VC PETITIONERS-PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR PRELIMINARY
INJUNCTION

Case 3:20-cv-02731-VC Document 229 Filed 05/22/20 Page 2 of 24

BREE BERNWANGER* (NY SBN 5036397) bbernwanger@lccrsf.org HAYDEN RODARTE (SBN 329432) hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA 131 Steuart St #400 San Francisco, CA 94105 Telephone: (415) 814-7631
JUDAH LAKIN (SBN 307740) judah@lakinwille.com AMALIA WILLE (SBN 293342) amalia@lakinwille.com LAKIN & WILLE LLP 1939 Harrison Street, Suite 420 Oakland, CA 94612 Telephone: (510) 379-9216 Facsimile: (510) 379-9219

MARTIN S. SCHENKER (SBN 109828) mschenker@cooley.com COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111 Telephone: (415) 693-2000 Facsimile: (415) 693-2222
TIMOTHY W. COOK (Mass. BBO# 688688)* tcook@cooley.com FRANCISCO M. UNGER (Mass. BBO# 698807)* funger@cooley.com COOLEY LLP 500 Boylston Street Boston, MA 02116 Telephone: (617) 937-2300 Facsimile: (617) 937-2400

JORDAN WELLS (SBN 326491) jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568) spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA 1313 West Eighth Street Los Angeles, CA 90017 Telephone: (213) 977-9500 Facsimile: (213) 977-5297

Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice

CASE NO. 3:20-CV-02731-VC PETITIONERS-PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR PRELIMINARY
INJUNCTION

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TABLE OF CONTENTS NOTICE OF MOTION AND MOTION ........................................................................................ 1 I. INTRODUCTION .............................................................................................................. 1 II. FACTS ................................................................................................................................ 3
A. Detainees at Mesa Verde and Yuba Continue to Live in Conditions that Make Adequate Social Distancing Impossible ....................................................... 3 1. Mesa Verde ................................................................................................. 3 a. Sleeping Quarters............................................................................ 3 b. Mealtimes........................................................................................ 4 c. Bathroom Facilities ......................................................................... 4 d. Recreation ....................................................................................... 4 2. Yuba ............................................................................................................ 5 a. Sleeping Quarters............................................................................ 5 b. Mealtimes........................................................................................ 5 c. Recreation ....................................................................................... 6 3. Additional Evidence that Conditions Have Changed Little at Either Facility ........................................................................................................ 7
B. Expert Testimony Makes Clear that Class Members are Still Subject to Unreasonably Dangerous Conditions ..................................................................... 8 1. COVID-19 is Highly Contagious and Transmitted by Droplets and Aerosols ...................................................................................................... 8 2. Risk of Transmission and Viral Load Correlate to Exposure and Time ............................................................................................................ 8 3. A Broad Range of Pre-Existing Medical Conditions Increases Risk of a Severe Clinical Outcome from COVID-19 Infection .......................... 9 4. Social Distancing is Essential to Risk Reduction ....................................... 9 5. “Staggered” Bunks Do Nothing to Mitigate the Risk of Sleeping in a Congregate Setting.................................................................................... 10 i CASE NO. 3:20-CV-02731-VC
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6. Mesa Verde and Yuba Remain Extraordinarily Dangerous ..................... 10 7. The Risks to Detainees—and to Public Health in the Surrounding
Communities—Will Increase as Restrictions on the General Population are Lifted................................................................................. 12 III. ARGUMENT .................................................................................................................... 12 A. The Court Has Broad Power to Fashion Relief that is Appropriate and Necessary to Alleviate the Identified Constitutional Violation ............................ 13 B. Requiring ICE to Maintain a Population Level that Enables Consistent Social Distancing is an Appropriate Remedy ....................................................... 15 C. These Facilities Will Remain Dangerous Long After Restrictions on the General Population Begin to be Lifted ................................................................. 17 D. The Court Retains Inherent Power to Determine Individual Bail Applications During the Pendency of This Litigation................................................................ 18 IV. CONCLUSION................................................................................................................. 18
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TABLE OF AUTHORITIES
Page(s)
CASES
Balla v. Bd. Of Corr., 656 F. Supp. 1108 (D. Idaho 1987) .................................................................................... 14, 15
Bent v. Barr, No. 19-cv-06123, 2020 WL 1812850 (N.D. Cal. Apr. 9, 2020)............................................... 16
Brown v. Plata, 563 U.S. 493 (2011).................................................................................................................. 13
Bahena Ortuño v. Jennings, No. 20-CV-02064-MMC, 2020 WL 1701724 (N.D. Cal. Apr. 8, 2020) ...................................... 16
Bahena Ortuño v. Jennings, No. 3:20-cv-2064-MMC (N.D. Cal. May 7, 2020)............................................................... 2, 16
Doe v. Kelly, 878 F.3d 710 (9th Cir. 2017) .................................................................................................... 14
Duran v. Elrod, 713 F.2d 292 (7th Cir. 1983) .................................................................................................... 14
Ferreyra v. Decker, No. 20 CIV. 3170 (AT), 2020 WL 1989417 (S.D.N.Y. Apr. 27, 2020)............................. 15
French v. Owens, 777 F.2d 1250 (7th Cir.1985) ................................................................................................... 14
Hernandez v. Cty. Of Monterey, 110 F.Supp.3d 929 (N.D. Cal. 2015) ........................................................................................ 13
McGrath v. Cty. Of Nevada, 67 F.3d 248 (9th Cir. 1995) ...................................................................................................... 14
Orantes-Hernandez v. Smith, 541 F. Supp. 351 (C.D. Cal. 1982) ........................................................................................... 14
Pierce v. Cty. Of Orange, 526 F.3d 1190 (9th Cir. 2008) .................................................................................................. 14
Pimentel-Estrada v. Barr, No. C20-495 RSM-BAT, 2020 WL 2092430 (W.D. Wash. Apr. 28, 2020) ............................ 16
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Roman v. Wolf, No. 20-55436, 2020 WL 2188048 (9th Cir. May 5, 2020) ....................................................... 15
Savino v. Souza, No. 20-cv-10617-WGY, 2020 WL 2404923 (D. Mass May 12, 2020).................................... 15
Sharp v. Weston, 233 F.3d 1166 (9th Cir. 2000) ...................................................................................... 13, 14, 16
Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir.1986) ................................................................................................... 13
Toussaint v. Rushen, 553 F. Supp. 1365 (N.D. Cal. 1983) ......................................................................................... 13
Unknown Parties v. Johnson, No. 15-cv-00250-TUC-DCB, 2016 WL 8188563 (D. Ariz. Nov. 18, 2016)............................ 14
Vazquez Barrera v. Wolf, No. 4:20-CV-1241, 2020 WL 1904497 (S.D. Tex. Apr. 17, 2020) .......................................... 15
Webb v. Ada Cty., 145 F.3d 1343 (9th Cir. 1998) .................................................................................................. 14
U.S. CONSTITUTION U.S. Const. amend. V.................................................................................................................... 12 STATUTES 28 U.S.C. § 1331........................................................................................................................... 18 RULES Fed. R. Civ. P. 65 ............................................................................................................................ 1 N.D. Cal. Civ. L. R. 7-1 .................................................................................................................. 1
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NOTICE OF MOTION AND MOTION PLEASE TAKE NOTICE that on June 2, 2020 at 10:00 a.m., Plaintiffs will and hereby do move, pursuant to Civil L. R. 7-1 and Fed. R. Civ. P. 65(a), for a preliminary injunction directing the Federal Defendants, inter alia: (1) to maintain the detainee populations at Mesa Verde ICE Processing Facility (“Mesa Verde”) and Yuba County Jail (“Yuba”) at levels that will permit necessary social distancing; (2) to produce, for review and approval by the Court, a Facility Plan to ensure each facility achieves consistent social distancing; (3) to temporarily abstain from adding new people to the facility; and (4) to take other, related steps necessary to protect detainees against the risk of infection during the COVID-19 pandemic. This motion is supported by the Memorandum of Points and Authorities below; the Federal Defendants’ interrogatory responses; contemporaneously filed declarations of expert and fact witnesses; all papers previously filed in this case; and such argument as the Court may deem necessary. I. INTRODUCTION In its order granting Plaintiffs’ Motion for Temporary Restraining Order (ECF 53, 4/29/20) (“TRO”), the Court found that there is a “‘tinderbox risk’ of the virus spreading in crowded detention facilities” and that “ICE has failed to take sufficient action to address the obvious health risks to detainees.” (TRO at 3-4; footnotes omitted.) The Court concluded that “the plaintiffs have demonstrated an exceedingly strong likelihood that they will prevail on their claim that current conditions at the facilities violate the class members’ due process rights by unreasonably exposing them to a significant risk of harm.” (Id. at 3; footnote omitted.) The Court further found that “it is undisputed that the agency has not come close to achieving social distancing for most detainees….” (Id. at 4.) While some circumstances have changed since the TRO, Class members’ risk of infection remains unacceptably high. Despite a reduction in population at both facilities, Class members still lack the physical space needed to take the most basic steps to prevent the spread of COVID-19. ICE continues to add new Class members at both facilities.1 Plaintiffs’ experts,
1 ICE has also shuffled at least one Class member to another out-of-state facility. While Delfina Soto Soto’s bail application remained pending, Defendants released her sua sponte and five days
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having reviewed the measures taken by Defendants to date, conclude that they are not nearly sufficient, and that conditions at both facilities remain dangerously unsafe.
This will not be the first time Defendants claim to have alleviated the constitutional violation at Mesa Verde and Yuba. Defendants recently made similar protestations in Bahena Ortuño v. Jennings, which Judge Chesney found unconvincing:
Although such new procedures alleviate some of the conditions identified in [prior orders], individuals presently detained at Yuba and Mesa Verde continue to lack the ability to engage in social distancing and, were the Court to direct petitioners to return to said facilities, petitioners would encounter that same impediment ….
Order Granting Preliminary Injunction, ECF 71 at 4, Bahena Ortuño v. Jennings, No. 3:20-cv2064-MMC (N.D. Cal. May 7, 2020).
Plaintiffs continue to have an “exceedingly strong likelihood” of prevailing on the merits. Although Defendants appear to believe that the facilities’ populations have reached acceptable levels, the overwhelming facts show otherwise. Because population levels remain too high to allow for proper social distancing, Class members still sleep far too close together, stand in packed lines waiting to eat and to use bathroom facilities, and congregate in congested spaces for much of the day, creating perfect conditions for the rampant spread of COVID-19.
The preliminary injunction proposed by Plaintiffs (“Proposed PI”) appropriately addresses these problems. It is tailored to an ongoing public health crisis that is severe, but not permanent. It requires Defendants to present a detailed Facilities Plan to achieve necessary social distancing and other improvements at each facility; permits Plaintiffs to respond to the Plans; enables the Court to modify the Plans as necessary and approve them; and provides for ongoing reporting and oversight. It is necessary to (1) ensure the number of Class members remaining in the facilities is such that they are able to achieve social distancing in all of their daily activities, (2) prevent ICE from spreading the virus by adding new detainees without adequate testing or quarantine procedures or by transferring class members to other crowded ICE facilities, and (3) prevent any future recurrence of conditions violating Plaintiffs’ constitutional rights.
later rearrested her and flew her to a detention facility in Colorado where staff and a detainee had tested positive for COVID-19, all without notice to the Court and Plaintiffs. (See ECF 156, 168.)
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II. FACTS

A. Detainees at Mesa Verde and Yuba Continue to Live in Conditions that Make Adequate Social Distancing Impossible

Defendants have provided limited information concerning the physical dimensions of

living and bathroom quarters at both facilities, as well as limited information relating to meals and recreation.2 Photographs taken inside Yuba and produced in connection with prior litigation,

submitted here with the Second Supplemental Greifinger Declaration and the Andreas and

Rodriguez Declarations, graphically demonstrate the overcrowded conditions still present there.

These facts together with current Class member declarations compel the conclusion that,

although some practices have changed and the populations of both facilities have declined, it

remains impossible for Detainees to consistently achieve the necessary social distancing in any

of their daily activities.

1. Mesa Verde

a. Sleeping Quarters

Mesa Verde has four dormitories (A, B, C, and D), each of which contains 50 bunk beds,

which are separated by a median distance of just 3 feet 2 inches (edge to edge) (Int. Resp. 1.).

The distance between top and bottom bunks is 4 feet 1 inch. (Id.) In some of the dorms, the

population has been reduced to about 50, so that detainees are now sleeping one per bunk,

alternating top and bottom bunks ( a i ; Trujillo-Lopez 4-5 olis

arcia 4.). Even

this change, however, leaves a median distance of 5 feet 2 inches between the edges of bunks in

which detainees are sleeping. a i

arcia d

reifin er ) (As discussed

below, because gravity pulls droplets down to the ground, staggering of bunks does little to

alleviate the risk of transmission; only the shorter lateral distance of 3 feet 2 inches is relevant to

that risk.) Whenever someone has to get down from a top bunk, they are “as close [to the

2 Through late in the day yesterday, Defendants have been “supplementing” their interrogatory responses. Federal Defendants’ Responses, Supplemental Responses, Second Supplemental Responses, Third Supplemental Responses, and Fourth Supplemental Responses to Interrogatories are attached as Exhibits A-E to the Freeman Declaration and are referred to herein as “Int. Resp.”, “Supp. Int. Resp.”, “2d Supp. Int. Resp.”, etc.
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occupant of the neighboring bunk] as if we were going to shake hands.” (Trujillo-Lopez

olis

ai

arcia .) Detainees keep belongings in storage bins located under bottom

bunks, so a top bunk occupant who wants to retrieve belongings cannot avoid being right next to

the occupant of the neighboring bottom bunk. olis In addition, Detainees assigned to top

bunks often need to access the lower bunks, leaving occupants of adjacent lower bunks “nowhere

… to go.” (Trujillo- o e

olis .)

b. Mealtimes

Class members now eat in shifts in Mesa Verde’s two dining rooms. (2d Supp. Int. Resp.

4-5.) However, they have to wait in line for 20-30 minutes before they can get their food,

crowded “like elementary school kids lined up for lunch or people lined up for an amusement

park ride—inches apart from the person in front and behind s a i

arcia “[O]nce

we get to the cafeteria we sit at separate tables, but to get there we are within arms-length of each

other in line…. r illo

c. Bathroom Facilities

Mesa Verde’s bathrooms have sinks located 2 feet apart from each other, and toilets and

showers that are separated by 3 feet or less. (Int. Resp. 2.) Defendants have recently turned off

water to every other sink, shower, and toilet in an apparent effort to increase the distance

between people using them, but this has backfired by creating lines for the bathroom. “[N]ow

that means people have to stand in line to wait for the bathroom, because there are fewer showers

and sinks and there are so many of us.” (Trujillo- o e

ttin off some facilities as

made things worse, especially after yard time, when people have worked out and are sweaty and

ait close to et er in line to s o er arcia

And e en it alternate sin s s t off t e

sinks are still not 6 feet a art a i

is also as led to eo le as in t eir ands less at

a time when they should be washing their hands more. arcia

d. Recreation

Aside from brief periods in the exercise yard and dining room, Detainees spend 18-20

o rs a day in t e dorm olis

The only place to be during the day other than on one’s

bunk is a small area in one corner that contains three small tables, one microwave, a sink, a hot

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water dispenser, four phones and three computers. ( olis ) “With all of these items in one

area, people often congregate there to use them even though the space is really small.” (Garcia

11.) When people use the computers “they are almost touching elbows.” (Id.

ai

Watching TV requires people to crowd near each other’s bunks; “[if] I ask them to move their

chair six feet away from me … that puts them within six feet of someone else olis

2. Yuba

a. Sleeping Quarters

Unlike Mesa Verde, living quarters at Yuba consist of at least 24 differently configured

spaces referred to as pods, tanks, cells and dorms. (Supp. Int. Resp. 1-3.) These range from B-

Pod, which contains 25 bunks spaced two feet apart (side by side) and 3 feet apart (end to end);

to G-tank, which contains 10 bunkbeds in rows only 3 feet 8 inches apart side by side and

apparently only inches apart end to end; to S-Tank, which contains individual 2-person cells

measuring 6 feet 5 inches by 8 feet 6 inches, with beds vertically separated by only 3 feet and a

toilet and sink in each cell. (Id.; see generally, Rodriguez Exs. D-E and Andreas Ex. A.) In B-

Pod, all the bottom bunks are full, detainees in bunks can reach out and touch each other, and the

walkways are so narro t at only one erson can al t ro at a time Pere

In pods

and dorms with individual cells, the cells measure 6 feet by 11 feet 7 inches (Supp. Int. Resp. 1

& Appendix). Some of these cells are shared by two people (id.); but “[t]wo people cannot walk

at the same time,” and “if your roommate did not brush their teeth, you can smell their breath.”

in 6-7; see also A ilar - la .) Detainees stay in their cells at least 21 hours

every day. (Birru This is similar for Detainees in tanks: “[T]here is always someone on the

bed next to you on either side … you can reach out and touch the [bed] next to yo Arias .)

“We are all approximately 2 feet or an arms length apart from each other when we are sleeping

in o r n eds e ia see also e ia - ra o - A ilar

b. Mealtimes

Unlike at Mesa Verde, detainees at Yuba eat in their cells, dorms and pods. This creates

social distancing problems both when detainees line up to receive food, and when they sit down

to eat it. Remarkably, when lining detainees up to receive food, the facility has taken measures to

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protect servers, but with total disregard for detainees. There is now a white tape line to indicate a

distance of 6 feet between the first person in the receiving line and the server, but behind the line

people have to line up within one foot or less of each other. (Pin eiro 10; Erazo 7 in

Pere Arias Aguilar 10.) Class member Pravindar Singh reports that this is “the

only change I have seen in meal service” since arriving on March 19, 2020, and that, while

standing in a long, U-shaped line to get food, “you could breathe on the neck of the guy in front

of you.” ( in

) When eating food, detainees in dorms and “tanks” sit “shoulder to

shoulder.” (Marroquin Dec. 6; Mejia Rosas 8; Aguilar Dec. 10; Pablo Dec. 6-7.)

Detainees in cells have to sit at a tiny, 2-1/2 foot by 1 foot table next to the toilet. (Id. 11.)

Detainees housed in dorms and tanks sit at long, narrow tables where their legs or elbows touch

or at fixed tables in shared common areas in close proximity to other detainees. (Pere

arro in Aguilar Oxlaj 7 irr

ra o ; Rodriguez Exs. A-C, F-G.)

a. Bathroom Facilities

Social distancing while using the bathrooms remains impossible. Detainees in cells use a

single toilet and sink within one or two feet of the shared bunk. (Supp. Int. Resp. Appendix;

Oxlaj 8 in

) Conditions for those in dorms, B-Pod and C-Pod (where approximately

40 of the ICE detainees are housed), are typical: toilets are 2 feet 8 inches apart and sinks are 11

inches apart. (Supp. Int. Resp. Appendix; Perez ⁋ 9.) In the G through L tanks, where more than

23 of the ICE detainees are held, toilets are in the open right next to beds and the table, and

upwards of nine people share one small shower. (Arias 7; e ia A ilar .) Detainees

in cells have to wait in lines of up to 20 people because the showers are only available during

restricted hours of free time each day. ( in

)

c. Recreation3

Detainees in cells such as E-Pod have access to a small “day room” where, due to

overcrowding, it is simply not possible to be six feet apart from each other. ( in

) There

3 Plaintiffs recognize that recreation is essential to Detainees’ physical and mental health and will involve transient interactions at a distance of less than six feet. The frequency and duration of those interactions can be greatly reduced, however, by appropriately adjusting to the overall detainee population.
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are small tables in the room where six people may sit shoulder-to-shoulder. (Id.) The setup is

similar in dorms such as B-Pod. (Pere ) “It’s impossible to stay six feet apart because the

space is just too small and there are too many people [here].” (Id.) In tanks, “wherever you go,

you are always near another person … We feel like rats in a cage A ilar -12.) Detainees

get one hour per day of recreation, on a rotating basis, in a crowded yard where social distancing

is also impossible. (Arias ) To get to the yard, they have to walk down narrow corridors next

to other housing units, “glued together” and just a few feet apart from those in tanks. (Id.;

Aguilar ⁋ 27.) “It’s like those people [walking by are] in the tank with us.” (Erazo 9.)

3. Additional Evidence that Conditions Have Changed Little at Either Facility

“Everyone is worried and scared. We don’t know what is going on. The place [Yuba] has

remained the same.” ( in 8.) In fact, it appears that after some initial improvements in

sanitation following the filing of Bahena Ortuño v. Jennings, conditions at Yuba have regressed.

“After the Bahena Ortuño lawsuit was filed, officers started giving us soap every day. But that

stopped after a week or two, and now we are back to getting the little soaps two times a week

and they just do not last.” (Erazo 6.) “When you finish the bar, you have to ask to get a new

one; they do not automatically give you one. Sometimes they forget to do it, or they bring it days

later.” (Arias 6.) New detainees are continuously arriving and are not being tested for

COVID-19. ( a i -19; irr

olis 19.)

Access to healthcare appears to be largely unchanged. Despite Defendants’ claims that

there are no “actual or suspected cases” of COVID-19 at either facility, there is no basis for this

conclusion due to the near-total lack of testing. “In Dorm A, there are always people coughing.

My neighbor wakes up every day coughing … Mostly, [the medical staff] give out ibuprofen and

tell eo le to et medical attention en t ey et o t of detention arcia -22.)

Ultimately, the situation for Class members remains dangerous and desperate. “Even with

fewer people in here, it is still crowded. We are like sitting ducks in here … Even though

officials say they are trying to distance us it is not working. We are still often within inches of

each other and they have not mana ed to act ally create distance et een s olis

As

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Class member Juan Jose Erazo Herrera explains, “ICE says we are a danger to society …. We are not a dan er e are in dan er ra o .)
B. Expert Testimony Makes Clear that Class Members are Still Subject to Unreasonably Dangerous Conditions
In addition to a Second Supplemental declaration by Dr. Robert Greifinger and a Supplemental Declaration by Dr. Sandra Hernandez, Plaintiffs introduce declarations from Akiko Iwasaki, Ph.D. and Sarah Allen, M.D. Dr. Iwasaki is a professor of Immunobiology and Molecular, Cellular and Developmental Biology at Yale University, who explains in detail the relationship between the mechanisms of virus transmission and the need for social distancing. Dr. Allen is a professor of medicine in the Division of Infectious Diseases at the University of New Mexico, who discusses the range of pre-existing medical vulnerabilities that place Detainees at increased risk of severe clinical outcomes from COVID-19. Plaintiffs summarize below the highly detailed testimony of these experts to the extent that it is additive to testimony previously reviewed and accepted by the Court. (TRO at 5-7 and nn. 7-8 & 10-15.)
1. COVID-19 is Highly Contagious and Transmitted by Droplets and Aerosols
COVID-19 is highly contagious, in part, because of its low infectious dose, the long halflife of the virus, a long incubation and infection period, and transmission by asymptomatic carriers asa i 19 Allen .) The infectious dose—the number of viral particles needed to cause an infection—is suspected to be low; as few as 1,000 particles can lead to infection, and a single cough or sneeze can contain as many as 200,000,000 particles. (Iwasaki 12-13.) These particles are contained in droplets with a diameter of a fraction of a human hair, or even smaller droplet nuclei. (Id. 9-10 & n.1.)4
2. Risk of Transmission and Viral Load Correlate to Exposure and Time The likelihood of infection is correlated to exposure dose multiplied by exposure time. asa i 4.) Because of the minimal infectious dose, a brief exposure can result in infection,

4 Although the subject of scientific debate, evidence suggests that, separate and apart from

droplets, the virus also can be “aerosolized” and then subject to airborne transmission, in which

case it may remain in the air for hours and on surfaces for days. (Iwasaki

d

reifin er

Allen

n

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but the longer a person is exposed to a carrier, the more likely they are to contract COVID-19.

(Id.) Whereas infection dose (the amount needed to start an infection) is the “spark,” viral load

(the amount of virus present in a volume of fluid) is the “flame”—how brightly the virus burns in

an infected individual. (Id. 6.) The greater the viral load per exposure, the more severe the

likely clinical outcome. (Id.) And once a person becomes infected, the person’s viral load

increases as the virus takes over the cellular machinery and makes copies of itself at an

exponential rate. Allen

The higher a person’s viral load, the more likely that person is to

“shed” viral particles and infect others. (Iwasaki 5.)

3. A Broad Range of Pre-Existing Medical Conditions Increases Risk of a Severe Clinical Outcome from COVID-19 Infection

Defendants acknowledge that the risk of a severe clinical outcome is also increased by

pre-existing comorbidities but claim that the CDC only identifies a handful of pre-existing

conditions as increasing the risk. (Defs.’ Resp. to Common Issues Brief, ECF42, at 3.) The CDC

itself, however, “lists a far broader range of medical conditions that can increase vulnerability to

COVID-19.” Allen

Furthermore, “there are additional conditions beyond those

recognized by the CDC that, according to recognized sources in the medical literature, are also

associated with worse outcomes.” (Id.)

Dr. Allen describes in detail the conditions not acknowledged by Defendants, but

recognized by the CDC and in the medical literature, including: HIV, obesity (BMI over 30),

hypertension, cardiovascular disease, heart conditions, history of smoking, cancer, chronic

respiratory or lung disease, Hepatitis C, autoimmune disorders, endocrine disorders,

corticosteroid use, history of head injuries, prior organ transplant, blood disorders, neurological

and neurodevelopmental conditions, high cholesterol, tuberculosis, and mental illness. (Id. -

40.) There is a clear association between these conditions and severe or fatal outcomes. (Id.

48.) In addition, age increases risk along a continuum, with increased risk starting as young as 40

years of age; anyone older than 50 is “far from safe.” (Id.

n 9.)

4. Social Distancing is Essential to Risk Reduction

Social distancing remains “the most critical tool to limit the individual and community

risk of COVID infection.” (2d Supp. Greifinger 5, 14.) “Social distancing,” however, means
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more than maintaining six feet of distance during brief encounters such as on the sidewalk or in a

grocery store; it “first and foremost incorporates the idea of avoiding prolonged contact in

confined spaces, i.e., congregate settings and mass gatherings, wherever possible.” (Id. 10.)

Droplets propelled from a cough may carry the virus up to 16 feet and from a sneeze up to 27

feet. d

reifin er

Multiple studies of indoor viral transmission confirm the risks

posed to adjacent persons by people infected with COVID, including asymptomatic carriers.

(Iwasaki -28.) “[W]hile not a perfect solution, six-foot social distancing is safer than no

social distancing because it provides a significant degree of protection of individuals against

droplet [as opposed to aerosol] transmission.” (Id. 22; see also, d

reifin er 11.) In

the case of sleeping arrangements, however, a 10-foot separation is “the bare minimum to

provide a degree of protection from infection for those sleeping in congregate settings” due to

both the length of exposure while sleeping and the necessity of people getting in and out of beds.

d

reifin er 4-15.)

5. “Staggered” Bunks Do Nothing to Mitigate the Risk of Sleeping in a Congregate Setting
Defendants assert that they are now “staggering” the placement of detainees in some

bunk beds, apparently based on a notion that, because the diagonal distance between a top- and

bottom-bed sleeper in adjacent bunks is slightly greater than the lateral distance between the

bunks themselves, detainees must necessarily be safer. This is not supported by any expert

opinion and is contrary to the basic science. Dr. Greifinger, who has over 30 years of experience

in health care for prisoners, concludes that, because droplets fall due to gravity, staggering “does

little to eliminate or reduce the risk of infection for those in neighboring bunks because droplets

are heavy and fall from the air after traveling a few feet.” (Id. 16, 22.) Accordingly, “[t]he

appropriate consideration of distance between beds is the lateral distance, regardless of whether

individuals are on the top or bottom bunks, or whether they are staggered between upper and

lower bunks.” (Id. 4.) Dr. Iwasaki agrees asa i

6. Mesa Verde and Yuba Remain Extraordinarily Dangerous

Dr. Iwasaki, Dr. Greifinger and Dr. Allen have all reviewed Defendants’ interrogatory

responses and conclude that “there is an extraordinarily high risk of infectious spread of COVID-
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at esa Verde and a asa i 29); that it is “fundamentally unsafe to house

individuals in the current conditions,” which “all but guarantee[ ] mass infection” (Id. 34); that

the conditions at the two facilities “are ripe for outbreak” (Allen 6, 46); and that “ICE’s

response to the threat of COVID-19 in Mesa Verde and Yuba has been woefully inadequate.” (2d

reifin er 61.) Among other things, living in congregate settings leads to increased

viral load exposure, which “affects how likely someone is to infect others, and how sick they

ecome from t at infection asa i 35 and 6-38.) Social distancing is “particularly

important for those with pre-existing medical conditions Allen 1.) Since the “many shared

common spaces and amenities create a high likelihood of mass infection,” increased social

distancing, along with other measures, is “vital to slowing the spread.” (Iwasaki 0-43.) Dr.

Allen concludes that “the current conditions at Yuba County Jail and Mesa Verde are very

dangerous” and “it is very likely people will become infected and die because of the unsafe

conditions at t ese facilities Allen

Dr. Greifinger in particular has reviewed each of the separate housing facilities at Mesa

Verde and Yuba based on photographs, fact witness declarations, and interrogatory responses—

including the “Defendants’ Fourth Supplemental Responses” served late yesterday—and

concluded that “social distancing is impossible in the sleeping facilities used by detainees at

Mesa Verde and Yuba given current structures and population levels.” (2d Supp. Greifinger 3,

18.) His detailed observations about the dangers posed by current conditions, together with

photographs and schematic renderings, is found at -47 of his Second Supplemental

Declaration. Of particular note, he observes that Defendants’ claim that a particular facility is at

or less than “50% capacity” involves a “meaningless figure” that “does not tell me whether there

is adequate social distancing.” (Id.

What matters is whether “people are able to maintain

distance from one another,” and that cannot presently be achieved at either Mesa Verde or Yuba.

(Id.

9.)

Dr. Greifinger concludes that “the only way to achieve meaningful social distancing in

t ese facilities is to si nificantly decrease t eir o lation le els d

reifin er

Dr. Iwasaki agrees that “the best way to reduce the risk of mass infection is to significantly

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depo late t e facilities asa i 46.) In the absence of significant depopulation, “the second most important means of reducing risk of infection to individuals in these settings” is “ensuring a minimum of ten feet between beds for sleeping in a congregate setting and six feet for all other interactions (such as while standing in line, eating, or passing by other individuals).” (2d Supp.
reifin er .) 7. The Risks to Detainees—and to Public Health in the Surrounding Communities—Will Increase as Restrictions on the General Population are Lifted
As California undergoes a phased approach to modifying its existing stay-at-home order Hernande -11), the ability to practice social distancing will remain “fundamental” to all phases of the process. (Id. 12.) “As more members of the community rejoin the general public, the risk of community transmission into detention facilities is increased” because detention staff, vendors and visitors enter and exit the facilities each day. (Id. -14.) Thus, with public officials “bracing for a second wave of infection as more people circulate within their communities,” the “risk of infection for Mesa Verde or Yuba will, if anything, heighten.” (Id. 4, 21.) For these reasons, “[r]elaxing safety measures or increasing population levels within the facility [as restrictions on the general population are gradually lifted] could have dire consequences on detainees, staff and the surrounding health care infrastructure.” (Id. 4.) III. ARGUMENT The above evidence makes abundantly clear that the constitutional violation recognized by courts around the country remains to this day. In the context of the COVID-19 pandemic, civil detention at population levels that fail to accommodate social distancing violates the Fifth Amendment’s prohibition on punitive conditions of confinement in civil detention. Because social distancing remains impossible at Mesa Verde and Yuba, the constitutional violation this Court recognized three weeks ago when it granted Plaintiffs’ TRO is ongoing. Although ICE has instituted some changes under pressure produced by litigation, its conduct has been characterized throughout by what the Court has referred to as a “lack of dexterity and flexibility,” and it has made clear since the inception of the pandemic that it will
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not act on its own to protect detainees in its care. In the absence of a detailed and specific injunction, ICE will revert to “business as usual,” ignoring the risk to Class members.
A. The Court Has Broad Power to Fashion Relief that is Appropriate and Necessary to Alleviate the Identified Constitutional Violation
“Once invoked, the scope of a district court’s equitable powers . . . is broad, for breadth and flexibility are inherent in equitable remedies.” Brown v. Plata, 563 U.S. 493, 538 (2011) (quotations omitted). District courts may order “relief that the Constitution would not of its own force initially require if such relief is necessary to remedy a constitutional violation.” Toussaint v. McCarthy, 801 F.2d 1080, 1087 (9th Cir.1986); see also Sharp v. Weston, 233 F.3d 1166, 1173 (9th Cir. 2000) (noting district courts’ “broad powers to fashion a remedy” in affirming prison medical care injunction). The provisional remedies Plaintiffs propose are comfortably within the range endorsed by courts in this Circuit and around the country.
District courts in the Ninth Circuit have fashioned provisional remedies going to nearly every aspect of confinement, including hygiene and sanitation, medical care, basic jail infrastructure, and assorted aspects of daily life. See Hernandez v. Cty. Of Monterey, 110 F.Supp.3d 929, 959 (N.D. Cal. 2015) (ordering treatment protocols compliant with CDC guidelines); Toussaint v. Rushen, 553 F. Supp. 1365, 1385 (N.D. Cal. 1983), aff’d in part sub nom. Toussaint v. Yockey, 722 F.2d 1490 (9th Cir. 1984) (improvements to plumbing, heating, and cooling infrastructure, limits on double-celling, bedding and laundry standards, cleanliness in cells, mail rights, improvements to medical care, and limits on use of administrative segregation); Sharp, 233 F.3d at 1173 (requiring adoption and implementation of plan for training and hiring competent sex offender therapists and developing individual treatment plans). Courts have done the same where civil immigration detention conditions are unconstitutional. See Unknown Parties v. Johnson, No. 15-cv-00250-TUC-DCB, 2016 WL 8188563, at *15 (D. Ariz. Nov. 18, 2016), clarified on denial of reconsideration, 2017 WL 467238 (D. Ariz. Jan. 3, 2017), aff’d sub nom. Doe v. Kelly, 878 F.3d 710 (9th Cir. 2017) (addressing hygiene and sanitation deficiencies for immigration detainees and requiring clean bedding with blanket and mat, along with other relief, for all detainees held for more than twelve hours); OrantesHernandez v. Smith, 541 F. Supp. 351, 384-85 (C.D. Cal. 1982) (invalidating solitary
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confinement of detained asylum seekers and requiring that they have access to legal information, legal visits and telephones).
District courts also frequently impose limits on population and on how many individuals can be housed in single cells to cure constitutional violations. See, e.g., Pierce v. Cty. Of Orange, 526 F.3d 1190, 1207 (9th Cir. 2008) (population caps are “an appropriate remedy when overcrowding rises to the level of constitutional violation”); see also Webb v. Ada Cty., 145 F.3d 1343 (9th Cir. 1998) (alleviating “conditions of confinement problems [in overcrowded jail]… in full or in part by the population reduction.”); McGrath v. Cty. Of Nevada, 67 F.3d 248, 251 (9th Cir. 1995) (“strict population cap” to remedy overcrowding in Nevada jails); French v. Owens, 777 F.2d 1250 (7th Cir.1985) (affirming, among other remedies, imposition of population cap and prohibition of double-celling); Balla v. Bd. Of Corr., 656 F. Supp. 1108, 1119 (D. Idaho 1987) (injunction imposing population cap and prohibiting double-celling). In fashioning population caps to remedy overcrowding, courts have issued, where needed, concomitant release orders to reduce inmate populations to constitutionally sound levels. See, e.g., Duran v. Elrod, 713 F.2d 292, 293 (7th Cir. 1983) (affirming order requiring release of certain pre-trial detainees, in tandem with population cap).
The Proposed PI, in similar but gentler fashion, would suspend the addition of detainees until Defendants achieve social distancing, and thereafter limit new arrivals to situations where the overall population is not increased and where those additional individuals are tested and/or quarantined upon arrival. See Savino v. Souza, No. 20-cv-10617-WGY, 2020 WL 2404923, *11 (D. Mass May 12, 2020) (granting preliminary injunction ordering “[n]o new immigration detainees may be admitted to Bristol County House of Correction.”). ICE would also be required to take reasonable steps to ensure that additions or transfers are consistent with the CDC’s guidance to “suspend” all transfers into facilities absent specified compelling circumstances.5 See also Roman v. Wolf, No. 20-55436, 2020 WL 2188048, at *1 (9th Cir. May 5, 2020)
5 CDC, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html (last visited May 21, 2020).
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(declining to stay preliminary injunction provision requiring substantial compliance with these CDC guidelines).
As these cases show, it is well within this Court’s power to remedy constitutional violations at Mesa Verde and Yuba by imposing appropriate limits on the facilities’ populations after evaluating the Facilities Plans and any objections thereto; by limiting or conditioning transfers into and out of the facilities; and by ordering additional releases, as contemplated by the Proposed PI.
B. Requiring ICE to Maintain a Population Level that Enables Consistent Social Distancing is an Appropriate Remedy
As Plaintiffs explained in their motion for a TRO, holding civil immigration detainees in a congregate setting that presents a heightened risk for transmission of COVID-19 is excessive in relation to ICE’s interest in their detention, particularly given effective alternatives, such as conditions of release and electronic monitoring. (ECF 5 at 13-18.)6 Such detention also constitutes deliberate indifference. (Id. at 18-21.) The Court has already recognized—on a factual record little different than the one presented here, as to social distancing—that Plaintiffs are “exceedingly” likely to prevail on these due process claims. (TRO at 3.)
In many ways, the situation has only worsened since Plaintiffs briefed these constitutional issues and the Court granted provisional relief. Defendants continue to add new people to Mesa Verde and Yuba on a nearly daily basis, even as the Court grants release of certain Class members on bail. COVID-19 infections have continued to spread at ICE facilities around the country—1,181 ICE detainees are now confirmed to have the virus, while approximately 50 per cent of ICE administered COVID-19 tests come back positive.7 After
6 See also Vazquez Barrera v. Wolf, No. 4:20-CV-1241, 2020 WL 1904497, at *7 (S.D. Tex. Apr. 17, 2020) (“ICE has a number of alternative tools available to it to ensure enforcement, which it is free to use with Plaintiffs if they are released from detention. For example, ICE's conditional supervision program uses a combination of electronic ankle monitors, biometric voice recognition software, unannounced home visits, employer verification, and in-person reporting requirements to supervise individuals released from detention.”); Ferreyra v. Decker, No. 20 CIV. 3170 (AT), 2020 WL 1989417, at *11 n.6 (S.D.N.Y. Apr. 27, 2020) (collecting cases where courts imposed alternatives to detention in light of COVID-19). 7 See Confirmed Cases, https://www.ice.gov/coronavirus.
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months of criticism, Defendants have failed to develop adequate testing and quarantine practices

that reflect the reality of asymptomatic transfer. See, e.g., Bent v. Barr, No. 19-cv-06123, 2020

WL 1812850, at *6 (N.D. Cal. Apr. 9, 2020) (noting ICE’s failure to comply with CDC

guidelines); Bahena Ortuño v. Jennings, No. 20-CV-02064-MMC, 2020 WL 1701724, at *4

(N.D. Cal. Apr. 8, 2020) (same). Moreover, despite population reductions at Mesa Verde and

Yuba, social distancing remains impossible. See Bahena Ortuño, No. 3:20-cv-2064-MMC, ECF

71 at 4 (granting preliminary injunction where “individuals presently detained at Yuba and Mesa

Verde continue to lack the ability to engage in social distancing”); see also Pimentel-Estrada v.

Barr, No. C20-495 RSM-BAT, 2020 WL 2092430, at *11, 13-14 (W.D. Wash. Apr. 28, 2020)

(granting TRO where “ICE has not reduced or rearranged the population at the NWIPC such that

appropriate and meaningful social distancing is possible”). The constitutional violations

underlying the TRO persist today.

The current pandemic has created an unprecedented problem that requires the kind of

flexible response that is well within this Court’s “broad powers to fashion a remedy” under

Sharp, supra, and similar cases. Plaintiffs’ claim is based on the (presumably) transient risk

posed by a novel coronavirus that is highly contagious and for which there is no vaccine.

( om laint

) Accordingly, the Court may order relief that is temporally limited by

the duration of the pandemic’s unique threat to people in carceral settings and addresses the

unacceptable elevated risks of contracting COVID-19 that they currently face. While Defendants

have made some efforts to address conditions within the facilities, they are unable to prove that

any of these efforts have appreciably reduced the danger to Class members. All of the scientific

evidence is to the contrary.

Due to the exigency of the current situation and the limited amount of discovery to date,

neither Plaintiffs nor the Court have complete visibility into the additional steps that may be

available to Defendants to eliminate the constitutional violation. For this reason, it is appropriate

to provide Defendants an opportunity to demonstrate how they could do so. But particularly in

light of Defendants’ conduct to date, it is equally appropriate to demand that Defendants’

proposal be highly detailed and highly specific. Plaintiffs can then challenge the Facilities Plans

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after inspecting the facilities and taking a Rule 30(b)(6) deposition. At that point the Court will

be in a position to determine what further steps, if any, Defendants must take to ensure that

Plaintiffs continued detention is constitutional, including guaranteeing appropriate “social

distancing at the facilities.” (TRO at 5-6.)

The Proposed PI also provides for continuation of release applications under current

protocols until the Facilities Plans are approved by the Court and implemented by Defendants;

further release applications for medially vulnerable individuals thereafter as appropriate; and the

suspension of adding detainees into the facilities until the Facilities Plans are approved by the

Court and implemented. The Proposed PI also requires Defendants to provide necessary

information to Plaintiffs’ counsel concerning transfers out (to prevent inappropriate efforts to

remove persons from the Class) and transfers in (to identify new Class members); and contains

provisions that permit the Court to modify it as conditions warrant, and ultimately to dissolve it

when appropriate. Just like the approach taken by this Court in granting Plaintiffs’ TRO,

Plaintiffs’ requested approach here is a “cautious and methodical” one that is appropriate to “address the constitutional problem presented by this case.” (TRO at 6.)8

C. These Facilities Will Remain Dangerous Long After Restrictions on the General Population Begin to be Lifted
Defendants have argued that, even if the Court requires corrective measures to be taken,

the duration of such requirements should be pegged to the initial relaxation of “shelter in place”

orders, and that anyone who is released from ICE detention should be automatically returned to

detention as soon as government authorities begin to relax those orders. (Opp. to Motion for

TRO, ECF 37, at 30.) For the reasons set forth by Dr. Hernandez, however, terminating

injunctive relief so soon would be extraordinarily dangerous to both Class members and the

comm nities s rro ndin t e facilities

Hernande

-27.)

8 Even if the Court were to determine that Defendants had succeeded in eliminating the constitutional violations it identified when granting Plaintiffs’ TRO, a preliminary injunction would remain necessary to prevent Defendants from undoing the measures they have taken thus far to address conditions at the facilities. Plaintiffs will address this issue in their response to Defendants’ anticipated motion to dissolve the TRO.
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D. The Court Retains Inherent Power to Determine Individual Bail Applications During the Pendency of This Litigation
As this Court has already determined, “[i]n extraordinary cases like this, federal judges have the authority to release detainees on bail while their habeas cases are pending.” (TRO Order at 5; footnote and case cites omitted.) In addition, as Plaintiffs have previously briefed, the Court has independent jurisdiction over Plaintiffs’ claims for declaratory and injunctive relief under 28 U.S.C. § 1331. (Reply in Support of Motion for TRO, 39, at 4.) Plaintiffs are prepared to respond to any new argument from Defendants in their reply brief.

IV. CONCLUSION This Court should grant Plaintiffs’ motion and issue a preliminary injunction in the form
submitted herewith.

Dated: May 22, 2020
Bree Bernwanger Hayden Rodarte LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA Judah Lakin Amalia Wille LAKIN & WILLE LLP Jordan Wells Stephanie Padilla AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA

Respectfully submitted,
/s/ William S. Freeman William S. Freeman Sean Riordan Angélica Salceda AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA
Manohar Raju Public Defender Matt Gonzalez Chief Attorney Francisco Ugarte Genna Ellis Beier Emilou H. MacLean OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO
Martin S. Schenker Timothy W. Cook Francisco M. Unger COOLEY LLP
Attorneys for Petitioners-Plaintiffs

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Case 3:20-cv-02731-VC Document 229-1 Filed 05/22/20 Page 1 of 8

WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org SEAN RIORDAN (SBN 255752) sriordan@aclunc.org ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: (415) 553-9319 Facsimile: (415) 553-9810

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUBI RUIZ TOVAR, LAWRENCE KURIA MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,
Petitioners-Plaintiffs,

CASE NO. 3:20-CV-02731-VC
DECLARATION OF CAMILO ABEL ARIAS MARROQUIN IN SUPPORT OF PETITIONERS-PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

v.

DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,

Respondents-Defendants.

CASE NO. 3:20-CV-02731-VC DECLARATION OF CAMILO ABEL ARIAS MARROQUIN

Case 3:20-cv-02731-VC Document 229-1 Filed 05/22/20 Page 2 of 8

BREE BERNWANGER* (NY SBN 5036397) bbernwanger@lccrsf.org HAYDEN RODARTE (SBN 329432) hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA 131 Steuart St #400 San Francisco, CA 94105 Telephone: (415) 814-7631
JUDAH LAKIN (SBN 307740) judah@lakinwille.com AMALIA WILLE (SBN 293342) amalia@lakinwille.com LAKIN & WILLE LLP 1939 Harrison Street, Suite 420 Oakland, CA 94612 Telephone: (510) 379-9216 Facsimile: (510) 379-9219

MARTIN S. SCHENKER (SBN 109828) mschenker@cooley.com COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111 Telephone: (415) 693-2000 Facsimile: (415) 693-2222
TIMOTHY W. COOK* (Mass. BBO# 688688) tcook@cooley.com FRANCISCO M. UNGER* (Mass. BBO# 698807) funger@cooley.com COOLEY LLP 500 Boylston Street Boston, MA 02116 Telephone: (617) 937-2300 Facsimile: (617) 937-2400

JORDAN WELLS (SBN 326491) jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568) spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA 1313 West Eighth Street Los Angeles, CA 90017 Telephone: (213) 977-9500 Facsimile: (213) 977-5297

Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice

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DECLARATION OF CAMILO ABEL ARIAS MARROQUIN I, Camilo Abel Arias Marroquin, hereby declare and state:
1. My complete name is Camilo Abel Arias Marroquin. I am 27 years-old, and I am currently detained at the Yuba County Jail. The following declaration is based on my personal knowledge, and, if called to testify to these facts, I would do so competently. I make this declaration in support of the Motion for Preliminary Injunction in Zepeda Rivas, et al. v. Jennings, et al., 20-cv-02731-VC.
2. I have been detained by ICE at Yuba County Jail since March 12, 2020, about two months. I was picked up by ICE on my release from San Quentin, and I was initially housed in J Tank. I came right around the time when everyone in California and the country started to get really scared about coronavirus. Lack of Social Distancing While Sleeping
3. J Tank holds a maximum of 12 people with six bunkbeds. When I arrived, there were ten of us, and one empty bed. I was the only one from ICE, everyone else was from county. The beds were close to one another—just a few feet away. You could reach out and touch the other bed when you were lying down. I had someone above me and next to me the whole time.
4. On May 8, 2020, our whole pod was moved. They told us we needed to move because they wanted to put more people in J. We packed up our stuff and they brought all of us to L Tank.
5. L Tank is even worse than J Tank. It is a smaller, dirtier room. There were already three people in L Tank when we arrived, so now there are about ten of us. We sleep in two rows of beds. There are some free beds, but it does not matter because there is always someone on the bed next to you on either side. Like before, the rows of beds are close together, and you can reach out and touch the one next to you. The beds are attached to the wall, and it looks as though they have not been cleaned in years. They are quite narrow. Lack of Social Distancing at Meals
6. We eat all of our meals in the same dorm where we sleep and use the restroom. We line up next to our bunks in line to get our food. We are less than six feet apart as we stand in
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line. A deputy brings in a cart and gives each one of us a tray. The official is about 2-3 feet away when he is serving us food. Then we take all take our food to the table and eat at the same time. There is a long table where we sit shoulder-to-shoulder. It is nailed to the floor and the benches are welded to the table. The utensils are in bad condition. The glasses look old and cloudy. The spoons sometimes look like they have been chewed on, even on the handle. Lack of Social Distancing While Using the Bathroom
7. The toilets and shower are also in our dorm room. There are three toilets and one shower for all of us. One toilet is next to one row of bunkbeds; the other toilet is next to the other line of bunkbeds; and the third is next to the shower and before the table. The toilets are completely in the open. There is no curtain, no wall, nothing. If you have to use the bathroom, you have no privacy. There is someone who has diarrhea in our dorm, so it has been pretty disgusting. The shower is separated from the rest of the dorm by a curtain only. The shower is the only place where you have even a little bit of privacy. Everywhere else, you can be seen by other dormmates, and by the camera that they have monitoring us at all times. Lack of Social Distancing During Recreation
8. We have one hour a day of recreation time in the yard, five days a week. Otherwise, we stay in our dorm. One dorm goes to the yard immediately after the next, starting in the morning and going like that hour after hour each day. Our whole dorm goes to the yard at the same time. To get there, we walk down hallways that are maybe three feet or so wide. We are glued together as we walk down the hall to get there. The yard itself is not that large. Maybe about 12-14 feet wide and about 20 feet long, so we cannot stay six feet apart at all times.
9. The yard is also in bad condition. I do not know the last time they cleaned it. I do not think that they clean it between when one dormitory leaves and another comes in. There are two baskets to play basketball, some exercise bars, and a dirty bathroom. Even though the area does not get disinfected as far as I know, I need to deal with my stress by exercising. It feels like I am choosing between one part of my health and another. I touch the same bars, and basketball that everyone else has touched. They should be giving us gloves for this, but they have not.
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10. The only other space I have been in is the phone room. ICE does not have staff there all the time, and I do not think the phone room is cleaned often. Inside there are two phones in a room that is not very large. If you were in there making a call at the same time as another person, you would definitely be less than six feet away. From what I remember when I was there last a few weeks ago, there is nothing to disinfect the phones with before you make a call. Lack of Social Distancing During Trips to ICE Sacramento
11. When we are brought to the ICE Sacramento office, we cannot keep our distance from other detainees or the guards. Last week, when I went to ICE Sacramento to appear in immigration court, I was concerned to see that the security officer who brought us did not have a mask or gloves and did not maintain his distance from us. He puts handcuffs on us and a chain on our waist and a chain on our feet.
12. The officer drove us to ICE Sacramento in a van, where we are all sitting close together. In the van there are four seats which appear to hold two people each based on the number of seatbelts. But sometimes there are more than eight people in the van. Last week, there were ten detainees total in the van, all squished together, breathing the same air.
13. The officer then brought us inside the building where we wait in a group cell to appear by tele-video for immigration court. When we are in the cell waiting for court, we are not six feet apart. When we have our immigration court hearing, they bring us out to the “day room.” The security officer stands close to us while we have our hearing. The officer last week did not have gloves or a mask.
14. We spend maybe six hours at the ICE office in an enclosed space and then we return in the same van. If a security official gets the virus, I think we would all be infected by this exposure, and then we would bring it back with us to the facility. Problems with Issuance and Use of Masks
15. We were given masks, but I do not like to wear them because I do not know how clean they are. Every week, we give our masks back to the staff. They clean all the masks and then give us a mask that someone else wore the week before. I do not know who wore it. I do not
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know what they did to clean it, or who cleaned it. Even the clothes we were given (especially those of us from ICE) are dirty and torn, so I don’t trust whatever cleaning process they have. Lack of Proper Hygiene and Sanitation
16. We are given small bars of soap, like the kind you would get at a motel. It is about 3 inches and ½ inch thick. It is for our hands, for the shower, and for our clothes. When you finish the bar, you have to ask to get a new one; they do not automatically give you one. Sometimes they forget to do it, or they bring it days later. I prefer not to ask them, and I just buy soap in commissary. I am lucky because my family can put money on my books. Imagine if you did not have family who could do that for you.
17. Every day, a deputy comes in to clean with a bleach spray. We have to stay in there while they are spraying. The bleach is thrown on the ground, and sprayed on the tables, but they do not use a mop or anything. It is really strong smelling, and I have to cover my mouth. I do not think it is good for your lungs to smell bleach like that in an enclosed space with not much fresh air. I have always had asthma since I was little, and I do not think it is good for me. I do not feel confident that things are getting clean either. This is the only cleaning that happens, except sometimes when they let us have a mop for 30 minutes to clean the floors.
18. They take our temperatures but inconsistently. Sometimes, they come in every day for several days in a row to check us. We wait in a line by our bunks, just like we do when we are waiting for food. We are close together when we wait. Other times, they forget to come or just do not come. Symptomatic Detainees and Lack of Access to Healthcare
19. There is a county detainee in my dorm who has been sick for about a week. He was arrested on the street and brought to Yuba about three weeks ago with a few other county guys who arrived. He has not really gotten out of bed in the past week. He has vomiting and diarrhea. He feels tired and his body hurts. He has asked to speak with a doctor, but to my knowledge no one has seen him. We are all just waiting for him to get a fever, or worse. We are worried that he has the virus, and that he brought it from outside.
4 CASE NO. 3:20-CV-02731-VC DECLARATION OF CAMILO ABEL ARIAS MARROQUIN

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20. I am afraid of contracting the virus because of my health conditions. As I mentioned, I have always had asthma. I also have mental health problems, including anxiety, depression, and stress. I take pills in the morning and in the evening here for my anxiety and to help me sleep. Years ago, I also had heart problems. All of a sudden, I would get pains in my chest. I managed this problem with medication in my country. Conclusion
21. The response of the jail to the pandemic is a sad joke. They have put up flyers saying that we have to keep social distance, and warning us about the symptoms of coronavirus. But what does that do if there is no way to keep our distance, and no way to protect ourselves?
22. Yuba is worse than being in prison by far. I was at San Quentin, one of the oldest prisons in California. If I had the choice, I would go back to San Quentin a thousand times over Yuba. There, they clean the dorm areas three times a day (and this was before coronavirus). It is better maintained. They gave us new soap every day. The medical staff are more attentive; you have to get a medical exam every three months. When I came to Yuba, I could immediately see the difference. They gave me a dirty sweatshirt. When I tried to return it for a clean one, the deputy said to me, “Nobody gets special treatment here.” As an ICE detainee, I feel that we are discriminated against by the deputies.
23. My hope is to reunite with my family, with my girlfriend. They have supported me through this, and I want to be with them. I would like to continue studying English. Before being arrested, I had started to take summer community college classes in Marin County. I was always a commercial painter. I have also worked in maintenance.

I, Camilo Abel Arias Marroquin, declare under penalty of perjury that the foregoing is true and correct to the best of my recollection. I sign this from Marysville, California.

Date: May 18, 2020

//s// Camilo Abel Arias Marroquin Camilo Abel Arias Marroquin

5 CASE NO. 3:20-CV-02731-VC DECLARATION OF CAMILO ABEL ARIAS MARROQUIN

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CERTIFICATE OF INTERPRETATION AND AFFIRMATION I, Genna Ellis Beier, certify that I am fluent in Spanish and English and that I am competent to interpret between these languages. I further certify that I have read the foregoing to Camilo Abel Arias Marroquin in Spanish. I further declare that I am competent to render this interpretation and that I would testify to the same under the penalty of perjury if I were called upon to do so.

I further certify that on May 18, 2020 I read the foregoing to Camilo Abel Arias Marroquin and that he affirmed that the foregoing is true and correct. I have not been able to obtain a signature from him because Yuba County Jail is located approximately three hours away from my home by car, and at the time I reviewed the foregoing declaration with him, the county where I reside was, and remains, under a “shelter in place” order.

Date: May 18, 2020

//s// Genna Ellis Beier Genna Ellis Beier

6 CASE NO. 3:20-CV-02731-VC DECLARATION OF CAMILO ABEL ARIAS MARROQUIN

Case 3:20-cv-02731-VC Document 229-2 Filed 05/22/20 Page 1 of 19

WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org SEAN RIORDAN (SBN 255752) sriordan@aclunc.org ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: (415) 553-9319 Facsimile: (415) 553-9810

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUBI RUIZ TOVAR, LAWRENCE KURIA MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,
Petitioners-Plaintiffs,

CASE NO. 3:20-CV-02731-VC DECLARATION OF AROLDO RODRIGUEZ DIAZ IN SUPPORT OF PETITIONERS-PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

v.

DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,

Respondents-Defendants.

CASE NO. 3:20-CV-02731-VC DECLARATION OF AROLDO RODRIGUEZ DIAZ

Case 3:20-cv-02731-VC Document 229-2 Filed 05/22/20 Page 2 of 19

BREE BERNWANGER* (NY SBN 5036397) bbernwanger@lccrsf.org HAYDEN RODARTE (SBN 329432) hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA 131 Steuart St #400 San Francisco, CA 94105 Telephone: (415) 814-7631
JUDAH LAKIN (SBN 307740) judah@lakinwille.com AMALIA WILLE (SBN 293342) amalia@lakinwille.com LAKIN & WILLE LLP 1939 Harrison Street, Suite 420 Oakland, CA 94612 Telephone: (510) 379-9216 Facsimile: (510) 379-9219

MARTIN S. SCHENKER (SBN 109828) mschenker@cooley.com COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111 Telephone: (415) 693-2000 Facsimile: (415) 693-2222
TIMOTHY W. COOK* (Mass. BBO# 688688) tcook@cooley.com FRANCISCO M. UNGER* (Mass. BBO# 698807) funger@cooley.com COOLEY LLP 500 Boylston Street Boston, MA 02116 Telephone: (617) 937-2300 Facsimile: (617) 937-2400

JORDAN WELLS (SBN 326491) jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568) spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA 1313 West Eighth Street Los Angeles, CA 90017 Telephone: (213) 977-9500 Facsimile: (213) 977-5297
Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice

CASE NO. 3:20-CV-02731-VC DECLARATION OF AROLDO RODRIGUEZ DIAZ

Case 3:20-cv-02731-VC Document 229-2 Filed 05/22/20 Page 3 of 19
DECLARATION OF AROLDO RODRIGUEZ DIAZ 1. I was detained by ICE at Yuba County Jail from December 19, 2018 to May 15, 2020. During the time of my detention, I was detained in D-pod and H-tank. I was detained in Dpod for most of the time I was in Yuba, and I was in H-tank for the last week of my detention. I also am familiar with all of the tanks as well as the common space in A-pod because I walked by the tanks and A-pod daily when I went to use the phones. 2. I have reviewed the attached photographs, which I am informed were previously taken of the Tanks and A-pod at the Yuba County Jail.
3. Exhibit A is a photo of the common area or “day room ” of one of the “tanks.” It resembles the day room of H-tank, but I know that some of the “tanks” are constructed the same.
4. Exhibits B & C is a photo of the common area of H-tank with the lavatory, sink and shower visible.
5. Exhibit D is a photo of one of the sleeping areas of one of the “tanks.” 6. Exhibit E is a photo of the hallway by the “tanks.” 7. Exhibit F is a photo of the common space of A-pod. 8. I was informed that Dr. Pablo Stewart attested in a declaration filed in Hedrick v. Grant that the photographs in Exhibits A-F were taken of the common areas of the tanks, the sleeping area in the tanks, the hallway beside the Tanks, and the common space of A-pod. I can confirm that his descriptions of what the specific photographs are depicting remain the same. 9. Exhibit G is a photograph of the sleeping and common space in I-tank. I was informed that this was presented in a declaration of Carl Takei filed in Lyon v. ICE and described to be a photograph of the dormitory of I-tank. I can confirm that this is what the photograph depicts. 10. Although the photographs were taken before my detention at Yuba County Jail, they accurately show what the bunks, eating spaces and lavatory in H-tank look like, what the bunks in I-tank look like, what the hallway by the Tanks look like, and what the common space in A-pod looks like, as well as their layout, and their proximity to each other as of the time I
1 CASE NO. 3:20-CV-02731-VC DECLARATION OF AROLDO RODRIGUEZ DIAZ

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resided in Yuba County Jail. The paint colors are different in some places but the structures and layout are the same.

I, Aroldo Rodriguez Diaz, declare under penalty of perjury that the foregoing is true and correct

to the best of my recollection. I sign this from Redwood City, California.

Date: May 20, 2020

//s// Aroldo Rodriguez Diaz Aroldo Rodriguez Diaz

2 CASE NO. 3:20-CV-02731-VC DECLARATION OF AROLDO RODRIGUEZ DIAZ

Case 3:20-cv-02731-VC Document 229-2 Filed 05/22/20 Page 5 of 19

CERTIFICATE OF AFFIRMATION

I, Emilou MacLean, certify that I have read the foregoing to Aroldo Rodriguez Diaz and that he

affirmed that the foregoing is true and correct. I have not been able to obtain a signature from

Aroldo Rodriguez Diaz because the location where he is in quarantine is located approximately

one hour away from my home by car, and at the time I reviewed the foregoing declaration with

him, the county where I reside was, and remains, under a “shelter in place” order.

Date: May 20, 2020

//s// Emilou MacLean Emilou MacLean

3 CASE NO. 3:20-CV-02731-VC DECLARATION OF AROLDO RODRIGUEZ DIAZ

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Exhibit A

Case 3:20-cv-02731-VC Document 229-2 Filed 05/22/20 Page 7 of 19 Case 2:76-cv-00162-EFB Document 220 Filed 09/01/17 Page 186 of 258

Case 3:20-cv-02731-VC Document 229-2 Filed 05/22/20 Page 8 of 19
Exhibit B

Case 3:20-cv-02731-VC Document 229-2 Filed 05/22/20 Page 9 of 19 Case 2:76-cv-00162-EFB Document 220 Filed 09/01/17 Page 191 of 258

Case 3:20-cv-02731-VC Document 229-2 Filed 05/22/20 Page 10 of 19
Exhibit C

Case 3:20-cv-02731-VC Document 229-2 Filed 05/22/20 Page 11 of 19 Case 2:76-cv-00162-EFB Document 220 Filed 09/01/17 Page 192 of 258

Case 3:20-cv-02731-VC Document 229-2 Filed 05/22/20 Page 12 of 19
Exhibit D

Case 3:20-cv-02731-VC Document 229-2 Filed 05/22/20 Page 13 of 19 Case 2:76-cv-00162-EFB Document 220 Filed 09/01/17 Page 185 of 258

Case 3:20-cv-02731-VC Document 229-2 Filed 05/22/20 Page 14 of 19
Exhibit E

Case 3:20-cv-02731-VC Document 229-2 Filed 05/22/20 Page 15 of 19 Case 2:76-cv-00162-EFB Document 220 Filed 09/01/17 Page 182 of 258

Case 3:20-cv-02731-VC Document 229-2 Filed 05/22/20 Page 16 of 19
Exhibit F

Case 3:20-cv-02731-VC Document 229-2 Filed 05/22/20 Page 17 of 19 Case 2:76-cv-00162-EFB Document 220 Filed 09/01/17 Page 169 of 258

Case 3:20-cv-02731-VC Document 229-2 Filed 05/22/20 Page 18 of 19
Exhibit G

CCaassee 33::1230--ccvv--0052877381--EVMCC DDocoucmumenetn2t 2199-72-15FileFdile0d5/0242//0270/16PagPeag1e9 4ofo1f 97
DSC00105 DSC00105

Case 3:20-cv-02731-VC Document 229-3 Filed 05/22/20 Page 1 of 9

WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org SEAN RIORDAN (SBN 255752) sriordan@aclunc.org ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: (415) 553-9319 Facsimile: (415) 553-9810

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUBI RUIZ TOVAR, LAWRENCE KURIA MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,
Petitioners-Plaintiffs,

CASE NO. 3:20-CV-02731-VC
DECLARATION OF ASIF MASOOM QAZI IN SUPPORT OF PETITIONERS-PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

v.

DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,

Respondents-Defendants.

CASE NO. 3:20-CV-02731-VC DECLARATION OF ASIF MASOOM QAZI

Case 3:20-cv-02731-VC Document 229-3 Filed 05/22/20 Page 2 of 9

BREE BERNWANGER* (NY SBN 5036397) bbernwanger@lccrsf.org HAYDEN RODARTE (SBN 329432) hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA 131 Steuart St #400 San Francisco, CA 94105 Telephone: (415) 814-7631
JUDAH LAKIN (SBN 307740) judah@lakinwille.com AMALIA WILLE (SBN 293342) amalia@lakinwille.com LAKIN & WILLE LLP 1939 Harrison Street, Suite 420 Oakland, CA 94612 Telephone: (510) 379-9216 Facsimile: (510) 379-9219

MARTIN S. SCHENKER (SBN 109828) mschenker@cooley.com COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111 Telephone: (415) 693-2000 Facsimile: (415) 693-2222
TIMOTHY W. COOK* (Mass. BBO# 688688) tcook@cooley.com FRANCISCO M. UNGER* (Mass. BBO# 698807) funger@cooley.com COOLEY LLP 500 Boylston Street Boston, MA 02116 Telephone: (617) 937-2300 Facsimile: (617) 937-2400

JORDAN WELLS (SBN 326491) jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568) spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA 1313 West Eighth Street Los Angeles, CA 90017 Telephone: (213) 977-9500 Facsimile: (213) 977-5297

Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice

CASE NO. 3:20-CV-02731-VC DECLARATION OF ASIF MASOOM QAZI

Case 3:20-cv-02731-VC Document 229-3 Filed 05/22/20 Page 3 of 9
DECLARATION OF ASIF MASOOM QAZI I, Asif Masoom Qazi, declare the following based on my personal knowledge:
1. I make this declaration from my personal knowledge and, if called to testify to these facts, could and would do so competently. I make this declaration in support of the Motion for Preliminary Injunction in Zepeda Rivas, et al. v. Jennings, et al., 20-cv-02731-VC.
2. My full name is Asif Masoom Qazi. I was born in Bangladesh and I am 31 years old. I have been in the United States since 1995 when I was only 6 years old.
3. I have been detained at Mesa Verde Detention Facility in Bakersfield, California since February 4, 2020, when I was detained by ICE after I voluntarily reported to an interview with immigration officials. Lack of Social Distancing While Sleeping
4. At Mesa Verde, I am housed in Dorm C. There are approximately 50 bunk beds in the dorm. The west side of the dorm is lined with 25 bunk beds and the east side is lined with another 25 bunk beds. Each bunk bed is bolted down to the floor and approximately 3 feet apart from the next bunk bed. I am currently assigned to bunk number 41 and sleep on the top bunk.
5. On or around May 7, 2020, a Mesa Verde officer who supervises Dorm C started calling out bunk numbers and asked people assigned to those bunks to gather their belongings. The officer then notified those people that they would be moving down to Dorm A or B.1 This was approximately 25 to 30 people. Most of these people wore orange uniforms which I understand signifies that they are designated by Mesa Verde as minimum-security. There were a few people wearing red uniforms—individuals designated as higher security—who were also moved to Dorm A or B, but these individuals were mostly elderly or medically vulnerable.
6. After people were moved out of Dorm C and into Dorm A or B, there remained approximately 50 people in my dorm. Even with the reduction, social distancing is still not possible. Mesa Verde officials recently assigned one person per bunk bed and require us that we sleep in a staggered manner with one person sleeping on a bottom bunk, and the person in the
1 Dorms A and B are located on the first floor of Mesa Verde. Dorm B is closest to the medical unit. Dorms C and D are located on the second floor.
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next bunk sleeping on the top bunk. However, when everyone lays down in their respective bunks, we are still not 6 feet apart. Some of us have recently measured the distance by having someone who is 6 feet tall place their head on the top bunk and their feet on the next bottom bunk and we have estimated that the beds are only around 4.5 feet apart. When I am in bed, for example, I sometimes have to get down to go to the bathroom or do anything else. Once I step down from my bunk bed, I am within 3 feet of the person in the next bottom bunk. With this many people, proper social distancing is impossible. We’re in the dorm with all 50 people for at least 18 hours a day, and probably more.
7. On May 14, 2020 at around 3:00am, I heard some commotion in the dorm room and soon realized that officials were trying to assign a detainee to the bottom bed of bunkbed 36 even though there is already a person assigned to the top bed. The detainee already assigned to bunkbed 36 pushed back and said that he did not want anyone on the same bunkbed as him. Only then did officials retract. I believe that if the detainee already assigned to bunk 36 had not pushed back, the officials would have assigned two people to the same bunkbed. Lack of Social Distancing at Meals
8. On or around May 7, Mesa Verde officials started allowing only 25 of us at a time to go to the dining hall to eat, but this does not include the dining hall workers (also known as porters). The dining hall is about 30-35 feet wide by 60-65 feet long. There are about 25 to 28 tables in the cafeteria, all bolted to the ground, so there is usually one person per table now. But engaging in social distancing is still not possible when we line up to go to the dining hall. When guards call “prep for chow,” we line up in a single file—like elementary school kids lined up for lunch or people lined up for an amusement park ride—inches apart from the person in front and behind us. We wait in line, shoulder to shoulder, for about 20 to 30 minutes to leave our dorm room to go to the dining hall. The three porters (also detainees) who hand out the food are the first ones to go in the dining hall. The rest of us then enter the dining hall and are handed our food by the porters. Then we all take a seat at one of the tables. We have been instructed by officials to sit alone at each table, but it is not enforced. There is a yellow sticker placed on one seat per table and that is where we are supposed to sit. There have been times when more than 25
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people are allowed to enter the dining hall at one time and, on these occasions, there are some tables that have more than one person at the table. We have to line up again inches from each other once it’s time for us to go back to our dorm. Lack of Social Distancing During Recreation Time
9. There is no limit on how many people in Dorm C can go out to recreation time. The recreation time blocks change but can be as early as 5:15am and as late as 8:30pm, for twohour time blocks. It changes every day. During recreation time, people get on the few weightlifting machines, play soccer, basketball, handball or walk/run around the track. When people play soccer, basketball, or handball there is no way to engage in social distancing. People are touching the same ball, are blocking each other from masking a basket, or are running sideby-side. I usually use the weightlifting machines during recreation time and these machines are not cleaned in between uses. For example, there are two bench presses and, if I am using one, there is usually a line of people waiting to use the bench press. There is just one Mesa Verde officer monitoring recreation time and there are no instructions that we need to remain 6 feet apart from each other. Recreation time is not mandatory, and depending on the time of day, anywhere from about one-third to three-quarters of the people in Dorm C go out for recreation time. Lack of Social Distancing During the Rest of the Day
10. During the majority part of the day, I am surrounded by people and it is difficult to remain 6 feet away. In Dorm C, there are 4 tables—2 on the south side of the dorm, 1 on the north side, and one in the middle of the dorm in the computer room. They are squared tables that are about 3-by-3 feet and people use them to play games and eat. The tables are bolted to the ground. People can bring their plastic chairs to sit at the table. There are often 4 to 5 guys at one table playing a card games, chess, checkers, or dominos, and officials often see them but do not tell them anything about remaining 6 feet apart. They are all around the small table, inches apart from each other.
11. There is also a small area with a row of 4 computers against the wall. If someone is sitting at each computer, there is no way to distance themselves. Each computer is about 1 foot
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apart from the next computer. People use the computers to play games, but they also use them to draft up important documents for their immigration cases. I am not sure if or how often the computers are wiped down for cleaning. I have not seen anyone wipe down the computers.
12. Most people sleep around 6 to 8 hours a day. The lights are turned off at 11pm but, once count is over, we are free to move around if we want to. There are some people who lay in bed all day but, others like me, move around the dorm throughout the day. Count times are at 10:00am, 4:00pm, 11:00pm, 3:00am and 5:00am. The only time that we are required to stand up and be next to our bed is for the 4:00pm count. For the 10:00am and 11:00pm count, we have to be in or near our beds. Everyone is usually asleep for the 3:00am and 5:00am count. Lack of Social Distancing While Using Bathrooms
13. We are also not able to engage in social distancing when we go to the bathroom. In Dorm C there are two bathrooms that are mirror images of each other, each approximately 8 feet by 45 to 50 feet. I recently tried to measure the walls of the bathroom and estimated these dimensions based on my experience as a union construction worker. In each bathroom there are 7 sinks, 5 toilets, and 5 shower stalls. All of the sinks, toilets, and shower stalls are lined against one of the long walls of the bathroom. Each sink faucet is about 1.5 feet apart from the next sink faucet; each toilet stall is about 3 feet wide; and each shower stall is about 3 feet wide, too.
14. As of recently, Mesa Verde officials have turned off the water on 4 of the 7 sinks. For example, the first sink works, sinks 2 and 3 are turned off, sink 4 works, sinks 5 and 6 are turned off, and sink 7 works. But even if I am standing at the first sink, there is still not 6 feet distance between me and the person at sink 4 since each sink faucet is about 1.5 feet apart. This is the case for both bathrooms in Dorm C so now, for 50 people, there are only 6 working sinks.
15. There is also no way to engage in social distancing when we use the toilets or showers. Each bathroom in Dorm C has 5 toilets—2 urinals and 3 regular toilets. The first two toilets are urinals and the first urinal is immediately next to sink 7. Mesa Verde officials have also turned off 2 out of the 5 toilets in each bathroom. This means there is a total of 6 toilets for 50 people in Dorm C (2 urinals and 4 regular toilets). The first urinal works but the second urinal is closed and won’t flush. After that, every other regular toilet works. Each toilet stall is about 3
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feet wide, with waist-height partitions separating each stall. The last toilet is immediately next to the first shower stall. There are 5 shower stalls in each bathroom, that are about 3 feet wide with shoulder-height partitions separating each one. The first shower works and is next to the last working toilet stall. If someone is in the last toilet stall and someone is showering in the first shower, they are about 3 feet apart. Mesa Verde officials have also turned off 2 of the 5 showers in each bathroom so now there are 6 total working showers for 50 people in Dorm C.
16. In Dorm C, we can use the bathroom and take a shower whenever we want. However, most people in my dorm tend to shower immediately after we return from recreation time. We have recreation time twice a day for 2-hour blocks—once in the morning and once in the afternoon. People often come back sweaty from recreation time and want to shower. All functioning showers are usually taken when people come back from recreation time and there are often people waiting to use the showers. New Arrivals
17. This facility is still taking new people from outside. Since May 9, 2020, I know of at least two new people who were transferred from state prisons to Mesa Verde. Both individuals are in Dorm C. The first person arrived on or around May 9 and was transferred from Old Folsom State Prison. He told me that, after he was released from Old Folsom State Prison, ICE officials put him in a vehicle and drove him to the Stockton immigration facility. There, he said that ICE picked up more people and they were all then transported to the Fresno immigration facility. None of the people being transported wore masks and everyone was within inches of each other. Once they arrived at Mesa Verde, he was booked into the facility. He also told me that he was placed in a holding tank with 7 to 8 other guys. I have been in the holding tank before and I estimate that it is approximately 6 feet by 15 feet. In such a small space and with 8 to 7 other men, there is no way to engage in social distancing. Lastly, he told me that he was introduced into Dorm C the same day he arrived. He was never quarantined.
18. The second person arrived on or around May 13 from Corcoran State Prison. He told me that while he was in Corcoran, the prisoners were not properly quarantining. He told me that when he arrived at Mesa Verde, he was also placed in the holding tank while he was being
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processed. He was still in his prison clothing. Like the first person, he told me that he was never quarantined and was immediately introduced into Dorm C.
19. Both individuals transferred into Mesa Verde told me that they were never tested before being introduced into the general population. All officials did was take their temperature and ask them if they had any symptoms. Then, they introduced them into Dorm C without taking any testing precautions. Lack of Proper Hygiene and Sanitation
20. Detainees are the only ones who sweep and mop the common areas. They sweep and mop the main hallways where we all walk but they do not sweep or mop the spaces between our bunk beds. They also do not wipe down our bunk beds—that is left to each detainee, if they want to. Conclusion
21. I am extremely concerned for those of us detained at Mesa Verde because, despite what I hear public health professionals say on the news, we cannot remain 6 feet away from another person, even if we try. I am always surrounded by people, even when I go to the bathroom. And even though gyms throughout the country are closed, people still use the weightlifting equipment during recreation time and stand in line to use it. There are also new people being introduced into the facility without the proper testing precautions taking place. I fear that the existing conditions inside Mesa Verde are ripe for an outbreak of COVID-19 infections and, once there is an outbreak, it will be too late.

I, Asif Masoom Qazi, declare under penalty of perjury that the foregoing is true and correct to the best of my recollection. I sign this from Bakersfield, California.

Date: May 18, 2020

//s// Asif Masoom Qazi Asif Masoom Qazi

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CERTIFICATE OF AFFIRMATION

I, Angelica Salceda, certify that on May 18, 2020 I read the foregoing to Asif Masoom Qazi and he affirmed that it is true and correct. I have not been able to obtain a signature from Asif Masoom Qazi because Mesa Verde Detention Facility is located approximately 2.5 hours away from my home by car, and at the time I reviewed the foregoing declaration with him, the county

where I reside was, and remains, under a “shelter in place” order.

Date: May 18, 2020

//s// Angelica Salceda Angelica Salceda

7 CASE NO. 3:20-CV-02731-VC DECLARATION OF ASIF MASOOM QAZI

Case 3:20-cv-02731-VC Document 229-4 Filed 05/22/20 Page 1 of 7

WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org SEAN RIORDAN (SBN 255752) sriordan@aclunc.org ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: (415) 553-9319 Facsimile: (415) 553-9810

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUBI RUIZ TOVAR, LAWRENCE KURIA MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,

CASE NO. 3:20-CV-02731-VC
DECLARATION OF AYLALIYA ASSEFA BIRRU IN SUPPORT OF PETITIONERS-PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Petitioners-Plaintiffs,

v.

DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,

Respondents-Defendants.

CASE NO. 3:20-CV-02731-VC DECLARATION OF AYLALIYA ASSEFA BIRRU

Case 3:20-cv-02731-VC Document 229-4 Filed 05/22/20 Page 2 of 7

BREE BERNWANGER* (NY SBN 5036397) bbernwanger@lccrsf.org HAYDEN RODARTE (SBN 329432) hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA 131 Steuart St #400 San Francisco, CA 94105 Telephone: (415) 814-7631
JUDAH LAKIN (SBN 307740) judah@lakinwille.com AMALIA WILLE (SBN 293342) amalia@lakinwille.com LAKIN & WILLE LLP 1939 Harrison Street, Suite 420 Oakland, CA 94612 Telephone: (510) 379-9216 Facsimile: (510) 379-9219

MARTIN S. SCHENKER (SBN 109828) mschenker@cooley.com COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111 Telephone: (415) 693-2000 Facsimile: (415) 693-2222
TIMOTHY W. COOK* (Mass. BBO# 688688) tcook@cooley.com FRANCISCO M. UNGER* (Mass. BBO# 698807) funger@cooley.com COOLEY LLP 500 Boylston Street Boston, MA 02116 Telephone: (617) 937-2300 Facsimile: (617) 937-2400

JORDAN WELLS (SBN 326491) jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568) spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA 1313 West Eighth Street Los Angeles, CA 90017 Telephone: (213) 977-9500 Facsimile: (213) 977-5297

Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice

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Case 3:20-cv-02731-VC Document 229-4 Filed 05/22/20 Page 3 of 7
DECLARATION OF AYLALIYA ASSEFA BIRRU 1. I make this declaration from my personal knowledge and, if called to testify to these facts, could and would do so competently. I make this declaration in support of the Motion for Preliminary Injunction in Zepeda Rivas, et al. v. Jennings, et al., 20-cv-02731-VC. 2. My full name is Aylaliya Assefa Birru. I was born in Ethiopia and I am 36 years old. I have been a lawful permanent resident of the United States for over 6 years. 3. I have been detained at Yuba County Jail in Marysville, California since November 27, 2018. Lack of Social Distancing While Sleeping 4. Before May 6, 2020 I was in Q4, where there were four people in total. Q4 has two bunk beds and two small tables, and that is it. One table was attached to the wall on the left, and one on the right. The seats were attached to the table. Q4 is small, so we were always close together. The only way to avoid it would be to sit in opposite corners. We would climb onto the top bunk by climbing up on the table, that is how close quarters it was. 5. On May 6, they moved me to Q1. There is nothing in Q1 except the bunk bed, a sink, a table attached to the wall, and a toilet with no walls or curtain around it. In Q1, there are two of us, a county inmate and me. It is a small room; I estimate about 9-by-12. I sleep in the top bunk. The distance between the top bunk and the bottom bunk is not more than three feet. We try to distance ourselves from one another by each staying on our own bunks most of the time, but it is still not six feet apart. We are in our cells for 21 hours every day. It is really difficult. Lack of Social Distancing While Eating 6. In Q4 we all ate together at the small tables. The dining table in Q4 could fit four people. The dining table and chairs were both bolted to the ground. Usually the four of us would all eat at the same time. When I ate, my shoulders and elbows would touch the person I was sitting next to. Or, the women who slept on the bottom bunks would sit on the bottom bunk while they ate to have a little more space. 7. In Q1 Pod, the guards bring food to our room. There is a slot in the door that they pass the food through. There is only one green plastic chair in Q1, so I sit on the chair with the
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tray on my lap to eat, or I sit on the toilet and put the food tray on the chair. The other woman sits on her bed. Lack of Social Distancing While Using Bathrooms
8. There is only one very small shower. My bunkmate and I take turns. The shower is very unsanitary. I often skip taking a shower because I cannot bear to go in. There has been feces and blood in the shower. The detainees are responsible for cleaning up the shower space, but the guards do not provide us with adequate supplies for cleaning, just diluted cleaning solution that sometimes looks almost like water. Once I am done taking a shower, I get dressed inside the shower space because, if I go outside of that space, I am in a hallway that has cameras. That makes me very uncomfortable. New Arrivals Constantly
9. It seems like they are making moves to accommodate new arrivals. When they brought us to Q1 they told us they were putting guys in Q4. We never know what is happening. They only thing they say is that they have to “make room.” I do know they are still bringing people in. It makes me question what is going on. Lack of Proper Sanitation and Hygiene
10. My current bunkmate is a county detainee, and she works in the detention center’s commissary. She works four days a week. She does not wear her mask when she goes to work, and she does not wear gloves. When I was in Q4, I was next door to the commissary, and I could see her working and touching everything without gloves or a mask. I could see the guys working without masks, too. My bunkmate is often in contact with officers and guards while at the commissary, and with other detainees that she works alongside. She has been given no antibacterial soap or other cleaning supplies to disinfect herself after these interactions. I am worried that one of these officers or guards could be sick and infect my bunkmate. If my bunkmate gets sick, I could get sick too since we live and sleep so close to each other.
11. The phones and shower that I have access to are shared with new arrivals to Yuba who are in quarantine before being introduced into the general population. They are putting those people in S Tanks, 1-6. Those are cells with bunk beds, and when I have walked by there are
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often two people in each cell. I am really nervous right now that we have to share phones with S Tank people. They could be infected and could get us sick. We do not have disinfectants, paper towels or anything. Everyone in the Q and S area share the phones and showers. It is just a hallway, and the door to rest of the jail is closed and locked. People from one cell get an hour, then they go back in, and people from another cell come out. There is no cleaning between cells. During that hour, that is the only time we have access to the showers and the phones.
12. The phone that I have access to is a shared phone. There is nothing to disinfect the phones or even paper towels. I do not believe that anyone else who shares the phone has cleaned it or has the supplies to clean it. These are the same phones that people in quarantine are using. I am worried that the shared phone is not clean and could make people sick. That scares me. They are supposed to be in quarantine to protect other people from getting infected, but I am sharing the phone and shower with them without any ability to clean the surfaces before I use them. But I do not have a choice. For the first week I was in Q1, the jug of hot water was shared by 8 people including myself and the S tanks. The tap on the jug of hot water was touched daily by all those people. They only started bringing each cell our own hot water on about May 14. There is no disinfectant available.
13. When it comes to disinfecting/sanitation, I can request a cleaning cart to clean my living space, but I am only allowed an hour to use it. This cleaning cart is used throughout Yuba and used by other people in other dorms. The last time anyone cleaned the common space was when the guards sprayed diluted bleach on the floor and on surfaces on May 6. Some guards do a better job of spraying multiple surfaces, like the table, floor, phone, and showers, while others only spray the floor. I sometimes ask to clean the common areas with the bleach spray so I can do a more thorough job of cleaning than the guards. The guards never clean the phones or the showers. That is up to us. Problems with Issuance and Use of Masks
14. In late March, the guards handed out cloth masks to the detainees. At first, the guards specifically said, do not wash these masks. We will wash them. I was freaked out when they said that. The laundry room is very unsanitary. I try to wash my mask myself because I am
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scared and do not trust what happens with the laundry at the detention center. The facility one time provided me with underwear that had stains on it. I only have basic soap to wash my mask. I am worried because I do not feel like my mask is clean. I do not think it can protect me from getting sick. Conclusion
15. God forbid, if somebody has the virus, there is no question: we will all be infected with this virus. I feel we are here by God’s grace.

I, Aylaliya Assefa Birru, declare under penalty of perjury that the foregoing is true and correct to the best of my recollection. I sign this from Marysville, California.

Date: May 19, 2020

//s// Aylaliya Assefa Birru Aylaliya Assefa Birru

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CERTIFICATE OF AFFIRMATION I, Theodora Simon, certify that on May 19, 2020 I read the foregoing to Aylaliya Assefa Birru and that she affirmed that the foregoing is true and correct. I have not been able to obtain a signature from Ms. Birru because Yuba Detention Center is located approximately two hours

away from my home by car, and at the time I reviewed the foregoing declaration with her, the

county where I reside was, and remains, under a “shelter in place” order.

Date: May 19, 2020

//s// Theodora Simon Theodora Simon

5 CASE NO. 3:20-CV-02731-VC DECLARATION OF AYLALIYA ASSEFA BIRRU

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WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org SEAN RIORDAN (SBN 255752) sriordan@aclunc.org ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: (415) 553-9319 Facsimile: (415) 553-9810

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUBI RUIZ TOVAR, LAWRENCE KURIA MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,
Petitioners-Plaintiffs,

CASE NO. 3:20-CV-02731-VC
DECLARATION OF CARLOS RENAN SOLIS MANZANILLA IN SUPPORT OF PETITIONERPLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

v.

DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,

Respondents-Defendants.

CASE NO. 3:20-CV-02731-VC DECLARATION OF CARLOS RENAN SOLIS MANZANILLA

Case 3:20-cv-02731-VC Document 229-5 Filed 05/22/20 Page 2 of 7

BREE BERNWANGER* (NY SBN 5036397) bbernwanger@lccrsf.org HAYDEN RODARTE (SBN 329432) hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA 131 Steuart St #400 San Francisco, CA 94105 Telephone: (415) 814-7631
JUDAH LAKIN (SBN 307740) judah@lakinwille.com AMALIA WILLE (SBN 293342) amalia@lakinwille.com LAKIN & WILLE LLP 1939 Harrison Street, Suite 420 Oakland, CA 94612 Telephone: (510) 379-9216 Facsimile: (510) 379-9219

MARTIN S. SCHENKER (SBN 109828) mschenker@cooley.com COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111 Telephone: (415) 693-2000 Facsimile: (415) 693-2222
TIMOTHY W. COOK* (Mass. BBO# 688688) tcook@cooley.com FRANCISCO M. UNGER* (Mass. BBO# 698807) funger@cooley.com COOLEY LLP 500 Boylston Street Boston, MA 02116 Telephone: (617) 937-2300 Facsimile: (617) 937-2400

JORDAN WELLS (SBN 326491) jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568) spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA 1313 West Eighth Street Los Angeles, CA 90017 Telephone: (213) 977-9500 Facsimile: (213) 977-5297
Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice

CASE NO. 3:20-CV-02731-VC DECLARATION OF CARLOS RENAN SOLIS MANZANILLA

Case 3:20-cv-02731-VC Document 229-5 Filed 05/22/20 Page 3 of 7
DECLARATION OF CARLOS RENAN SOLIS MANZANILLA 1. I make this declaration from my personal knowledge and, if called to testify to these facts, could and would do so competently. I make this declaration in support of the Motion for Preliminary Injunction in Zepeda Rivas, et al. v. Jennings, et al., 20-cv-02731-VC. 2. My full name is Carlos Renan Solis Manzanilla. I was born in Mexico and I am 59 years old. I arrived in the United States when I was 2 years-old and was granted Legal Permanent Status when I was a small child. I lived in the Los Angeles area since 1965. 3. I have been detained at Mesa Verde Detention Center in Bakersfield, CA since July 5, 2018. Lack of Social Distancing While Sleeping 4. In Mesa Verde, I am in Dorm A which is located on the first floor of the facility. When I first got here, I was in Dorm C which is located on the second floor of the facility. I have noticed that Dorm C was much dirtier than Dorm A but, other than that, the dorms are set up in the same configuration. 5. Currently, there are about 50 people in Dorm A. There are 25 bunks on either side of the dorm, with two bathrooms in the middle. The beds are bolted down to the ground. There is supposed to be one person on a top bunk, and then in the next bunk, a person on the bottom bunk so we are staggered. Right now, I am on a bottom bunk and the top bunk next to me is currently empty. 6. I believe this configuration is so that Mesa Verde can house the most people in our small dorm. But even with the staggered sleeping arrangement, I do not believe we are safe because there are still too many people in the dorm. 7. Recently, there was another person in the top bunk next to mine. During the day, the person would sit in his chair between our bunks and he would be about a foot away from me when I was in my bunk. Sometimes I could wake up and he would be sitting right next to my head. I would often ask him to move to ensure there was space between us, but he did not always listen. It is common for people to sit in plastic chairs in between bunks. This means that they are a few feet from another person sleeping or sitting on the next bottom or top bunk.
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8. Every person is assigned a big plastic container, like a storage bin, to store our stuff. We usually store those containers under our bunkbed. When people need to get stuff out of their containers, they have step into the space in between the bunkbeds and pull the container out. When they do this, they are often right next to the person in the bed next to them.
9. Regardless of the staggered sleeping arrangements, we have to get in and out of our beds for a number of reasons and end up being a few feet from the person in the next bunk bed. I do not see the point of sleeping in a staggered way if we still cannot practice social distancing. Lack of Social Distancing at Meals
10. At Mesa Verde, we go to the dining hall three times a day. Officers come into our dorm and ask us to get ready and line up to go to the dining hall for “chow.” We line up towards the back door. We stand in line inches from each other, one after another, and it can take 10 to 20 minutes, even up to 30 minutes, before we actually go to the dining hall. This means that we are always inches away from the person in front of us and the person behind us when we line up to eat. Lack of Social Distancing During the Rest of the Day
11. I keep to myself and try stay in my own area in my bunk as much as possible. I consider myself a loner. I do not mind people but, given the pandemic, I do not want to be around people. I have diabetes and hypertension and, based on news reports, I know this puts me at an elevated risk of dying from COVID-19.
12. Even though I keep to myself and stay in my own area, people often come within inches of me. For example, now that the bunk bed next to me is empty, people come sit there during the day to play cards or eat together. I’ve seen at least four people come hang out on that bunkbed at one time. They bring their chairs and use the bunkbed as a table or sit cross-legged on the bed. And when they sit there, they’re maybe two and a half feet away from me.
13. There are four TVs, one in each corner of the dorm: two in Spanish, two in English. My bunk is near the entrance to the bathroom, only the width of a plastic chair and I estimate maybe two feet away. My bunk is also near the TV so there’s lots of foot traffic. Since I
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am so close to the TV, people will lean on my bed as they watch TV. People also bring their plastic chairs and sit within inches of my bed so that they can watch TV. Some people sit right in front of my bunk, and I ask them to move their chair six feet away from me. But that puts them within six feet of someone else. In order to watch the TV, you have to be close to a bunk. Otherwise, you are right in the way of people trying to get to the bathroom and the guards tell you to move. I try to use my walker as a barrier, but it does not really work.
14. The only other places to be during the day, other than your bunk, is the bathroom or the little area with the tablets, the phones, and a microwave. It is really small, maybe about 10by-10. There are three square tables, and people sit there to play cards during the day, to use the tablets, or use the microwave to make food. The phones are right next to each other. There is also a phone booth with glass windows that people can use to make phone calls, but you are still only separated by a few feet and the booth is not totally enclosed. There are always people in this area, and they are always close to other people. It is impossible to be at a safe distance.
15. We have a standing count at 4pm every day. We stand by our bunk and the officers walk by and count us. While we stand and wait, we are maybe four or five feet apart at most from another person. The officers are only a couple feet away, and only some of them wear masks. I heard one officer say that wearing a mask fogs up his glasses, so he does not wear a mask. There are four other counts during the day. We have to be at our bunks, but we do not have to be standing next to our bunks for those.
16. Aside from the time I go to the dining hall and time in the yard, I am in the dorm for 18-20 hours a day. Lack of Social Distancing While Using Bathrooms
17. There are two bathrooms in my dorm and I am about two feet from the entrance to the bathroom. Recently, Mesa Verde officials shut off the water to some of the showers, toilets and urinals. Now there is only one urinal per side of the Dorm, so 20 people are all using the same urinal.
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18. If I notice that there is no one in the bathroom, I will sometimes go sit on a toilet just to get away from people. They call me the grouchy old guy because I tell all the young guys to stay away from me, but I am the grouch old guy that does not want to die. New Arrivals
19. I know that there have been new detainee arrivals in my dorm because I see new faces all the time that I do not remember seeing before. Because I keep to myself, I do not know where they come from. Conclusion
20. When I think about the pandemic and the conditions inside Mesa Verde, I think of it like food coloring and water—just on drop is all it takes to spread. One drop here, and we are done. The guards just do not care, and we are all afraid they are going to introduce the virus into the facility because they come and go from the facility.
21. Even with fewer people here, it is still crowded. We are like sitting ducks in here and cannot do much for ourselves. Even though officials say that they are trying to distance us, it is not working. We are still often within inches of each other and they have not managed to actually create distance between us.

I, Carlos Renan Solis Manzanilla, declare under penalty of perjury that the foregoing is true and

correct to the best of my recollection. I sign this from Bakersfield, California.

Date: May 18, 2020

//s// Carlos Renan Solis Manzanilla Carlos Renan Solis Manzanilla

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CERTIFICATE OF AFFIRMATION

I, Theodora Simon, certify that on May 18, 2020 I read the foregoing to Carlos Renan Solis

Manzanilla and that he affirmed that the foregoing is true and correct. I have not been able to

obtain a signature from Carlos Renan Solis Manzanilla because the Mesa Verde Detention

Center is located approximately five hours away from my home by car, and at the time I

reviewed the foregoing declaration with him, the county where I reside was, and remains, under

a “shelter in place” order.

Date: May 18, 2020

//s// Theodora Simon Theodora Simon

5 CASE NO. 3:20-CV-02731-VC DECLARATION OF CARLOS RENAN SOLIS MANZANILLA

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WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org SEAN RIORDAN (SBN 255752) sriordan@aclunc.org ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: (415) 553-9319 Facsimile: (415) 553-9810

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUBI RUIZ TOVAR, LAWRENCE KURIA MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,
Petitioners-Plaintiffs,

CASE NO. 3:20-CV-02731-VC
DECLARATION OF FERMIN TRUJILLO LOPEZ IN SUPPORT OF PETITIONERS-PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

v.

DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,

Respondents-Defendants.

CASE NO. 3:20-CV-02731-VC DECLARATION OF FERMIN TRUJILLO LOPEZ

Case 3:20-cv-02731-VC Document 229-6 Filed 05/22/20 Page 2 of 6

BREE BERNWANGER* (NY SBN 5036397) bbernwanger@lccrsf.org HAYDEN RODARTE (SBN 329432) hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA 131 Steuart St #400 San Francisco, CA 94105 Telephone: (415) 814-7631
JUDAH LAKIN (SBN 307740) judah@lakinwille.com AMALIA WILLE (SBN 293342) amalia@lakinwille.com LAKIN & WILLE LLP 1939 Harrison Street, Suite 420 Oakland, CA 94612 Telephone: (510) 379-9216 Facsimile: (510) 379-9219

MARTIN S. SCHENKER (SBN 109828) mschenker@cooley.com COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111 Telephone: (415) 693-2000 Facsimile: (415) 693-2222
TIMOTHY W. COOK* (Mass. BBO# 688688) tcook@cooley.com FRANCISCO M. UNGER* (Mass. BBO# 698807) funger@cooley.com COOLEY LLP 500 Boylston Street Boston, MA 02116 Telephone: (617) 937-2300 Facsimile: (617) 937-2400

JORDAN WELLS (SBN 326491) jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568) spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA 1313 West Eighth Street Los Angeles, CA 90017 Telephone: (213) 977-9500 Facsimile: (213) 977-5297
Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice

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Case 3:20-cv-02731-VC Document 229-6 Filed 05/22/20 Page 3 of 6
DECLARATION OF FERMIN TRUJILLO LOPEZ 1. I make this declaration from my personal knowledge and, if called to testify to these facts, could and would do so competently. I make this declaration in support of the Motion for Preliminary Injunction in Zepeda Rivas, et al. v. Jennings, et al., 20-cv-02731-VC. 2. My full name is Fermin Trujillo-Lopez. I was born in Mexico and am 57 years old. I have been in the United States for approximately 40 years and for 30 years as a lawful permanent resident. 3. I have been at Mesa Verde Detention Center since September 16, 2019. At Mesa Verde, I am in D Dorm and have been here since I arrived. Lack of Social Distancing While Sleeping 4. Right now, there are about 50 people in D Dorm. There are 25 bunks on both sides of the dorm, and the beds are bolted to the floor. There are two bathrooms in the middle. 5. I am assigned to a bottom bunk. Because of my age and my bad knee, I would not be able to get onto an upper bunk. On either side of me, there is someone on the top bunk, above me. 6. We are not able to be socially distanced while in our bunks or while sleeping. The problem is that the distance between the beds is less than three feet. They are simply too close together, and the bunks cannot be moved. It does not matter that the people in the bunk next to me are in the top bunk while I’m in the bottom bunk. When my neighbors get down from their bunks, they are very close to me, as close as if we were going to shake hands. They are not six feet away. They have to get down from their bunks to go to the bathroom and for meals. Lack of Social Distancing at Meals 7. We cannot socially distance during mealtime. They can say they are doing something to encourage social distancing by having us all sit one person to a table to eat by ourselves, but that is the only time we are distanced. When the guards say it is time to eat, we get up and get in line. There are about 25 of us at a time waiting in line to walk to the cafeteria, and while we are in the line, we are very close to one another. It is totally ridiculous because once we
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get to the cafeteria we sit at separate tables, but to get there we are within arms-length of each other in line and in the dorm. Lack of Social Distancing During Recreation
8. We have the option to go out into the yard twice a day, for two-hour time blocks. The time changes every day. During yard time, almost everyone in Dorm D goes outside, and we walk down the narrow hall very close to one another to get to the yard. We are almost touching one another as we walk, we are so close. In the yard, some people play handball or basketball, or exercise, and everyone is close to everyone else. There is no social distancing. That does not exist. Lack of Social Distancing During the Rest of the Day
9. One of my neighbors does not like to stay in the top bunk, where he sleeps, during the day. Instead, he sits on the bottom bunk for hours a day, right next to me. Other detainees will come over and talk to him or sit next to him on the bunk and play cards. They spend time during the day on the lower bunk and it is only a few feet away from me. I stay in my area and I try to stay away from other people but, when people come to talk with my neighbor, I cannot just run away. There is nowhere for me to go. Lack of Social Distancing While Using Bathrooms
10. They shut off the water in some of the showers, toilets, and urinals in the bathroom to try to lessen the people in the bathroom and help with social distancing. But now that means people have to stand in line to wait for the bathroom, because there are fewer showers and sinks and because there are so many of us. There is only one urinal and two toilets for 25 people. Especially in the morning when we all wake up and need to use the bathroom to urinate and brush our teeth. For the bathroom, it is like we are standing in line at a movie theater, one person right after the next. Conclusion
11. I’m diabetic and have high cholesterol and high blood pressure. We know that there is an active outbreak at Otay Mesa Detention Center and that people there have died of the coronavirus. I have been told that people at Otay Mesa are in individual cells, and even that has
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not prevented the spread of the virus. It is because as soon as they leave their cells, for anything, they have contact with other detainees and guards. So, they are not protected. And if they are at risk, even though they are isolated for most of the day, I think we are at even greater risk.
12. Social distancing is not possible in Dorm D. We go to the bathroom, and we are close to each other. We gather at mealtime in a line right next to each other. We are in the yard together, and to get there we walk very closely together down the hall. Literally, we are together and near each other all day every day.
13. Mesa Verde is not resolving the problems. There are just too many people here. They need to leave an empty bunk in-between people, and only that might allow us to be distanced. If they reduced the population in my dorm from 50 to 25 people, maybe we could be socially distanced while we sleep and there would be fewer people trying to share the bathrooms and the phones. But I do not know how we would avoid lines at mealtime and for the bathrooms.

I, Fermin Trujillo-Lopez, declare under penalty of perjury that the foregoing is true and correct

to the best of my recollection. I sign this from Bakersfield, California.

Date: May 18, 2020

//s// Fermin Trujillo-Lopez Fermin Trujillo-Lopez

3 CASE NO. 3:20-CV-02731-VC DECLARATION OF FERMIN TRUJILLO LOPEZ

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CERTIFICATE OF INTERPRETATION AND AFFIRMATION I, Theodora Simon, certify that I am fluent in Spanish and English and that I am competent to interpret between these languages. I further certify that I have read the foregoing to Fermin Trujillo-Lopez in Spanish. I further declare that I am competent to render this interpretation and that I would testify to the same under the penalty of perjury if I were called upon to do so.

I further certify that on May 18, 2020 I read the foregoing to Fermin Trujillo-Lopez and that he

affirmed that the foregoing is true and correct. I have not been able to obtain a signature from

Fermin Trujillo-Lopez because the Mesa Verde Detention Center is located approximately five

hours away from my home by car, and at the time I reviewed the foregoing declaration with him,

the county where I reside was, and remains, under a “shelter in place” order.

Date: May 18, 2020

//s// Theodora Simon Theodora Simon

4 CASE NO. 3:20-CV-02731-VC DECLARATION OF FERMIN TRUJILLO LOPEZ

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WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org SEAN RIORDAN (SBN 255752) sriordan@aclunc.org ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: (415) 553-9319 Facsimile: (415) 553-9810

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUBI RUIZ TOVAR, LAWRENCE KURIA MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,
Petitioners-Plaintiffs,

CASE NO. 3:20-CV-02731-VC
DECLARATION OF GILBERTO PABLO PEREZ IN SUPPORT OF PETITIONERS-PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

v.

DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,

Respondents-Defendants.

CASE NO. 3:20-CV-02731-VC DECLARATION OF GILBERTO PABLO PEREZ

Case 3:20-cv-02731-VC Document 229-7 Filed 05/22/20 Page 2 of 9

BREE BERNWANGER* (NY SBN 5036397) bbernwanger@lccrsf.org HAYDEN RODARTE (SBN 329432) hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA 131 Steuart St #400 San Francisco, CA 94105 Telephone: (415) 814-7631
JUDAH LAKIN (SBN 307740) judah@lakinwille.com AMALIA WILLE (SBN 293342) amalia@lakinwille.com LAKIN & WILLE LLP 1939 Harrison Street, Suite 420 Oakland, CA 94612 Telephone: (510) 379-9216 Facsimile: (510) 379-9219

MARTIN S. SCHENKER (SBN 109828) mschenker@cooley.com COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111 Telephone: (415) 693-2000 Facsimile: (415) 693-2222
TIMOTHY W. COOK* (Mass. BBO# 688688) tcook@cooley.com FRANCISCO M. UNGER* (Mass. BBO# 698807) funger@cooley.com COOLEY LLP 500 Boylston Street Boston, MA 02116 Telephone: (617) 937-2300 Facsimile: (617) 937-2400

JORDAN WELLS (SBN 326491) jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568) spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA 1313 West Eighth Street Los Angeles, CA 90017 Telephone: (213) 977-9500 Facsimile: (213) 977-5297
Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice

CASE NO. 3:20-CV-02731-VC DECLARATION OF GILBERTO PABLO PEREZ

Case 3:20-cv-02731-VC Document 229-7 Filed 05/22/20 Page 3 of 9
DECLARATION OF GILBERTO PABLO PEREZ 1. I make this declaration from my personal knowledge and, if called to testify to these facts, could and would do so competently. I make this declaration in support of the Motion for Preliminary Injunction in Zepeda Rivas, et al. v. Jennings, et al., 20-cv-02731-VC. 2. My full name is Gilberto Pablo Perez. I was born in Todos Santos Cuchumatan, Guatemala and I am 32 years old. I have been in the United States since 2016. My wife and two children are currently living in the United States. They have all been granted asylum. 3. I was detained at Yuba County Jail in Marysville, CA starting on February 11, 2020. I was ordered released on May 16, 2020. At Yuba County Jail, I was last housed in B Pod. In B Pod, there were 25 bunk beds, with capacity for 50 people. The bunk beds were all on the first floor. When I was ordered released, there were 21 people in B Pod. From late April until I was released, five new people arrived in B Pod. These new people said they had arrived from prison. I do not know if they were quarantined before arriving. 4. On May 8, 2020, two detainees were transferred into B Pod. I know this because I saw the two detainees at another pod in the jail when I was escorted to make a legal call that same day. Lack of Social Distancing While Sleeping 5. There was no way to stay six feet apart in B Pod. There were too many people there. All of the top bunks were empty, but the bottom ones were almost full. There were people sleeping on both sides of me. I was surrounded by beds to my left, right, at my feet and head. If I stretched my arm out to the left, I could touch the person who slept there. There were 3 lines of beds, one in the middle, one against the wall and the other on the opposite side of the wall. The walkways between the beds were so narrow that only one person could walk through at a time. There were no doors or windows on the wall furthest from the entrance. If you slept on that side of the pod, there was another bed at your feet, with the middle row of beds on your right side just two feet away. The line of beds in the middle was only one foot away from the row of beds closest to the entrance. You could not avoid other people because we all had to walk through the same perimeters to get by.
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Lack of Social Distancing at Meals 6. We were all served our meals at the same time. There was white tape on the
ground where the line started, and we formed a single file line. The person serving stood about five or six feet away from us. I could easily touch the person in front of me in line if I wanted to, and the person behind me could touch me. That is just how we lined up, and no one ever told us to do something differently. We were served our food on the first floor at the dorm entrance.
7. The tables and benches on the second floor were welded to the ground, so we could not move them. There were nine tables, so we usually sat three to four people per table. Some of the tables were round and others square. We could not move the tables or chairs, so we had to sit close together. Sometimes, we sat right next to each other, and our elbows bumped as we ate. Lack of Social Distancing During the Rest of the Day
8. During the day, almost everyone in our pod would spend time on the second floor hanging out at the tables. The television was on the second floor, so we spent a lot of time huddled together watching television. The majority of detainees did not wear masks. There was not much else to do, so we spent a lot of time together there. It was impossible to stay six feet apart because the space was just too small and there were too many people in B Pod. I would sometimes spend time at my bunk in order to keep distance from others. Lack of Social Distancing While Using the Bathrooms
9. There were four toilets on the top floor and two on the bottom floor. The toilets were very close to each other. There is a small wall that is 3 feet high and 2 feet wide separating each toilet. The toilets are two or three feet away from each other. When sitting on the toilet, you could see the person next to you. There were two showers on the top floor and one on the bottom. The two showers were separated by a wall that completely covered the person next to you. Continuing Lack of Proper Sanitation and Hygiene
10. We were given a small piece of soap to shower. The bar of soap only lasted for a few showers. The sinks did not have soap to wash your hands. There was a yellow disinfectant
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next to the sinks, but I tried to avoid using it because it is the same disinfectant we used to clean. One of my podmates, who speaks English, read the label on the bottle and told me that it says the liquid can cause damage to your skin and eyes. Problems with Issuance and Use of Masks
11. A cloth mask was given to each person in my Pod. The masks were washed once a week, but I was fearful l that I would be contaminated if someone who previously wore the mask was sick. When we were given the masks, we were not told it was mandatory to wear them. On May 8, 2020, I was taken to the private phone booths to make a legal call. The guard who escorted me was wearing a mask. As I was walking by the other pods, I noticed that some detainees were wearing masks, but most of them were not.
12. The only changes I saw after the COVID outbreak were the cloth masks and daily temperature checks. Problems with Air Circulation
13. There was a window at the dorm entrance where we could see into other dorms. The air vent in B Pod was located on the ceiling. The air flowed down, and the system was on all day. The vents were dusty because they were not cleaned, and the air was on you could see the dust falling to the ground.
14. We all felt desperate at Yuba because the virus can be transmitted in the air. We worried a lot about that. If one person was infected it is likely that we would all catch it. I was so afraid to die in there. Photograph Attached as Exhibit A
15. I have reviewed the photograph, attached hereto as Exhibit A, which I am informed was previously taken of C Pod at the Yuba County Jail. I understand that ICE has provided answers to interrogatories that say that the dimensions of B Pod and C Pod are the same, that each Pod has the same number of bunks (25 two-person bunks), that the bunk beds in each Pod have the same dimensions, and that the bunks are placed slightly closer to each other in B Pod than C Pod (2 feet compared with 2 feet, 4 inches). Although the photo was taken before
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my detention at Yuba County Jail, it accurately shows what the bunks in B Pod looked like, their layout, and their proximity to each other as of the time I resided in B Pod.

I, Gilberto Pablo Perez, declare under penalty of perjury that the foregoing is true and correct to the best of my recollection. I sign this from Oakland, California.

Date: May 19, 2020

//s// Gilberto Pablo Perez Gilberto Pablo Perez

4 CASE NO. 3:20-CV-02731-VC DECLARATION OF GILBERTO PABLO PEREZ

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CERTIFICATE OF INTERPRETATION AND AFFIRMATION I, Erica Ramos, certify that I am fluent in Spanish and English and that I am competent to interpret between these languages. I further certify that I have read the foregoing to Gilberto Pablo Perez in Spanish. I further declare that I am competent to render this interpretation and that I would testify to the same under the penalty of perjury if I were called upon to do so.

I further certify that on May 19, 2020 I read the foregoing to Gilberto Pablo Perez and that he

affirmed that the foregoing is true and correct. I have not been able to obtain a signature from

Gilberto Pablo Perez because the location where he is in quarantine is located approximately two

hours away from my home by car, and at the time I reviewed the foregoing declaration with him,

the county where I reside was, and remains, under a “shelter in place” order.

Date: May 19, 2020

//s// Erica Ramos Erica Ramos

5 CASE NO. 3:20-CV-02731-VC DECLARATION OF GILBERTO PABLO PEREZ

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Exhibit A

Case 3:20-cv-02731-VC Document 229-7 Filed 05/22/20 Page 9 of 9

Case 3:20-cv-02731-VC Document 229-8 Filed 05/22/20 Page 1 of 8

WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org SEAN RIORDAN (SBN 255752) sriordan@aclunc.org ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: (415) 553-9319 Facsimile: (415) 553-9810

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUBI RUIZ TOVAR, LAWRENCE KURIA MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,

CASE NO. 3:20-CV-02731-VC
DECLARATION OF JOSE PABLO GARCIA MONTES DE OCA IN SUPPORT OF PETITIONERSPLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Petitioners-Plaintiffs,

v.

DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,

Respondents-Defendants.

CASE NO. 3:20-CV-02731-VC DECLARATION OF JOSE PABLO GARCIA MONTES DE OCA

Case 3:20-cv-02731-VC Document 229-8 Filed 05/22/20 Page 2 of 8

BREE BERNWANGER* (NY SBN 5036397) bbernwanger@lccrsf.org HAYDEN RODARTE (SBN 329432) hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA 131 Steuart St #400 San Francisco, CA 94105 Telephone: (415) 814-7631
JUDAH LAKIN (SBN 307740) judah@lakinwille.com AMALIA WILLE (SBN 293342) amalia@lakinwille.com LAKIN & WILLE LLP 1939 Harrison Street, Suite 420 Oakland, CA 94612 Telephone: (510) 379-9216 Facsimile: (510) 379-9219

MARTIN S. SCHENKER (SBN 109828) mschenker@cooley.com COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111 Telephone: (415) 693-2000 Facsimile: (415) 693-2222
TIMOTHY W. COOK* (Mass. BBO# 688688) tcook@cooley.com FRANCISCO M. UNGER* (Mass. BBO# 698807) funger@cooley.com COOLEY LLP 500 Boylston Street Boston, MA 02116 Telephone: (617) 937-2300 Facsimile: (617) 937-2400

JORDAN WELLS (SBN 326491) jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568) spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA 1313 West Eighth Street Los Angeles, CA 90017 Telephone: (213) 977-9500 Facsimile: (213) 977-5297
Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice

CASE NO. 3:20-CV-02731-VC DECLARATION OF JOSE PABLO GARCIA MONTES DE OCA

Case 3:20-cv-02731-VC Document 229-8 Filed 05/22/20 Page 3 of 8
DECLARATION OF JOSE PABLO GARCIA MONTES DE OCA 1. I make this declaration from my personal knowledge and, if called to testify to these facts, could and would do so competently. I make this declaration in support of the Motion for Preliminary Injunction in Zepeda Rivas, et al. v. Jennings, et al., 20-cv-02731-VC. 2. My full name is Jose Pablo Garcia Montes De Oca. I was born in Mexico and I am 22 years old. I arrived in the U.S. when I was only 2 years old and was a DACA recipient. 3. I have been detained at Mesa Verde Detention Center in Bakersfield, California since February 13, 2020. Lack of Social Distancing While Sleeping 4. I am currently in A Dorm, where there are 50 bunk beds and about 46 people right now. When I got here, there were a lot more people. About two months ago, I noticed that officials started releasing and removing some people. About a month ago, officials started moving those of us still detained to different bunkbeds. Now, there is one person in most bunkbeds but there are about three bunkbeds with a person on both the bottom and top bunk. Recently, officials also staggered our sleeping arrangements, so every other bunk has someone on top, and the same with the bottom bunks. I am currently on the top bunk, 39-up. The bunkbeds are very close to each other, there is less than three feet between the beds. And even though our bunkbed assignments are staggered, there is still not five feet between me and the person on the bottom bunk next to me. 5. I recently heard officials say that they were going to move some of those people sharing bunks to B Dorm. 6. I am the representative for A Dorm. This means that officers communicate rules to me or anything else that is happening, and I am the person responsible for telling all the detainees what is going on. On Friday May 15, the Chief at Mesa Verde told me to tell people in A Dorm that people in odd bunks are supposed to sleep facing one direction, and people in the even bunks are supposed to face the other direction. For example, if the person in bed 1 lays on his right and faces right while he sleeps, then the person in bed 2 has to sleep on his left side and face left when he goes to sleep. I laughed because that is impossible. I can tell and did tell
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detainees to do it, but I do not think it makes sense. People move around in their sleep, some people sleep on their backs, and have to get comfortable. I told everyone in Dorm A to do this and they said they would try. But I know that this will not protect anyone from contracting the virus and there is also no way to enforce this new rule.
7. Since I first announced the new rule to people in A Dorm, I have not seen anyone do this. And even if everyone did this and did not move while they were sleeping, I still do not think there is enough space between me and the person in the bed next to me. For example, I have to get down from my bunk to go to the bathroom or watch TV or do anything. As soon as I get down from my bunk, I am immediately too close to the person in the bunk next to me. There is certainly not 6 feet between us—not while we sleep and certainly not when I have to get down from my bed for any reason.
8. Whichever way you go, it feels like you cannot be more than six feet away from someone’s bunk. Lack of Social Distancing at Meals
9. Currently, the facility is only letting 25 people at a time go eat. But even with staggered meals, we still have to wait in a tight line, inches from people, to leave the dorm and go to the dining hall. There is no distancing at all. It does not matter that we each sit at our own table to eat because we are only in the dining hall for 10 minutes. It is so rushed now, because they are taking us in smaller groups. We have to eat so fast it gives us stomach aches. Lack of Social Distancing During the Rest of the Day
10. At all times, all detainees in Dorm A are within inches or a few feet from each other. If we wait for the bathroom, we are close to each other. If we are waiting in line to go to the dining hall, we are close to each other. If we are in bed, we are close to each other.
11. In the back of the dorm, there is a small area with three small tables, one microwave, a sink, a hot water dispenser, four phones and three computers. With all of these items in one area, people often congregate there to use them even though the space is really small. For example, when I am on the phone, there is maybe five feet between me and the tables where people are sitting or playing games. It is not possible to remain 6 feet apart in such a small
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space where people are often coming and going to use the microwaves, phones, computers, and small tables.
12. The three little tables are bolted to the ground and are about the size of card tables. There are no chairs. Every bunk is assigned to two plastic chairs and people drag those chairs to the table to sit down. People sit at those small tables together to eat or play games. There are sometimes four or five people around one little table at the same time. The three computers are attached to one surface and are right next to each other. When people sit to use the computers, they are almost touching elbows.
13. The food provided by the facility is trash so a lot of us depend on the commissary to purchase food items. This also means that many of us use the microwave and hot water dispenser to prepare our commissary meals. A lot of people are touching the microwave and the hot water dispenser, and this makes me nervous because I see that a lot of people do not wash their hands first. Lack of Social Distancing While Using Bathrooms
14. In the bathroom, we have two urinals and three toilet stalls, and 5 showers. There are two of these main bathrooms in the middle of the Dorm. Around May 11 or 12, officials turned the water off in one urinal, one toilet, three showers and four sinks in each of the two bathrooms. Now there is only one urinal and two toilets on each side. I believe they did this to try to create some distance between us when we go to the bathroom. But now, there are less toilets and showers so, when people want to use the bathroom or take a shower, they get in line to wait for one to open up. The fact that they turned off the water to some toilets and showers has not made things better. In fact, it made it worse, especially after yard time, when people have worked out and are sweaty and wait close together in line to shower. With less sinks, I have also noticed that people are washing their hands less.
15. In addition, there is also a small bathroom with a toilet, shower and sink on each side that is accessible for people with disabilities. But no one uses these bathrooms because they are very dirty and unhygienic. We do not clean them because it is hard for us detainees to get cleaning supplies, and so we try to conserve our cleaning supplies.
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New Arrivals 16. I have also noticed that there are new detainees coming into the facility. I believe
some of these people have recently been transferred to Mesa Verde from jail or state prisons in Delano, Lerdo, or Wasco, California. On May 9, a new person came to Dorm A from the Lerdo Detention Facility in Bakersfield, California. He told me that, when he arrived at Mesa Verde, officials asked about whether he was experiencing any COVID-19 symptoms, checked his temperature and then placed him straight into Dorm A. He was not quarantined before being introduced to the general population despite having arrived from Lerdo Detention Facility. Problems with Issuance and Use of Masks
17. I think it was about a month ago that guards first distributed masks. The guards told us to wear the masks if we wanted to. They have never told us to wear them all the time. Guards give out new masks three times a week. They do tell people to wear our masks when we go to Court. No detainees in my dorm wear masks when we are in the dorm or when we go to the yard. Some guards will tell us to wear our masks to go to the phone room, but most do not. If the guards told people to wear our masks, I think detainees would follow those instructions. But no one has told us to wear the masks.
18. There are a lot of security guards who do not wear masks. Only some of the guards wear them. Once, my attorney came to visit me and was turned away because he did not have an N95 mask. But the guards do not even wear their surgical masks all the time.
19. I have heard on the news that everyone in the U.S. is now encouraged to wear face masks but people working at Mesa Verde donot wear masks. This concerns me because I know that staff come in and out of the facility and could bring in the virus. By not wearing facemasks, I know that they are potentially exposing us to the virus. Symptomatic Detainees and Lack of Access to Healthcare
20. In Dorm A, there are always people coughing. My neighbor wakes up every day coughing. He has been like that for a long time, and he got checked out by medical staff at the facility about two weeks ago. They only gave him pills. From my understanding, when someone is sick, medical just checks people’s temperature and takes their blood pressure. That is it. I am
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afraid there might be people sick here with the coronavirus. Because of my health conditions, I

have a weakened immune system, and I know that I am more susceptible to catching any disease.

21. My understanding is that, if someone is really sick, they have to submit a kite to

request care. In my experience, it can take two or three days to get a response and it does not

matter if the person is really sick or if they are older. Staff here do not seem to care. They also do

not work Saturday or Sunday, so if someone is really sick, they have to wait until Monday. Even

when someone does get a response to their kite request, it seems like all medical does is take

someone’s temperature.

22. I recently overheard two guards talking about someone in my dorm who was

feeling sick, he had a bad rash all over his neck and chest, and they said that he was just whining

and complaining. It took at least a week for them to give that person medical attention. From my

recent experience, when you go to medical, the care is very basic. In my experience, medical

staff say they cannot do much to help. Mostly they give out ibuprofen and tell people to get

medical attention when they get out of detention. For example, I have a cavity in a back tooth,

and a big hole. It is very painful. Medical staff told me they cannot do anything about it because

of the pandemic, and just gave me ibuprofen. They told me that I should just get it fixed when I

get out of detention, and that I should eat on the other side of my mouth for now.

Conclusion

23. Even if I tried to stay 6 feet away from people, it is impossible to do that here. I

could stay in my bed all day and not move, and I would still be less than 6 feet from someone.

Because of the existing conditions here, I am really scared that there will be an outbreak. It only

takes one person in here to get sick for the rest of us to be potentially exposed. I do not see a way

to prevent it unless we are released from detention and allowed to properly quarantine in the

home of our family members.

I, Jose Pablo Garcia Montes De Oca, declare under penalty of perjury that the foregoing is true

and correct to the best of my recollection. I sign this from Bakersfield, California.

Date: May 18, 2020

//s// Jose Pablo Garcia Montes De Oca Jose Pablo Garcia Montes De Oca

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CERTIFICATE OF AFFIRMATION

I, Theodora Simon, certify that on May 18, 2020 I read the foregoing to Jose Pablo Garcia

Montes De Oca and that he affirmed that the foregoing is true and correct. I have not been able to

obtain a signature from Mr. Garcia because the Mesa Verde Detention Center is located

approximately five hours away from my home by car, and at the time I reviewed the foregoing

declaration with him, the county where I reside was, and remains, under a “shelter in place”

order.

Date: May 18, 2020

//s// Theodora Simon Theodora Simon

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WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org SEAN RIORDAN (SBN 255752) sriordan@aclunc.org ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: (415) 553-9319 Facsimile: (415) 553-9810

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUBI RUIZ TOVAR, LAWRENCE KURIA MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,
Petitioners-Plaintiffs,

CASE NO. 3:20-CV-02731-VC
DECLARATION OF JOSE MEJIA ROSAS IN SUPPORT OF PETITIONERS-PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

v.

DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,

Respondents-Defendants.

CASE NO. 3:20-CV-02731-VC DECLARATION OF JOSE MEJIA ROSAS

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BREE BERNWANGER* (NY SBN 5036397) bbernwanger@lccrsf.org HAYDEN RODARTE (SBN 329432) hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA 131 Steuart St #400 San Francisco, CA 94105 Telephone: (415) 814-7631
JUDAH LAKIN (SBN 307740) judah@lakinwille.com AMALIA WILLE (SBN 293342) amalia@lakinwille.com LAKIN & WILLE LLP 1939 Harrison Street, Suite 420 Oakland, CA 94612 Telephone: (510) 379-9216 Facsimile: (510) 379-9219

MARTIN S. SCHENKER (SBN 109828) mschenker@cooley.com COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111 Telephone: (415) 693-2000 Facsimile: (415) 693-2222
TIMOTHY W. COOK* (Mass. BBO# 688688) tcook@cooley.com FRANCISCO M. UNGER* (Mass. BBO# 698807) funger@cooley.com COOLEY LLP 500 Boylston Street Boston, MA 02116 Telephone: (617) 937-2300 Facsimile: (617) 937-2400

JORDAN WELLS (SBN 326491) jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568) spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA 1313 West Eighth Street Los Angeles, CA 90017 Telephone: (213) 977-9500 Facsimile: (213) 977-5297
Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice

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DECLARATION OF JOSE MEJIA ROSAS I, Jose Mejia Rosas, declare the following based on my personal knowledge:
1. I make this declaration from my personal knowledge and, if called to testify to these facts, could and would do so competently. I make this declaration in support of the Motion for Preliminary Injunction in Zepeda Rivas, et al. v. Jennings, et al., 20-cv-02731-VC.
2. My full name is Jose Mejia Rosas. I was born in Quantemo, Mexico and I am 37 years old. I have been in the United States since 1987 when I was only 4 years old. I have been a legal permanent resident since 2005.
3. I have been detained at Yuba County Jail (“YCJ”) in Marysville, CA since August 8, 2019. At YCJ, I am housed in the K Tank. Before, I was in L Tank and before that I was in the G Tank. Currently within our tank, I am housed in an open-door setting, meaning we have no doors or no barriers separating us from the inmates housed in the same tank. We have an open space with ten bunk beds, one shower, three toilets, three sinks, one long dining table and a recreation space to watch television. Everything is within the tank: we eat here, we shower here, and we have recreation time here. Lack of Social Distancing While Sleeping
4. K Tank is a small area with the capacity of 20 inmates max, which makes it impossible to be six feet apart. As of a week ago, there were eleven detainees in K Tank. There are still 11 detainees as of the signing of this declaration. The bunkbeds are about a foot apart from each other, which means we all sleep very close to each other. For example, when one person is asleep and their feet are sticking out of the bed, their feet are about 6 inches from the next person’s head in front of them.
5. Currently, there is a bunk bed next to mine and another in front of me. Both bunkbeds are occupied by someone. If I look to my left, I can almost touch the person across from me with my hand. We are all approximately 2 feet or an arms length apart from each other when we are sleeping in our bunkbeds.
6. Because there are 11 people in K Tank, all 10 bunkbeds are occupied. Currently, two people are sharing one bunkbed—one person is on top and the other on the bottom bed. But
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this is a new development because, a little over a week ago, all of the bunkbeds were full. I know that officials moved at least two detainees who suffered from asthma1 out of K Tank and I believe a few other detainees were also moved. I do not know exactly where they were moved to, but I do believe that they are still at YCJ. I have heard from other detainees that they were moved to Q-5. I also heard from another detainee who was recently in medical that one of the people moved out of our tank is now is an A-Pod, which I believe is the administrative segregation unit. Lack of Social Distancing at Meals
7. During mealtime (“chow-time”) we all eat at the only long table at the same time. When its time to get our food we all stand together and form a line. While in line, we are about 1 to 3 feet apart from each other. We cannot stand farther apart from each other. I have not seen the facility make any changes to keep us apart during mealtimes.
8. Even if they wanted to, I do not think there is much that they can do to create more distances between us because the areas are so small. For example, the dining seats are approximately 7-8 inches apart and we are practically elbow-to-elbow during all three of our meals. The dining seats are welded on to the tables and the tables are bolted to the ground. We all eat together at the long table in K Tank for every meal. Meals are not staggered so we are all very close to the person next us when we eat.
9. When the food is served, the officer brings it in one cart and the beverage in a second cart. They bring the food in a big metal cart and they bring the Kool-Aid in a plastic cart. The carts are wheeled in. The same cart is being wheeled in from one tank/pod to the next. At YCJ, there is approximately one food cart and one beverage cart per floor. One food cart goes into every tank/pod on the same floor. For example, K tank is located on the same floor as approximately 14 tanks/pods, including the women’s tanks. This means that the same cart goes
1 I believe they had asthma because the nurses would come in daily and give them an inhaler twice a day. Other times, when their breathing was really bad, the nurses would take them to medical and put them on a breathing treatment for about an hour. And the detainees also told me that they had asthma and were taking medication for it.
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in and out of different tanks/pods without sanitizing or wiping down between each meal dropoff.
10. When the officers bring the food to us, they are about a foot away from the cart and us when they are serving us our food. This really scares me, because I know my health is at risk and there is no way they can protect me or the other detainees when they are getting this close to us. This facility does not have enough protective measures and I feel like I am going to die in here. I already served my time and I want to be home with my family. Lack of Social Distancing During Recreation
11. Recreation takes place within our tank. It is in one open space. The size of the recreation area is maybe 8 feet by 20 feet. We all have recreation time in the same area at the same time. In the recreation area, we are all about 2-3 feet away from each other. If we are watching a movie, we are all about a foot in half apart from each other. Because the TV is so small and the volume is so low, we all end up inches from each other as we all try to get as close as possible to the TV.
12. We also have an hour a day, five days a week of “roof” time. This means that we are allowed to go to the roof to be outside. There are pull-up bars and a basketball court there. The entire tank can go at the same time and there are no other people from other tanks there when we go. We are all touching the same pull-up bars, basketballs, and surfaces that other people in other tanks touch. I do not believe those are wiped down in between “roof” time for different tanks. Lack of Social Distancing During the Rest of the Day
13. There is a detainee in K tank that is over 60 years old and he has limited physical mobility. When he sits on the bed to try to put his socks on, he asks one of us to help him put on his socks because he cannot reach his feet. This means that we are touching him because there is no one else who can help him. Lack of Social Distancing While Using Bathrooms
14. Inside our tank we only have one shower. The shower has a plastic curtain as a divider and there is no privacy. When I get out of the shower, there is often someone eating
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about 3 feet away from me or someone watching TV or playing a game of chess. There is almost always someone in front of me when I get out of the shower because the shower is about 3 feet away from the dining table and 3 feet away from the recreation area. It is also only about 3 feet from the main toilet in our tank.
15. As much as I would like to remain at least 6 feet from other people, it is simply not possible in our small tanks. Even the toilets are in an open aired space and do not afford any social distancing, let alone privacy. There is no curtain or anything blocking the toilets, everyone can see you go in and sit down at the toilet. And when you get up from the toilet, you are within a few feet from everyone in the tank. New Arrivals
16. The only change I have recently noticed is that there has not really been any new detainees introduced into my tank. Before the pandemic, it was almost automatic that as soon as one person left, another person would come in the next day and take their spot. However, since around March or April, I have noticed that new detainees are quarantined in a separate room, which is in the new area of the facility that has a two-cell tank. I believe they are quarantined together for about 14 days, but I do not know for sure. Once the new inmate has been cleared by staff, they are introduced into the general tanks/pods. Again, I do not know this for sure, but I have spoke to at least one detainee who was quarantined for 14 days and have also heard officials say that this is the procedure.
17. I do believe that there have been new detainees who have been booked into YCJ. I believe these new detainees were transferred in from state prisons, jails, or picked up from the streets. Problems with Issuance and Use of Masks
18. A little over two weeks ago, officers at YCJ began to hand out handmade face masks that had been made and donated by a local community organization. These were not masks procured by ICE. We were each handed a mask and, every Wednesday, officers come around asking us if we want to exchange our masks for a new mask. When we received the masks, officers did not provide an instructions or guidance on how to use the masks or when we
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should wear them. As a result, some of us wear them and some do not. To my knowledge, it is not mandatory for us to wear masks and I do not know of anyone who has been required to wear the mask. Lack of Proper Hygiene and Sanitation
19. We are responsible for cleaning our own tanks and common areas with the limited supplies that YCJ provides us. We are only given a mop, broom, and a cleaning tile solution for the shower. Despite our rigorous attempts to clean and scrub, the materials YCJ provides us are not enough for the deep and sanitary cleaning our tank requires in order to protect everyone from the virus. Even though we try to clean, our tank often remains dirty and unsanitary. The floors are in dire need of a good pressure wash. The paint in the facility is also chipping off from the walls, bars, and tables.
20. I am also concerned with the improper air circulation. I often see lint and even hair in the air coming from the AC unit. The AC circulates between all tanks/pods. When the AC goes out—which does happen—I can see the walls sweat with toxic water and there is a really bad smell. This really makes me feel uncomfortable and scared that I may get sick from simply breathing the air.
21. Given the limited cleaning supplies we are provided, we are also not able to adequately clean the showers and toilets. As much as we try to clean and scrub, the toilet by the shower smells like urine all the time. To make matters worse, the toilet is about 2 to 3 feet away from the table where we all eat.
22. In our tank, there is only one phone for all of us. Given the pandemic and cancelation of social visits, everyone is now using the phones more frequently. This means that we are all touching the same phone all the time—placing our mouth near the receiver. Within the last two weeks, officers gave us paper towels and detergent spray to clean the phones or any other area, but it is not sufficient. Conclusion
23. The general mood in the tank has been stressful. No one is able to have any visits and people are worried for themselves and their families. Everyone is moody, people are scared,
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worried about catching the virus, worried about their family, kids, and what is happening in the outside world. I feel we are being treated unfairly at YCJ because officials are not taking proper and necessary precautions to protect the facility from an inevitable outbreak. All detainees here know that the officials are not taking this seriously.
24. The danger and risk of being infected with the virus impacts my willingness to continue fighting my removal case. Sometimes, I feel like giving up. I have spoken to other detainees who were removed from the United States and its clear that they felt forced to sign their removal orders because they were scared and did not want to die here if an outbreak happened. I am also scared and fear for my life. The conditions here are dire and we are all scared for our lives. We need immediate changes and protections. We need to be with our families during these times and be able to adequately quarantine and shelter-in-place. YCJ is not the place where we can do that.

I, Jose Mejia Rosas, declare under penalty of perjury that the foregoing is true and correct to the best of my recollection. I sign this from Marysville, California.

Date: May 18, 2020

//s// Jose Mejia Rosas Jose Mejia Rosas

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CERTIFICATE OF AFFIRMATION I, Angelica Salceda, certify that on May 18, 2020 I read the foregoing to Jose Mejia Rosas and that he affirmed that the foregoing is true and correct. I have not been able to obtain a signature from Jose Mejia Rosas because Yuba Detention Center is located approximately three hours away from my home by car, and at the time I reviewed the foregoing declaration with him, the county where I reside was, and remains, under a “shelter in place” order.

Date: May 18, 2020

//s// Angelica Salceda Angelica Salceda

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WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org SEAN RIORDAN (SBN 255752) sriordan@aclunc.org ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: (415) 553-9319 Facsimile: (415) 553-9810

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUBI RUIZ TOVAR, LAWRENCE KURIA MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,

CASE NO. 3:20-CV-02731-VC
DECLARATION OF JUAN AGUILAR CASTANEDA IN SUPPORT OF PETITIONERS-PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Petitioners-Plaintiffs,

v.

DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,

Respondents-Defendants.

CASE NO. 3:20-CV-02731-VC DECLARATION OF JUAN AGUILAR CASTANEDA

Case 3:20-cv-02731-VC Document 229-10 Filed 05/22/20 Page 2 of 8

BREE BERNWANGER* (NY SBN 5036397) bbernwanger@lccrsf.org HAYDEN RODARTE (SBN 329432) hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA 131 Steuart St #400 San Francisco, CA 94105 Telephone: (415) 814-7631
JUDAH LAKIN (SBN 307740) judah@lakinwille.com AMALIA WILLE (SBN 293342) amalia@lakinwille.com LAKIN & WILLE LLP 1939 Harrison Street, Suite 420 Oakland, CA 94612 Telephone: (510) 379-9216 Facsimile: (510) 379-9219

MARTIN S. SCHENKER (SBN 109828) mschenker@cooley.com COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111 Telephone: (415) 693-2000 Facsimile: (415) 693-2222
TIMOTHY W. COOK* (Mass. BBO# 688688) tcook@cooley.com FRANCISCO M. UNGER* (Mass. BBO# 698807) funger@cooley.com COOLEY LLP 500 Boylston Street Boston, MA 02116 Telephone: (617) 937-2300 Facsimile: (617) 937-2400

JORDAN WELLS (SBN 326491) jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568) spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA 1313 West Eighth Street Los Angeles, CA 90017 Telephone: (213) 977-9500 Facsimile: (213) 977-5297
Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice

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DECLARATION OF JUAN AGUILAR CASTANEDA 1. I make this declaration from my personal knowledge and, if called to testify to these facts, could and would do so competently. I make this declaration in support of the Motion for Preliminary Injunction in Zepeda Rivas, et al. v. Jennings, et al., 20-cv-02731-VC. 2. My full name is Juan Aguilar Castaneda. I was born in Mexico and I am 38 years old. I have been in the United States since I was seven years old, around 1988. My mom and my siblings are all here in the U.S. 3. I have been detained at Yuba County Jail in Marysville, CA since approximately April 15, 2020. 4. At Yuba County Jail, I am currently housed in G Pod. Before, I was in F Pod for 14 days after being transferred from Monterey County Jail. Lack of Social Distancing While Sleeping 5. I was in F Pod for two weeks. In F Pod, there are cells on two floors, 20 cells in total. While I was there, all the cells were occupied. Most detainees were in a cell by themselves, but sometimes there were two people in a cell, when it was really full. I estimate while I was in F Pod, there were maybe 8 people sharing cells. Someone new came to F Pod or left every three days or so. 6. Each cell had a small bunk bed, a toilet, and a sink. There was also a small metal table and bench, welded to the floor. The side of the cell that looks out into the Pod is made up of metal bars, so it’s open air. The cells are small. Laying on my back, if I stretched out my arm, I could touch the wall of the cell. There was only a bit of room between the bed and the bars. When there were two people in a cell, it would be impossible for them to stay six feet apart. The cell just isn’t big enough. 7. Around May 1, I was transferred to G Tank. In G, at first there were eight of us. Now, there are fourteen of us of us, ICE detainees and county inmates. One side of G is all metal bars. You can see everything that is happening in the hallway. There are ten bunk beds, so everyone is in their own bed. In the middle of the bunks there is a long table with benches. The benches are attached to the floor and the tables. We cannot move the table. We cannot move the
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beds. Even though I don’t share my bunk bed, when I’m lying in bed, if I stretch out my arm, I can touch the bed next to me. I can reach out and touch the other person. And if someone walks between the beds, it’s even closer. My bed is maybe a meter and a half, at most, from the dorm door.
8. All of the other detainees walk by G to get to the yard. So there are people walking by me maybe once an hour, they walk very close to the metal bars and to us. There have been people coughing as they walk by G. My bed is only three or four steps from the hallway. When I’m laying down at night, people who are walking through the halls are quite close to my head. Lack of Social Distancing at Meals
9. In F Pod, meals were brought to our cells. Officers came by with a meal cart and handed us trays one by one. We ate in our cells. The officers did wear masks and gloves.
10. In G, food is brought by officers. Sometimes officers come, open the door, and hand the food to us through the door. We stand in line. We are one after another in line. There are other officers that pass the trays to us through the metal bars. And they give a tray to each person. Then we all sit at the table, all fourteen of us, to eat. Our elbows bump when we sit down to eat. Lack of Social Distancing During Recreation
11. The only places to sit are beds or the benches at the table. People are pretty close to one another, walking or at the table. It’s about three or four steps from my bed to the table, maybe 1.5 or 2 meters apart. So our beds are pretty close to the only common area. Wherever you go, you are always near another person.
12. It is not possible to socially distance in G Tank. There just isn’t enough space. We feel like rats in a cage. When people walk through the Tank, we’re almost always should to shoulder. Lack of Social Distancing While Using Bathrooms
13. In G Pod, there is one shower stall, with a curtain. That shower is shared by all nine people. The shower and toilets are cleaned every day by the detainees. There are three
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toilets, in a row, that are maybe three feet apart. There is a small separator between the toilets, but no door. So even while you go to the bathroom, you can’t get away from other people.
14. In my cell in F Pod, the toilet was really dirty. I tried to clean it, but I could not get rid of the smell. It was like it had been too long since it had been cleaned. And the water from the sinks was really disgusting. It tasted dirty, like rust. It did not seem like safe water to drink, but that was the only water we had for drinking. We got a tiny bar of soap maybe twice a week. Lack of Proper Sanitation and Hygiene
15. When I first arrived at Yuba, no one at the facility told me anything about the coronavirus or how to protect myself. The screening process was questions about my physical health and medical background, like if I had ever been in the hospital. They asked if I had any COVID symptoms and took my temperature and pulse. I was not given a test for the coronavirus.
16. They did not give me a mask, but I kept the one I brought with me from Monterey County. But I had been using that mask for over a week by then. Yuba did not give me a mask for about three or four days, and did not tell me how or when or where to use it or give me any other instructions.
17. Everyone in F Pod used the same phone. I could see the phone from my cell, and I saw that many people did not clean the phone before they used it. The cleaning supplies were not near the phone. Many people just picked it up and held it close to their face to talk.
18. There is not enough soap in my current dorm. When we run out, we ask the officers, but it takes them a long time to bring more. My soap has run out many times. Last week, I had to wait for three days for them to bring more soap, even though I continued to ask for soap. The officers told us to wait, that they would bring more soon. I would guess that probably four of us had run out of soap.
19. To buy soap in the commissary is like $3.50. My mom sometimes puts money on my commissary account, but since she is not working right now, she cannot afford much. My stepfather works at a golf course, and he has not been working because of COVID-19. $3.50 is too much for me, and since my mom does not have a job right now, I try not to spend much
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money and use my commissary account to call and check in on her. It does not feel right that I do not have enough soap just because I cannot buy it. Sometimes people leave soap in the sink, after they take a shower, and I try to use that soap when I run out.
20. I went to use the private phone room on April 30th. It is dirty in the phone room phone booth. There is a lot dust and grime, it does not seem like they clean it. There are no cleaning supplies in the room, there is no way to wipe down the phone. I felt uncomfortable because I could not clean the phone and I put it up to my face. I do not know who was there before me, and that is scary. I do not know if that person was sick and could infect me. New Arrivals
21. I was worried that the new people coming into F Pod every few days would bring the disease in, and that I would get sick. I was afraid of getting sick and not being able to do anything about it. I also worried that I would get the disease from a new transfer and not know it, and then I could get others sick, too.
22. When they would remove someone from a cell, sometimes they would clean the cell, and sometimes they would not. And their cleaning was to spray bleach, and that was all. There was at least one time where there was a new person in an empty cell within an hour of the old person leaving. Symptomatic Detainees and Problems with Healthcare
23. While I was in F Pod, there was one person who got really sick with COVID symptoms. For three straight days, he was coughing constantly, hard. He was only a few cells away from me. When he would walk by my cell, like to go to the shower or use the phone, he was certainly less than two meters away. And the cells do not have doors, just bars. When he would walk past my cell, and all the cells, he would be coughing. I remember seeing him use the phone, since my cell was directly across from the phone, and I do not remember seeing the phone cleaned after he used it. He was removed from F Pod after three days. I do not know where they took him or what happened to him. I was worried he would get me sick. This made me feel afraid. When he could not figure out how to use the phone, he would come over and ask
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me how to use the phone and he would not have a mask on. He would ask me for help, and he would cough.
24. When I got to G, there was a county inmate here that was coughing, and he was coughing frequently and hard. I think he submitted a medical request but did not go see a doctor. Problems with Issuance and Use of Masks
25. In F Pod, I only saw people use their masks when they left the housing unit, when they were going to talk with their lawyer, or to see the nurse.
26. I have never seen anyone in G use their mask while they are here in the dorm. 27. We go to the roof maybe three times per week. We go all together. We do not put on masks, and we are not told to. We walk in a single file line; I could touch the person in front of me if I wanted to. 28. It seems risky and dangerous that the guards are going in and out every day. They go outside, and we do not know where they go. And then they come back, and we have a lot of contact with them. They are around a lot. They could get us sick. That scares me. They could spread the virus without knowing it. 29. It is not possible to socially distance in G Pod. There just is not enough space. The facility has not given me any information about coronavirus. They have put up a flier, but they do not talk about it. I have not been told to wash my hands frequently or how important it is to maintain social distance. I only know this because we watch news. The TV with news is almost always on.

I, Juan Aguilar Castaneda, declare under penalty of perjury that the foregoing is true and correct

to the best of my recollection. I sign this from Marysville, California.

Date: May 19, 2020

//s// Juan Aguilar Castaneda Juan Aguilar Castaneda

CASE NO. 3:20-CV-02731-VC DECLARATION OF JUAN AGUILAR CASTANEDA

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CERTIFICATE OF INTERPRETATION AND AFFIRMATION

I, Theodora Simon, certify that I am fluent in Spanish and English and that I am competent to

interpret between these languages. I further certify that I have read the foregoing to Juan Aguilar

Castaneda in Spanish. I further declare that I am competent to render this interpretation and that I

would testify to the same under the penalty of perjury if I were called upon to do so.

I further certify that on May 19, 2020 I read the foregoing to Juan Aguilar Castaneda and that he

affirmed that the foregoing is true and correct. I have not been able to obtain a signature from

Juan Aguilar Castaneda because Yuba Detention Center is located approximately two hours

away from my home by car, and at the time I reviewed the foregoing declaration with him, the

county where I reside was, and remains, under a “shelter in place” order.

Date: May 19, 2020

//s// Theodora Simon Theodora Simon

CASE NO. 3:20-CV-02731-VC DECLARATION OF JUAN AGUILAR CASTANEDA

Case 3:20-cv-02731-VC Document 229-11 Filed 05/22/20 Page 1 of 8

WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org SEAN RIORDAN (SBN 255752) sriordan@aclunc.org ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: (415) 553-9319 Facsimile: (415) 553-9810

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUBI RUIZ TOVAR, LAWRENCE KURIA MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,

CASE NO. 3:20-CV-02731-VC
DECLARATION OF JUAN JOSE ERAZO HERRERA IN SUPPORT OF PETITIONERS-PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Petitioners-Plaintiffs,

v.

DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,

Respondents-Defendants.

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BREE BERNWANGER* (NY SBN 5036397) bbernwanger@lccrsf.org HAYDEN RODARTE (SBN 329432) hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA 131 Steuart St #400 San Francisco, CA 94105 Telephone: (415) 814-7631
JUDAH LAKIN (SBN 307740) judah@lakinwille.com AMALIA WILLE (SBN 293342) amalia@lakinwille.com LAKIN & WILLE LLP 1939 Harrison Street, Suite 420 Oakland, CA 94612 Telephone: (510) 379-9216 Facsimile: (510) 379-9219

MARTIN S. SCHENKER (SBN 109828) mschenker@cooley.com COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111 Telephone: (415) 693-2000 Facsimile: (415) 693-2222
TIMOTHY W. COOK* (Mass. BBO# 688688) tcook@cooley.com FRANCISCO M. UNGER* (Mass. BBO# 698807) funger@cooley.com COOLEY LLP 500 Boylston Street Boston, MA 02116 Telephone: (617) 937-2300 Facsimile: (617) 937-2400

JORDAN WELLS (SBN 326491) jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568) spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA 1313 West Eighth Street Los Angeles, CA 90017 Telephone: (213) 977-9500 Facsimile: (213) 977-5297
Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice

CASE NO. 3:20-CV-02731-VC DECLARATION OF JUAN JOSE ERAZO HERRERA

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DECLARATION OF JUAN JOSE ERAZO HERRERA 1. I make this declaration from my personal knowledge and, if called to testify to these facts, could and would do so competently. I make this declaration in support of the Motion for Preliminary Injunction in Zepeda Rivas, et al. v. Jennings, et al., 20-cv-02731-VC. 2. My full name is Juan Jose Erazo Herrera. I was born in El Salvador and I am 20 years old. I have been in the United States since I was 16 years old. I am seeking asylum. 3. I have been at Yuba County Jail for 26 months. At Yuba, I am currently in an Administrative Segregation unit by myself because I went on hunger strike. I went on hunger strike because the conditions here are dangerous. I was in D Pod for a long time, and on May 8, 2020, I was moved to H Tank. Lack of Social Distancing While Sleeping 4. I was in H Tank for about two or three days. H Tank was too small for us to engage in social distancing. There were 10 people crammed into the tank. It was impossible to be six feet away from other people. 5. In H Tank, there were ten bunk beds, with space for 20 people. There were four bunks in a row on one side, and six bunks in a row on the opposite side. The bunk beds are welded to the wall or to metal bars that separate the two groups of bunk beds. The entrance to the dorm is metal bars with air flowing through. We slept next to the wall, and our heads were all towards the hallway where people walked by. We slept head to toe with other people in adjacent bunks. Two of the bunk beds had two people in them, the rest were singles. All the lower bunks were taken. While lying in bed, I could almost touch the person’s head in the bunk bed behind me with my toes. In my bed, I had a bunk bed on my left side, as well as at my feet. All of this was true up to the day I was removed from H Tank on about May 11. Lack of Social Distancing at Meals 6. There is a long table in H Tank where we would all eat. It is maybe big enough for 16 people. When we sat down to eat, our legs were touching. And at one end of the table, there was a little TV. There were single seats at the table. They were attached to the metal table with steel. The table is welded to the floor. These were the only places to sit in the whole dorm.
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You were either in your bed or sitting at the table. For example, on Mother’s Day afternoon, most people were watching TV at the table and we were all within six feet of each other. Only the person in his bed and the person showering were farther away.
7. At mealtime, the officers would come by with the food cart. There were some officers who made us get in line behind a line of tape they put on the floor to keep us distanced from the guards, and come, one by one, to the door to get our tray at mealtimes. There were officers that did not care about social distancing and did not care that we detainees were on top of each other as we waited for food. But even when we stayed behind the line, we were standing inches from the other person. We all sat at the table to eat, at the same time together, and we were just too close to one another. We were side by side because the table is not very wide. When we would eat, my tray and the tray of the person in front of me would touch. Lack of Social Distancing During the Rest of the Day
8. When we were moved from D Pod to H Tank, the county inmates who had also been in in D Pod with were moved to the tank next to us, which is even smaller than H Tank. I could see the county guys on my way to the yard. Their tank also has bars. At Yuba, there are four tanks in a row, all with bars; so, the air flows between the tanks, we all breathed the same air.
9. While in our tank, we could see staff and people in detention as they walked by. And we were all breathing the same air. People from all the dorms walked by H Tank at all hours of the day. They were usually not wearing masks. When I would lay down at night, my head was only about four steps away from the hallway, where people were walking. When officers walked by at night with the garbage, or from one housing unit to the next, they would wake me up. It is like those people were in the tank with us.
10. All ten of us were together in H Tank for 23 hours a day. The only time we left that small space was for yard time, for an hour a day. Sometimes people would go to medical or to use the phone room, but otherwise, we were all packed together, where it is impossible to practice social distancing.
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11. Even when we walk to the yard, we walked in a line like a train, one after another. We were not six feet apart. Lack of Social Distancing While Using Bathrooms
12. In H Tank, there was one shared shower. There were three toilet stalls each with a metal toilet bowl and a small metal sink. The toilets did not have doors. It was really uncomfortable because everyone could see you, and when someone else was in the bathroom you could hear and smell everything. We hung a sheet up to try to have some privacy. But the officers would take the curtain down. All ten of us were breathing the same air and using the same bathrooms. Problems with Issuance and Use of Masks
13. Community organizations on the outside made handmade cloth masks for us and sent them as donations. It is not fair—ICE should have given us masks and protected us. It is nice that these community groups came together to help us, but really that was ICE’s responsibility. They are cloth masks, but I am not sure if they really work to protect against the virus. We do not use the masks. Once a week, officers bring us a mask that someone else was using before and claim they cleaned it. They do not tell us to use the masks here. Officers have only told us that we have to put our masks on when we go to Court. But when we use the phone room or go to the yard, no one tells us to use the masks, so we do not use them. Lack of Proper Hygiene and Sanitation
14. I feel that the most likely way we get COVID-19 is because of staff. The nurses and the officers go outside and go home, and we do not know what they do. Then they come here and work. In H Tank, an officer came once an hour to do the check down. The officer walked between us and was very close to us, much less than six feet. I have seen a few officers without masks, but most of them do wear masks. While some officers wear gloves, some do not. The officers and staff are not practicing social distancing while at work. The same officers also go to F Pod, where all the sick people are, and then they come and walk by our dorms. Who can say that they are not contaminating us? If they are not willing to follow the rules, how can I demand that they take precautions to protect us? They do not take us seriously or listen to us.
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Conditions Are Getting Worse 15. Since my attorney Kelly Wells submitted a declaration on my behalf in Bahena
Ortuño on March 30, 2020 (3:20-cv-02064 Dkt. 26-13), nothing changed until the Judge ordered release of a few people. Only then did officials pass out masks and started spraying bleach on the floor sometimes. But social distancing is exactly the same as it was before.
16. After the Bahena Ortuño lawsuit was filed, officers started giving us soap every day. But that stopped after a week or two, and now we are back to getting the little soaps two times a week and they just do not last. When I got to H Tank on May 8, there was no soap at all for at least three days.
17. We are more exposed to the illness here than we were before. On Sunday May 10, 2020, I decided to go on hunger strike because of these conditions. I want to change to happen. I have been locked up a long time. People do not want to give us the chance to make it. ICE is exposing me to this illness, and they just do not care. ICE says we are a danger to society, and that we are protected from the disease. We are not a danger; we are in danger. We are in danger here because we could get sick at any moment and they are putting us in greater risk. For me, deciding to go on hunger strike is not just for me. I am doing it for everyone here. My voice is not just for me. I want people to realize that this just is not me and that everyone here is in danger. We are not safe.
18. ICE officers threatened to transfer me to another facility to get me to stop my hunger strike and tried to bribe me with free calls to my family if I stopped, but I refused. They placed me in a freezing cell where I was alone 24 hours a day, except for brief visits with medics. Despite the threats, hunger, cold, and isolation, I continued my strike from the morning of Sunday, May 10, until Saturday night, May 16, when I stopped my strike. But my fight is not over. I learned from my lawyer that many organizations asked officials to investigate the situation here due to my hunger strike, and I will keep fighting until we are all free, which is the only way we can protect ourselves from this virus.
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I, Juan Erazo Herrera, declare under penalty of perjury that the foregoing is true and correct to

the best of my recollection. I sign this from Marysville, California.

Date: May 20, 2020

//s// Juan Erazo Herrera Juan Erazo Herrera

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CERTIFICATE OF INTERPRETATION AND AFFIRMATION

I, Theodora Simon, certify that I am fluent in Spanish and English and that I am competent to

interpret between these languages. I further certify that I have read the foregoing to Juan Erazo

Herrera in Spanish. I further declare that I am competent to render this interpretation and that I

would testify to the same under the penalty of perjury if I were called upon to do so.

I further certify that on May 20, 2020 I read the foregoing to Juan Erazo Herrera and that he

affirmed that the foregoing is true and correct. I have not been able to obtain a signature from

Juan Erazo Herrera because Yuba Detention Center is located approximately two hours away

from my home by car, and at the time I reviewed the foregoing declaration with him, the county

where I reside was, and remains, under a “shelter in place” order.

Date: May 20, 2020

//s// Theodora Simon Theodora Simon

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WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org SEAN RIORDAN (SBN 255752) sriordan@aclunc.org ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: (415) 553-9319 Facsimile: (415) 553-9810

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUBI RUIZ TOVAR, LAWRENCE KURIA MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,
Petitioners-Plaintiffs,

CASE NO. 3:20-CV-02731-VC
DECLARATION OF LIVIA PINHEIRO IN SUPPORT OF PETITIONERS-PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

v.

DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,

Respondents-Defendants.

CASE NO. 3:20-CV-02731-VC DECLARATION OF LIVIA PINHEIRO

Case 3:20-cv-02731-VC Document 229-12 Filed 05/22/20 Page 2 of 7

BREE BERNWANGER* (NY SBN 5036397) bbernwanger@lccrsf.org HAYDEN RODARTE (SBN 329432) hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA 131 Steuart St #400 San Francisco, CA 94105 Telephone: (415) 814-7631
JUDAH LAKIN (SBN 307740) judah@lakinwille.com AMALIA WILLE (SBN 293342) amalia@lakinwille.com LAKIN & WILLE LLP 1939 Harrison Street, Suite 420 Oakland, CA 94612 Telephone: (510) 379-9216 Facsimile: (510) 379-9219

MARTIN S. SCHENKER (SBN 109828) mschenker@cooley.com COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111 Telephone: (415) 693-2000 Facsimile: (415) 693-2222
TIMOTHY W. COOK* (Mass. BBO# 688688) tcook@cooley.com FRANCISCO M. UNGER* (Mass. BBO# 698807) funger@cooley.com COOLEY LLP 500 Boylston Street Boston, MA 02116 Telephone: (617) 937-2300 Facsimile: (617) 937-2400

JORDAN WELLS (SBN 326491) jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568) spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA 1313 West Eighth Street Los Angeles, CA 90017 Telephone: (213) 977-9500 Facsimile: (213) 977-5297

Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice

CASE NO. 3:20-CV-02731-VC DECLARATION OF LIVIA PINHEIRO

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DECLARATION OF LIVIA PINHEIRO 1. I make this declaration from my personal knowledge and, if called to testify to these facts, could and would do so competently. I make this declaration in support of the Motion for Preliminary Injunction in Zepeda Rivas, et al. v. Jennings, et al., 20-cv-02731-VC. 2. My full name is Livia Pinheiro. I was born in Brazil and I am 40 years old. I have been in the United States since I was about 7 years old. My two children and parents are U.S. citizens. 3. I have been in ICE detention since October 25, 2017. I was initially placed at Yuba County Jail. On August 2, 2018, I was transferred from Yuba to the Adelanto Detention Facility. On January 17, 2020, I was transferred back to Yuba. 4. When I returned to Yuba in January 2020, I started out in R dorm. Lack of Social Distancing While Sleeping 5. In January 2020, R dorm had 18 people. On May 7, a guard told me that more people would be added to R Dorm from other tanks and, at the time I was transferred out of R dorm on May 9, there were 11 women total, both ICE detainees and county inmates. 6. There are nine bunkbeds in R dorm set up right next to one another, about two feet apart. I was in the lower bunk to the left as you first entered the R Dorm, up against the wall. When I slept, if I reached out, I could definitely touch the person next to me. She was just a couple of feet away from me. 7. It is impossible to stay six feet apart from other people with this set-up. 8. The R dorm does not have any windows. There was one small fan in the room that was connected to the wall outlet. There were also two suction fans that seem to recirculate air between the dorms. I think this because the smells of cigarette smoke, marijuana, and burning food from the kitchen drifted into R dorm. Lack of Social Distancing at Meals 9. In the middle of the R dorm, there are three tables, each with six chairs. The three tables were right in a row. The tables and chairs are bolted to the ground and cannot be moved. Everyone who lived in the R dorm ate at the same time. Although all of the seats at the tables
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were not full, we were still very close to each other when we ate. Sometimes while eating, I would touch shoulders with the person sitting next to me. If a woman was sitting across from me at mealtime, she would be no more than three feet away; I could reach out and touch her.
10. At mealtime, the guards rolled the food from the kitchen on a metal food cart. They would stand outside the dorm door and pass out trays or let the women pick up their own trays. In late March, one of the guards placed tape on the floor to keep a six-foot distance between the officers and where women lined up to be called for their meal. But we were still close to one another while standing in line. And it did not seem like the guards cared about social distancing. Even after the tape was placed on the floor, there was one officer who would allow one woman to stand next to the food cart and hand out trays to the other women. Lack of Social Distancing While Using the Bathroom
11. There were two shower stalls in R dorm. The stalls were very close together and when you showered you were only a few feet away from the person next to you, and the only thing separating you from the other person was a moveable plastic divider that only covered up the area between your knees up to about your shoulders. There were two toilets in the bathroom, each with a sink. The toilets were only about two feet apart. When you stood up, you could see into the stall next to you. There was no privacy. If two women were going to the bathroom or taking a shower at the same time, it was impossible to stay six feet apart from one another. Symptomatic Detainees and Problems with Health Care
12. In mid-March, a woman in R got very sick and had to be hospitalized. After that, several women, including me, got really sick. I have two underlying medical conditions: severe asthma and Reynaud’s disease. Reynaud’s disease causes bad blood flow and, once I get sick, my immune system shuts down.
13. When I got sick in late March, I had chills, what felt like a fever, body aches, bad headaches, sneezing fits and a severe cough. I cannot say for certain whether I had a fever because my temperature was never taken. I had to use my inhaler every few minutes to help me breathe. I did not have steroids to help open my lungs because the medical staff does not allow steroids in detention (even though I am supposed to have it at all times). I was bed-ridden for
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four days. I put in medical requests for two weeks straight, but wasn’t seen by medical staff until I was starting to feel better. I was quarantined for two and half days in the medical dorm and, by the time they finally took my temperature for the first time, I didn’t have a fever.
14. On April 3, 2020, I again requested my steroid treatment, but medical staff denied my request. Two other women, Noemi Johnson and Brenda Ruiz also got sick. The three of us all asked to be tested for COVID -19. Medical staff told us that they did not have the COVID-19 test. To the best of my knowledge, no one in the detention center has been tested for COVID-19.
15. Another woman got sick a few days before me. She was vomiting, had body aches and was coughing, and a high temperature. But the officers still made her go to work in the laundry area.
16. On April 17, 2020, I went to see the doctor. I had been feeling pain in my breast. The medic did a breast examination and found two lumps under my armpit, two lumps on my left breast, and three on my right breast. When I requested a mammogram, the medical staff acknowledged that my exam was concerning, but that I could not go outside of the detention center for further testing due to COVID-19. It wasn’t until my immigration attorney advocated for me that I was finally taken to a Sutter Health hospital on May 13, 2020 for a mammogram. During that month of waiting, I was really afraid that I might have cancer and I was so anxious to get tested but they kept telling me I couldn’t. I am Being Punished with Solitary Confinement for Discussing My Medical Vulnerability
17. I suffer from bipolar disorder, PTSD, and depression in addition to my severe asthma. When I first got here, they did not give me my bipolar medication for several weeks and I suffered a manic episode. I was really depressed about being here, so I stopped eating. I do not know for how many days. That’s when they put me in isolation the first time, in Q1. Isolation made it even worse, and I stopped eating all together. I was in the shower one day, and I fainted and fell. They had to send me to the hospital. My face was all busted open. When I came back from the hospital, around February 22, the medic said that it wasn’t good for me to by myself.
18. Sometime in late April, when we heard about Zepeda Rivas, we started hearing that detainees were going to be released. When I asked Officer Sodu, “Do you know if there are
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any detainees being released tomorrow?” she said, “You guys ain’t going nowhere. For those of you who want to claim you have compromised immune systems, you’re going to be put in the SHU. We’re creating a segregated housing unit for you.” She said this in front of the whole dorm. Everyone understood it as a threat because of how bad the SHU is. It turned out to be true.
19. On Saturday May 9, 2020, I was moved into a segregated housing unit, Dorm T, for the second time. Officer Beatie came at about 7am on Saturday morning, May 9, and told me to pack up my stuff to be moved. When I asked her why she was moving me, she said, “These are ICE orders, its due to COVID and your health.” No one else was being moved. I asked her if I would be by myself, and she said “Yeah, just you.” I suffer from severe depression. I was really scared. I don’t do well by myself. I go into a really dark hole. I feel like I’m being punished because I am at risk.
20. After I had moved, the guard came back later that Saturday and told me, “Because you have such a high health risk, the one detainee with the highest health risk in this facility, ICE has ordered you to be completely isolated and put in segregation.” I am clearly being punished because I have a compromised immune system. On May 14, one of the female guards came by to do a check. She was wearing her mask, but it was hanging down between her neck and her chin. She said it was hot, and she did not want to smear her makeup. Then on May 16, another female officer came to do a check. While in my cell with me, and her mask not covering her whole face, she sneezed and did not even try to cover her nose. I’m not safe here.
21. The danger of COVID-19 impacts my ability and willingness to fight my removal case. When I asked about my case recently, Officer Reyes, my deportation officer, said “Ms. Pinheiro, you can pull out whenever you want, and I can get you deported right away. That’s my job.” I want to stay and fight, but I also do not want to die.

I, Livia Pinheiro, declare under penalty of perjury that the foregoing is true and correct to the

best of my recollection. I sign this from Marysvillle, California.

Date: May 17, 2020

//s// Livia Pinheiro Livia Pinheiro

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CERTIFICATE OF AFFIRMATION I, Theodora Simon, that on May 17, 2020 I read the foregoing to Livia Pinheiro and that she affirmed that it is true and correct. I have not been able to obtain a signature from Ms. Pinheiro because Yuba Detention Center is located approximately two hours away from my home by car,

and at the time I reviewed the foregoing declaration with her, the county where I reside was, and remains, under a “shelter in place” order.

Date: May 17, 2020

//s// Theodora Simon Theodora Simon

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Case 3:20-cv-02731-VC Document 229-13 Filed 05/22/20 Page 1 of 6

WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org SEAN RIORDAN (SBN 255752) sriordan@aclunc.org ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: (415) 553-9319 Facsimile: (415) 553-9810

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUBI RUIZ TOVAR, LAWRENCE KURIA MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,

CASE NO. 3:20-CV-02731-VC DECLARATION OF MARIA ANDREAS SALGADO IN SUPPORT OF PETITIONERS-PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Petitioners-Plaintiffs,

v.

DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,

Respondents-Defendants.

CASE NO. 3:20-CV-02731-VC DECLARATION OF MARIA ANDREAS SALGADO

Case 3:20-cv-02731-VC Document 229-13 Filed 05/22/20 Page 2 of 6

BREE BERNWANGER* (NY SBN 5036397) bbernwanger@lccrsf.org HAYDEN RODARTE (SBN 329432) hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA 131 Steuart St #400 San Francisco, CA 94105 Telephone: (415) 814-7631
JUDAH LAKIN (SBN 307740) judah@lakinwille.com AMALIA WILLE (SBN 293342) amalia@lakinwille.com LAKIN & WILLE LLP 1939 Harrison Street, Suite 420 Oakland, CA 94612 Telephone: (510) 379-9216 Facsimile: (510) 379-9219

MARTIN S. SCHENKER (SBN 109828) mschenker@cooley.com COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111 Telephone: (415) 693-2000 Facsimile: (415) 693-2222
TIMOTHY W. COOK* (Mass. BBO# 688688) tcook@cooley.com FRANCISCO M. UNGER* (Mass. BBO# 698807) funger@cooley.com COOLEY LLP 500 Boylston Street Boston, MA 02116 Telephone: (617) 937-2300 Facsimile: (617) 937-2400

JORDAN WELLS (SBN 326491) jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568) spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA 1313 West Eighth Street Los Angeles, CA 90017 Telephone: (213) 977-9500 Facsimile: (213) 977-5297

Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice

CASE NO. 3:20-CV-02731-VC DECLARATION OF MARIA ANDREAS SALGADO

Case 3:20-cv-02731-VC Document 229-13 Filed 05/22/20 Page 3 of 6

DECLARATION OF MARIA ANDREAS SALGADO 1. I make this declaration from my personal knowledge and, if called to testify to these facts, could and would do so competently. I make this declaration in support of the Motion for Preliminary Injunction in Zepeda Rivas, et al. v. Jennings, et al., 20-cv-02731-VC. 2. My full name is Maria Andreas Salgado. I was born in Michoacán, Mexico and I am 31 years old. I was detained at Yuba County Jail in Marysville, California from April 25, 2019 until Monday, May 18, 2020 when I was released by order of the Federal Court. At the time of my release, I resided in R Dorm at Yuba. 3. I have reviewed the attached photograph, which I am informed was previously taken of R Dorm at the Yuba County Jail. Although the photo was taken before my detention at Yuba County Jail, it accurately shows what the bunks in R Dorm looked like, their layout, and their proximity to each other as of the time I resided in R Dorm. I, Maria Andreas Salgado, declare under penalty of perjury that the foregoing is true and correct to the best of my recollection. I sign this from Windsor, California.

Date: May 20, 2020

//s// Maria Andreas Salgado Maria Andreas Salgado

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CERTIFICATE OF INTERPRETATION AND AFFIRMATION I, Theodora Simon, certify that I am fluent in Spanish and English and that I am competent to interpret between these languages. I further certify that I have read the foregoing to Maria Andreas Salgado in Spanish. I further declare that I am competent to render this interpretation and that I would testify to the same under the penalty of perjury if I were called upon to do so.

I further certify that on May 20, 2020 I read the foregoing to Maria Andreas Salgado and that she affirmed that the foregoing is true and correct. I have not been able to obtain a signature from Maria Andreas Salgado because the location where she is in quarantine is located approximately one hours away from my home by car, and at the time I reviewed the foregoing declaration with her, the county where I reside was, and remains, under a “shelter in place” order.

Date: May 20, 2020

//s// Theodora Simon Theodora Simon

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Exhibit A

ase 3:20-cv-02731-VC Document 229-13 Filed 05/22/20 Page 6 of

Case 3:20-cv-02731-VC Document 229-14 Filed 05/22/20 Page 1 of 7

WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org SEAN RIORDAN (SBN 255752) sriordan@aclunc.org ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: (415) 553-9319 Facsimile: (415) 553-9810

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUBI RUIZ TOVAR, LAWRENCE KURIA MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,

CASE NO. 3:20-CV-02731-VC
DECLARATION OF MAYNOR OXLAJ SIGUANTAY IN SUPPORT OF PETITIONERS-PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Petitioners-Plaintiffs,

v.

DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,

Respondents-Defendants.

CASE NO. 3:20-CV-02731-VC DECLARATION OF MAYNOR OXLAJ SIGUANTAY

Case 3:20-cv-02731-VC Document 229-14 Filed 05/22/20 Page 2 of 7

BREE BERNWANGER* (NY SBN 5036397) bbernwanger@lccrsf.org HAYDEN RODARTE (SBN 329432) hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA 131 Steuart St #400 San Francisco, CA 94105 Telephone: (415) 814-7631
JUDAH LAKIN (SBN 307740) judah@lakinwille.com AMALIA WILLE (SBN 293342) amalia@lakinwille.com LAKIN & WILLE LLP 1939 Harrison Street, Suite 420 Oakland, CA 94612 Telephone: (510) 379-9216 Facsimile: (510) 379-9219

MARTIN S. SCHENKER (SBN 109828) mschenker@cooley.com COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111 Telephone: (415) 693-2000 Facsimile: (415) 693-2222
TIMOTHY W. COOK* (Mass. BBO# 688688) tcook@cooley.com FRANCISCO M. UNGER* (Mass. BBO# 698807) funger@cooley.com COOLEY LLP 500 Boylston Street Boston, MA 02116 Telephone: (617) 937-2300 Facsimile: (617) 937-2400

JORDAN WELLS (SBN 326491) jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568) spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA 1313 West Eighth Street Los Angeles, CA 90017 Telephone: (213) 977-9500 Facsimile: (213) 977-5297
Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice

CASE NO. 3:20-CV-02731-VC DECLARATION OF MAYNOR OXLAJ SIGUANTAY

Case 3:20-cv-02731-VC Document 229-14 Filed 05/22/20 Page 3 of 7
DECLARATION OF MAYNOR OXLAJ SIGUANTAY 1. I make this declaration from my personal knowledge and, if called to testify to these facts, could and would do so competently. I make this declaration in support of the Motion for Preliminary Injunction in Zepeda Rivas, et al. v. Jennings, et al., 20-cv-02731-VC. 2. My full name is Maynor Oxlaj Siguantay. I was born in Guatemala and I am 22 years old. I have been in the United States since 2014. I am currently appealing my asylum case with the Ninth Circuit Court of Appeals and I simultaneously have filed a motion to reopen my case before the Board of Immigration Appeals because of receiving ineffective assistance of my previous attorney. With me in the U.S. is my mom, my three siblings, my aunts and cousins, and my godmother who supports me a lot. I lived mostly with my godmother in San Rafael. We got along really well, we would go out on walks together or go to the park. I hope to get out of here and go back to live with her. 3. I have been detained at Yuba County Jail in Marysville, California since April 2, 2018, over two years. In that time, I have been in A, C, E and F Pods. I am currently housed in E Pod. 4. About two months ago, I was moved from F Pod to A Pod because they said the needed to use F Pod for sick people. A, E and F pods are all set up the same in terms of building infrastructure. 5. I was in A Pod for about a month and a half. On Monday, May 4, I was moved to E Pod. Lack of Social Distancing While Sleeping 6. In A and E Pods, there are 20 cells, 10 on the first floor and 10 on the second, and a small common area. There are bunk beds in all the cells and, when I was in A Pod and now in E Pod, most people share cells. I think there are about 29 detainees in E Pod. There is not any distance between people. I do not share a cell, so if I am in my cell, I am able to stay distanced from other people. But when we are out of our cells, we are all together in a small common space, and we cannot help but be close to one another. We rotate who is out of their cells, and it is about 15 people out of our cells at a time. We have “program time,” when we are out of our cells, for six hours a day. Otherwise, we are in our cells. The dorm is small. Social distancing is not possible here, people are just too close all the time. I feel like we are all squeezed together even when we get out of our cells. And people who share a cell are in their small cell with a cellmate for about 18 hours a day. Lack of Social Distancing During the Rest of the Day
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7. In the common space, there are four tables, two showers, the phones, and the things for cleaning—a mop and broom. About six people fit at each table. The benches and tables are made of metal and welded to the floor. When we are out of our cells, people are mostly gathered at the tables. There is nowhere else to be. So, people are sitting right next to each other, and across the table from one another. Lack of Social Distancing While Using Bathrooms
8. There are two showers, one downstairs and one upstairs. The toilets are all in our cells, and our sinks, too. The showers in E Pod really stink, just like A Pod. It seems like the toilet water runs under the shower and it stinks. New Arrivals
9. When I was in A Pod, I could see that there are new people coming all the time. A Pod is next to booking and I could see through a little window. I would see anywhere from two to five new people come. It does not seem right. Instead of protecting us, it is like they just do not care about our health. All of those people, they come from outside, and they could bring the virus. And they could get us all sick. And in my experience, ICE does not care about our health. Problems with Issuance and Use of Masks
10. About once a week, they take the handmade cloth masks they give us to wash them in the laundry and hand out ones that they say have been cleaned. I feel like they are not clean when they come back. They laundry here is not good. Sometimes our clothes come back smelling. Sometimes the boxers come back with stains. What is the point of saying they are taking care of us with masks, when they do not do their jobs well to clean them? The elastic is getting worn out, too, and the masks do not stay on. They smell damp. I feel like there are people that are sick in here that use them, and then they do not do a good job washing them and hand them back out. And then we have to use them, and that makes me feel pretty afraid that I could get sick.
11. When the officers first handed out masks while I was in A Pod, they did not tell me anything. An officer just dropped the mask in my cell. No one has ever told me when to wear my mask. Some people use their masks when we go to the yard, but no one wears them in the Pod. I do not think these used masks protect us. I do not even want to use it, because I really think the mask could make me sick instead of protecting me.
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12. The guards here have not told me anything about how to protect myself from getting this disease. They have not said anything to me about social distancing, and we have not been to do social distancing. They have put up posters about COVID and hand washing. The papers put these fliers up that say wash your hands, but when we ask for soap because we have run out, they don not bring it, and they just never bring soap. The posters say one thing, like “free bar of soap,” but then when you ask the officers they just don’t respond. So, what is written on the papers doesn’t matter, because they do not actually help us. Lack of Access to Healthcare
13. I suffer from a chronic cough and wheezing, and I have problems with my right eye and ear. When I have gone to doctor, they have told me everything is fine. It is painful, and sometimes I have to lay down during the day because it hurts so much. I have chronic bloody noses, and they say nothing is wrong. I also have been diagnosed with PTSD and my anxiety is worsened by stress.
14. Late in 2019, I got a bad cough. I was sick for over a month with headaches and a fever. I submitted many requests to see a doctor but was never taken to see a doctor for that illness.
15. Sometimes we think this illness is going to get in. What happens if we get sick with this disease? We are all physically close to one another, and I am afraid that something is going to happen to me. Here the medical staff do not help. You have to submit constant requests, and even then, sometimes you do not even get medical care. The medical staff sometimes just ignore us or get mad when we ask questions. They just do not seem to care about us. So, what would happen if we got sick? It is really worrying.
16. All of this makes me feel totally desperate sometimes. I get frustrated, and all I think about is going home. It gives me such a headache. I worry that something is going to happen to me, especially with this pandemic. I have not seen my family in two years, I have not been able to hug them. It is unbearable to think what if something happened to me here inside, and I never saw them again.
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I, Maynor Oxlaj Siguantay, declare under penalty of perjury that the foregoing is true and correct to the

best of my recollection. I sign this from Marysville, California.

Date: May 19, 2020

//s// Maynor Oxlaj Siguantay Maynor Oxlaj Siguantay

4 CASE NO. 3:20-CV-02731-VC DECLARATION OF MAYNOR OXLAJ SIGUANTAY

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CERTIFICATE OF INTERPRETATION AND AFFIRMATION I, Theodora Simon, certify that I am fluent in Spanish and English and that I am competent to interpret between these languages. I further certify that I have read the foregoing to Maynor Oxlaj Siguantay in Spanish. I further declare that I am competent to render this interpretation and that I would testify to the same under the penalty of perjury if I were called upon to do so.

I further certify that on May 19, 2020 I read the foregoing to Maynor Oxlaj Siguantay and that he

affirmed that the foregoing is true and correct. I have not been able to obtain a signature from Maynor

Oxlaj Siguantay because Yuba Detention Center is located approximately two hours away from my

home by car, and at the time I reviewed the foregoing declaration with him, the county where I reside

was, and remains, under a “shelter in place” order. Date: May 19, 2020

//s// Theodora Simon Theodora Simon

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WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org SEAN RIORDAN (SBN 255752) sriordan@aclunc.org ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: (415) 553-9319 Facsimile: (415) 553-9810

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUBI RUIZ TOVAR, LAWRENCE KURIA MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,

CASE NO. 3:20-CV-02731-VC
DECLARATION OF PRAVINDAR SINGH IN SUPPORT OF PETITIONERS-PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Petitioners-Plaintiffs,

v.

DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,

Respondents-Defendants.

CASE NO. 3:20-CV-02731-VC DECLARATION OF PRAVINDAR SINGH

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BREE BERNWANGER* (NY SBN 5036397) bbernwanger@lccrsf.org HAYDEN RODARTE (SBN 329432) hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA 131 Steuart St #400 San Francisco, CA 94105 Telephone: (415) 814-7631
JUDAH LAKIN (SBN 307740) judah@lakinwille.com AMALIA WILLE (SBN 293342) amalia@lakinwille.com LAKIN & WILLE LLP 1939 Harrison Street, Suite 420 Oakland, CA 94612 Telephone: (510) 379-9216 Facsimile: (510) 379-9219

MARTIN S. SCHENKER (SBN 109828) mschenker@cooley.com COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111 Telephone: (415) 693-2000 Facsimile: (415) 693-2222
TIMOTHY W. COOK* (Mass. BBO# 688688) tcook@cooley.com FRANCISCO M. UNGER* (Mass. BBO# 698807) funger@cooley.com COOLEY LLP 500 Boylston Street Boston, MA 02116 Telephone: (617) 937-2300 Facsimile: (617) 937-2400

JORDAN WELLS (SBN 326491) jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568) spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA 1313 West Eighth Street Los Angeles, CA 90017 Telephone: (213) 977-9500 Facsimile: (213) 977-5297
Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice

CASE NO. 3:20-CV-02731-VC DECLARATION OF PRAVINDAR SINGH

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DECLARATION OF PRAVINDAR SINGH 1. I make this declaration from my personal knowledge and, if called to testify to these facts, could and would do so competently. I make this declaration in support of the Motion for Preliminary Injunction in Zepeda Rivas, et al. v. Jennings, et al., 20-cv-02731-VC. 2. My full name is Pravindar Singh. I was born in Fiji and I am 38 years old. I have been in the United States since July 1, 1995. My wife and three children are U.S. citizens, as are my parents, two of my siblings, and my six nieces and nephews. 3. I have been detained at Yuba County Jail in Marysville, California since March 19, 2020. 4. I have suffered from asthma since I was a child. I have tested positive for Tuberculosis and am pre-diabetic. I also have nerve damage in my foot. Lack of Social Distancing While Sleeping 5. At Yuba County Jail, I am housed in E Pod. E pod is cell living. The sleeping capacity is 40 people, with 20 cells in total. I estimate that the cells are six by ten feet. With 28 people currently in E pod, there are two people in many of the cells. 6. We sleep in bunk beds, with about three feet between the top and bottom bunk. It is a fairly small cell. Two people cannot walk around at the same time. One person has to stand against the wall in order for the other person to walk by. In each cell, there is a small metal table, a sink, and a toilet. The toilet is about one foot from my bed. When your cell mate is using the toilet, you have to push your face to the cell door because the smell is bad, and it lingers. 7. I share a cell, and my bunkie and I are very close almost all the time. I sleep on the bottom bunk. When my roommate hangs his hand from the top bunk, it could touch my face. We cannot be more than 2 ½ feet apart. When you are in the cell, if your roommate did not brush their teeth, you can smell their breath. I am locked in my cell with my bunkie for about 18 hours a day. 8. There is some kind of exhaust system, but the air that circulates within the dorm is not fresh air. The vents run through all of the cells. If there is a bad smell in the air, everyone can smell it. If someone has a virus that is airborne and that person is coughing, I do not see how it
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would not circulate through the facility. The exhausts inside the cell are on top of the toilet and the blow out part is on top of the sink. The vents are about 3 feet apart. One exhaust will suck the air, and the other will release it. If I block the exhaust on one side, then air will not come out of the other side and the air flow stops. Our cell vent is clogged. We have asked staff to clean them for us, but they have not. People put toilet paper in the vents and there is dust in them. Lack of Social Distancing at Meals
9. With one exception, nothing has changed at Yuba regarding meals since I arrived on March 19, 2020.
10. At mealtimes, we all come out of our cells and form a U-shaped line behind a piece of white tape that is on the floor. The white tape was added in early May and it is the only change I have seen in meal service since I arrived here. The white tape separates the line of detainees waiting for food from the food server, but it does not separate the detainees from each other. The first person in line is standing on the white tape. The server, the officer, and the food cart are standing six feet away from the first person in line. Behind the first person in line, the line of detainees waiting wraps into a U shape to the right so that the last person in line is next to the officer and server, and the room is so small that we can only stand about one foot apart. You could breathe on the neck of the guy in front of you. After you are given your tray, you literally have to tell the last person in line “Excuse me” so you could get by.
11. After I get my meal, I take my tray to my cell. My cell mate and I are shoulder to shoulder because the table in our cell is about 2 ½ ft by 1 ft. The table is about a foot away from the toilet. Lack of Social Distancing During Daily Activities
12. Aside from the showers and our cells, the day room is the only space to be in E Pod. On a rotating basis, we have a total of six hours of “program time” a day when we are allowed to be out of our cells. Typically, there are between 15-20 people in the day room. The day room is about 2 1/2 car garages wide. It is fairly small. I would say maximum 20 people fit in the day room, so even though the Pod is not at capacity, the day room is still pretty full. It is not possible to be six feet apart in there. The phones, tables, and the water cooler are all in the
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day room. There are only four tables for people to sit at. The tables are about three feet apart and are about five feet by two feet. Some people play puzzles on the tables. Often, there will be six people sitting at each table. This means that people are sitting shoulder to shoulder. We do not have another area where we could play, and we cannot move the tables or seats, so we do not have another choice.
13. The yard is about the size of a half basketball court. Everyone uses the same pull up bar to do pull ups and dips. This area is filthy, and I have never seen it being cleaned. We use the yard for about an hour a day five days a week.
14. The phones in the Housing Unit are right next to each other, only about three feet apart. One phone is in a phone booth that has an opening at the top and at the bottom. There are only two phones for twenty people at a time. Within your free time you are expected to shower and make your calls. Sometimes our free time is going to end and there are still people waiting to use the phone. As soon as the last person hangs up the phone the next person waiting quickly grabs the phone. I have rarely seen people wipe down the phone. The cord is one foot long, so you have to put your face and mouth really close to the phone. Lack of Social Distancing While Using Bathrooms
15. Every cell has its own sink and toilet. We have access to two showers, one on the first floor and the other on the second floor. There can only be one person in each shower stall, so you have to wait in a line of two to three people to take a shower. Sometimes you do not get to shower because there are twenty people waiting to shower during our limited free time that occurs twice a day. Continuous Stream of New Arrivals at Yuba
16. Within the last two months, we have had people come from it seems like everywhere: the streets, Solano, Mesa Verde, Stanislaus, Jamestown, the local Yuba county jail, Folsom prison. It seems like they quarantine some of the new people who arrive, but not everyone. On April 19, 2020, a guy who was previously at Stanislaus was transferred into my Pod. I know he was not quarantined before arriving because I asked him. He told me his current
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cell mate came from Folsom prison in the last 2 weeks. When he arrived, he was quarantined for two weeks in F Pod, the quarantine pod. Symptomatic Detainees and Problems with Health Care
17. My cell mate has breathing problems. It is hard for him to breathe. In the middle of the night, I have seen him hit the emergency call button and tell staff that he cannot breathe. Around May 4 or 5, he had slapped the button telling them, “I really can’t breathe.” No one from the staff rushed over to check on him. The last time I saw him struggling was the week of May 4. I do not know why he cannot breathe. Another of our podmates, who was in my neighboring cell, went to the hospital around May 8. He had some type of ear infection, but I do not know if it was related to COVID. When he went to medical, they gave him salt. He got really bad after that, so he was taken to the Chico hospital. They sent him back to Yuba, but then he got sick again and that’s when he left and never came back. Conclusion
18. Everyone is worried and scared. We do not know what is going on. This place has remained the same. The jail never explained how they are trying to protect us. The officers wear a mask, but they leave it hanging around their neck. People are scared to go to their court hearings. On April 13, 2020, I went to the ICE office in Sacramento for my immigration hearing. The ICE officers who were there were not wearing masks. The man who dialed the phone numbers for me to speak with the judge did not have a mask on. The officer who patted me down did not have a mask on, and the officer who took my temperature didn’t have a mask on. There were about seven of us who went to court in a van. There were three of us in the holding cell and we were not six feet apart.
19. I am not trying to die in here. My family would not even get my body. I currently wait two weeks for medical care, so I am scared that I will get sick with COVID and die here. Other jail facilities I have been to respond within 72 hours, that is not the case at Yuba. They are not treating us properly. If one person catches COVID here, everyone will get it.
20. The risk of COVID 19 makes me want to give up, just to get out of here. The medical care here is so bad that I’m afraid that if I get sick, I am going to die in here. It makes
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me want to quit fighting my case. If I had to paint a picture, I would say we are like the animals you see on the SPCA commercials. We are like sick little dogs in cages, waiting to die if someone does not save us.

I, Pravindar Singh, declare under penalty of perjury that the foregoing is true and correct to the

best of my recollection. I sign this from Marysville, California.

Date: May 18, 2020

//s// Pravindar Singh Pravindar Singh

5 CASE NO. 3:20-CV-02731-VC DECLARATION OF PRAVINDAR SINGH

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CERTIFICATE OF AFFIRMATION

I certify that on May 18, 2020 I read the foregoing to Pravindar Singh and that she affirmed that

the foregoing is true and correct. I have not been able to obtain a signature from Mr.

Singh because Yuba Detention Center is located approximately an hour away from my home by

car, and at the time I reviewed the foregoing declaration with her, the county where I reside was,

and remains, under a “shelter in place” order.

Date: May 18, 2020

//s// Erica Ramos Erica Ramos

6 CASE NO. 3:20-CV-02731-VC DECLARATION OF PRAVINDAR SINGH

Case 3:20-cv-02731-VC Document 229-16 Filed 05/22/20 Page 1 of 34

WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org SEAN RIORDAN (SBN 255752) sriordan@aclunc.org ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: (415) 553-9319 Facsimile: (415) 553-9810

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUBI RUIZ TOVAR, LAWRENCE KURIA MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,

CASE NO. 3:20-CV-02731-VC DECLARATION OF AKIKO IWASAKI, PH.D IN SUPPORT OF PETITIONERS-PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Petitioners-Plaintiffs,

v.

DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,

Respondents-Defendants.

CASE NO. 3:20-CV-02731-VC DECLARATION OF AKIKO IWASAKI, PH.D

Case 3:20-cv-02731-VC Document 229-16 Filed 05/22/20 Page 2 of 34

BREE BERNWANGER* (NY SBN 5036397) bbernwanger@lccrsf.org HAYDEN RODARTE (SBN 329432) hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA 131 Steuart St #400 San Francisco, CA 94105 Telephone: (415) 814-7631
JUDAH LAKIN (SBN 307740) judah@lakinwille.com AMALIA WILLE (SBN 293342) amalia@lakinwille.com LAKIN & WILLE LLP 1939 Harrison Street, Suite 420 Oakland, CA 94612 Telephone: (510) 379-9216 Facsimile: (510) 379-9219

MARTIN S. SCHENKER (SBN 109828) mschenker@cooley.com COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111 Telephone: (415) 693-2000 Facsimile: (415) 693-2222
TIMOTHY W. COOK* (Mass. BBO# 688688) tcook@cooley.com FRANCISCO M. UNGER* (Mass. BBO# 698807) funger@cooley.com COOLEY LLP 500 Boylston Street Boston, MA 02116 Telephone: (617) 937-2300 Facsimile: (617) 937-2400

JORDAN WELLS (SBN 326491) jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568) spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA 1313 West Eighth Street Los Angeles, CA 90017 Telephone: (213) 977-9500 Facsimile: (213) 977-5297
Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice

CASE NO. 3:20-CV-02731-VC DECLARATION OF AKIKO IWASAKI, PH.D

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DECLARATION OF AKIKO IWASAKI, PH.D.
I, Akiko Iwasaki, declare as follows:
1. I am the Waldemar Von Zedtwitz Professor of Immunobiology and Molecular, Cellular and Developmental Biology at Yale University School of Medicine, where I have been a professor for the past twenty years. I am also an Investigator at the Howard Hughes Medical Institute, one of the world’s most renowned medical research organizations. HHMI combines the research prowess of leading immunologists, doctors, and scholars from around the country to enhance science for the benefit of all.
2. I earned my Ph.D. in immunology from the University of Toronto.
3. I supervise a lab dedicated to immunological research. My research focuses on immune defenses against viruses at the mucosal surfaces, including respiratory viruses; developing vaccines for viruses; and understanding how to contain and control the spread of viruses. My lab is currently researching immune response to the newly emerging severe acute respiratory syndrome coronavirus 2, SARS-CoV-2, causative agent of COVID-19.
4. I also serve on a task force dedicated to COVID-19 response organized by the Yale Institute of Global Health and the Yale School of Public Health. The Task Force provides insight and public planning to the greater community for best practices at containing the spread of COVID-19.
5. I have published approximately 200 papers and book chapters. A full copy of my curriculum vitae is attached as Exhibit A.
6. I am not being compensated for providing my testimony in this case. I have not previously served as an expert witness.
7. In support of this declaration, I have relied on my scientific and specialized knowledge, skill, experience, training, and education. I have also reviewed the following materials:
a. Declarations of Fermin Trujilo Lopez, Gilberto Pablo Perez, Jose Mejia Rosas, Juan Aguilar Castaneda, Livia Pinheiro, Maynor Oxlaj Siguantay, Pravindar Singh, Arias Marroquin, Asif Massom Qazi, and Aylaliyah Burru:
b. Defendants’ Responses to Plaintiffs’ Initial Set of Interrogatories; Defendants’ Supplemental Responses to Plaintiffs’ Initial Set of Interrogatories; Defendants’ Second Supplemental Responses to Plaintiffs’ Initial Set of Interrogatories; Defendants’ Third Supplemental Responses to Plaintiffs’ Initial Set of Interrogatories.
A. COVID-19 Is Caused by A Novel, Highly Contagious Virus.
8. COVID-19 is caused by SARS-CoV-2, a novel virus that is perhaps two or three times as contagious as the flu. There is no vaccine for COVID-19.

Case 3:20-cv-02731-VC Document 229-16 Filed 05/22/20 Page 4 of 34
9. The virus causing COVID-19, like other respiratory viruses, is primarily spread by contact with droplets containing viral particles. An infected person expels contaminated droplets by sneezing, coughing, breathing, talking, or eating. These droplets travel through the air in the form of larger droplets (> 5-10 m1 in diameter). Another person comes in contact with the droplets either directly, by inhaling infected droplets, or indirectly, by contact with their own mucous membranes, primarily from touching an infected surface and then touching their face.
10. Separate from respiratory droplet transmission, viruses can be transmitted by airborne small droplet nuclei ( m in diameter and sometimes referred to as aerosols). Aerosols are so small that their buoyancy overcomes gravity, allowing the droplet nuclei to stay suspended in the air and travel relatively long distances. This is often referred to as airborne transmission.
11. There is an ongoing scientific debate about whether the virus causing COVID-19 is also subject to airborne transmission. While the World Health Organization has not yet recognized airborne transmission in non-medical settings,2 my interpretation of the data is that COVID-19 can be spread through airborne transmission. I reach that conclusion for several reasons. First, studies of air samples in and outside of hospital rooms of COVID-19 patients revealed evidence of viral contamination in the air samples, toilet facilities, and common surfaces.3 4 This indicates that the virus can be aerosolized. Second, studies show that the virus can remain in the air for hours, and up to days on certain surfaces, demonstrating a long half-life and suggesting airborne viability.5 Third, mass infection studies suggest airborne spread. In a March cluster study, 52 of 60 attendees at a weekly 2.5-hour choir practice contracted COVID-19; only one member was symptomatic at the practice. Members sat in chairs 6-10 inches apart in a small, indoor gymnasium. Because only one member was symptomatic and aerosol emission during speech is correlated to the loudness of vocalization, COVID-19 was likely transmitted, in part, by aerosol particles.6 Airborne spread is concerning because smaller droplets can travel longer distances and easily reach the lower respiratory tract.7
12. COVID-19 is a highly contagious disease, in part, because the minimal infectious dose -the number of particles necessary to initiate an infection -- is suspected to be low. Infectious
1 A m is a micrometer, often referred to as a micron. A micron is one millionth of a meter, or about 0.000039 inch. By comparison, the diameter of a human hair is about 20-40 microns. 2 Modes of transmission of virus causing COVID-19: implications for IPC precaution recommendations, (Mar. 29, 2020) https://www.who.int/news-room/commentaries/detail/modes-of-transmission-of-virus-causing-covid-19implications-for-ipc-precaution-recommendations, 3 Santarpia, Joshua L, et al., Transmission Potential of SARS-CoV-2 in Viral Shedding Observed at the University of Nebraska Medical Center, Mar. 26, 2020, https://www.medrxiv.org/content/10.1101/2020.03.23.20039446v2. 4 Guo, Z.D. et al., Aerosol and Surface Distribution of Severe Acute Respiratory Syndrome Coronavirus 2 in Hospital Wards, Wuhan, China, 2020, Emerg Infect Dis, Vol. 26, Number 7 (July 2020) https://doi.org/10.3201/eid2607.200885 5 Doremalen N van Bushmaker T, Morris DH, et al. Aerosol and surface stability of SARS-CoV-2 as compared with SARS-CoV-1. N Engl J Med 2020. doi:10.1056/NEJMc2004973 6 Hammer, L. et al, High SARS-CoV-2 Attack Rate Following Exposure at a Choir Practice – Skagit County, Washington, March 2020 (May 12, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6919e6.htm 7 Atkinson, J. Chartier Y., Pessoa-Silva C.L. et al., Natural Ventilation for Infection Control in Health-Care Settings, Geneva: World Health Organization (2009), https://www.ncbi.nlm.nih.gov/books/NBK143281/.
2

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dose studies for previous coronaviruses, MERS and SARS,8 9 suggest that as few as 10,000 viral particles could lead to infection. But the higher effective reproduction number (or “R number”) of COVID-19 (~2.5)—the average number of people to whom one infected person will pass the virus—leads immunologists to believe that the minimal infectious dose of COVID-19 is lower than MERS (0.3-0.8), and could be as few as 1,000 viral particles.
13. That infectious dose is low. For reference, a single droplet can contain many thousands of viral particles. A single cough can release 3,000 droplets, a single sneeze can emit 30,000 droplets,10 and a single breath can release 50-5,000 droplets.11 If a person is infected, the droplets in a single cough or sneeze can contain as many as 200,000,000 virus particles, which are dispersed in the area around the carrier.
14. The likelihood of infection is correlated to exposure dose multiplied by exposure time. Because of the minimal infectious dose, brief exposure to a carrier can result in infection. And, the longer a person is exposed to a carrier, the more likely they are to contract COVID-19.
15. Viral load is the amount of virus present in a volume of fluid. Viral load can be measured by the amount of virus detected in nasal swabs. The higher the viral load, the more likely a carrier is to shed viral particles, making them more likely to infect others. Moreover, although COVID-19 research remains in its early stages, there is an association between viral load per exposure and severe clinical outcomes.12 Early data suggesting an association between viral load and severe clinical outcomes is not surprising considering that similar coronaviruses, SARS and MERS, showed similar associations between increased viral load exposure and intensive care or death.13 14 The science stands for a basic proposition: the more viral particles a person becomes exposed to, the more likely they are to be successfully infected and to have an adverse outcome.
16. Infectious dose and viral load are similar but distinct concepts. Infectious dose can be thought of as the “spark”: how much of the virus is needed to start an infection. Viral load can be thought of as the “fire”: how brightly the virus is burning in an individual once infected.
8 De Wit, E.; Rasmussen, A., et al., Middle East Respiratory Syndrome Coronavirus (MERS-CoV) Causes Transient Lower Respiratory Tract Infection in Rhesus Macaques, PNAS, (2013) https://www.pnas.org/content/pnas/110/41/16598.full.pdf 9 Watanabe, T., Bartand T., et al., Development of a Dose-Response Model for SARS Coronavirus, Risk Analysis, Vol. 30, No. 7 (2010), https://onlinelibrary.wiley.com/doi/epdf/10.1111/j.1539-6924.2010.01427.x 10 Atkinson, J. Chartier Y., Pessoa-Silva C.L. et al., Natural Ventilation for Infection Control in Health-Care Settings, Geneva: World Health Organization (2009), https://www.ncbi.nlm.nih.gov/books/NBK143281/. 11 Tang, J.W., Li, Y., Eames, I., Factors involved in the aerosol transmission of infection and control of ventilation in healthcare premises, Journal of Hospital Infection, (2006). 12 Liu. Y, Yan, L-M, et al., Viral dynamics in mild and severe cases of COVID-19, Lancet, (Mar. 19, 2020), https://doi.org/10.1016/S1473-3099(20)30232-2 13 Chu, C.M., Poon L.L.M., et al., Initial viral load and the outcomes of SARS, CMAJ, (2004), https://www.cmaj.ca/content/171/11/1349 14 Feikin, D., Alraddadi B. et al., Association of Higher MERS-CoV Virus Load with Severe Disease and Death, Saudi Arabia, 2014, Emerging Infectious Disease, 2015 Nov; 21(11): 2029-2035; https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4622256/
3

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17. Presymptomatic or asymptomatic individuals can be infected and carry the virus. In fact, recent studies have found that viral shedding peaked at the presymptomatic stage of infection, or at the time of symptom onset, increasing the likelihood of presymptomatic transmission in the absence of significant population-level testing.15 Thus, the only way to know you have a coronavirus is to be tested. The lack of adequate testing and high rate of asymptomatic transmission has contributed to the high rate of spread. Many asymptomatic carriers do not know they have the virus even after they have passed it on to others.
18. COVID-19 has an incubation period of up to 14 days and perhaps longer. A recent study found that detectable virus persisted in patients for a median of 20 days for survivors, and that it was sustained until death for non-survivors.16 This means that the period in which an infected person can infect others is quite long and broad.
19. These factors—low infectious dose, long half-life, weeks-long incubation and infection periods, asymptomatic carriers with high viral loads, and droplet transmission with the possibility of airborne transmission as well—all combine to make COVID-19 highly contagious.
20. Epidemiologists strive to trace outbreaks to origin points. Researchers use the term “super-spreader event” to refer to origin points that led to clusters of infection—multiple infections stemming from the same origin point. Super-spreader events commonly share environmental factors, including densely populated events, closed or indoor spaces, and prolonged exposure periods.17 Super-spreader events have occurred at funerals, parties, choir sessions, indoor sporting events, and meatpacking plants.
B. Social Distancing Protects Against Droplet Transmission.
21. The CDC recommends social distancing. This includes avoiding large gatherings, avoiding unnecessary interaction outside of a family unit, and maintaining a distance of at least six feet from others.
22. The six-foot social distancing framework is based in part on average distances large liquid droplets travel after being emitted. Many cite to a 1942 study as the genesis of the 1-2 meter (3-6 feet) rule, which used high-speed photographs to track the distance of large droplet spread (it did not track smaller nuclei transmissions).18 19 Notably, however, pathogen-bearing
15 He, X.m Lau, E.H.Y., et al, Temporal dynamics in viral shedding and transmissibility of COVID-19. Nature Medicine 26, 672–675 (Apr. 15, 2020). https://doi.org/10.1038/s41591-020-0869-5 16 Zhou, F., Clinical course and risk factors for mortality of adult inpatients with COVID-19 in Wuhan, China: a retrospective cohort study, Lancet Vol. 395, Issue 10229, 1054-1062 (Mar. 28-Apr. 3 2020), https://www.sciencedirect.com/science/article/pii/S0140673620305663 17 Frieden T.R., Lee C.T., Identifying and interrupting superspreading events—implications for control of severe acute respiratory syndrome coronavirus 2, Emerging Infectious Diseases, Vol. 26, Number 6 2020 Jun (Mar. 18, 2020) https://doi.org/10.3201/eid2606.200495 18 Jennison MW. Atomizing of mouth and nose secretions into the air as revealed by high-speed photography. Aerobiology. 17th ed. American Assn. for the Advancement of Science; 1942. p. 106–128 19 Bahl P, Doolan C, de Silva C, Chughtai AA, Bourouiba L, MacIntyre CR. Airborne or droplet precautions for health workers treating COVID-19? J Infect Dis. 2020; (Apr. 16, 2020) https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7184471/
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droplets may travel as far as 27 feet.20 Accordingly, while not a perfect solution, six-foot social distancing is safer than no social distancing because it provides a significant degree of protection of individuals against droplet transmission. 23. Moreover, the six-foot social distancing standard is not a complete solution for congregate settings where viral exposure is likely to occur over a sustained period of time. The longer a person is exposed to the same dose, the higher the likelihood of infection. This is why the likelihood of infection from exposure at a given distance during a trip to the supermarket or on a sidewalk is fundamentally different than the likelihood of infection from exposure at the same distance during prolonged, congregate detention. 24. For example, a study from South Korea demonstrates that prolonged exposure to COVID-19 in an enclosed space dramatically increases the likelihood of infection. At a call center, a single infected employee came to work on the eleventh floor of an office building. The office floor had 216 employees—slightly higher than the population level currently at Mesa Verde. In just one week, 94 of the 216 employees on the eleventh floor (43.5%) became infected. The figure below demonstrates the seating chart on the eleventh floor for employees; blue spaces indicate those who became infected.21
25. As the figure above indicates, widespread infection occurred in one week. Many employees were infected even though they worked on opposite sides of the office than the original carrier. This study illustrates that being in an enclosed space, sharing the same air, and spending prolonged periods around carriers increases the chances of exposure and infection. The
20 Bouroubia, L., Turbulent Gas Clouds and Respiratory Pathogen Emissions: Potential Implications for Reducing Transmission of COVID-19; Journal of the American Medical Association (Mar. 26, 2020), https://jamanetwork.com/journals/jama/fullarticle/2763852. 21 Park SY, Kim YM, et al., Coronavirus Disease Outbreak in Call Center, South Korea, Emerg Infect Dis. 2020 Aug. https://doi.org/10.3201/eid2608.201274 (Apr. 23, 2020).
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risk of infection is even more heightened in the context of a detention center because detainees spend more time together than employees at an office. 26. Another recent study demonstrates the risk posed to those immediately adjacent to an asymptomatic carrier for a relatively brief amount of time. Epidemiologists in Wuhan, China studied the impact of one asymptomatic carrier—from talking, breathing, and eating—on adjacent diners at a restaurant over the course of a 1-1.5 hour meal. At a ten-person dinner, approximately 50% of the people at the infected person’s table became sick over the next seven days. Seventy-five percent of the people at the adjacent table downwind, three meters (approximately 10 feet) from the asymptomatic carrier’s table, became infected. Two of the seven people at the adjacent table upwind, three meters (approximately 10 feet) from the asymptomatic carrier’s table, became infected.22
27. The above example demonstrates the risks posed to those adjacent to asymptomatic carriers. In a dorm setting, the likelihood of transmission is even higher because the carrier will expel many more viral particles for a duration much greater than 1.5 hours. 28. Six-foot social distancing provides some protection against droplet transmission. While more must be done to protect individuals, including depopulation, further spacing (particularly for prolonged exposure such as while in bed), and protective barriers, six-foot distancing is a basic first step that makes detainees relatively safer from liquid droplet transmission.
22 Lu J, Gu J, Li K, Xu C, Su W, Lai Z, et al. COVID-19 outbreak associated with air conditioning in restaurant, Guangzhou, China, 2020. Emerg Infect Dis. (2020); https://doi.org/10.3201/eid2607.200764; https://wwwnc.cdc.gov/eid/article/26/7/20-0764_article
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C. The Current Conditions at Mesa Verde and Yuba County Jail Expose Detainees and Staff to a Significant Risk of Contracting COVID-19.
29. From what I have reviewed regarding the conditions for immigration detainees at Yuba County Jail and Mesa Verde, there is an extraordinarily high risk of infectious spread of COVID-
19 at these two facilities.
30. Mesa Verde has four dorms with 50 bunk beds in each dorm in close proximity to one another. Detainees report spending upwards of 18 hours each day in their bunks; they sleep and socialize in their dorm rooms.23 The top bunk is 49 inches above the bottom bunk, or slightly more than four feet. The median distance between each bunk is 38 inches, slightly more than three feet.
31. I understand that ICE now staggers detainees in Mesa Verde in some dorms to sleep alternating between bottom and top bunks on neighboring bunk beds so that no two individuals sleep in the same bunk bed. Unfortunately, staggering detainees in this way does little to reduce the spread of infection. Pathogens will still reach those in adjacent beds and larger droplets are pulled to the ground by gravity, whether or not there is airborne transmission.24 This means that, even with staggering, a person in a top bunk is likely to infect people in neighboring beds regardless of whether an individual is in the upper or lower bunk in the next bed.
32. At Yuba County Jail, detainees are housed in various congregate living formats. Most sleep in beds 2-4 feet apart. Moreover, detainees report spending significant amounts of time in their dorm pods (the vast majority of the day, some estimating spending approximately 18 hours per day), a few feet apart from one another.25
33. The combination of a highly contagious disease and the risks of prolonged exposure create a very high likelihood of infection with all the inherent risks for the individual infected as well as the public health. Nearly every so-called “super spreader” event shares common environmental characteristics of Mesa Verde and Yuba County Jail: many people congregating indoors in close proximity for prolonged periods of time.
34. In my opinion, it is fundamentally unsafe to house individuals in the current conditions at these two facilities. Because of the close proximity between beds, one infection will trigger a domino effect. Infection will spread at faster rates than the call center example or restaurant example because the exposure period is longer, and multiple carriers will increase the viral dose being circulated in the facilities. Detaining human beings in the current conditions at these two detention facilities during this pandemic all but guarantees mass infection.
23 Declaration of Asif Massom Qazi at ¶ 6. 24 Atkinson et al., Natural Ventilation for Infection Control in Health-Care Settings, Geneva: World Health Organization (2009), https://www.ncbi.nlm.nih.gov/books/NBK143281/. 25 Pravindar Singh Declaration, ¶ 7.
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D. Increased Viral Loads in the Current Conditions Will Increase the Severity of an Outbreak.
35. Congregate settings are dangerous in part because they lead to increased viral load exposure. Detainees continuously inhale viral particles from those nearby. In most infectious diseases, the amount of virus in an infected person affects how likely someone is to infect others, and how sick they become from that infection. Due to the nascency of COVID-19, the relationship between viral load and patient outcomes is not fully known, but early data suggests patients with a greater viral load are more likely to have severe outcomes and more likely to be infected for a longer duration. These data are consistent with other coronaviruses and infectious diseases in general.
36. In a recent study, researchers measured the viral load of 76 patients admitted to a hospital in Nanchang, China. Thirty of the tested patients had severe COVID-19 cases; the other 46 had mild cases. Severe cases were identified as those with respiratory failure, requiring mechanical ventilation, septic shock, or organ failure, among other criteria. The mean viral load of severe cases was around 60 times higher than that of mild cases, suggesting that higher viral loads are associated with severe clinical outcomes.26 The study also found that severe cases were sicker for longer; a cross sample of ten severe cases all tested positive 21 days post onset. By comparison, a cross sample of 21 mild cases found that 90% of the cross sample cleared the virus within 10 days post symptom onset. This suggests that not only do those with a greater viral load experience worse outcomes, but they remain sicker longer, meaning they can expose others to the virus for a longer duration of time.
37. The study referenced above is consistent with previous research on other coronaviruses. A 2004 study on severe acute respiratory syndrome (SARS) found evidence that higher initial viral load is independently associated with worse prognosis in SARS.27 A 2014 study on Middle East respiratory syndrome coronavirus (MERS-CoV) found an association between higher viral load of MERS-CoV and worse clinical outcomes, including death and admission to the ICU.28 Based on early COVID-19 studies and studies of previous coronaviruses, there is strong reason to believe that COVID-19 behaves similarly to these other coronaviruses with respect to viral load.
38. The relationship between greater viral load and severe clinical outcomes is seen anecdotally in the number of otherwise healthy first-line health care responders who have become critically ill or died from prolonged COVID-19 exposure from treating sick patients. The same phenomenon is seen in other contagious diseases. For example, viral load in children infected with the 2009 pandemic influenza virus correlated with disease severity and prolonged
26 Liu. Y, Yan, L-M, et al., Viral dynamics in mild and severe cases of COVID-19, Lancet Infectious Disease, (Mar. 19, 2020), https://doi.org/10.1016/S1473-3099(20)30232-2 27 Chu, C.M., Poon L.L.M., et al., Initial viral load and the outcomes of SARS, CMAJ, (2004), https://www.cmaj.ca/content/171/11/1349 28 Feikin, D., Alraddadi B. et al., Association of Higher MERS-CoV Virus Load with Severe Disease and Death, Saudi Arabia, 2014, Emerging Infectious Disease, 2015 Nov; 21(11): 2029-2035; https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4622256/
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viral shedding.29 Higher viral load also correlated with worse disease severity for children infected with respiratory syncytial virus.30
39. Increased viral load also leads to increased viral shedding. Those infected with more virus shed more virus, releasing pathogens that can infect those near the carrier. Because presymptomatic carriers have been found to have high viral shedding,31 there is a significant risk of a carrier with a high viral load infecting many around him or her.
E. Common Areas at Yuba County Jail and Mesa Verde are Prone to Overcrowding and Poor Sanitation Practices
40. The fact declarations submitted by detainees depict a dangerous environment where people live in close proximity, use common bathrooms with open air between stalls, and stand in lines throughout the day. The many shared common spaces and amenities create a high likelihood of mass infection.
41. In addition to social distancing, increased vigilant cleaning and personal hygiene is vital to slowing the spread of the COVID-19. Because the virus remains viable on certain surfaces for more than a day,32 shared common spaces such as doorknobs, bathrooms, sinks, toilets, showers, and eating halls pose a significant risk of transmission even if people use these facilities individually.33 If a person touches an infected surface, and then touches his face, he will expose his mucous membranes to the virus. Moreover, because COVID-infected aerosol has a half-life of over an hour, virus-infected air will circulate around heavily populated shared spaces.
42. To reduce the risk of further transmission, any shared space needs to be cleaned with FDA-approved cleaning solutions after each use.
43. I understand that cloth masks have been made available. Surgical or cotton masks do not adequately protect against the virus because they do not protect against particles measuring less than five microns.34 Accordingly, the masks provided do not sufficiently protect against the risk of mass infection.
29 Li, C.C. et al., Correlation of Pandemic (H1N1) 2009 Viral Load with Disease Severity and Prolonged Viral Shedding in Children, Emerg Infectious Dis. Vol. 16, Number 8 (Aug 2010), https://wwwnc.cdc.gov/eid/article/16/8/09-1918_article 30 Uusitupa, E., Association of Viral Load With Disease Severity in Outpatient Children with Respiratory Virus Infection, The Journal of Infectious Diseases, (Feb. 18, 2020), https://doi.org/10.1093/infdis/jiaa076 31 He, X.m Lau, E.H.Y., et al, Temporal dynamics in viral shedding and transmissibility of COVID-19. Nature Medicine 26, 672–675 (Apr. 15, 2020). https://doi.org/10.1038/s41591-020-0869-5 32 Aerosol and Surface Stability of SARS-COV-2 as Compared with SARS-CoV-1. N. Engl. J. Med. (Apr. 16, 2020) https://www.nejm.org/doi/full/10.1056/NEJMc2004973?query=featured_home 33 Guo, Z.D. et al., Aerosol and Surface Distribution of Severe Acute Respiratory Syndrome Coronavirus 2 in Hospital Wards, Wuhan, China, 2020, Emerg Infect Dis, Vol. 26, Number 7 (July 2020) https://doi.org/10.3201/eid2607.200885 34 Bae. S. et al., Effectiveness of Surgical and Cotton Masks in Blocking SARS-CoV-2: A Controlled Comparison in 4 Patients, Annals of Internal Medicine, (Apr. 6, 2020), https://www.acpjournals.org/doi/10.7326/M20-1342.
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F. Mass Testing, Quarantining, and Contact Tracing is Needed.
44. I understand that as of April 24, 2020, only two detainees at Yuba County Jail and Mesa Verde had been tested for COVID-19. Without a consistent, reliable testing, quarantining, and contact tracing program (determining who infected people have previously come in contact with and ensuring their appropriate follow-up), it is impossible to determine whether infections have already started at either of these two facilities.
45. A robust testing program needs to be implemented immediately. All newcomer detainees should be quarantined until the test result comes back negative or for fourteen days, whichever is first, before being allowed to enter the facility.
***
46. To contain the spread of the virus, all possible efforts must be made to reduce the number of viral particles circulating, or at risk of circulation, in Yuba County Jail and Mesa Verde Detention Center. The best way to reduce the risk of mass infection is to significantly depopulate the facility: any congregate living environment has inherent risks because of the unavoidable interactions between large numbers of people. The practically inevitable spread of the virus will infect fewer people if there are fewer people living in these congregate environments. Further, only significant depopulation makes any social distancing for those who remain possible. Social distancing of at least six feet for transient interactions helps to protect against droplet transmission, and is a bare minimum first step to make people relatively safer from such a form of transmission. Given the increased viral exposure over prolonged periods in confined areas for sleeping, in addition to the likelihood of airborne transmission, social distancing of greater than six feet is necessary between the beds of detainees to reduce the risk of droplet transmission to detainees in these facilities.
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct to the best of my information and belief.
Akiko Iwasaki, Ph.D. Waldemar Von Zedtwitz Professor of Immunobiology; of Molecular, Cellular and Developmental Biology Yale School of Medicine The Anlyan Center 300 Cedar Street, Suite S630 New Haven, CT 06519
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April 4, 2020

CURRICULUM VITAE Akiko Iwasaki

Academic Address
Howard Hughes Medical Institute Department of Immunobiology Yale University School of Medicine 300 Cedar Street, TAC S655B P.O. Box 208011 New Haven, Connecticut USA 06520-8011 Phone (203) 785-2919 FAX (203) 785-4972 e-mail: akiko.iwasaki@yale.edu

Home Address
1533 Alexander Drive Guilford Connecticut 06437 USA (203) 689-5034

EDUCATION 1998
1994

Ph.D. in Immunology, University of Toronto Thesis: "Cytotoxic T Lymphocyte Induction by Plasmid DNA Immunization: Mechanism and Applications" Supervisor: Professor Brian H. Barber, University of Toronto
B.Sc. Biochemistry Specialist Program, University of Toronto Physics Minor Program, University of Toronto

CAREER
2018 - present Waldemar Von Zedtwitz Professor of Immunobiology; of Molecular, Cellular and Developmental Biology; and of Dermatology, Yale University School of Medicine, Investigator, Howard Hughes Medical Institute

2016 - 2018

Waldemar Von Zedtwitz Professor of Immunobiology and of Molecular, Cellular and Developmental Biology, Yale University School of Medicine, Investigator, Howard Hughes Medical Institute

2014 - present Investigator, Howard Hughes Medical Institute

2011 – 2016 2009 – 2011

Full Professor with Tenure Department of Immunobiology and Department of Molecular, Cellular and Developmental Biology Yale University School of Medicine
Associate Professor with Tenure Department of Immunobiology and Department of Molecular, Cellular and Developmental Biology

Case 3:20-cv-02731-VC Document 229-16 Filed 05/22/20 Page 14 of 34 Akiko Iwasaki, Ph.D.

2006 - 2009 2004 - 2006 2000-2004 1998-2000 1993-1998 1992-1993

Yale University School of Medicine
Associate Professor Department of Immunobiology Yale University School of Medicine
Assistant Professor Section of Immunobiology Yale University School of Medicine
Assistant Professor Department of Epidemiology and Public Health Yale University School of Medicine
Postdoctoral Fellow Supervisor Dr. Brian Kelsall Mucosal Immunity Section, National Institutes of Allergy and Infectious Diseases, NIH
Ph.D. Research Project Supervisor: Professor Brian H. Barber Department of Immunology, University of Toronto
Undergraduate Research Project Supervisor: Professor Robert H. Painter Department of Biochemistry

ACADEMIC AWARDS

1990-1993 1991-1993 1993 1993-1994 1993-1996 1996-1998 1998 1998-2001 2000 2000 2002 2000-2003 2003-2005 2003-2005 2005-2010 2011 2012 2013 2014
2016
2017

Faculty Scholar St. Michael's College Scholarship Silver Medalist at St. Michael's College Massey College Fellow Connaught Scholarship Ontario Graduate Scholarship Natural Sciences and Engineering Research Council of Canada Fellowship Awarded Medical Research Council of Canada Fellowship The Fellows Award for Research Excellence Canadian Society for Immunologist Travel Award Young Investigator Award from Society for Mucosal Immunology. Burroughs Wellcome Fund Career Award in Biomedical Sciences Ethel Donaghue Women’s Health Program Investigator Award Wyeth Lederle Young Investigator Award, Infectious Diseases Society of America Burroughs Wellcome Fund Investigator in Pathogenesis in Infectious Diseases American Associations of Immunologists (AAI) BD Biosciences Investigator Award Eli Lilly and Company Research Award, American Society for Microbiology Master of Arts Privatum, Yale University Appointed, HHMI Investigator
Elected to the Connecticut Academy of Science and Engineering
Winner, Inspiring Yale, Yale University

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Case 3:20-cv-02731-VC Document 229-16 Filed 05/22/20 Page 15 of 34 Akiko Iwasaki, Ph.D.

2018
2018 2018 2018 2019 2019 2020

American Associations of Immunologists (AAI) Thermo Fisher Meritorious Career Award Charles W. Bohmfalk Teaching Award, Yale School of Medicine Elected to the Council of the American Associations of Immunologists Elected to the National Academy of Sciences Seymour & Vivian Milstein Award for Excellence in Interferon and Cytokine Research Elected to the National Academy of Medicine Elected to the American Academy of Microbiology

KEYNOTE AND NAMED LECTURES

2010 2011 2011 2013 2014 2014 2014 2015 2015 2016 2016
2016
2017
2017 2017
2017 2018 2018 2019 2019 2019 2019 2019 2019 2019 2020 2020

The 26th Shipley Symposium Lecture, Harvard Medical School Keynote speaker, University of Michigan, Immunology Annual Retreat Keynote speaker, La Jolla Immunology Conference Keynote speaker, Harvard Immunology Annual Retreat Sloan-Kettering President's Research Seminar Series Tyrrell Lectureship in Infection and Immunity at the University of Alberta R.E. Dyer Lecture, NIH Keynote speaker, International Herpes Workshop, Boise, Idaho The 6th Kishimoto Foundation Lecture, Osaka University, Japan Eberly Lecture, University of Pittsburgh President’s Symposium, American Association of Immunologists meeting, Seattle, Washington Keynote speaker, British Society for Immunology and the Dutch Society for Immunology joint meeting, Liverpool UK Weiser Endowed Lecture in Immunology, University of Washington, Seattle, Washington The 31st Richard Parker Memorial Lecture, Columbia University, NY, NY Inaugural Lecture, Evergrande Center for Immunologic Diseases, Boston, Massachusetts Keynote Pixie Campbell lecture, Colorado Immunology Conference, Vail, CO. Keynote speaker, Keystone Symposium on Cells vs. Pathogens, Monterey, CA. Keynote speaker, New England Immunology Conference, Woods Hole, MA Keynote speaker, EMBO Pathogen Immunity and Signalling conference, Oxford, UK J.S. and H.R Blumenthal Memorial Lecture, University of Minnesota Benning Medical Society Lecture, University of Utah Keynote speaker, American Society for Virologists, University of Minnesota Philip J. Bassford Memorial Lecture, University of North Carolina at Chapel Hill Guru, NIH Immunology Interest Group Workshop 56th Charles A. Stuart Memorial Lecture and Brown University Keynote speaker, NextGen Immunology, Rehovot, Israel Bertram Marx Lecture University of Alabama at Birmingham

EDITORIAL BOARDS

2008-2012 2010-present 2017-present 2017-2019 2018-present 2020-present 2020-present

Associate Editor, Mucosal Immunology Associate Editor, Trends in Immunology Advisory Editorial Board, Journal of Experimental Medicine Editorial Board, Current Topics in Immunology and Microbiology Board of Reviewing Editors, Science Editorial Advisory Board, Cell Host and Microbe Editorial Advisory Board, Cell

3

Case 3:20-cv-02731-VC Document 229-16 Filed 05/22/20 Page 16 of 34 Akiko Iwasaki, Ph.D.
2020-present Editorial Advisory Board, Trends in Molecular Medicine

ADVISORY BOARDS

2010-2011

Member, External Advisory Board, Midwest Regional Center of Excellence for

Biodefense and Emerging Infectious Diseases Research

2010-2012

Member, Scientific Advisory Board, Program Project Grant Reproductive Immunology,

Yale University

2012-2018

Member, joint steering committee, AbbVie-Yale Collaboration in Immunology.

2014-present Scientific Advisory Board, Program in Cellular & Molecular Medicine, Boston

Children's Hospital

2015-present Scientific Advisory Board, Burroughs Wellcome Fund, Investigator in Pathogenesis of

Infectious Diseases

2016-2017

International Scientific Advisory Board, International Cytokine and Interferon Society

2017-2018

Scientific Advisory Board, Hanna H. Gray Fellowship Program, Howard Hughes

Medical Institute

2017-2019

Japan Society for the Promotion of Science International Science Fund Advisory

Board - 日本学術振興会 国際科学研究費委員

2018-2019

Scientific Advisory Board, Schmidt Science Fellows Program

2018-present Board of Scientific Advisors, The Jane Coffin Childs Memorial Fund for Medical

Research

2018-present Scientific Advisory Board, Gulbenkian Foundation, Portugal

2018-present Scientific Advisory Board, Ragon Institute, Boston MA

2019-present Scientific Advisory Board, training program of the Serrapilheira Institute

SOCIETIES

1998-2004 2000-present 2003-2005 2000-present 2000-present

Canadian Society for Immunologists American Association of Immunologists Infectious Diseases Society of America Society for Mucosal Immunology American Society for Microbiology

YALE COMMITTEES

Department

2016-present Vice Chair

2016-present Chair of Space Allocation Committee

2016-present Medical Education Committee

2017-2018

Faculty Search Committee

Junior Faculty Mentorship committee for; Jeff Ishizuka Andrew Wang Noah Palm Carrie Lucas Ann Haberman Grace Chen Craig Wilen Jon Koff (past)

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Medical School

2011-2013

Funds and Fellowship Committee, Member (2011-2012), Chair (2013)

2016-present Women in Science Initiative Committee

2018-present Office of Research Integrity Committee

2018-present K12 ITOP Advisory Committee

2019-present Brain tumor center advisory board

2019-present Yale Center for Immuno-oncology (YCIO) advisory board

University 2017-2019 2019 2019-present

University Science Strategy Committee Dean Search Committee Advisory Board OCR Committee

Community Outreach I am an advocate of women and underrepresented minority scientists. My outreach activities are through direct mentorship (my lab is always more than 50% women), and through outreach via publication and social media including Twitter (@VirusesImmunity). I have over 17K followers.

RESEARCH SUPPORT

ACTIVE

Howard Hughes Medical Institute (Iwasaki)

05/15/2014 – 05/14/2026

To understand the cellular and molecular mechanisms of innate virus recognition and in elucidating

innate signals that lead to the generation of protective immune responses and to apply such

understanding to create effective vaccines

2R01EB000487-22A1 (Saltzman & Iwasaki)
NIH/NIBIB Cellular and molecular transport in mucus

09/16/2017 – 06/30/2020

The major goals of this project are to examine whether vaginally delivered nanoparticles can prevent or treat HSV-2 genital infections.

Meier Corporation Gift (Iwasaki)

10/01/2015-9/30/2020

Role of humidity and temperature on respiratory antiviral immunity

This is a gift from Condair Group AG to the lab. We use this gift to study the impact that humidity and

temperature has on respiratory immunity to influenza viruses.

R01AI127429 (Iwasaki)

06/01/2017 -

05/31/2022

NIH NIAID

B cell based protection against recurrent herpes

This grant proposes to examine the mechanism by which protective immunity is mediated by memory T

cells and B cells, and apply this finding to generate a novel effective vaccine against HSV-2.

2R01AI054359-14 NIH NIAID

(Iwasaki)

04/01/15 - 03/31/20

Immunity to Genital Herpes Simplex-2

The major goals of this project are to determine the mechanisms by which dendritic cells initiate CD4+

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Case 3:20-cv-02731-VC Document 229-16 Filed 05/22/20 Page 18 of 34 Akiko Iwasaki, Ph.D.

T cell immunity in the vaginal mucosa.

2U19AI089992-06A1 (Hafler) NIH NIAID

12/19/16

-

11/30/21

Systems Immune Profiling of Divergent Responses to Infection The goal of this proposal is to identify patterns of gene expression, metabolic or cell function in the

human immune system that are "signatures" of a response to influenza vaccination. We will also

evaluate how these signatures are altered in older versus young individuals, and in a subset of so-

called frail older individuals who are at high risk for death and disability.

Stand Up To Cancer, a division of Entertainment

(Santin)

01/01/18 - 12/31/20

Responders and Non-responders to Endometrial Cancers with Mismatch Repair

To use the reagents from the A phase II evaluation of pembrolizumab to predict the responder vs. non-

responder phenotypes to PD1 blockade.

R01 NS111242

(Iwasaki/Kaczmarek)

12/01/19

-

11/30/24

NIH

Role of viral infections in potassium channel-related cerebellar ataxia

The goal of these studies is to decipher the mechanism of cerebellar ataxia

CRUIVV - Center for Research on Universal Influenza Virus Vaccines (Krammer) 07/31/2026
Subcontract from Mt. Sinai School of Medicine The goal of this U19 project is to develop universal flu vaccines.

08/01/2019

Completed Research Support (last three years)

5 R01 AI 064705-07 (Iwasaki)

04/01/2005 - 01/31/2016

NIH/NIAID
Viral Recognition by Plasmacytoid Dendritic Cell The major goals of this project are to examine the mechanism of type 1 IFN induction by live viruses in pDCs; determine the cellular mechanisms utilized by pDCs for innate recognition of DNA and RNA viruses; and to examine the in vivo role of pDCs in innate and adaptive immunity following mucosal viral infections.

Abbvie Yale Collaboration In Immunobiology (Iwasaki)

04/15/2013 – 04/14/2017

AbbVie Research Study
Role of endogenous retroviruses in lupus pathogenesis The goal of the proposed project is to understand the disease pathogenesis of SLE and possibly develop a new strategy to diagnose, prevent and/or treat SLE in humans.

1R56AI125504-01 (Saltzman & Iwasaki)

07/20/2016 – 06/30/2017

NIH/NIAID Vaginally-delivered Nanoparticles for Prevention and Treatment of HSV-2

The major goals of this project are to examine whether vaginally delivered nanoparticles can prevent or treat HSV-2 genital infections.

Abbvie Yale Collaboration In Immunobiology (Iwasaki & Medzhitov)

04/15/2013 – 04/14/2018

6

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Identification and targeting of Tfh-inducing dendritic cells The goal of the proposed project is to understand the disease pathogenesis of SLE and possibly develop a new strategy to diagnose, prevent and/or treat SLE in humans.

1R21AI131284-01 (Iwasaki)

1/06/2017 – 12/31/2018

NIH/NIAID

Innate antiviral defense against Vaginal transmission of ZIKA virus

This project proposes to examine the mechanism by which the innate antiviral pathways control ZIKV

transmission and replication in the female reproductive tract, and to understand the maternal vs. fetal

intrinsic defense mechanisms that control ZIKV during pregnancy.

2R42AI120269-02 NIH NIAID

(Bilsel)

07/01/2017 - 06/30/2019

Phase II: Restimulating memory T cell responses in elderly by a novel, live influenza vaccine In this proposal we will test the hypothesis that engaging non-inflammasome dependent innate pathways by M2SR virus results in robust restimulation of memory CD4 and CD8 T cells in older humans without causing pathological inflammation.

Yale Cancer Center Innovation Award (Iwasaki) 11/15/18

-

11/14/19

Exploring the Innate Mechanisms Underlying Cancer Immune Surveillance

We will identify the innate immune sensors involved in tumor recognition, and the key antigen

presenting cell types that link this innate recognition to promote anti-tumor T cell responses.

PUBLICATIONS
1) Iwasaki A, Stiernholm, NBJ, Chan AK, Berinstein NL and Barber BH. Enhanced CTL responses mediated by plasmid DNA immunogens encoding co-stimulatory molecules and cytokines. Journal of Immunology, 1997 May 15;158(10):4591-601.
2) Torres CA, Iwasaki A, Barber BH and Robinson HL. Differential dependence on target site tissue for gene gun and intramuscular DNA immunizations. Journal of Immunology, 1997 May 15;158(10):4529-32.
3) Iwasaki A, Torres CAT, Ohashi PS, Robinson HL and Barber BH. The dominant role of bone marrow-derived cells in CTL induction following plasmid DNA immunization at different sites. Journal of Immunology, 1997 Jul 1;159(1):11-4.
4) Iwasaki A and Barber BH. Induction by DNA immunization of a protective anti-tumour cytotoxic T-lymphocyte response against a minimal epitope-expressing tumour. Cancer Immunology Immunotherapy 1998 Jan;45(5):273-9.
5) Porgador A, Irvine KR, Iwasaki A, Barber BH, Restifo NP and Germain RN. Predominant role for directly transfected dendritic cells in antigen presentation to CD8+ T cells after gene gun immunization. Journal of Experimental Medicine 1998 Sep 21;188(6):1075-82.. PMCID: PMC2212529.
6) Iwasaki A, Dela Cruz CS, Young AR and Barber BH. Epitope-specific cytotoxic T lymphocyte induction by minigene DNA immunization. Vaccine, 1999 Apr 9;17(15-16):2081-8.

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7) Iwasaki A and Kelsall BL. Mucosal immunity and inflammation I. Mucosal dendritic cells: their specialized role in initiating T cell responses. American Journal of Physiology, 1999 May;276(5 Pt 1):G1074-8.
8) Iwasaki A and Kelsall BL. Freshly isolated Peyer’s patch, but not spleen dendritic cells produce IL-10 and induce the differentiation of T Helper Type-2 Cells. Journal of Experimental Medicine, 1999 Jul 19;190(2):229-39. PMCID: PMC2195574.
9) Iwasaki A and Kelsall BL. Localization of distinct Peyer's patch dendritic cell subsets and their recruitment by chemokines macrophage inflammatory protein (MIP)-3alpha, MIP-3beta, and secondary lymphoid organ chemokine. Journal of Experimental Medicine, 2000 Apr 17;191(8):1381-94.
10) He J, Gurunathan S, Iwasaki A, Ash-Shaheed B and Kelsall BL. Primary role for Gi-protein signaling in the regulation of interleukin-12 production and the induction of T helper cell type 1 responses. Journal of Experimental Medicine 2000 May 1;191(9):1605-10. PMCID: PMC2213427.
11) Gurunathan S, Stobie L, Prussin C, Sacks DL, Glaichenhaus N, Iwasaki A, Fowell DJ, Locksley RM, Chang JT, Wu CY and Seder RA. Requirements for the maintenance of Th1 immunity in vivo following DNA vaccination: a potential immunoregulatory role for CD8+ T cells. Journal of Immunology, 2000 Jul 15;165(2):915-24.
12) Iwasaki A and Kelsall BL. Unique functions of CD11b+, CD8a+ and double-negative Peyer’s patch dendritic cells. Journal of Immunology, 2001 Apr 15;166(8):4884-90.
13) Jameson B, Baribaud F, Pöhlmann S, Ghavimi D, Mortari F, Doms RW and Iwasaki A. Expression of DC-SIGN dendritic cells of intestinal and genital mucosae in human and rhesus macaques. Journal of Virology, 2002 Feb;76(4):1866-75. PMCID: PMC135921.
14) Park M, Amichay D, Love P, Wick E, Grinberg A, Rabin R, Gebeyehu S, Iwasaki A, Westpal H, DeMartino J, Elkins K and Farber J. Targeted disruption of the MIG gene reveals a role for MIG in antibody production. Journal of Immunology 2002 Aug 1;169:1433-43, 2002.
15) Iwasaki A, Welker R, Müller S, Nomoto A and Wimmer E. Immunofluorescence Analysis of Poliovirus Receptor Expression in the Peyer's Patches of Humans, Primates and CD155 Transgenic Mice: Implications for poliovirus infection. Journal of Infectious Diseases 2002 Sep 1;186(5):585-92.
16) Zhao X, Deak E, Soderberg K, Linehan M, Spezzano D, Jia Zhu, Knipe DM. and Iwasaki A. Vaginal submucosal dendritic cells, but not Langerhans cells, induce protective Th1 responses to herpes simplex virus-2. Journal of Experimental Medicine 2003 Jan 20;197(2):153-62. PMCID: PMC2193810.
17) Iwasaki A. Commentary: The importance of CD11b+ dendric cells in CD4+ T cell activation in vivo: with help from interleukin 1. Journal of Experimental Medicine, 2003 Jul 21;198(2):185-90. PMCID: PMC2194080.
18) Lund J, Sato A, Akira S, Medzhitov R and Iwasaki A. Toll-like receptor 9-mediated recognition of herpes simplex virus-2 by plasmacytoid dendritic cells. Journal of Experimental Medicine 2003 Aug 4;198(3):513-20. PMCID: PMC2194085.
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19) Zhao X, Sato A, Dela Cruz CS, Linehan M, Luegering A, Kucharzik K, Shirakawa AK, Marquez G, Farber JM, Williams I and Iwasaki A. CCL9 is secreted by the follicle-associated epithelium and recruits dome region Peyer’s patch CD11b+ dendritic cells1. Journal of Immunology 2003 Sep 15;171(6):2797-803.
20) Sato A, Hashiguchi M, Toda E, Iwasaki A, Hachimura S and Kaminogawa S. CD11b+ Peyer's patch dendritic cells secrete IL-6 and induce IgA secretion from naïve B cells. Journal of Immunology 2003 Oct 1;171(7):3684-90.
21) Iwasaki A. Invited Review: The role of dendritic cells in immune responses against vaginal infection by the herpes simplex virus type 2. Microbes and Infection, 2003 Nov;5(13):1221-30.
22) Linehan MM, Richman S, Krummenacher C, Eisenberg R, Cohen G and Iwasaki A. In vivo role of Entry of herpes simplex virus type 1 (HSV-1) and HSV-2 through vaginal mucosa. Journal of Virology 2004 Mar;78(5):2530-6. PMCID: PMC369262.
23) Lund JM, Alexopoulou L, Sato A, Karow M, Adams NC, Gale NW, Iwasaki A,*and Flavell RA. Recognition of single-stranded RNA viruses by Toll like receptor 7. Proc. Natl. Acad. Sci. 2004 Apr 13;101(15):5598-603. PMCID: PMC397437.
24) Soderberg KA, Linehan MM, Ruddle NH, Iwasaki A. MAdCAM-1 Expressing sacral lymph node in the lymphotoxinβ-deficient mouse provides a site for immune generation following vaginal herpes simplex virus-2 infection. Journal of Immunology, 2004 Aug 1;173(3):1908-13.
25) Iwasaki A and Medzhitov R. Toll-like receptor control of the adaptive immune responses. Nature Immunology, 2004 Oct;5(10):987-95.
26) Sato A and Iwasaki A. Induction of antiviral immunity requires Toll-like receptor signaling in both stromal and dendritic cell compartments. Proc. Natl. Acad. Sci. 2004 Nov 16;101(46):16274-9. PMCID: PMC528964.
27) Fleeton M, Contractor N, Leon F, He J, Wetzel D, Dermody T, Iwasaki A and Kelsall B. Involvement of dendritic cell subsets in the induction of oral tolerance and immunity. Ann N Y Acad Sci. 2004 Dec;1029:60-5.
28) Sato A and Iwasaki A. Peyer’s patch dendritic cells as regulators of mucosal adaptive immunity. Cell. Mol. Life Sci. 2005 Jun;62(12):1333-8.
29) Soderberg KA, Payne GW, Sato A, Medzhitov R, Segal SS and Iwasaki A. Innate control of adaptive immunity via remodeling of lymph node feed arteriole. Proc Natl Acad Sci., 2005 Nov 8;102(45):16315-20. PMCID: PMC1283434.
30) Colonna M, Pulendran B and Iwasaki A. Dendritic cells at the host-pathogen interface. Nature Immunology, 2006 Feb;7(2):117-20.
31) Shen H and Iwasaki A. A crucial role for plasmacytoid dendritic cells in antiviral protection by CpG ODN-based vaginal microbicide. Journal of Clinical Investigation 2006 Aug;116(8):223743. PMCID: PMC1518794.
32) Sato A, Linehan MM and Iwasaki A. Dual recognition of herpes simplex viruses by TLR2 and TLR9 in dendritic cells. Proc. Natl. Acad. Sci. 2006 Nov 14;103(46):17343-8. PMCID: PMC1859932.
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33) Lund JM, Linehan MM, Iijima N and Iwasaki A. Cutting Edge: Plasmacytoid dendritic cells provide innate immune protection against mucosal viral infection in situ. Journal of Immunology, 2006 Dec 1;177(11):7510-4.
34) Lee HK, Lund JM, Ramanathan B, Mizushima N and Iwasaki A. Autophagy-dependent viral recognition by plasmacytoid dendritic cells. Science, 2007 Mar 9;315(5817):1398-401, PMID: 17272685.
35) Lee HK and Iwasaki A. Innate control of adaptive immunity: dendritic cells and beyond. Semin Immunol. 2007 Feb;19(1):48-55.
36) Iwasaki A. Division of labor by dendritic cells. Cell 2007 Feb 9;128(3):435-6.
37) Iwasaki A. Mucosal dendritic cells. Annual Review of Immunology, 2007;25:381-418.
38) Iwasaki A. Role of autophagy in innate viral recognition. Autophagy 2007 Jul-Aug;3(4):354-6.
39) Iijima N, Linehan MM, Saeland S and Iwasaki, A. Vaginal epithelial dendritic cells renew from bone marrow precursors. Proc. Natl. Acad. Sci. 2007 Nov 27;104(48):19061-6. PMCID: PMC2141908.
40) Miller BC, Zhao Z, Stephenson LM, Cadwell K, Pua HH, Lee HK, Mizushima NN, Iwasaki A, He YW, Swat W, Virgin HW. The autophagy gene ATG5 plays an essential role in B lymphocyte development. Autophagy, 2008 Apr;4(3):309-14.
41) Klionsky DJ et al. Guidelines for the use and interpretation of assays for monitoring autophagy in higher eukaryotes. Autophagy. 2008 Feb;4(2):151-75. PMCID: PMC2654259.
42) Thompson JM, Iwasaki A. Toll-like receptors regulation of viral infection and disease. Adv Drug Deliv Rev. 2008 Apr 29;60(7):786-94. PMCID: PMC2410298.
43) Lee HK, Iwasaki A. Autophagy and antiviral immunity. Curr Opin Immunol. 2008 Feb;20(1):239. PMCID: PMC2271118
44) Yap GS, Iwasaki A. Securing mucosal borders--migrant monocytes to the rescue. Cell Host Microbe. 2008 Sep 11;4(3):192-4.
45) Thompson, JM, Nicholson MG, Whitmore AC, Zamora M, West A, Iwasaki A, Staats HF, Johnston RE. Nonmucosal alphavirus vaccination stimulates a mucosal inductive environment in the peripheral draining lymph node, Journal of Immunology 2008 Jul 1;181(1):574-85.
46) Ichinohe T, Iwasaki A, Hasegawa H. Innate sensors of influenza virus: clues to developing better intranasal vaccines. Expert Rev Vaccines, 2008 Nov;7(9):1435-45. PMCID: PMC2724183.
47) Iijima, N., Linehan. M.M., Zamora, M., Butkus, D., Dunn R., Kehry, M.R., Laufer, T.M., Iwasaki, A. Dendritic cells and B cells maximize mucosal Th1 memory response to herpes simplex virus. Journal of Experimental Medicine, 2008 Dec 22;205(13):3041-52. PMCID: PMC2605233.
48) Iijima, N.,Thompson, J.M., Iwasaki, A. Dendritic cells and macrophages in the genitourinary tract. Mucosal Immunology, 2008 Nov;1(6):451-9. PMCID: PMC2684461.
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49) Ichinohe, T., Lee, H.K., Ogura, Y., Flavell, R., Iwasaki A. Inflammasome recognition of influenza virus is essential for adaptive immune responses. Journal of Experimental Medicine 2009 Jan 16;206(1):79-87. PMCID: PMC2626661.
50) Lee, H.K., Zamora, M., Linehan, M.M., Iijima, N., Gonzalez, D., Haberman, A., Iwasaki, A. Differential roles of migratory and resident DCs in T cell priming after mucosal or skin HSV-1 infection. Journal of Experimental Medicine, 2009 Feb 16;206(2):359-70. PMCID: PMC2646574.
51) Tal, M.C., Sasai, M., Lee, H.K., Yordy, B., Shadel, G.S., Iwasaki, A. Absence of autophagy results in reactive oxygen species-dependent amplification of RLR signaling. Proc. Natl. Acad. Sci. USA., 2009 Feb 24;106(8):2770-5. PMCID: PMC2650341.
52) Iwasaki, A. Local advantage: skin DCs prime, skin memory T cells protect. Nature Immunology, 2009 May;10(5):451-3, PMID: 19381136, NIHMSID: 468547phagosome.
53) Tal, M.C., Iwasaki, A. Autophagic control of RLR signaling. Autophagy. 2009 Jul;5(5):749-50, PMID: 19571662, NIHMSID: 468554..
54) la Sala, A., He, J., Laricchia-Robbio, L., Gorini, S., Iwasaki, A, Braun, M., Yap, G.S., Sher, A., Ozato, K., Kelsall, B. Cholera toxin inhibits IL-12 production and CD8alpha+ dendritic cell differentiation by cAMP-mediated inhibition of IRF8 function. J Exp Med. 2009 Jun 8;206(6):1227-35. PMCID: PMC2715075.
55) Wang, Z., Kumamoto, Y., Wang, P., Gan, X., Lehmann, D., Smrcka, A.V., Cohn, L., Iwasaki, A., Li, L., Wu, D. Regulation of immature dendritic cell migration by a RhoA guanine nucleotide exchange factor ARHGEF5. J Biol Chem 2009 Oct 16;284(42):28599-606. PMCID: PMC2781403.
56) Nakanishi, Y., Lu, B., Gerard, C., Iwasaki, A. CTL mobilization to virus-infected tissue requires CD4+ T cell help. Nature, 2009 462(7272):510-3. PMCID: PMC2789415.
57) Iwasaki, A., and R. Medzhitov. Regulation of adaptive immunity by the innate immune system. Science 2010 Jan 15;327(5963):291-5, PMCID: PMC3645875.
58) Lee HK, Mattei LM, Steinberg BE, Alberts P, Lee YH, Chervonsky A, Mizushima N, Grinstein S, Iwasaki A. In Vivo Requirement for Atg5 in Antigen Presentation by Dendritic Cells. Immunity. 2010 Feb 26;32(2):227-239. PMCID:PMC2996467.
59) Lindsay RW, Darrah PA, Quinn KM, Wille-Reece U, Mattei LM, Iwasaki A, Kasturi SP, Pulendran B, Gall JG, Spies AG, Seder RA. CD8+ T cell responses following replicationdefective adenovirus serotype 5 immunization are dependent on CD11c+ dendritic cells but show redundancy in their requirement of TLR and nucleotide-binding oligomerization domainlike receptor signaling. J Immunol. 2010 Aug 1;185(3):1513-21.
60) Ichinohe T, Pang IK, Iwasaki A. Influenza virus activates inflammasomes via its intracellular M2 ion channel. Nature Immunology 2010 May;11(5):404-10. PMCID: PMC2857582.
61) Sasai M, Linehan MM, Iwasaki A. Bifurcation of Toll-like receptor 9 signaling by adaptor protein 3. Science 2010 Sep 17;329(5998):1530-4. PMCID:PMC3063333.
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62) Iwasaki A. Antiviral immune responses in the genital tract: clues for vaccines. Nat Rev Immunol. 2010 Oct;10(10):699-711, PMCID: PMC3678359.
63) Iijima N, Mattei LM, Iwasaki A. Recruited inflammatory monocytes stimulate antiviral Th1 immunity in infected tissue. Proc Natl Acad Sci U S A. 2011 Jan 4;108(1):284-9. PMCID: PMC3017177.
64) Pang IK, Iwasaki A. Inflammasomes as mediators of immunity against influenza virus. Trends Immunol. 2011 Jan;32(1):34-41. PMCID:PMC3017631.
65) Ichinohe, T., Pang, IK, Kumamoto, Y., Peaper, DR, Ho, JH, Murray, TS, and Iwasaki, A. Microbiota regulates immune defense against respiratory tract influenza A virus infection. Proc. Natl. Acad. Sci. 2011 Mar 29;108(13):5354-9. PMCID: PMC3069176.
66) Klionsky DJ, Iwasaki, A et al. Guidelines for the use and interpretation of assays for monitoring autophagy. Autophagy. 2012 Apr;8(4):445-544. PMCID: PMC3404883
67) Foxman, EF, and Iwasaki, A. Genome-virome interactions: examining the role of common viral infections in complex disease. Nat Rev Microbiol 2011 Apr;9(4):254-64, NIHMSID:468565.
68) Kumamoto Y, Mattei LM, Sellers S, Payne GW, Iwasaki A. CD4+ T cells support cytotoxic T lymphocyte priming by controlling lymph node input. Proc Natl Acad Sci U S A. 2011 May 24;108(21):8749-54. PMCID: PMC3102372.
69) Sasai M, Iwasaki A. Love triangle between Unc93B1, TLR7, and TLR9 prevents fatal attraction. Immunity. 2011 Jul 22;35(1):3-5. PMCID:PMC3143494.
70) Tal MC, Iwasaki A. Mitoxosome: a mitochondrial platform for cross-talk between cellular stress and antiviral signaling. Immunol Rev. 2011 Sep;243(1):215-34. PMCID:PMC3170140.
71) Iwasaki, A., Medzhitov, R. A New Shield for a Cytokine Storm Cell, 2011 Sep 16;146(6):861-2, PMCID: PMC3645871.
72) Yordy B, Iwasaki A. Autophagy in the control and pathogenesis of viral infection. Curr Opin Virol. 2011 Sep 1;1(3):196-203. PMCID: PMC3171969.
73) Pang, IK and Iwasaki, A. Control of antiviral immunity by pattern recognition and the microbiome. Immunological Reviews, 2012 January;245(1): 209–226. PMCID: PMC3659816.
74) Mantegazza AR, Guttentag SH, El-Benna J, Sasai M, Iwasaki A, Shen H, Laufer TM, Marks MS. Adaptor Protein-3 in Dendritic Cells Facilitates Phagosomal Toll-like Receptor Signaling and Antigen Presentation to CD4(+) T Cells. Immunity. 2012 May 25;36(5):782-94. PMCID:PMC3361531.
75) Shin H, Iwasaki A. Skin T(RM) mediates distributed border patrol. Cell Res. 2012 Sep;22(9):1325-7. PMCID: PMC3434347.
76) Kagan JC, Iwasaki A. Phagosome as the organelle linking innate and adaptive immunity. Traffic. 2012 Aug;13(8):1053-61, PMID: 22577865, NIHMSID # 467111.
77) Kumamoto Y, Iwasaki A. Unique features of antiviral immune system of the vaginal mucosa. Curr Opin Immunol. 2012 Jun 4. PMCID: PMC3423557.
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78) Yordy B, Iijima N, Huttner A, Leib D, Iwasaki A. A Neuron-Specific Role for Autophagy in Antiviral Defense against Herpes Simplex Virus. Cell Host Microbe. 2012 Sep 13;12(3):334-45, PMCID:PMC3454454.
79) Iwasaki, A. Innate Immune Recognition of HIV-1. Immunity. 2012 Sep 21;37(3):389-98. PMCID: PMC3578946.
80) Hoshi N, Schenten D, Nish SA, Walther Z, Gagliani N, Flavell RA, Reizis B, Shen Z, Fox JG, Iwasaki A, Medzhitov R. MyD88 signalling in colonic mononuclear phagocytes drives colitis in IL-10-deficient mice. Nat Commun. 2012;3:1120, PMCID: PMC3521499.
81) Iwasaki, A. A virological view of innate immune recognition. Annu Rev Microbiol. 2012;66:17796, PMCID: PMC3549330.
82) Yordy B, Iwasaki A. Cell type-dependent requirement of autophagy in HSV-1 antiviral defense. Autophagy. 2013 Feb 1;9(2):236-8, PMCID: PMC3552887.
83) Shin, H. and Iwasaki A. A vaccine strategy that protects against genital herpes by establishing local memory T cells. Nature 2012 Nov 15;491(7424):463-7, PMCID:PMC3499630.
84) Henault J, Martinez J, Riggs JM, Tian J, Mehta P, Clarke L, Sasai M, Latz E, Brinkmann MM, Iwasaki A, Coyle AJ, Kolbeck R, Green DR, Sanjuan MA. The role of non-canonical autophagy in the type I interferon response to DNA-immune complexes. Immunity. 2012 Dec 14;37(6):98697. doi: 10.1016/j.immuni.2012.09.014. Epub 2012 Dec 6. PMCID: PMC3786711.
85) Mattei LM, Cotmore SF, Li L, Tattersall P, Iwasaki A. Toll-like receptor 9 in plasmacytoid dendritic cells fails to detect parvoviruses. J Virol. 2013 Jan 9. PMCID: PMC3592163.
86) Pang, IK, Ichinohe, T, Iwasaki, A. IL-1R signaling in dendritic cells replaces pattern recognition receptors to promote CD8+ T cell responses to influenza A virus. Nature Immunology, 2013 Jan 13;14(3):246-53, PMCID: PMC3577947.
87) Yordy B, Tal MC, Hayashi K, Arojo O, Iwasaki A. Autophagy and selective deployment of Atg proteins in antiviral defense. Int Immunol. 2013 Jan;25(1):1-10. doi: 10.1093/intimm/dxs101. Epub 2012 Oct 5. PMCID: PMC3534236.
88) Hayashi, Kachiko, Iwasaki, Akiko, Different Routes to the Same Destination, 2013, Feb 19 eLife 2013;2:e00572, PMCID: PMC3576710.
89) Sellers SL, Iwasaki A, Payne GW. Nitric oxide and TNFα are critical regulators of reversible lymph node vascular remodeling and adaptive immune response. PLoS One. 2013;8(4):e60741. doi: 10.1371/journal.pone.0060741. Epub 2013 Apr 3.
90) Mattei LM, Cotmore SF, Tattersall P, Iwasaki A. Parvovirus evades interferon-dependent viral control in primary mouse embryonic fibroblasts. Virology. 2013 Jul 20;442(1):20-7. PMCID: PMC3767977
91) Iijima, N, Goodwin, EC., DiMaio D, Iwasaki A. High-risk Human Papillomavirus E6 Inhibits Monocyte Differentiation to Langerhans Cells. Virology 2013 Sep;444 (1-2) :257-62. Epub 2013 Jul 18. PMCID: PMC3755085
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92) Shin H and Iwasaki A. Generating protective immunity against genital herpes. Trends Immunol. 2013 Sep 3; Epub 2013 Sep 3. PMCID:PMC3819030

93) Shin H and Iwasaki A. Tissue-resident memory T cells. Immunol Rev. 2013 Sep;255 (1) :16581. PMCID: PMC3748618

94) Pang IK, Pillai PS and Iwasaki A. Efficient influenza A virus replication in the respiratory tract requires signals from TLR7 and RIG-I. Proc Natl Acad Sci U S A. 2013 Aug 20;110 (34) :139105. Epub 2013 Aug 5. PMCID: PMC3752242.

95) Kumamoto Y, Linehan M, Weinstein JS, Laidlaw BJ, Craft JE and Iwasaki A: CD301b(+) Dermal Dendritic Cells Drive T Helper 2 Cell-Mediated Immunity. Immunity. 2013 Oct 17;39 (4) :733-43. Epub 2013 Sep 26. PMCID: PMC3819035

96) You F, Wang P, Yang L, Yang G, Zhao YO, Qian F, Walker W, Sutton R, Montgomery R, Lin R, Iwasaki A, Fikrig E. ELF4 is critical for induction of type I interferon and the host antiviral response. Nat Immunol. 2013 Dec;14(12):1237-46. doi: 10.1038/ni.2756. Epub 2013 Nov 3.

97) Ding S, Khoury-Hanold W, Iwasaki A and Robek MD: Epigenetic Reprogramming of the Type III Interferon Response Potentiates Antiviral Activity and Suppresses Tumor Growth. PLoS Biol. 2014 Jan;12 (1) :e1001758. PMCID: PMC3883642

98) Bonham KS, Orzalli MH, Hayashi K, Wolf AI, Glanemann C, Weninger W, Iwasaki A, Knipe DM and Kagan JC: A promiscuous lipid-binding protein diversifies the subcellular sites of toll-like receptor signal transduction. Cell. 2014 Feb 13;156 (4) :705-16. PMCID: PMC3951743

99) Khan S, Toyoda H, Linehan M, Iwasaki A, Nomoto A, Bernhardt G, Cello J and Wimmer E: Poliomyelitis in transgenic mice expressing CD155 under the control of the Tage4 promoter after oral and parenteral poliovirus inoculation. J Gen Virol. 2014 Apr 30; Epub 2014 Apr 30. PMID: 24784416

100) Guo YE, Riley KJ, Iwasaki A and Steitz JA: Alternative Capture of Noncoding RNAs or ProteinCoding Genes by Herpesviruses to Alter Host T Cell Function. Mol Cell. 2014 Apr 10;54 (1) :6779. PMCID: PMC4039351

101) Iwasaki A and Pillai PS: Innate immunity to influenza virus infection. Nat Rev Immunol. 2014 Apr 25;14 (5) :315-28. PMCID: PMC4104278

102) Iijima N & Iwasaki A. T cell memory. A local macrophage chemokine network sustains protective tissue-resident memory CD4 T cells. Science 2014 Oct 3;346(6205):93-8. PMCID: PMC4254703

103)

Foxman EF, Storer JA, Fitzgerald ME, Wasik BR, Hou L, Zhao H, Turner PE, Pyle AM and Iwasaki A: Temperature-dependent innate defense against the common cold virus limits viral replication at warm temperature in mouse airway cells. Proc Natl Acad Sci U S A. 2015 Jan 20;112 (3) :827-32. Epub 2015 Jan 5. PMID: PMC4311828

104) Lipovsky A, Zhang W, Iwasaki A and DiMaio D: Application of the proximity-dependent assay and fluorescence imaging approaches to study viral entry pathways. Methods Mol Biol. 2015;1270 :437-51. PMID: 25702134

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105)

Rongvaux A, Jackson R, Harman CC, Li T, West AP, de Zoete MR, Wu Y, Yordy B, Lakhani SA, Kuan CY, Taniguchi T, Shadel GS, Chen ZJ, Iwasaki A, Flavell RA. Apoptotic caspases prevent the induction of type I interferons by mitochondrial DNA. Cell. 2014 Dec 18;159(7):1563-77. doi: 10.1016/j.cell.2014.11.037.

106)

Saglam O, Samayoa E, Somasekar S, Naccache S, Iwasaki A and Chiu CY: No viral association found in a set of differentiated vulvar intraepithelial neoplasia cases by human papillomavirus and pan-viral microarray testing. PLoS One. 2015;10 (4) :e0125292. Epub 2015 Apr 20. PMID: 25894343

107)

Kashem SW, Igyártó BZ, Gerami-Nejad M, Kumamoto Y, Mohammed J, Jarrett E, Drummond RA, Zurawski SM, Zurawski G, Berman J, Iwasaki A, Brown GD and Kaplan DH: Candida albicans morphology and dendritic cell subsets determine T helper cell differentiation. Immunity. 2015 Feb 17;42 (2) :356-66. Epub 2015 Feb 10. PMID: 25680275

108) Iwasaki A and Medzhitov R: Control of adaptive immunity by the innate immune system. Nat Immunol. 2015 Mar 19;16 (4) :343-353. PMID: 25789684

109)

West AP, Khoury-Hanold W, Staron M, Tal MC, Pineda CM, Lang SM, Bestwick M, Duguay BA, Raimundo N, MacDuff DA, Kaech SM, Smiley JR, Means RE, Iwasaki A and Shadel GS: Mitochondrial DNA stress primes the antiviral innate immune response. Nature. 2015 Apr 23;520 (7548) :553-7. Epub 2015 Feb 2. PMID: 25642965

110) Hayashi K, Sasai M and Iwasaki A: Toll-like receptor 9 trafficking and signaling for type I interferons requires PIKfyve activity. Int Immunol. 2015 Sep;27(9):435-45. PMID: 25925170

111) Gopinath S, Iwasaki A: Cervicovaginal microbiota: simple is better. Immunity. 2015 May 19. PMID: 25992855

112) Iwasaki A: Balancing family life with a science career. Nat Immunol. 2015 Jul 21. PMID: 26194275

113) Iijima N, Iwasaki A: Tissue instruction for migration and retention of TRM cells. Trends Immunol. 2015 Aug 14; 2015 Aug 14. PMID: 26282885

114) Khoury-Hanold W, Iwasaki A.: Autophagy Snuffs a Macrophage's Inner Fire. Cell Host Microbe. 2016 Jan 13;19(1):9-11. PMID:26764592

115) Gopinath S, Kumamoto Y, Iwasaki A: O-linked sugars sound the alarm. Nat Immunol. 2016 Jan 19. PMID: 26784258

116) Iwasaki A: Antiviral responses of inbred mice. Nat Rev Immunol. 2016 Apr 25; 2016 Apr 25. PMID: 27108522

117)

Pillai PS, Molony RD, Martinod K, Dong H, Pang IK, Tal MC, Solis AG, Bielecki P, Mohanty S, Trentalange M, Homer RJ, Flavell RA, Wagner DD, Montgomery RR, Shaw AC, Staeheli P, Iwasaki A: Mx1 reveals innate pathways to antiviral resistance and lethal influenza disease. Science. 2016 Apr 22. PMID: 27102485

118) Shook B, Xiao E, Kumamoto Y, Iwasaki A, Horsley V: CD301b+ macrophages are essential for effective skin wound healing. J Invest Dermatol. 2016 Jun 7; 2016 Jun 7. PMID: 27287183

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Akiko Iwasaki, Ph.D.
119) Iwasaki A: Exploiting Mucosal Immunity for Antiviral Vaccines. Annu Rev Immunol. 2016 May 20. PMID: 27168245
120) Khoury-Hanold W, Yordy B, Kong P, Kong Y, Ge W, Szigeti-Buck K, Ralevski A, Horvath TL, Iwasaki A: Viral Spread to Enteric Neurons Links Genital HSV-1 Infection to Toxic Megacolon and Lethality. Cell Host Microbe. 2016 Jun 8.
121) Iijima N, Iwasaki A: Access of protective antiviral antibody to neuronal tissues requires CD4 Tcell help. Nature. 2016 May 26;533(7604):552-6.
122) Schmid ET, Pang IK, Carrera Silva EA, Bosurgi L, Miner JJ, Diamond MS, Iwasaki A, Rothlin CV: AXL receptor tyrosine kinase is required for T cell priming and antiviral immunity. Elife. 2016 Jun 28; 2016 Jun 28. PMID: 27350258
123) Foxman EF, Storer JA, Vanaja K, Levchenko A, Iwasaki A: Two interferon-independent doublestranded RNA-induced host defense strategies suppress the common cold virus at warm temperature. Proc Natl Acad Sci U S A. 2016 Jul 11.
124) Shook B, Xiao E, Kumamoto Y, Iwasaki A, Horsley V: CD301b+ Macrophages Are Essential for Effective Skin Wound Healing. J Invest Dermatol. 2016 Sep; 2016 Jun 7. PMID: 27287183
125) Yockey LJ, Varela L, Rakib T, Khoury-Hanold W, Fink SL, Stutz B, Szigeti-Buck K, Van den Pol A, Lindenbach BD, Horvath TL, Iwasaki A: Vaginal Exposure to Zika Virus during Pregnancy Leads to Fetal Brain Infection. Cell. 2016 Aug 25. PCMID: 5006689
126) Kumamoto Y, Camporez JP, Jurczak MJ, Shanabrough M, Horvath T, Shulman GI, Iwasaki A: CD301b(+) Mononuclear Phagocytes Maintain Positive Energy Balance through Secretion of Resistin-like Molecule Alpha. Immunity. 2016 Sep 20; 2016 Aug 23. PMID: 27566941
127) Kumamoto Y, Hirai T, Wong PW, Kaplan DH, Iwasaki A: CD301b+ dendritic cells suppress T follicular helper cells and antibody responses to protein antigens. Elife. 2016 Sep 22; 2016 Sep 22. PMID: 2765716.
128) Shin H, Kumamoto Y, Gopinath S, Iwasaki A: CD301b+ dendritic cells stimulate tissue-resident memory CD8+ T cells to protect against genital HSV-2. Nat Commun. 2016 Nov 9; 2016 Nov 9. PMID: 27827367
129) Iwasaki A, Foxman EF, Molony RD: Early local immune defences in the respiratory tract. Nat Rev Immunol. 2016 Nov 28; 2016 Nov 28. PMID: 27890913
130) Goldberg EL, Asher JL, Molony RD, Shaw AC, Zeiss CJ, Wang C, Morozova-Roche LA, Herzog RI, Iwasaki A, Dixit VD: β-Hydroxybutyrate Deactivates Neutrophil NLRP3 Inflammasome to Relieve Gout Flares. Cell Rep. 2017 Feb 28. PMID: 28249154
131) Uraki R, Hwang J, Jurado KA, Householder S, Yockey LJ, Hastings AK, Homer RJ, Iwasaki A, Fikrig E: Zika virus causes testicular atrophy. Sci Adv. 2017 Feb 22; 2017 Feb 22. PMID: 28261663
132) Iwasaki A: Immune Regulation of Antibody Access to Neuronal Tissues. Trends Mol Med. 2017 Mar; 2017 Feb 7. PMID: 28185790
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133) Hastings AK, Yockey LJ, Jagger BW, Hwang J, Uraki R, Gaitsch HF, Parnell LA, Cao B, Mysorekar IU, Rothlin CV, Fikrig E, Diamond MS, Iwasaki A: TAM Receptors Are Not Required for Zika Virus Infection in Mice. Cell Rep. 2017 Apr 18. PMID: 28423319

134)

Gibb DR, Liu J, Natarajan P, Santhanakrishnan M, Madrid DJ, Eisenbarth SC, Zimring JC, Iwasaki A, Hendrickson JE: Type I IFN Is Necessary and Sufficient for Inflammation-Induced Red Blood Cell Alloimmunization in Mice. J Immunol. 2017 Jun 19; 2017 Jun 19. PMID: 28630094

135)

Gibb DR, Liu J, Santhanakrishnan M, Natarajan P, Madrid DJ, Patel S, Eisenbarth SC, Tormey CA, Stowell SR, Iwasaki A, Hendrickson JE: B cells require Type 1 interferon to produce alloantibodies to transfused KEL-expressing red blood cells in mice. Transfusion. 2017 Aug 23; 2017 Aug 23. PMID: 28836263

136)

Sasai M, Sakaguchi N, Ma JS, Nakamura S, Kawabata T, Bando H, Lee Y, Saitoh T, Akira S, Iwasaki A, Standley DM, Yoshimori T, Yamamoto M: Essential role for GABARAP autophagy proteins in interferon-inducible GTPase-mediated host defense. Nat Immunol. 2017 Jun 12; 2017 Jun 12. PMID: 28604719

137) Chen YG, Kim MV, Chen X, Batista PJ, Aoyama S, Wilusz JE, Iwasaki A, Chang HY: Sensing Self and Foreign Circular RNAs by Intron Identity. Mol Cell. 2017 Jun 7; 2017 Jun 7. PMID: 28625551

138) Fink SL, Jayewickreme TR, Molony RD, Iwawaki T, Landis CS, Lindenbach BD, Iwasaki A: IRE1α promotes viral infection by conferring resistance to apoptosis. Sci Signal. 2017 Jun 6; 2017 Jun 6. PMID: 28588082

139) Uraki R, Jurado KA, Hwang J, Szigeti-Buck K, Horvath T, Iwasaki A, Fikrig E: Sexual transmission of ZIKV causes fetal growth restriction in mice. J Infect Dis. 2017 May 2; 2017 May 2. PMID: 28472297

140) Wong P, Iwasaki A: RAB15 empowers dendritic cells to drive antiviral immunity. Sci Immunol. 2017 Jul 7. PMID: 28783705

141)

Lipovsky A, Erden A, Kanaya E, Zhang W, Crite M, Bradfield C, MacMicking J, DiMaio D, Schoggins JW, Iwasaki A: The cellular endosomal protein stannin inhibits intracellular trafficking of human papillomavirus during virus entry. J Gen Virol. 2017 Oct 23; 2017 Oct 23. PMID: 29058661

142) Jurado KA, Iwasaki A: Zika virus targets blood monocytes. Nat Microbiol. 2017 Nov. PMID: 29070824

143) Jurado KA, Yockey LJ, Wong PW, Lee S, Huttner AJ, Iwasaki A: Antiviral CD8 T cells induce Zika-virus-associated paralysis in mice. Nat Microbiol. 2017 Nov 20; 2017 Nov 20. PMID: 29158604

144) Molony RD, Nguyen JT, Kong Y, Montgomery RR, Shaw AC, Iwasaki A: Aging impairs both primary and secondary RIG-I signaling for interferon induction in human monocytes. Sci Signal. 2017 Dec 12; 2017 Dec 12. PMID: 29233916

145) Yockey LJ, Jurado KA, Arora N, Millet A, Rakib T, Milano KM, Hastings AK, Fikrig E, Kong Y, Horvath TL, Weatherbee S, Kliman HJ, Coyne CB, Iwasaki A: Type I interferons instigate fetal demise after Zika virus infection. Sci Immunol. 2018 Jan 5. PMID: 29305462

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146) Linehan MM., Dickey TH, Molinari ES, Fitzgerald ME, Potapova O, Iwasaki A, Pyle AM. A minimal RNA ligand for potent RIG-I activation in living mice. Sci Adv. 2018 Feb; 2018 Feb 21. PMID: 29492454

147)

Gopinath S, Kim MV, Rakib T, Wong PW, van Zandt M, Barry NA, Kaisho T, Goodman AL, Iwasaki A: Topical application of aminoglycoside antibiotics enhances host resistance to viral infections in a microbiota-independent manner. Nat Microbiol. 2018 May; 2018 Apr 9. PMID: 29632368

148) Hayashi K, Taura M, Iwasaki A: The interaction between IKKα and LC3 promotes type I interferon production through the TLR9-containing LAPosome. Sci Signal. 2018 May 1; 2018 May 1. PMID: 29717061

149)

Lucas CGO, Kitoko JZ, Ferreira FM, Suzart VG, Papa MP, Coelho SVA, Cavazzoni CB, PaulaNeto HA, Olsen PC, Iwasaki A, Pereira RM, Pimentel-Coelho PM, Vale AM, de Arruda LB, Bozza MT: Critical role of CD4+ T cells and IFNγ signaling in antibody-mediated resistance to Zika virus infection. Nat Commun. 2018 Aug 7; 2018 Aug 7. PMID: 30087337

150)

Wu L, Cao J, Cai WL, Lang SM, Horton JR, Jansen DJ, Liu ZZ, Chen JF, Zhang M, Mott BT, Pohida K, Rai G, Kales SC, Henderson MJ, Hu X, Jadhav A, Maloney DJ, Simeonov A, Zhu S, Iwasaki A, Hall MD, Cheng X, Shadel GS, Yan Q: KDM5 histone demethylases repress immune response via suppression of STING. PLoS Biol. 2018 Aug; 2018 Aug 6. PMID: 30080846

151) Orzalli MH, Smith A, Jurado KA, Iwasaki A, Garlick JA, Kagan JC: An Antiviral Branch of the IL1 Signaling Pathway Restricts Immune-Evasive Virus Replication. Mol Cell. 2018 Aug 2; 2018 Aug 2. PMID: 30100266

152) Yockey LJ, Iwasaki A: Interferons and Proinflammatory Cytokines in Pregnancy and Fetal Development. Immunity. 2018 Sep 18. PMID: 30231982

153) Mihaylova VT, Kong Y, Fedorova O, Sharma L, Dela Cruz CS, Pyle AM, Iwasaki A, Foxman EF: Regional Differences in Airway Epithelial Cells Reveal Tradeoff between Defense against Oxidative Stress and Defense against Rhinovirus. Cell Rep. 2018 Sep 11. PMID: 30208323

154) Tokuyama M, Kong Y, Song E, Jayewickreme T, Kang I, Iwasaki A: ERVmap analysis reveals genome-wide transcription of human endogenous retroviruses. Proc Natl Acad Sci U S A. 2018 Dec 11; 2018 Nov 19. PMID: 30455304

155)

Lee JW, Zhang Y, Eoh KJ, Sharma R, Sanmamed MF, Wu J, Choi J, Park HS, Iwasaki A, Kaftan E, Chen L, Papadimitrakopoulou V, Herbst RS, Koo JS: The Combination of MEK inhibitor with Immunomodulatory Antibodies Targeting PD-1 and PD-L1 Results in Prolonged Survival in Kras/p53-Driven Lung Cancer. J Thorac Oncol. 2019 Feb 13; 2019 Feb 13. PMID: 30771521

156) Ren X, Linehan MM, Iwasaki A, Pyle AM: RIG-I Selectively Discriminates against 5'Monophosphate RNA. Cell Rep. 2019 Feb 19. PMID: 30784585

157) Treger RS, Pope SD, Kong Y, Tokuyama M, Taura M, Iwasaki A: The Lupus Susceptibility Locus Sgp3 Encodes the Suppressor of Endogenous Retrovirus Expression SNERV. Immunity. 2019 Feb 19; 2019 Jan 29. PMID: 30709743

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158) Taura M, Song E, Ho YC, Iwasaki A: Apobec3A maintains HIV-1 latency through recruitment of epigenetic silencing machinery to the long terminal repeat. Proc Natl Acad Sci U S A. 2019 Feb 5; 2019 Jan 22. PMID: 30670656

159) Kim DJ, Iwasaki A: YTHDF1 Control of Dendritic Cell Cross-Priming as a Possible Target of Cancer Immunotherapy. Biochemistry. 2019 Apr 16; 2019 Apr 3. PMCID: in progress

160) Kudo E, Song E, Yockey LJ, Rakib T, Wong PW, Homer RJ, Iwasaki A: Low ambient humidity impairs barrier function and innate resistance against influenza infection. Proc Natl Acad Sci U S A. 2019 May 28; 2019 May 13. PMCID: in progress

161) Song E, Iwasaki A: Monocytes Inadequately Fill In for Meningeal Macrophages. Trends Immunol. 2019 Jun; 2019 May 6. PMCID: in progress

162)

Lee JW, Zhang Y, Eoh KJ, Sharma R, Sanmamed MF, Wu J, Choi J, Park HS, Iwasaki A, Kaftan E, Chen L, Papadimitrakopoulou V, Herbst RS, Koo JS: The Combination of MEK Inhibitor With Immunomodulatory Antibodies Targeting Programmed Death 1 and Programmed Death Ligand 1 Results in Prolonged Survival in Kras/p53-Driven Lung Cancer. J Thorac Oncol. 2019 Jun; 2019 Feb 13. PMCID: in progress

163) Uraki R, Hastings AK, Marin-Lopez A, Sumida T, Takahashi T, Grover JR, Iwasaki A, Hafler DA, Montgomery RR, Fikrig E: Aedes aegypti AgBR1 antibodies modulate early Zika virus infection of mice. Nat Microbiol. 2019 Jun; 2019 Mar 11. PMCID: in progress

164) Oh JE, Iijima N, Song E, Lu P, Klein J, Jiang R, Kleinstein SH, Iwasaki A: Migrant memory B cells secrete luminal antibody in the vagina. Nature. 2019 Jun 12; 2019 Jun 12. PMCID: PMC6609483

165) Treger RS, Tokuyama M, Dong H, Salas-Briceno K, Ross SR, Kong Y, Iwasaki A: Human APOBEC3G prevents emergence of infectious endogenous retrovirus in mice. J Virol. 2019 Jul 24; 2019 Jul 24. PMID: 31341050.

166) Pi R, Iwasaki A, Sewald X, Mothes W, Uchil PD. Murine Leukemia Virus exploits innate sensing by TLR7 in B-1 cells to establish infection and local spread in mice. J Virol. 2019 Aug 21; 2019 Aug 21. PMID: 31434732.

167)

Amezcua Vesely MC, Pallis P, Bielecki P, Low JS, Zhao J, Harman CCD, Kroehling L, Jackson R, Bailis W, Licona-Limón P, Xu H, Iijima N, Pillai PS, Kaplan DH, Weaver CT, Kluger Y, Kowalczyk MS, Iwasaki A, Pereira JP, Esplugues E, Gagliani N, Flavell RA. Effector TH17 Cells Give Rise to Long-Lived TRM Cells that Are Essential for an Immediate Response against Bacterial Infection. Cell. 2019 Aug 22. PMID: 31442406.

168) Iwasaki A. Why we need to increase diversity in the immunology research community. Nat Immunol. 2019 Sep. PMID: 31427777.

169) Goldberg EL, Molony RD, Kudo E, Sidorov S, Kong Y, Dixit VD, Iwasaki A. Ketogenic diet activates protective γδ T cell responses against influenza virus infection. Sci Immunol. 2019 Nov 15. PMID: 31732517.

170) Jiang X, Muthusamy V, Fedorova O, Kong Y, Kim DJ, Bosenberg M, Pyle AM, Iwasaki A. Intratumoral delivery of RIG-I agonist SLR14 induces robust antitumor responses. J Exp Med. 2019 Dec 2; 2019 Oct 10. PMID: 31601678.

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Akiko Iwasaki, Ph.D.
171) Ren X, Linehan MM, Iwasaki A, Pyle AM. RIG-I Recognition of RNA Targets: The Influence of Terminal Base Pair Sequence and Overhangs on Affinity and Signaling. Cell Rep. 2019 Dec 17. PMID: 31851914.
172) Song, E., Mao, T., Dong, H. Boisserand, L.S., Antila, S., Bosenberg, M., Alitalo, K., Thomas, J.L., & Iwasaki, A. VEGF-C-driven lymphatic drainage enables immunosurveillance of brain tumours. Nature 2020. 01; 2020 Jan 15. PMID: 31942068.
173) Cutting Edge: The Use of Topical Aminoglycosides as an Effective Pull in "Prime and Pull" Vaccine Strategy. Gopinath S, Lu P, Iwasaki A. J Immunol. 2020 Apr 01; 2020 Mar 02. PMID: 32122994.
174) Seasonality of Respiratory Viral Infections. Moriyama M, Hugentobler WJ, Iwasaki A. Annu Rev Virol. 2020 Mar 20; 2020 Mar 20. PMID: 32196426.
BOOK CHAPTERS
1) Sato A and Iwasaki A. Isolation and characterization of Peyer’s patch dendritic cells, Book Chapter in Methods in Molecular Medicine, 2005.
2) Iwasaki A and Barber BH. The use of bone marrow-chimeric mice in determining the MHC restriction of epitope-specific cytotoxic T lymphocytes. In D.B. Lowrie and R.G.Whalen (Ed.), DNA Vaccines: Methods and Protocols, Humana Press, New Jersey. 133-144, 1999.
3) Iwasaki A. The use of bone marrow-chimeric mice in elucidating immune mechanisms. Methods in Molecular Medicine 127:281-92, 2006.
4) Tal, M.C., Iwasaki, A. Book Chapter: Autophagy and Innate Recognition Systems. B. Levine et al. (eds.), Autophagy in Infection and Immunity, Current Topics in Microbiology and Immunology 335: 107-21, 2009.
5) Iwasaki, A. Innate Immunity to Viruses in “The Immune Response to Infection”. S.H.E. Kaufmann, B.T. Rouse and D.L. Sacks Ed, ASM Press, Washington, DC, 2011.
6) Iwasaki, A. Mucosal Immune Responses to Microbes in “Mucosal Immunology”. R. Blumberg, T. MacDonald and P. Smith Ed, Garland Sciences, 2013.
7) Iwasaki, A. and Medzhitov, R. Innate Responses to Virus Infections in “Fields Virology”, 6th Ed. D. Knipe and P. Howley Ed, LWW Press, 2013.
8) Lambrecht, B.N., Iwasaki, A., Kelsall, B.L. Mucosal Dendritic Cells: Origins, Subsets, and Biology in “Mucosal Immunology: Fourth Edition” Volume 1-2, April 01, 2015, Pages 489-541 (Book Chapter).
PUBLICATIONS IN JAPANESE
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Akiko Iwasaki, Ph.D.
• 岩崎明子 高橋一郎（２００0）粘膜ワクチンは２１世紀の感染症の救世主に成り得るか？ アレ ルギー•免疫 12：92-102。（Iwasaki, A. and Takahashi, I (2000) Can mucosal vaccines save us from infectious diseases in the 21st century. Allergology and Immunology 7 (12):92-102.)
• 岩崎明子 清野宏（２００1）粘膜免疫と樹状細胞。炎症と免疫 9：48-53。（Iwasaki, A. and Kiyono, H. (2001) Mucosal Immunity and dendritic cells. Inflammation and Immunology 9 (3) 48-53.)
• 佐藤あゆ子 岩崎明子 （２００4）パイエル板樹状細胞サブセットによる正と負の免疫粘膜制御。 実験医学 22：164-169。（Sato A., and Iwasaki A. (2004) Positive and negative immune regulation by dendritic cell subsets in the Peyer’s patch. Experimental Medicine 22:164-169.)
• 佐藤あゆ子 岩崎明子 （２００5）粘膜表面における樹状細胞の二段階ウィルス感染認識機構。 実験医学 23：1531-1537。（Sato A., and Iwasaki A. (2005) Two step recognition of viral infection by dendritic cells at the mucosal surface. Experimental Medicine 23:1531-1537.)
• 佐藤あゆ子 岩崎明子 （２００６）粘膜樹状細胞機能追求の進展。炎症と免疫 14：2-7。 （Sato A., and Iwasaki A. (2006) Recent progress in mucosal dendritic cell function. Inflammation and Immunity 14:2-7.)
• 飯島則文 中西祐輔 岩崎明子 （２００7）性感染症に対する免疫応答。医学のあゆみ 221: 903-906。 (Iijima N., Nakanishi Y., and Iwasaki A. (2007) Innate and adaptive immune defenses against sexually transmitted infections. Journal of Clinical and Experimental Medicine (IGAKU NO AYUMI) 221: 903-906.)
• 佐川かよ 岩崎明子 （２００7） ヘルペスウイルスと粘膜免疫。実験医学 25: 188-192。(Sagawa K., and Iwasaki A. (2007) Herpes virus and mucosal immunity. Experimental Medicine 25: 188192.)
• 笹井美和 岩崎明子 （２００8） オートファジーとウイルス感染。細胞工学 27: 1250-1255。 (Sasai M., and Iwasaki A. (2008) Autophagy and virus infection. Cell Technology 27: 1250-1255.)
• 隈本洋介 岩崎明子 （２００８） 単純ヘルペスウイルス感染と樹状細胞機能。実験医学 26: 3286-3291。(Kumamoto Y., and Iwasaki A. (2008) Control of herpes simplex virus infection by dendritic cells. Experimental Medicine 26: 3286-3291.)
• 隈本洋介 岩崎明子 （２００８） MHC クラスⅡによる抗原の提示とオートファジー。蛋白質 核酸酵素 53:2286-2291。(Kumamoto Y., and Iwasaki A. (2008) MHC class II-presentation of antigen by autophagy. Protein, Nucleic Acid and Enzyme (TANPAKUSHITSU KAKUSAN KOSO) 53:2286-2291.)
• 飯島則文 岩崎明子 （２００9）図説；性感染症における粘膜の免疫機構 特集；性感染症 (STD) (Iijima N., Iwasaki A. (2009) Mucosal immune defense against sexually transmitted diseases Nippon Rinsho 67 (1) 2-4).
• 田浦学 Ellen F. Foxman, 岩崎明子 （２０１６）気道粘膜における防御機構：寒いとなぜ風邪 をひくのか？実験医学 2016 年 8 月号 『粘膜ワクチンとヒト免疫最前線！』。（Taura M, Foxman, EF, Iwasaki A (2016) Airway mucosal defense mechanisms: why cold weather gives you cold? Experimental Medicine 34:2144-2150.).
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Case 3:20-cv-02731-VC Document 229-16 Filed 05/22/20 Page 34 of 34 Akiko Iwasaki, Ph.D.
PATENTS AND COPYRIGHTS Patent Title: Manipulation of the meningeal lymphatic vasculature for brain tumor therapy. Filed November 16th, 2018 for US provisional patent application. Co-Inventor: Eric Song. Patent Title: Endogenous retrovirus in lupus pathogenesis and cancer. Filed November 8th, 2018 for US provisional patent application. Co-Inventors: Eric Song, Maria Tokuyama. Patent Title: CD4T Cells Provide Antibody Access to lmmunoprivileged Tissue. Filed May 16, 2016 for US provisional patent application. Co-inventor: Norifumi Iijima. Patent Title: Interferon Production Using Short RNA Duplexes. United States Patent Application 20160046943. Co-Inventors: Anna Pyle, Dahai Luo, Andrew Kohlway, David Rawling Patent Title: Compositions and Methods of Vaccination. Filed May 17, 2012 for US provisional patent application. PCT/US13/29965 Co-inventor: Haina Shin
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Case 3:20-cv-02731-VC Document 229-17 Filed 05/22/20 Page 1 of 14

WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org SEAN RIORDAN (SBN 255752) sriordan@aclunc.org ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: (415) 553-9319 Facsimile: (415) 553-9810

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUBI RUIZ TOVAR, LAWRENCE KURIA MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,

CASE NO. 3:20-CV-02731-VC DECLARATION OF SANDRA HERNANDEZ IN SUPPORT OF PETITIONERS-PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Petitioners-Plaintiffs,

v.

DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,

Respondents-Defendants.

CASE NO. 3:20-CV-02731-VC SUPPLEMENTAL DECLARATION OF SANDRA HERNANDEZ

Case 3:20-cv-02731-VC Document 229-17 Filed 05/22/20 Page 2 of 14

BREE BERNWANGER* (NY SBN 5036397) bbernwanger@lccrsf.org HAYDEN RODARTE (SBN 329432) hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA 131 Steuart St #400 San Francisco, CA 94105 Telephone: (415) 814-7631
JUDAH LAKIN (SBN 307740) judah@lakinwille.com AMALIA WILLE (SBN 293342) amalia@lakinwille.com LAKIN & WILLE LLP 1939 Harrison Street, Suite 420 Oakland, CA 94612 Telephone: (510) 379-9216 Facsimile: (510) 379-9219

MARTIN S. SCHENKER (SBN 109828) mschenker@cooley.com COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111 Telephone: (415) 693-2000 Facsimile: (415) 693-2222
TIMOTHY W. COOK* (Mass. BBO 688688) tcook@cooley.com FRANCISCO M. UNGER* (Mass. BBO 698807) funger@cooley.com COOLEY LLP 500 Boylston Street Boston, MA 02116 Telephone: (617) 937-2300 Facsimile: (617) 937-2400

JORDAN WELLS (SBN 326491) jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568) spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA 1313 West Eighth Street Los Angeles, CA 90017 Telephone: (213) 977-9500 Facsimile: (213) 977-5297

Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice

CASE NO. 3:20-CV-02731-VC SUPPLEMENTAL DECLARATION OF SANDRA HERNANDEZ

Case 3:20-cv-02731-VC Document 229-17 Filed 05/22/20 Page 3 of 14

Supplemental Declaration of Sandra Hernandez
1. I am the president and CEO of the California Health Care Foundation, which works to improve health care systems in California. Prior to joining CHCF, I was CEO of The San Francisco Foundation, which I led for 16 years. From 1994 to 1997, I served as Director of Health for the City and County of San Francisco. I also co-chaired San Francisco’s Universal Healthcare Council which designed Healthy San Francisco, an innovative health access program for the uninsured. I also serve on various public health commissions.
2. I previously submitted a declaration in this case on April 20, 2020. I submit this second declaration after reviewing Defendants’ discovery responses, Plaintiffs’ declarations, and visual images of Mesa Verde and Yuba County Jail. These materials confirm my views expressed in my first declaration, which I incorporate by reference here.
A. Covid-19 Continues to Spread Throughout the United States and California.
3. In the month since my previous declaration, COVID-19 has continued to spread exponentially in the United States. The U.S. now has over 1.5 million confirmed COVID-19 cases; more than five times than the next highest country.1 California has over 80,000 confirmed cases, the fifth highest of any state.2 In reality, the number of positive cases is likely much higher. The U.S. still has much work to do in making testing more accessible. The United States currently has administered approximately eight tests per confirmed case. This trails many other countries.3 By comparison, Germany has 18.6 tests per confirmed case; South Korea has 69.9 tests per confirmed case; and New Zealand has 207.1 tests per confirmed case. These figures indicate that testing shortages continue to exist in America.
4. Sadly, the United States has reported over 93,000 COVID-19 deaths. California has reported over 3,000 deaths.5 These numbers continue to grow each day.
5. There continues to be community spread of COVID-19 cases in the two county sites of the detention centers at issue in this litigation. Kern County has 1,571 confirmed cases among residents and 10 confirmed cases among non-residents.6 Yuba County and Sutter County have 68 total cases.7
6. There has been a significant growth of confirmed cases of COVID-19 within ICE facilities across the country, and there is unequivocal evidence that the actual number of COVID-19 cases is far higher than the number of cases confirmed. As of May 19, 2020, 1,145 detainees, 44 ICE employees at detention centers, and 110 ICE employees not assigned to ICE detention centers have tested positive for COVID-19.8 One detainee is already confirmed to have

1 Johns Hopkins University of Medicine, Coronavirus Resource Center, https://coronavirus.jhu.edu/map.html. 2 Johns Hopkins University of Medicine, Coronavirus Resource Center https://coronavirus.jhu.edu/us-map. 3 University of Oxford, https://ourworldindata.org/grapher/number-of-covid-19-tests-per-confirmed-case. 4 Johns Hopkins University of Medicine, Coronavirus Resource Center https://coronavirus.jhu.edu/map.html. 5 Id. 6 https://www.bakersfield.com/. 7 https://www.yuba.org/coronavirus/. 8 https://www.ice.gov/coronavirus#wcm-survey-target-id.

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died in custody of COVID-19. The number of positive cases of persons in ICE detention is certainly higher than the confirmed cases. The positive test rate for ICE detainees is 52% (1,145/2,194), meaning that one out of every two detainees who are tested is confirmed positive. Consider that the national positive test rate for COVID-19 tests is approximately 13%.9 A widespread testing campaign would result in both a lower positive test rate and a greater number of positive tests because it would capture people who are COVID-positive but asymptomatic positive tests, as well as others with COVID-19 who should be but haven’t been tested.10 The relatively low number of positive tests is necessarily a sign of severe under-testing and a sign of a significant number of unconfirmed, but present, COVID-19 infection in ICE detention centers.
B. U.S. and California Public Health Response to Covid-19.
7. California was the first state in the nation to order its residents to stay home to slow the spread of COVID-19. The goal in taking this swift action was to limit the growth of new cases and maintain the medical infrastructure necessary to treat the influx of COVID-19 cases.
8. California has developed four phases of modifying its stay-at-home order. The first phase is aimed at making it consistently safer for essential workers, including grocery employees, nurses, and other front-line personnel. The first phase focused on procuring sufficient protective equipment, developing a more robust testing program, and training a contact tracing team. The goal was to protect essential workers. California has indicated it has passed the first phase.
9. The second phase of the reopening plan is to permit some low-risk business and public spaces to reopen. This includes factories that can operate with social distancing measures in place, retail stores with curbside pick-up, and some child care facilities. Notwithstanding this gradual phase-two reopening, social distancing measures and protective equipment requirements remain in place.
10. The third phase involves reopening higher-risk workplaces, such as hair salons, gyms, movie theaters, and churches. Again, even in phase three, social distancing measures will remain in place. The fourth phase includes a broader reopening of the California economy, including conventions, concerts, and sporting events. Governor Newsom has indicated that phase four is months away.
11. Regardless of the current phase, California has recommended that all higher-risk individuals stay home.
12. The guiding factor in California’s tiered approach to reopening the economy is reducing densely populated settings. Lifting statewide shelter-in-place orders has been gradual with careful measures. Fundamental to all four phases are the ability to socially distance, a robust testing program, and contact tracing. Mass gatherings will still be prohibited. Social distancing measures will remain in place.

9 https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/testing-in-us.html. 10 ICE does not publish the statistics for the number of employees tested.

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C. The Risk of an Outbreak Remains High at Mesa Verde and Yuba County Jail.
13. Public officials should not be lulled into a false sense of security. The pandemic continues to pose an unprecedented threat to public health. That threat is particularly acute in detention centers like Mesa Verde Detention Center and Yuba County Jail.
14. Public health officials have been bracing for a second wave of infection as more people circulate within their communities. As more members of the community rejoin the general public, the risk of community transmission into detention facilities is increased.
15. Detention staff, vendors, and visitors enter and exit the facilities each day, bringing with them potential virus from the outside community. The more members of the community that rejoin the public, the higher the likelihood of bringing the virus into these facilities.
16. It remains in the interest of public health to release detainees from detention centers. The unnecessary detention of individuals in congregate settings in the midst of a pandemic risks an exponential spread of infection within the facility.
17. Despite modest improvement in testing rates, and flat trends in hospitalizations and intensive care admissions, densely populated facilities that share common environmental factors with Mesa Verde and Yuba remain most at risk. For example, in Los Angeles County, as of May 19, 2020, nearly one quarter of all confirmed COVID-19 cases have come from staff or residents in congregate settings (9,747/40,847) such as nursing homes. Similarly, as of that same date, approximately half of the COVID-19 deaths (990/1,970) came from congregate settings. These high case and death rates confirm the risk, particularly in light of the vast resources and public health focus on preventing outbreaks at nursing homes and other shared living facilities.
18. Outbreak is particularly pernicious in congregate settings because of the combination of indoor facilities, dense populations, and asymptomatic transmission. This risk is present even when facilities take preventative measures. For example, at a skilled nursing home in Kings County, Washington, the facility implemented enhanced infection-control measures in response to community awareness of COVID-19. Nursing staff assessed residents twice daily for COVID19 symptoms; health care personnel were given oral temperature checks before each shift, and all staff were regularly screened for symptoms. On March 1, 2020, one member of the health care staff tested positive on March 1.11 Two days later, the first resident tested positive. Twenty-three days after that, 64% of the facility (48/76) tested positive, with 27 of those residents being asymptomatic. The case fatality rate was 26%. In addition, 26 members of the staff tested positive. This example demonstrates the risk of congregate settings, and the inadequacies of symptom-based control measures.
19. In light of the heightened risk posed to congregate settings, other officials responsible for densely populated environments have heeded the call of public health experts. For example, California State University—which has 23 campuses and 480,000 students within its system—

11 Arons M., et al, “Presymptomatic SARS-CoV-2 Infections and Transmission in a Skilled Nursing Facility,” New England Journal of Medicine, (Apr. 24, 2020), https://www.nejm.org/doi/full/10.1056/NEJMoa2008457.

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announced it would be transitioning to primarily online classes for the fall 2020 semester to protect the health and well-being of its students, faculty, staff, and communities.12
20. The same risks attendant in nursing homes and college dorms are present in detention facilities like Mesa Verde and Yuba. Living in a densely populated, indoor facility increases the risk of outbreak. Any outbreak strains the surrounding medical infrastructure and unnecessarily places lives at risk.
***
21. The risk of transmission in congregate settings remains very high, and the best measures to prevent infection in the absence of a vaccine or treatment are limiting congregate settings wherever possible and ensuring adequate social distancing where congregate settings are unavoidable.
22. The need to implement preventative measures, and particularly in congregate settings, should continue after any community-wide shelter-in-place orders end. To argue otherwise is dangerous and invites infection. The risk of infection for Mesa Verde and Yuba will, if anything, heighten as California advances in its phased reopening.
23. Any relaxation of shelter-in-place orders will still have many facets of public health protection that are not present at Yuba County Jail and Mesa Verde, including social distancing and required or recommended use of personal protective equipment. And relaxation of shelter-inplace orders is done in conjunction with increased access to testing. The current lack of testing at Yuba County Jail and Mesa Verde is incompatible with relaxing COVID-19 protections.
24. For these reasons, the serious risk of harm remains present and will continue even if the greater California or national leadership relaxes some currently existing COVID-19 preventive measures. Relaxing safety measures or increasing population levels within the facility could have dire consequences on detainees, staff and the surrounding health infrastructure.
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct to the best of my information and belief.
Executed on May 21, 2020, in San Francisco, California.

Sandra R. Hernandez, MD

12 Gordon, L., CSU chancellor explains decision to keep most fall classes online, The Mercury News, (May 17, 2020), https://www.mercurynews.com/2020/05/17/csu-chancellor-explains-decision-to-keep-most-fall-classesonline/.

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Sandra R. Hernández, MD President & CEO California Health Care Foundation
Dr. Sandra R. Hernández became president and CEO of the California Health Care Foundation in January 2014. CHCF is an independent, nonprofit philanthropy with assets of more than $700 million, headquartered in Oakland, California, and dedicated to improving California’s health care system so that all Californians — especially those with low-incomes — can get the care they need. Prior to joining CHCF, Dr. Hernández was CEO of The San Francisco Foundation, which she led for 16 years. She previously served as director of public health for the City and County of San Francisco. Dr. Hernández is an assistant clinical professor at the University of California, San Francisco, School of Medicine and a leadership council member of the UCSF Institute for Global Health Sciences. She practiced at San Francisco General Hospital in the AIDS clinic from 1984 to 2016. She is a graduate of Yale University, the Tufts School of Medicine, and the certificate program for senior executives in state and local government at Harvard University's John F. Kennedy School of Government. Originally from Tucson, Arizona, she spent much of her childhood in rural New Mexico with her grandparents. There she came to honor and appreciate her Mexican culture and its intrinsic values of community and public service. Her love of science and math was nourished by her father, a selfeducated engineer. Dr. Hernández serves as a board member of Covered California, a commissioner of the Healthy California for All Commission, a trustee of the Reno-based Western Asbestos Settlement Trust, and as an independent director of First Republic Bank. She is a member of the Public Policy Institute of California's Statewide Leadership Council, the United States of Care Founder’s Council, the Well Being Trust Advisory Council, and the National Academy of Medicine's planning committee for convening around the future of health services research. Her earlier affiliations include President Clinton's Commission on Consumer Protection and Quality in the Healthcare Industry, and two Institute of Medicine committees: one on the Consequences of Uninsurance, and another on the Implementation of Antiviral Medication Strategies for an Influenza Pandemic. Dr. Hernández is a former board member of Grantmakers In Health, the Council on Foundations, the California Managed Risk Medical Insurance Board, the Yale University President's Council, the UCSF Chancellor's Advisory Board, and the UCSF Clinical and Translational Science Institute Advisory Board. She co-chaired San Francisco's Universal Healthcare Council, which designed Healthy San Francisco, an innovative health access program for the uninsured.

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Sandra R. Hernández, MD President & CEO California Health Care Foundation

Education
Medical Licensure Medical Training Language Competency Current Employment

M.D., Tufts University School of Medicine, 1984, Boston, MA B.A., Psychology, Yale University, 1979, New Haven, CT W. K. Kellogg Fellowship John F. Kennedy School of Government Local and State Executive Program Certificate Honorary Doctorate, California Institute of Integral Studies, 2006, San Francisco, CA
Medical Board of California Physician and Surgeon, 1986–Present
Residency, Primary Care/Internal Medicine San Francisco General Hospital University of California, San Francisco, 1984–1987
English and Spanish
California Health Care Foundation Oakland, CA January 2014–Present

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Employment Experience

Chief Executive Officer The San Francisco Foundation September 1997–December 2013

Assistant Clinical Professor School of Medicine University of California, San Francisco July 1992–Present

Director of Health City and County of San Francisco Department of Public Health January 1994–August 1997

County Health Officer and Deputy Director Community Public Health Services and AIDS San Francisco Department of Public Health November 1992–January 1994

Acting Medical Director Community Public Health Services San Francisco Department of Public Health September 1991–November 1992

Director, AIDS Office San Francisco Department of Public Health February 1990–November 1992

Branch Chief, Health Resources and Services AIDS Office San Francisco Department of Public Health 1988–1990

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Current Appointments and Public Service
Healthy California for All Commission Commissioner December 2019–Present
United States of Care Founder’s Council March 2018–Present
Well Being Trust Advisory Council March 2018–Present
Covered California Board of Directors February 2018–Present
National Academy of Medicine Planning Committee for the Future of Health Services Research July 2017–Present
Board of Regents, University of California Health Services Committee March 2016–Present
West Coast Healthcare Executive Summit Member 2014–Present
Public Policy Institute of California Statewide Leadership Council April 2011–Present
First Republic Bank Board of Directors August 2010–Present
Institute for Global Health Sciences Advisory Council University of California, San Francisco 2009–present
Western Asbestos Settlement Trust Appointed Trustee California Superior Court April 2004–Present

Academic Appointments

Clinical and Translational Science Institute Clinical Research Center

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Past Appointments and Public Service

External Advisory Board University of California, San Francisco 2007–2017
San Francisco General Hospital Faculty, Department of Medicine Medical Attending AIDS Clinic (Ward 86) 1987–2016
Pediatric Leadership for the Underserved Advisory Council University of California, San Francisco 2006–2016
Program in Medical Education for the Urban Underserved Advisory Council University of California, San Francisco 2006–2016
Chancellor’s Advisory Board University of California, San Francisco 2010–2014
Campus Facilities Improvement Association University of California, San Francisco 2008–2012
Betty Irene Moore School of Nursing at UC Davis National Advisory Council 2016–2019
Health IT Strategic Planning and Innovation Workgroup Member 2014–2017
Yale University University Council Member 2011–2016
Blue Shield of California Foundation Board of Directors 2010–2014

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The Center for Investigative Reporting Board of Directors 2011–2014
Federal Reserve Bank of San Francisco Economic Advisory Councilmember 2011–2014
National Academy of Sciences Institute of Medicine Committee on Implementation of Antiviral Medication Strategies for an Influenza Pandemic 2007–2008
Council on Foundations Board of Directors Committee on Inclusiveness, Ethics and Practices 2006–2009
Co-Chair, Mayor’s Universal Healthcare Council San Francisco Health Access Plan Mayor Gavin Newsom 2006
Chair, Mayor’s Blue-Ribbon Committee on the Future Location of San Francisco General Hospital Mayor Gavin Newsom 2005
National Academy of Sciences Institute of Medicine Committee on the Consequences of the Uninsured 2003–2004
Lucile Packard Children’s Hospital Board of Directors and Chair of Public Policy Committee 2003–2010
Corporation for Supportive Housing Board of Directors, Chair Governance Committee 1997–2008
Blackbaud, Inc. Board of Directors and Audit Committee 2002–2006
California State Senate-Appointed Member Managed Risk Medical Insurance Board 1998–2007

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Honors / Awards

Kaiser Permanente Member, National Advisory Council on Professional and Organizational Ethics 1997–2003
Grantmakers in Health Board of Directors 1998–2003
Presidential Appointee President Clinton’s Commission on Quality and Consumer Protection in the Health Industry Co-Chair, Subcommittee on Roles and Responsibilities of Public/Private Care Purchasers and Oversight Organizations 1997–1998
San Francisco Health Plan Founding Chair, Board of Directors 1995–1998
Scientific Advisory Committee on Antiviral Therapy Federal Drug Administration 1995–1998
San Francisco Business Times Most Admired CEO 2019
University of California, San Francisco Alumni Excellence Award 2015
Openhouse, San Francisco Adelman/Gurevitch Founders Award 2015
Hispanic Business Magazine Woman of the Year 2008
Tufts Medicine Magazine Cover 2008
San Francisco Planning and Urban Research Association Silver Spur Award 2008

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Women Healthcare Executives Woman of the Year 2007 Modern Healthcare Magazine One of Ten Healthcare Leaders for the Next Century: Up and Comers 1997 League of Women Voters of San Francisco Women Who Could Be President Award 1993

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WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org SEAN RIORDAN (SBN 255752) sriordan@aclunc.org ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: (415) 553-9319 Facsimile: (415) 553-9810

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUBI RUIZ TOVAR, LAWRENCE KURIA MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,

CASE NO. 3:20-CV-02731-VC
DECLARATION OF SARAH H. ALLEN, M.D. IN SUPPORT OF PETITIONERS-PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Petitioners-Plaintiffs,

v.

DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,

Respondents-Defendants.

CASE NO. 3:20-CV-02731-VC DECLARATION OF SARAH ALLEN, M.D.

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BREE BERNWANGER* (NY SBN 5036397) bbernwanger@lccrsf.org HAYDEN RODARTE (SBN 329432) hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA 131 Steuart St #400 San Francisco, CA 94105 Telephone: (415) 814-7631
JUDAH LAKIN (SBN 307740) judah@lakinwille.com AMALIA WILLE (SBN 293342) amalia@lakinwille.com LAKIN & WILLE LLP 1939 Harrison Street, Suite 420 Oakland, CA 94612 Telephone: (510) 379-9216 Facsimile: (510) 379-9219

MARTIN S. SCHENKER (SBN 109828) mschenker@cooley.com COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111 Telephone: (415) 693-2000 Facsimile: (415) 693-2222
TIMOTHY W. COOK* (Mass. BBO# 688688) tcook@cooley.com FRANCISCO M. UNGER* (Mass. BBO# 698807) funger@cooley.com COOLEY LLP 500 Boylston Street Boston, MA 02116 Telephone: (617) 937-2300 Facsimile: (617) 937-2400

JORDAN WELLS (SBN 326491) jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568) spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA 1313 West Eighth Street Los Angeles, CA 90017 Telephone: (213) 977-9500 Facsimile: (213) 977-5297

Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice

CASE NO. 3:20-CV-02731-VC DECLARATION OF SARAH ALLEN, M.D.

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DECLARATION OF SARAH ALLEN, M.D.
I, Sarah Allen, declare as follows:
1. I am a Professor of Medicine in the Division of Infectious Diseases at the University of New Mexico. I am a member of the Infectious Diseases Society of America.
2. I earned a Bachelor’s degree and a Master’s degree from Stanford University. I earned a Medical Degree from the University of Louisville School of Medicine. I completed my residency in Internal Medicine and my fellowship in Infectious Diseases at the University of New Mexico. I have spent the past 31 years treating patients, conducting research, and teaching medical students, residents and fellows in the field of Infectious Diseases.
3. I am licensed to practice medicine in the states of New Mexico and Texas. I am board certified in internal medicine and infectious diseases. I continue to maintain my medical practice. I am on the staff of a university hospital with over 500 beds and four intensive care units. I regularly treat critically ill patients with a variety of infections caused by bacteria, fungi and viruses, and consult and advise on the treatment and infection control of hospitalized patients with severe acute respiratory syndrome coronavirus 2, SARS-CoV-2 (“COVID-19”).
4. I have published scholarly articles, review articles, a book, and book chapters, and other scholarly writings on issues relating to the care of Infectious Disease patients. A copy of my curriculum vitae is attached as Exhibit A.
5. I am not being compensated for providing my testimony in this case.
6. In support of this declaration, I have relied on my scientific and specialized knowledge, skill, experience, training, and education. I have also reviewed the following materials:
a. Declarations of Fermin Trujilo Lopez, Gilberto Pablo Perez, Jose Mejia Rosas, Juan Aguilar Castaneda, Livia Pinheiro, Maynor Oxlaj Siguantay, Pravindar Singh, Arias Marroquin, Asif Masoom Qazi, and Aylaliyah Burru:
b. Defendants’ Responses to Plaintiffs’ Initial Set of Interrogatories; Defendants’ Supplemental Responses to Plaintiffs’ Initial Set of Interrogatories; Defendants’ Second Supplemental Responses to Plaintiffs’ Initial Set of Interrogatories; Defendants’ Third Supplemental Responses to Plaintiffs’ Initial Set of Interrogatories; Yuba Detainee List 5.15.2020; and MV Detainee List 5.15.2020.
c. Defendants’ Response to Plaintiffs’ Memorandum on Common Issues in Bail Review Process.
A. COVID-19 is Caused by a Newly Discovered Virus That Spreads Rapidly.
7. COVID-19 is disease caused by a novel coronavirus that first emerged in Wuhan, China in December 2019. Coronaviruses are a family of viruses that are known to cause respiratory
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infections. There is currently no vaccine or cure for COVID-19. Current treatment is supportive. Clinical research into various medications, vaccines, respiratory support and management of multi-organ failure is actively ongoing.
8. COVID-19 is a highly contagious virus that is transmitted from person to person. The virus is most commonly contracted when a person inhales respiratory droplets or small droplet nuclei. The virus may also infect by coming in contact with human mucous membranes, primarily from a person touching an infected surface and then touching his or her face (mouth, nose or eyes mucus membranes). Evidence indicates that aerosolized COVID-19 can remain suspended and viable in the air for hours, and on surfaces for up to three days or longer, depending on the surface.1 These numerous modes of transmission of COVID-19 have resulted in extremely high viral infectivity.
9. Due to the ease with which COVID-19 is transmitted, the human population’s current lack of specific immunity to this novel virus, and the lack of a vaccine, COVID-19 has reached pandemic levels around the globe and in the United States. As of the date of this declaration, there are more than 5 million known COVID-19 cases in the world; 1,551,853 known COVID19 cases in the United States; and 93,439 reported COVID-19 related deaths in the United States.2 Due to limited testing in the United States and globally, these numbers are believed to be underestimates of the actual number of cases and related deaths.
B. COVID-19 Affects More Than the Lungs.
10. COVID-19 is a respiratory illness caused by a virus that enters the body via respiratory, oral, and eye mucous membranes. The virus adheres to the outer membranes of human cells, then invades the cell where it takes over cellular machinery and makes numerous copies of itself before leaving the cell (the cell may then undergo apoptosis or cellular death) to infect other cells in a similar fashion. Mathematically, this viral infection is exponential, on a number’s scale, akin to a nuclear reaction.
11. In an effort to control this type of overwhelming viral infection, the body’s immune system responds to COVID-19 cellular infection by production of cytokines which are a variety of substances secreted by immune system cells. Cytokines are intended to help the host fight the viral infection. However, when the immune system’s response is too robust, the cytokine response can lead to the so-called “cytokine storm” which can be disadvantageous to the host, cause a rapid deterioration in the patient’s condition (around symptom day 10), and can result in death.3
12. Coronavirus infection is not limited to the lungs but infects multiple organ systems, including the cardiovascular system and the kidneys. COVID-19 is known to create a hypercoagulable state resulting in inappropriate clotting of the blood, thereby causing strokes,
1 Aerosol and Surface Stability of SARS-COV-2 as Compared with SARS-CoV-1. N. Engl. J. Med. (Apr. 16, 2020) https://www.nejm.org/doi/full/10.1056/NEJMc2004973?query=featured_home 2 Johns Hopkins University, Coronavirus Resource Center, https://coronavirus.jhu.edu/map.html. 3 Mason RJ. Pathogenesis of COVID-19 from a cell biologic perspective. Eur Respir J 2020; in press (https://doi.org/10.1183/13993003.00607-2020).
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even in young people. Other manifestations of the COVID-19 hypercoagulable state include deep venous thrombosis, pulmonary embolism, and infarcts in the blood supply to the heart, the musculoskeletal system and other parts of the human vascular system.
13. Although elderly patients are at high risk for poor outcomes from COVID-19 infection, COVID-19 can also have devastating effects on otherwise healthy young patients. On March 16, 2020, the CDC reported that 38% of the then-current COVID-19 hospitalizations in the United States were in patients between 20 and 54 years of age.4 In New York State, approximately onethird of COVID-19 fatalities are in in patients younger than 70.5
14. A common indication for hospitalization in COVID-19 patients is bilateral interstitial pneumonia with hypoxia (low oxygen saturation) and systemic inflammatory response syndrome, frequently requiring intensive care life support with artificial respiration, medication support for severe shock, extracorporeal membrane oxygenation (ECMO), and dialysis. Many of these cases are ultimately fatal.
15. Even for those COVID-19 patients who do recover, hospitalization and intensive care treatment for COVID-19 patients takes a considerable toll on patients, medical resources, and medical personnel. The requirement for mechanical ventilation can cause long-term lung functionality damage and other organ damage. Some of these COVID-caused conditions will either kill the patient or cause long-term medical problems, such as compromised hearts, strokes, limb weakness, brain damage, among other effects.
C. Many Common Preexisting Medical Conditions Place Patients at Increased Risk of Severe Clinical Outcomes from COVID-19.
16. I am aware that in this litigation, the Defendants have taken the position that only the following nine medical or environmental conditions increase a person’s vulnerability to a severe outcome upon contracting COVID-19: (1) being 65 years of age or older; (2) living in a nursing home or long-term care facility; (3) chronic lung disease or moderate to severe asthma; (4) serious heart conditions; (5) being immunocompromised; (6) severe obesity (defined as having a body mass index of 40 or higher); (7) diabetes; (8) chronic kidney disease undergoing dialysis; and (9) and liver disease. I am also aware that Defendants claim to rely on information from the Centers for Disease Control and Prevention (CDC) to support this position. However, to my knowledge, the CDC lists a far broader range of medical conditions that can increase vulnerability to COVID-19, and moreover, that there are additional conditions beyond those listed by the CDC that, according to recognized sources in the medical literature, are also associated with worse outcomes. These conditions that increase a person’s medical vulnerability to COVID-19 include those discussed below.
4 Maragakis, L., Coronavirus and COVID-19: Younger Adults Are At Risk, Too; https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus/coronavirus-and-covid-19-youngeradults-are-at-risk-too. 5 New York State Department of Health, Fatalities, https://covid19tracker.health.ny.gov/views/NYS-COVID19Tracker/NYSDOHCOVID-19Tracker-Fatalities?%3Aembed=yes&%3Atoolbar=no
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17. Asthma: Asthma is a chronic medical condition in which a person’s airways become inflamed. Inflammation results in extra mucous production, which can make breathing difficult and trigger coughing and shortness of breath. Asthma is generally not considered curable and requires chronic management. Patients with asthma are at an increased risk of a severe outcome if they contract COVID-19.6 COVID-19 infection, with or without pneumonia, can trigger an asthma attack which can be difficult to manage.
18. Diabetes: Type 1 and type 2 diabetes both cause chronic multi-organ system damage, which includes impairment of the immune system, and the cardiovascular and renal systems disease. The CDC has recognized diabetes as a risk factor for severe COVID-19.7 Diabetes is the second most common comorbidity present in COVID-19 fatalities in New York State, presenting in more than 8,000 deaths, more than 1/3 of every recorded fatality in New York.8 Those numbers are even higher than earlier data. In a February 2020 study of 52 patients in Wuhan, China, 22% of non-survivors had diabetes.9 A review of later studies found a twofold increase in the incidence of patients in intensive care having diabetes, and a threefold increase in mortality with patients with diabetes compared to the general mortality of COVID-19 in China.10 In the United States, a study of 1122 patients admitted to 88 U.S. hospitals between March 1, 2020 and April 6, 2020 showed approximately 40% had diabetes or uncontrolled hyperglycemia on admission, and death rates were more than four times higher among this same group compared to patients with normal glucose control.11
Pre-diabetes is a condition in which there is already measurable glucose intolerance, and is essentially on a spectrum with type 2 diabetes. (Prediabetes is diagnosed when the hemoglobin AIC is between 5.7 and 6.4%; type 2 diabetes is diagnosed when the hemoglobin AIC is 5.7% or higher.) It has been established that patients with prediabetes have increased complications with cardiovascular disease. As discussed above, uncontrolled hyperglycemia, which would be expected to include patients with pre-diabetes, is associated with increased risk for severe COVID-19 disease. For these reasons, it is expected that pre-diabetics will also be found to have worse outcomes when compared to patients with normal glucose though given the novelty of the virus there is insufficient data at this time.
19. HIV: Patients with human immunodeficiency virus (HIV) have compromised immune systems. It is expected HIV patients who acquire COVID-19 will be at higher risk for poor outcomes and the CDC and other medical experts have recognized HIV as a risk factor for severe
6 CDC, “Coronavirus Disease 2019: People Who Are At Higher Risk,” https://www.cdc.gov/coronavirus/2019ncov/need-extra-precautions/people-at-higher-risk.html. 7 Id. 8 New York Department of Health, Fatalities Tracker. https://covid19tracker.health.ny.gov/views/NYS-COVID19Tracker/NYSDOHCOVID-19Tracker-Fatalities?%3Aembed=yes&%3Atoolbar=no 9 Yang X, Yu Y, Xu J, et al. Clinical course and outcomes of critically ill patients with SARS-CoV-2 pneumonia in Wuhan, China: a single-centered, retrospective, observational study, Lancet, (Feb. 24, 2020) https://www.thelancet.com/journals/lanres/article/PIIS2213-2600(20)30079-5/fulltext 10 Madsbad S., COVID-19 Infection in People with Diabetes, Touch Endocrinology, https://www.touchendocrinology.com/insight/covid-19-infection-in-people-with-diabetes/ 11 Bode B, Garrett V, Messler J, McFarland R, et al. Glycemic Characteristics and Clinical Outcomes of COVID-19 Patients Hospitalized in the United States; https://glytecsystems.com/wp-content/uploads/JDST-Glytec-CovidResearch.pdf
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COVID-19.12 HIV disease itself is associated with metabolic derangements that cause the same comorbidities that are established to increase risk of COVID-19 morbidity and mortality, including diabetes, hypercholesterolemia, cardiovascular disease, and hypercoagulability.
20. Obesity: Obesity is defined as a body mass index above 30. People with obesity are at risk for severe outcomes, in part because they have higher resistance in their airways, lower lung volumes, and weaker respiratory muscles—all features that are critical to fight COVID-19. Obese patients are more likely to develop pneumonia. Though the CDC only lists severe obesity (body mass index over 40) as a risk factor,13 recent medical data suggests the risk of severe COVID-19 begins at a lower level of obesity. A recent study of 3,615 COVID-19 patients at a New York City hospital revealed that patients younger than 60 with a body mass index between 30-34 were 2.0 and 1.8 times more likely to be admitted to acute care and to critical care, respectively, compared to individuals with a body mass index less than 30.14 Likewise, patients younger than 60 with a body mass index greater than 35 were 2.2 and 3.6 times more likely to be admitted to acute care and to critical care, respectively, compared to patients in the same age category who had a mass body index less than 30. The study concluded that obesity, not just severe obesity, is a previously unrecognized risk factor for hospital admission and need for critical care.
21. Hypertension: Hypertension, or high blood pressure, occurs when the body’s arterioles narrow or stiffen, causing blood to exert excessive pressure against the vessel walls, forcing the heart to work harder. The American College of Cardiology (ACC) and American Heart Association (AHA) have defined hypertension as systolic readings (the upper number) of 130139 mm Hg or diastolic readings (the lower number) of 80-89 mm Hg.15 The ACC/AHA revised
12 CDC, “Coronavirus Disease 2019: People Who Are At Higher Risk,” https://www.cdc.gov/coronavirus/2019ncov/need-extra-precautions/people-at-higher-risk.html. 13 CDC, “Coronavirus Disease 2019: People Who Are At Higher Risk,” Apr. 15, 2020, at https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html 14 Lighter, J. et al., Obesity in patients younger than 60 years is a risk factor for Covid-19 hospital admission, Clinical Infectious Diseases, (Apr. 9, 2020) https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7184372/pdf/ciaa415.pdf 15 “2017 ACC/AHA/AAPA/ABC/ACPM/AGS/APhA/ASH/ASPC/NMA/PCNA Guideline for the Prevention, Detection, Evaluation, and Management of High Blood Pressure in Adults: A Report of the American College of Cardiology/American Heart Association Task Force on Clinical Practice Guidelines,” J. of American College of Cardiology 2018;71:e127-e248, May 7, 2018, at https://www.acc.org/latest-in-cardiology/ten-points-toremember/2017/11/09/11/41/2017-guideline-for-high-blood-pressure-in-adults. See also Lei Fang et al., “Are Patients with Hypertension and Diabetes Mellitus at Increased Risk for COVID-19 Infection?” The Lancet, Mar. 11, 2020 at https://www.thelancet.com/journals/lanres/article/PIIS2213-2600(20)30116-8/fulltext; Ying-Ying Zheng et al., “COVID-19 and the Cardiovascular System,” Nature Reviews: Cardiology, Mar. 5, 2020, at https://www.nature.com/articles/s41569-020-03605?fbclid=IwAR3w4wcTno9A798v1fuYbALPLUHU5dNsVNVFKDc6GW-6yED2mXcyxrJY7dc (“In one study, among the patients with severe symptoms of COVID-19, 58% had hypertension. . . According to mortality data released by the [National Health Commission of China], 35% of patients with SARS-CoV-2 infection had a history of hypertension.”); Fei Zhou et al., “Clinical Course and Risk Factors for Mortality of Adult Inpatients with COVID-19 in Wuhan, China: A Retrospective Cohort Study,” The Lancet, Vol. 395, Issue 10229, Mar. 28-Apr. 3, 2020, at https://www.sciencedirect.com/science/article/pii/S0140673620305663 (“Comorbidities were present in nearly half of patients [hospitalized with a severe form of COVID-19 in one study], with hypertension being the most common comorbidity”).
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guidelines require two elevated readings for a finding of hypertension.16 (Even a blood pressure reading of 120/80 is now considered abnormal and is labeled as “prehypertension.”) The CDC and various studies have recognized hypertension as a comorbidity associated with heightened risk of severe COVID-19, adverse outcomes, and case fatality.17 In particular, case fatality has been found to be seven times higher for individuals with hypertension than for those without comorbidities.18 Hypertension is the most common comorbidity in COVID-19 fatalities in New York State.19 As data from the New York Department of Health indicates, hypertension of a comorbidity for patients across all age ranges, with over 1,000 patients younger than 60 with hypertension dying from COVID-19.20 Hypertension is a serious risk for patients, independent of the patient’s age.
22. Cardiovascular disease or heart conditions: Cardiovascular disease is also a common comorbidity in patients with severe COVID-19 outcomes.21 Pre-existing cardiovascular disease include history of heart attack, stroke, arrhythmia, or congestive heart failure. Cardiovascular disease was a common comorbidity in patients with two previous coronaviruses, SARS and MERS.22 23 Early COVID-19 data suggests a similar association between pre-existing cardiovascular disease and severe clinical outcomes. In addition, COVID-19 can actually cause each of these conditions as well. One study concluded that myocardial injury was present in more than a quarter of critical cases and presented in two patterns: acute myocardial injury and dysfunction on presentation, and myocardial injury that develops as illness severity intensifies.24
23. History of Smoking: Smoking and e-cigarette use increases the risk and severity of pulmonary infections because of damage to the upper airways. Smoking also causes a decrease in pulmonary immune function. Previous studies demonstrated that smokers had a higher risk of infection and mortality from the coronavirus MERS.25 Medical research suggests a similar risk
16 Id. (“Prior to labeling a person with hypertension, it is important to use an average based on ≥2 readings obtained on ≥2 occasions to estimate the individual’s level of BP.”). 17 “Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease,” dated March 30, 2020, at https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html. 18 Id. (citing Novel Coronavirus Pneumonia Emergency Response Epidemiology T. [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.). 19 New York Department of Health, Fatalities Tracker. https://covid19tracker.health.ny.gov/views/NYS-COVID19Tracker/NYSDOHCOVID-19Tracker-Fatalities?%3Aembed=yes&%3Atoolbar=no 20 Id. 21 CDC, “Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19)” (updated Apr. 6, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-managementpatients.html (identifying cardiovascular disease as a “Risk Factor[] for Severe Illness” and “associated with increased illness severity and adverse outcomes,” with a case fatality rate of 10.5% compared to 0.9% absent comorbidities); CDC, “Coronavirus Disease 2019: People Who Are At Higher Risk,” https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html (individuals with “serious heart conditions” at higher risk for severe COVID-19). 22 Chan JWM, et al.. Short term outcome and risk factors for adverse clinical outcomes in adults with severe acute respiratory syndrome (SARS). Thorax. 2003;58:686-689 23 Booth CM, et al., Clinical features and short-term outcomes of 144 patients with SARS in the greater Toronto area. Jama. 2003;289:2801-2809. 24 Clerkin K. et al., Coronavirus Diease 2019 (COVID-19) and Cardiovascular Disease, AHA Journal, https://www.ahajournals.org/doi/pdf/10.1161/CIRCULATIONAHA.120.046941 25 Park JE, Jung S, Kim A, Park JE. MERS transmission and risk factors: a systematic review. BMC Public Health. 2018;18(1):574. .doi: 10.1186/s12889-018-5484-8.
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between smoking and severe clinical outcomes for COVID-19 patients and the CDC has recognized a history of smoking as a risk factor for severe COVID-19.26 A recent meta-analysis of COVID-19 studies associated smoking and progression of COVID-19, with smokers having 1.91-times the odds of progression of COVID-19 severity than non-smokers.27 The study concluded that “among those people assessed as smokers[,] risk of disease progression is significantly increased.”28
24. Cancer: COVID-19 patients with cancer are vulnerable to severe clinical outcomes.29 Cancer patients are generally considered to have a suppressed immune system which may be multifactorial as a result of the cancer itself or as a result of treatment. A recent study of patients in 14 hospitals in Wuhan, China revealed that compared with COVID-19 patients without cancer, patients with cancer had higher observed death rates, higher rates of ICU admission, higher rates of having at least one severe or critical symptom, and higher chances of requiring mechanical ventilation.30 The study concluded that “patients with cancer deteriorated more rapidly than those without cancer.”31 In addition, COVID-19 infection in patients with cancer would be expected to increase the mortality and morbidity from the cancer itself as COVID-19 infection would be expected to delay the ability for the patient to undergo a variety of cancer treatments. Patients with active infections are not usually given chemotherapy, and patients with COVID-19 are often restricted from receiving chemotherapy in a cancer clinic with other patients. Chemotherapy is usually given under medical supervision and not at a patient’s home.
25. Chronic kidney disease: Chronic kidney disease has been identified as a risk factor for severe COVID-19.32 Chronic kidney disease impacts the body’s ability to filter blood appropriately, to regulate the body’s fluid and acidic status, to contribute to the production of red blood cells, to regulate and contribute to the production of factors that contribute to bone health, and to contribute to blood pressure control. COVID-19 viral particles have been found at autopsy, indicating the kidney is one of its direct organ targets. Acute kidney injury in COVID19 infection has been shown to result in high levels of protein loss in the urine, hematuria, and
26 CDC, “Coronavirus Disease 2019: People Who Are At Higher Risk,” Apr. 15, 2020, at https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html (CDC affirms that smoking “can cause a person to be immunocompromised” and thus at heightened risk of COVID-19). See also “Smoking or Vaping May Increase the Risk of Severe Coronavirus Infection,” Scientific American (March 17, 2020) at https://www.scientificamerican.com/article/smoking-or-vaping-may-increase-the-risk-of-a-severecoronavirus-infection1/?amp (National Institutes of Health warn that, “[b]ecause it attacks the lungs, the coronavirus that causes COVID-19 could be an especially serious threat to those who smoke tobacco or marijuana or who vape.”). 27 Patanavanich R. et al., Smoking is Associated with COVID-19 Progression: A Meta-Analysis, Nicotine and Tomacco Research, (May 13, 2020), https://academic.oup.com/ntr/advance-article/doi/10.1093/ntr/ntaa082/5835834 28 Id. 29 CDC, “Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19)” (updated Apr. 6, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-managementpatients.html (identifying cancer as a “Risk Factor[] for Severe Illness” and “associated with increased illness severity and adverse outcomes,” with a case fatality rate of 6% compared to 0.9% absent comorbidities). 30 Dai, M., et al., Patients with cancer appear more vulnerable to SARS-COV-2: a multi-center study during the COVID-19 outbreak, American Association for Cancer Research, (Apr. 28, 2020) https://cancerdiscovery.aacrjournals.org/content/early/2020/04/24/2159-8290.CD-20-0422.full-text.pdf 31 Id. 32 CDC, “Coronavirus Disease 2019: People Who Are At Higher Risk,” https://www.cdc.gov/coronavirus/2019ncov/need-extra-precautions/people-at-higher-risk.html.
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impairment of function. A recent cohort study of 701 patients demonstrated an association between kidney disease and in-hospital deaths. Acute kidney injury occurred in 5.1% of patients and “demonstrated that kidney disease had a significantly higher risk for in-hospital death.”33 Patients with pre-existing renal disease requiring hemodialysis, which is usually performed in a dialysis clinic, are at risk for acquiring COVID-19 given the group setting in most dialysis units. Patients with chronic renal failure managed with renal transplant are highly immunosuppressed and also carry a risk for adverse outcomes from COVID-19. Patients with chronic kidney disease, whether managed with dialysis or transplant, may be unable to spike a fever when they are ill with an infection. They may be chronically fatigued from the kidney failure, or short of breath from fluid overload. These common characteristics in end-stage renal disease may make it harder to pick-up COVID-19 infection since fever, shortness of breath and fatigue from COVID-19 patients might be inappropriately attributed to the renal disease.
26. Chronic respiratory or lung disease. Patients with chronic lung disease are more susceptible to severe clinical outcomes from COVID-19 infection.34 Lung disease from chronic obstructive pulmonary disease or emphysema, results in obstructed airflow from the lungs, often with shortness of breath and/or hypoxia at baseline. A recent systematic review and metaanalysis demonstrated an association between COPD and COVID-19 severity and mortality.35 Patients with chronic aspiration, which often occurs in patients with neurologic disorders that affect their ability to swallow properly, can have chronic lung disease and would be expected to have a higher morbidity and mortality from COVID-19.
27. Liver disease. Liver disease is common in the United States, often caused by untreated Hepatitis C, alcohol use disorder, or even obesity which can result in “fatty liver.” All of these entities can lead to cirrhosis, which is often underdiagnosed until end-stage liver disease results. Liver disease has been linked to severe COVID-19 outcomes as demonstrated in a recent metaanalysis of 3,428 patients with confirmed COVID-19 cases in China.36 The CDC has recognized liver disease as a risk factor for severe COVID-19.37
28. Hepatitis C: Hepatitis C is a viral infection that can cause liver inflammation but has many extra-hepatic manifestations, such as vasculitis, stroke, ischemic heart disease, renal,
33 Cheng, Y. et al, Kidney disease is associated with in-hospital death of patients with COVID-19, Kidney International, Vol. 97, Issue 5, 829-838 (May 2020) https://www.kidney-international.org/article/S00852538(20)30255-6/fulltext 34 CDC, “Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19)” (updated Apr. 6, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-managementpatients.html (identifying chronic respiratory disease as a “Risk Factor[] for Severe Illness” and “associated with increased illness severity and adverse outcomes,” with a case fatality rate of 6% compared to 0.9% absent comorbidities); CDC, “Coronavirus Disease 2019: People Who Are At Higher Risk,” https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html. 35 Alqahtani, J.S. et al., Prevalence, Severity and Mortality associated with COPD and Smoking in patients with COvid-19: A Rapid Systematic Review and Meta-Analysis, PLOS One, (May 11, 2020), https://journals.plos.org/plosone/article/file?id=10.1371/journal.pone.0233147&type=printable 36 Parohan, M., et al. Liver injury is associated with severe Coronavirus disease 2019 (COVID-19) infection: a systematic review and meta-analysis of retrospective studies, MedRxiv (Apr. 9, 2020) https://www.ncbi.nlm.nih.gov/pubmed/32386449 37 CDC, “Coronavirus Disease 2019: People Who Are At Higher Risk,” https://www.cdc.gov/coronavirus/2019ncov/need-extra-precautions/people-at-higher-risk.html.
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metabolic and central nervous system diseases. Each of these hepatitis C manifestations has also been found in COVID-19 patients. While little has been published about hepatitis C patients who have been infected with COVID-19, we would expect worse outcomes for Hepatitis C patients and the CDC has recognized Hepatitis C as a risk factor for COVID-19.38 The risk of severe clinical outcomes is particularly acute in patients with advanced Hepatitis C with cirrhosis, hepatorenal syndrome, or one of the malignancies seen in Hepatitis C patients such as hepatocellular carcinoma or lymphoma.
29. Immunocompromised Conditions: Patients with immunocompromised systems are at risk for more severe outcomes,39 and in total, these diseases are more common in the general population than one might think. Immunocompromised patients have diminished or incomplete immune system function, which hinders their ability to fight and recover from infections. Immunodeficiency is commonly present in refugee populations (which are among the ICE detainee population and also share some characteristics) from malnutrition. There are many additional, often common, diseases or conditions that can cause immunodeficiency including diabetes, human immunodeficiency virus (HIV), cancer, inflammatory bowel disease such as Crohn’s disease or chronic ulcerative colitis, rheumatoid arthritis, lupus, other autoimmune disorders, end-stage renal disease, Cushing’s disease or Cushing’s syndrome with high cortisol production, genetic diseases such as Trisomy 21 (Down’s syndrome), diseases that require steroid administration such as COPD, adrenal insufficiency, antibody deficiencies, medications that suppress their white cell counts (neutropenia), diseases requiring “biologic agents” or other immunosuppressives such as psoriasis or psoriatic arthritis.
30. Autoimmune disorders: Patients with any number of autoimmune disorders are at risk of severe COVID-19 outcomes because their immune systems have limited ability to fight disease. Several of these diseases are discussed in detail in the above paragraph.
31. Endocrine disorders: In addition to diabetes, other disorders that are likely to be associated with more severe COVID-19 infection include adrenal insufficiency (Addison’s disease) which requires steroid replacement. It would also be expected that patients with Cushing’s Disease or Cushing’s syndrome, which creates excessive cortisol states, would likely experience increased risk as these disorders are associated with immunodeficiency from the cortisol.40
32. Corticosteroid use and use of other immune modulating medications are believed to place such patients at higher risk for COVID-19 morbidity and mortality as discussed in the section above on immunocompromised conditions as well as the section on chronic lung diseases.41
38 Id. 39 CDC, “Implementation of Mitigation Strategies for Communities with Local COVID-19 Transmission,” Mar. 12, 2020, at https://www.cdc.gov/coronavirus/2019-ncov/downloads/community-mitigation-strategy.pdf, 10. 40 Id. 41 CDC, “Coronavirus Disease 2019: People Who Are At Higher Risk,” https://www.cdc.gov/coronavirus/2019ncov/need-extra-precautions/people-at-higher-risk.html
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33. History of head injuries: Individuals with a history of head injuries may be at heightened risk for severe COVID-19 outcomes although research in this area has been limited thus far. However, neurologic and central nervous system damage is known to be caused by COVID-19. COVID-19 is expected to further impair patients with pre-existing brain damage. Examples of such “acute on chronic” manifestations in neurologic disease can be seen when patients with pre-existing brain damage suffer from hypoxia (low oxygen), or infection in the brain. Expected manifestations might include increase risk of seizures as well as further limitations of intellectual ability, and ability to perform activities of daily living, requirement for increased assistance by caretakers.
34. Prior organ transplant. Organ transplant recipients are at high risk for infection and poor outcomes.42 Transplant recipients require immunosuppressive therapy to prevent organ rejection. Transplant recipients usually have other co-morbidities, such as from the disease that may have caused the original organ damage. Research regarding the association between transplant recipients and severe COVID-19 outcomes is ongoing. But early research indicates an strong association between transplant and severe outcome. A study of 90 transplant recipients with COVID-19 in New York City hospitals were compared to international cohorts of nontransplant patients hospitalized with COVID-19 with transplant patients in New York City showing higher rates of severe disease (39% vs. 6.1%) and mortality (24% v. 1.4%-4.3%).43
35. Blood disorders: Patients with relatively common blood disorders such as sickle cell and thalassemia are very likely at increased risk for severe COVID-19 outcomes.44 Hemoglobin disorders can lead to multi-organ complications including kidney, heart, and liver disease that are established risk factors for severe COVID-19.45 Sickle cell disease is further associated with veno-occlusive disease, strokes and thromboembolic disease and these sickle cell complications are likely to be triggered by COVID-19 induced hypoxia (low oxygen). Data is currently being collected by the international COVID-19 sickle cell disease registry and by the ASH Registry.
36. Neurological and neurodevelopment conditions: Neurological disorders, such as cerebral infarction and dementia and a history of stroke, place patients at heightened risk of severe COVID-19 complications. Cerebral infarction damages the tissues in the brain due to loss of oxygen. Recent data from Wuhan, China, reported neurological complications in 36% of 214 patients with COVID-19; acute cerebrovascular disease (mainly ischemic stroke) was more common among 88 patients with severe COVID-19 than those with non-severe disease (5.7% vs 0.8%).46 Neurodevelopmental conditions, such as intellectual disabilities and moderate to severe developmental delay, are also believed to be risk factors for severe COVID-19.
42 Id. 43 Pereira, M.R. et al., COVI-19 in solid organ transplant recipients: Initial report from the US epicenter, American Journal of Transplantation, (Apr. 24, 2020) https://doi.org/10.1111/ajt.15941 44 CDC, “Implementation of Mitigation Strategies for Communities with Local COVID-19 Transmission,” Mar. 12, 2020, at https://www.cdc.gov/coronavirus/2019-ncov/downloads/community-mitigation-strategy.pdf, 10. 45 CDC, Groups at Higher Risk, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-athigher-risk.html#hemoglobin-disorders 46 Mao L , Jin H , Wang M , et al . Neurologic manifestations of hospitalized patients with coronavirus disease 2019 in Wuhan, China. JAMA Neurol 2020 (Apr. 11, 2020), https://jamanetwork.com/journals/jamaneurology/fullarticle/2764549
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37. Age: Most press accounts have classified the risk to elderly COVID-19 to include only very elderly patients. I understand that Defendants have taken the position that anyone younger than 65 is not vulnerable to severe COVID-19 infection outcome based on age. The medical research does not support this theory. While the very elderly in their 80’s are most at risk for death, the median age of hospitalized patients with severe COVID-19 in a large retrospective study in China was only 52 years.47 The case fatality rate for individuals aged 60-69 hovers around 3.5%, an alarmingly high rate.48 Based on evolving data, researchers recently concluded that while morbidity may be highest for society’s oldest members, “anyone older than 50 is far from safe.”49 Age should be understood as a spectrum of risk. The older the patient, the more likely they are to be hospitalized or have severe clinical outcomes. My interpretation of the data is that starting at 40 years of age, patients have an increasingly higher risk for poor outcome.50
38. High Cholesterol. High serum cholesterol is associated with severe COVID-19 outcomes. About 25-30% of lipids in our cell membranes is made of cholesterol. Early research suggests that high cholesterol enhances binding of COVID-19 to the cell surface in the endocytic pathway by facilitating viral entry.51 Data from New York state identifies hyperlipidemia as the third most common comorbidity among COVID-19 fatalities.52
39. Tuberculosis: Tuberculosis, both active and latent, is a medical vulnerability for COVID-19 patients. Tuberculosis is a disease caused by a bacteria that attacks the lungs. It too is highly contagious. Tuberculosis can damage the immune system and make patients more vulnerable to infectious diseases. Early studies of confirmed cases in Shenyang, China found that Mycobacteria tuberculosis, the pathogen that causes tuberculosis, was present in 36.11% of COVID-19 cases in the study, including 7 of 9 severe cases. The study concluded that tuberculosis (active and latent) increased both a patient’s susceptibility to COVID-19 and increased the COVID-19 severity.53
40. Mental illness: Most mental illness has been found to suppress the immune response. Particularly, post-traumatic stress disorder, bipolar, depression, anxiety, and stress affect the immune system by increasing the stress hormone cortisol. Because any impairment of the immune system makes the body more susceptible to virus, patients with pre-existing mental illness are likely susceptible to severe outcomes of COVID-19.
47 Guan W., Ni Z., Hu Y., et al. Clinical characteristics of coronavirus disease 2019 in China. N. Engl. J. Med. (2020) doi: 10.1056/ NEJMoa2002032. 48 Vishnevetsky, Anastasia, and Michael Levy. “Rethinking high-risk groups in COVID-19.” Multiple sclerosis and related disorders, vol. 42 102139. 22 Apr. 2020, doi:10.1016/j.msard.2020.102139 49 Id. 50 See, e.g., CDC, “Laboratory-Confirmed COVID-19-Associated Hospitalizations” (updated May 9, 2020), at https://gis.cdc.gov/grasp/covidnet/COVID19_3.html 51 Wang H., The role of high cholesterol in age-related COVID19 lethality, bioRxiv (May 9, 2020), https://doi.org/10.1101/2020.05.09.086249. 52 New York State Department of Health, Covid-19 Fatalities, https://covid19tracker.health.ny.gov/views/NYSCOVID19-Tracker/NYSDOHCOVID-19Tracker-Fatalities?%3Aembed=yes&%3Atoolbar=no 53 Yu Chen et al., Active or Latent Tuberculosis Increases Susceptibility to COVID-19 and Disease Severity, (Mar. 16, 2020), at https://www.medrxiv.org/content/10.1101/2020.03.10.20033795v1.full.pdf
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The association between mental illness and poor viral suppression manifests in many diseases, including infectious diseases like HIV.54 Depression disorders are similarly associated with worse outcomes in patients with diabetes and coronary heart disease.55 56 Infectious disease doctors expect a similar relationship between mental illness and adverse COVID-19 clinical outcomes.
Mental illness also compounds the difficulties in caring for physical illnesses. Understanding and complying with recommended and necessary treatments can be very difficult for patients with limited coping skills. In addition, COVID-19 patients are supposed to be isolated and unable to have visitors, which further leads to depression.
D. Necessary Precautions for Patients with Preexisting Medical Conditions.
41. Because all COVID-19 patients can potentially experience severe outcomes, everyone should exercise caution, avoid crowds, maintain social distancing, and practice good hygiene. But precautions are particularly important for those with pre-existing medical conditions because they are at risk for a severe outcome if they contract COVID-19.
42. The comorbidities described above affect the lung, immune, and vascular systems. Because the virus attacks the lungs, can trigger a chaotic immune response, and attacks major organs, which has a blood supply (i.e. vascular system), the damage caused by COVID-19 infection is widespread and can lead to multi-system organ damage or death.
43. While masks and other personal protective equipment decrease infectivity rates, they are still insufficient to completely protect people from contracting the virus. A recent study found that surgical and cotton masks were ineffective in filtering COVID-19 during coughs by infected patients.57 The study found a greater contamination on the outer mask surface than inner mask surface. This is likely due to the aerodynamic features and the small aerosols of COVID-19 generated during high-velocity coughs. While N-95 respirator masks likely protect against most particle dissemination, there is a nationwide scarcity of these masks. Based on my review of the current medical literature, the types of masks provided to detainees do not fully or adequately protect against the spread of the virus. While wearing a mask is better than not wearing a mask, it is not a substitute for social distancing.
44. High-risk individuals should avoid crowds to reduce the risk of being exposed. As mentioned, there is no cure for COVID-19. The only meaningful way to protect against infection is to avoid others who are or may be infected. Because of the high rate of
54 Yehia BR, Stephens-Shield AJ, Momplaisir F, et al. Health Outcomes of HIV-Infected People with Mental Illness. AIDS Behav. 2015;19(8):1491‐1500. doi:10.1007/s10461-015-1080-4; https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4527875/ 55 Pouwer F, Nefs G, Nouwen A. Adverse effects of depression on glycemic control and health outcomes in people with diabetes: a review. Endocrinol Metab Clin North Am. 2013;42(3):529–44. 56 Barth J, Schumacher M, Herrmann-Lingen C. Depression as a risk factor for mortality in patients with coronary heart disease: a meta-analysis. Psychosom Med. 2004;66(6):802–13. 57 Bae. S. et al., Effectiveness of Surgical and Cotton Masks in Blocking SARS-CoV-2: A Controlled Comparison in 4 Patients, Annals of Internal Medicine, (Apr. 6, 2020)
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asymptomatic transmission, any densely crowded area is dangerous. That risk is intensified in crowded, indoor facilities because individuals are exposed to more viral particles.
45. I understand there has been virtually no testing performed at Mesa Verde and Yuba County Jail. That is dangerous and irresponsible. Because the virus can be transmitted by asymptomatic carriers, there is a very real risk of mass infection.
46. I have reviewed the interrogatory responses and spreadsheets documenting the population levels at Mesa Verde and Yuba County Jail. The conditions at Mesa Verde and Yuba County Jail are ripe for outbreak. These are densely populated, indoor facilities, with prolonged, close interaction between inhabitants, and no way to evaluate for asymptomatic infectious carriers.
47. An outbreak at Mesa Verde and Yuba County (if it has not happened already) is very likely. Any person currently detained with pre-existing medical conditions is at high risk of death or severe complications, such as organ failure, lung failure, heart failure, stroke, or requirement of mechanical ventilation. Approximately 80% of COVID-19 patients placed on ventilators do not survive.
48. There is a clear association between vulnerable medical conditions and severe or fatal outcomes. Though early, the scientific literature is robust. There is a significant risk that individuals will experience severe complications or die if the current conditions which prevent recommended social distancing and adequate hygiene at these facilities continue unabated.
E. The Impact of COVID-19 on the Medical Infrastructure.
49. An outbreak at Mesa Verde and Yuba County would also severely strain the surrounding medical infrastructure. Treating COVID-19 patients—particularly those with medical vulnerabilities—is resource intensive. Hospitals around the country have been working diligently to source more ICU beds and mechanical ventilators. But the reality is those resources are in high demand at non-pandemic public health levels. An outbreak strains local medical resources and could lead to every physician’s worst nightmare: choosing how to allocate lifesaving medical resources. In my personal experience, I have cared for one patient on extracorporeal membrane oxygenation (ECMO) who is alert and communicative but cannot be weaned from this treatment. This is an emotional issue for providers, the family and the patient, knowing the ECMO machine being used may be taking a survival chance away from another patient.
50. Hospitals also face a shortage of N-95 respirators and other personal protective equipment. Medical professionals treating COVID-19 patients require gloves, medical gowns, respirators, and face shields. Those materials are in short supply. Due to the highly contagious nature of the virus, each treating medical team needs to regown and change personal protective equipment for every patient contact. Thus, each new hospitalized COVID-19 patient contributes to the strain on personal protective equipment and other medical equipment.
51. As of the date of this declaration, only one antiviral drug has been conditionally approved to treat severe COVID-19 symptoms: remdesivir. Remdesivir does not cure COVID-19, but early research suggests it can shorten hospitalization times by about four days. While this may
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seem small to patients and their families, the impact of remdesivir is expected to be high. The ability to reduce hospitalization by four days improves long-term recoveries and allows hospitals to treat more patients.
52. The demand for remdesivir currently outpaces the supply. Hospitals that do have access to remdesivir will have limited quantities. Each new case of COVID-19 potentially takes that limited supply of the drug from another patient. Accordingly, taking all possible steps to limit the spread of COVID-19 is incredibly important while drug research and remdesivir production remains in its early stages.
53. As is well documented, COVID-19 is highly contagious. Each infected person infects two to three other patients on average. The spread of the virus has been exponential. On February 20, 2020, there were 15 cases in the United States; today there are over 1.5 million.58 Protecting detainees from the spread of COVID-19 should not only be viewed through the exclusive lens of protecting that one person; it should also be viewed from the perspective of protecting all people who will be exposed to the virus as a result of that person’s infection. An outbreak at a congregate facility increases the likelihood of spread to other detainers as well as the staff, their families, their neighbors, their faith communities, and the medical personnel and first responders who will ultimately treat them. We have an obligation to take every step possible to protect each person from infection for our common benefit.
54. The paramount concern in preventing an outbreak is saving human life. But treating COVID-19 patients is very expensive for hospitals because it requires increased staffing of nurses, physicians and other support personnel, expensive equipment, and novel treatments. Costs of COVID-19-related ICU admissions range from $20,000-$160,000 per patient.59 Moreover, because COVID-19 disproportionately affect low-income or uninsured patients, hospitals regularly cover these costs. Hospitals around the country have cancelled non-essential operations and visits to focus on treating COVID cases and limit unnecessary exposure to the virus. This has had a severe impact on hospital finances.
55. Further, COVID-19 outbreaks strain the community hospital resources, which leads to business decisions that may ultimately impact certain hospitals’ ability to treat a broader population of patients. Accordingly, an outbreak at Mesa Verde or Yuba County could harm the public by using scarce resources and contributing to difficult choices hospitals must make that affect their ability to treat other patient populations in the future. Moreover, outbreaks can scare patients who would otherwise seek treatment from receiving the care they need. It has already been reported that the rate of patients seeking care for myocardial infarctions has dropped substantially. In one study of Northern California hospitals, the weekly rates of hospitalization for acute myocardial infarctions decreased by up to 48% during the COVID-19 period compared to non-COVID periods.60
58 Johns Hopkins University, Coronavirus Resource Center, U.S. Cumulative Cases, https://coronavirus.jhu.edu/data/cumulative-cases 59 Forman, H., Social Distance: How much does it cost to get COVID-19? The Atlantic, (Apr. 27, 2020). 60 Soloman, M. et al., The Covid-19 Pandemic and the Incidence of Acute Myocardial Infarction, New England Journal of Medicine, Letter Report, (May 19, 2020), https://www.nejm.org/doi/full/10.1056/NEJMc2015630?query=featured_home
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56. The current conditions at Yuba County Jail and Mesa Verde are very dangerous. Every person in those facilities, staff and detainees, is at risk of infection. Multiple medical vulnerabilities exacerbate infection and contribute to a higher likelihood of severe or fatal clinical outcomes. It is very likely people will become infected and die because of the unsafe conditions at these facilities. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct to the best of my information and belief. Signed on May 21, 2020 in Albuquerque, New Mexico.
___________________________ Sarah E. Allen, M.D. Professor of Medicine University of New Mexico Division of Infectious Diseases, DoIM MSC 10-5550, 1 University Albuquerque, New Mexico 87131
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Updated 12/27/2019

CURRICULUM VITAE

SARAH E. ALLEN, MD

Address:

1523 Eagle Ridge RD NE Albuquerque NM 87122

Licensure: Certification:

New Mexico, 88-110, current Texas, M1002, current Republic of Kenya, 7085/95, expired Controlled Substance Registration
Texas: current New Mexico: current DEA: current American Board of Internal Medicine, 10/88 Diplomat in Infectious Diseases, 11/92 Recertification 11/02 and 12/12

Educational History: ID Fellowship 7/89 - 7/91

University of New Mexico Albuquerque, New Mexico Division of Infectious Diseases

Chief Resident 7/88 - 6/89

University of New Mexico Albuquerque, New Mexico Department of Medicine

Residency

7/86 - 6/88

University of New Mexico Albuquerque, New Mexico Internal Medicine

Internship

6/85 - 6/86

Children's Hospital of San Francisco (now Pacific Medical Center) San Francisco, California Internal Medicine

Medical School MD, 1985

University of Louisville School of Medicine Louisville, Kentucky

Undergraduate BA, 1980

Human Biology Stanford University Stanford, California

Graduate School

MS, 1980

Biological Sciences Stanford University Stanford, California

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Employment History:

University of New Mexico Professor of Medicine, 8/2012 – present Director, Outpatient Treatment Center, 2012 - 2015 Director, Outpatient Antibiotic Treatment Center, 2012 - 2015 Director, Fellowship Program in Infectious Diseases, 2012 - 2015 Member, Core Competency Committee, ID Fellowship, 2014-15 Member, Education Committee, ID Fellowship, 2014-2015 *Member, Program Evaluation Committee, ID Fellowship, 2017-present

Baylor College of Medicine Associate Professor of Medicine 2005-2012 Associate Director, Adult Cystic Fibrosis Center 2005-2012 Co-director, Baylor Clinic Infusion Center 2008-2010 Department of Medicine, Division of Infectious Disease

University of New Mexico Professor of Medicine, 6/2005 Associate Professor of Medicine, 7/97-5/2005 Assistant Professor of Medicine, 7/91 – 6/97 Director, Home IV Antibiotic Clinic 7/2000-5/2005, 8/12/2012-11/1/2015 Director, Adult CF Clinic 1/2003-5/2005 Divisions of Infectious Disease/General Internal Medicine Albuquerque, New Mexico

Moi University Visiting Professor August 1995 Eldoret, Kenya

Professional Recognition:

Listed as a “Best Rated Doctors near Albuquerque, New Mexico” www.rate.mds.com/bestdoctors/NM/ALBUQUERQUE#Infectious+Disease

2010 Doctor’s Choice: One of 390 of Houston’s Best Physicians. Health & Fitness Sports Magazine.

2004 Women on the Move Nomination, YMCA, Albuquerque, New Mexico.

Tell us Who’s a Star, University Hospital recognition for clinic personnel, February 11, 2003.

Faculty Teaching Excellence Award for Residency/Fellowship Years, 199899

Valued Employee Nominee, University of New Mexico Hospital, 1996

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Professional Societies: Invited Lectures:

An Apple for the Teacher Certificate of Recognition, University of New Mexico, 1991 – 1992
Upjohn Company Recognition for Teaching, University of New Mexico, 1989
Infectious Diseases Society of America 2012-present
Texas Medical Association 2005-2012
American College of Physicians 1991 – 2000 Council Member 1993 – 1995
Greater Albuquerque Medical Association, Member 1996
Infectious Diseases Society of New Mexico, Member 1996 – 2005, 2012 – present
New Mexico Medical Society Medical-Legal Panel, 1993 – 1995
Parting Shot—Getting Adult Immunizations Right, Update and Review of Internal Medicine, University of New Mexico and Beth Israel Deaconess Medical Center, Santa Fe, October 21, 2018.
The New C. Difficile—Epidemiology, Treatment and Prevention, Update and Review of Internal Medicine, University of New Mexico and Beth Israel Deaconess Medical Center, Santa Fe, October 21, 2018.
C. Diff: Review and Update, 47th Annual Fall Clinics Program, Montrose Memorial Hospital, Montrose, Colorado, September 21, 2018.
Infectious Diseases Potpourri: Hosts, Syndromes, Bugs and Drugs, 47th Annual Fall Clinics Program Montrose Memorial Hospital, Montrose, Colorado, September 21, 2018.
Parting Shot—Getting Adult Immunizations Right, Update and Review of Internal Medicine, University of New Mexico and Beth Israel Deaconess Medical Center, Santa Fe, October 22, 2017.
The New C. Difficile—Epidemiology, Treatment and Prevention, Update and Review of Internal Medicine, University of New Mexico and Beth Israel Deaconess Medical Center, Santa Fe, October 22, 2017.

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Parting Shot—Getting Adult Immunizations Right, Update and Review of Internal Medicine, University of New Mexico and Beth Israel Deaconess Medical Center, Santa Fe, October 16, 2016.
The New C. Difficile—Epidemiology, Treatment and Prevention, Update and Review of Internal Medicine, University of New Mexico and Beth Israel Deaconess Medical Center, Santa Fe, October 16, 2016.
Infections in Triathletes UNM Division of Infectious Diseases, teleconference May 2012
Management of Mycobacterial infections in Post-Lung transplant patients, Infectious Diseases Journal Club, Baylor College of Medicine, Summer 2011.
Lung Transplantation in an HIV patient, Infectious Diseases Journal Club, Baylor College of Medicine, Spring 2010.
Organ donation from infected patients, Infectious Diseases Journal Club, Baylor College of Medicine, Fall 2009
Community Acquired Pneumonia, Pulmonary Fellow Conference, Baylor College of Medicine, 2009.
Multi-drug resistant Pseudomonas bacteremia in the immediate post-operative period in a lung transplant patient, Citywide Infectious Diseases Conference, May 7, 2008.
The Nuts and Bolts of Antibiotics: An Update and Review for Orthopedists, Department of Orthopedic Surgery, Baylor College of Medicine, April 28, 2008. Cystic Fibrosis for Pulmonary Fellows, Baylor College of Medicine, April 21, 2008
Pyoderma gangrenosa, Citywide Infectious Diseases conference, Texas Medical Center, Houston, Texas, April 16, 2008.
Disease Management of Cystic Fibrosis in Adults, St. Luke’s Episcopal Hospital Grand Rounds, Houston, Texas, September 17, 2007.
Patient with Multi-Drug Resistant Pseudomonas, Citywide Infectious Diseases Conference, Texas Medical Center, Houston, Texas, March 28, 2007.
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Patient with Mycobacterial Breast Implant Infection, Citywide Infectious Diseases Conference, Texas Medical Center, Houston, Texas, October 4, 2006.
Cystic Fibrosis for Infectious Diseases Fellows, Baylor College of Medicine, Houston, Texas, March 30, 2006.
Patient with Acute Demyelinating Encephalomyelitis (ADEM), Citywide Infectious Diseases Conference, Texas Medical Center, Houston, Texas, January 25, 2006.
Cerebral Mucor in a Non-immunocompromised Patient with Recurrent Sinusitis, Citywide Infectious Diseases Conference, Texas Medical Center, Houston, Texas, October 6, 2005
HIV for the General Internist, Update and Review of Internal Medicine, University of New Mexico and Beth Israel Deaconess Medical Center, Santa Fe, October 12, 2004. Infectious Diseases Question and Answer, Update and Review of Internal Medicine, University of New Mexico and Beth Israel Deaconess Medical Center, Santa Fe, October 12, 2004.
Antibiotics for Nurse Practitioners, UNM School of Nursing, September 8, 2004.
Antibiotics for Senior PA students, University of New Mexico, August 9, 2004.
Treatment of Gram Positive Infections: The Good and Bad News, Infectious Diseases and General Medicine Pot Pourri, VA Hospital, Albuquerque, June 4, 2004.
Antibiotics for Nurse Practitioners, UNM School of Nursing, May 4, 2004. HIV and Tuberculosis: The Tale of Two Tragedies. UNM Department of Biology, April 29, 2004.
ENT Manifestations of HIV: Davison of Otolaryngology, AIDS Education and Training Center, UNM, Albuquerque, April 19, 2004,
Rational Use of Antibiotics: Lovelace Clinic Foundation, Albuquerque, February 26, 2004.
Antibiotics: Something Old, Something New, UNM Department of Medicine Grand Rounds, January 8, 2004.
Antibiotics Update and Review, Lovelace Clinic Foundation, Albuquerque, November 20, 2003.
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Infectious Diseases Question and Answer, Update and Review of Internal Medicine, University of New Mexico and Beth Israel Deaconess Medical Center, Santa Fe, October 2003.
HIV Update for Internists, Update and Review of Internal Medicine, University of New Mexico and Beth Israel Deaconess Medical Center, Santa Fe, October 2003.
Antibiotics: Review and Update, Update and Review of Internal Medicine, University of New Mexico and Beth Israel Deaconess Medical Center, Santa Fe, October 2003.
Tuberculosis, New Mexico Environmental Health Conference, Albuquerque, October 20, 2003.
Adult Cystic Fibrosis: It Takes An Internist, UNM Department of Medicine Grand Rounds, July 24, 2003. Highly Active Antiretroviral Therapy (HAART) 101, New Mexico AIDS Services, AIDS Education and Training Center, July 22, 2003.
Oral Manifestations of HIV and Basic Biology of HIV, UNM School of Dentistry, AIDS Education and Training Center, June 27, 2003.
HIV and AIDS, UNM Department of Biology students, April 24, 2003.
FUO in and AIDS Patient, Infectious Diseases Society of New Mexico, Albuquerque, April 22, 2003.
Tuberculosis, Presentation to Congresswoman Heather Wilson, Albuquerque, March 7, 2003.
Rational Use of Antibiotics, Presbyterian Hospital CME, February 4, 2003.
Tuberculosis, Health Care for the Homeless, Albuquerque, February 26, 2003.
Tuberculosis: Ancient and Modern Disease, Institute for Medieval Studies, Albuquerque. February 8, 2003.
Antibiotics, St. Joe’s Regional Medical Center, Albuquerque, February 4, 2003.
Vaccines for the Primary Care Provider, 2003 Annual Women’s Health Care Seminar, Albuquerque, January 31, 2003.
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Rational Use of Antibiotics Workshop, 2003 Annual Women’s Health Care Seminar, Albuquerque, January 31, 2003.
November 15, 2002. Rational Use of Antibiotics, CME Presentation, Espanola Hospital, Espanola, New Mexico.
October 20, 2002. Tuberculosis, Update and Review of Internal Medicine, University of New Mexico and Beth Israel Deaconess Medical Center, Santa Fe.
October 20, 2002. Advances in Antiretroviral Therapy, Update and Review of Internal Medicine, University of New Mexico and Beth Israel Deaconess Medical Center, Santa Fe.
October 20, 2002. Infectious Diseases Question and Answer, Update and Review of Internal Medicine, University of New Mexico and Beth Israel Deaconess Medical Center, Santa Fe.
September 25, 2002. Antibiotics: Review and Update, Lovelace Clinic Foundation, Albuquerque.
October 4, 2001. Infectious Disease Q & A, Update and Review of Internal Medicine 2001, Santa Fe.
October 2, 2001. Adult Immunizations, Update and Review of Internal Medicine 2001, Santa Fe.
June 1, 2001. Antibiotics Update, Infectious Diseases Pot Pourri, Albuquerque.
July 12, 2000. Antibiotics. Family Practice Grand Rounds. University of New Mexico, Albuquerque, New Mexico.
June 16, 2000. Adult Immunizations, Infectious Diseases Pot Pourri, Albuquerque.
October 13, 1999. Advances in Antiretroviral Therapy, Update and Review of Internal Medicine, Santa Fe.
October 13, 1999. Infectious Diseases Q & A. Update and Review of Internal Medicine, Santa Fe.
June 8, 1999. Antibiotics for Nurse Practitioners, Midwives and Clinical Specialists. UNM Nursing Education, Kim Litwack RN Director.
October 29, 1999. Antibiotics for Neurosurgeons. Univeristy of New Mexico. Albuquerque, New Mexico.
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June 4, 1999. HIV and Pregnancy. Infectious Diseases Pot Pourri. Albuquerque, New Mexico.
April 22, 1999. Antibiotics—Review and Update. Department of Medicine Grand Rounds.
March 5, 1999. Antibiotics—Review and Update. Advances in Primary Care 1999. Albuquerque, New Mexico.
February 9, 1999. Antibiotic Use for OB/GYN Infections. Department of Obstetrics and Gynecology, Presbyterian Healthcare Services. Albuquerque, New Mexico.
October 14, 1998. Antibiotics. Surgery and Emergency Medicine Grand Rounds. Texas Tech, El Paso, Texas.
October 14, 1998. Tuberculosis. Update and Review of Internal Medicine 1998. Albuquerque, New Mexico.
October 14, 1998. Infectious Diseases Q & A. Update and Review of Internal Medicine 1998. Albuquerque, New Mexico.
September 11, 1998. HIV and Pregnancy. High Risk Obstetrics Conference. Albuquerque, New Mexico.
August 6, 1998. Tuberculosis. University Hospital Clinic Personnel. Albuquerque, New Mexico.
June 12, 1998. Routine Health Maintenance for the Healthy Adult Female. Department of Obstetrics and Gynecology. University of New Mexico, Albuquerque.
June 4, 1998. Antimicrobial Pharmacology. Three Hour Lecture. University of New Mexico College of Nursing.
March 25, 1998. Management of Basic Infections in Primary Care. Center for Alcohol and Substance Abuse and Addictions. Albuquerque, New Mexico.
March 20, 1998. HIV Medications. Advances in Primary Care 1998, Albuquerque, New Mexico.
February 10, 1998. E. Coli 0157:H7. Infectious Diseases Society of New Mexico. Albuquerque, New Mexico.
June 30, 1997. Highly Active Antiretroviral Therapy. Midland, Texas.
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October 16, 1997. Tuberculosis. Update and Review of Internal Medicine 1997, University of New Mexico, Albuquerque, New Mexico.
October 16, 1997. Infectious Diseases Q & A. Update and Review of Internal Medicine 1997, University of New Mexico, Albuquerque, New Mexico.
May 16, 1997. Antibiotic Update. 60th Annual convention, New Mexico Osteopathic Medical Association, Santa Fe, New Mexico.
March 1, 1997. Immunizations: Adult. Advances in Primary Care 1997, Albuquerque, New Mexico.
December 18, 1996. Antibiotics Update. University of New Mexico Department of Family Practice Grand Rounds, Albuquerque, New Mexico.
October 25, 1996. Antibiotics. New Mexico Academy of Physician Assistants, Albuquerque, New Mexico.
October 22, 1996. Internal Medicine Wards in Eldoret, Kenya: Lessons from the Third World. Grand Rounds, St. Vincent’s Hospital, Santa Fe, New Mexico.
October 18, 1996. Antibiotics Update. University of New Mexico Department of Obstetrics and Gynecology Grand Rounds, Albuquerque, New Mexico.
October 8, 1996. HIV-1 and HIV-2 in West Africa. Masters in Public Health Epidemiology Seminar, University of New Mexico, Albuquerque, New Mexico.
July 19, 1996. HIV/AIDS -- Old Realities, New Developments. United States Embassy, Abidjan, Cote d’Ivoire.
June 17, 1996. Women with HIV. Association of Women’s Health, Obstetric and Neonatal Nurses, Albuquerque Chapter, Albuquerque, New Mexico.
June 7, 1996. Routine Adult Immunizations. St. Joseph’s Infectious Diseases Potpourri, Albuquerque, New Mexico.
June 1996. Internal Medicine in Eldoret, Kenya: Lessons from the Third World. University of New Mexico Department of Medicine Grand Rounds, Albuquerque, New Mexico.
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May 23, 1996. Medicine in Kenya. University Hospital Ambulatory Care Center 5th Floor Clinic Staff Meeting, Albuquerque, New Mexico.
May 22, 1996. Early Care of the HIV Patient, Education and Prevention. AIDS Education and Training Center. St. Vincent’s Hospital, Santa Fe, New Mexico.
May 10, 1996. HIV/AIDS Prevention, Early Intervention, and Health Promotion. AIDS Education and Training Center, Taos, New Mexico.
March 22, 1996. HIV/AIDS Prevention, Early Intervention, and Health Promotion. Guadalupe Medical Center, Carlsbad, New Mexico.
March 21, 1996. HIV Update. AIDS Education and Training Center, Memorial Hospital, Las Cruces, New Mexico.
December 14, 1995. Medicine and Life in Kenya. Department of Medicine Staff Meeting, University of New Mexico, Albuquerque, New Mexico. December 8, 1995. Routine Adult Immunizations. American College of Physicians New Mexico Scientific Meeting, Albuquerque, New Mexico.
November 2, 1995. Antibiotic Update. Guadalupe Medical Center, Carlsbad, New Mexico.
August 1995. Disorders of the Spleen and Asplenia. District Hospital, Eldoret, Kenya.
August 1995. HIV/AIDS in the United States. District Hospital, Eldoret, Kenya.
August 1995. Prognostic Labs in African Women with HIV. District Hospital, Eldoret, Kenya.
April 1995. Disorders of the Spleen and Asplenia. University of New Mexico Department of Medicine Grand Rounds, Albuquerque, New Mexico.
March 18, 1995, Antibiotic Update. Advances in Internal Medicine, Albuquerque, New Mexico.
February 3, 1995. Current Concepts in Antibiotic Therapy. Update: Infectious Disease Management, Medical Education Resources, Albuquerque, New Mexico.
January 27, 1995. Women and HIV. Conference on Women’s Health Matters, St. Joseph Healthcare System, Albuquerque, New Mexico.
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January 27, 1995. HIV 101. HIV/AIDS Counseling Issues, Technical Vocational Institute (TVI) Student Counselors, Albuquerque, New Mexico.
January 19, 1995. HIV Update and Women with HIV. Eddy County Medical Society, Carlsbad, New Mexico.
December 3, 1994. Approach to the Patient with Chronic Fatigue Syndrome. American College of Physicians New Mexico Scientific Meeting, Albuquerque, New Mexico.
December 1, 1994. HIV 101. HIV/AIDS Case Management Training, AIDS Education and Training Center, Las Cruces, New Mexico.
October 20, 1994. Epidemiology of HIV/AIDS in Women. HIV/AIDS Case Management Training, AIDS Education and Training Center, Albuquerque, New Mexico.
October 15, 1994. Antibiotic Update. Update: Infectious Disease Management. The Willow Creek Golf and Country Club, Oklahoma City, Oklahoma.
June 10, 1994. Chronic Fatigue Syndrome. New Mexico Infectious Disease Potpourri IV, Albuquerque, New Mexico.
May 4, 1994. Antibiotic Update. Big Springs, Texas.
Spring 1994. Antibiotic Update. Lubbock, Texas.
Spring 1994. Antibiotic Update. Midland, Texas.
April 30, 1994. Women and HIV. Panhandle Chapter of the Texas Academy of Family Physicians, Amarillo, Texas.
March 25, 1994. Approach to the Patient with Chronic Fatigue Syndrome. Advances in Internal Medicine, Albuquerque, New Mexico.
February 16, 1994. Use of Outpatient Antibiotics. New Mexico Physician Associates Association, Albuquerque, New Mexico.
October 1993. Antibiotic Drugs, Pharmacology Update. St. Joseph Healthcare System, Albuquerque, New Mexico.
August 3, 1993. Women and HIV. The Navajo Division of Social Services Eleventh Annual Children, Youth and Families Conference, Albuquerque, New Mexico.
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August 1993. Antibiotic and Hantavirus Update. Zuni Pueblo, New Mexico.
July 8, 1993. Women and HIV Infections. Summer Primary Care Update 1993, Albuquerque, New Mexico.
June 27, 1993. HIV, Women and Abortion. New Mexico Primary Care Association, Joint Provider Retreat, Ruidoso, New Mexico.
May 1993. Vaccines. Ambulatory Care Center 5th Floor Nursing Staff Meeting, University of New Mexico, Albuquerque, New Mexico.
May 1993. Antibiotic Update. San Juan Medical Center, Farmington, New Mexico.
March 13, 1993. Immunization Guidelines -- Current Recommendations. Advances in Internal Medicine, Albuquerque, New Mexico.
April 1993. Women, HIV and Abortion. University of New Mexico Department of Medicine Grand Rounds, Albuquerque, New Mexico.
January 28, 1993. Needlesticks. Ambulatory Care Center 5th Floor Clinic Staff Meeting, University of New Mexico, Albuquerque, New Mexico.
July 1992. Early Intervention in HIV Care. Albuquerque Family Health Center, Albuquerque, New Mexico.
June 5, 1992. The Explosion of Hospital Antibiotics: A Dilemma for the Practitioner. Infectious Diseases Potpourri II, Albuquerque, New Mexico.
May 26, 1992. Antibiotic Update. Tucson, Arizona.
April 23, 1992. HIV and AIDS. Ambulatory Care Center 5th Floor Nursing and Clinic Staff Meeting, University of New Mexico, Albuquerque, New Mexico.
April 8, 1992. Clinical Aspects of HIV/AIDS. Gallup Indian Medical Center, AIDS Education and Training Center, Gallup, New Mexico.
March 17, 1992. Antibiotic Update. Poudre Valley Hospital, Denver, Colorado.
March 14, 1992. Antibiotic Update. Advances in Internal Medicine, Albuquerque, New Mexico.
January 23, 1992. Antibiotic Update. Phoenix, Arizona.
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January 22, 1992. Antibiotic Update. Sacaton, Arizona.
January 21, 1992. Antibiotic Update. Tuba City, Arizona.
December 13, 1991. Antibiotic Update. Indian Health Service Hospital, Crownpoint, New Mexico.
December 13, 1991. Antibiotic Update. Indian Health Service Hospital, Fort Defiance, Arizona.
September 17, 1991. Antibiotic Update. Holbrook, Arizona.
September 17, 1991. Antibiotic Update. Indian Health Service Hospital, Ganado, Arizona.
September 17, 1991. Antibiotic Update. Whiteriver, Arizona.
March 25, 1991. Antibiotics. Grand Rounds. St. Vincent’s Hospital, Santa Fe, New Mexico.
September 13, 1991. HIV Risk Behavior in Women Obtaining Abortions. St. Vincent’s Hospital, Santa Fe, New Mexico.
Medical Students, Residents/Fellows and College Undergraduates:
Mentoring: Daniel Lyle, undergraduate, applying to UNM Med School Hospital Volunteer, shadows in OPAT clinic and on ID inpatient consults service. Have advised student on personal statement and other activities related to applying to medical school
Gaby Chacon, Master’s student, Department of Biology, University of New Mexico. Hospital Volunteer, shadows on ID inpatient consult service and attends medical student tutorials. Advise student on application to medical school.
Tutorials for Transitions Block (Doctoring) April 2019, 3 tutorials
Tutorials for ID Block Fall 2016, 2 weekly tutorials Fall, 2013, 5 weeks, bi-weekly tutorials
University of New Mexico Lectures or Learning Sessions
Mandell Club, Chapter 104, Osteomyelitis, UNM Infectious Diseases Division, October 31, 2019.
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Mandell Club, Chapter 310, Prophylaxis and Empirical Therapy of Infection in Cancer Patients, UNM Infectious Diseases Division, September 5, 2019.
ID Case Conference: 52 year old female with cavitary pneumonia, PE and DVT, May 16, 2019.
Mandell Club, Chapter 107, Prosthetic Joint Infection, UNM Infectious Diseases Division, March 21, 2019.
Mandell Club, Chapter 56, Fever of Unknown Origin, UNM Infectious Diseases Division, December 20, 2018.
Mandell Club, Chapter 321, Immunizations, UNM Infectious Diseases Division, October 18, 2018.
Mandell Club, Chapter 245, Clostridium Difficile, UNM Infectious Diseases Division, August 16, 2018.
25-year-old female with wounds after breast reduction surgery, UNM Infectious Diseases Division, July 12, 2018.
A case of SIRS following abdominoplasty, UNM Infectious Diseases Division, June 14, 2018.
Mandell Club, Chapter 76, Peritonitis and Intraperitoneal Abscesses, UNM Infectious Diseases Division, May 24, 2018.
69-year-old female with a leg ulcer, UNM Infectious Diseases Division, March 1, 2018.
Mandell Club, Chapter 65, Oral, Head, Neck Infections: Lemierre Syndrome and Ludwig’s Angina, February 8, 2018.
Mandell Club, Chapter 291, Cestodes (Tape worms), UNM Infectious Diseases Division, December 21, 2017.
Mandell Club, Chapter 277, Leishmania, UNM Infectious Diseases Division, September 28, 2017.
Mandell Club, Chapter 276, Malaria, UNM Infectious Diseases Division, July 27, 2017.
Mandell Club, Chapters 187, Rickettsiosis, Ehrlichioses, Anaplasmosis, June 15, 2017.
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Mandell Club, Chapters 263 and 278, Madura Foot and Trypanosomiasis, May 25, 2017.
Mandell Faculty Club, Chapter 312, Risk Factors and Approaches to Infections in Transplant Recipients, March 16, 2017
Mandell Club, Chapters 265, 266, 267, Endemic Fungi Learning Session, UNM Infectious Diseases Division, January 5, 2017
Mandell Faculty Club, Chapter 310, Neutropenic Fever in Cancer Patients, December 15, 2016
Fever Masqueraders Learning Session, UNM Infectious Diseases Division, November 10 and November 17, 2016
Faculty Mandell Club, Chapters 241 and 168, Leptospirosis and Hantaviruses, November 17, 2016
Hematologic Hints in Infectious Diseases, UNM Infectious Diseases Division Learning Session, May 26, 2016.
Pericarditis Learning Session, UNM Infectious Diseases Division Learning Session, April 28, 2016.
Septic Arthritis and Bursitis, UNM Infectious Diseases Division Learning Session, January 21, 2016.
Fever and Fever of Unknown Origin, UNM School of Medicine, November 11, 2013
Infections in the Adult Cystic Fibrosis Patient, Infectious Diseases Fellows, May 9, 2013
Antibiotics for Family Practice University of New Mexico, January 10, 2013
Fever of Unknown Origin UNM Medical School, January 3, 2013
What It’s Like to Have a Family and Practice Medicine: group discussion with medical students and faculty, April 15, 2004.
Antibiotics. Phase II Medical Students, Medicine Rotation Orientation, October 25, 2004, July 6, 2004, April 26, 2004, March 1, 2004, January 6, 2004, April 28, 2003, July 7, 2003, October 28, 2003.
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Case 3:20-cv-02731-VC Document 229-18 Filed 05/22/20 Page 33 of 44

Clinical Manifestation of HIV/AIDS. Phase 1 Medical Students, Mechanisms of Disease Block, 2002, 2003, 2004.

HIV and AIDS. Phase I Medical Students, ID Block, November 13, 2001.

Antibiotics for Medical Students. Phase I Medical Students, ID Block, November 5, 2001.

Rational Use of Antibiotics. Phase I Medical Students, ID Block, November 9, 1999.

International Medicine in Africa. Medical Student International Medicine Club, September 30, 1999. Vaccines and Antibiotics. Six 3-hour presentations each year, 3rd year/Phase II students, 1993-98.

HIV/AIDS. Phase II Infectious Diseases Block lecturer, Fall 1997, 1998, 1999.

Incorporating HIV into a primary care practice. American Medical Student Association, Albuquerque, New Mexico, October 1996.

Biology 296: AIDS and the Biology of HIV, TVI-UNM Biology Department, Spring Semester 1996-1999. Co-founded course with Technical Vocational Institute (TVI) and UNM professors. Attended all 26 of the 1¼ hour class sessions and was responsible for writing and proctoring exams and the following presentations:

1.

Clinical aspects of HIV/AIDS

(Two 1 1/4 hour lectures)

2.

Treatment of HIV

(Two 1 1/4 hour lectures)

3.

Worldwide, national and local epidemiology

(Two 1 1/4 hour lecture)

4.

Prevention of HIV transmission

5.

HIV infected guest speakers (moderator)

(2 1 1/4 hour presentations)

6.

HIV related videos, class discussion.

7.

AIDS in Africa (1 ¼ hour lecture)

8.

History of HIV (1 ¼ hour lecture)

Parasitology of the Southwest pertaining to HIV patients. Albuquerque Technical Vocational Institute, Fall Semesters 1997, 1995, 1994, 1993.

HIV epidemiology, natural history, early care. AIDS Block, December 1993.

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Case 3:20-cv-02731-VC Document 229-18 Filed 05/22/20 Page 34 of 44
Magic Johnson and AIDS. UNM Journalism Class Interview, November 27, 1991.
UNM Noon Conferences Vaccines, June 29, 2004. Cystic Fibrosis, June 1, 2004. Antibiotics, April 13, 2004. Ethics Committee Presentation: Provision of Home IV Antibiotics to Injection Drug Users, September 26, 2003. Vaccines, May 20 and 22, 2003. Osteomyelitis: Round table discussion with Orthopedics and Infectious Diseases, University Hospital, February 19, 2003. Antibiotics Update 2002, January 9 and 10, 2002. Vaccines and HIV Prophylaxis, December 11 and 12, 2001. Vaccines for Adults and Prophylaxis for HIV Patients, October 25 & 27, 1999. Vaccines for Adults and Prophylaxis for HIV Patients, September 28, 1998. Infectious Diseases Medical Knowledge Self Assessment Program Review, June 22 & 23, 1998. Vaccines for Adults and HIV Prophylaxis, November 10 & 12, 1997. Antibiotics, July 21, 1997. Highly Active Antiretroviral Therapy, July 9, 1997. Vaccinations. November 6 & 7, 1996. Antibiotics. October 17 & 21, 1996. Infectious Disease Board Review. January 16 & 17, 1996. Vaccinations, November 16 & 20, 1995. Antibiotics. October 26 & 30, 1995. Vaccinations. September 14 & 15, 1994. Early Care of HIV Patients. July 1993. Common Infectious Disease Problems. July 1993. Antibiotics. May 18 & 19, 1993. Vaccines. March 16 & 17, 1993. Early Care of the HIV Patient. April 8, 1992. HIV Patients in Urgent Care -- Sorting HIV from Non-HIV Illnesses. March 4 & 31, 1992. Parvo B19, Malaria, Schistosomiasis, Lyme Disease -- Board Review, March 1992. The Game of Pneumonia. December 17 & 18, 1991. Antibiotics. September 28 & October 2, 2000.
UNM Clinical Pathology Conferences
49 year-old with TB, untreated for 2 years. October 9, 1998.
19 year-old girl with aseptic meningitis. Presentation with Bob Parsons, M.D., April 18, 1997.
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Middle aged patient with lung abscess, positive stains for AFB. Presentation with Bud Hodgin, M.D. Estimated date 1996.
50 year-old man with new onset AIDS and PCP. Presentation with Doug Mapel, M.D. October 18, 1996.
49 year-old woman with back pain. Discussion of lung cancer. February 3, 1995.
17 year-old male with Neisseria Meningitis. May 20, 1994.
Middle-aged woman with Chronic Fatigue. September 1993.
Alcoholic with fever and thrombocytopenia. Discussion of relapsing fever (Borrelia) and other infectious diseases associated with hematologic findings. July 1992.
72 year-old male with fever, abdominal pain and hematuria. Discussion of Clostridial sepsis. May 10, 1991.
Elderly man with Enterococcal sepsis. October 4, 1991.
Middle-aged man with adenopathy from Salmonella. September 27, 1991.
Young woman with fever, headache and abdominal pain. Discussion on Typhoid Fever. November 19, 1990.
UNM General Medicine Clinic Presentations Screening for Colon Cancer. November 7, 1996. Immunizations. January 16 & 17, 1992. Death, Dying, Bereavement, Living Wills. September 1991. Care of the Health HIV patient. September 1991.
UNM Resident Morning Report Invited Presentations Tuberculosis. April 14, 1998. Tuberculosis. March 11, 1996. Rheumatic Fever. February 10, 1995. Rhodococcus. May 11, 1993. Salvage Therapy in Pneumocystis Pneumonia. April 22, 1992. Coronary Artery Disease in an HIV patient. March 2, 1992. Toxic Shock. October 2, 1991. Endocarditis and Lung Abscess in an HIV patient. October 1991. Salmonella Sepsis in HIV. July 9, 1991.
UNM Medical Knowledge Self Assessment Program (MKSAP) Reviews Infectious Diseases. March 18, 1997. Human Immunodeficiency Virus. January 7, 1997.
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New Mexico Community Service/Lectures:

Infectious Diseases. March 4, 1996. Human Immunodeficiency Virus. February 21, 1996. Infectious Diseases. February 7, 1996. Infectious Diseases. January 11, 1995. Human Immunodeficiency Virus. December 14, 1994. Infectious Diseases, yearly review, 1990-1993.
UNM Infectious Diseases Fellow Conferences
Infectious Diseases Board Review, monthly 2012-2013 Journal Club presentation, April 8, 2004. Journal Club presentation, September 25, 2003. Adult Cystic Fibrosis, February 20, 2003. Journal Club, September 12, 2002. Infectious Diseases Board Review (fellows), weekly, January, 2002-2005. Penicillins and Cephalosporins (Mandell Review) April 13, 2000. Immunizations (Mandell Review), January 2000. HIV and Pregnancy in the Era of Highly Active Antiretroviral Therapy. March 4, 1999. Anti-Infective Therapy: Macrolides, Clindamycin, Vancomycin and Teicoplanin (Mandell Review), January 7, 1999. Immunization (Mandell Review), March 30, 1998. Acquired Immunodeficiency Syndrome (Mandell Review), December 15, 1997. Anthrax and other weapons of mass destruction. December 11, 1997. Upper Respiratory Infections, February 18, 1997. Anti-infective Therapy. November 4, 1996. American Foundation for AIDS Research Conference Review, March 6, 1996. HIV Risk Behavior in Women Obtaining Abortions. February 12, 1992. Antibiotic Review. July 10, 1991. Women, HIV-infection and Abortion. February 22, 1991.
UNM Pulmonary Division Fellow Conferences Fungal Infections in the ICU. March 31 and May 5, 1993.
Breathe Easy 5K Run in honor of J. Patrick Garcia in support of Pulmonary Hypertension Research, November 9, 2013.
Cystic Fibrosis (Bike) Ride for Cure, Rio Rancho, September 30, 2012
Breathe Easy 5K Run in honor of J. Patrick Garcia in Support of Pulmonary Hypertension Research, November 3, 2012.
New Research in Cystic Fibrosis, CF Family Day, Carrie Tingly Hospital, Albuquerque, April 26, 2003.

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HIV 101 and all the HIV Medications for HIV Case Managers, New Mexico AIDS Services, Albuquerque, November 29, 2001.
Overlook Water Cooperative, Vice President 1/2000-12/2001. Providing water services for Placitas subdivision.
The truth about HIV: Facts you need to protect yourself and your family. Mini-Medical School, Office of Continuing Medical Education, Albuquerque. February 8, 2000.
Health Care for the Homeless, volunteer clinic physician, Albuquerque. August 13, 1999. AIDS Crisis in India, assisted Los Alamos Labs physicist gather and present information about AIDS to communities in India, Summer 1999.
Welsh Seminars, Steering Committee member for The Sequoias Retirement Community in lectures series on English Literature, San Francisco. July 1999-July 2000.
What Does The Future Hold?: A Medical Update. Information for HIV Patients. New Mexico AIDS Services, Albuquerque. August 19, 1998.
Antiretroviral Therapy. NetWorking New Mexico, New Mexico HIV Community Retreat Spring ’98. Roswell, New Mexico.
Medical Information Update—Information for HIV Patients. New Mexico AIDS Services. Monte Vista Christian Church, Albuquerque. May 20, 1998.
AIDS. Rotary Club. Albuquerque, New Mexico. May 7, 1998.
Reaching for the Stars. The University of New Mexico Star Scholar Reception. Silver City, New Mexico. April 21, 1998.
Highly Active Antiretroviral Therapy. Emmanuel Metropolitan Community Church’s HIV/AIDS Ministry. March 22, 1998.
Phlebotomy and counseling services, New Mexico State Department of Health. Project to determine seroprevalence of gay men attending a gay bar in Santa Fe, New Mexico, May 30, 1997.
TVI Freshman Biology Summer Scholarship Program. Presentation on becoming and being a physician. May 28, 1997.
Health Resource Center of New Mexico, Inc. Rural Provider Education Social Marketing Program. Consultant, August 9 & 10, 1997, Santa Fe, New Mexico.
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Living with HIV. Partners in Care Grant, 2-hour evening presentation every 8 weeks 1990-1996.
Volunteer Physician, Hospital Centrale, Abidjan, Ivory Coast, July 1996.
University of New Mexico Speakers Bureau, 1996-2005.
HIV/AIDS. Presentation for Sandia High School, Albuquerque, New Mexico. July 13, 1995.
Interviewee on KOAT Channel 7 regarding HIV testing of pregnant women, February 1995.
Phlebotomy and counseling Services, New Mexico Department of Public Health Project to establish HIV, Hepatitis B and Hepatitis C Seroprevalence in injection drug users, May 28, 31 and June 7, 1994.
AIDS in Our Community. Keynote Address, 11th International AIDS Candlelight Memorial and Mobilization, May 22, 1994.
HIV/AIDS. Three 1-hour presentations for Van Buren Middle School students, Albuquerque, New Mexico. May 19, 1994.
Women with HIV. 1994 Statewide HIV Symposium, Angel Fire, New Mexico, May 1994. Epidemiology and Overview of Women with HIV. Juntas en la Lucha— Together in the Struggle, AIDS Education and Training Center, March 24, 1994.
HIV/AIDS. Presentation for Sandia Preparatory School, Albuquerque, New Mexico. December 1993.
Interviewee on Public Television, MacNeil-Lehrer News Hour for story on Hantavirus outbreak, June 1993.
Interviewee on Public Television, 30 minute Live Call-in Program, Amarillo, Texas answering questions about Hantavirus case in Texas, Summer 1993.
Interviewee on Local Television News Programs about Hantavirus, several, Spring and Summer 1993.
Interviewee on “How’d They Do That?” National television show on solving the Hantavirus mystery, Summer 1993.
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Viral Hepatitis. KOAT Health Issues presented by UNM. Prepared written material, February 1992.
Supervision of Science Fair Microbiology Project for Jefferson Elementary School Student (Jacob Wootton) November 1991 and March 1992.
Guest on KOAT 30 minute Live Call-in Program, Host Barry Ramo, answering questions about AIDS after announcement Magic Johnson was infected, November 14, 1991.

Scholarly Achievements: Books Authored or Co-authored:
Original Research or Scholarly Articles in Refereed Journals:

Allen, S. Africa Letters: a collection of letters written from Kenya, Tanzania and Ivory Coast in 1995-96. Redactors’ Press, San Francisco, 2005.
Liou TG, Jensen JL, Allen SE, Brayshaw SJ, Brown MA, Chatfield B, Koenig J, McDonald C, Packer KA, Peet K, Radford P, Reineke LM, Otsuka K, Wagener JS, Young D, Marshall BC. Improving performance in the detection and management of cystic fibrosisrelated diabetes in the Mountain West Cystic Fibrosis Consortium. BMJ Open Diabetes Res Care. 2016 Apr 29;4(1):e000183. doi: 10.1136/bmjdrc-2015-000183. eCollection 2016.
Feldman EM, Ellsworth W, Yuksel E, Allen S. Mycobacterium abscessus infection after breast augmentation: a case of contaminated implants? J Plastic Reconstr Aesthet Surg, 62(9); e330-2.
Aboutalebi A, Shen A, Katta R, Allen SE, Primary Cutaneous Infection by Mycobacterium avium: A Case Report and Literature Review. Cutis. 2012;89: 175-179.
Ketai L, Williamson M, Telepak R, Levy H, Koster F, Nolte K and Allen S. Hantavirus Pulmonary Syndrome: Radiographic Findings in 16 Patients. Radiology 1994; 191:665-668
Palmer DL, Hjelle BL, Wiley CA, Allen S, et al. HIV-1 Infection Despite Immediate Combination Antiviral Therapy After Infusion of Contaminated White Cells. The American Journal of Medicine, September 1994; 97:289-295.
Hjelle B, Mills R, Swenson S, Mertz G, Key C, Allen S. Incidence of Hairy Cell Leukemia, Mycosis, Fungoides, and Chronic Lymphocytic Leukemia in First Known HTLV-II Endemic Population. Journal of Infectious Diseases 1991; 163 (3):435-440.

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Review Articles/Articles Appearing as Chapters in Edited Volumes:

Allen S. Prevention of Infectious Diseases by Active and Passive Immunization. Medicine: A Primary Care Approach. Rubin R, et al, eds. WB Saunders Co. 1996.

Quenzer R and Allen S. Infections in the Critically Ill. Current Critical Care Diagnosis & Treatment. Bongard FS and Sue DY, Eds. Appelton & Lang, Norwalk, Connecticut, 1994.

Other Writings and Scholarly Products:

Gallant JE and Allen S, Editors, Improving Treatment Strategies for Antiretroviral Therapy. Presentations in Focus, September 2003. Rockstroh J and Allen S, Editors, Simplifying Regimens and Reducing Toxicities in the Highly Active Antiretroviral Therapy (HAART) Era. Presentations in Focus, October 2003.

Pai A and Allen S, Voriconazole Inhibition of Tacrolimus Metabolism (Letter). Clinical Infectious Diseases, 2003;36(8):1089 91. Allen S, Antiretroviral Therapy. New Mexico AIDS Research & Therapeutics. Volume 3, No. 1, Spring 1999.

Tuberculosis. CME Information Services. Videotaped lecture from Update in Internal Medicine 1998 Conference.

Talking Turkey Pictures. The Coming Plague. Videotaped in HIV Clinic for four hour documentary broadcast on Turner Broadcasting System, April 20-21, 1997.

KUNM Radio Board. Interview by Dr. Bruce Hofkin for pilot showcasing scientists in New Mexico. September 1997.

Duchin J, Koster F, Peters C, et al and The Hantavirus Study Group. Hantavirus Pulmonary Syndrome: A clinical description of 17 patients with a newly recognized disease. NEJM 1994; 330:949-55.

CDC. Hantavirus Pulmonary Syndrome -- United States, 1993. MMWR 1993; 42:816-818.

Allen S. Antibiotic Update. Video production by HealthNet Rural Health Satellite Network, Texas Tech University, September 7, 1994.

Allen S. Prevention of Pneumocystis carinii pneumonia. AIDS Newslink, Mountain-Plains Regional AIDS Education & Training Center. Vol. 2, No. 3, Page 6, Summer 1991.

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Allen S, video production editor. Hantavirus Infection: What the Primary Care Provider Should Know. Conference in Gallup, New Mexico, August 28, 1993.
Allen S and Palmer DL. Foodborne Hepatitis A: Evidence that microwaving reduces risks (Letter). The Journal of Infectious Diseases, 1991; 163:918.

Submitted Works:

Allen S, Doherty P, and Samuel M. Risk Factors for and Seroprevalence of Human Immunodeficiency, Hepatitis B and Hepatitis C Viruses in Hispanic, Native American and NonHispanic White Women Seeking Abortion in New Mexico.

Invited/Refereed Abstracts/ Presentations at Professional Meetings:

Chapman LE, Mertz G, Khan AS, Hart DC, Peters CJ, Koster F, Ksiazek TG, Rollin PE, Wilson LJ, Baum KF, Pavia AT, Christenson JC, Allen S, Rubin PJ, Goade D and the Ribavirin Study Group. Open Label Intravenous Ribavirin for Hantavirus Pulmonary Syndrome. Abstract H111. Abstracts of the 34th Interscience Conference on Antimicrobial Agents and Chemotherapy. October, 1994.

Thornton K, Allen S, Ulibarri-Keller N. Women with HIV in New Mexico (Abstract presentation). American College of Physicians New Mexico Scientific Meeting, 1993.

Contributed (unrefereed) Abstracts and/or Oral Presentations at Professional Meetings:

Allen S, Wootton C, Doherty P, Levy A, Voorhees R and Palmer D. HIV Risk in Hispanic and Native American Women Presenting for Abortion (poster). American College of Physicians New Mexico Scientific Meeting, 1992.

Jutila C, Gurule F, Allen S, Croke R, Shively B. Echocardiographic Predictors of Survival in Electromechanical Dissociation (Abstract presentation). American College of Physicians New Mexico Scientific Meeting, 1988.

Grant and Contract Funding:

University of New Mexico

HRRC 09-413, "Sample Acquisition Study to Evaluate the nanoMR Pathogen Capture System." PI: Steve Young, PhD. Have assisted in arranging for a portion of sample acquisition for patients in the Outpatient Treatment Center.

HRRC 03-326, “Epidemiologic Study of Cystic Fibrosis: A multicenter, longitudinal follow-up study of patients with Cystic

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Fibrosis for monitoring pulmonary function, pulmonary exacerbations, and the safety of long-term treatment with Pulmozyme (dornase alfa),” ~$3,000-$5,000/each year, 2003-2005. Funded by Genentech. Principal Investigator: Sarah Allen, MD.

HRRC 03-287, “Improving Performance in the Detection and Management of Cystic Fibrosis Related Diabetes.” $7,500 each year for three years. Funded by University of Utah Health Sciences Center. Principal Investigator: Sarah Allen, MD.

HRRC 03-418: “The effect of calcium supplementation on the steady-state pharmacokinetics of oral once daily 750 mg doses of levofloxacin in adult cystic fibrosis patients.” $10,000 for project period 2003-2004. Principal Investigator: Amit Pai, PhD; CoInvestigator: Sarah Allen, MD.

HRRC 02-537, “Cystic Fibrosis Registry” Awarded 2003 and 2004, $6,000/year for the Adult CF Clinic for providing data on 53 CF patients we care for. Funded by the Cystic Fibrosis Foundation. Principal Investigator, Elizabeth Perkett, MD.

Past Grant/Contract Funding:

University of New Mexico

Research Allocation Grant, Awarded July 1, 1993, $7500, Risk Factors for and Seroprevalence of Human Immunodeficiency, Hepatitis B and Hepatitis C Viruses in Hispanic, Native American and Non-Hispanic White Women Seeking Abortion in New Mexico

Vulnerability and Informed Consent in Clinical Research. Laura Roberts, M.D., Principal Investigator. National Institutes of Health.

Administrative Positions:

New Mexico (2012 – present): Antibiotic Subcommittee, University Hospital, Albuquerque, Meghan Brett, Chair, 2012-2015.

Director, Outpatient Treatment Center (OTC), UNMH, 8/2012-11/2015

Director, Outpatient Parenteral Antibiotic Treatment Center (OPAT), UNMH, 8/2012-11/2015

Texas (2005 – 2012): Antibiotic Subcommittee, The Methodist Hospital, Texas Medical Center, Houston, Texas, 8/2007-5/2012.

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New Mexico (1986 – 2012): Co-Chair, Infectious Diseases Society of New Mexico Quarterly Dinner Meetings, 1999-2000.

Co-Chair and Moderator, Infectious Diseases Pot Pourri Conference 2000, 2001, 2002, 2003, 2004.

Narrative Review Board, Teacher and Education Development, Stewart Mennin, chair, 1999

Phase I ID Block co-director with Roger Radloff, 1998-2000.

Health Management Alliance, Primary Care Clinician, District #1, 19972005.

American College of Physicians, Program Committee Member, 1995 New Mexico Scientific Meeting, Bill Reed, Chair.

American College of Physicians, Program Committee Member, Annual Physician-Legislature Meeting. November 19, 1995.

HIV General Medicine Conference, Conference Coordinator and Commentator, July 1994. HIV General Medicine Conference, Conference Coordinator and Commentator, January 1994.

Hantavirus Symposium Conference Committee Coordinator, August 1993.

HIV General Medicine Conference, Conference Coordinator and Commentator, July 1993.

HIV General Medicine Conference, Conference Coordinator and Commentator, January 1993.

HIV General Medicine Conference, Conference Coordinator and Commentator, July 1992.

American College of Physicians, Program Committee Member, 1991 New Mexico Scientific Meeting.

University of New Mexico, SOM, HSC Department Committees

and Administrative Duties:

Promotions Committee, January 2004-2005. Chair Terry Crowe,

PhD

Search Committee for 5ACC Medicine Clinic Manager, January 2004. Chair David Gonzales, MD

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Hobbies: Triathlons

Pharmaceuticals and Therapeutics Committee, member September 1999-2005. Chair: Corey Ford, MD
Pharmaceuticals and Therapeutics Antibiotic Subcommittee, member: July 1991 - January 1992 and September 1999-2005. Chair: Gary Overturf, MD.
Pharmaceuticals and Therapeutics Adverse Drug Reactions Subcommittee, Founder and Chair: December 1999-2000.
Risk Management, Review of HIV related case pending litigation, September, 1998 University Hospital Infection Control, member 1991-2002. Current Chair: Susan Kellie, Past Committee Chairs: Fred Koster, M.D. and Greg Mertz, M.D., Gail Scully, M.D.
Clinic Operation Team, 5th Floor Medicine Clinics, member 1998. Committee Chair: Sanjeev Arora, M.D.
Department of Medicine Clinical Provider Search Committee, Infectious Diseases Division, Chair: Greg Mertz, M.D., 1997-98
Department of Medicine Intern Selection Committee, 1995, 1992.
Department of Communication and Journalism, Thesis Committee: John Mandes, Master’s Candidate. HIV and Journalism. Prospectus Defense, September 1994; Thesis Defense, April 1995.
Department of Medicine Clinical Provider Search Committee Infectious Diseases Division, Chair: Darwin Palmer, M.D., 1993-94.
New Mexico AIDS Services, Project for Women, 1993-94.
University of New Mexico School of Medicine New Curriculum Assessment Task Force, 1992.
Full Ironman 140.6, Boulder, Colorado, August 2, 2015
Full Ironman 140.6, Cabo, Mexico, March 30, 2014
Half Ironman 70.3, Austin, Texas, October 27, 2013

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Case 3:20-cv-02731-VC Document 229-19 Filed 05/22/20 Page 1 of 33

WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org SEAN RIORDAN (SBN 255752) sriordan@aclunc.org ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: (415) 553-9319 Facsimile: (415) 553-9810

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUBI RUIZ TOVAR, LAWRENCE KURIA MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,

CASE NO. 3:20-CV-02731-VC DECLARATION OF ROBERT B. GREIFINGER, M.D. IN SUPPORT OF PETITIONERS-PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Petitioners-Plaintiffs,

v.

DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,

Respondents-Defendants.

CASE NO. 3:20-CV-02731-VC DECLARATION OF ROBERT B. GREIFINGER, M.D.

Case 3:20-cv-02731-VC Document 229-19 Filed 05/22/20 Page 2 of 33

BREE BERNWANGER* (NY SBN 5036397) bbernwanger@lccrsf.org HAYDEN RODARTE (SBN 329432) hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA 131 Steuart St #400 San Francisco, CA 94105 Telephone: (415) 814-7631
JUDAH LAKIN (SBN 307740) judah@lakinwille.com AMALIA WILLE (SBN 293342) amalia@lakinwille.com LAKIN & WILLE LLP 1939 Harrison Street, Suite 420 Oakland, CA 94612 Telephone: (510) 379-9216 Facsimile: (510) 379-9219

MARTIN S. SCHENKER (SBN 109828) mschenker@cooley.com COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111 Telephone: (415) 693-2000 Facsimile: (415) 693-2222
TIMOTHY W. COOK* (Mass. BBO 688688) tcook@cooley.com FRANCISCO M. UNGER* (Mass. BBO 698807) funger@cooley.com COOLEY LLP 500 Boylston Street Boston, MA 02116 Telephone: (617) 937-2300 Facsimile: (617) 937-2400

JORDAN WELLS (SBN 326491) jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568) spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA 1313 West Eighth Street Los Angeles, CA 90017 Telephone: (213) 977-9500 Facsimile: (213) 977-5297

Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice

CASE NO. 3:20-CV-02731-VC DECLARATION OF ROBERT B. GREIFINGER, M.D.

Case 3:20-cv-02731-VC Document 229-19 Filed 05/22/20 Page 3 of 33
Second Supplemental Declaration of Robert B. Greifinger, MD
I, Robert B. Greifinger, declare as follows:
1. I am a physician who has worked in health care for prisoners for more than 30 years. I have managed the medical care for inmates in the custody of New York City (Rikers Island) and the New York State prison system. I have been an independent consultant on prison and jail health care since 1995. My clients have included the U.S. Department of Justice, Division of Civil Rights (for 23 years) and the U.S. Department of Homeland Security, Section for Civil Rights and Civil Liberties (for six years). I am familiar with immigration detention centers, having toured and evaluated the medical care in approximately 20 immigration detention centers, out of the several hundred correctional facilities I have visited during my career. I currently monitor the medical care in three large county jails for Federal Courts.
2. I provided two earlier declarations in this case, dated April 19 and April 26, 2020, and now provide this second supplemental declaration after reviewing materials provided by the Defendants to Plaintiffs and the Court, and new fact declarations from class members, describing the current conditions of detention at Mesa Verde Detention Center and Yuba County Jail.
3. In addition to the documents I reviewed previously, I have reviewed:
a Defendants’ Objections and Responses to Plaintiffs’ Interrogatories, dated May 8, May 12, May 19, May 20, and May 21, 2020;
b Defendants’ Updated Supplemental Declaration of ICE Assistant Field Office Director Alexander Pham, dated May 11, 2020, filed in Singh v. Barr, No. 20cv-02346-VKD (U.S.D.C., N.D. Cal.);
c Email of Shiwon Choe to Plaintiffs, May 19, 2020 10:14 am re: Zepeda Rivas v. Jennings, No. 3:20-cv-02731 (regarding the number of individuals in each housing unit at Yuba);
d Plaintiffs’ Declarations of Fermin Trujilo Lopez, Gilberto Pablo Perez, Jose Mejia Rosas, Juan Aguilar Castaneda, Livia Pinheiro, Maynor Oxlaj Siguantay, Pravindar Singh, Arias Marroquin, Asif Massom Qazi, and Aylaliyah Burru;
e Visual images of the dorms at Mesa Verde and Yuba County Jail prepared by Scott Hilton based on information supplied by Defendants in their responses to Plaintiffs’ interrogatories (and incorporated where specified in this declaration);
f Photographs of Mesa Verde and Yuba, incorporated herein with references, authenticated by declarants as consistent with current conditions of the detention centers, and previously presented in (1) Hedrick v. Grant, Case No. 2:76-cv-00162 (E.D. Cal.) (photographs amended to Dkt. 220, Declaration of Pablo Stewart MD in support of Plaintiffs’ Motion to Enforce Consent Decree and for Further Remedial Orders); (2) Lyon v. ICE, Case No. 3:13-cv-05878 (E.D. Cal.) (photographs amended to Dkt. 119-20, Declaration of Carl Takei
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in Support of Plaintiffs’ Motion for Summary Adjudication); and (3) ACLU SoCal, “Lawsuits Demand Halt in ICE Transfers and Reductions in Jail and Juvenile Hall Populations,” Apr. 24, 2020, available at https://www.aclusocal.org/en/press-releases/aclu-sues-governor-ca-supremecourt-over-pandemic-conditions.
4. From the evidence I have reviewed, it is my opinion that ICE continues to fail to meaningfully respond to the COVID-19 pandemic, jeopardizing the health and safety of those detained in ICE custody at Mesa Verde and Yuba County Jail, as well as the staff and visitors of the facilities and the surrounding communities.
IMPORTANCE OF SOCIAL DISTANCING
5. As I have outlined previously, social distancing is the most critical tool to limit the individual and community risk of COVID infection. This is because the greatest mechanism for COVID-19 transmission is through droplet transmission. When someone infected with COVID-19 coughs, sneezes, or talks, small and often imperceptible droplets travel through the air into the noses and mouths, and ultimately respiratory tracts, of people in the vicinity. People may also be infected when droplets land on a surface – such as a table, doorknob or toilet seat – and a person touches that surface and then touches their nose or mouth.
6. The COVID-19 virus is believed to be more durable than other some other comparable viruses, and able to remain infectious for a longer period of time. COVID-19 may survive and be infectious in the air or on a surface for hours or days.
7. The kind of surface also affects how long the virus can survive. In studies, the virus has been found to be detectable and potentially infectious for 24 hours on cardboard, and even longer on plastic and stainless steel—where it can survive for up to 72 hours though at diminishing concentrations. The “half-life” of the virus (or the length of time for its concentration to halve) was nearly four hours on cardboard, nearly 6 hours on steel, and nearly 7 hours on plastic.
8. Social distancing is considered a nonpharmaceutical intervention (NPI) – in the same class as hand washing and face coverings – of heightened importance when biologic or pharmaceutical interventions (such as a vaccine or medications) are unavailable and not expected for some time. Social distancing is valuable to protect an individual against infection and moreover is critically important to protect a community against pandemic spread. Effective social distancing can reduce the attack rate (or percentage of people who become infected in a given time period) and number of deaths and limit the strain on scarce health and other public resources.
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9. In 2007, the CDC recommended social distancing as a critical tool to respond to respiratory viruses in the absence of a vaccine,1 and reaffirmed this in the agency’s 2017 prepandemic strategy guidance.2 The importance of social distancing has become more recognized over the past 15 years in pandemic preparedness. This is a result of modeling exercises as well as epidemiological analyses of the effect of social distancing on disease transmission. Two groundbreaking studies of the 1918 flu showed that cities that acted quickly to force social distancing (i.e., school closures, the cancellation of gatherings and mandatory quarantines) at the time had significantly lower mortality and peak death rates (in one of the studies, 20% decreased cumulative mortality and 50% of the peak death rates) than those that acted more slowly.3
10. Social distancing is sometimes considered shorthand for maintaining six feet of distance at all times from other people. However, social distancing first and foremost incorporates the idea of avoiding prolonged contact in confined spaces, i.e., congregate settings and mass gatherings, wherever possible. Shelter-in-place and lockdown orders or recommendations are more protective—for individuals and communities—than avoiding exposure at six feet of distance. The six-foot social distancing recommendation is primarily aimed at reducing exposure in infrequent interactions and outdoor settings, with the priority being to limit even these interactions as much as possible. The six-foot recommendation also effectively works to limit the total number of people in a confined space (like a grocery store, for example) at a given time; this is inherently more protective.
11. Six feet of distance is not a hard line that guarantees protection, but a guideline to help limit the spread of COVID-19 by droplet transmission. The recommendation that, where interaction is necessary, maintaining a minimum of six feet of distance from others is derived from the perception that droplet particles of greater than 5 microns typically (due to their size and weight) fall to the ground where they are no longer infectious within six feet. However, large droplets are capable of being carried for more than six feet, particularly with the force of a cough or a sneeze. Droplets propelled from a cough have been found to travel up to 16 feet and from a sneeze up to 27 feet, and may carry the virus with them for that distance.4 One review found eight of ten studies on horizontal droplet distance showed droplets traveling more than six feet and recommended greater distancing particularly in high-risk
1 CDC, Interim pre-pandemic planning guidance: community strategy for pandemic influenza mitigation in the United States : early, targeted, layered use of nonpharmaceutical interventions,” Feb. 2007, at https://stacks.cdc.gov/view/cdc/11425, at 9. 2 CDC, “Community Mitigation Guidelines to Prevent Pandemic Influenza—United States, 2017,” Apr. 21, 2017, at https://stacks.cdc.gov/view/cdc/45220. 3 See, e.g., Richard Hatchett et al., “Public Health Interventions and Epidemic Intensity During the 1918 Influenza Pandemic,” Proceedings of the National Academies of Sciences of the United States, May 1, 2007, at https://www.pnas.org/content/pnas/104/18/7582.full.pdf; Howard Markel, et al., “Nonpharmaceutical Interventions Implemented by US Cities During the 1918-1919 Influenza Pandemic,” JAMA, Aug. 8, 2007, at https://jamanetwork.com/journals/jama/fullarticle/208354. 4 Lydia Bourouiba, “Turbulent Gas Clouds and Respiratory Pathogen Emissions: Potential Implications for Reducing Transmission of COVID-19,” JAMA, Mar. 26, 2020, at https://jamanetwork.com/journals/jama/fullarticle/2763852.
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environments.5 This review of the literature found a maximum recorded distance of approximately 26 feet.
12. There is growing evidence that aerosol transmission (of smaller particles less than 5 microns which may survive, and travel, in the air for longer and further) is also possible. The possibility of airborne transmission has been considered because “viral shedding” (or contamination of the virus) has been found in the air in rooms where patients were infected with COVID-19.6 Indeed, aerosol transmission was important in 2002-2003 in certain SARS-related “superspreader events,” where many people were infected in a single incident. If aerosolized (as opposed to the larger airborne droplet) transmission is a significant form of transmission for COVID-19, six feet of distance is even less protective as tiny aerosolized virus particles are able to remain in the air for longer. For small aerosolized particles, air currents can carry the virus more than 20 feet. However, as they are smaller and may disperse over time (even if they take longer to fall and lose their capacity for infectiousness), the risk of infection still likely decreases with growing distance.
13. Even assuming that the primary means of transmission is via the larger airborne droplets, the six-foot social distancing framework is insufficient for sleeping in a congregate setting, such as a detention facility. The risk of infection is particularly acute in crowded spaces where people remain for a prolonged period of time. The risk is even more acute in poorly-ventilated indoor areas. The basis for the increased risk of transmission for congregate settings over a prolonged period is: a) if multiple people are infected, there can be a compounding of airborne virus particles, increasing the risk of transmission, and b) in a confined space, the longer the contact time, the larger the risk of inhaling a larger “dose” of the virus.
14. It is for these reasons that I conclude that reduced population in congregate settings is the single most important means of reducing the risk of transmission to individuals in these settings. The second most important means of reducing the risk of infection in congregate settings, such as a detention facility, is ensuring a minimum of ten feet between beds for sleeping in a congregate setting and six feet for all other interactions (such as while standing in line, eating, or passing by other individuals). The necessity of individuals getting in and out of bed alone necessitates that bed spacing be greater than six feet in order to avoid being regularly within six feet of others sleeping in
5 Prateek Bahl et al., “Airborne or Droplet Precautions for Health Workers Treating COVID-19?” (prepublication), at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7184471/pdf/jiaa189.pdf (“More recent studies have shown the extent of droplet spread to be greater than 2 m (≈6 ft), and that infection risk exists beyond the recommended range of spatial separation.”). 6 Joshua Santarpia et al., “Transmission Potential of SARS-CoV-2 in Viral Shedding Observed at the University of Nebraska Medical Center,” medRxiv, Mar. 26, 2020, https://www.medrxiv.org/content/10.1101/2020.03.23.20039446v2 (not peer-reviewed); Yuan Liu et al., “Aerodynamic Analysis of SARS-CoV-2 in Two Wuhan Hospitals,” Nature, Apr. 27. 2020, at https://www.nature.com/articles/s41586-020-2271-3.
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neighboring beds.7 But more than that, the prolonged exposure—over many hours and many days with many people—makes a distance greater than six feet imperative in avoiding the rapid transmission of infection. From my review of the literature and my experience managing medical care in correctional facilities I conclude that ten feet is the bare minimum to provide a degree of protection from infection for those sleeping in congregate settings.
15. Relatedly, to reach the same degree of social distancing for beds that are situated in a line (i.e. head to foot), the distance between beds from edge to edge must be at least three feet if individuals sleep in the same direction (i.e., head to toe). This is because the bunkbeds are typically around 6.5 feet in length and an individual’s head is not at the edge of the bed. To ensure ten feet of distance between the heads of detainees in neighboring beds, three feet of distance between beds arranged this way would be required.
16. I understand that Defendants have introduced staggering of sleeping arrangements at Mesa Verde, with detainees alternating between top and bottom bunks. This does little to eliminate or even reduce the risk of infection for those in neighboring bunks because droplets are heavy and fall from the air after traveling a few feet. (This is the foundation of the six-foot social distancing recommendation.) The droplets emitted by the person on an upper bunk will not merely circulate in the air but will ultimately fall to the ground—infectious as they descend—because of gravity’s effect on dense respiratory droplets. Thus a person in a lower bunk will be similarly exposed to droplets from his neighbor whether the neighbor is sleeping in the lower or upper bed of the neighboring bunk.
LACK OF SOCIAL DISTANCING AT MESA VERDE AND YUBA
17. Social distancing must be guaranteed for sleeping, eating, recreation, using the restroom, and all other aspects of a detainee’s day. From all of the evidence I have seen in this case, including the new declarations from Plaintiffs and Defendants and Defendants’ responses to the interrogatories, there is inadequate social distancing in sleeping, eating, using the bathroom, and recreation in both facilities.
7 See, e.g., Masoom Dec. ¶ 6 (“When I am in bed, for example, I sometimes have to get down to go to the bathroom or do anything else. Once I step down from my bunk bed, I am within 3 feet of the person in the next bottom bunk. With this many people, proper social distancing is impossible.”) (declarant in Mesa Verde Dorm C); Garcia Montes Dec. ¶¶ 6-8 (“There is certainly not 6 feet between us—not while we sleep and certainly not when I have to get down from my bed for any reason.”); Solis Dec. ¶ 8 (“Regardless of the staggered sleeping arrangements, we have to get in and out of our beds for a number of reasons and end up being a few feet from the person in the next bunk bed. . . Every person is assigned a big plastic container, like a storage bin, to store our stuff. We usually store those containers under our bunkbed. When people need to get stuff out of their containers, they have step into the space in between the bunkbeds and pull the container out. When they do this, they are often right next to the person in the bed next to them.”).
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A. Sleeping
18. Based on the information provided by Defendants in this case, social distancing is impossible in the sleeping facilities used by detainees at Mesa Verde and Yuba given current structures and population levels.
1. Mesa Verde
19. The Pham Declaration affirms that the Mesa Verde capacity is at 191, or just under 50% of its capacity of 400 detainees, and that each dorm is at or below 50% capacity. This does not tell me whether there is adequate social distancing. The percentage of capacity is a meaningless figure to measure social distancing within the dorms, and for the daily lives of individuals. What matters is whether people are able to maintain distance from one another, which might be possible in some facilities at 100% of capacity and might be impossible in other facilities even at 20% of capacity. The fact that at Mesa Verde detainees sleep in large open-air dorms without barriers creates inherent risks of infection for the detainees (and the staff) even if the populations in all dorms are closer to 50 than their capacity of 100.
20. Further, at the time of my April 26 declaration, there was at least one Mesa Verde dorm that was at approximately 50% capacity. At that time I concluded that it failed to allow for adequate social distancing. Now that all of the dorms are at 50% capacity, that does not change my conclusion that even 50% capacity given the information available about the facilities is insufficient to allow for individuals to protect themselves from COVID-19 infection.
21. The Pham Declaration asserts that at Mesa Verde detainees “are or will be sleeping at least six feet apart” as detainees are alternating between top and bottom bunks in Dorms A & B, and will at some point be doing the same in Dorms C & D. (This staggered sleeping arrangement is something identified as a goal in Dorms C & D, but not something that had yet been implemented, though the declarations of class members affirm that it has happened throughout the facility.)
22. There is no evidence that this alternating sleeping arrangement does in fact mean that detainees are sleeping far enough apart to be protected from the risk of droplet transmission while they are sleeping. The median distance between beds8 at Mesa Verde is 38” and the upper and lower bunks are 49” from one another. Even if the relevant consideration were the diagonal straight line between the bottom bunk and the upper neighboring bunk, this would only mean a median distance of 62” between the two sleeping detainees, or just over five feet, as depicted in the diagram below. This does not even reach the six feet that the Defendants suggest, or that is recommended for occasional or transient interactions, much less a ten feet distance that would provide more meaningful protection in a congregate sleeping environment.
8 A median distance is used because the bunkbeds are not an equivalent distance from one another throughout the facility.
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23. The assertion that this allows for adequate social distancing also ignores that individuals get in and out of bed, and quite often in a detention setting where they may spend much of their day in the dormitories. As one declarant described: “We are not able to be socially distanced while in our bunks or while sleeping. The problem is that the distance between the beds is less than three feet. They are simply too close together, and the bunks cannot be moved. It does not matter that the people in the bunk next to me are in the top bunk while I’m in the bottom bunk. When my neighbors get down from their bunks, they are very close to me, as close as if we were going to shake hands. They are not six feet away. They have to get down from their bunks to go to the bathroom and for meals.”9
24. Moreover, this staggering between upper and lower bunks is not protective for the reasons outlined above in ¶ 16: gravity causes droplets to fall and they remain infectious when they fall. The appropriate consideration of distance between beds is the lateral distance, regardless of whether individuals are on the top or bottom bunks, or whether they are staggered between upper and lower bunks. The relevant distance is not “as the crow flies”—here, the diagonal between the upper bunk and the lower neighboring bunk.
25. Considering this, in Mesa Verde, the median effective distance between detainees is, in fact, only 38” (the median distance between two bunkbeds at Mesa Verde), or just over three feet. This creates a very high risk of COVID-19 infection, particularly given the prolonged periods of time that detainees spend both sleeping and more generally in these open-air dorms and on their beds.
26. To approach the minimum appropriate distance between two people sleeping in the congregate setting of the large Mesa Verde dormitories, where the bunkbeds are fixed to the floor, it would be necessary to stagger detainees sleeping not in alternating upper and lower bunks, but in alternating beds as shown in the image below.
9 Trujillo Dec. ¶ 6.
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2. Yuba County Jail 27. Unlike Mesa Verde, Yuba County Jail includes both County inmates and ICE
detainees, and sometimes they are intermingled. I understand that Defendants in this case affirm that as of May 18 there are 93 ICE detainees and an unspecified number of County inmates in the facility. 28. As I described in my initial declaration in this case, relying on what was then publicly available information, Yuba County Jail has a more diverse set of sleeping arrangements than Mesa Verde. Detainees at Yuba sleep in dormitories; “linear-style open bar front cells”; or single-, double- or quadruple-celled housing. The interrogatory responses produced in this case provide more detail about the dimensions in each of the housing units and the sleeping arrangements in each. 29. Based on my review of available information, I confirm my earlier conclusion that there is inadequate social distancing for detainees at Yuba. Regardless of the type of housing, most ICE detainees at Yuba sleep in housing units where they are in bunk beds that are certainly fewer than ten feet (and even fewer than six feet) away from the other bed in the same bunk, and from the next bunk bed. 30. For the reasons identified above with regard to Mesa Verde, the percentage a facility is populated as compared to its capacity does not indicate whether there is adequate social distancing and protection from COVID-19 infection for those inside. Many of the individual housing units at Yuba—including both ICE and County detainees—are between 33 and 75 percent of capacity. This provides some useful information but does not answer the question about whether the facility as a whole, or individual housing units, are safe from COVID-19 infection for those detained.
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Case 3:20-cv-02731-VC Document 229-19 Filed 05/22/20 Page 11 of 33 31. Large Dormitories (B- & C- Pods and R-Dorm10):
Photo above: C-pod11 32. In Yuba’s larger dormitories – B-pod, C-pod and R-dorm – the bunkbeds are only two
feet apart (for B- and C-pods) or three feet apart (R-dorm).
Given the proximity of the bunks to one another, unless the beds are moved, ten feet
10 B- and C-pods are large open rooms with movable bunk beds with capacity for 50 people each, with each bunk bed only two feet apart from the next side by side and three feet apart end to end. R-dorm is a female housing dorm-style housing unit with 9 bunk beds (for a maximum capacity of 18) which each bunk bed three feet apart in a total 929 square feet of space. 11 Photo taken by Rosen Bien Galvan & Grunfeld LLP, available at https://www.aclusocal.org/en/pressreleases/aclu-sues-governor-ca-supreme-court-over-pandemic-conditions, confirmed as presently accurate by Plaintiffs’ class member Gilberto Pablo Perez.
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of distance between two sleeping individuals in the congregate settings of Yuba’s largest dormitories would only be achieved if detainees slept on every third bunk.12 Unlike in Mesa Verde, the bunkbeds are movable within these dormitories in Yuba but it is not apparent how they could be moved within the existing space given that individuals also eat and effectively live in these dormitories during their detention.13
33. Class member Livia Pinheiro described the close quarters for women in R-dorm: “When I slept, if I reached out, I could definitely touch the person next to me. She was just a couple of feet away from me. It is impossible to stay six feet apart from other people with this set-up.”14 Even where dormitories are well below capacity, detainees describe social distancing as an impossibility.15
Photo: R-dorm16
12 Where measurements were provided, the bunk beds are typically 6’6” long and 2’6” wide. There are some variations: bunkbeds in B- and C-pods measured 6’9” long x 2’10” wide, Q-cell 6’8” long x 2’9” wide, Rdorm 6’8” long x 2’7” wide, S-tank 6’5” long x 2’7” wide, P-tank 6’8” long, and T-tank 7’ long x 2’11” wide. 13 I understand that on the day of my finalizing this declaration, Defendants produced a fourth supplemental response to Plaintiffs’ interrogatories that identified that two dormitories – B-pod and C-pod – were reconfigured. Yuba County Jail removed five beds, spaced each bed approximately six feet apart on both sides, and is now utilizing only the lower beds on the bunkbeds. For the reasons elaborated within this declaration, this still does not respond meaningfully to the threat of COVID-19, protect detainees or staff from the likelihood of transmission, or permit adequate social distancing while sleeping in a congregate setting. 14 Pinheiro Dec. ¶¶ 6-7. 15 Pablo Dec. ¶ 5 (“There was no way to stay six feet apart in B Pod. There were too many people there. All of the top bunks were empty, but the bottom ones were almost full. There were people sleeping on both sides of me. I was surrounded by beds to my left, right, at my feet and head. If I stretched my arm out to the left, I could touch the person who slept there.”). 16 DSC 00114 from Takei Declaration, photo taken Oct. 13, 2015 confirmed as presently accurate by Plaintiffs’ class member Maria Andreas Salgado.
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34. Open Bar-Front Dormitories (G- Through L- “Tanks”)

Photo: sleeping
area in one of the “tanks” in the “Old Jail”17

Photo: I-tank18

17 Photo confirmed as presently accurate by Plaintiffs’ class member Aroldo Rodriguez Diaz. Photograph previously included as Exhibit to Declaration of Pablo Stewart MD in support of Plaintiffs’ Motion to Enforce Consent Decree and for Further Remedial Orders in Hedrick v. Grant, Case No. 2:76-cv-00162 (E.D. Cal.) (Dkt. 220 at 185, Sept. 1, 2017). 18 Photo confirmed as presently accurate by Plaintiffs’ class member Aroldo Rodriguez Diaz. Photograph previously included as Exhibit to Declaration of Carl Takei in Support of Plaintiffs’ Motion for Summary Adjudication in Lyon v. ICE, Case No. 3:13-cv-05878 (E.D. Cal.) (Dkt. 197-15 at 4 (DSC 00105), Apr. 7, 2016 & Dkt. 119-20, Dec. 18, 2015 (“DSC 0105 depicts . . . the view from the table to the living area” of “Yuba – Unit I”)).
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G through L “tanks” in the “Old Jail” at Yuba are not enclosed rooms but are separated from the corridors only by a set of bars, with open spaces between the bars, so air flows freely between the tanks and corridors. (See photo below.)
Photo: Corridor alongside the “tanks” in the “Old Jail”19
Each “tank” has space for between eight and twenty detainees who sleep in sets of bunk beds spaced only a few feet apart and around a common area reserved for eating and use of the lavatory.20 The bunkbeds in G, H, K and L are only 3’8” apart horizontally, and apparently only inches apart vertically; and in J only 8’ apart horizontally and apparently inches apart vertically. (The exact distances in I-tank are unavailable.)
19 Photo confirmed as presently accurate by Plaintiffs’ class member Aroldo Rodriguez Diaz. Photograph previously included as Exhibit to Declaration of Pablo Stewart MD in support of Plaintiffs’ Motion to Enforce Consent Decree and for Further Remedial Orders in Hedrick v. Grant, Case No. 2:76-cv-00162 (E.D. Cal.) (Dkt. 220 at 182, Sept. 1, 2017). 20 G-, H-, K- and L-tanks each have capacity for 20 detainees in ten bunk beds in 580 square feet of space. In each of these tanks, there are 6 bunks on one side of a common area (divided into two rows of 3 bunks each) and four bunks on the other side of the common area. There is 3’8” between the bunks and each sleeping side measures 142 square feet. I-tank has capacity for 8 detainees in 4 bunks in 270 square feet. J-tank has capacity for 12 detainees in 6 bunks in 548 square feet (286 square feet for the common area and 262 square feet for the sleeping area). In J-tank, there are two bunks on one side of the sleeping area, three bunks on the other side and one bunk on the end. The rows of bunk beds are eight feet across from one another.
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These “tanks” are currently, based on the numbers available, 45%-75% full. These housing units are particularly unsafe because of the significant number of people in close quarters, the inability to move the bunk beds, and the air flow between the neighboring tanks, making an even greater congregate living environment than the population level of each tank suggests.
35. This is described vividly by declarants familiar with the facilities: One said, “the rows of beds are close together, and you can reach out and touch the one next to you.”21 Another described: “when one person is asleep and their feet are sticking out of the bed, their feet are about 6 inches from the next person’s head in front of them.”22 A third identified that detainees walk between the beds in a narrow hallway, further limiting the possibility of social distancing.”23 Even when the tanks were occupied at half-capacity, detainees express that social distancing is impossible.24 This inability to practice social distancing at half-capacity is consistent with the measurements provided by Defendants and the photographs I have seen. One declarant in G-tank described, “we feel like rats in a cage.”25
36. Single-, Double- and Quadruple-celled Units with Shared Common Area (D-, E- and F-pods, P-tank, A-pod, S-tank, Q cells, T-tank and N-tank): Yuba also has a limited
21 Marroquin Dec. ¶¶ 3, 5. 22 Mejia Rosas Dec. ¶¶ 4-5 (“If I look to my left, I can almost touch the person across from me with my hand. We are all approximately 2 feet or an arms length apart from each other when we are sleeping in our bunkbeds.”). 23 Aguilar Dec. ¶ 7 (“when I’m lying in bed, if I stretch out my arm, I can touch the bed next to me. I can reach out and touch the other person. And if someone walks between the beds, it’s even closer.”). 24 Erazo Dec. ¶¶ 4-5 (“H Tank was too small for us to engage in social distancing. There were 10 people crammed into the tank. It was impossible to be six feet away from other people… Two of the bunk beds had two people in them, the rest were singles. All the lower bunks were taken. While lying in bed, I could almost touch the person’s head in the bunk bed behind me with my toes. In my bed, I had a bunk bed on my left side, as well as at my feet.”). 25 Aguilar Dec. ¶¶ 11-12.
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number of four-person, two-person, and single cells.26 In the quads, the bunkbeds are very close together—2’11” apart in P-tank and 5’ apart in Q-4 cell. In the double cells, there are fewer people in close quarters, but the upper and lower bunk remain very close, limiting the possibility of social distancing if both bunks are occupied.27
B. Eating
1. Mesa Verde
37. There are two dining halls at Mesa Verde. Mesa Verde uses both dining halls and staggers mealtimes to limit the number of detainees in a dining hall to a maximum of 25 at any given time. The detention center authorities have recently modified meals at Mesa Verde so that individual detainees are eating one person at a table at a time.
38. Detainees still describe limitations in social distancing when they line up for meals, however. As one declarant provided: “When guards call “prep for chow,” we line up in a single file—like elementary school kids lined up for lunch or people lined up for an amusement park ride—inches apart from the person in front and behind us. We wait in line, shoulder to shoulder, for about 20 to 30 minutes to leave our dorm room to go to the dining hall… We have to line up again inches from each other once it’s
26 D, E and F pods each include twenty-two-person cells where individuals sleep in bunk beds. The twoperson cells measure 6’ x 11’7”. The detainees have a shared common area in each pod. In P-tank, there are three two-person cells and one four-person cell, as well as one bunk in a common area, making the total capacity of the tank 12 detainees. Each of the two-person cells have one bunk, one sink and one toilet and are between 52- and 62-square feet. The four-person cell has two bunks 2’11” apart, one sink and one toilet, and is 84 square feet. The common area (310 square feet) has one additional bunk as well as a sink, toilet and table. A-pod has 20 two-person cells measuring 6’x11’7” each and containing a toilet, sink and bunk beds. There is a shared common area used for eating and showering. This has separately been described as an administrative segregation unit for men, though that is not affirmed in Defendants’ responses to the interrogatories. S-tank has capacity for 12 detainees in six two-person cells of 56 square feet each. Each cell has a bunk bed, sink, and toilet. This has separately been described as an administrative segregation unit for women, though that is not affirmed in Defendants’ responses to the interrogatories. There are five “Q cells”— two two-person cells (Q1 and Q2, with one bunk bed, one toilet and one sink and measuring 120 and 93 square feet, respectively), one one-person cell (Q3, with one bed, one sink, and one toilet and measuring 67 square feet), and one four-person cell (Q4, consisting of two bunks, one toilet, and one sink and measuring 165 square feet). Detainees in Q cells use a common shower near the S cells or N-tank. T-tank is a single twoperson unit of 300 square feet with one bunk bed, one toilet, one sink, one shower and one mounted table. (Relying on the Berg Report, in my original declaration, I described “T” as a room with multiple bunks. Defendants’ responses to the interrogatories provide that “T-tank” is now a “two-man unit.”) N-tank consists of 13 separate single cells of 52 square feet each, with one bed, one toilet and one sink in each cell, and a common area with a shared table. 27 Singh Dec. ¶¶ 5, 7 (“I share a cell, and my bunkie and I are very close almost all the time. I sleep on the bottom bunk. When my roommate hangs his hand from the top bunk, it could touch my face. We can’t be more than 2 ½ feet apart. When you’re in the cell, if your roommate didn’t brush their teeth, you can smell their breath. I am locked in my cell with my bunkie for about 18 hours a day.”); Birru Dec. ¶ 5 (“We try to distance ourselves from one another by each staying on our own bunks most of the time, but it is still not six feet apart. We are in our cells for 21 hours every day. It’s really difficult.”).
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Case 3:20-cv-02731-VC Document 229-19 Filed 05/22/20 Page 17 of 33
time for us to go back to our dorm.”28 2. Yuba County Jail
39. Detainees at Yuba County Jail take all meals in their respective housing units. All of the units have shared eating areas – either within the dormitory or in a shared common space – used by up to 20 or more people. In most cases, the dining areas are fixed tables in either a common space separate from the sleeping area or in the middle of the sleeping area or areas.29
40. Defendants have not provided information about the number of seats at each table or how far apart they are from each other. However, photographs depict group tables where detainees would be sitting shoulder to shoulder if neighboring seats were occupied. (See below.)
Photo: “Day room” or common area in one of the tanks30
41. The declarations of class members confirm this. One declarant in the B-pod dormitory described: “Sometimes, we sat right next to each other, and our elbows bumped as we
28 Masoom Dec. ¶ 8. See also Garcia Montes at 9 (“even with staggered meals, we still have to wait in a tight line, inches from people, to leave the dorm and go to the dining hall. There’s no distancing at all. It doesn’t matter that we each sit at our own table to eat because we’re only in the dining hall for 10 minutes. It’s so rushed now, because they’re taking us in smaller groups.”); Trujillo Dec. ¶ 7 (“There are about 25 of us at a time waiting in line to walk to the cafeteria, and while we are in the line, we are very close to one another. It is totally ridiculous because once we get to the cafeteria we sit at separate tables, but to get there we are within arms-length of each other in line and in the dorm.”). 29 There are shared fixed tables in B and C pods, R-dorm, G through L tanks, D-, E-, and F-pods, P-tank, Apod, and N-tank. There is a mounted desk in each double cell in S-tank and some of the Q-cells, and Defendants have provided no information about any shared area or structures for eating in these housing units. There is a mounted table in the double cell in T-tank. 30 Photo confirmed as presently accurate by Plaintiffs’ class member Aroldo Rodriguez Diaz. Photograph previously included as Exhibit to Declaration of Pablo Stewart MD in support of Plaintiffs’ Motion to Enforce Consent Decree and for Further Remedial Orders in Hedrick v. Grant, Case No. 2:76-cv-00162 (E.D. Cal.) (Dkt. 220 at 186, Sept. 1, 2017).
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Case 3:20-cv-02731-VC Document 229-19 Filed 05/22/20 Page 18 of 33
ate.”31 In the tanks, detainees “line up next to [their] bunks to get [their] food” and sit “shoulder to shoulder” at a long table fixed to the floor.32 42. The one-, two-, and four-person cells typically have a fixed desk that may be used for eating, but also may stand in line close together and eat at fixed tables in close proximity.33 (See photo below.)
Photo: common area and shared tables for A-pod34
C. Restrooms 1. Mesa Verde
43. The Mesa Verde dormitories have two shared bathrooms with seven sinks, five toilets and five showers each. There are side partitions between the toilets and the showers. The distance between sinks in each dorm is 24”. The distance between each toilet is 36” in A & B, and 29” in C & D. The distance between each shower is 36” in A & B and 31” in C & D. There are toilet and shower partitions but in all of the dorms, they start above the floor and do not go higher than 42”.
31 Pablo Dec. ¶¶ 6-7 (“[At meal time] we formed a single file line. The person serving stood about five or six feet away from us. I could easily touch the person in front of me in line if I wanted to, and the person behind me could touch me. The tables and benches on the second floor were welded to the ground, so we couldn’t move them … we had to sit close together.”). 32 Marroquin Dec. ¶ 6. Mejia Rosas ¶ 8 (“the dining seats are approximately 7-8 inches apart and we are practically elbow-to-elbow during all three of our meals”); Aguilar Dec. ¶ 10. 33 Singh Dec. ¶ 9 (“[In line,] the room is so small that we can only stand about one foot apart. You could breathe on the neck of the guy in front of you. After you are given your tray, you literally have to tell the last person in line excuse me so you could get by.”). 34 Photo confirmed as presently accurate by Plaintiffs’ class member Aroldo Rodriguez Diaz. Photograph previously included as Exhibit to Declaration of Pablo Stewart MD in support of Plaintiffs’ Motion to Enforce Consent Decree and for Further Remedial Orders in Hedrick v. Grant, Case No. 2:76-cv-00162 (E.D. Cal.) (Dkt. 220 at 169, Sept. 1, 2017).
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44. Detainee declarants describe the lack of capacity for social distancing in the restrooms at Mesa Verde. They have described changes in response to COVID-19 including turning off selected sinks, toilets, showers and urinals to make them inoperable and increase the space between individuals in the bathrooms.35 While this was partially effective in that respect, it led to increased proximity while waiting in line because of the limited number of sinks, toilets, showers and urinals.36 Some detainees also report that this means that people are washing their hands less.37
2. Yuba County Jail
45. In the Yuba dormitories, there are often shared toilets, sinks and showers close to one another—not permitting social distancing in the use of the lavatories.38 This presents a high risk of infection. For instance, B and C pods, which currently have up to twenty people each, have restrooms in their two common areas—together six toilets, six sinks and three showers.39 The toilets are 2’8” apart (and, in one case in each pod, 2’10” apart) and the sinks are 11” apart. This does not allow social distancing in the use of the lavatory. R-dorm has two toilets, two sinks, and two showers for up to 18 detainees, and a current population of seven. The showers are 2’10” apart and the sinks and toilets are each 6’2” apart. This does not allow for social distancing in the showers.40
46. In tanks, people share the restrooms in each tank. Class members describe an inability to socially distance while using the lavatory and photographs depict the proximity of the toilet to others—and to the table where detainees eat. As one declarant described about the toilets in the tank, “Even the toilets are in an open aired space and do not afford any social distancing, let alone privacy.”41 (See photo below.) As another described, “There are three toilets, in a row, that are maybe three feet apart. There is a small separator between the toilets, but no door. So even while you go to the
35 Massom Dec. ¶¶ 14-15; Garcia Montes Dec. ¶ 14; Trujillo Dec. ¶ 10. 36 Id. 37 Garcia Montes Dec. ¶ 14. 38 Pinheiro Dec. ¶ 11 (“The stalls were very close together and when you showered you were only a few feet away from the person next to you, with the only thing separating you from the other person a moveable plastic divider that only covered up the area between your knees up to about your shoulders. There were two toilets in the bathroom, each with a sink. The toilets were only about two feet apart.”) (describing R-dorm); Pablo Dec. ¶ 9 (“The toilets are two or three feet away from each other. When sitting on the toilet, you could see the person next to you.”) (describing B-pod). 39 In the lower common areas, there are two toilets, four sinks and one shower for each pod. In the upper common areas, there are four toilets, two sinks and two showers for each pod. 40 In tanks, people share the restrooms in each tank. In the largest tanks – G-, H-, K-, and L-tanks, which have a capacity of up to 20 people and currently house up to 11 – there are 3 toilets, 3 sinks, and a shower. This includes one toilet, sink and shower in a central common area in the middle of the “tank” and a separate toilet and sink on each of two sleeping sides of the tank. The sinks are 1’9” from the toilets. Up to twelve detainees in J-tank share 2 toilets, 2 sinks and 1 shower. The common area includes a sink and toilet 1’1” apart, and a shower; and the sleeping area includes a separate toilet and sink. The smallest tank, I-tank (which houses up to 8 detainees) there is 1 toilet and 1 sink 1’4” apart and 1 shower. 41 Mejia Rosas Dec. ¶ 15.
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Case 3:20-cv-02731-VC Document 229-19 Filed 05/22/20 Page 20 of 33 bathroom, you can’t get away from other people.”42
Photos above: H-tank common area or “day room” including dining table and lavatory43 47. In some of the single or double cells, there are toilets and sinks within the individual
cells, in addition to shared toilets.44 In these cases, the bigger issue concerns whether
42 Aguilar Dec. ¶ 13. 43 Photo confirmed as presently accurate by Plaintiffs’ class member Aroldo Rodriguez Diaz. Photograph previously included as Exhibit to Declaration of Pablo Stewart MD in support of Plaintiffs’ Motion to Enforce Consent Decree and for Further Remedial Orders in Hedrick v. Grant, Case No. 2:76-cv-00162 (E.D. Cal.) (Dkt. 220 at 191-92, Sept. 1, 2017). 44 Each one- two- or four-person cell in N-tank; A-, D-, E-, and F-pods; P- S- and T-tanks; and the Q cells has its own sink and toilet which may be shared by two or up to four detainees. (P-tank also has a separate sink
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detainees are provided adequate resources for hygiene and sanitation to ensure that the toilets, sinks and showers are cleaned between each use. This is an even more significant issue in the lavatories that are shared by more individuals.
TRANSFERS
48. As the Centers for Disease Control has recommended, and I endorse, transfers between jails or detention centers in the middle of this pandemic are very ill-advised and should only happen in extraordinary circumstances. The CDC specifically recommends “suspend[ing] all transfers of incarcerated/detained persons to and from other jurisdictions and facilities (including work release where relevant), unless necessary for medical evaluation, medical isolation/quarantine, care, extenuating security concerns, or to prevent overcrowding.”45 The justification for this strong recommendation is the same justification that supports the recommendation of public health authorities to shelter in place and limit unnecessary movement: the virus spreads through the movement of infected individuals, with a particularly heightened risk of infectious spread where individuals are moving between congregate living environments.
49. In rare situations where a transfer is absolutely necessary, the CDC advises and I endorse screening and temperature checks, with testing where possible, and the use of personal protective equipment for the transfer, and appropriate isolation immediately subsequent to the transfer until an individual is confirmed to not be infected with COVID.
MEDICAL SEGREGATION
50. As I provided in a previous declaration (¶ 56 of April 19 Declaration), isolation is not a proper solution for people without symptoms or confirmed COVID-19 disease. Being detained in a congregate environment during a pandemic, when congregate environments are known areas of heightened transmission, already has the potential to produce great anxiety and stress for those detained. Isolation may increase the anxiety and stress. Isolation also carries with it various additional risks and harms: less frequent monitoring, potentially delayed access to medical attention, greater risks of suicide or self-harm (with increased related physical and mental health risks for the individual and attendant mental health risks for the population), increased psychological stresses, and increased physical contact from handcuffing in transport and escorting to showers.
51. Isolation resembles solitary confinement (even more so if done in a segregation unit typically used for disciplinary violations and not a medical unit). People without pre-existing mental illness can suffer severe mental deterioration in solitary confinement, including depression,
and toilet 2’8” from each other in a common space.) The housing units then have shared showers elsewhere in the housing unit. For instance, in A-, D- and E-pods there are two showers each for up to 40 detainees. There is a common shower in S-tank in addition to the sinks and toilets found in each two-person cell. N-tank has two shared showers 6’6” apart for use by up to 13 individuals. 45 CDC, “Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities,” May 7, 2020, at https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctional-detention.html.
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self-mutilation and hallucination. These risks and harms of isolation outlined above are exacerbated for people who have pre-existing mental illness. Isolation in these cases can contribute to worsening mental illness.
52. As provided previously (¶ 54 of April 19 Declaration) for people who have confirmed cases or are suspected to have confirmed cases, isolation may be appropriate for public health reasons. The risks and harms from isolation, listed above, remain and are serious. But where there are confirmed or suspected cases in a congregate environment, protection of the public health mandates short-term medical isolation. All efforts should be made to ensure that isolation is identified as medical isolation, not equated with segregation for disciplinary infractions and not in a segregation unit used for disciplinary purposes. If the purpose and time-limited nature of medical isolation is not clearly communicated, and distinguished from disciplinary segregation, the fear of being placed in isolation may deter individuals from coming forward to report symptoms, thus accelerating disease transmission.
53. There are effectively four types of quarantine. First, sequestering, or intake quarantine, is appropriate for fourteen days for a new arrival at a facility with surveillance and prompt isolation of entrants who develop symptoms.
54. Second, anyone who is symptomatic but not yet confirmed positive (i.e., because s/he has not yet been tested or pending test results) should be cohorted in a separate housing unit from others who do not have symptoms.
55. Third, all close contacts of infected individuals should be housed separately and monitored for fourteen days. This requires tracing the intramural contacts of someone who is confirmed infected. For instance, if someone is confirmed infected, those in the individual’s housing unit and those who the individual otherwise came into contact with should be quarantined. In this case it may be appropriate to quarantine as a group though care must be taken to avoid anyone new being added to the group as any new additions must restart the clock for another fourteen days. Members of the group should be monitored at least twice a day for symptoms. If anyone in this cohort develops symptoms or is confirmed positive, they must be removed from the group, tested and housed with suspect cases. If the person tests positive, the clock must be reset and the group must remain in quarantine for fourteen days starting from that time.
56. Fourth, confirmed COVID-19 patients should be placed in medical isolation. Medical isolation for suspected or confirmed cases should continue until the person satisfies the following CDC criteria: (1) the person has been fever-free for 72 hours without feverreducing medications; (2) any other COVID-19 symptoms have improved; and (3) either the individual has tested negative twice at an interval of at least 24 hours between testing; or if testing is unavailable, it has been at least 10 days since symptoms appeared (or if the person did not have symptoms, at least ten days since the first positive COVID-19 test).
57. Segregation or lockdown is not a medically appropriate method for abating the substantial risks of COVID-19. While medical isolation may be necessary to avoid transmission by
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separating out confirmed or suspected cases, isolation of non-confirmed or non-suspected cases is never appropriate and has serious detrimental effects.
58. There are already concerning reports about the improper and detrimental use of isolation for non-confirmed or non-suspected COVID-19 cases at both Mesa Verde and Yuba. Specifically, I understand that an elderly man recently died by apparent suicide at Mesa Verde and his family and lawyer report that he was isolated at the time of his suicide. This is despite his having tested negative for COVID-19 at a hospital prior to his death.46 Declarant Livia Pinheiro also provides in a declaration that she was told that she would be put in a “segregated housing unit” if she identified medical vulnerabilities, and that she was then moved into a segregated housing unit despite having serious mental health issues and no suspected or confirmed COVID-19.47 As outlined above and in my prior declaration, isolation where individuals do not have confirmed or suspected COVID-19 is improper, and such a response to the risk of COVID-19 is inconsistent with medical and public health guidance.48
CONCLUSIONS
59. Despite some population reductions and limited reforms that have been made to the layout and use of the facilities since I provided my initial and first supplemental declarations in this case, I remain very concerned that the conditions at Mesa Verde and Yuba place detainees in particular, but also staff and the surrounding community, at great risk given the COVID-19 pandemic.
60. Certain practices, such as limiting access to toilets and sinks in Mesa Verde, have had unintended adverse consequences of more people waiting in line in close proximity to others and barriers to more regular handwashing. Overall the response by detention center authorities to COVID-19 at these two facilities has not met the challenge of this grave public health threat head-on.
61. It is my opinion that ICE’s response to the threat of COVID-19 in Mesa Verde and Yuba has been woefully inadequate. It remains my professional opinion that the only way to achieve meaningful social distancing in these facilities is to significantly decrease their population levels. Detainees who have provided declarations in this case have described the absolute inability to practice social distancing in sleeping, eating, recreating and using the restroom and this is confirmed by the information provided by Defendants about the layout and population levels at the two facilities.
46 Andrea Castillo, “ICE Said a 74-Year-Old Was Too Dangerous to Release. He Died of Apparent Suicide,” May 20, 2020, at https://www.latimes.com/california/story/2020-05-20/immigrant-ice-detention-suicide-coronavirus. 47 Pinheiro Dec. ¶¶ 17-20. 48 CDC, “COVID-19 Guidance for Correctional and Detention Facilities,” rev. May 7, 2020, at https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html.
21 CASE NO. 3:20-CV-02731-VC DECLARATION OF ROBERT B. GREIFINGER, M.D.

Case 3:20-cv-02731-VC Document 229-19 Filed 05/22/20 Page 24 of 33 Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed this 21st day of May, 2020 in Eastham, Massachusetts. Robert B. Greifinger, M.D.
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Case 3:20-cv-02731-VC Document 229-19 Filed 05/22/20 Page 25 of 33
ROBERT B. GREIFINGER, M.D.

380 Riverside Drive, Apt 4F New York, New York 10025

(646) 559-5279 bob@rgreifinger.com

Physician consultant with extensive experience in development and management of complex community and institutional health care programs. Demonstrated strength in leadership, program development, negotiation, communication, operations and the bridging of clinical and public policy interests. Teacher of health and criminal justice.

SUMMARY OF EXPERIENCE
MEDICAL MANAGEMENT AND QUALITY IMPROVEMENT SERVICES 1995-Present
Consultant on the design, management, operations, quality improvement, and utilization management for correctional health care systems.
• Recent clients include (among others) the U.S. Department of Justice Civil Rights Division, monitoring multiple correctional systems and the U.S. Department of Homeland Security Office of Civil Rights and Civil Liberties. Federal court monitor for the Metropolitan Detention Center, Albuquerque, New Mexico, Orleans Parish Sheriff’s Office, New Orleans, Louisiana, and MiamiDade Corrections and Rehabilitation Department.
• National Commission on Correctional Health Care. Principal Investigator for an NIJ funded project to make recommendations to Congress on identifying public health opportunities in soon-to-bereleased inmates.
• Associate Editor, Puisis M (ed), Clinical Practice in Correctional Medicine, Second Edition, St. Louis. Mosby 2006.
• Editor, Greifinger, RB (ed), Public Health Behind Bars: From Prisons to Communities, New York. Springer 2007.
• John Jay College of Criminal Justice. Professor (adjunct) of Health and Criminal Justice and Distinguished Research Fellow 2005 – 2016.
• Co-Editor, International Journal of Prison Health 2010 – 2016.

NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES

1989 - 1995

Operating budget of $1.4 Billion. Responsible for inmate safety, program, and security. Sixty-nine facilities housing over 68,000 inmates with 30,000 employees.

Deputy Commissioner/Chief Medical Officer, 1989 - 1995

• Operating budget of $140 million; health services staff of 1,100. Accountable for inmate health services and public health. Directed major initiatives in policy and program development, quality and utilization management.
• Developed and implemented comprehensive program for HIV prevention, surveillance, education, and treatment in nation's largest AIDS medical practice.
• Managed the rapid implementation of an infection control program responding to a major outbreak of multidrug-resistant tuberculosis. Helped bring the nation's tuberculosis epidemic to public attention.
• Developed $360 million five-year capital plan for inmate health services. Opened the first of five regional medical units for multispecialty ambulatory and long-term care.

• Implemented a centralized and regional pharmacy system, improving quality, service and cost management.

Case 3:20-cv-02731-VC Document 229-19 Filed 05/22/20 Page 26 of 33
ROBERT B. GREIFINGER, M.D.

MONTEFIORE MEDICAL CENTER, Bronx, NY

1985 - 1989

A major academic medical center with 8,000 employees and annual revenue of $500 million.

Vice President, Health Care Systems, 1986 - 1989

Director, Alternative Delivery Systems, 1985 - 1986

Operating budget of $60 million with 1,100 employees. Managed a multi-specialty group, a home health agency, and prison health programs.
• Negotiated contracts, including bundled service, risk capitation, fee-for-service arrangements, and major service contracts. Developed a high technology home care joint venture.

• Taught epidemiology and health care organization at Albert Einstein College of Medicine. Lectured nationally on health care delivery and managed care.
• Conceived and collaborated in development of a consortium of six academic medical centers, leading to a metropolitan area-wide, joint venture HMO. Organized a network of physicians to contract with HMO's preparing for cost-containment.

WESTCHESTER COMMUNITY HEALTH PLAN, White Plains, NY

1980 - 1985

Independent, not-for-profit, staff-model HMO, acquired by Kaiser-Permanente in 1985. Operating revenue $17 million with 200 employees and 27,000 members.

Vice President and Medical Director

Chief medical officer and COO. Managed the delivery of comprehensive medical services. Accountable to the Board of Directors for quality assurance and utilization management. Practiced pediatrics.
• Accomplished turnaround with automated utilization management, improved service, sound personnel management principles, and quality management programs.
• Implemented performance based compensation program.

COMMUNITY HEALTH PLAN OF SUFFOLK, INC.

1977 - 1980

Community based, not-for-profit, staff model HMO, with enrollment of 18,000.

Medical Director
• Developed and operated clinical services. Accountable for quality of care. Practiced clinical pediatrics, and taught community health and medical ethics at SUNY Stony Brook School of Medicine.

MONTEFIORE MEDICAL CENTER, Bronx, NY

1976 - 1977

Residency Program in Social Medicine, Deputy Director, 1976-1977

Unique clinical training program focused on community health and change agentry. Developed curriculum and supervised 40 residents in internal medicine, pediatrics and family medicine.

UNITED STATES PUBLIC HEALTH SERVICE

1972 - 1974

Commissioned officer in the National Health Service Corps. Functioned as medical director and family physician in a federally funded neighborhood health center in Rock Island, Illinois. Honorable Discharge.

Case 3:20-cv-02731-VC Document 229-19 Filed 05/22/20 Page 27 of 33
ROBERT B. GREIFINGER, M.D.

FACULTY APPOINTMENTS
1976 - 2002 Assistant Professor of Epidemiology and Social Medicine, Albert Einstein College of Medicine
2005 - 2016 Professor (adjunct) of Health and Criminal Justice and Distinguished Research Fellow, John Jay College of Criminal Justice

NATIONAL COMMITTEE FOR QUALITY ASSURANCE

Worked with NCQA since its inception in 1980. Began training surveyors in 1989, and continued as faculty for NCQA sponsored educational sessions. Served for six years as a charter member of the Review Oversight (accreditation) Committee. Served on the Reconsideration (appeals) Committee for six years. Surveyed dozens of managed care organizations, and reviewed several hundred quality management programs.

OTHER PROFESSIONAL ACTIVITIES

2012 – present Member, Board of Directors, Prison Legal Services, New York

2012 – present Member, Board of Directors, National Health Law Program

2011 – 2015 Member, Board of Directors, Academic Consortium of Criminal Justice Health

2010 - 2016 Co-editor, International Journal of Prisoner Health

2009

Recipient, B. Jaye Anno Award for Lifetime Achievement in Communication

2007-2015 Member, National Advisory Group on Academic Correctional Health Care

2007

Recipient, Armond Start Award, Society of Correctional Physicians

2005 - 2011 Member, Advisory Board to the Prisoner Reentry Institute, John Jay College

2002 - present Member, Editorial Board, Journal of Correctional Health Care
2002 - present Peer reviewer for multiple journals, including Journal of Correctional Health Care, International Journal of Prison Health, Journal of Urban Health, Journal of Public Health Policy, Annals of Internal Medicine, American Journal of Public Health, Health Affairs, and American Journal of Drug and Alcohol Abuse.
2001 - 2003 Member, Advisory Board to CDC on Prevention of Viral Hepatitis in Correctional Facilities
1999 - 2003 Member, Advisory Board to CDC on Prevention and Control of Tuberculosis in Jails
1997 - 2003 Member, Reconsideration Committee, NCQA
1997 - 2001 Moderator, Optimal Management of HIV in Correctional Systems, World Health Communications

1997 - 2000 Member, Reproductive Health Guidelines Task Force, CDC 1993 - 1995 Co-chair, AIDS Clinical Trial Community Advisory Board, Albany Medical Center 1992 - Present Society of Correctional Physicians

1991 - 1997 Member, Review Oversight (accreditation) Committee, NCQA

Case 3:20-cv-02731-VC Document 229-19 Filed 05/22/20 Page 28 of 33
ROBERT B. GREIFINGER, M.D.
1983 - 1985 Executive Committee, Medical Directors' Division, Group Health Association of America (Secretary, 1984-1985) EDUCATION
University of Pennsylvania, College of Arts and Sciences, Philadelphia; B.A., 1967 (Amer. Civilization) University of Maryland, School of Medicine, Baltimore; M.D., 1971 Residency Program in Social Medicine (Pediatrics), Montefiore Medical Center, Bronx, NY; 1971-1972,
1974-1976, Chief Resident 1975-1976
CERTIFICATION Diplomate, National Board of Medical Examiners, 1971 Diplomate, American Board of Pediatrics, 1976 Fellow, American Academy of Pediatrics, 1977 Fellow, American College of Physician Executives, 1983 Fellow, American College of Correctional Physicians (formerly Society of Correctional Physicians), 2000 License: New York, Pennsylvania (inactive)

Case 3:20-cv-02731-VC Document 229-19 Filed 05/22/20 Page 29 of 33
ROBERT B. GREIFINGER, M.D.

PUBLICATIONS

Updated February 2018

Greifinger RB, A Summer Program in Life Sciences. Journal of Medical Education 1970; 45: 620-622.
Greifinger RB, Sidel VW, American Medicine - Charity Begins at Home. Environment 1977; 18(4): 718.
Greifinger RB, An Encounter With the System. The New Physician 1977; 26(9): 36-37.
Greifinger RB, Sidel VW, Career Opportunities in Medicine. In Tice's(eds) Practice of Medicine. Hagerstown: Harper & Row 1977; 1(12): 1-49.
Greifinger RB, Grossman RL, Toward a Language of Health. Health Values 1977; 1(5): 207-209.
Grossman RL, Greifinger RB, Encouraging Continued Growth in the Elderly. In Carnevali DL & Patrick M (eds), Nursing Management for the Elderly. Philadelphia: Lippincott 1979: 543-552.
Greifinger RB, Jonas S, Ambulatory Care. In Jonas S (ed), Health Care Delivery in the United States (second edition). New York: Springer 1980: 126-168.
Greifinger RB, Toward a New Direction in Health Screening. In Health Promotion: Who Needs It? Washington: Medical Directors Division, Group Health Association of America 1981: 61-67.
Greifinger RB, Sidel VW, American Medicine. In Lee, Brown & Red (eds), The Nation's Health. San Francisco: Boyd & Fraser 1981: 122-134.
Greifinger RB, Bluestone MS, Building Physician Alliances for Cost-Containment. Health Care Management Review 1986: 63-72.
Greifinger RB, An Ethical Model for Improving the Patient-Physician Relationship. Chicago: Inquiry 1988: 25(4): 467-468.
Glaser J, DeCorato DR, Greifinger RB, Measles Antibody Status of HIV-Infected Prison Inmates. Journal of Acquired Immunodeficiency Syndrome 1991; 4(5): 540-541.
Ryan C, Levy ME, Greifinger RB, et al, HIV Prevention in the U.S. Correctional System, 1991. MMWR 1992; 41(22): 389-397.
Greifinger RB, Keefus C, Grabau J, et al, Transmission of Multidrug- resistant Tuberculosis Among Immunocompromised Persons in a Correctional System. MMWR 1992; 41(26): 509-511.
Greifinger RB, Tuberculosis Behind Bars, in Bruce C Vladeck ed, The Tuberculosis Revival: Individual Rights and Societal Obligations In a Time of AIDS. New York: United Hospital Fund 1992: 5965.
Bastadjian S, Greifinger RB, Glaser JB. Clinical characteristics of male homosexual/bisexual HIVinfected inmates. J AIDS 1992;5:744-5.
Glaser JB, Greifinger R. Measles antibodies in HIV-infected adults. J Infect Dis. 1992 Mar;165(3):589.
Glaser J, Greifinger RB, Correctional Health Care: A Public Health Opportunity. Annals of Internal Medicine 1993; 118(2): 139-145.
Greifinger RB, Glaser JG and Heywood NJ, Tuberculosis In Prison: Balancing Justice and Public Health, Journal of Law, Medicine and Ethics 1993; 21 (3-4):332-341.

Case 3:20-cv-02731-VC Document 229-19 Filed 05/22/20 Page 30 of 33
ROBERT B. GREIFINGER, M.D.
Valway SE, Greifinger RB, Papania M et al, Multidrug Resistant Tuberculosis in the New York State Prison System, 1990-1991, Journal of Infectious Disease 1994; 170(1):151-156.
Wolfe P, Greifinger RB, Prisoners in Service of Public Health: Focus New York State. New York Health Sciences Journal 1994 1(1):35-43.
Valway SE, Richards S, Kovacovich J, Greifinger RB et al, Outbreak of Multidrug-Resistant Tuberculosis in a New York State Prison, 1991. American Journal of Epidemiology 1994 July 15; 140(2):113-22.
Smith HE, Smith LD, Menon A and Greifinger RB, Management of HIV/AIDS in Forensic Settings, in Cournos F(ed), AIDS and People with Severe Mental Illness: A Handbook for Mental Health Professionals. New Haven: Yale Press 1996.
Greifinger RB, La Plus Ca Change . . . ., Public Health Reports 1996 July/August; 111(4):328-9.
Greifinger RB, TB and HIV, Health and Hygiene 1997;18,20-22.
Greifinger RB, Horn M, “Quality Improvement Through Care Management,” chapter in Puisis M (ed), Clinical Practice in Correctional Medicine, St. Louis: Mosby 1998.
Greifinger RB, Glaser JM, “Desmoteric Medicine and the Public’s Health,” chapter in Puisis M (ed), Clinical Practice in Correctional Medicine, St. Louis: Mosby 1998.
Greifinger RB, Commentary: Is It Politic to Limit Our Compassion? Journal of Law, Medicine & Ethics, 27(1999):213-16.
Greifinger RB, Glaser JG and Heywood NJ, “Tuberculosis In Prison: Balancing Justice and Public Health,” chapter in Stern V (ed), Sentenced to die? The problem of TB in prisons in Eastern Europe and Central Asia, London: International Centre for Prison Studies, 1999.
Greifinger RB (Principal Investigator). National Commission on Correctional Healthcare. The Health Status of Soon-to-be-Released Inmates, a Report to Congress. August 2002. http://www.ncchc.org/pubs_stbr.html.
Kraut JR, Haddix AC, Carande-Kulis V and Greifinger RB, Cost-effectiveness of Routine Screening for Sexually Transmitted Diseases among inmates in United States Prisons and Jails. National Commission on Correctional Healthcare. The Health Status of Soon-to-be-Released Inmates, a Report to Congress. August 2002. http://www.ncchc.org/stbr/Volume2/Report5_Kraut.pdf.
Hornung CA, Greifinger RB, and Gadre S, A Projection Model of the Prevalence of Selected Chronic Diseases in the Inmate Population. National Commission on Correctional Healthcare. The Health Status of Soon-to-be-Released Inmates, a Report to Congress. August 2002. http://www.ncchc.org/stbr/Volume2/Report3_Hornung.pdf.
Hornung CA, Anno BJ, Greifinger RB, and Gadre S, Health Care for Soon-to-be-Released Inmates: A Survey of State Prison Systems,” National Commission on Correctional Healthcare. The Health Status of Soon-to-be-Released Inmates, a Report to Congress. August 2002. http://www.ncchc.org/stbr/Volume2/Report1_Hornung.pdf.
Patterson RF & Greifinger RB, Insiders as Outsiders: Race, Gender and Cultural Considerations Affecting Health Outcome After Release to the Community, Journal of Correctional Health Care 10:3 2003; 399-436.
Howell E & Greifinger RB, What is Known about the Cost-Effectiveness of Health Services for Returning Inmates? Journal of Correctional Health Care 10:3 2003; 437-455.
Kraut JR, Haddix AC, Carande-Kulis V and Greifinger RB, Cost-effectiveness of Routine Screening for Sexually Transmitted Diseases among inmates in United States Prisons and Jails, J Urban Health:

Case 3:20-cv-02731-VC Document 229-19 Filed 05/22/20 Page 31 of 33
ROBERT B. GREIFINGER, M.D.
Bulletin of the New York Academy of Medicine 2004: 81(3):453-471. (Finalist, Charles C. Shepard Science Award)
Greifinger RB. Health Status in U.S. and Russian Prisons: More in Common, Less in Contrast. Journal of Public Health Policy 2005 26:60-68. http://www.palgrave-journals.com/cgitaf/DynaPage.taf?file=/jphp/journal/v26/n1/full/3200003a.html&filetype=pdf
Greifinger RB. Health Care Quality Through Care Management, M. Puisis (ed). Clinical Practice in Correctional Medicine, Second Edition. St. Louis. Mosby 2006: pp. 510-519.
Greifinger RB. Pocket Guide Series on tuberculosis, HIV, MRSA, sexually transmitted disease, viral hepatitis and management of outbreaks. See http://www.achsa.org/displaycommon.cfm?an=1&subarticlenbr=23
Greifinger RB. Inmates are Public Health Sentinels. Washington University Journal of Law and Policy. Volume 22 (2006) 253-64.
Greifinger RB. Disabled Prisoners and “Reasonable Accommodation.” Journal of Criminal Justice Ethics. Winter Spring 2006: 2, 53-55.
Mellow J, Greifinger RB. Successful Reentry: The Perspective of Private Health Care Providers. Journal of Urban Health. November 2006 doi:10.1007/s11524-006-9131-9.
Mellow J, Greifinger RB. The Evolving Standard of Decency: Post-Release Planning? Journal of Correctional Health Care January 2008 14(1):21-30.
Williams B, Greifinger RB. Elder Care in Jails and Prisons: Are We Prepared? Journal of Correctional Health Care January 2008 14(1):4-5.
Greifinger RB (editor). Public Health Behind Bars: From Prisons to Communities. Springer. New York 2007.
Greifinger RB. Thirty Years Since Estelle v. Gamble: Looking Forward Not Wayward. Greifinger, RB (ed). Public Health Behind Bars: From Prisons to Communities. Springer. New York 2007.
Patterson RF, Greifinger RB. Treatment of Mental Illness in Correctional Settings. Greifinger, RB (ed). Public Health Behind Bars: From Prisons to Communities. Springer. New York 2007.
MacDonald M, Greifinger RB. and Kane D. Use of electro-muscular disruption devices behind bars: Progress or regress. Editorial',International Journal of Prisoner Health,4:4,169 — 171. 2009.
Hoge SK, Greifinger RB, Lundquist T, Mellow J. Mental Health Performance Measurement in Corrections. International Journal of Offender Therapy and Criminology, 53:6 634-47, 2009. Abstract accessed January 12, 2010 at http://www.ncjrs.gov/App/Publications/abstract.aspx?ID=251100.
Williams BA, Lindquist K . . . Greifinger RB et al. Caregiving Behind Bars: Correctional Officer Reports of Disability in Geriatric Prisoners. J Am Geriatr Soc 57:1286–1292, 2009.
Baillargeon J, Williams B . . . Greifinger RB, et al. Parole Revocation among Prison Inmates with Psychiatric and Substance Use Disorders. Psychiatric Services 60:11: 1516-21, 2009.
Parvez FM, Lobato MN, Greifinger RB. Tuberculosis Control: Lessons for Outbreak Preparedness in Correctional Facilities. Journal of Correctional Health Care OnlineFirst, published on May 12, 2010 as doi:10.1177/1078345810367593.
Stern MF, Greifinger RB, Mellow J. Patient Safety: Moving the Bar in Prison Health Care Standards. Am J Public Health. Nov 2010; 100: 2103 - 2110.
Blair P, Greifinger R, Stone TH, & Somers S. Increasing Access to Health Insurance Coverage for Pretrial Detainees and Individuals Transitioning from Correctional Facilities Under the Patient

Case 3:20-cv-02731-VC Document 229-19 Filed 05/22/20 Page 32 of 33
ROBERT B. GREIFINGER, M.D.
Protection and Affordable Care Act. American Bar Association. Accessed on March 23, 2011 at http://www.cochs.org/files/ABA/aba_final.pdf
Williams BA, Sudore RL, Greifinger R, Morrison RS. Balancing Punishment and Compassion for Seriously Ill Prisoners. Ann Int Med 2011; 155:122-126.
Weilandt C, Greifinger RB , Hariga F. HIV in Prison: New Situation and Risk Assessment Toolkit. Int. J. Prisoner Health 2011; 7(2/3):17-22.
Williams, B., Stern, M., Mellow, J., Safer, M., Greifinger, RB. Aging in correctional custody: Setting a policy agenda for older prisoner health. Am J Public Health. Published online ahead of print June 14, 2012: e1– e7. doi:10.2105/AJPH.2012.300704.
Greifinger, RB. Independent review of clinical health services for prisoners. Int. J. Prisoner Health 2012; 8(3/4):141-150.
Greifinger RB. Facing the facts, Int J Prisoner Health, Vol. 8 (3/4) (editorial).
Greifinger, RB. The Acid Bath of Cynicism. Correctional Law Reporter June/July 2013: 3, 14, 16.
Ahalt C, Trestman RL, Rich JD, Greifinger RB, Williams BA. Paying the price: the pressing need for quality, cost and outcomes data to improve correctional healthcare for older prisoners. J Am Geriatr Soc 61:2013– 2019, 2013.
Williams BA, Ahalt C, Greifinger RB. The older prisoner and complex medical care. Chapter in WHO guide Prisons and Health. WHO Copenhagen. 2014: 165-170.
Rich JD, Chandler R . .. . Greifinger RB et al. How health care reform can transform the health of criminal justice-involved individuals. Health Affairs 33, No. 3(2014: -
Allen SA, Greifinger RB. Asserting Control: A Cautionary Tale. International Journal of Prisoner Health 11:3, 2015.
Junod V, Wolff H, Scholten W, Novet B, Greifinger R, Dickson C & Simon O. Methadone versus torture: The perspective of the European Court of Human Rights. Heroin Addict Relat Clin Probl. Heroin Addict Relat Clin Probl 2018; 20(1): 31-36.
Pont J, Enggist S, Stover H, Williams B, Greifinger R, Wolff H. Prison Health Care Governance: Guaranteeing Clinical Independence. Published online ahead of print February 22, 2018.
ABSTRACTS & RESEARCH PRESENTATIONS Mikl J, Kelley K, Smith P, Greifinger RB, Morse D, Survival Among New York State Prison Inmates
With AIDS. Florence: Seventh International Conference on AIDS 1991 (poster session). Sherman M, Coles B, Buehler J, Greifinger RB, Smith P, The HIV Epidemic in Inmates. Atlanta: Centers
for Disease Control. 1991 Mikl J, Kelley K, Smith P, Greifinger RB, Morse D, Survival Among New York State Prison Inmates
With AIDS, American Public Health Association. 1991 (poster session) Mikl J, Smith P, Greifinger RB, Forte A, Foster J, Morse D, HIV Seroprevalence of Male Inmates
Entering the New York State Correctional System. American Public Health Association. 1991 (poster session) Valway SE, Richards S, Kovacovich J, Greifinger R, Crawford J, Dooley SW. Transmission of Multidrug-resistant Tuberculosis in a New York State Prison, 1991. Abstract No 15-15, In: World Congress on TB Program and Abstracts, Washington, D.C., November, 1992.

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ROBERT B. GREIFINGER, M.D.
Mikl J, Smith PF, Greifinger RB, HIV Seroprevalence Among New York State Prison Entrants. Ninth International Conference on AIDS 1993 (Poster Session)
Hornung CA, Greifinger RB, McKinney WP. Projected Prevalence of Diabetes Mellitus in the Incarcerated Population. J Gen Int Med 14 (Supplement 2):40, April 1999.

 
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WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org SEAN RIORDAN (SBN 255752) sriordan@aclunc.org ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: (415) 553-9319 Facsimile: (415) 553-9810

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUBI RUIZ TOVAR, LAWRENCE KURIA MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,

CASE NO. 3:20-CV-02731-VC DECLARATION OF WILLIAM S. FREEMAN IN SUPPORT OF PETITIONERS-PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Petitioners-Plaintiffs,

v.

DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,

Respondents-Defendants.

CASE NO. 3:20-CV-02731-VC DECLARATION OF WILLIAM S. FREEMAN

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BREE BERNWANGER* (NY SBN 5036397) bbernwanger@lccrsf.org HAYDEN RODARTE (SBN 329432) hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA 131 Steuart St #400 San Francisco, CA 94105 Telephone: (415) 814-7631
JUDAH LAKIN (SBN 307740) judah@lakinwille.com AMALIA WILLE (SBN 293342) amalia@lakinwille.com LAKIN & WILLE LLP 1939 Harrison Street, Suite 420 Oakland, CA 94612 Telephone: (510) 379-9216 Facsimile: (510) 379-9219

MARTIN S. SCHENKER (SBN 109828) mschenker@cooley.com COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111 Telephone: (415) 693-2000 Facsimile: (415) 693-2222
TIMOTHY W. COOK* (Mass. BBO# 688688) tcook@cooley.com FRANCISCO M. UNGER* (Mass. BBO# 698807) funger@cooley.com COOLEY LLP 500 Boylston Street Boston, MA 02116 Telephone: (617) 937-2300 Facsimile: (617) 937-2400

JORDAN WELLS (SBN 326491) jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568) spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA 1313 West Eighth Street Los Angeles, CA 90017 Telephone: (213) 977-9500 Facsimile: (213) 977-5297

Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice

CASE NO. 3:20-CV-02731-VC DECLARATION OF WILLIAM S. FREEMAN

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I, William S. Freeman, declare: 1. I am an attorney admitted to practice in California and a member of the bar of this
Court. I am employed at the American Civil Liberties Union of Northern California and cocounsel for Petitioners-Plaintiffs in this action. I submit this declaration in support of PetitionersPlaintiffs’ Motion for Preliminary Injunction. I have personal knowledge of the facts stated in this declaration.
2. Attached as Exhibit A hereto is a true and correct copy of Federal Defendants’ Objections and Responses to Plaintiffs’ Initial Set of Interrogatories.
3. Attached as Exhibit B hereto is a true and correct copy of Federal Defendants’ Corrected Supplemental Objections and Responses to Plaintiffs’ Initial Set of Interrogatories.
4. Attached as Exhibit C hereto is a true and correct copy of Federal Defendants’ Second Supplemental Objections and Responses to Plaintiffs’ Initial Set of Interrogatories.
5. Attached as Exhibit D hereto is a true and correct copy of Federal Defendants’ Third Supplemental Objections and Responses to Plaintiffs’ Initial Set of Interrogatories.
6. Attached as Exhibit E hereto is a true and correct copy of Federal Defendants’ Fourth Supplemental Objections and Responses to Plaintiffs’ Initial Set of Interrogatories.
I declare under penalty of perjury that the foregoing is true and correct. Executed this 21st day of May 2020 in Hillsborough, California.
/s/ William S. Freeman William S. Freeman
1 CASE NO. 3:20-CV-02731-VC DECLARATION OF WILLIAM S. FREEMAN

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Exhibit A

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DAVID L. ANDERSON (CABN 149604) United States Attorney
SARA WINSLOW (DCBN 457643) Chief, Civil Division
WENDY M. GARBERS (CABN 213208) ADRIENNE ZACK (CABN 291629) SHIWON CHOE (CABN 320041) Assistant United States Attorneys
450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Telephone: (415) 436-6967 Facsimile: (415) 436-6748 wendy.garbers@usdoj.gov adrienne.zack@usdoj.gov shiwon.choe@usdoj.gov
Attorneys for Federal Defendants
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, et al., Plaintiffs,
v. DAVID JENNINGS, et al.,
Defendants.

) CASE NO. 3:20-cv-02731-VC ) ) FEDERAL DEFENDANTS’ OBJECTIONS AND ) RESPONSES TO PLAINTIFFS’ INITIAL SET ) OF INTERROGATORIES ) ) ) ) )

FED. DEFS.’ OBJS. AND RESPS. TO PLS.’ INITIAL SET OF INTERROGS. No. 3:20-cv-02731-VC

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INTRODUCTION Pursuant to Federal Rules of Civil Procedure 26 and 33, defendants David Jennings, Matthew T. Albence, and U.S. Immigration and Customs Enforcement (“ICE”) (“Federal Defendants”) hereby submit their objections and responses to Plaintiffs’ Initial Set of Interrogatories sent to Federal Defendants’ counsel on April 29, 2020.
GENERAL OBJECTIONS Federal Defendants assert and incorporate by reference the following general objections as though they were set forth in full in each response: 1. Federal Defendants object to the Interrogatories to the extent they call for the production of information that is beyond the scope of this lawsuit and, therefore, not relevant to any party’s claim or defense and not proportional to the needs of this case under Federal Rule of Civil Procedure 26(b)(1). 2. Federal Defendants object to the Interrogatories to the extent they call for the production of information protected by the attorney-client privilege, the work-product doctrine, the deliberativeprocess privilege, the law enforcement/investigatory files privilege, and/or any other privilege or protection from disclosure. 3. Federal Defendants object to the Interrogatories to the extent they seek to impose obligations beyond those imposed by the Federal Rules of Civil Procedure and/or the Rules or Orders of the Court. 4. Federal Defendants object to the Interrogatories to the extent they call for the production of information that is equally available to Plaintiffs. 5. Federal Defendants object to the Interrogatories to the extent they call for the production of information that, if disclosed, would threaten or undermine the security of any detention facility. Cf. Bell v. Wolfish, 441 U.S. 520, 546–47 (1979) (recognizing essential goals of maintaining security of detention facilities and preserving internal order). 6. Federal Defendants object to the abbreviated time period that they were afforded to respond to the Interrogatories, which is well below the thirty days normally afforded under the Federal Rules.

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RESPONSES TO PLAINTIFFS’ INITIAL SET OF INTERROGATORIES INTERROGATORY NO. 1:
Provide descriptions of all housing units housing ICE detainees in Yuba County Jail and Mesa Verde Detention Facility, including the following information for each. In lieu of written response to any subpart, you may provide plans, or drawings that provide all of the information requested (see Document Request No. 1):
a. Facility (Yuba County Jail or Mesa Verde Detention Facility) b. Name of unit. c. Type of unit (e.g., dorm, pod, single cell, double cell, etc.) d. Dimensions (width x length x height in feet). e. If the housing unit contains more than one bed, how far apart are the beds (if the
distances vary, all distances should be provided)? f. Where bunk beds are used, what is the vertical distance between the bunks? OBJECTIONS AND RESPONSES TO INTERROGATORY NO. 1: Subject to and without waiver of their objections, Federal Defendants respond to Interrogatory No. 1 with respect to the Mesa Verde ICE Processing Center (“Mesa Verde”), to the best of their knowledge and upon reasonable inquiry in the abbreviated time period they have had to respond to the Interrogatories, as follows. a. Mesa Verde ICE Processing Center b. Dorms A, B, C, and D c. Dormitory-style housing with a maximum capacity of 100 detainees per unit. d. A-Dorm: 59.6’ by 95’ by 9.9’
B-Dorm: 60.3’ by 88.4’ by 9.9’ C-Dorm: 60.5’ by 96.1’ by 9.9’ D-Dorm: 60.3’ by 88.9’ by 9.9’ e. See appendix. f. The dormitories have 100 beds (50 bunk beds). The distance between the bottom and top

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bed platforms is 49”. The bunks beds are situated against two different walls opposite each other with a walkway in the middle that measures at least 8’ wide in every dorm. INTERROGATORY NO. 2: Provide information or documents sufficient to show the total number of shower-rooms and bathrooms, and the number of shower-rooms and bathrooms per unit/pod, accessible to ICE detainees in, respectively, Yuba County Jail and Mesa Verde Detention Facility. For each shower-room or bathroom, indicate the dimensions of such room and the distance between (1) showers (2) sinks and (3) toilets. OBJECTIONS AND RESPONSES TO INTERROGATORY NO. 2: Subject to and without waiver of their objections, Federal Defendants respond to Interrogatory No. 2 with respect to Mesa Verde, to the best of their knowledge and upon reasonable inquiry in the abbreviated time period they have had to respond to the Interrogatories, as follows. Each dorm has two identical common-use bathrooms, and each bathroom has 7 sinks, 5 toilets, and 5 showers. Each toilet is in a stall with side partitions and a front gate. The showers have side partitions and a shower curtain for the front. A-Dorm: Number of bathrooms: 2 standard bathrooms (7 sinks, 5 toilets, and 5 showers in each), plus 2 ADA bathrooms (single toilet/sink/shower stall) Dimensions of standard bathrooms: 8.2’ by 50.8’ Number of sinks in each standard bathroom: 7 Distance between each sink: 24” Number of toilets in each standard bathroom: 5 Distance between each toilet (stalls): 36” Side partition dimensions between each toilet: 39” (w) by 36” (h) and 12” from the floor Number of showers in each standard bathroom: 5 Side partition dimensions between showers: 39” (w) by 42” (h) and 19.5” from the floor Distance between each shower (stalls): 36” Dimensions of ADA bathrooms: 85 square feet

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B-Dorm:

Number of bathrooms: 2 standard bathrooms (7 sinks, 5 toilets, and 5 showers in each), plus 1

ADA bathroom (single toilet/sink/shower stall)

Dimensions of standard bathrooms: 8.2’ by 50.8’

Number of sinks in each standard bathroom: 7

Distance between each sink: 24”

Number of toilets in each standard bathroom: 5

Distance between each toilet (stalls): 36”

Side partition dimensions between each toilet: 39” (w) by 42” (h) and 19.5” from floor

Number of showers in each standard bathroom: 5

Distance between each shower (stalls): 36”

Side partition dimensions between each shower: 39” (w) by 42” (h) and 19.5” from floor

ADA bathroom: 1

Dimensions of ADA bathroom: 85 square feet

C-Dorm:

Number of bathrooms: 2 standard bathrooms (7 sinks, 5 toilets, and 5 showers in each)

Dimensions of standard bathrooms: 7.2’ by 45.8’

Number of sinks in each standard bathroom: 7

Distance between each sink: 24”

Number of toilets in each standard bathroom: 5

Distance between each toilet (stalls): 29”

Side partition dimensions between each toilet: 39” (w) x 36: (h) and 12” from the floor

Number of showers in each standard bathroom: 5

Distance between each shower (stalls): 31”

Side partitions dimensions between each shower: 39” (w) x 42” (h) and 19.5” from the floor

D-Dorm:

Number of bathrooms: 2 standard bathrooms (7 sinks, 5 toilets, and 5 showers in each)

Dimensions of standard bathrooms: 7.5’ by 45.8’

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Number of sinks in each standard bathroom: 7

Distance between each sink: 24”

Number of toilets in each standard bathroom: 5

Distance between each toilet (stalls): 29”

Side partition dimensions between each toilet: 39” (w) x 36” (h) and 12” from floor

Number of showers in each standard bathroom: 5

Distance between each shower (stalls): 31”

Side partition dimensions between each shower: 39” (w) x 42” (h) and 19.5” from the floor INTERROGATORY NO. 3:

Provide the name (or other identifying information) and dimensions of each recreation area used

by ICE detainees in the Yuba County Jail and Mesa Verde Detention Facility. OBJECTIONS AND RESPONSES TO INTERROGATORY NO. 3:

Subject to and without waiver of their objections, Federal Defendants respond to Interrogatory

No. 3 with respect to Mesa Verde, to the best of their knowledge and upon reasonable inquiry in the

abbreviated time period they have had to respond to the Interrogatories, as follows.

Mesa Verde has two recreation areas. The main yard is 27,493 square feet (an irregular

quadrilateral with sides of 159’ by 73.5’ by 260.2’ by 255.11’). It has six picnic tables, a half-court

basketball court, a handball court, a soccer playing area, and stationary exercise equipment. The smaller

yard is 4,176 square feet (a rectangle of 42.10’ by 99.2’). It has four metal picnic tables, two benches,

and stationary equipment. INTERROGATORY NO. 4:

State how many dining rooms serving ICE detainees are currently operating in, respectively,

Yuba County Jail and Mesa Verde Detention Facility. For each dining room serving ICE detainees, state

the number of residents that occupy each room at one time, whether seats are fixed or moveable, and, if

fixed, the distance between seats and, if moveable, the number of seats per table and the dimensions of

each table. OBJECTIONS AND RESPONSES TO INTERROGATORY NO. 4:

Subject to and without waiver of their objections, Federal Defendants respond to Interrogatory

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No. 4 with respect to Mesa Verde, to the best of their knowledge and upon reasonable inquiry in the abbreviated time period they have had to respond to the Interrogatories, as follows.
Mesa Verde has two dining halls, one on each floor. The dining hall on the first floor is used for meal services for all detainees. The dining hall on the second floor is primarily used for detainee program activities, such as indoor recreation during inclement weather, religious activities, and volunteer functions. Each dorm has its own meal period. Due to the varying classification levels of the detainees, the dormitories may not co-mingle. The number of detainees that occupy the dining hall at one time varies depending on the population of the dorms at any given time. The dining hall has a maximum capacity of 80 people. There are 20 circular tables, 18 with four fixed seats and 2 with three fixed seats and a space for wheelchair access or removable chairs. The table width is 42”. The distance between the seats is 32” (edge to edge) or 38” (center to center). The diagonal stool distance is 51”.
(continued on next page)

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INTERROGATORY NO. 5: Please provide an explanation of whether it is feasible for ICE to stagger meal times for ICE
detainees in the two facilities and, if so, how many additional shifts can be accommodated at each facility. If defendants contend that staggering meal times is not feasible, please explain why not. OBJECTIONS AND RESPONSES TO INTERROGATORY NO. 5:
Subject to and without waiver of their objections, Federal Defendants respond to Interrogatory No. 5 with respect to Mesa Verde, to the best of their knowledge and upon reasonable inquiry in the abbreviated time period they have had to respond to the Interrogatories, as follows.
Generally, meals times are staggered for each dorm because of the varying classification levels. ICE intends to utilize both dining halls at this time so that there are fewer detainees in the dining hall at any given meal period to accommodate social distancing.

DATED: May 8, 2020

DAVID L. ANDERSON United States Attorney
s/Shiwon Choe SHIWON CHOE Assistant United States Attorney
Attorneys for Federal Defendants

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Case 3:20-cv-02731-VC Document 229-20 Filed 05/22/20 Page 13 of 79 APPENDIX - INTERROGATORY 1.e

Bunks Edge-edge
Bunks Edge-edge
Bunks Edge-edge
Bunks Edge-edge

1-2 71
17-18 38
26-27 36
37-38 68

2-3 35
18-19 90
27-28 36
38-39 46

3-4 36
19-20 94
28-29 36
39-40 46

4-5 38
20-21 38
29-30 38
40-41 41

5-6 37
21-22 37
30-31 64
41-42 66

6-7 38
22-23 50
31-32 37
42-43 47

A-dorm

7-8

8-9

37

37

23-24 40

24-25 39

32-33 37

33-34 160

43-44 61

44-45 38

9-10 38
34-35 38
45-46 42

10-11 37
35-36 37
46-47 43

11-12 38
47-48 43

12-13 34
48-49 46

13-14 38
49-50 44

14-15 36

15-16 37

Bunks Edge-edge
Bunks Edge-edge
Bunks Edge-edge
Bunks Edge-edge

1-2 38
15-16 33
26-27 37
36-37 38

2-3 52
16-17 42
27-28 36
37-38 37

3-4 38
17-18 202
28-29 39
38-39 37

4-5 43
18-19 38
29-30 79
39-40 37

5-6 49
19-20 38
30-31 38
40-41 37

6-7 38
20-21 38
31-32 37
41-42 38

B-dorm 7-8 64
21-22 36
32-33 90
42-43 36

8-9 60
22-23 36
33-34 37
43-44 35

9-10 40
23-24 36
34-35 36
44-45 38

10-11 52
24-25 34
45-46 36

11-12 69
46-47 38

12-13 38
47-48 37

13-14 52
48-49 36

49-50 36

Bunks Edge-edge
Bunks Edge-edge
Bunks Edge-edge
Bunks Edge-edge

1-2 37
15-16 42
26-27 37
37-38 70

2-3 38
16-17 61
27-28 35
38-39 38

3-4 38
17-18 37
28-29 52
39-40 52

4-5 38
18-19 38
29-30 37
40-41 42

5-6 39
19-20 37
30-31 38
41-42 57

6-7 38
20-21 38
31-32 53
42-43 38

C-dorm 7-8 36
21-22 73
32-33 36
43-44 57

8-9 37
22-23 41
33-34 35
44-45 40

9-10 37
23-24 38
34-35 36
45-46 56

10-11 38
24-25 36
35-36 37
46-47 39

11-12 38
47-48 56

12-13 38
48-49 39

13-14 38
49-50 61

D-dorm

Bunks

1-2

2-3

3-4

4-5

5-6

6-7

7-8

8-9

9-10

10-11

11-12

12-13

13-14

Edge-edge

65

38

34

47

56

46

45

38

67

47

46

50

62

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Bunks Edge-edge
Bunks Edge-edge
Bunks Edge-edge

15-16 39
26-27 56
36-37 37

16-17 35
27-28 37
37-38 38

17-18 35
28-29 41
38-39 37

18-19 32
29-30 38
39-40 38

19-20 74
30-31 36
40-41 37

20-21 36
31-32 36
41-42 39

21-22 40
32-33 36
42-43 37

22-23 30
33-34 45
43-44 39

23-24 33
34-35 37
44-45 38

24-25 36
45-46 35

46-47 37

47-48 38

48-49 38

49-50 60

Case 3:20-cv-02731-VC Document 229-20 Filed 05/22/20 Page 15 of 79
VERIFICATION OF INTERROGATORY RESPONSES I, Alex Pham, declare under penalty of perjury: I am employed by U.S. Immigration and Customs Enforcement (“ICE”) as an Assistant Field Office Director. I am authorized to make this verification on behalf of Federal Defendants for their Responses to Plaintiffs’ Initial Set of Interrogatories. I have read and know the contents of these Responses. These Responses were prepared after obtaining information reasonably available to ICE through its officers and employees. These Responses, subject to inadvertent and undiscovered errors, are true and correct to the best of my knowledge, information, and belief. Executed this 8th day of May 2020.
ALEX PHAM

Case 3:20-cv-02731-VC Document 229-20 Filed 05/22/20 Page 16 of 79
CERTIFICATE OF SERVICE I hereby certify that on this 8th day of May 2020, a true and correct copy of Federal Defendants’ Objections and Responses to Plaintiffs’ Initial Set of Discovery Requests was served via electronic mail on Marty Schenker, counsel for Plaintiffs.
DAVID L. ANDERSON United States Attorney s/Shiwon Choe SHIWON CHOE Assistant United States Attorney Attorneys for Federal Defendants

Case 3:20-cv-02731-VC Document 229-20 Filed 05/22/20 Page 17 of 79
Exhibit B

Case 3:20-cv-02731-VC Document 229-20 Filed 05/22/20 Page 18 of 79

DAVID L. ANDERSON (CABN 149604) United States Attorney
SARA WINSLOW (DCBN 457643) Chief, Civil Division
WENDY M. GARBERS (CABN 213208) ADRIENNE ZACK (CABN 291629) SHIWON CHOE (CABN 320041) Assistant United States Attorneys
450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Telephone: (415) 436-6967 Facsimile: (415) 436-6748 wendy.garbers@usdoj.gov adrienne.zack@usdoj.gov shiwon.choe@usdoj.gov
Attorneys for Federal Defendants
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, et al., Plaintiffs,
v. DAVID JENNINGS, et al.,
Defendants.

) CASE NO. 3:20-cv-02731-VC ) ) FEDERAL DEFENDANTS’ CORRECTED ) SUPPLEMENTAL OBJECTIONS AND ) RESPONSES TO PLAINTIFFS’ INITIAL SET ) OF INTERROGATORIES ) ) ) )

FED. DEFS.’ CORRECTED SUPPL. OBJS. AND RESPS. TO PLS.’ INITIAL SET OF INTERROGS. No. 3:20-cv-02731-VC

Case 3:20-cv-02731-VC Document 229-20 Filed 05/22/20 Page 19 of 79

INTRODUCTION Pursuant to Federal Rules of Civil Procedure 26 and 33, defendants David Jennings, Matthew T. Albence, and U.S. Immigration and Customs Enforcement (“ICE”) (“Federal Defendants”) hereby submit their objections and responses to Plaintiffs’ Initial Set of Interrogatories sent to Federal Defendants’ counsel on April 29, 2020.
GENERAL OBJECTIONS Federal Defendants assert and incorporate by reference the following general objections as though they were set forth in full in each response: 1. Federal Defendants object to the Interrogatories to the extent they call for the production of information that is beyond the scope of this lawsuit and, therefore, not relevant to any party’s claim or defense and not proportional to the needs of this case under Federal Rule of Civil Procedure 26(b)(1). 2. Federal Defendants object to the Interrogatories to the extent they call for the production of information protected by the attorney-client privilege, the work-product doctrine, the deliberativeprocess privilege, the law enforcement/investigatory files privilege, and/or any other privilege or protection from disclosure. 3. Federal Defendants object to the Interrogatories to the extent they seek to impose obligations beyond those imposed by the Federal Rules of Civil Procedure and/or the Rules or Orders of the Court. 4. Federal Defendants object to the Interrogatories to the extent they call for the production of information that is equally available to Plaintiffs. 5. Federal Defendants object to the Interrogatories to the extent they call for the production of information that, if disclosed, would threaten or undermine the security of any detention facility. Cf. Bell v. Wolfish, 441 U.S. 520, 546–47 (1979) (recognizing essential goals of maintaining security of detention facilities and preserving internal order). 6. Federal Defendants object to the abbreviated time period that they were afforded to respond to the Interrogatories, which is well below the thirty days normally afforded under the Federal Rules.

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SUPPLEMENTAL RESPONSES TO PLAINTIFFS’ INITIAL SET OF INTERROGATORIES INTERROGATORY NO. 1:

Provide descriptions of all housing units housing ICE detainees in Yuba County Jail and Mesa

Verde Detention Facility, including the following information for each. In lieu of written response to

any subpart, you may provide plans, or drawings that provide all of the information requested (see

Document Request No. 1):

a. Facility (Yuba County Jail or Mesa Verde Detention Facility)

b. Name of unit.

c. Type of unit (e.g., dorm, pod, single cell, double cell, etc.)

d. Dimensions (width x length x height in feet).

e. If the housing unit contains more than one bed, how far apart are the beds (if the

distances vary, all distances should be provided)?

f. Where bunk beds are used, what is the vertical distance between the bunks? OBJECTIONS AND RESPONSES TO INTERROGATORY NO. 1:

Subject to and without waiver of their objections, Federal Defendants respond to Interrogatory

No. 1 with respect to the Yuba County Jail (“Yuba”), to the best of their knowledge and upon reasonable

inquiry in the abbreviated time period they have had to respond to the Interrogatories, as follows.

See appendix. INTERROGATORY NO. 2:

Provide information or documents sufficient to show the total number of shower-rooms and

bathrooms, and the number of shower-rooms and bathrooms per unit/pod, accessible to ICE detainees in,

respectively, Yuba County Jail and Mesa Verde Detention Facility. For each shower-room or bathroom,

indicate the dimensions of such room and the distance between (1) showers (2) sinks and (3) toilets. OBJECTIONS AND RESPONSES TO INTERROGATORY NO. 2:

Subject to and without waiver of their objections, Federal Defendants respond to Interrogatory

No. 2 with respect to Yuba, to the best of their knowledge and upon reasonable inquiry in the

abbreviated time period they have had to respond to the Interrogatories, as follows.

See appendix.

FED. DEFS.’ SUPPL. OBJS. AND RESPS. TO PLS.’ INITIAL SET OF INTERROGS.

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Case 3:20-cv-02731-VC Document 229-20 Filed 05/22/20 Page 21 of 79

INTERROGATORY NO. 3:

Provide the name (or other identifying information) and dimensions of each recreation area used

by ICE detainees in the Yuba County Jail and Mesa Verde Detention Facility. OBJECTIONS AND RESPONSES TO INTERROGATORY NO. 3:

Subject to and without waiver of their objections, Federal Defendants respond to Interrogatory

No. 3 with respect to Yuba, to the best of their knowledge and upon reasonable inquiry in the

abbreviated time period they have had to respond to the Interrogatories, as follows.

Yuba has two recreation areas. One recreational area is called the Roof Recreational Area. It is

located outside on the roof of the jail. The area is approximately 1,402 sq. ft. The second area is called

the Recreational Yard, which is an exercise yard approximately 1,165 sq. ft. INTERROGATORY NO. 4:

State how many dining rooms serving ICE detainees are currently operating in, respectively,

Yuba County Jail and Mesa Verde Detention Facility. For each dining room serving ICE detainees, state

the number of residents that occupy each room at one time, whether seats are fixed or moveable, and, if

fixed, the distance between seats and, if moveable, the number of seats per table and the dimensions of

each table. OBJECTIONS AND RESPONSES TO INTERROGATORY NO. 4:

Subject to and without waiver of their objections, Federal Defendants respond to Interrogatory

No. 4 with respect to Yuba, to the best of their knowledge and upon reasonable inquiry in the

abbreviated time period they have had to respond to the Interrogatories, as follows.

ICE detainees at Yuba take all meals in their respective housing units (as opposed to dining

rooms). INTERROGATORY NO. 5:

Please provide an explanation of whether it is feasible for ICE to stagger meal times for ICE

detainees in the two facilities and, if so, how many additional shifts can be accommodated at each

facility. If defendants contend that staggering meal times is not feasible, please explain why not. OBJECTIONS AND RESPONSES TO INTERROGATORY NO. 5:

Subject to and without waiver of their objections, Federal Defendants respond to Interrogatory

FED. DEFS.’ SUPPL. OBJS. AND RESPS. TO PLS.’ INITIAL SET OF INTERROGS.

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No. 5 with respect to Yuba, to the best of their knowledge and upon reasonable inquiry in the abbreviated time period they have had to respond to the Interrogatories, as follows.
This interrogatory is inapplicable to Yuba, as ICE detainees at Yuba take all meals in their respective housing units (as opposed to dining rooms).

DATED: May 12, 2020

DAVID L. ANDERSON United States Attorney
s/Shiwon Choe SHIWON CHOE Assistant United States Attorney
Attorneys for Federal Defendants

FED. DEFS.’ SUPPL. OBJS. AND RESPS. TO PLS.’ INITIAL SET OF INTERROGS.

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VERIFICATION OF INTERROGATORY RESPONSES I, Dana Fishburn, declare under penalty of perjury: I am employed by U.S. Immigration and Customs Enforcement (“ICE”) as an Assistant Field Office Director. I am authorized to make this verification on behalf of Federal Defendants for their Corrected Supplemental Responses to Plaintiffs’ Initial Set of Interrogatories. I have read and know the contents of these Responses. These Responses were prepared after obtaining information reasonably available to ICE through its officers and employees. These Responses, subject to inadvertent and undiscovered errors, are true and correct to the best of my knowledge, information, and belief. Executed this 12th day of May 2020.
s/Dana Fishburn Dana Fishburn

Case 3:20-cv-02731-VC Document 229-20 Filed 05/22/20 Page 24 of 79
CERTIFICATE OF SERVICE I hereby certify that on this 12th day of May 2020, a true and correct copy of Federal Defendants’ Corrected Supplemental Objections and Responses to Plaintiffs’ Initial Set of Discovery Requests was served via electronic mail on Marty Schenker, counsel for Plaintiffs.
DAVID L. ANDERSON United States Attorney s/Shiwon Choe SHIWON CHOE Assistant United States Attorney Attorneys for Federal Defendants

Case 3:20-cv-02731-VC Document 229-20 Filed 05/22/20 Page 25 of 79
APPENDIX — YUBA COUNTY JAIL
A-POD
A two-story pod of two-man cells. Ten cells are located on the lower level with an additional ten cells on the upper level. Each cell contains a toilet, sink and bunk beds that are separated by 36” vertically. The cells measure 6’ x 11’7” in dimension with the ceiling height of 7’11” on the bottom tier, and 9’ on the top tier. On the lower level of A-pod, a common area measures approximately 1,215 sq. ft. that contains four permanently mounted tables made of stainless steel. The upper level of A-POD has a common area/ balcony that measures approximately 619 sq. ft. with an opening to the lower level. The common area of A-pod has 20’6” vertical feet. The bottom tier, under the top tier, has 7’11” vertical feet. The top tier has 11’8” vertical feet. There are two showers in A-pod, one on the lower tier and one on the upper tier. Both showers in A-pod are 11’2” deep and 3’6” wide.
B-POD
B-pod is a dorm style two story-housing unit, which contains 25 bunks. Each bunk measures 6’9” long, 2’10” wide and separated by 40” vertically. These bunks are not mounted, and may be moved. The bunks are spaced approximately 2 feet apart (side by side) and 3 feet apart from end to end. On the lower level of B-pod, a common area measures approximately 2,365 sq. ft. That contains two permanently mounted tables made of stainless steel, one shower, which is 4’ deep and 6’ wide, and two toilets and four sinks. The toilets are approximately 2’8” apart and the sinks are 11” apart. The upper level of B-POD has a common area/balcony that measures approximately 1,460 sq. ft. with an opening to the lower level. There are seven permanently mounted tables made of stainless steel on the top tier. There are two showers, four toilets, and two sinks on the top tier. Three of the toilets are 2’8” apart, and the sinks are 11” apart. The fourth toilet area is approximately 2’10” wide and 10’ deep. Floor to ceiling in the common area on the bottom tier of 8-pod measures 20’8”. Under the top tier, the vertical height is 8’. The vertical height of the top tier measures 11’11”.
C-POD
C-pod is a dorm style two story-housing unit, which contains 25 bunks. Each bunk measures 6’9” long, 2’10” wide and are separated by 40” vertically. The bunks are spaced approximately 2 feet apart by 4 feet apart. These bunks are not mounted, and may be moved. On the lower level of C-pod, a common area measures approximately 2,365 sq. ft. that contains two permanently mounted tables made of stainless steel, one shower, which is 4’ deep and 6’ wide, and two toilets and four sinks. The toilets are approximately 2’8” apart and the sinks are 11” apart. The upper level of C-POD has a common area/ balcony that measures approximately 1,460 sq. ft. with an opening to the lower level. There are seven permanently mounted tables made of stainless steel on the top tier. There are two showers, four toilets, and two sinks on the top tier. Three of the toilets are 2’8” apart, and the sinks are 11” apart. The fourth toilet area is approximately 2’10” wide and 10’ deep. Floor to ceiling in the common area on the bottom tier of C-pod measures 20’8”. Under the top tier, the vertical height is 8’. The vertical height of the top tier measures 11’11”.
D-POD
D-pod is a two-story pod of two-man cells. Ten cells are located on the lower level with an additional ten cells on the upper level. Each cell contains a toilet, sink and bunk beds that are separated by 36” vertically. The cells measure 6’ x 11’7” in dimension with the ceiling height of 7’11”. On the lower

Case 3:20-cv-02731-VC Document 229-20 Filed 05/22/20 Page 26 of 79
level of D-pod, a common area measures approximately 1,215 sq. ft. that contains four permanently mounted tables made of stainless steel and one shower. The upper level of D-POD has a common area/balcony that measures approximately 619 sq. ft. with an opening to the lower level. There is an additional shower on the upper level. The common area of D-pod has a ceiling height of 16’7”. The bottom tier, under the top tier, ceiling is 7’11”. The top ceiling is 7’11”. Both showers in D-pod are 11’2” deep and 3’6” wide.
E-POD
E-pod is a two-story pod of two-man cells. Ten cells are located on the lower level with an additional ten cells on the upper level. Each cell contains a toilet, sink and bunk beds that are separated by 36” vertically. The cells measure 6’ x 11’7” in dimension with the ceiling height of 7’11”. On the lower level of E-pod, a common area measures approximately 1,215 sq. ft. that contains four permanently mounted tables made of stainless steel and one shower. The upper level of E-POD has a common area/balcony that measures approximately 619 sq. ft. with an opening to the lower level. There is an additional shower on the upper level. The common area of E-pod has a ceiling height of 16’7”. The bottom tier, under the top tier, ceiling is 7’11”. The top ceiling is 7’11”. Both showers in E-pod are 11’2” deep and 3’6” wide.
F-POD
F-pod is a two-story pod of two-man cells. Ten cells are located on the lower level with an additional ten cells on the upper level. Each cell contained a toilet, sink and bunk beds that are separated by 36” vertically. The cells measure 6’ x 11’7” in dimension with the ceiling height of 7’11”. On the lower level of F-pod, a common area measures approximately 1,215 sq. ft. that contains four permanently mounted tables made of stainless steel and one shower. The upper level of F-POD has a common area/balcony that measures approximately 619 sq. ft. with an opening to the lower level. There is an additional shower on the upper level. The common area of F-pod has a ceiling height of 16’7”. The bottom tier, under the top tier, ceiling is 7’11”. The top ceiling is 7’11”. Both showers in F-pod are 11’2” deep and 3’6” wide.
G-TANK
G-tank is a single story housing unit, approximately 580 sq. feet and consisting of ten bunks. The sleeping areas are divided by a common area, which measures approximately 236 sq. feet and consists of a mounted table, a shower, a toilet, and a sink. The shower is approximately 3’2” deep and 2’10” wide. The sink and toilet are spaced approximately 1’9” apart. On one side of the common area, a sleeping area is approximately 142 sq. feet and consists of six bunks, one toilet, and one sink. The six bunks are separated by 3’8”, with three on each side. On the other side of the common area is another sleeping area, which is approximately 142 sq. feet and consists of four bunks, one toilet, and one sink. These bunks are also separated by 3’8”. Each bunk is approximately 6’6” long, 2’6” wide, and separated by 36” vertically. The vertical height of G-tank is approximately 12’5”.
H-TANK
H-tank is a single story housing unit, approximately 580 sq. feet and consisting of ten bunks. The sleeping areas are divided by a common area, which measures approximately 236 sq. feet and consists of a mounted table, a shower, a toilet, and a sink. The shower is approximately 3’2” deep and 2’10” wide. The sink and toilet are spaced approximately 1’9” apart. On one side of the common area, a sleeping

Case 3:20-cv-02731-VC Document 229-20 Filed 05/22/20 Page 27 of 79
area is approximately 142 sq. feet and consists of six bunks, one toilet, and one sink. The six bunks are separated by 3’8”, with three on each side. On the other side of the common area is another sleeping area, which is approximately 142 sq. feet and consists of four bunks, one toilet, and one sink. These bunks are also separated by 3’8”. Each bunk is approximately 6’6” long, 2’6” wide, and separated by 36” vertically. The vertical height of G-tank is approximately 12’5”.
I-TANK
I-tank is a single story-housing unit consisting of four bunks, one shower, one toilet, and one sink. There is a mounted table in the housing unit. The housing unit is approximately 270 sq. feet. The bunks are approximately 6’6” long, 2’6” wide, and separated by 36” vertically. The ceiling is 12’5”. The shower is approximately 2’6” wide and 2’10” long. The toilet and sink are approximately 1’4” apart.
J-TANK
J-tank is a single story-housing unit consisting of bunks and a common area. J-tank consist of six bunks, one shower, two toilets, and two sinks. The common area of J-tank is approximately 286 sq. feet and contains a shower, a toilet, a sink, and a mounted table. The shower is approximately 3’2” by 2’9”. The sink and toilet are approximately 1’1” apart. The sleeping area of J-tank is approximately 262 sq. feet. There are two bunks on one side of the sleeping area, three bunks on the other side, and one bunk at the end. The bunks are approximately 8’ across from each other. There is one toilet and one sink in the sleeping area. The bunks area approximately 6’6” long, 2’6” wide, and separated by 36” vertically.
K-TANK
K-tank is a single story housing unit, approximately 580 sq. feet and consisting of ten bunks. The sleeping areas are divided by a common area, which measures approximately 236 sq. feet and consists of a mounted table, a shower, a toilet, and a sink. The shower is approximately 3’2” deep and 2’10” wide. The sink and toilet are spaced approximately 1’9” apart. On one side of the common area, a sleeping area is approximately 142 sq. feet and consists of six bunks, one toilet, and one sink. The six bunks are separated by 3’8”, with three on each side. On the other side of the common area is another sleeping area, which is approximately 142 sq. feet and consists of four bunks, one toilet, and one sink. These bunks are also separated by 3’8”. Each bunk is approximately 6’6” long, 2’6” wide, and separated by 36” vertically. The vertical height of K-tank is approximately 12’5”.
L-TANK
L-tank is a single story housing unit, approximately 580 sq. feet and consisting of ten bunks. The sleeping areas are divided by a common area, which measures approximately 236 sq. feet and consists of a mounted table, a shower, a toilet, and a sink. The shower is approximately 3’2” deep and 2’10” wide. The sink and toilet are spaced approximately 1’9” apart. On one side of the common area, a sleeping area is approximately 142 sq. feet and consists of six bunks, one toilet, and one sink. The six bunks are separated by 3’8”, with three on each side. On the other side of the common area is another sleeping area, which is approximately 142 sq. feet and consists of four bunks, one toilet, and one sink. These bunks are also separated by 3’8”. Each bunk is approximately 6’6” long, 2’6” wide, and separated by 36” vertically. The vertical height of L-tank is approximately 12’5”.

Case 3:20-cv-02731-VC Document 229-20 Filed 05/22/20 Page 28 of 79
N-TANK
N-tank is a single story-housing unit which is approximately 2,196 sq. feet and consists of 13 separate cells. Each cell is approximately 52 sq. feet and consists of one bed, one toilet, one sink, and a mounted desk. There is a common area which is approximately 103 sq. feet and contains a mounted table. There are two showers in N-tank, which are approximately 6’6” apart. The shower area is approximately 39 square feet. There are hallways that surround the cells totaling approximately 918 sq. ft. of additional common area. The ceiling is approximately 12’5” high.
P-TANK
P-tank is a single story housing area which consists of three separate two-man cells and one four-man cell. The first cell in P-tank is approximately 61 sq. feet and consists of one bunk, one sink, and one toilet. The second cell in P-tank is approximately 52 sq. feet and consists of one bunk, one sink, and one toilet. The third cell in P-tank is approximately 52 sq. feet and consist of one bunk, one sink, and one toilet. The fourth cell in P-tank is approximately 84 sq. feet and consists of two bunks, one sink, and one toilet. The bunks are approximately 2’11” apart. The common area of P-tank is approximately 310 sq. ft. and consists of one bunk, one sink, one toilet, one shower, and a mounted table. The shower is approximately 10 sq. feet. The sink and toilet in the common area is approximately 2’8” apart from each other. The bunks in P-tank are approximately 6’8” long, and 40” vertical distance between bunks. The ceiling in P-tank is 12’5”.
Q-CELLS
There are five Q cells, two two-man cells, one one-man cell, and one four-man cell that are used for housing, and one that is used as a recreation area. Q-1 is approximately 120 sq. ft. and consists of one bunk, one toilet, one sink, and a mounted desk. The ceiling in Q-1 is 8’5”. Q-2 is approximately 93 sq. ft. and consists of one bunk, one sink, and one toilet. The ceiling is approximately 8’5”. Q-3 is approximately 67 sq. ft. and consists of one bed, one sink, and one toilet. The ceiling in Q-3 is approximately 8’5”. Q-4 is approximately 165 sq. ft. and consists of two bunks, one toilet, one sink, and two mounted desks. Each bunk is approximately 6’8” long, 2’9” wide and 36” vertical feet from each bunk. The ceiling in Q-4 is approximately 8’5”. Q-5 is approximately 159 sq. ft. and consists of one toilet, one sink, and one mounted desk. The ceiling in Q-5 is approximately 8’5”. All Q-cells use a common shower near the S cells or N-tank.
R-DORM
R-dorm is approximately 929 sq. feet. R-dorm is a dorm style-housing unit with nine bunks, two toilets, two sinks, two showers, and three mounted tables. The shower area of R-dorm is approximately 26 sq. ft. (one is an ADA shower) and the sink and toilet area is approximately 50 sq. ft. The showers are approximately 2’10” apart. The toilets are approximately 6’2” apart. The sinks are approximately 6’2” apart. Each bunk in R-dorm is approximately 6’8” long, 2’7” wide and 36” vertical from each bunk. Each bunk is approximately 3 feet apart.
S-TANK
S-tank consists of six individual two-man cells. Each cell is approximately 56 sq. feet and contains one bunk, one sink, one toilet, and one mounted desk. Each bunk is approximately 6’5” long, 2’7” wide and 36” vertical spacing between each bunk. There is one common shower in S-tank, which is approximately 5 sq. feet. The common hallway area of S-tank is approximately 820 sq. feet.

Case 3:20-cv-02731-VC Document 229-20 Filed 05/22/20 Page 29 of 79
T-TANK
T-tank is a two-man unit of approximately 300 sq. feet and contains one bunk, one toilet, one sink, one shower, and one mounted table. The sleeping area and the common area of T-tank are divided, with the sleeping area being approximately 92 sq. feet and the common area being approximately 175 sq. feet. The bunk in T-tank is approximately 7’ long, 2’11” wide and 36” vertical spacing between each bunk. The toilet and sink area in T-tank is approximately 22 sq. feet. The shower is approximately 6 sq. feet (2’11” x 2’7”). The ceiling in T-tank is approximately 8’5”.

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Exhibit C

Case 3:20-cv-02731-VC Document 229-20 Filed 05/22/20 Page 61 of 79

DAVID L. ANDERSON (CABN 149604) United States Attorney
SARA WINSLOW (DCBN 457643) Chief, Civil Division
WENDY M. GARBERS (CABN 213208) ADRIENNE ZACK (CABN 291629) SHIWON CHOE (CABN 320041) Assistant United States Attorneys
450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Telephone: (415) 436-6967 Facsimile: (415) 436-6748 wendy.garbers@usdoj.gov adrienne.zack@usdoj.gov shiwon.choe@usdoj.gov
Attorneys for Federal Defendants
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, et al., Plaintiffs,
v. DAVID JENNINGS, et al.,
Defendants.

) CASE NO. 3:20-cv-02731-VC ) ) FEDERAL DEFENDANTS’ SECOND ) SUPPLEMENTAL OBJECTIONS AND ) RESPONSES TO PLAINTIFFS’ INITIAL SET ) OF INTERROGATORIES ) ) ) )

FED. DEFS.’ SECOND SUPPL. OBJS. AND RESPS. TO PLS.’ INITIAL SET OF INTERROGS. No. 3:20-cv-02731-VC

Case 3:20-cv-02731-VC Document 229-20 Filed 05/22/20 Page 62 of 79

INTRODUCTION Pursuant to Federal Rules of Civil Procedure 26 and 33, defendants David Jennings, Matthew T. Albence, and U.S. Immigration and Customs Enforcement (“ICE”) (“Federal Defendants”) hereby submit these Second Supplemental Objections and Responses to Plaintiffs’ Initial Set of Interrogatories sent to Federal Defendants’ counsel on April 29, 2020.
GENERAL OBJECTIONS Federal Defendants assert and incorporate by reference the following general objections as though they were set forth in full in each response: 1. Federal Defendants object to the Interrogatories to the extent they call for the production of information that is beyond the scope of this lawsuit and, therefore, not relevant to any party’s claim or defense and not proportional to the needs of this case under Federal Rule of Civil Procedure 26(b)(1). 2. Federal Defendants object to the Interrogatories to the extent they call for the production of information protected by the attorney-client privilege, the work-product doctrine, the deliberativeprocess privilege, the law enforcement/investigatory files privilege, and/or any other privilege or protection from disclosure. 3. Federal Defendants object to the Interrogatories to the extent they seek to impose obligations beyond those imposed by the Federal Rules of Civil Procedure and/or the Rules or Orders of the Court. 4. Federal Defendants object to the Interrogatories to the extent they call for the production of information that is equally available to Plaintiffs. 5. Federal Defendants object to the Interrogatories to the extent they call for the production of information that, if disclosed, would threaten or undermine the security of any detention facility. Cf. Bell v. Wolfish, 441 U.S. 520, 546–47 (1979) (recognizing essential goals of maintaining security of detention facilities and preserving internal order). 6. Federal Defendants object to the abbreviated time period that they were afforded to respond to the Interrogatories, which is well below the thirty days normally afforded under the Federal Rules.

FED. DEFS.’ SECOND SUPPL. OBJS. AND RESPS. TO PLS.’ INITIAL SET OF INTERROGS.

No. 3:20-cv-02731-VC

1

Case 3:20-cv-02731-VC Document 229-20 Filed 05/22/20 Page 63 of 79
SECOND SUPPLEMENTAL RESPONSES TO PLAINTIFFS’ INITIAL SET OF INTERROGATORIES INTERROGATORY NO. 4: State how many dining rooms serving ICE detainees are currently operating in, respectively, Yuba County Jail and Mesa Verde Detention Facility. For each dining room serving ICE detainees, state the number of residents that occupy each room at one time, whether seats are fixed or moveable, and, if fixed, the distance between seats and, if moveable, the number of seats per table and the dimensions of each table. OBJECTIONS AND RESPONSES TO INTERROGATORY NO. 4: Subject to and without waiver of their objections, Federal Defendants respond to Interrogatory No. 4 with respect to Mesa Verde, to the best of their knowledge and upon reasonable inquiry in the abbreviated time period they have had to respond to the Interrogatories, as follows. Mesa Verde has two dining halls, one on each floor. Mesa Verde is currently using both dining halls for meal service for detainees. INTERROGATORY NO. 5: Please provide an explanation of whether it is feasible for ICE to stagger meal times for ICE detainees in the two facilities and, if so, how many additional shifts can be accommodated at each facility. If defendants contend that staggering meal times is not feasible, please explain why not. OBJECTIONS AND RESPONSES TO INTERROGATORY NO. 5: Subject to and without waiver of their objections, Federal Defendants respond to Interrogatory No. 5 with respect to Mesa Verde, to the best of their knowledge and upon reasonable inquiry in the abbreviated time period they have had to respond to the Interrogatories, as follows.
(continued on next page)

FED. DEFS.’ SECOND SUPPL. OBJS. AND RESPS. TO PLS.’ INITIAL SET OF INTERROGS.

No. 3:20-cv-02731-VC

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Case 3:20-cv-02731-VC Document 229-20 Filed 05/22/20 Page 64 of 79

Mesa Verde uses both dining halls and staggers meal times to limit the number of detainees in a dining hall to a maximum of 25 at any given time.

DATED: May 19, 2020

DAVID L. ANDERSON United States Attorney
s/Shiwon Choe SHIWON CHOE Assistant United States Attorney
Attorneys for Federal Defendants

FED. DEFS.’ SECOND SUPPL. OBJS. AND RESPS. TO PLS.’ INITIAL SET OF INTERROGS.

No. 3:20-cv-02731-VC

3

Case 3:20-cv-02731-VC Document 229-20 Filed 05/22/20 Page 65 of 79
VERIFICATION OF INTERROGATORY RESPONSES I, Alex Pham, declare under penalty of perjury: I am employed by U.S. Immigration and Customs Enforcement (“ICE”) as an Assistant Field Office Director. I am authorized to make this verification on behalf of Federal Defendants for their Second Supplemental Responses to Plaintiffs’ Initial Set of Interrogatories. I have read and know the contents of these Responses. These Responses were prepared after obtaining information reasonably available to ICE through its officers and employees. These Responses, subject to inadvertent and undiscovered errors, are true and correct to the best of my knowledge, information, and belief. Executed this 19th day of May 2020.
ALEX PHAM

Case 3:20-cv-02731-VC Document 229-20 Filed 05/22/20 Page 66 of 79
CERTIFICATE OF SERVICE I hereby certify that on this 19th day of May 2020, a true and correct copy of Federal Defendants’ Objections and Responses to Plaintiffs’ Initial Set of Discovery Re uests was served via electronic mail on Marty Schenker, counsel for Plaintiffs.
DAVID L. ANDERSON United States Attorney s/Shiwon Choe SHIWON CHOE Assistant United States Attorney Attorneys for Federal Defendants

Case 3:20-cv-02731-VC Document 229-20 Filed 05/22/20 Page 67 of 79
Exhibit D

Case 3:20-cv-02731-VC Document 229-20 Filed 05/22/20 Page 68 of 79

DAVID L. ANDERSON (CABN 149604) United States Attorney
SARA WINSLOW (DCBN 457643) Chief, Civil Division
WENDY M. GARBERS (CABN 213208) ADRIENNE ZACK (CABN 291629) SHIWON CHOE (CABN 320041) Assistant United States Attorneys
450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Telephone: (415) 436-6967 Facsimile: (415) 436-6748 wendy.garbers@usdoj.gov adrienne.zack@usdoj.gov shiwon.choe@usdoj.gov
Attorneys for Federal Defendants
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, et al., Plaintiffs,
v. DAVID JENNINGS, et al.,
Defendants.

) CASE NO. 3:20-cv-02731-VC ) ) FEDERAL DEFENDANTS’ THIRD ) SUPPLEMENTAL OBJECTIONS AND ) RESPONSES TO PLAINTIFFS’ INITIAL SET ) OF INTERROGATORIES ) ) ) )

FED. DEFS.’ THIRD SUPPL. OBJS. AND RESPS. TO PLS.’ INITIAL SET OF INTERROGS. No. 3:20-cv-02731-VC

Case 3:20-cv-02731-VC Document 229-20 Filed 05/22/20 Page 69 of 79

INTRODUCTION Pursuant to Federal Rules of Civil Procedure 26 and 33, defendants David Jennings, Matthew T. Albence, and U.S. Immigration and Customs Enforcement (“ICE”) (“Federal Defendants”) hereby submit these Third Supplemental Objections and Responses to Plaintiffs’ Initial Set of Interrogatories sent to Federal Defendants’ counsel on April 29, 2020.
GENERAL OBJECTIONS Federal Defendants assert and incorporate by reference the following general objections as though they were set forth in full in each response: 1. Federal Defendants object to the Interrogatories to the extent they call for the production of information that is beyond the scope of this lawsuit and, therefore, not relevant to any party’s claim or defense and not proportional to the needs of this case under Federal Rule of Civil Procedure 26(b)(1). 2. Federal Defendants object to the Interrogatories to the extent they call for the production of information protected by the attorney-client privilege, the work-product doctrine, the deliberativeprocess privilege, the law enforcement/investigatory files privilege, and/or any other privilege or protection from disclosure. 3. Federal Defendants object to the Interrogatories to the extent they seek to impose obligations beyond those imposed by the Federal Rules of Civil Procedure and/or the Rules or Orders of the Court. 4. Federal Defendants object to the Interrogatories to the extent they call for the production of information that is equally available to Plaintiffs. 5. Federal Defendants object to the Interrogatories to the extent they call for the production of information that, if disclosed, would threaten or undermine the security of any detention facility. Cf. Bell v. Wolfish, 441 U.S. 520, 546–47 (1979) (recognizing essential goals of maintaining security of detention facilities and preserving internal order). 6. Federal Defendants object to the abbreviated time period that they were afforded to respond to the Interrogatories, which is well below the thirty days normally afforded under the Federal Rules.

FED. DEFS.’ THIRD SUPPL. OBJS. AND RESPS. TO PLS.’ INITIAL SET OF INTERROGS.

No. 3:20-cv-02731-VC

1

Case 3:20-cv-02731-VC Document 229-20 Filed 05/22/20 Page 70 of 79

THIRD SUPPLEMENTAL RESPONSES TO PLAINTIFFS’ INITIAL SET OF INTERROGATORIES INTERROGATORY NO. 4: State how many dining rooms serving ICE detainees are currently operating in, respectively, Yuba County Jail and Mesa Verde Detention Facility. For each dining room serving ICE detainees, state the number of residents that occupy each room at one time, whether seats are fixed or moveable, and, if fixed, the distance between seats and, if moveable, the number of seats per table and the dimensions of each table. OBJECTIONS AND RESPONSES TO INTERROGATORY NO. 4: Subject to and without waiver of their objections, Federal Defendants provide this supplemental response to Interrogatory No. 4 with respect to Mesa Verde, to the best of their knowledge and upon reasonable inquiry in the abbreviated time period they have had to respond to the Interrogatories, as follows. Mesa Verde has two dining halls, one on each floor. Mesa Verde has added five non-fixed tables with non-fixed chairs to the 20 fixed tables in each dining hall. Because Mesa Verde is limiting the number of detainees in a dining hall to a maximum of 25 at any given time, each detainee is able to sit at his own table during meals. It is possible for 25 detainees to sit at the 25 tables without any two detainees sitting within six feet of each other.

DATED: May 20, 2020

DAVID L. ANDERSON United States Attorney
s/Shiwon Choe SHIWON CHOE Assistant United States Attorney
Attorneys for Federal Defendants

FED. DEFS.’ THIRD SUPPL. OBJS. AND RESPS. TO PLS.’ INITIAL SET OF INTERROGS.

No. 3:20-cv-02731-VC

2

Case 3:20-cv-02731-VC Document 229-20 Filed 05/22/20 Page 71 of 79
VERIFICATION OF INTERROGATORY RESPONSES I, Alex Pham, declare under penalty of perjury: I am employed by U.S. Immigration and Customs Enforcement (“ICE”) as an Assistant Field Office Director. I am authorized to make this verification on behalf of Federal Defendants for their Third Supplemental Responses to Plaintiffs’ Initial Set of Interrogatories. I have read and know the contents of these Responses. These Responses were prepared after obtaining information reasonably available to ICE through its officers and employees. These Responses, subject to inadvertent and undiscovered errors, are true and correct to the best of my knowledge, information, and belief. Executed this 20th day of May 2020.
ALEX PHAM

Case 3:20-cv-02731-VC Document 229-20 Filed 05/22/20 Page 72 of 79
CERTIFICATE OF SERVICE I hereby certify that on this 20th day of May 2020, a true and correct copy of Federal Defendants’ Third Supplemental Objections and Responses to Plaintiffs’ Initial Set of Discovery Requests was served via electronic mail on Marty Schenker, counsel for Plaintiffs.
DAVID L. ANDERSON United States Attorney s/Shiwon Choe SHIWON CHOE Assistant United States Attorney Attorneys for Federal Defendants

Case 3:20-cv-02731-VC Document 229-20 Filed 05/22/20 Page 73 of 79
Exhibit E

Case 3:20-cv-02731-VC Document 229-20 Filed 05/22/20 Page 74 of 79

DAVID L. ANDERSON (CABN 149604) United States Attorney
SARA WINSLOW (DCBN 457643) Chief, Civil Division
WENDY M. GARBERS (CABN 213208) ADRIENNE ZACK (CABN 291629) SHIWON CHOE (CABN 320041) Assistant United States Attorneys
450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Telephone: (415) 436-6967 Facsimile: (415) 436-6748 wendy.garbers@usdoj.gov adrienne.zack@usdoj.gov shiwon.choe@usdoj.gov
Attorneys for Federal Defendants
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, et al., Plaintiffs,
v. DAVID JENNINGS, et al.,
Defendants.

) CASE NO. 3:20-cv-02731-VC ) ) FEDERAL DEFENDANTS’ FOURTH ) SUPPLEMENTAL OBJECTIONS AND ) RESPONSES TO PLAINTIFFS’ INITIAL SET ) OF INTERROGATORIES ) ) ) )

FED. DEFS.’ FOURTH SUPPL. OBJS. AND RESPS. TO PLS.’ INITIAL SET OF INTERROGS. No. 3:20-cv-02731-VC

Case 3:20-cv-02731-VC Document 229-20 Filed 05/22/20 Page 75 of 79

INTRODUCTION Pursuant to Federal Rules of Civil Procedure 26 and 33, defendants David Jennings, Matthew T. Albence, and U.S. Immigration and Customs Enforcement (“ICE”) (“Federal Defendants”) hereby submit these Fourth Supplemental Objections and Responses to Plaintiffs’ Initial Set of Interrogatories sent to Federal Defendants’ counsel on April 29, 2020.
GENERAL OBJECTIONS Federal Defendants assert and incorporate by reference the following general objections as though they were set forth in full in each response: 1. Federal Defendants object to the Interrogatories to the extent they call for the production of information that is beyond the scope of this la suit and therefore not relevant to any party’s claim or defense and not proportional to the needs of this case under Federal Rule of Civil Procedure 26(b)(1). 2. Federal Defendants object to the Interrogatories to the extent they call for the production of information protected by the attorney-client privilege, the work-product doctrine, the deliberativeprocess privilege, the law enforcement/investigatory files privilege, and/or any other privilege or protection from disclosure. 3. Federal Defendants object to the Interrogatories to the extent they seek to impose obligations beyond those imposed by the Federal Rules of Civil Procedure and/or the Rules or Orders of the Court. 4. Federal Defendants object to the Interrogatories to the extent they call for the production of information that is equally available to Plaintiffs. 5. Federal Defendants object to the Interrogatories to the extent they call for the production of information that, if disclosed, would threaten or undermine the security of any detention facility. Cf. Bell v. Wolfish, 441 U.S. 520, 546–47 (1979) (recognizing essential goals of maintaining security of detention facilities and preserving internal order). 6. Federal Defendants object to the abbreviated time period that they were afforded to respond to the Interrogatories, which is well below the thirty days normally afforded under the Federal Rules.

FED. DEFS.’ FOURTH SUPPL. OBJS. AND RESPS. TO PLS.’ INITIAL SET OF INTERROGS.

No. 3:20-cv-02731-VC

1

Case 3:20-cv-02731-VC Document 229-20 Filed 05/22/20 Page 76 of 79
FOURTH SUPPLEMENTAL RESPONSES TO PLAINTIFFS’ INITIAL SET OF INTERROGATORIES INTERROGATORY NO. 1: Provide descriptions of all housing units housing ICE detainees in Yuba County Jail and Mesa Verde Detention Facility, including the following information for each. In lieu of written response to any subpart, you may provide plans, or drawings that provide all of the information requested (see Document Request No. 1): a. Facility (Yuba County Jail or Mesa Verde Detention Facility) b. Name of unit. c. Type of unit (e.g., dorm, pod, single cell, double cell, etc.) d. Dimensions (width x length x height in feet). e. If the housing unit contains more than one bed, how far apart are the beds (if the distances vary, all distances should be provided)? f. Where bunk beds are used, what is the vertical distance between the bunks? OBJECTIONS AND RESPONSES TO INTERROGATORY NO. 1: Subject to and without waiver of their objections, Federal Defendants provide this supplemental response to Interrogatory No. 4 with respect to Yuba County Jail, to the best of their knowledge and upon reasonable inquiry in the abbreviated time period they have had to respond to the Interrogatories, as follows.
(continued on next page)

FED. DEFS.’ FOURTH SUPPL. OBJS. AND RESPS. TO PLS.’ INITIAL SET OF INTERROGS.

No. 3:20-cv-02731-VC

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Case 3:20-cv-02731-VC Document 229-20 Filed 05/22/20 Page 77 of 79

Yuba County Jail has removed five bunks from each of B-pod and C-pod. Each of B-pod and Cpod now contain twenty bunks. The bunks are spaced approximately 6’2” apart by 6’ apart. Only the lower bunks are being utilized. The bunks are not mounted and may be moved.

DATED: May 21, 2020

DAVID L. ANDERSON United States Attorney
s/Shiwon Choe SHIWON CHOE Assistant United States Attorney
Attorneys for Federal Defendants

FED. DEFS.’ FOURTH SUPPL. OBJS. AND RESPS. TO PLS.’ INITIAL SET OF INTERROGS.

No. 3:20-cv-02731-VC

3

Case 3:20-cv-02731-VC Document 229-20 Filed 05/22/20 Page 78 of 79
VERIFICATION OF INTERROGATORY RESPONSES I, Dana L. Fishburn, declare under penalty of perjury: I am employed by U.S. Immigration and Customs Enforcement (“ICE”) as an Assistant Field Office Director. I am authorized to make this verification on behalf of Federal Defendants for their Fourth Supplemental Responses to Plaintiffs’ Initial Set of Interrogatories. I have read and know the contents of these Responses. These Responses were prepared after obtaining information reasonably available to ICE through its officers and employees. These Responses, subject to inadvertent and undiscovered errors, are true and correct to the best of my knowledge, information, and belief. Executed this 21st day of May 2020
DANA L. FISHBURN

Case 3:20-cv-02731-VC Document 229-20 Filed 05/22/20 Page 79 of 79
CERTIFICATE OF SERVICE I hereby certify that on this 21st day of May 2020, a true and correct copy of Federal Defendants’ Fourth Supplemental Objections and Responses to Plaintiffs’ Initial Set of Discovery Requests was served via electronic mail on Marty Schenker, counsel for Plaintiffs.
DAVID L. ANDERSON United States Attorney s/Shiwon Choe SHIWON CHOE Assistant United States Attorney Attorneys for Federal Defendants

Case 3:20-cv-02731-VC Document 229-21 Filed 05/22/20 Page 1 of 8

WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org SEAN RIORDAN (SBN 255752) sriordan@aclunc.org ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: (415) 553-9319 Facsimile: (415) 553-9810

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUBI RUIZ TOVAR, LAWRENCE KURIA MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,

CASE NO. 3:20-CV-02731-VC [PROPOSED] PRELIMINARY INJUNCTION

Petitioners-Plaintiffs,

v.

DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,

Respondents-Defendants.

CASE NO. 3:20-CV-02731-VC [PROPOSED] PRELIMINARY INJUNCTION

Case 3:20-cv-02731-VC Document 229-21 Filed 05/22/20 Page 2 of 8

BREE BERNWANGER* (NY SBN 5036397) bbernwanger@lccrsf.org HAYDEN RODARTE (SBN 329432) hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA 131 Steuart St #400 San Francisco, CA 94105 Telephone: (415) 814-7631
JUDAH LAKIN (SBN 307740) judah@lakinwille.com AMALIA WILLE (SBN 293342) amalia@lakinwille.com LAKIN & WILLE LLP 1939 Harrison Street, Suite 420 Oakland, CA 94612 Telephone: (510) 379-9216 Facsimile: (510) 379-9219

MARTIN S. SCHENKER (SBN 109828) mschenker@cooley.com COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111 Telephone: (415) 693-2000 Facsimile: (415) 693-2222
TIMOTHY W. COOK* (Mass. BBO# 688688) tcook@cooley.com FRANCISCO M. UNGER* (Mass. BBO# 698807) funger@cooley.com COOLEY LLP 500 Boylston Street Boston, MA 02116 Telephone: (617) 937-2300 Facsimile: (617) 937-2400

JORDAN WELLS (SBN 326491) jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568) spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA 1313 West Eighth Street Los Angeles, CA 90017 Telephone: (213) 977-9500 Facsimile: (213) 977-5297
Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice

CASE NO. 3:20-CV-02731-VC [PROPOSED] PRELIMINARY INJUNCTION

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[PROPOSED] ORDER Upon review of Plaintiffs-Petitioners’ Motion for Preliminary Injunction, Defendants’ opposition, Plaintiffs’ reply, and all supporting exhibits and declarations, Plaintiffs’ Motion for Preliminary Injunction is GRANTED. Pursuant to Rule 65 of the Federal Rules of Civil Procedure and Civil L. R. 65-1, the Court orders as follows:
PRELIMINARY INJUNCTION The Court concludes that Plaintiffs-Petitioners have met their burden of showing: (1) a likelihood of success on the merits of their claim under the Due Process Clause of the Fifth Amendment; (2) that the continued detention of class members under current conditions of detention at Mesa Verde ICE Processing Facility (“Mesa Verde”) and the Yuba County Jail (“Yuba”) are causing and will cause irreparable harm to Class members absent a preliminary injunction; (3) that the balance of equities weighs in Plaintiffs-Petitioners’ favor; and (4) that the public interest favors granting the motion. Accordingly, a preliminary injunction pursuant to Federal Rule of Civil Procedure 65 and the inherent equitable powers of this Court is warranted. 1. The Court hereby DECLARES that conditions of confinement for all members of
the provisionally certified class (“Class”), namely, all individuals held as detainees of U.S. Immigration and Customs Enforcement (“ICE”) at Mesa Verde and Yuba (“Detainees”), violate the Fifth Amendment because they fail to adequately address the risk of COVID-19 infection. 2. It is hereby ORDERED that: a. Defendants shall ensure that the number of Detainees at Mesa Verde and
Yuba is maintained at no greater than a level that permits all Detainees to maintain a minimum of ten feet of distance from one another while sleeping, and six feet of distance from one another at all other times, including but not limited to while lining up for meals, eating, and using showers, sinks and toilets, except for transient interactions (such as handing food to a Detainee or handcuffing a Detainee being taken out for
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removal). In measuring the distance for sleeping, distance shall be measured laterally, from nearest edge to nearest edge, for beds that are placed side by side, regardless of whether Class members’ beds are at different heights (e.g., if one Class member is in a top bunk and another is in a bottom bunk). For beds that are situated in a line (i.e. head to foot), the distance between beds from edge to edge must be at least three feet, if Class members sleep in the same direction (i.e., head to toe); if Class members sleep in opposite directions (i.e., head to head) in such beds, the distance between beds must be a minimum of six feet, measured from nearest edge to nearest edge. b. No later than seven days from the date of this order, Defendants shall file with the Court detailed written plans for Mesa Verde and Yuba for achieving compliance with Paragraph 2(a) hereof (“Facilities Plans”). Each Facilities Plan must state the maximum number of Detainees to be housed at each facility, and the maximum total occupancy (regardless of whether the occupant is a Detainee or Yuba County Jail inmate) for each sleeping room (e.g., dorm, tank or pod) housing Detainees. Each Facilities Plan shall explain with specificity how and where the stated maximum number of Detainees will sleep, dine, bathe, use toilets and showers, and line up for recreation, and will demonstrate how the Detainees will maintain a minimum of six feet of distance between Detainees in each of these circumstances (10 feet while sleeping). The Facilities Plan shall describe the physical spacing of all beds to be occupied by Detainees in each space where such Detainees are housed, and the physical spacing and/or staggering in use of all dining, recreation, bathroom and shower facilities. Defendants’ Facilities Plans shall provide a schematic depicting the arrangement of beds in each sleeping room housing Detainees, which
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shall provide no less detail than Defendants provided in their responses to Plaintiffs’ interrogatories. c. Defendants shall designate and make available for deposition, pursuant to Federal Rule of Civil Procedure 30(b)(6), a person most knowledgeable on the Facilities Plan for each facility. Plaintiffs shall have the opportunity to depose Defendants’ designee(s) within 5 days after the submission of the Facilities Plan. Regardless of the number of representatives designated by Defendants, the total deposition time shall be limited to seven hours on the record. d. Defendants shall make both Mesa Verde and Yuba available for an inspection by Class Counsel and an expert to be designated by Plaintiffs. The inspection should occur as soon as practicable, but within 7 days after the submission of the Facilities Plans. e. No later than 10 days after submission by Defendants of the Facilities Plans, Plaintiffs may file objections to the Facilities Plans. f. The Court will review Defendants’ Facilities Plans and Plaintiffs’ objections, if any, and approve, reject, or modify the Facilities Plans, or issue such further orders as necessary to achieve compliance with Paragraph 2(a) above. g. On a weekly basis, Defendants shall disclose a spreadsheet including, for each Detainee: name, A-number, housing unit, any ICE-identified criminal history, and any ICE-identified medical vulnerabilities to COVID-19. In addition to the inspection permitted by Paragraph 2(d), Class counsel and an expert shall be permitted to inspect each of Mesa Verde and Yuba once per month. h. Until such time as Defendants have implemented the changes required by Paragraph 2(a) above, as approved or modified by the Court pursuant to Paragraph 2(f), Class counsel may continue to submit bail applications on
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behalf of class members, and the Court will continue to adjudicate them. Defendants are required to respond to these bail applications by 5:00 p.m. two days after the application was filed. Any bail application filed after 7:00 p.m. shall be deemed filed on the following day. Responses to bail applications filed at any time on Friday shall be due by 5:00 p.m. on Monday. Responses to bail applications filed at any time on Saturday or Sunday shall be due by 5:00 p.m. on Tuesday. Class counsel will be entitled to an optional reply which must be filed by midnight on the date of any response by Defendants. i. After such time as Defendants have implemented the changes required by Paragraph 2(a) above, as approved or modified by the Court pursuant to Paragraph 2(f), Class counsel may continue to submit bail applications for Detainees housed at Mesa Verde and Yuba who Class counsel believes should be released because of a heightened risk of death or serious illness from COVID-19 due to their age and/or pre-existing medical conditions. Defendants are required to respond to these bail applications, and Class counsel will be entitled to an optional reply, on the schedule set forth in Paragraph 2(h). j. Until such time as Defendants have implemented the changes required by Paragraph 2(a) above, as approved or modified by the Court, Defendants may not add additional people to the population at Mesa Verde or Yuba. Thereafter, Defendants may add people to the population at Mesa Verde and Yuba, so long as: (i) the total number of Detainees at each facility does not exceed the number contained in the Facilities Plan approved by the Court; and (ii) any newly added individual is tested for COVID-19 promptly following arrival at the facility and such detainee is not commingled with the existing population unless and until the individual’s COVID-19 test is determined to be negative, or fourteen days following
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arrival, whichever occurs first. Defendants shall follow best practices for medical isolation, which is distinct from solitary confinement. In addition, Defendants shall make reasonable efforts not to add Detainees to the populations of Mesa Verde or Yuba, unless necessary for medical evaluation, medical isolation/quarantine, medical care, extenuating security concerns, or to prevent overcrowding in other ICE facilities. For any Detainees Defendants add to the populations of Mesa Verde or Yuba on or after the date of this Order, Defendants shall furnish to Class counsel the following by 5 p.m. on the next business day after adding such person: name, A-number, I-213, and a list of ICE-identified medical vulnerabilities to COVID-19. For such Detainees, Defendants shall also furnish to Class counsel RAP sheets and medical records at the earliest practicable time. k. Defendants shall not transfer any Detainees from Mesa Verde or Yuba to another facility for the purpose of civil immigration detention, including in preparation for removal if removal is not scheduled to occur within 48 hours, unless that facility meets the social distancing requirements of Paragraph 2(a). For any Detainees ICE transfers from Mesa Verde or Yuba following the date of this Order, Defendants shall furnish to Class counsel the following information by 5 p.m. on the next business day after such transfer: name, A-number, facility to which the detainee was transferred, number of confirmed COVID-19 cases at the facility, reason for the transfer, and an attestation that the destination facility meets the social distancing requirements included herein. l. For any Detainee ICE releases or transports for removal from the United States, Defendants shall furnish to Class counsel the following information by 5 p.m. on the next business day after such action: name, A-number, and whether such Detainee was released or transported for removal.
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m. Except as provided in the standard conditions of release (Dkt. 108), Defendants shall not re-detain any Class member released from Mesa Verde or Yuba on or after April 20, 2020 (the date of Plaintiffs’ motion for provisional class certification), whether or not that Class member was

released by order of the Court or otherwise released.

n. Defendants may apply to the Court for modification of the provisions of this order upon a showing of good clause, which may include changes in the risks presented by the ongoing pandemic.

o. No security shall be required. IT IS SO ORDERED.

Dated this ___ day of June 2020

__________________________ VINCE CHHABRIA United States District Judge

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DAVID L. ANDERSON (CABN 149604) United States Attorney
SARA WINSLOW (DCBN 457643) Chief, Civil Division
WENDY M. GARBERS (CABN 213208) ADRIENNE ZACK (CABN 291629) SHIWON CHOE (CABN 320041) Assistant United States Attorneys
450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Telephone: (415) 436-6967 Facsimile: (415) 436-6748 wendy.garbers@usdoj.gov adrienne.zack@usdoj.gov shiwon.choe@usdoj.gov
Attorneys for Federal Defendants
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, et al., Plaintiffs,
v. DAVID JENNINGS, et al.,
Defendants.

) CASE NO. 3:20-cv-02731-VC ) ) FEDERAL DEFENDANTS’ (1) MOTION FOR ) ORDER CONFIRMING THAT TEMPORARY ) RESTRAINING ORDER HAS EXPIRED, ) ENDING BAIL PROCESS, AND VACATING ) BAIL ORDERS AND (2) OPPOSITION TO ) PLAINTIFFS’ MOTION FOR PRELIMINARY ) INJUNCTION ) ) Date: June 2, 2020 ) Time: 10:00 a.m.

DEFS.’ MOT. FOR ORDER CONFIRMING T.R.O. EXPIRED AND ENDING BAIL AND OPP’N TO MOT. FOR P.I. No. 3:20-cv-02731-VC

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TABLE OF CONTENTS

NOTICE OF MOTION AND MOTION, AND NOTICE OF OPPOSITION ............................................1

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

STATEMENT OF FACTS ..........................................................................................................................3

I. CDC and ICE Guidance...................................................................................................................3

II. ICE Has Significantly Reduced the Population at Both Mesa Verde and Yuba .............................4

III. Mesa Verde and Yuba Screen All New Arriving Detainees............................................................5

IV. Mesa Verde and Yuba Provide Ongoing Medical Care for Detainees ............................................5

V. Mesa Verde and Yuba Provide Education About COVID-19 for Detainees...................................6

VI. Mesa Verde and Yuba Have Increased Cleaning and Sanitizing and Encourage Detainees to Practice Good Hygiene ...............................................................................................6

VII. Mesa Verde and Yuba Have Increased Social Distancing...............................................................6

VIII. Mesa Verde and Yuba Provide All Detainees with Masks and Require Staff to Wear Masks ...............................................................................................................................................7

IX. Mesa Verde and Yuba Minimize and Screen Outside Contacts ......................................................8

X. Mesa Verde and Yuba Have Never Had Any Confirmed or Suspected Cases of COVID-19........................................................................................................................................8

XI. ICE Continues to Closely Monitor the Situation and Reviews Detainees at Higher Risk for COVID-19 to Determine on a Case-By-Case Basis If Detention Remains Appropriate ......................................................................................................................................8

ARGUMENT ...............................................................................................................................................8

I. The Court Lacks Jurisdiction Over This Case, and Class Certification Is Inappropriate ................8

II. Plaintiffs Are Not Entitled to the Extraordinary Remedy of a Preliminary Injunction ...................9

A. Plaintiffs Fail to Establish Irreparable Harm .....................................................................10

B. Plaintiffs Fail to Establish a Likelihood of Success on the Merits ....................................11

C. Plaintiffs Fail to Establish That the Equities and Public Interest Tip in Their Favor ..................................................................................................................................14

D. Plaintiffs’ Proposed Injunction Is Overbroad and Improper..............................................15

III. The Court Should End the Bail Process and Vacate All Bail Orders, Because It Does Not Have Authority to Order Class Members Here Released on Bail ..........................................18

A. District Courts Do Not Have Authority to Order Immigration Detainees

Released on Bail Where, as Here, No Statute Affirmatively Allows Them to

Do So .................................................................................................................................18

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B. District Courts Do Not Have Authority to Order Detainees Released on Bail in a Non-Habeas Case, and This Case Is Not a Proper Habeas Case ....................................20
C. District Courts Do Not Have Authority to Order Detainees Released on Bail Where, as Here, Congressional Statutes Limit Such Authority.........................................22
D. District Courts Do Not Have Authority to Order Detainees Released on Bail Outside of an “Exceptional Case,” and the Ninth Circuit Has Held That a Risk of COVID-19 Does Not Give Rise to an “Exceptional Case” Warranting Release on Bail ..................................................................................................................23
CONCLUSION ..........................................................................................................................................25

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TABLE OF AUTHORITIES

Page(s)
Cases
Amylin Pharm., Inc. v. Eli Lilly and Co., 456 F. App’x 676 (9th Cir. 2011) ......................................................................................................... 10
Bell v. Wolfish, 441 U.S. 520 (1979).............................................................................................................................. 12
Benisek v. Lamone, 138 S. Ct. 1942 (2018)...................................................................................................................... 9–10
Blackie’s House of Beef, Inc. v. Castillo, 659 F.2d 1211 (D.C. Cir. 1981) ............................................................................................................ 14
Bolante v. Keisler, 506 F.3d 618 (7th Cir. 2007) ......................................................................................................... passim
Brown v. Plata, 563 U.S. 493 (2011)........................................................................................................................ 19–20
Calmo v. Sessions, No. C 17-07124 WHA, 2018 WL 2938628 (N.D. Cal. June 12, 2018)................................................ 24
Caribbean Marine Servs. Co., Inc. v. Baldrige, 844 F.2d 668 (9th Cir. 1988) ................................................................................................................ 10
Castro v. Cty. of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc) .............................................................................................. 14
Chin Wah v. Colwell, 187 F. 592 (9th Cir. 1911) .............................................................................................................. 18–20
Cinquemani v. Ashcroft, No. 00-CV-1460 (RJD), 2001 WL 939664 (E.D.N.Y. Aug. 16, 2001).......................................... 22–23
Citizens for Rational Coast Dev. v. U.S. Fed. Highway Admin., No. 07-4551 (JAP), 2008 WL 2276005 (D.N.J. May 30, 2008) .......................................................... 18
Crawford v. Bell, 599 F.2d 890 (9th Cir. 1979) ...................................................................................................... 9, 20, 22
Dawson v. Asher, No. C20-0409JLR-MAT, 2020 WL 1304557 (W.D. Wash. Mar. 19, 2020) (Dawson I) .............. 11–12
Dawson v. Asher, No. C20-0409JLR-MAT, 2020 WL 1704324 (W.D. Wash. Apr. 8, 2020) (Dawson II) ............... 10, 12
Demore v. Kim, 538 U.S. 510 (2003).............................................................................................................................. 12

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DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189 (1989)........................................................................................................................ 12–13
Doran v. Salem Inn, Inc., 422 U.S. 922 (1975).............................................................................................................................. 15
Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073 (9th Cir. 2014) .............................................................................................................. 10
Earth Island Inst. v. Carlton, 626 F.3d 462 (9th Cir. 2010) .................................................................................................................. 9
East Bay Sanctuary Covenant v. Trump, 932 F.3d 742 (9th Cir. 2018) ................................................................................................................ 24
Espinosa v. Ahearn (In re Hyundai and Kia Fuel Econ. Litig.), 926 F.3d 539 (9th Cir. 2019) (en banc) ................................................................................................ 21
Ex parte Perkov, 45 F. Supp. 864 (S.D. Cal. 1942).......................................................................................................... 19
Farmer v. Brennan, 511 U.S. 825 (1994).............................................................................................................................. 14
Friends of the Wild Swan v. Weber, 767 F.3d 936 (9th Cir. 2014) ................................................................................................................ 10
Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (en banc) ................................................................................................ 15
Helling v. McKinney, 509 U.S. 25 (1993)................................................................................................................................ 14
Hernandez Roman v. Wolf, No. 20-55436, 2020 WL 2188048 (9th Cir. May 5, 2020)............................................................ passim
Hernandez v. Sessions, 872 F.3d 976 (9th Cir. 2017) ................................................................................................................ 23
Hope v. Warden York Cty. Prison, 956 F.3d 156 (3d Cir. 2020).................................................................................................................. 25
In re Hanoff, 39 F. Supp. 169 (N.D. Cal. 1941) ......................................................................................................... 19
Jennings v. Rodriguez, 138 S. Ct. 830 (2018)............................................................................................................................ 12
Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004) ................................................................................................................ 11
Kraft v. Gates, 905 F.2d 1540, 1990 WL 84279 (9th Cir. 1990) (table) ...................................................................... 22

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Land v. Deeds, 878 F.2d 318 (9th Cir. 1989) ................................................................................................................ 20
Landano v. Rafferty, 970 F.2d 1230 (3d Cir. 1992)................................................................................................................ 20
Mapp v. Reno, 241 F.3d 221 (2d Cir. 2001)........................................................................................................... passim
Marino v. Vasquez, 812 F.2d 499 (9th Cir. 1987) .......................................................................................................... 20–21
Mazurek v. Armstrong, 520 U.S. 968 (1997)........................................................................................................................ 10–11
Moturi v. Asher, No. C19-2023 RSM-BAT, 2020 WL 2084915 (W.D. Wash. Apr. 30, 2020) ...................................... 11
Murai v. Adducci, No. 20-10816, 2020 WL 2526031 (E.D. Mich. May 18, 2020) ..................................................... 11, 15
Nadarajah v. Gonzales, 443 F.3d 1069 (9th Cir. 2006) .............................................................................................................. 19
Nettles v. Grounds, 830 F.3d 922 (9th Cir. 2016) (en banc) ...................................................................................... 9, 21–22
Padilla v. ICE, 953 F.3d 1134 (9th Cir. 2020) .............................................................................................................. 17
Peter O.C. v. Tsoukaris, No. 20-4622 (SDW), 2020 WL 2301442 (D.N.J. May 7, 2020) .......................................................... 13
Prieto-Romero v. Clark, 534 F.3d 1053 (9th Cir. 2008) .............................................................................................................. 24
Ramirez v. Culley, No. 2:20-cv-00609-JAD-VCF, 2020 WL 1821305 (D. Nev. Apr. 9, 2020)................................... 13–14
Ramirez v. Galaza, 334 F.3d 850 (9th Cir. 2003) .......................................................................................................... 21–22
Roe v. U.S. Dist. Ct. (In re Roe), 257 F.3d 1077 (9th Cir. 2001) .................................................................................................. 19–20, 23
Rumsfeld v. Padilla, 542 U.S. 426 (2004)................................................................................................................................ 9
Sacramento v. Lewis, 523 U.S. 833 (1998).............................................................................................................................. 14
Savino v. Souza, __ F. Supp. 3d __, No. 20-10617-WGY, 2020 WL 1703844 (D. Mass. Apr. 8, 2020) ......................................................................................... 24

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Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016)........................................................................................................................ 8–9
Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) .............................................................................................................. 15
Swain v. Junior, 958 F.3d 1081, 2020 WL 2161317 (11th Cir. 2020) ...................................................................... 13, 17
Tam v. INS, 14 F. Supp. 2d 1184 (E.D. Cal. 1998)................................................................................................... 20
Thakker v. Doll, __ F. Supp. 3d __, No. 1:20-cv-480, 2020 WL 1671563 (M.D. Pa. Mar. 31, 2020) (Thakker I) ..................................................................... 1
Thakker v. Doll, __ F. Supp. 3d __, No. 1:20-cv-480, 2020 WL 2025384 (M.D. Pa. Apr. 27, 2020) (Thakker II)............................................................ passim
Torres v. Mercer Canyons, Inc., 835 F.3d 1125 (9th Cir. 2016) .............................................................................................................. 24
Toure v. Hott, __ F. Supp. 3d __, No. 1:20-cv-395, 2020 WL 2092639 (E.D. Va. Apr. 29, 2020) ....................................................................................... 23
United States v. Dade, __ F.3d __, No. 19-35172, 2020 WL 2570354 (9th Cir. May 22, 2020) ..................................................................................... 3, 25
United States v. Martinez-Fuerte, 428 U.S. 543 (1976).............................................................................................................................. 14
United States v. McCandless, 841 F.3d 819 (9th Cir. 2016) .......................................................................................................... 19, 23
United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483 (2001).............................................................................................................................. 15
United States v. Valenzula-Bernal, 458 U.S. 858 (1982).............................................................................................................................. 24
Valentine v. Collier, 956 F.3d 797 (5th Cir. 2020) .......................................................................................................... 16–17
Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765 (2000)................................................................................................................................ 9
Washington v. Glucksberg, 521 U.S. 702 (1997).............................................................................................................................. 14
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008).............................................................................................................................. 9–10

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Woodcock v. Donnelly, 470 F.2d 93 (1st Cir. 1972)................................................................................................................... 21
Zepeda Rivas v. Jennings, __ F. Supp. 3d __, No. 20-cv-02731-VC, 2020 WL 2059848 (N.D. Cal. Apr. 29, 2020) ............................................................................... passim
Statutes 8 U.S.C. § 1225......................................................................................................................................... 22 8 U.S.C. § 1226............................................................................................................................... 4, 17, 22 8 U.S.C. § 1231..................................................................................................................................... 4, 22 8 U.S.C. § 1252......................................................................................................................................... 17 18 U.S.C. § 3626 ...................................................................................................................................... 20
Rules Fed. R. Civ. P. 23 ...................................................................................................................................... 21 Fed. R. Civ. P. 65 ........................................................................................................................................ 1 Fed. R. App. P. 23..................................................................................................................................... 19
Other Authorities Ctrs. for Disease Control and Prevention,
Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (Mar. 23, 2020), https://www.cdc.gov/coronavirus/ 2019-ncov/downloads/guidance-correctional-detention.pdf ......................................................... passim Immigr. and Customs Enf’t, COVID-19 Pandemic Response Requirements (Apr. 10, 2020), https://www.ice.gov/doclib/ coronavirus/eroCOVID19responseReqsCleanFacilities.pdf .................................................................. 4

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NOTICE OF MOTION AND MOTION, AND NOTICE OF OPPOSITION PLEASE TAKE NOTICE that on June 2, 2020 at 10:00 a.m., defendants David Jennings, Matthew T. Albence, and U.S. Immigration and Customs Enforcement (ICE) (Federal Defendants) will appear and move for an order (1) confirming that the temporary restraining order (TRO) issued on April 29, 2020 (ECF No. 53) has expired,1 (2) ending the ongoing bail process, and (3) vacating all bail orders. Federal Defendants will also appear to oppose Plaintiffs’ motion for a preliminary injunction.
INTRODUCTION In an early COVID-19 case, the Middle District of Pennsylvania was confronted by a habeas petition brought by eleven immigration detainees seeking their immediate release from three detention facilities. Thakker v. Doll, __ F. Supp. 3d __, No. 1:20-cv-480, 2020 WL 1671563, at *1 & n.1 (M.D. Pa. Mar. 31, 2020) (Thakker I). In deciding the petitioners’ motion for a TRO one week after they first filed their lawsuit, the court ordered them released from detention, on the theory that (1) their “tinderbox” allegations that COVID-19 would rapidly spread within their facilities and infect them demonstrated a likelihood of irreparable harm, id. at *3–8, (2) they were likely to succeed on the merits of their claim that their continued detention in the face of this alleged risk amounted to “punishment” that violated due process, id. at *8–9, and (3) the balance of equities favored them, id. at *9. By the time the petitioners brought a motion for a preliminary injunction a month later to continue their release, however, the landscape had changed. Instead of facing speculation about an uncertain future as it had at the TRO stage, by the preliminary-injunction stage, the court had the benefit of a month’s worth of actual facts on the ground. The court recognized, “[a]t the time of our [TRO] nearly one month ago, it was reasonable to posit that it would only be a matter of time before COVID-19 decimated our prison populations. Thankfully, that feared outcome has generally not come to pass, largely due to the quick actions of Facility officials.” Thakker v. Doll, __ F. Supp. 3d __, No. 1:20-cv480, 2020 WL 2025384, at *4 (M.D. Pa. Apr. 27, 2020) (Thakker II). While one of the three facilities had 40 confirmed cases of COVID-19 among detainees and staff, id. at *6, the other two facilities had one and zero confirmed cases, respectively, and had implemented measures to address the risk of

1 A TRO expires after at most 14 days or, if extended for good cause, after at most 28 days. Fed. R. Civ. P. 65(b)(2).

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COVID-19, id. at *4–5. In light of these facts, the court held that the petitioners’ “tinderbox” theory of
irreparable harm with respect to the latter facilities was speculative and could not support an injunction:
When we first considered Petitioners’ claims nearly one month ago, the impact of COVID-19 on central Pennsylvania was largely prognostic. While confirmed cases had been reported in Pennsylvania, the gravity of COVID-19’s effects on our communities was yet to be seen. Indeed, given the grim reports on the then-current conditions in the Facilities, combined with the potentially devastating effects of the virus on Petitioners in particular, it was reasonable to apprehend that COVID-19 was inexorably marching towards the Facilities, tsunami-like in its looming catastrophic impact.
. . . . In the last month, however, YCP and CCCF [the facilities] have quickly and effectively implemented the guidelines published by the CDC such that they have stymied any potential outbreak within their walls. The fears which we reasonably harbored of a “tinderbox” scenario have largely failed to appear within those Facilities. This again is a credit to the staffs at those institutions. Indeed, and as aforestated, there are no reported cases at CCCF and the single reported case at YCP appears to have been effectively contained. Thus, we find that any allegations of irreparable harm at YCP and CCCF are largely speculative and cannot satisfy the second element of our Preliminary Injunction analysis.
Id. at *7–8. Similarly, the court held that in light of “the evidence that [the facilities] are able to
effectively control COVID-19 transmission, we find that the improved conditions therein do not negate
the Government’s legitimate interest in detention. Thus, we find that the Petitioners previously housed at
[the facilities] are now unlikely to succeed on the merits of their claims.” Id. at *5. The court reversed
course from its TRO, denied the preliminary-injunction motion with respect to all of the petitioners who
had been detained at those two facilities, and ordered them to be taken back into detention. Id. at *12.2
Thakker is instructive here. See Zepeda Rivas v. Jennings, __ F. Supp. 3d __, No. 20-cv-02731-
VC, 2020 WL 2059848, at *2 n.9 (N.D. Cal. Apr. 29, 2020) (citing Thakker). As in Thakker, the
“tinderbox” scenario that Plaintiffs posited has not come to pass. In the month since this lawsuit was
filed, and in the two-and-a-half months since the World Health Organization (WHO) declared COVID-
19 to be a global pandemic, there have been zero confirmed or suspected cases of COVID-19 at the two
facilities (Facilities) at issue here: the Mesa Verde Detention Facility (Mesa Verde) and the Yuba
County Jail (Yuba). Both Facilities have taken numerous measures to safeguard against COVID-19,

2 The court allowed three of the four petitioners who had been held at the facility with 40 COVID-19 cases to remain released. Thakker II, __ F. Supp. 3d __, 2020 WL 2025384, at *9, *11. The court ordered the fourth petitioner from that facility re-detained, finding that despite that there were COVID19 cases and the petitioner had diabetes, his criminal history — assaulting his wife in front of his children — was such that the public interest in detention outweighed his interest in release. Id. at *9.

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including reducing their populations to well under 50% capacity, implementing social distancing,

screening all staff and detainees that enter the Facilities, providing medical care and education, cleaning

and sanitizing surfaces, providing masks to all detainees and staff, and minimizing and screening outside

contacts. As in Thakker, these measures have been successful in keeping COVID-19 at bay.

Federal Defendants respectfully submit that the Court should deny Plaintiffs’ motion for a

preliminary injunction, because Plaintiffs have not met their burden of establishing (1) that they have a

likelihood on the success of the merits of their claims, (2) that they will suffer irreparable harm absent

an injunction, or (3) that the balance of equities or public interest tip in their favor. Federal Defendants

further respectfully submit that the Court should deny Plaintiffs’ proposed injunction because it is

overbroad and unduly restrains ICE from carrying out its statutory duties under the Immigration and

Nationality Act (INA). The Ninth Circuit recently stayed a similar preliminary injunction issued in

another COVID-19 case, Hernandez Roman v. Wolf, No. 20-55436, 2020 WL 2188048 (9th Cir. May 5,

2020), and Plaintiffs’ proposed injunction is similarly defective here. Federal Defendants further

respectfully submit that the Court should end the bail process and vacate all bail orders, because

(1) under binding Ninth Circuit precedent, the Court does not have the authority to order the release of

immigration detainees on bail in a pending lawsuit absent statutory authorization, (2) the Court does not

have authority to order release in a non-habeas case, and this case is not a proper habeas case, (3) the

statutory INA bars release, and (4) the Court does not have authority to order release where a detainee

does not present an “extraordinary case,” and a binding Ninth Circuit precedent issued this past Friday

confirms that a risk of COVID-19 does not satisfy the “extraordinary case” standard. United States v.

Dade, __ F.3d __, No. 19-35172, 2020 WL 2570354 (9th Cir. May 22, 2020).

STATEMENT OF FACTS

I. CDC and ICE Guidance The Centers for Disease Control and Prevention (CDC) has issued guidance on the management

of COVID-19 in detention facilities. Ctrs. for Disease Control and Prevention, Interim Guidance on

Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (Mar.

23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidance-correctional-detention.pdf

(last visited May 27, 2020) (CDC Guidance). ICE has also issued COVID-19 Pandemic Response

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Requirements, which build on the CDC Guidance. Immigr. and Customs Enf’t, COVID-19 Pandemic Response Requirements (Apr. 10, 2020), https://www.ice.gov/doclib/coronavirus/eroCOVID19response ReqsCleanFacilities.pdf (last visited May 27, 2020) (PRR). ICE has taken numerous steps at both Facilities to reduce the risk of COVID-19, including dramatically reducing their populations to allow for more distancing and implementing additional cleaning, screening, and other protective measures. See generally Pham Decl.; Fishburn Decl. ICE closely follows the CDC Guidance and the PRR with respect to the Facilities at issue here. Pham Decl. ¶¶ 17–18; Fishburn Decl. ¶¶ 17–18. II. ICE Has Significantly Reduced the Population at Both Mesa Verde and Yuba
Mesa Verde has the capacity to house 400 detainees, and Yuba has the capacity to house 210 ICE detainees (in addition to 210 Yuba County inmates, for a maximum capacity of 420). Pham Decl. ¶ 7; Fishburn Decl. ¶ 5. As of March 11, 2020, there were 355 ICE detainees at Mesa Verde and 168 ICE detainees at Yuba. Pham Decl. ¶ 8; Fishburn Decl. ¶ 6. Following the WHO’s declaration, ICE began voluntarily reducing the population at the Facilities (without being subject to any court order). By the end of March, ICE was able to reduce its detainee population at Mesa Verde by 43 detainees, or approximately 12%, and its detainee population at Yuba by 18 detainees, or approximately 11%. Pham Decl. ¶ 9; Fishburn Decl. ¶ 7. ICE continued its efforts to reduce its detainee population at the Facilities through April and May. As of yesterday, ICE has reduced its detainee population at Mesa Verde from 355 to 168, a reduction of approximately 53%, and reduced the population at Yuba from 168 to 79, a reduction of approximately 53%. Pham Decl. ¶ 10; Fishburn Decl. ¶ 8.
These numbers understate the total number of detainees that ICE has released from the Facilities, as these reflect net releases, not gross releases.3 In the INA, Congress mandated that ICE detain certain categories of aliens pending removal, such as aliens who are convicted of certain crimes, including aggravated felonies, see 8 U.S.C. § 1226(c), or aliens who have been ordered to be removed from the United States, see 8 U.S.C. § 1231(a)(2). To implement Congress’s mandate, ICE must take in new detainees. Pham Decl. ¶ 11; Fishburn Decl. ¶ 9. (Many of the new detainees that Mesa Verde and Yuba

3 Release from a detention facility includes release into the community, release for removal from the United States, and release for transfer to another facility for removal from the United States. Pham Decl. ¶ 11 n.1; Fishburn Decl. ¶ 9 n.1.

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takes in are aliens with criminal histories received from jails or state or federal prison. Pham Decl. ¶ 11; Fishburn Decl. ¶ 9.4) At the same time, ICE has diligently worked to significantly reduce the population at the Facilities, which means that ICE has released even more detainees than its net population reduction alone indicates. For example, in the past month alone, ICE has released 194 detainees from Mesa Verde and 73 detainees from Yuba.5 Even while complying with Congress’s mandate to take in new detainees, ICE has managed to reduce the populations at the Facilities, with both operating at under 50% capacity. Pham Decl. ¶¶ 12–13; Fishburn Decl. ¶¶ 11–12. III. Mesa Verde and Yuba Screen All New Arriving Detainees
All new detainees at the Facilities are screened by nurses, who wear personal protective equipment, per protocol. Pham Decl. ¶ 21; Fishburn Decl. ¶ 20. The results dictate whether to monitor or isolate the detainee. Pham Decl. ¶ 21; Fishburn Decl. ¶ 20. At Mesa Verde, new detainees who are asymptomatic but who may be at risk due to their travel history or exposure to COVID-19 patients are placed in isolation for precautionary monitoring. Pham Decl. ¶ 22. At Yuba, all new detainees are placed in a 14-day quarantine, no matter their history. Fishburn Decl. ¶ 21. These Yuba detainees are housed in the “F-pod” unit in their own cells, and are kept apart from the general population for 14 days. Id. ¶ 21.
At both Facilities, detainees who present symptoms consistent with COVID-19 will be placed in isolation, where they will be tested for COVID-19 and influenza to rule out any other source of symptoms. Pham Decl. ¶ 23; Fishburn Decl. ¶ 22. In testing for COVID-19, the Facilities follow the CDC Guidance to safeguard those in their custody and care. Pham Decl. ¶ 23; Fishburn Decl. ¶ 22. Detainees who test positive will remain isolated and be treated. Pham Decl. ¶ 23; Fishburn Decl. ¶ 22. IV. Mesa Verde and Yuba Provide Ongoing Medical Care for Detainees
Medical staff at both Facilities will examine any detainee who submits a request to see medical due to symptoms consistent with COVID-19. Pham Decl. ¶ 25; Fishburn Decl. ¶ 23. As described above, detainees who present symptoms consistent with COVID-19 will be placed in isolation and will be

4 As contained in the weekly detainee lists that ICE has been providing to Plaintiffs and the Court, among the new detainees that ICE has taken in within the past month are aliens who have been criminally convicted of murder, rape, robbery, assault with a firearm, possession of a stabbing weapon in prison, and lewd or lascivious acts by force with a child under 14 years of age.

5 46 detainees were released from the two Facilities pursuant to the Court’s bail orders; the remaining 221 were released without the need for a bail order from the Court.

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tested for COVID-19. Pham Decl. ¶ 23; Fishburn Decl. ¶ 22. V. Mesa Verde and Yuba Provide Education About COVID-19 for Detainees
Both Facilities provide education about COVID-19 to detainees. Pham Decl. ¶¶ 28–31; Fishburn Decl. ¶¶ 30–32. Both Facilities post information and flyers in multiple languages to inform detainees about COVID-19 and precautions they should take. Pham Decl. ¶¶ 29–30; Fishburn Decl. ¶ 31. Both Facilities tell detainees to seek immediate medical care if they feel ill. Pham Decl. ¶ 31; Fishburn Decl. ¶ 32. VI. Mesa Verde and Yuba Have Increased Cleaning and Sanitizing and Encourage Detainees
to Practice Good Hygiene Both Facilities are engaging in frequent cleaning and sanitizing of the facilities and common area high-contact surfaces. Pham Decl. ¶ 32; Fishburn Decl. ¶ 33. Both Facilities supply detainees with disinfectants, sanitizers, bar soap, and liquid soap, free of charge, and encourage detainees to use them. Pham Decl. ¶¶ 33–37; Fishburn Decl. ¶ 34–36. VII. Mesa Verde and Yuba Have Increased Social Distancing Both Facilities are running at below 50% capacity and have taken numerous measures to increase social distancing among detainees, in accordance with the CDC Guidance. Mesa Verde has four housing units A–D. Pham Decl. ¶ 38. Each unit has a maximum capacity of 100 and currently houses fewer than 50. Id. ¶ 39. There are 32 detainees in A-Dorm, 41 detainees in BDorm, 43 detainees in C-Dorm, and 44 detainees in D-Dorm. Id. Each housing unit contains 50 twoperson bunks, set in rows of 25 on opposite walls with a central walkway at least eight feet wide separating them. Id. ¶ 40. Mesa Verde has staggered sleeping arrangements so that no two adjacent beds are occupied. Id. ¶ 41. Detainees are sleeping one to each bunk, alternating between top and bottom bunks, and are instructed to sleep positioned head-to-feet in the alternating top and bottom bunks. Id. The bunk beds are spaced on average a little over three feet apart, the vertical distance between the bottom and top bed platforms is 49 inches, and the average distance between the head of a top bunk and the head of the next alternating bottom bunk is approximately 90 inches (or 7.5 feet). Id. Each housing unit contains two identical common-use bathrooms. Id. ¶ 43. Mesa Verde has taped off and shut down adjacent sinks, toilets, and showers to encourage social distancing. Id. ¶¶ 44–47.

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Mesa Verde has two dining halls, each with a maximum capacity of 80. Id. ¶ 55. Mesa Verde has staggered meal times to limit the number of detainees in a dining hall to a maximum of 25 at any given time. Id. ¶ 56. There are 25 tables, to allow each detainee to sit as his own table during meals. Id. It is possible for 25 detainees to sit at the 25 tables without sitting within six feet of each other. Id. ¶¶ 57–58.
Yuba has five units A–E that currently house ICE detainees. Fishburn Decl. ¶ 37. Each unit has a maximum capacity of 40–50 and currently houses fewer than 20. Id. ¶¶ 38–39. Units A, D, and E have identical layouts. Id. ¶ 41. Each is a two-story unit with 20 two-person cells measuring 6’ by 11’7”, in addition to a common area. Id. Each detainee is in an individual cell, and no two detainees share a cell. Id. Detainees are free to remain in or return to their cells at any time. Id. ¶ 42. Plaintiffs acknowledge that detainees are able to socially distance while in their cells. Siguantay Decl. ¶ 6 (ECF No. 229-14). There are two showers in each unit, one on the lower floor and one on the upper floor. Fishburn Decl. ¶ 41. The showers, being on different floors, are not within six feet of each other. Id. Units B and C also have identical layouts. Id. ¶ 46. Each is two-story dorm-style housing unit. Id. Each originally contained 25 two-person bunks, but Yuba removed five bunks from each unit, in order to space out the bunks at least six feet apart. Id. All detainees sleep on the bottom bunk, and no two detainees share a bunk. Id. The bunks are spaced approximately 6’2” by 6’ apart. Id. Each unit has one shower, two toilets, and four sinks on the lower floor and two showers, four toilets, and two sinks on the upper floor. Id. ¶ 47. Unlike Mesa Verde, there are no dining halls in Yuba. Id. ¶¶ 43. 48. Detainees take meals in their respective housing units. Id. It is possible for detainees to receive their meals and sit without any two detainees sitting within six feet of each other if they eat at their bunks, which they are encouraged to do by YCJ staff. Id. ¶¶ 45, 49–50.6 VIII. Mesa Verde and Yuba Provide All Detainees with Masks and Require Staff to Wear Masks
Both Facilities provide all detainees with masks and require staff to wear masks any time they are within six feet of a detainee. Pham Decl. ¶¶ 65–67; Fishburn Decl. ¶¶ 56–57. Medical staff are required to wear N95 masks during all patient encounters at Mesa Verde. Pham Decl. ¶ 67, and during

6 Plaintiffs attach a number of old photographs of housing units at Yuba. Rodriguez Diaz Decl. & Exs. (ECF No. 229-2); Perez Decl. & Ex. (ECF No. 229-7); Salgado Decl. & Ex. (ECF No. 229-13); see also Greifinger Second Suppl. Decl. (ECF No. 229-19). With one exception, none of the photographs reflect the current conditions of units at Yuba used to house ICE detainees. Fishburn Decl. ¶¶ 53–54.

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all contact with any detainee quarantined in F-pod at Yuba, Fishburn Decl. ¶ 58. IX. Mesa Verde and Yuba Minimize and Screen Outside Contacts
Both Facilities have suspended all social visitations to minimize outside contacts that might introduce an infection to the facilities. Pham Decl. ¶ 69; Fishburn Decl. ¶ 59. Both Facilities have encouraged non-contact visits with attorneys, while continuing to provide access to attorneys via telephone and in-person visits (provided that the attorney wears appropriate personal protective equipment and submits to medical screening prior to entering the facilities). Pham Decl. ¶ 69; Fishburn Decl. ¶ 59. Both Facilities screen all staff and vendors when they enter the facilities for any symptoms, including body temperature. Pham Decl. ¶ 70; Fishburn Decl. ¶ 60. X. Mesa Verde and Yuba Have Never Had Any Confirmed or Suspected Cases of COVID-19
There have been never been any confirmed or suspected cases of COVID-19 among any detainees or staff at either of the Facilities at any point. Pham Decl. ¶ 14; Fishburn Decl. ¶ 13. Medical staff at the Facilities have not encountered any detainee having symptoms consistent with COVID-19 at any point. Pham Decl. ¶ 15; Fishburn Decl. ¶ 14. No staff member has reported having symptoms consistent with COVID-19 at any point. Pham Decl. ¶ 16; Fishburn Decl. ¶ 15. XI. ICE Continues to Closely Monitor the Situation and Reviews Detainees at Higher Risk for
COVID-19 to Determine on a Case-By-Case Basis If Detention Remains Appropriate ICE management are in constant communication with the Facilities regarding any issues stemming from COVID-19. Pham Decl. ¶ 71; Fishburn Decl. ¶ 61. ICE continues to review the populations for those who are “at higher risk for severe illness” if they contract COVID-19, as identified by the CDC, to determine if detention remains appropriate. Pham Decl. ¶ 72; Fishburn Decl. ¶ 62.
ARGUMENT I. The Court Lacks Jurisdiction Over This Case, and Class Certification Is Inappropriate
Federal Defendants respectfully submit that the Court (1) lacks jurisdiction over this case because Plaintiffs lack standing and (2) lacks habeas jurisdiction over this conditions-of-confinement case and because venue is improper. There continue to be no confirmed or suspected COVID-19 cases at the Facilities, while some public reports show that the disease continues to spread in certain locations outside of the Facilities. Plaintiffs therefore have not raised an injury that is “‘concrete and

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particularized’ and ‘actual or imminent, not conjectural or hypothetical,’” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016) or established “a ‘substantial likelihood’ that the requested relief will remedy the alleged injury in fact,” Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 771 (2000) (quotation marks omitted). Additionally, as the Court recognized, this lawsuit “is about conditions of confinement at the facilities,” Zepeda Rivas, 2020 WL 2059848, at *1, and thus there is no habeas jurisdiction, as lawsuits that challenges only conditions of confinement are not cognizable in habeas, and release is not an available remedy. Nettles v. Grounds, 830 F.3d 922, 933 (9th Cir. 2016) (en banc); Crawford v. Bell, 599 F.2d 890, 892 (9th Cir. 1979). Even if there were habeas jurisdiction, plaintiffs in detention may file a habeas petition only in the district where they are confined and must name their immediate custodian as the respondent. See Fed. Defs. TRO Opp’n 12 (ECF No. 37) (citing Rumsfeld v. Padilla, 542 U.S. 426, 437 (2004)). The Facilities, and ICE officials most directly responsible for overseeing the Facilities, are all located in the Eastern District of California, not here. Id. at 14 (citing declarations).7
Additionally, while the Court granted provisional class certification in its TRO, now that the TRO has expired, Federal Defendants respectfully submit that continuing provisional class certification is inappropriate. Among other things, there is a lack of commonality and typicality among the class members, such that the Court has had to make individualized determinations. In addition to the obvious differences in their criminal records, detainees also vary greatly with regard to other factors, such as risk of flight, medical conditions, situations for home release, and many other potentially relevant variables. Thus, there is no commonality or typicality as required for class certification. II. Plaintiffs Are Not Entitled to the Extraordinary Remedy of a Preliminary Injunction
“A preliminary injunction is ‘an extraordinary remedy never awarded as of right.’” Benisek v. Lamone, 138 S. Ct. 1942, 1943 (2018) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008)). “[P]laintiffs seeking a preliminary injunction face a difficult task in proving that they are entitled to this ‘extraordinary remedy.’” Earth Island Inst. v. Carlton, 626 F.3d 462, 469 (9th Cir. 2010). A plaintiff’s burden is a “heavy” one, id., that requires “substantial proof” and a “clear showing” that an

7 Federal Defendants recognize that the Court previously disagreed with their view on standing and venue. Zepeda Rivas, 2020 WL 2059848, at *2 & nn.4–5.

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injunction is warranted, Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis in original). “As a matter of equitable discretion, a preliminary injunction does not follow as a matter of
course from [(1)] a plaintiff’s showing of a likelihood of success on the merits.” Benisek, 138 S. Ct. at 1943–44 (citing Winter, 555 U.S. at 32). “Rather, a court must also consider whether the movant has shown ‘[(2)] that he is likely to suffer irreparable harm in the absence of preliminary relief, [(3)] that the balance of equities tips in his favor, and [(4)] that an injunction is in the public interest.’” Id. at 1944 (quoting Winter, 555 U.S. at 20). Where the government is a party, the last two factors merge. Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014). Plaintiffs fail to satisfy any of the Winter factors, much less all of them. Their motion for a preliminary injunction therefore should be denied.
A. Plaintiffs Fail to Establish Irreparable Harm Taking the second Winter factor first, Plaintiffs must establish “immediate threatened injury.” Friends of the Wild Swan v. Weber, 767 F.3d 936, 946 (9th Cir. 2014) (quoting Caribbean Marine Servs. Co., Inc. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988)). Merely showing a “possibility” of irreparable harm is insufficient. Winter, 555 U.S. at 22. “To support injunctive relief, harm must not only be irreparable, it must be imminent; establishing a threat of irreparable harm in the indefinite future is not enough.” Amylin Pharm., Inc. v. Eli Lilly and Co., 456 F. App’x 676, 679 (9th Cir. 2011). The standard is not “guaranteed safety — an impossible standard to meet no matter the circumstances — but rather a likelihood of irreparable harm.” Dawson v. Asher, No. C20-0409JLR-MAT, 2020 WL 1704324, at *12 (W.D. Wash. Apr. 8, 2020) (Dawson II). The facts on the ground do not support a claim of an immediate threatened irreparable injury in the absence of an injunction. In the two-and-a-half months since the WHO declared COVID-19 to be a pandemic, the Facilities have had zero confirmed or suspected cases. Plaintiffs’ “tinderbox” theory that COVID-19 would rapidly spread within the Facilities and overwhelm their medical infrastructure has not happened. Having suffered no injury in the past two-and-a-half months without an injunction, Plaintiffs have not established that they suffer immediate threatened irreparable injury without an injunction now. This is particularly true given that ICE has, on its own, taken numerous measures to dramatically reduce the population in the Facilities and implement distancing, sanitizing, and monitoring

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procedures.8 Cf. Thakker II, 2020 WL 2025384, at *8; accord, e.g., Murai v. Adducci, No. 20-10816, 2020 WL 2526031, at *6 (E.D. Mich. May 18, 2020) (“[Facility] has pursued aggressive reforms to prevent COVID-19 from entering the general population, to avert the spread of the disease if it did enter, and to ensure detainees are provided quality medical attention, if needed. Speculation as to what could go wrong with such conditions and how Petitioner could be affected given his health profile does not amount to an ‘imminent’ or ‘unreasonable’ risk sufficient to establish a constitutional violation.”) (emphasis in original); Dawson v. Asher, No. C20-0409JLR-MAT, 2020 WL 1304557, at *3 (W.D. Wash. Mar. 19, 2020) (Dawson I) (denying injunctive relief because “[t]here is no evidence of an outbreak at the detention center or that Defendants’ precautionary measures are inadequate to contain such an outbreak or properly provide medical care should it occur”).9
B. Plaintiffs Fail to Establish a Likelihood of Success on the Merits As this Court recognized, Plaintiffs’ claim is a conditions-of-confinement claim under the Fifth Amendment. Zepeda Rivas, 2020 WL 2059848, at *1 (“At root, this lawsuit is not about whether any particular person should be released; it is about the conditions of confinement at the facilities.”). Conditions of confinement violate a civil detainee’s Fifth Amendment rights when “those conditions amount to punishment of the detainee.” Bell v. Wolfish, 441 U.S. 520, 535 (1979). “[A] restriction is punitive where it is intended to punish, or where it is excessive in relation to its non-punitive purpose.” Jones v. Blanas, 393 F.3d 918, 933–34 (9th Cir. 2004) (quotation marks and brackets omitted). Plaintiffs do not

8 Plaintiffs attempt to shift the burden of proof, apparently arguing that they are entitled to an injunction because “Defendants . . . are unable to prove that any of these efforts have appreciably reduced the danger to Class members.” Pls. Mot. 16. This has it backwards. It is Plaintiffs who bear the burden to present “substantial proof” and a “clear showing” that an injunction is warranted. Mazurek, 520 U.S. at 972 (emphasis in original).
9 Plaintiffs’ experts claim that detention “at these two detention facilities all but guarantees mass infection,” Iwasaki Decl. ¶ 34 (ECF No. 229-16), and that “[i]t is very likely people will become infected and die because of the unsafe conditions at these facilities,” Allen Decl. ¶ 56 (ECF No. 229-18), without addressing or explaining how it is that, in the past two-and-a-half months, there has been no mass infection and no one has become infected and died. Cf. Thakker II, 2020 WL 2025384, at *8 (the reason for a lack of an outbreak may be that “[the facilities] have quickly and effectively implemented the guidelines published by the CDC such that they have stymied any potential outbreak within their walls”). The Court should reject these opinions as conclusory, as one court has already done with respect to a COVID-related opinion from Dr. Greifinger (albeit an opinion that related only to a single individual). Cf. Moturi v. Asher, No. C19-2023 RSM-BAT, 2020 WL 2084915, at *4 (W.D. Wash. Apr. 30, 2020) (“Dr. Greifinger’s opinion is overly conclusory to say the least.”).

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claim punitive intent and have not established that their detention is excessive.10 The Supreme Court has recognized that preventing detained aliens from absconding and ensuring
that they appear for removal proceedings, as well as protecting the community from dangerous criminal aliens, are legitimate governmental objectives. See Jennings v. Rodriguez, 138 S. Ct. 830, 836 (2018). Indeed, “deportation proceedings would be vain if those accused could not be held in custody pending the inquiry into their true character.” Demore v. Kim, 538 U.S. 510, 523 (2003) (quotation marks omitted). Plaintiffs and class members are in detention because they violated the immigration laws of the United States and are subject to detention under those laws — in some cases, mandatory detention based on their criminal history. Their detention is thus “reasonably related” to a legitimate government interest.
Nor is their detention “excessive” in relation to the government’s interest. “[T]he fact of detention itself [does not] become[] an ‘excessive’ condition solely due to the risk of a communicable disease outbreak — even one as serious as COVID-19.” Dawson I, 2020 WL 1304557, at *2. “[U]nder the Fifth Amendment, Respondents are not required to eliminate any risk to Petitioners. Instead, Respondents are required to provide for their ‘reasonable safety.’” Dawson II, 2020 WL 1704324, at *12 (citing DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 200 (1989)). ICE and the Facilities have done so in accordance with the CDC Guidance. In addition to screening, sanitizing, and safety measures the Facilities have proactively undertaken, ICE has significantly reduced the detainee population to allow for social distancing in housing units, bathrooms, dining halls, and recreation areas. At Yuba, all beds are six feet or more apart from each other. Plaintiffs themselves acknowledge that they are able to socially distance in E-pod (and therefore, because the layouts are identical, in A-pod, D-pod, and F-pod as well). Siguantay Decl. ¶ 6 (ECF No. 229-14); accord Erazo Decl. (ECF No. 229-11) (stating that he was in D-pod and H-tank and making no complaints about D-pod). Similarly, in B-pod and C-pod, all beds are six feet or more apart from each other. Fishburn Decl. ¶ 46. At Mesa Verde,

10 Plaintiffs argue that the Court found at the TRO stage that they have a likelihood of success on the merits, and thus they must still have a likelihood of success on the merits now. See Pls. Mot. 1, 15 (ECF No. 229). But the fact that a court might have granted a TRO does not mean that the plaintiff has established a likelihood of success on the merits at the preliminary-injunction stage, where the landscape has changed and the court has the benefit of new facts and information. Cf. Thakker II, 2020 WL 2025384, at *5 (after finding at TRO stage that plaintiffs had likelihood of success on their claims, the evidence a month later that facilities “are able to effectively control COVID-19 transmission” rendered it that the plaintiffs “are now unlikely to succeed on the merits of their claims”).

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detainees are in alternating bunks sleeping head to foot to increase the distance between each other. Pham Decl. ¶ 41. While the distance between two adjacent occupied bunks is admittedly less than six feet, the distance between the heads of two occupied bunks is over six feet. Id. ¶¶ 40–41; cf. CDC Guidance 11 (“Arrange bunks so that individuals sleep head to foot to increase the distance between them.”).
Even assuming class members did come within six feet of each other, that would not satisfy Plaintiffs’ burden to show a likelihood of success on the merits of their claims. Plaintiffs have cited no authority that six-foot social distancing is a constitutional requirement.11 By way of comparison, in the Hernandez Roman litigation, the Ninth Circuit stayed a district-court injunction requiring an immigration detention facility to maintain a firm six-foot distance between detainees. See Prelim. Injunction ¶¶ 2, 15, Hernandez Roman v. Wolf, No. 5:20-cv-00768-TJH-PVC (C.D. Cal. Apr. 23, 2020) (Hernandez Roman Injunction) (Choe Decl. Ex. 1), stayed by Hernandez Roman, 2020 WL 2188048, at *1. The Eleventh Circuit stayed a similar injunction. Swain v. Junior, 958 F.3d 1081, __, 2020 WL 2161317, at *2, *7 (11th Cir. 2020) (staying an injunction requiring non-immigration detention facility to “provide and enforce adequate spacing of six feet or more between people”).
The standard for Plaintiffs’ conditions-of-confinement claim is not a per se rule of six feet of social distancing. The standard is “reasonable safety.” DeShaney, 489 U.S. at 200. Plaintiffs have not established a likelihood of success on the merits of a claim that ICE, with all of the numerous safeguards it has voluntarily taken, and in the complete absence of any COVID-19 cases, has failed to provide this. Cf. Thakker II, 2020 WL 2025384, at *5; accord, e.g., Peter O.C. v. Tsoukaris, No. 20-4622 (SDW), 2020 WL 2301442, at *3 (D.N.J. May 7, 2020) (describing safeguards facility had taken and denying injunctive relief because “[a]ll of these measures taken to limit or alleviate the effects of COVID-19 on the jail population clearly show that the conditions to which Petitioner has been subjected are not excessive in relation to the Government’s interest in detaining criminal aliens”); Ramirez v. Culley, No.

11 The CDC Guidance does not mandate six feet of social distancing. It suggests six feet, but it recognizes that detention facilities may have space constraints, see CDC Guidance 11 (“Not all strategies will be feasible in all facilities. . . . If space allows, reassign bunks to provide more space between individuals, ideally 6 feet or more in all directions.”), and does not provide that lesser social distancing is unreasonable, much less a constitutional violation. see id. at 16 (“If the ideal choice does not exist in a facility, use the next best alternative.”).

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2:20-cv-00609-JAD-VCF, 2020 WL 1821305, at *2–4 (D. Nev. Apr. 9, 2020) (same).12 Plaintiffs also have not established a likelihood of success on a substantive-due-process claim
based on purported deliberate indifference to their medical needs. Substantive due process protects only those liberty interests that are “objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty.” Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997). Plaintiffs’ burden for showing that the government has been deliberately indifferent to their well-being is, therefore, a high one. See Farmer v. Brennan, 511 U.S. 825, 834 (1994) (“[T]he deprivation alleged must be, objectively, ‘sufficiently serious.’”). The conduct at issue must be tantamount to an “abuse of power . . . which shocks the conscience,” Sacramento v. Lewis, 523 U.S. 833, 846 (1998), and must “pose an unreasonable risk of serious damage to [the] future health” of those detained, Helling v. McKinney, 509 U.S. 25, 35 (1993). Even if Plaintiffs could show that the government’s conduct substantially increased the risk of harm (which they cannot), that would not support a claim. Instead, a detainee must demonstrate that government officials exhibited “something akin to reckless disregard.” Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016) (en banc). As discussed above, ICE has taken numerous reasonable efforts to protect detainees’ health and safety. When the government undertakes reasonable efforts to protect detainees’ health and safety, it cannot be deemed deliberately indifferent, even if the policies through which it operates are imperfect or the methods chosen are later determined to be suboptimal by a reviewing court. Farmer, 511 U.S. at 844–45.
C. Plaintiffs Fail to Establish That the Equities and Public Interest Tip in Their Favor It is well settled that the public interest in enforcement of the United States’ immigration laws is significant. See, e.g., United States v. Martinez-Fuerte, 428 U.S. 543, 556–58 (1976); Blackie’s House of Beef, Inc. v. Castillo, 659 F.2d 1211, 1221 (D.C. Cir. 1981). Plaintiffs have not shown that the equities and public interest tip in their favor. Cf. Thakker II, 2020 WL 2025384, at *9 (given that “[facility] has no documented cases of COVID-19, in conjunction with the greatly enhanced infectious disease

12 By way of comparison, it is not necessarily feasible for non-detained individuals to maintain six feet of distance at all times either. For example, people have to shop for food and invariably come into contact with other people while doing so. However much a grocery store may encourage shoppers to stay six feet apart, shoppers nonetheless may at times come closer than six feet to other shoppers, and they typically must come closer than six feet to a cashier to check out. The fact that people may come closer than six feet to other people at times does not suggest a constitutional violation.

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prevention measures now in place therein, we find that the public’s interest in reinstated detention

outweighs the lessened risk COVID-19 will pose to Petitioner”); Murai, 2020 WL 2526031, at *7

(“Confinement does not become unnecessary simply due to the existence of COVID-19.”).

Plaintiffs make no secret of their ultimate goal in this litigation: “to significantly depopulate the

facilities.” Pls. Mot. 11–12. This effectively would bar ICE from doing its job. Congress has authorized

the detention of the class members here — many of whom have lengthy criminal histories and are

subject to mandatory detention. Plaintiffs’ proposed injunction, which (among other things) calls for

additional releases and bars ICE from taking in new detainees at the Facilities, would undermine the

public’s interest in enforcing the immigration laws and having removable aliens, including dangerous or

criminal aliens, taken into lawful (often mandatory) detention. The public interest is better served by

allowing ICE to continue in its statutory mission while following the CDC Guidance and safeguarding

against COVID-19, as it has been doing successfully for the past two-and-a-half months, than by

blocking enforcement of the immigration laws in order to “significantly depopulate the facilities.”

D. Plaintiffs’ Proposed Injunction Is Overbroad and Improper

“Injunctive relief must be tailored to remedy the specific harm alleged.” Stormans, Inc. v.

Selecky, 586 F.3d 1109, 1140 (9th Cir. 2009) (ellipsis omitted). “An overbroad injunction is an abuse of

discretion.” Id. Additionally, courts do not have equitable discretion where “‘a statute clearly provides

otherwise.’” Garfias-Rodriguez v. Holder, 702 F.3d 504, 525 (9th Cir. 2012) (en banc) (quoting United

States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 496 (2001)). Even assuming

(counterfactually) that Plaintiffs had satisfied all of the Winter factors and met their heavy burden to

show they warranted an injunction, Plaintiffs’ proposal (ECF No. 229-21) is overbroad and improper.

Plaintiffs first request that the Court declare that the conditions of confinement at the Facilities

violate the Fifth Amendment. Pls. Proposed Order ¶ 1 (ECF No. 229-21). This is patently inappropriate.

There is no such thing as preliminary declaratory relief, Doran v. Salem Inn, Inc., 422 U.S. 922, 931

(1975), and it goes without saying that the Court cannot declare a constitutional violation at this

preliminary stage, when Federal Defendants have yet to receive their full day in court.

Plaintiffs next unfurl a litany of injunctive demands not tailored to their alleged harm. Among

other things, they demand that ICE reduce their population at the Facilities to the point that all detainees

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can maintain a distance of ten feet (up from their prior demand of six feet),13 file detailed written plans
about how detainees “will sleep, dine, bathe, use toilets and showers, and line up for recreation,” provide
a weekly census of detainees, and submit to monthly inspections by class counsel and their experts —
and further demand that ICE be barred from adding any new detainees or transferring any detainees
other than in certain specified conditions. Pls. Proposed Order ¶¶ 2.a–n.14 Plaintiffs’ proposal is
unreasonably overbroad and intrusive.
The Ninth Circuit confronted a similar injunction in Hernandez Roman, which (like Plaintiffs’
proposal) required ICE to reduce the population at a detention facility to a level that would allow
remaining detainees to maintain six feet of distance from each other, file detailed written plans about
how it would implement distancing and sanitization, and provide a census of all class members — and
further barred ICE from taking in new detainees or transferring detainees except under certain specified
conditions. Hernandez Roman Injunction ¶¶ 1, 2, 4–6, 15–16, 27. The Ninth Circuit stayed each of these
provisions from going into effect. Hernandez Roman, 2020 WL 2188048.15
Similarly, the Fifth Circuit was confronted (in a non-immigration context) with an injunction
that, among other things, required detention officials to provide a detailed plan for testing and
quarantining of detainees and barred detention officials from transporting detainees except under certain
specified conditions. See Valentine v. Collier, 956 F.3d 797, 799–800 (5th Cir. 2020). The Fifth Circuit
stayed the injunction, writing:
As we’ve said before about such intrusive orders, this one creates an administrative nightmare for TDCJ [defendant] to comply with the district court’s quotas and deadlines. The burden upon TDCJ in terms of time, expense, and administrative red tape is too great while it must respond in other ways to the crisis.
The harm to TDCJ is particularly acute because the district court’s order interferes with the rapidly changing and flexible system-wide approach that TDCJ has used to respond to the pandemic so far. . . . TDCJ’s ability to continue to adjust its policies is significantly hampered by the preliminary injunction, which locks in place a set of policies for a crisis that defies fixed approaches. And it prevents TDCJ from responding to the COVID-19 threat without a permission slip from the district

13 Plaintiffs’ new ten-foot demand is not found anywhere in the CDC Guidance.

14 Plaintiffs’ proposed order also provides for the continuation of the bail process, which also is improper, as discussed in the next section.

15 The Ninth Circuit permitted to go into effect a provision in the injunction requiring ICE to put into effect best practices, recommendations, and guidelines issued by the CDC and state officials. The Ninth Circuit stayed the injunction in all other respects.

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court. That constitutes irreparable harm [warranting staying the injunction]. Id. at 803–04 (citations, quotation marks, and brackets omitted). The Eleventh Circuit stayed a similarly overbroad and intrusive injunction, agreeing that “[t]he injunction hamstrings [detention] officials . . . from acting with dispatch to respond to this unprecedented pandemic” and that “the district court assumed the role of ‘super-warden’ that our decisions repeatedly condemn.” Swain, 958 F.3d at __, 2020 WL 2161317, at *5 (citing Valentine, 956 F.3d at 804 and other cases). The same concerns are present here. Plaintiffs’ proposed order would create administrative nightmares for ICE, burden it with red tape, and prevent it from responding flexibly to the ongoing COVID-19 situation.
Additionally, Plaintiffs’ proposed order would violate 8 U.S.C. § 1252(f)(1), which provides that “no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter [Inspection, Apprehension, Examination, Exclusion, and Removal], other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.” For example, Plaintiffs’ proposed limitations on ICE’s ability to take in new detainees at the Facilities, Pls. Proposed Order ¶ 2.j (ECF No. 229-21), would restrain ICE’s operations, including its obligation under the INA to mandatorily detain certain criminal aliens. See, e.g., 8 U.S.C. § 1226(c).16 Similarly, Plaintiffs’ proposed limitations on ICE’s ability to transfer detainees would restrain ICE’s operations, including its authority and ability to remove aliens from the United States. See Fed. Defs. Resp. re Removal (ECF No. 228).17
In sum, even assuming (counterfactually) that Plaintiffs were entitled to an injunction, Plaintiffs’ proposed order is overbroad and not tailored to their alleged harm and should be rejected. The Court did not go this far at the TRO stage and should not do so now.18

16 Mesa Verde and Yuba are the only facilities in northern and central California to house ICE detainees pending removal or proceedings before the San Francisco immigration court. See Immigr. and Customs Enf’t, Detention Facility Locator, https://www.ice.gov/detention-facilities (last visited May 27, 2020).

17 The Ninth Circuit has held that § 1252(f)(1) does not restrict injunctive relief on a class basis where each member of the class “is in removal proceedings and facing an immediate violation of their rights.” Padilla v. ICE, 953 F.3d 1134, 1151 (9th Cir. 2020). (The government argued to the contrary in Padilla, and the period for seeking rehearing or certiorari in that case has not yet expired.) Plaintiffs’ proposed injunction goes beyond class members, however. Aliens who have not yet been detained are not members of the class, and a bar on ICE’s taking new aliens into detention thereby restrains the operations of the INA in a manner beyond the class-member exception discussed in Padilla.

18 Plaintiffs also attempt to impose discovery obligations, such as depositions and site visits, in their

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* * * Because Plaintiffs have failed to establish irreparable harm, a likelihood of success on the merits, that the balance of equities tips in their favor, or that their proposed injunction is appropriately tailored and not overbroad, Federal Defendants respectfully request that the Court deny their motion. III. The Court Should End the Bail Process and Vacate All Bail Orders, Because It Does Not Have Authority to Order Class Members Here Released on Bail It is undisputed that no statute or regulation allows for the release of class members here while this lawsuit is pending. In the absence of a statute or regulation allowing it to do so, the Court stated in its TRO that it had inherent authority to release class members on bail. Zepeda Rivas, 2020 WL 2059848, at *3 & n.17. Respectfully, the Court does not have that authority. First, binding Ninth Circuit precedent holds that district courts may not order the release of immigration detainees on bail absent a statute allowing them to do so. No such statute exists here. Second, any inherent authority to order release on bail in a pending lawsuit that may exist attaches only in a habeas case. This case is not a proper habeas case, and thus the Court lacks authority to order release here. Third, any inherent authority to order release that may exist can be constrained or removed by Congress. Congress has done so here in the INA. Fourth, any inherent authority to order release that may exist can be exercised, if at all, only in an “extraordinary case.” A binding Ninth Circuit precedent issued this past Friday confirms that the risk of COVID-19 does not satisfy the “extraordinary case” standard.19 A. District Courts Do Not Have Authority to Order Immigration Detainees Released
on Bail Where, as Here, No Statute Affirmatively Allows Them to Do So The Ninth Circuit has held that courts do not have inherent authority to release immigration detainees on bail absent a statute allowing them to do so. Chin Wah v. Colwell, 187 F. 592, 594 (9th Cir. 1911) (rejecting proposition that “the courts of the United States have the inherent power to admit to bail in deportation cases” because “[i]t is uniformly conceded that those courts can exercise no powers not

proposed order. Pls. Proposed Order ¶¶ 2.c–d, g (ECF No. 229-21). Again, this is improper. A preliminary injunction is not the proper vehicle for addressing run-of-the-mill discovery that should be subject to the Federal Rules of Civil Procedure. Cf. Citizens for Rational Coast Dev. v. U.S. Fed. Highway Admin., No. 07-4551 (JAP), 2008 WL 2276005, at *6 (D.N.J. May 30, 2008).

19 Additionally, even assuming (counterfactually) that a bail process of some sort were proper, Federal Defendants object to the current process, which provides ICE insufficient time to properly vet bail applicants and provides for no avenue to appeal or challenge any bail decision.

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vested in them by statute”); accord Ex parte Perkov, 45 F. Supp. 864, 866–67 (S.D. Cal. 1942) (“The courts of the United States have no inherent power to admit to bail in deportation cases.”) (citing Chin Wah, 187 F. at 594); In re Hanoff, 39 F. Supp. 169, 172 (N.D. Cal. 1941) (“It is uniformly conceded that those courts can exercise no powers not vested in them by statute. The rule thus established [in Chin Wah] is binding upon this Court. . . . Even if petitioner has the right to bail under the provisions of the Immigration Act, the power to admit to bail is not reposed in this Court.”) (citing Chin Wah, 187 F. at 594). The Ninth Circuit has further held that any authority that courts might have to release detainees in criminal proceedings on bail does not extend to detainees in civil deportation proceedings. Chin Wah, 187 F. at 594 (“The general statutory provisions in regard to bail in criminal cases do not apply, for deportation cases are not criminal in their nature. And the right to bail on arrest in civil proceedings depends upon statutory provisions.”) (citations omitted).
This remains the law of this circuit. See Mapp v. Reno, 241 F.3d 221, 225 (2d Cir. 2001) (recognizing Chin Wah, Perkov, and Hanoff as holding that “there is no such inherent power in the federal courts and that they cannot admit a person to bail unless such power is expressly conferred by statute”). The Ninth Circuit has never reversed Chin Wah or ever held that courts in this circuit have inherent authority to release immigration detainees on bail in a pending litigation. Indeed, the Ninth Circuit has never endorsed the theory that courts have any inherent authority to release an individual on bail in a pending habeas litigation in any context, see United States v. McCandless, 841 F.3d 819, 822 (9th Cir. 2016) (citing Roe v. U.S. Dist. Ct. (In re Roe), 257 F.3d 1077, 1080 (9th Cir. 2001)), much less in the context of civil immigration detention, which the Ninth Circuit expressly distinguished from other contexts such as criminal detention, see Chin Wah, 187 F. at 594. Consequently, Chin Wah remains binding, and thus, within the Ninth Circuit, district courts may not release on bail immigration detainees absent a statute that expressly allows them to do so.20 No such statute exists here. The Court therefore does not have authority to release immigration detainees like class members here on bail.21

20 The Ninth Circuit has discussed whether Federal Rule of Appellate Procedure 23(b) provides it with authority to order the release of an immigration detainee in a pending appeal, Nadarajah v. Gonzales, 443 F.3d 1069, 1083 (9th Cir. 2006), but that rule does not authorize release in a litigation pending before a district court, Roe, 257 F.3d at 1080.

21 To the extent that Plaintiffs rely on Brown v. Plata, 563 U.S. 493 (2011) for the proposition that courts have the authority to order release, their argument fails. Brown dealt with the Prison Litigation

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B. District Courts Do Not Have Authority to Order Detainees Released on Bail in a Non-Habeas Case, and This Case Is Not a Proper Habeas Case
Even those courts that — unlike the Ninth Circuit — have recognized a district court’s inherent authority to release an immigration detainee on bail in a pending litigation, have held that this authority arises only in conjunction with a cognizable petition for writ of habeas corpus. This case is not a proper habeas case. Thus, even assuming (counterfactually) that Chin Wah’s prohibition on bail were not binding on the Court, the Court would not have the authority to order the release of class members here.
As the Ninth Circuit has held (in the context of a habeas petition in the context of a criminal case), “[t]he federal court’s authority to release a state prisoner on recognizance or surety in the course of a habeas corpus proceeding” — assuming any such authority exists at all22 — “derives from the power to issue the [habeas] writ itself.” Marino v. Vasquez, 812 F.2d 499, 507 (9th Cir. 1987). Outside of habeas, courts do not have authority to order the release of detainees, even if the detainees were to ultimately win a final decision on the merits at the end of their litigation. See Crawford, 599 F.2d at 892 (“The appropriate remedy for [a conditions-of-confinement claim], if proven, would be a judicially mandated change in conditions and/or an award of damages, but not release from confinement.”). A fortiori, outside of habeas, courts do not have authority to order the release of detainees while a litigation is still pending, when the detainee has not won any decision on the merits. See Bolante v. Keisler, 506 F.3d 618, 620 (7th Cir. 2007) (“Inherent judicial authority to grant bail to persons who have asked for

Reform Act, which contains a statutory provision that expressly allows release as a remedy (and only when ordered by a three-judge court). 18 U.S.C. § 3626(a)(3)(B), (E). No analogous statute exists here. Additionally, the three-judge court in Brown ordered release only after a series of remedial orders over a period of years “giving ample time” for the State to remedy the ongoing violations, Brown, 563 U.S. at 514, 516, and only after the “course of years in which th[e] litigation had been pending” in which “no other remedies had been found to be sufficient,” id. at 501, not (as here) at the outset of a lawsuit.

A district court in this circuit has allowed release on bail of an immigration detainee in a pending habeas litigation. Tam v. INS, 14 F. Supp. 2d 1184, 1190 (E.D. Cal. 1998). The court relied on two cases involving criminal habeas petitions, each of which denied bail, (1) a Third Circuit decision where the district court granted bail and the Third Circuit reversed and ordered the petitioner re-detained, and (2) a Ninth Circuit decision where the district court denied bail and the Ninth Circuit dismissed the appeal. Id. (citing Landano v. Rafferty, 970 F.2d 1230 (3d Cir. 1992); Land v. Deeds, 878 F.2d 318 (9th Cir. 1989)). Tam did not address Chin Wah’s prohibition on releasing immigration detainees on bail absent a statute that allows them to do so or Chin Wah’s instruction that any authority that might exist to release criminal detainees on bail does not extend to civil immigration detainees. Cf. Chin Wah, 187 F. at 594.

22 Roe clarified that Marino did not definitively hold that any such authority exists in the first place and that whether such authority exists remains an open question in this circuit. Roe, 257 F.3d at 1079–80.

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relief in an application for habeas corpus is a natural incident of habeas corpus . . . . [O]utside the habeas corpus setting, the claim of an inherent authority to grant bail is more questionable.”); Woodcock v. Donnelly, 470 F.2d 93, 94 (1st Cir. 1972) (“All the cases and rules speak either of our power to admit to bail pending decision of an appeal otherwise properly before us, or of the power of a district court to admit to bail pending its determination of the merits in a habeas petition.”).
As the Court recognized, “[a]t root, this lawsuit is not about whether any particular person should be released; it is about the conditions of confinement at the facilities.” Zepeda Rivas, 2020 WL 2059848, at *1. The Ninth Circuit has long held that lawsuits that challenges only conditions of confinement are not cognizable as habeas cases. Nettles, 830 F.3d at 933. This lawsuit consequently does not assert a proper habeas claim — and thus it does not vest in the Court any inherent authority to order release on bail that might otherwise attach in a proper habeas lawsuit. Cf. Marino, 812 F.2d at 507.
The fact that this lawsuit challenges only conditions of confinement and does not present a proper habeas claim for release is not an accident. Rather, it is the natural and inevitable result of the manner in which Plaintiffs have pleaded their claims and litigated this lawsuit. Plaintiffs made the affirmative choice to try to bring this case as a class action. To seek certification as a class action, Plaintiffs had to satisfy the requirements set out in Federal Rule of Civil Procedure 23 — including adequacy, which requires that (among other things) plaintiffs and class members not have conflicts of interest amongst one another. Espinosa v. Ahearn (In re Hyundai and Kia Fuel Econ. Litig.), 926 F.3d 539, 566 (9th Cir. 2019) (en banc). Plaintiffs do not, and cannot, claim that all detainees at the Facilities should be released — at most, they argue that some should. Plaintiffs knew that if they were seeking their own release in this lawsuit, the class would have insuperable conflicts, with each detainee seeking his own release over the release of his fellows. Consequently, in an attempt to avoid these conflicts, Plaintiffs disclaimed that they were necessarily seeking their own release.23
But by disclaiming that they were seeking their own release, Plaintiffs pleaded themselves out of a habeas claim. As the Ninth Circuit has held, “habeas jurisdiction is absent . . . where a successful

23 See, e.g., Pls. Class Cert. Reply 4 (ECF No. 41) (“Consider a small room housing three detainees: if adequate social distancing could be achieved with two detainees remaining in the room, releasing one detainee would remedy the constitutional violation for all three detainees.”).

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challenge to a prison condition will not necessarily shorten the prisoner’s sentence” or lead to his release. Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 2003); see Nettles, 830 F.3d at 934; accord, e.g., Kraft v. Gates, 905 F.2d 1540, 1990 WL 84279, at *1 (9th Cir. 1990) (table) (claims that “challenged the conditions of confinement . . . were improperly brought in a petition for habeas corpus”) (citing Crawford, 599 F.2d at 891). And without a proper habeas claim, no authority for a court to order release (either at the end of the litigation or while it is still pending) ever attaches. Crawford, 599 F.2d at 892.
C. District Courts Do Not Have Authority to Order Detainees Released on Bail Where, as Here, Congressional Statutes Limit Such Authority
Even those courts that — unlike the Ninth Circuit — have recognized a district court’s inherent authority to release an immigration detainee on bail in a pending litigation recognize that any such authority can be constrained or removed by an Act of Congress. Congress has by statute limited the power of courts to release immigration detainees like Plaintiffs and class members here. Thus, even assuming (counterfactually) that Chin Wah’s prohibition on bail were not binding on the Court, the Court would not have the authority to order the release of class members here.
“[I]nherent judicial authority is not an indefeasible authority. It is an exercise of a court’s common law powers and thus, unlike a ruling based on the Constitution, is subject to legislative curtailment. Even if in the absence of legislation a federal court could grant bail to an alien challenging a removal order, it cannot do so if Congress has forbidden it.” Bolante, 506 F.3d at 620–21.
Congress has legislated that certain aliens are subject to mandatory detention. See 8 U.S.C. §§ 1225(b), 1226(c), 1231(a)(2). Congress has further legislated that ICE has discretion to detain certain other aliens pending a decision on their removal, 8 U.S.C. § 1226(a), and 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). Ordering the release of an alien detained under these statutory provisions contravenes an Act of Congress. Inherent authority does not extend that far. See Bolante, 506 F.3d at 620–21 (court cannot order release on bail of alien held under § 1225(b)); Mapp, 241 F.3d at 229 n.12 (“had the INS exercised its discretion under § 1231(a)(6) and decided not release Mapp on bail, we would be required to defer to its decision”); Cinquemani v. Ashcroft, No. 00-CV-1460 (RJD), 2001 WL 939664, at *7–8 (E.D.N.Y. Aug. 16, 2001)

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(same); Toure v. Hott, __ F. Supp. 3d __, No. 1:20-cv-395, 2020 WL 2092639, at *8 n.4 (E.D. Va. Apr. 29, 2020) (identifying § 1226(e) as “a statutory limitation precluding release as a form of relief” in COVID-19 conditions-of-confinement case).24 Because a court’s inherent authority cannot override the legislature’s enactments in the INA, the Court does not have inherent authority to order release here.
D. District Courts Do Not Have Authority to Order Detainees Released on Bail Outside of an “Exceptional Case,” and the Ninth Circuit Has Held That a Risk of COVID-19 Does Not Give Rise to an “Exceptional Case” Warranting Release on Bail
Even those courts that — unlike the Ninth Circuit — have recognized a district court’s inherent authority to release an immigration detainee on bail in a pending litigation recognize that any such authority is highly constrained and may be exercised, if at all, only in “extraordinary” cases and circumstances. Accord Bail Standard Order (ECF No. 90). While the Ninth Circuit has never agreed that district courts have authority to order any releases even in an extraordinary case, it does agree that a district court “clearly err[s]” if it orders release on bail outside of an “extraordinary case.” Roe, 257 F.3d at 1080. Mass bail in the context of a class action is inconsistent with this “extraordinary case” standard, and the Ninth Circuit confirmed this past Friday that COVID-19 does not satisfy this standard either. Thus, even assuming (counterfactually) that Chin Wah’s prohibition on bail were not binding on the Court, the Court would not have the authority to order the release of class members here.
“[C]ircuit courts that have upheld the inherent authority of the federal district courts to admit habeas petitioners to bail . . . have stressed the constraints on this facet of judicial power.” Mapp, 241 F.3d at 226 n.5 (citing cases). Even outside the context of immigration, the need for judicial restraint with respect to ordering release on bail on “inherent authority” is clear. Inherent judicial authority, by definition, finds no basis or support in any statute or regulation. Courts therefore must be cognizant that

24 The Ninth Circuit has held that these detention statutes do not necessarily preclude a court from exercising habeas jurisdiction to hear constitutional claims or questions of law. See, e.g., Hernandez v. Sessions, 872 F.3d 976, 987 (9th Cir. 2017). But the question of a court’s power to hear a proper habeas lawsuit alleging constitutional claims is separate from the question of a court’s power to order a detainee released on bail while his lawsuit is pending — i.e., before the detainee wins any judgment on the merits. See Roe, 257 F.3d at 1080 (“[T]he seriousness of the constitutional violations [detainee] alleges in his complaint does not justify [his] release on bail. . . . We do not propose to open the door to the release of those thousands of prisoners on the basis of mere allegations in their petitions.”) (internal quotation marks and ellipsis omitted). It is not clear that such a power to order release in a pending habeas lawsuit exists at all. See id. at 1080 & n.2; McCandless, 841 F.3d at 822. Even assuming such a power did exist, it is not a constitutional power that can trump a statute — it is at most a common-law power and therefore “is subject to legislative curtailment.” Bolante, 506 F.3d at 620.

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any power they might have to order the release of a detainee in a pending litigation — a power, not found in any statute or regulation, exercised when the detainee has won no judgment on the merits — “is a limited one, to be exercised in special cases only.” Id. at 226 & n.5.
This need for judicial restraint is all the more pressing in the context of immigration. “The power to regulate immigration — an attribute of sovereignty essential to the preservation of any nation — has been entrusted by the Constitution to the political branches of the Federal Government.” United States v. Valenzula-Bernal, 458 U.S. 858, 864 (1982). By contrast, “[courts] review the immigration decisions of the political branches only with the greatest caution where [their] actions may inhibit [the political branches’] flexibility to respond to changing world conditions. . . . Thus, it is not the judicial role to probe and test the justifications of immigration policies.” East Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 756 (9th Cir. 2018) (internal quotation marks and ellipsis omitted).
As far as Federal Defendants’ research has been able to determine, prior to Savino v. Souza, __ F. Supp. 3d __, No. 20-10617-WGY, 2020 WL 1703844 (D. Mass. Apr. 8, 2020), no court has ever authorized, much less granted, applications for release on bail in a pending litigation on a mass basis. This is unsurprising. Mass bail is inherently inconsistent with the “extraordinary case” standard that applies to release on bail in a pending litigation. This is particularly true where plaintiffs are bringing a class action, which requires them to satisfy the requirements set out in Rule 23 — including typicality, which requires that plaintiffs and class members all have suffered the same or similar injury. Torres v. Mercer Canyons, Inc., 835 F.3d 1125, 1141 (9th Cir. 2016). It cannot be that an alleged injury shared by dozens or hundreds of class members presents an “extraordinary case” dozens or hundreds of times over, as this would render the “extraordinary case” limitation essentially no limitation at all.25 It is informative that no Court of Appeals has ever endorsed such an approach — and that at least two Courts of Appeals

25 For example, in the context of a habeas case without a bail application, a district court must defer to an immigration judge’s discretionary decision denying an immigration detainee released on bond because he presents a danger to the community or a flight risk. Prieto-Romero v. Clark, 534 F.3d 1053, 1058 (9th Cir. 2008) (“[D]iscretionary decisions granting or denying bond are not subject to judicial review, see [8 U.S.C.] § 1226(e).”); accord, e.g., Calmo v. Sessions, No. C 17-07124 WHA, 2018 WL 2938628, at *4 (N.D. Cal. June 12, 2018) (“A district judge may not second-guess the immigration judge’s weighing of the evidence.”). But in the context of a bail application, no limits appear to apply. See, e.g., Bail Order No. 17 (ECF No. 246) (ordering the released of detainee Livia Pinheiro, despite the fact that the immigration judge found, by clear and convincing evidence, that she presented a danger).

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have stayed orders granting mass releases in response to COVID-19. See Hernandez Roman, 2020 WL 2188048 (staying district-court order to release 250 or more detainees); Hope v. Warden York Cty. Prison, 956 F.3d 156, 159 (3d Cir. 2020) (staying district-court order to release 20 detainees).
Were there any question about whether the hundreds of class members here can claim that COVID-19 renders their cases all to be “extraordinary cases” that warrants their release on bail, a precedential decision from the Ninth Circuit this past Friday makes clear that the answer is no. In Dade, __ F.3d __, 2020 WL 2570354, the Ninth Circuit addressed a (criminal) detainee who was appealing a denial of his habeas petition and, additionally, sought his release while his appeal was pending. Release pending a habeas appeal (like release in a pending litigation before a district court) is “reserved for extraordinary cases.” Id. at *2 (ellipsis omitted). “[A] likelihood of success [on his claim] is not enough” — a detainee “must make a further showing of exceptional circumstances[.]” Id. The detainee argued that COVID-19 and the risk that he might contract it while in detention constituted a “special circumstance.” Id. The Ninth Circuit held that while COVID-19 might constitute a special circumstance that might warrant a change in the conditions of his confinement if that risk were not being adequately addressed, it did not constitute a special circumstance warranting release. Id. The Ninth Circuit’s holding that COVID-19 does not satisfy the “extraordinary case” standard warranting release in the context of a criminal detainee applies all the more strongly in the context of immigration detainees, where the political branches have greater authority and a court’s authority is even more restrained.
* * * Because the Court does not have authority to order the release of class members here, Federal Defendants respectfully request that the Court end the bail process and vacate all bail orders.
CONCLUSION For the foregoing reasons, Federal Defendants respectfully request that the Court enter an order (1) confirming that the TRO has expired, (2) ending the ongoing bail process, (3) vacating all bail orders, and (4) denying Plaintiffs’ motion for a preliminary injunction.

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DATED: May 27, 2020

Respectfully submitted,
DAVID L. ANDERSON United States Attorney
s/Shiwon Choe SHIWON CHOE Assistant United States Attorney
Attorneys for Federal Defendants

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, et al., Plaintiffs,
v. DAVID JENNINGS, et al.,
Defendants.

) CASE NO. 3:20-cv-02731-VC ) ) DECLARATION OF ASSISTANT FIELD ) OFFICE DIRECTOR ALEXANDER PHAM IN ) SUPPORT OF FEDERAL DEFENDANTS’ ) MOTION TO DISSOLVE TEMPORARY ) RESTRAINING ORDER, MOTION TO STAY, ) AND OPPOSITION TO PLAINTIFFS’ MOTION ) FOR PRELIMINARY INJUNCTION )

I, Alexander Pham, make the following statements under oath and subject to penalty of perjury: 1. I am an Assistant Field Office Director (“AFOD”) with the Department of Homeland Security (“DHS”), Immigration and Customs Enforcement (“ICE”), Enforcement and Removal Operations (“ERO”), in the San Francisco Field Office (“ERO San Francisco”). I have held this position since April 2019. I am currently assigned to the Bakersfield Sub-Office within ERO San Francisco, which is responsible for oversight of Mesa Verde Detention Facility (“Mesa Verde”) in Bakersfield, California. I have worked in various other positions within ICE since 2005. 2. This declaration is based upon my personal and professional knowledge and information, belief, reasonable inquiry, and review of information obtained from various records, systems, databases, other DHS employees, employees of DHS contract facilities, and information portals maintained and relied upon by DHS in the regular course of business. 3. ICE is charged with removing aliens who lack lawful immigration status in the United States. Detention is an important and necessary part of immigration enforcement. The Immigration and Nationality Act (“INA”) authorizes detention of aliens pending removal under sections 235, 236, and 241 of the INA, 8 U.S.C. §§ 1225, 1226, 1231. ICE is required by Congressional statute under section 236(c) of the INA, 8 U.S.C. § 1226(c), to mandatorily detain aliens convicted of certain crimes, and these aliens are ineligible for release from ICE custody pending completion of removal proceedings. ICE is similarly required by Congressional statute under section 235(b) of the INA, 8 U.S.C. § 1225(b),

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to detain certain aliens seeking entry into the United States or who entered the United States without

inspection and who are believed to be subject to removal. ICE similarly is required by Congressional

statute under 241(a)(2) of the INA, 8 U.S.C. § 1231(a)(2), to generally mandatorily detained and remove

aliens who have final administrative removal orders during the first 90 days of the removal period. In

other cases, aliens may be detained by ICE pending removal as a matter of discretion under sections 235

and 236(a) of the INA, 8 U.S.C. §§ 1225, 1226(a), because they present a danger to the community or

pose a flight risk, or under section 241(a)(6) of the INA, 8 U.S.C. § 1231(a)(6), once the removal period

has expired and where release on supervision may be appropriate if there is no significant likelihood of

removal in the foreseeable future.

4. Mesa Verde is a private detention center owned and managed by The GEO Group, Inc.

(“GEO”). GEO is an independent contractor that provides the facility, management, personnel and

services for 24-hour supervision of aliens in ICE custody at Mesa Verde. Besides GEO’s own private

internal oversight and inspection processes, the federal government also mandates oversight through

various inspection processes by ICE and other entities.

5. At Mesa Verde, ERO is responsible for managing the immigration cases of detained

individuals. In addition, ERO is responsible for observing, identifying, and notifying GEO of any

perceived deficiencies in its adherence to the Performance-Based National Detention Standards

(“PBNDS”) 2011, and any other mandated requirements, such as those associated with COVID-19

protections, in its management and operation of Mesa Verde.

6. As an AFOD, I manage the docket for individuals detained at Mesa Verde, including

supervising Supervisory Detention and Deportation Officers and other detention and deportation staff

who are responsible for the review and tracking of aliens’ removal proceedings and detention

placements. My primary responsibilities include immigration case management for those detained at

Mesa Verde and general oversight at Mesa Verde, including monitoring of adherence to the PBNDS

2011, and any other mandated requirements, such as those associated with COVID-19, in its

management and operation of Mesa Verde.

7. Mesa Verde has the capacity to house 400 detainees. Mesa Verde has the capability to

identify, isolate, and segregate detainees from each other.

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8. On March 11, 2020, the World Health Organization (“WHO”) declared Coronavirus Disease 2019 (“COVID-19”) a global pandemic. At the time, the population of Mesa Verde was 355 detainees. Since that time, the ERO Bakersfield sub-office has taken affirmative steps to reduce the number of detainees at Mesa Verde by reviewing its detained population and by reconsidering custody determinations, parole requests, and issuing orders of supervision on release for those aliens who are not subject to mandatory custody, pose a danger to the community or flight risk; and/or for whom there is no significant likelihood of removal in the foreseeable future.
9. Consequently, by March 30, 2020, ICE had reduced the Mesa Verde population from 355 to 312, approximately 12%.
10. As of May 26, 2020, ICE has reduced the Mesa Verde detainee population from 355 to 168, approximately 53%.
11. The net reduction in population from 355 to 168 understates the number of detainees who have been released from Mesa Verde, as these numbers reflect net releases, not gross releases.1 Between April 27, 2020 and May 27, 2020, Mesa Verde has admitted 117 new arrivals, of which almost 93% are subject to some form of statutorily authorized mandatory detention. Many of these new detainees are aliens with criminal histories released from county jail or state or federal prison. At the same time, ICE has worked to reduce the population at Mesa Verde. The daily updates that ICE has been providing the Court state that a total of 194 detainees have been released in the past month, even without counting releases before April 27, 2020.
12. Since no later than May 8, 2020, Mesa Verde has been running at or below 50% of total capacity.
13. As of May 26, 2020, Mesa Verde is currently running at 42% of total capacity. 14. There have never been any confirmed or suspected COVID-19 cases at Mesa Verde among either detainees or staff at any point. 15. Mesa Verde medical staff have not encountered any detainee experiencing symptoms consistent with COVID-19.

1 Release from a detention facility includes release into the community, release for removal from the United States, and release for transfer to another facility for removal from the United States.

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16. No Mesa Verde staff member has reported any symptoms consistent with COVID-19.

CDC AND ICE GUIDANCE

17. Since the onset of reports of COVID-19, ICE epidemiologists have been tracking the

outbreak, regularly updating infection prevent and control protocols, and issuing guidance to field staff

on screening and management of potential exposure among detainees.

18. The Centers for Disease Control and Prevention (“CDC”) issued Interim Guidance on

Management of Coronavirus 2019 (COVID-19) in Correctional and Detention Facilities (https://www.

cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html),

and its general public guidance (https://www.cdc.gov/coronavirus/2019-ncov/index.html). As noted by

the CDC, “[t]he guidance may need to be adapted based on individual facilities’ physical space, staffing,

population, operations, and other resources and conditions.” ICE endeavors to closely follow the CDC

Guidance where possible, and as recommended, makes adaptations according to each facility’s spacing,

population and resources.

19. On April 10, 2020, ICE released its ERO COVID-19 Pandemic Response Requirements

(https://www.ice.gov/doclib/coronavirus/eroCOVID19responseReqsCleanFacilities.pdf), a guidance

document that builds upon previously issued guidance and sets 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 with respect to COVID-19.

SCREENING NEW ARRIVING DETAINEES

20. At Mesa Verde, medical care, including screening of new detainees, is provided by the

GEO medical staff on-site and is overseen by the ICE Health Services Corps (“IHSC”), which provides

medical services through a combination of U.S. Public Health Service Commission Corps officers,

federal civil servants, and contract health professionals. Each ICE facility is assigned an IHSC Field

Medical Coordinator (“FMC”), who serves as a medical consultant to the ICE field offices and oversees

clinical services at facilities like Mesa Verde that house ICE detainees. IHSC’s FMCs ensure that the

provision of medical care by contractors to the ICE detainees within the facilities meets detention

standards, as required by the contract. The FMCs do not provide hands-on care or direct the care within

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the contract facilities but monitor the medical care and services provided by the facilities. Medical staff at the contract facilities are directly responsible for medical care at the facilities.
21. Upon arrival at Mesa Verde, each detainee is screened by nurses, who wear personal protective equipment, per protocol. During intake screening, new arrivals are given a number of handouts, including the Centers for Disease Control and Prevention (“CDC”) educational handout on COVID-19.2 During intake medical screenings, detainees are assessed for fever and respiratory illness and are asked to confirm if they have had close contact with a person with laboratory-confirmed COVID-19 in the past 14 days and whether they have traveled from or through area(s) with sustained community transmission in the past two weeks. The detainee’s responses and the results of these assessments will dictate whether to monitor or isolate the detainee.
22. Mesa Verde has the capability to identify, isolate, and segregate detainees from each other. Those detainees who are asymptomatic but who may be at risk due to their travel history or confirmed exposure to COVID-19 patient(s) will be placed in isolation for precautionary monitoring. All new arrivals transferred from another facility where there are any reported cases of COVID-19 infection will be placed in isolation for 14 days prior to being released into the general population. In cases involving suspected, but not confirmed, exposure to COVID-19 patient(s), Mesa Verde will decide, on a case-by-case basis, whether to isolate these individuals as a prophylactic measure. In such cases, asymptomatic detainees are, space permitting, individually isolated, or in the alternative, placed in cohorts with restricted movement for the duration of the most recent incubation period (14 days after the most recent exposure to an ill detainee) and are monitored daily for fever and symptoms of respiratory illness. The latter procedure is known as cohorting, which is an infection-prevention strategy that involves housing detainees together who were exposed to a person with an infectious organism but are asymptomatic.3 Those detainees that show an onset of fever and/or respiratory illness are referred to a medical provider for evaluation. Cohorting is discontinued when the 14-day incubation period completes with no new cases.

2 This information is also sent out via tablet messages and reinforced through posters and town hall meetings with the detainees.

3 See the CDC’s Fundamental Elements Needed to Prevent Transmission of Infectious Agents in Healthcare Settings at https://www.cdc.gov/infectioncontrol/guidelines/isolation/prevention.html.

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23. Detainees who present symptoms consistent with COVID-19 will be placed in isolation,

where they will be tested for COVID-19 and influenza to rule out any other source of symptoms. Per the

Health Service Administrator at Mesa Verde, the facility currently has more than 100 COVID test kits in

stock and has the capacity collect specimens onsite and send the specimens to offsite laboratory for

analysis which takes four days to return a result. In testing for COVID-19, Mesa Verde is following

guidance issued by the CDC to safeguard those in its custody and care. If COVID-19 testing is positive,

these individuals will remain isolated and treated. In case of any clinical deterioration, detainees will be

referred to a local hospital.

ONGOING MEDICAL CARE

24. Mesa Verde provides daily access to sick calls in a clinical setting and has access to

specialty care services and hospital care. Medical nursing staff is onsite 24 hours a day, seven days a

week, in addition to fulltime mental health and medical (physician/mid-level) providers. Sick calls are

triaged from most urgent to least urgent based on their medical opinions, and detainees are seen in the

order as determined by medical staff. Patients with an urgent need are seen by a provider or registered

nurse the following day. Routine sick calls are scheduled with a provider or nurse and seen within 48–72

hours. Emergency needs will be sent to the local hospital. All requests for off-site medical care are sent

to the medical provider for review. Urgent off-site requests are scheduled with an outside provider as

appointments are available. Due to COVID-19, all outside providers are limiting medical appointments

for urgent or emergent care only.

25. Mesa Verde medical staff will continue to examine any detainee who submits a request to

see medical due to symptoms consistent with COVID-19. As discussed in the previous paragraph,

detainees who present symptoms consistent with COVID-19 will be placed in isolation, where they will

be tested for COVID-19 and influenza to rule out any other source of symptoms. If COVID-19 testing is

positive, these individuals will remain isolated and treated. In case of any clinical deterioration,

detainees will be referred to a local hospital

26. Per ICE policy, if detainees are diagnosed with any communicable disease, including

COVID-19, the Health Services Administrator at the facility, the site and regional medical directors, and

the ICE FMC are notified through their chain of command. Local public health and CDC will be notified

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with the completion of proper forms for reporting. 27. While Mesa Verde has not had any confirmed or suspected cases of COVID-19, were one
to arise, Mesa Verde will house cases with signs and symptoms consistent with COVID-19 in a negative isolation room with enhanced respiratory droplet nuclei precaution for the staff.
EDUCATION ABOUT COVID-19 28. Mesa Verde is providing education regarding COVID-19 to staff and detainees, including the importance of handwashing and hand hygiene, covering coughs with the elbow instead of with hands, sanitizing common surfaces, and other health and wellness information. 29. Mesa Verde is holding in person town halls for staff and detainees, posting CDC information throughout the facility regarding COVID-19, the importance of handwashing, social distancing, and instructions on how to wear properly wear face masks. See Attachments. This information is continuously provided by electronic informational messages to detainees through tablets that are located in every dorm room. See id. The dormitory’s representative is also responsible for conveying the information and reminders to all detainees in his/her respective dormitory. 30. The following photographs accurately depict examples of the COVID-19 posters and information addressing handwashing, mask wearing, and social distancing in the dorms and dining halls, methods of preventing germ spread, and general COVID-19 facts, that are posted in numerous languages including English, Spanish, French, Korean, Mandarin and Cantonese, German, Russian, Ukrainian, Vietnamese, Farsi, Arabic, and Dari. Detainees also receive reminders and updates via tablet. See Attachments. Additional examples of the posters and information that Mesa Verde has posted are attached to the end of this declaration. See id.

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Case 3:20-cv-02731-VC Document 264-1 Filed 05/27/20 Page 9 of 53 ..--··-.,, --~

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·ene Items
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31. Mesa Verde is requesting detainees to seek immediate medical care if they feel ill. CLEANING AND SANITIZATION
32. Mesa Verde is ensuring frequent cleaning and sanitation of all common area high contact surfaces, such as door handles, telephones, dining halls, and medical areas, which is being conducted throughout the day.
33. Per the PBNDS, detainees are required to perform housekeeping duties around their respective areas. Dorms are required to be cleaned daily. Detainees who participate in the detainee work program are responsible for cleaning the bathroom areas at least once per day in the morning, and periodically throughout the rest of the day as needed. Detainees who fail to meet the sanitation requirements as outlined in PBNDS are subject to rule violations for being untidy/unsanitary.
34. Each dormitory has its own cleaning cart which is stocked with sanitation supplies, including, but not limited to, soap, all-purpose cleaner, disinfectant, and a bathroom-specific cleaning solution, mops, buckets, brooms, brushes, rags, etc. Detainees have regular access to two types of allpurpose cleaner (Tri-Base and Clean By Proxy), disinfectant (GS Disinfectant), and glass cleaner, which they are encouraged to use. Cleaning chemicals for spray bottles and mop buckets are refilled by GEO

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staff when needed throughout the day. Towels are also distributed to detainees for cleaning purposes and are laundered on a daily basis.

35. Liquid hand soap and paper towel dispensers are installed at the front of each dormitory near the sink. In addition, each dormitory has two bathroom areas, and several soap dispensers have been installed in each bathroom area. In total, each of the four dormitories have the following: A-Dorm has eight soap dispensers and five towel dispensers; B-Dorm has six soap dispensers and five towel dispensers; and C-Dorm and D-Dorm each have seven soap dispensers and seven towel dispensers. The

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recreational area bathroom also has one soap dispenser and one towel dispenser. Mesa Verde staff check

the soap dispensers daily to ensure they are promptly refilled as needed.

36. Mesa Verde has informed the IHSC FMC that hand sanitizer is not available to detainees

because it is alcohol-based and can be abused by detainees. However, Mesa Verde stated that mounted

hand sanitizer is available at the medical station and the lab station. And detainees have access to liquid

soap and water for hand hygiene, which, per the CDC, are more effective than hand sanitizers at

removing certain kinds of germs. Mesa Verde staff have access to soap and hand sanitizer.

37. Upon arrival at Mesa Verde, all detainees are provided free of charge with bar soap,

shampoo, toothpaste and a toothbrush. Reasonable requests for additional supplies of these items are

furnished free of charge. Brand names of these items are also available for purchase if detainees prefer

specific brands.

HOUSING UNITS

38. Mesa Verde has four housing units: A-Dorm, B-Dorm, C-Dorm, and D-Dorm. Each dorm

has a maximum capacity of 100 detainees, for a total of 400 detainees for the entire facility.

39. ICE has reduced the population at Mesa Verde such that each housing unit is running

below 50 percent capacity. As of May 26, 2020, there were 32 detainees in A-Dorm, 41 detainees in B-

Dorm, 43 detainees in C-Dorm, and 44 detainees in D-Dorm. As of the same date, there is one detainee

in the medical unit and three detainees in the RHU.

40. The housing units range from 59.6 feet to 60.5 feet wide, 88.4 feet to 96.1 feet long, and

5,330 total square feet to 5,814 total square feet. Each housing unit contains 100 beds (50 bunk beds).

The bunk beds are affixed to the floor. They are set out in two rows of 25 bunk beds each against two

different walls opposite each other with a walkway in the middle that measures at least eight feet wide in

every dorm. The bunk beds are spaced on average a little over three feet apart. (The exact distances

between bunk beds, which vary slightly from bunk bed to bunk bed, are set out in ICE’s interrogatory

responses.) The vertical distance between the bottom and top bed platforms is 49”.

41. Mesa Verde is ensuring that detainees are or will be sleeping at least several feet apart

from each other, positioned so that their faces are at least six feet away from each other. In order to

accomplish this, Mesa Verde has staggered sleeping arrangements in all of its housing units so that no

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two adjacent beds are occupied. No two detainees are sharing a bunk bed, and no detainee has another detainee in the bed to right of him, the left of him, above him, or below him. Detainees are sleeping one to each double bunk, alternating between top and bottom bunks, and are instructed to sleep positioned head-to-feet in the alternating top and bottom bunks. The average distance between the head of a top bunk and the head of the next alternating bottom bunk is approximately 90 inches.
42. The following photographs accurately depicts the current conditions in the housing units.

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43. Each housing unit contains two identical common-use bathrooms. The bathrooms range from 7.2 feet to 8.2 feet wide, 45.8 feet to 50.8 feet long, and 330 total square feet to 417 total square feet. Each bathroom has seven sinks, five toilets, and five showers. (A-Dorm and B-Dorm additionally have two Americans with Disabilities Act-compliant single-occupancy toilet/sink/shower stall combinations.) Detainees may shower at any time except during detainee count times.
44. Mesa Verde has taped off and shut down sinks, toilets, and showers in the restrooms to allow at least six feet of distance between detainees who are using the facilities. The open sinks, toilets, and showers are more than six feet apart from each other. The number of individuals allowed in the bathroom at any given time is limited to allow for greater social distancing.
45. There are seven sinks per bathroom. To encourage social distancing, only sinks one, four and seven are operational, and marked with yellow and black tape as demonstrated below. Each sink is

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two feet apart from the adjacent sink. Thus, measuring from the faucet of sink one to sink four, there is at least six feet distance between the operational sinks as demonstrated by the measuring tape in the photographs below.

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46. There are five toilets in each bathroom. In A-Dorm and B-Dorm, the distance between each of the toilets is 36 inches or three feet. In C-Dorm and D-Dorm, the distance between each of the toilets is 29 inches. To encourage social distancing, toilets two and four are turned off and cannot be used. The working toilets are denoted with yellow and black tape as shown below. In A-Dorm and BDorm, there is six feet of distance between the operational toilets as seen in the photograph below. In CDorm and D-Dorm, there is approximately five feet of distance between the operational toilets.

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47. There are five showers in every bathroom. In A-Dorm and B-Dorm, the distance between

each of the showers is 36 inches or three feet. In C-Dorm and D-Dorm, the distance between each of the

showers is 31 inches. To encourage social distancing, showers two and four are turned off and cannot be

used. The working shower heads are denoted with yellow and black tape as shown below. In A-Dorm

and B-Dorm, there is six feet of distance between the operational shower heads as seen in the

photographs below. In C-Dorm and D-Dorm, there is approximately five feet of distance between the

operational shower heads.

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48. Each dormitory at Mesa Verde has areas that contain telephone or telephone booths, a law library, a kitchen, televisions and tables for recreational use.

49. Each dormitory has both pay phones and phone booths which were installed to comply with the Lyon v. U.S. Immigration and Customs Enforcement Settlement Agreement. As demonstrated by the photographs below, the phone booths are fully enclosed.

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50. Per the PBNDS, all detainees must have access to a law library. Each dorm has four law library kiosks that are situated on tables next to one another due to required network and power wiring.
51. Each dormitory also has tablets that are available for conducting legal research or virtual visits with family. The tablets can be removed from the mounts and transported throughout the dorm but have to remain on the mount for the video program to work.

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52. Each dormitory has four 55” televisions with sound that is transmitted over a FM signal. The televisions are mounted on the wall at the end of each dorm and can be seen and heard from most parts of the dormitory.

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53. Tables for recreational use at various locations within the dorm and are placed per space limitations. These tables provide spaces for up to four people. The tables are bolted to the floor and the detainees use their provided chair. All excess chairs have been removed from the dormitories, but per the American Correctional Association (“ACA”) standards, a chair must be provided to each detainee so that s/he can sit in an upright position to do certain activities. Using the tables is at the detainees’ discretion.
54. As noted above, there are cleaning carts with spray bottles filled with cleaning chemicals and rags in each dorm and are available for the detainees to use to sanitize wipe down all the telephones, the computers, the tablets, the recreational tables, the microwave and the hot water dispenser at their discretion.
DINING HALLS 55. Mesa Verde has two dining halls. The dining halls are each 29 feet wide, 57 feet long, and 1,653 total square feet. Each dining hall has a maximum capacity of 80 detainees.

56. Previously, each dormitory had different meal times. In order to encourage social

distancing, Mesa Verde now staggers meal times within dormitories to limit the number of detainees in a

dining hall to a maximum of 25 at any given time. Movement has been limited to no more than 25

detainees per meal period.

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57. The dining halls contain 25 tables, so each detainee is able to sit at his own table during meals. For each table, one chair has been marked with yellow and black tape to designate the chair where the detainee should sit in order to allow for social distancing. Mesa Verde staff have been advised to inform the detainees to sit only one detainee to a table at the specified mark.

58. If the detainees sit on the chair marked by the yellow and black tape at each of the 25 tables, detainees will be seated at more than six feet from one another as demonstrated by the photographs below.

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59. Each dorm has detainee “porters” that assist staff in serving the trays to the detainees from their dorm; they do not serve other dorms. The porters enter the chow hall before the other detainees in order to prepare to serve the meals. Porters wear gloves, a hairnet/beard guards and are encouraged to wear the face mask they are provided. The CDC along with various other information sources have concurred that food/drink transmission of COVID-19 has not been found to be an issue.

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60. At Mesa Verde, no detainee is required to attend meal time and may purchase their own food at the commissary if they prefer. There are some detainees that never consume any of the Mesa Verde provided meals and only eat food from the commissary. Detainees may walk to the dining hall at their leisure to consume their meal as long as it is during their scheduled meal time. Upon entry into the dining hall, detainees pick up their tray and meal when they walk past the hot box before they reach the seating area. The distance from the respective dorm exits to the chow hall entrance is about 30’. Mesa Verde staff regularly reminds the detainees that they should socially distance themselves en route and upon their return from the dining hall and when lining up to get their tray and food.
RECREATIONAL AREAS 61. Mesa Verde has two outdoor recreation areas. The distance to the large recreation yards is 8’ from A-Dorm, 10’ from B-Dorm, 58’ from C-Dorm, and 56’ from D-Dorm. Mesa Verde staff have been instructed that they should remind all detainees to maintain social distancing en route to the recreational areas, during their time in the recreational areas and on their way back from the recreational areas. There are signs that are posted by the seating and exercise equipment areas reminding detainees that they should socially distance. 62. The main yard is an irregular quadrilateral with sides of 159 feet, 73.5 feet, 260.2 feet, and 255.11 feet, that is 27,493 total square feet and has basketball courts, a place to play squash, open areas to play soccer and two shaded weight-lifting areas.

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63. Postings have also been placed in the recreation area reminding detainees to wipe down the machines before and after each use. There is a spray bottle with disinfectant and rags the detainees can use to wipe down surfaces and equipment before and after use.
64. No detainee is required to go out to the recreation areas. All detainees are free to stay in their housing units.
MASKS 65. Since April 17, 2020, all detainees at Mesa Verde are provided free of charge with surgical masks. When the masks were initially distributed, detainees were educated on proper wear in order to prevent infection and spread. Mesa Verde offers to replace masks every Monday, Wednesday, and Friday. As of May 25, 2020, of the 3,882 masks offered, detainees have only accepted 1,507 masks. While Mesa Verde staff continuously remind detainees to wear masks, the number of detainees observed wearing surgical masks is low to non-existent in all dorms based on spot checks by Mesa Verde and ICE. Detainees cannot be forced to wear their masks and there is no penalty for not doing so. 66. At intake, new arrivals are also given surgical masks and instructed on how to properly wear them. In addition, instructional postings on how to wear face masks are posted in all the dorms in

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both English and Spanish. See Attachments.

67. All Mesa Verde staff wear protective masks any time that they are within a six-foot range

of any detainee. As of May 27, 2020, GEO policy states that employees are required to wear masks in all

common areas and when other individuals are present within proximity.

68. All Mesa Verde medical staff are required to wear surgical masks at all times, and since

April 16, 2020 are required to wear a N95 mask during all patient encounters, including pill call.

MINIMIZING AND SCREENING OUTSIDE CONTACTS

69. Mesa Verde has suspended all social visitations and has encouraged non-contact visits

with attorneys, while continuing to provide access to attorneys through various telephonic means as

established under the Lyon v. U.S. Immigration and Customs Enforcement settlement agreement. In

cases where in-contact legal visits are requested, Mesa Verde staff schedules such visits but notifies

attorneys in advance that they must wear appropriate personal protective equipment and submit to

medical screening prior to entering the facility.

70. Mesa Verde is screening all staff and vendors when they enter the facilities for any

symptoms, including body temperatures. This screening includes all medical staff, who have their

temperature screened at ingress daily, and every 12 hours while on-site.

CONTINUED MONITORING

71. ICE and ERO management staff, including the Deputy Field Office Director and myself,

hold several meetings every week and are in constant communication twenty-four hours a day, seven

days a week regarding Mesa Verde and issues stemming from COVID-19. Additionally, ICE staff is in

daily contact with the Facility Administrator and his staff, including medical, at Mesa Verde over the

health and safety of detainees. Given the ICE protocols, Mesa Verde staff and ICE officers are taking

appropriate measures to ensure the health and safety of detainees and will continue to do so. ICE is on-

site daily and can address any issues, as presented or directed, to ensure the ICE protocols are in place

and to report back any issues they may observe that need to be addressed.

72. ICE will continue to review its detained population of people who are “at higher risk for

severe illness,” as identified by the CDC, to determine if detention remains appropriate, considering the

detainee’s health, public safety and mandatory detention requirements, and adjusted custody conditions,

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when appropriate, to protect health, safety and well-being of its detainees. Mesa Verde medical staff will examine any detainee promptly who submits a medical request due to symptoms consistent with COVID-19. ICE staff is on-site daily and is able to address issues as presented and report back any issues they may observe that need to be addressed.
I affirm under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. Executed at Bakersfield, California.
DATED: May 27, 2020
Alexander Pham

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STOP THE SPREAD OF GERMS

Help prevent the spread of respiratory diseases like COVID-19.

Avoid close contact with people who are sick.

Cover your cough or sneeze with a tissue, then throw the tissue in the trash.

Clean and disinfect frequently touched objects and surfaces.
Avoid touching your eyes, nose, and mouth.
Stay home when you are sick, except to get medical care.
Wash your hands often with soap and water for at least 20 seconds.
For more information: www.cdc.gov/COVID19
CS314915-A

‫‪Case 3:20-cv-02731-VC Document 264-1 Filed 05/27/20 Page 31 of 53‬‬
‫أ قفـو ا ا نتشـا ر ا لجر ا ثيـم‬

‫ﺳـﺎﻋﺪ ﻓﻲ ﻣﻨﻊ اﻧﺘﺸـﺎر أﻣﺮاض اﻟﺠﻬﺎز اﻟﺘﻨﻔﺴـﻲ ﻣﺜﻞ ﻓﯿﺮوس ﻛﻮروﻧﺎ ‪.COVID-19‬‬

‫ﻏ ِط ﻓﻣك ﺑﻣﻧدﯾل ورﻗﻲ ﻋﻧد اﻟﺳﻌﺎل أو اﻟﻌطس‪،‬‬ ‫وﺗﺧﻠص ﻣن اﻟﻣﻧدﯾل‬
‫اﻟﻣﺳﺗﻌﻣل ﻓﻲ ﺳﻠﺔ اﻟﻘﻣﺎﻣﺔ‪.‬‬

‫ﺗﺟﻧب اﻻﺣﺗﻛﺎك ﺑﺎﻟﻣرﺿﻰ‪.‬‬

‫اﺣرص ﻋﻠﻰ ﺗﻧظﯾف وﺗطﮭﯾر اﻷﺷﯾﺎء‬ ‫واﻷﺳطﺢ اﻟﺗﻲ ﺗﻠﻣﺳﮭﺎ ﺑﺎﺳﺗﻣرار‪.‬‬
‫ﺗﺟﻧب ﻟﻣس ﻋﯾﻧﯾك وأﻧﻔك وﻓﻣك‪.‬‬
‫اﻟزم اﻟﺑﻘﺎء ﻓﻲ اﻟﻣﻧزل‬ ‫وﻻ ﺗﺧرج إﻻ ﻟﺗﻠ ّﻘﻲ اﻟرﻋﺎﯾﺔ اﻟطﺑﯾﺔ‪.‬‬
‫اﻏﺳل ﯾدﯾك ﺑﺎﻟﻣﺎء واﻟﺻﺎﺑون ﺑﺷﻛل‬ ‫ﻣﺗﻛرر ﻟﻣدة ‪ 20‬ﺛﺎﻧﯾﺔ ﻋﻠﻰ اﻷﻗل‪.‬‬
‫‪cdc.gov/COVID19‬‬
‫‪CS314915-L March 16, 2020 1:02 PM‬‬

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阻止细菌传播

帮助预防呼吸道病毒如 COVID-19 的传播。

避免与患病的人近距离接触。

咳嗽或打喷嚏时用纸巾遮住， 然后将纸巾丢进 垃圾桶。

对频繁接触的物体和表面 进行清洁和除菌。
避免触碰自己的眼睛、鼻子和嘴巴。
生病时请留在家中， 除非要接受诊疗护理。
经常用肥皂和水洗手， 每次至少 20 秒钟。
详细信息请参见：www.cdc.gov/COVID19-ch
CS314915-C

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‫مانـع شـیوع میکروب ها شـوید‬

‫ﺑﻪ ﭘﯿﺸـﮕﯿﺮی از اﻧﺘﻘﺎل ﺑﯿﻤﺎری ﻫﺎی ﺗﻨﻔﺴـﯽ ﻣﺎﻧﻨﺪ ﮐﻮوﯾﺪ ‪ -19‬ﮐﻤﮏ ﮐﻨﯿﺪ‪.‬‬

‫در ھﻧﮕﺎم ﺳرﻓﮫ و ﻋطﺳﮫ ﮐردن دھﺎن ﺧود را ﺑﺎ دﺳﺗﻣﺎل‬ ‫ﮐﺎﻏذی ﺑﭘوﺷﺎﻧﯾد و ﺳﭘس دﺳﺗﻣﺎل‬ ‫را در ﺳطل زﺑﺎﻟﮫ ﺑﯾﻧدازﯾد‪.‬‬

‫از ﻧزدﯾﮏ ﺷدن ﺑﮫ اﻓراد ﺑﯾﻣﺎر ﺑﭘرھﯾزﯾد‪.‬‬

‫ﺳطوح و اﺷﯾﺎﯾﯽ ﮐﮫ ﻣرﺗﺑﺎً ﻟﻣس‬ ‫ﻣﯽ ﺷوﻧد را ﺗﻣﯾز و ﺿدﻋﻔوﻧﯽ ﮐﻧﯾد‪.‬‬
‫از دﺳت زدن ﺑﮫ ﭼﺷم ھﺎ‪ ،‬ﺑﯾﻧﯽ و دھﺎن ﺧود‬ ‫ﺧودداری ﮐﻧﯾد‪.‬‬
‫در ﺻورت ﺑﯾﻣﺎری ﺑﮫ ﻏﯾر از ﻣواﻗﻌﯽ ﮐﮫ ﻧﯾﺎز‬ ‫ﺑﮫ ﻣراﻗﺑت ﭘزﺷﮑﯽ دارﯾد در ﺧﺎﻧﮫ ﺑﻣﺎﻧﯾد‪.‬‬
‫دﺳﺗﮭﺎی ﺧود را ﻣرﺗﺑﺎً ﺑﺎ آب و ﺻﺎﺑون‬ ‫ﺣداﻗل ﺑﮫ ﻣدت ‪ 20‬ﺛﺎﻧﯾﮫ ﺑﺷوﯾﯾد‪.‬‬
‫‪cdc.gov/COVID19‬‬
‫‪CS314915-Q March 16, 2020 1:02 PM‬‬

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‫از انتقـــال میکـــروب هـــا جلوگیـــری کنیـــد‪.‬‬

‫ﺑﻪ ﭘﯿﺸـﮕﯿﺮی از اﻧﺘﻘﺎل ﺑﯿﻤﺎری ﻫﺎی ﺗﻨﻔﺴـﯽ ﻣﺎﻧﻨﺪ ﮐﻮوﯾﺪ ‪ -19‬ﮐﻤﮏ ﮐﻨﯿﺪ‪.‬‬

‫در ھﻧﮕﺎم ﺳرﻓﮫ و ﻋطﺳﮫ ﮐردن دھﺎن ﺧود را ﺑﺎ دﺳﺗﻣﺎل‬ ‫ﮐﺎﻏذی ﺑﭘوﺷﺎﻧﯾد و ﺳﭘس دﺳﺗﻣﺎل‬ ‫را در ﺳطل زﺑﺎﻟﮫ ﺑﯾﻧدازﯾد‪.‬‬

‫از ﻧزدﯾﮏ ﺷدن ﺑﮫ اﻓراد ﺑﯾﻣﺎر ﺑﭘرھﯾزﯾد‪.‬‬

‫ﺳطوح و اﺷﯾﺎﯾﯽ ﮐﮫ ﻣرﺗﺑﺎً ﻟﻣس‬ ‫ﻣﯽ ﺷوﻧد را ﺗﻣﯾز و ﺿدﻋﻔوﻧﯽ ﮐﻧﯾد‪.‬‬
‫از دﺳت زدن ﺑﮫ ﭼﺷم ھﺎ‪ ،‬ﺑﯾﻧﯽ و دھﺎن ﺧود‬ ‫ﺧودداری ﮐﻧﯾد‪.‬‬
‫در ﺻورت ﺑﯾﻣﺎری ﺑﮫ ﻏﯾر از ﻣواﻗﻌﯽ ﮐﮫ ﻧﯾﺎز‬ ‫ﺑﮫ ﻣراﻗﺑت ﭘزﺷﮑﯽ دارﯾد در ﺧﺎﻧﮫ ﺑﻣﺎﻧﯾد‪.‬‬
‫دﺳﺗﮭﺎی ﺧود را ﻣرﺗﺑﺎً ﺑﺎ آب و ﺻﺎﺑون‬ ‫ﺣداﻗل ﺑﮫ ﻣدت ‪ 20‬ﺛﺎﻧﯾﮫ ﺑﺷوﯾﯾد‪.‬‬
‫‪cdc.gov/COVID19‬‬
‫‪CS314915-M March 16, 2020 1:02 PM‬‬

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EMPÊCHER LA PROPAGATION DES GERMES

Aidez à éviter la propagation des maladies respiratoire comme le COVID-19.

Évitez les contacts rapprochés avec des malades.

Quand vous toussez ou reni ez, couvrez-vous la bouche et le nez avec un mouchoir, puis jetez le mouchoir à la poubelle.

Nettoyez et désinfectez fréquemment les surfaces et les objets touchés.
Évitez de vous toucher les yeux, le nez ou la bouche.
Quand vous êtes malade, restez chez vous et ne sortez que pour obtenir des soins médicaux.
Lavez-vous les mains à l’eau savonneuse pendant au moins 20 secondes.
cdc.gov/COVID19
CS314915-N March 16, 2020 1:02 PM

Case 3:20-cv-02731-VC Document 264-1 Filed 05/27/20 Page 36 of 53
병원균 확산 방지

코로나19와 같은 호흡기 질환이 전파되지 않도록 협조해 주세요.

환자와의 밀접한 접촉을 피하세요.

기침이나 재채기를 할 때는 휴지로 막고, 휴지는 쓰레기통에 버리세요.

자주 만지는 물건과 표면을 청소하고 소독하세요.
눈, 코, 입을 손으로 만지지 마세요.
몸이 아프면 진료를 위한 외출 외에는 집에 머무르세요.
손을 비누와 물로 20초 이상 자주 씻으세요.
자세한 정보는 다음 사이트를 참고하세요. www.cdc.gov/COVID19
CS314915-A

Case 3:20-cv-02731-VC Document 264-1 Filed 05/27/20 Page 37 of 53
ОСТАНОВИТЕ РАСПРОСТРАНЕНИЕ МИКРОБОВ

Помогите предотвратить распространение респираторных заболеваний, таких как COVID-19.

Избегайте близкого контакта с больными людьми.

Во время кашля или чихания прикрывайте нос и рот салфеткой, использованную салфетку выбрасывайте в мусор.

Мойте и дезинфицируйте предметы и поверхности, до которых часто дотрагиваетесь.
Старайтесь не прикасаться к глазам, носу или рту.
Если вы больны, выходите из дома только для получения медицинской помощи.
Часто мойте руки водой с мылом в течение не менее 20 секунд.
cdc.gov/COVID19
CS314915-J March 16, 2020 1:02 PM

ENFERMEDAD DEL CORONAVIRUS

DETENGA LA PROPAGACIÓN Case 3:20-cv-02731-VC Document 264-1 Filed 05/27/20 Page 38 of 53 DE LOS MICROBIOS

Ayude a prevenir la propagación de virus respiratorios como el nuevo COVID-19.

Evite el contacto cercano con las personas enfermas.

Cúbrase la nariz y la boca con un pañuelo desechable al toser o estornudar y luego bótelo a la basura.

Limpie y desinfecte los objetos y las superﬁcies que se tocan frecuentemente.
Evite tocarse los ojos, la nariz y la boca.
Quédese en casa si está enfermo, excepto para buscar atención médica.
Lávese las manos frecuentemente con agua y jabón por al menos 20 segundos.
Para obtener más información: www.cdc.gov/COVID19-es
CS314915-B

Case 3:20-cv-02731-VC Document 264-1 Filed 05/27/20 Page 39 of 53
ЗУПИНИТИ ПОШИРЕННЯ ЗБУДНИКА

Допомагайте у попередженні поширення респіраторних захворювань, як COVID-19.

Уникайте контактів з людьми, що захворіли.

Коли кашляєте або чхаєте, прикривайте рот хусткою, після чого викидайте хустку у смітник.

Проводьте очистку та дезінфекцію речей та поверхонь, котрих часто торкаєтеся.
Уникайте торкання очей, носа та рота.
Якщо захворієте, залишайтеся вдома, окрім випадків, коли необхідно звернутися по медичну допомогу.
Мийте частіше руки водою з милом протягом щонайменше 20 секунд.
cdc.gov/COVID19
CS314915-K CS314915-O March 16, 2020 1:02 PM

Case 3:20-cv-02731-VC Document 264-1 Filed 05/27/20 Page 40 of 53

Case 3:20-cv-02731-VC Document 264-1 Filed 05/27/20 Page 41 of 53
SHARE FACTS ABOUT COVID-19

Know the facts about coronavirus disease 2019 (COVID-19) and help stop the spread of rumors.

FACT Diseases can make anyone sick

1

regardless of their race or ethnicity.

Fear and anxiety about COVID-19 can cause people to avoid or reject others even though they are not at risk for spreading the virus.

FACT For most people, the immediate risk of

2

becoming seriously ill from the virus that causes COVID-19 is thought to

be low.

Older adults and people of any age who have serious underlying medical conditions may be at higher risk for more serious complications from COVID-19.

FACT Someone who has completed

3

quarantine or has been released from isolation does not pose a risk of

infection to other people.

For up-to-date information, visit CDC’s coronavirus disease 2019 web page.

CS 315446-A 03/16/2020

FACT There are simple things you can
4 do to help keep yourself and others healthy.
• Wash your hands often with soap and water for at least 20 seconds, especially after blowing your nose, coughing, or sneezing; going to the bathroom; and before eating or preparing food.
• Avoid touching your eyes, nose, and mouth with unwashed hands.
• Stay home when you are sick.
• Cover your cough or sneeze with a tissue, then throw the tissue in the trash.

FACT You can help stop COVID-19

5

by knowing the signs and symptoms:

• Fever • Cough

• Shortness of breath

Seek medical advice if you

• Develop symptoms

AND

• Have been in close contact with a person known to have COVID-19 or if you live in or have recently been in an area with ongoing spread of COVID-19.

cdc.gov/COVID-19

-

Case 3:20-cv-02731-VC Document 264-1 Filed 05/27/20 Page 42 of 53

Social Distancing

Social distancing means that you should avoid close contact with healthy people. If you are sick, you can help stop the spread of disease by social distancing. If you are healthy, you can help prevent yourself from getting sick. Social distancing is recommended if Coronavirus Disease 2019 (COVID-19) is spreading in your community. Local news media and your public health department will announce when the disease is spreading locally.

6 ft

Stay about 6 feet, about two arm lengths, away from other people.
» Avoid hugging and handshakes during this time.

Avoid big crowds when you can.
» Sometimes this won’t be possible. » If you need to be in a line or a group
of people, try to keep about 6 feet of distance from them.

Find ways to maintain important connections with friends and family members even while staying physically apart

CS316248B 04/07/2020

cdc.gov/coronavirus

Case 3:20-cv-02731-VC Document 264-1 Filed 05/27/20 Page 43 of 53

Hands that look clean can still have icky
germs!

owet

Getsoa

Wash

0 0
00

Your

Hands! •Scrub

eRinse

0Dry
This material was developed by CDC. The Life is Better with Clean Hands campaign is made possible by a partnership between the CDC Foundation, GOJO, and Staples. HHS/CDC does not endorse commercial products, services, or companies.

rtmentof HUe.Sa.ltDhepanad Human Services Centers for Disease . Control and Prevention

Case 3:20-cv-02731-VC Document 264-1 Filed 05/27/20 Page 44 of 53
¡Aunque las manos se vean limpias pueden tener microbios
asquerosos!

1 Moja

2 Enjabona

¡Lávate las
3 Restriega
manos!

4 Enjuaga

5 Seca
Este material fue elaborado por los CDC. La campaña “La Vida es Mejor con las Manos Limpias” es posible gracias a una asociación entre la Fundación de los CDC, GOJO Industries y Staples. Los CDC y el HHS no respaldan productos, servicios ni empresas comerciales.

U.S. Department of Health and Human Services Centers for Disease Control and Prevention

Case 3:20-cv-02731-VC Document 264-1 Filed 05/27/20 Page 45 of 53

Detainee Face Mask Usage

The GEO Group , Inc .&>

"The Center for Disease Control recommends wearing cloth face coverings in public settings where other social distancing measures are difficult to maintain (e.g., grocery stores and pharmacies) ........".

Detainee Distribution • Eachdetainee will be issued one protective mask by facility staff.
Usage • Detainees can contact their unit staff officer when masks are needed to be replaced before the next issue.
Storage • Storage of masks for re-use by the user will be possible if the mask is not damaged, soiled or otherwise unusable.

Protective Mask Donning
• Secure ties or loop at middle of head and neck
• Fit snug to face and below chin

HOW TO WEAR
A MASK

Protective Mask Removal and Storage
• Grasp bottom then top ties or elastics and remove
• When not in use, store the mask In a location that prevents damage or getting wet or soiled .

Wearft with the colouredside facingout/ white sidefacingin

Ensureit covers the nose& mouttfully
Usetwo fingers to pressthe concealedmetal
wiredownto fit theshapeofthe nose

04/17/20

Case 3:20-cv-02731-VC Document 264-1 Filed 05/27/20 Page 46 of 53

Uso de Mascarilla Para Detenidos

The GEO Group, Inc. <1>

"El Centro para el Control de Enfermedades recomienda usar cubiertas de tela para la cara en lugares publicos donde otras medidas de distanciamiento social son dificiles de mantener (por ejemplo, supermercados y farmacias) ....... "

Distribucion de detenidos • A cada Detenido(a) se le proveera una mascara protectora por el personal de la instalaci6n. Cada detenido(a) que llegue a un centro de procesamiento de ICE, recibira una mascara en la entrada.
Uso • Los detenidos (<las)pueden contactar al oficial de personal de su unidad cuando se necesiten reemplazar la mascara.
Almacenamiento • El almacenamiento de mascaras para su reutilizaci6n por parte del usuario sera posible si la mascara no esta dafiada, sucia 6 inutilizable.
Ponerse la mascara protectora • Asegurese de que los elasticos esten bien colocados detras de la oreja • Asegurese de que la mascara se ajuste a su cara y debajo de su barbilla
Retiro y almacenamiento de mascarillas protectoras • Agarre los lazos inferiores y luego los superiores o elasticos y guitar • Cuando no este en uso, guarde la mascara en lugar que prevenga el dafio, se moje o ensuc1e. • En un lugar que evite dafios, se moje o ensucie
Como usar una mascara

Uselo con el lado con color hacia afuera . El lado blanco va hacia adentro.

Asegurese de que cubra completamente la nariz y la boca

Asegure los elasticos sabre sus orejas

Use dos dedos para presionar el metal hacia abaj o para ajustarlo a la forma de la nariz.

Case 3:20-cv-02731-VC Document 264-1 Filed 05/27/20 Page 47 of 53

M E MO R A ND UM

Date: April 8, 2020

To:

Detainee Population

From: RE:

Facility Administrator Al~ EMPLOYEE PPE

SecureServices•
GEO Secure Services TM Mesa Verde ICE Processing Center
425 Golden State Ave. Bakersfield , CA 93301
Tel : 661 859-1028 Fax: 661 859-1108 www.geogroup .com

Due to the COVID-19 virus that has hit the US, we continue to monitor the COVID-19 virus transmission and follow the guidelines distributed by the CDC. The virus is thought to spread mainly from person to person between people who are in close contact with one another (within six feet). This is through respiratory droplets that are produced when a person coughs or sneezes.

As such, we will be providing each staff member an approved surgical mask, protective eyewear and gloves for the next 30 days. This will help protect the spread of the COVID-19 virus within the employee group and the detainee population.

Please continue to practice social distancing as we move forward.

Social Distancing - As it is imperative for your safety, social distancing will be strictly enforced. Specifically, you should stay at least 6 feet from others, wash your hands after you touch something and keep your hands away from your nose, mouth and eyes.

Again, we cannot express the importance of your cooperation over this period to help fight this virus. If you need any additional information, please contact any staff member.

Case 3:20-cv-02731-VC Document 264-1 Filed 05/27/20 Page 48 of 53

M E M O RA ND U M

Date: 8 de abril de 2020

To:

Poblaci6n detenida

From: RE:

Administrador de lnstalaciones Al~ EMPLEADA PPE

Secure Services·"

GEO Secure Services™ Mesa Verde ICE Processing Center
425 Golden State Ave. Bakersfield, CA 93301

Tel: 661 859-1028

Fax: 661 859-1108

-

www.geogroup .com

Debido al virus COVID-19 que ha afectado a los Estados Unidos seguimos monitoreando la transmisi6n del virus COVID-19 y seguimos la guia distribuidas por los CDC. Se cree que el virus se propaga principalmente de persona a persona entre personas que estan en contacto cercano entre ellos (a menos de seis pies). Esto es a traves de gotitas respiratorias que se producen cuando una persona tose o estornuda.
Proporcionaremos a cada miembro del personal una mascara quirurgica aprobada, gafas protectoras y guantes para los pr6ximos 30 dias. Esto ayudara a proteger la propagaci6n del virus COVID-19 dentro del grupo de empleados y la poblaci6n de detenidos.
Porfavor continua practicando el distanciamiento social a medida que avanzamos.
Distancia social: como es imprescindible para su seguridad, la distancia social se aplicara estrictamente. Especificamente, debe mantenerse al menos a 6 pies de distancia de los demas, lavarse las manos despues de tocar algo y mantener las manos alejadas de la nariz, la boca y los ojos.
Nuevamente, no podemos expresar la importancia de su cooperaci6n durante este periodo para ayudar a combatir este virus. Si necesita informaci6n adicional, comuniquese con cualquier miembro del personal.

Case 3:20-cv-02731-VC Document 264-1 Filed 05/27/20 Page 49 of 53
Facility: Mesa Verde ICE Processing Center CA Created Date: 2020-05-08 T 08:00:47 by: NALLEN Participants: Visitor: NALLEN Date Range: 2020-03-01 T 00:00:00 - 2020-03-31 T 23:59:59 Number of Records: 1 Timezone: America/Los_Angeles

MESSAGE TYPE

DATE SENT

DATE READ

Facility Message

2020-03-11 T 15:44:58

MESSAGE SUBJECT

Attachments

MESSAGE BODY

STATUS SENDER

RECIPIENT

Coronavirus Information

I know there may be concerns within our population regarding the prevention and spread of the coronavirus. I’m also sure you have watched the news or talked to family and friends about what has been going on in different parts of the world, as well as here in the United States. We’ve posted some general things in the housing units and other areas that you can do to help prevent you from getting sick, and these things are no different than what you would do for a cold or the flu. Frequent handwashing with soap and water for at least 20 seconds, not touching your eyes, nose, and mouth, as well as covering a sneeze or a cough are all important things to do. Making sure your areas are clean is a priority. Things that everybody touches, like the microwaves, phones, tablets, tables, bathrooms, and other surfaces are all things that need to be wiped down with the cleaning chemicals before and after being used. If you need cleaning supplies, please inform the officers immediately. The staff are doing everything they can to ensure you are as safe as possible. There are also postings for visitors and if anyone is coming to visit and they displaying flu-like symptoms, they are being asked to postpone their visit. I know this may be hard to do, but reducing the risk from the public is also very important. You are encouraged to use the phones and tablets to communicate with friends and family. We will continue to operate our programs and services, such as visitation, volunteer services, and other functions as normal as long as we are able to do so. Our goal is prevention and we all have a part to play in it.

NALLEN

Mesa Verde ICE Processing Center CA Inmates

Case 3:20-cv-02731-VC Document 264-1 Filed 05/27/20 Page 50 of 53
Facility: Mesa Verde ICE Processing Center CA Created Date: 2020-05-08 T 08:00:45 by: NALLEN Participants: Visitor: NALLEN Date Range: 2020-03-01 T 00:00:00 - 2020-03-31 T 23:59:59 Number of Records: 1 Timezone: America/Los_Angeles

MESSAGE TYPE

DATE SENT

DATE READ

Facility Message

2020-03-25 T 08:01:14

MESSAGE SUBJECT

Attachments

MESSAGE BODY

STATUS SENDER

RECIPIENT

COVID-19 Prevention

View Attachment

Hello everyone, this is Facility Administrator Allen with some followup on personal protective measures you all should be doing. SInce the beginning of the social outbreak, we've posted bulletins on hand washing, covering your cough and sneeze, and ensuring you maintain a clean environment. Town hall meetings were conducted by medical staff. One area you have to remain focused on is maintaining a sanitary environment in your dorms. The cleaning chemicals that are provided are more than sufficient to maintain a sanitary environment as long as you use them frequently. As a reminder, bath soap and shampoo are not to be used for cleaning bathrooms. Although they may look like they are cleaning because of the bubbles and foam they produce, they do not disinfect and kill germs. All high touch surfaces like the toilets, sinks, phones, tablets, and microwave handle should be wiped down after use. Do not spray cleaners directly onto the tablet or phones. Spray it on a rag or paper towel first and then wipe down the surface. You are not alone in this. Facility staff have to clean their areas just as you do. Although you are probably in the safest environment there is right now, we are all doing our part to ensure it remains that way until this crisis is over.

NALLEN

Mesa Verde ICE Processing Center CA Inmates

Case 3:20-cv-02731-VC Document 264-1 Filed 05/27/20 Page 51 of 53
Facility: Mesa Verde ICE Processing Center CA Created Date: 2020-05-08 T 08:00:24 by: NALLEN Participants: Visitor: NALLEN Date Range: 2020-03-01 T 00:00:00 - 2020-03-31 T 23:59:59 Number of Records: 1 Timezone: America/Los_Angeles

MESSAGE TYPE

DATE SENT

Facility Message

2020-03-30 T 09:30:02

DATE READ

MESSAGE SUBJECT

Attachments

MESSAGE BODY

STATUS SENDER

RECIPIENT

General Information

Hello everyone, this is Facility Administrator Allen. I hope you are doing well under the circumstances. I just wanted to let you know what we have been doing in regards to screening efforts. All staff are screened with a questionnaire and receive a temperature check before they can enter the facility. All detainees are screened in the sally port before they come in to the facility with the same general questions and get a temperature check. Some of you might have already been through the screening process before coming in and are aware of what is being done. Also, wearing a mask is not recommended by the Center for Disease Control (CDC) if you are not under the COVID-19 protocols. There are still the common illnesses out there like allergies, colds, and flu. Some of you may be experiencing them as do some of the staff. People still cough and sneeze sometimes, but that doesn't mean everyone is walking around with the coronavirus. However, it is still very important to practice good hygiene by washing your hands with soap and water for at least 20 seconds, cover your sneeze or cough with a tissue or your elbow area, and keep your distance from others. Just as important if not more, is to ensure you clean common area surfaces frequently with the disinfectant cleaner that's provided. Phones, tablets, hot water dispensers, and microwaves should be wiped down with the disinfectant after use too. Not cleaning or spreading information that is not true does not help in maintaining a sanitary living area. Having concerns about what is going on in the world is expected, but know that the facility staff are committed to ensuring you have a safe environment while you are undergoing your immigration proceedings.

NALLEN

Mesa Verde ICE Processing Center CA Inmates

Case 3:20-cv-02731-VC Document 264-1 Filed 05/27/20 Page 52 of 53
Facility: Mesa Verde ICE Processing Center CA Created Date: 2020-05-08 T 07:59:48 by: NALLEN Participants: Visitor: NALLEN Date Range: 2020-04-08 T 00:00:00 - 2020-05-08 T 23:59:59 Number of Records: 1 Timezone: America/Los_Angeles

MESSAGE TYPE

DATE SENT

DATE READ

MESSAGE SUBJECT Attachments

MESSAGE BODY

STATUS SENDER

RECIPIENT

Facility Message

2020-04-16 T 16:06:13

Soap and Paper Towel Dispensers

Hello everyone, we are in the process of installing some liquid soap and paper towel dispensers in the dorms as we get them. They have been hard to come by and so is getting large quantities of the liquid soap. The purpose for the liquid soap and paper towels are to wash and dry your hands. Avoid using the soap and paper towels for other things other than washing your hands. If you waste the items, there may be some delay in getting the dispensers refilled. Thanks for your cooperation, Facility Administrator Allen.

NALLEN

Mesa Verde ICE Processing Center CA
Inmates

Case 3:20-cv-02731-VC Document 264-1 Filed 05/27/20 Page 53 of 53
Facility: Mesa Verde ICE Processing Center CA Created Date: 2020-05-08 T 07:59:37 by: NALLEN Participants: Visitor: NALLEN Date Range: 2020-04-08 T 00:00:00 - 2020-05-08 T 23:59:59 Number of Records: 1 Timezone: America/Los_Angeles

MESSAGE TYPE

DATE SENT

Facility Message

2020-05-05 T 13:37:44

DATE READ

MESSAGE SUBJECT

Attachments

MESSAGE BODY

STATUS SENDER

RECIPIENT

Facility Update

Hello everyone. Just some facility updates to pass along. As you know, liquid soap and paper towel dispensers have been installed in all dorms. The soap and paper towels are meant for handwashing activities only. If you need paper towels for something else, please see the dorm officer. Also, hygiene products and the cleaning chemicals can always be retrieved from the dorm officer. The dorms all have postings on on CDC guidelines on covering your cough and sneeze, not sharing items, and the highly important process of wiping down the high touch surfaces like the tablets, phones, microwaves, and tables, etc. There are also instructions on how to wear your mask. We were able to grind the surface for the basketball court and handball areas. Handball play has now been reimplemented. Handballs are not to be taken back to the dorms; give them back to the recreation officer when finished. If you have any questions or concerns, you can relay it to staff or submit a request on the tablet. As a reminder, facility staff do not have any involvement with your immigration proceedings. If you are having difficulty reaching ICE staff, please let us know so we can pass it along. Thanks.

NALLEN

Mesa Verde ICE Processing Center CA Inmates

Case 3:20-cv-02731-VC Document 264-2 Filed 05/27/20 Page 1 of 30

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, et al., Plaintiffs,
v. DAVID JENNINGS, et al.,
Defendants.

) CASE NO. 3:20-cv-02731-VC ) ) DECLARATION OF ASSISTANT FIELD ) OFFICE DIRECTOR DANA FISHBURN IN ) SUPPORT OF FEDERAL DEFENDANTS’ ) MOTION TO DISSOLVE TEMPORARY ) RESTRAINING ORDER, MOTION TO STAY, ) AND OPPOSITION TO PLAINTIFFS’ MOTION ) FOR PRELIMINARY INJUNCTION )

I, Dana Fishburn, make the following statements under oath and subject to penalty of perjury: 1. I am an Assistant Field Office Director (“AFOD”) with the Department of Homeland Security (“DHS”), Immigration and Customs Enforcement (“ICE”), Enforcement and Removal Operations (“ERO”), in the San Francisco Field Office (“ERO San Francisco”). I have held this position since October 2016. I am currently assigned to the Sacramento Sub-Office within ERO San Francisco, which is responsible for oversight of the ICE detainees held at Yuba County Jail (“YCJ”) in Marysville, California. Among my responsibilities as an AFOD, I oversee the management of the detained docket for the aliens who are detained at YCJ. I have worked in various other positions within ICE since 1996. 2. This declaration is based upon my personal and professional knowledge and information, belief, reasonable inquiry, and review of information obtained from various records, systems, databases, other DHS employees, employees of DHS contract facilities, and information portals maintained and relied upon by DHS in the regular course of business. 3. ICE is charged with removing aliens who lack lawful immigration status in the United States. Detention is an important and necessary part of immigration enforcement. The Immigration and Nationality Act (“INA”) authorizes detention of aliens pending removal under sections 235, 236, and 241 of the INA, 8 U.S.C. §§ 1225, 1226, 1231. ICE is required by Congressional statute under section 236(c) of the INA, 8 U.S.C. § 1226(c), to mandatorily detain aliens convicted of certain crimes, and these aliens are ineligible for release from ICE custody pending completion of removal proceedings.

DECLARATION OF ASSISTANT FIELD OFFICE DIRECTOR DANA FISHBURN

No. 3:20-cv-02731-VC

1

Case 3:20-cv-02731-VC Document 264-2 Filed 05/27/20 Page 2 of 30

ICE is similarly required by Congressional statute under section 235(b) of the INA, 8 U.S.C. § 1225(b),

to detain certain aliens seeking entry into the United States or who entered the United States without

inspection and who are believed to be subject to removal. ICE similarly is required by Congressional

statute under 241(a)(2) of the INA, 8 U.S.C. § 1231(a)(2), to mandatorily detain and remove aliens who

have final administrative removal orders during the first 90 days of the removal period. In other cases,

aliens may be detained by ICE pending removal as a matter of discretion under sections 235 and 236(a)

of the INA, 8 U.S.C. §§ 1225, 1226(a), because they present a danger to the community or pose a flight

risk, or under section 241(a)(6) of the INA, 8 U.S.C. § 1231(a)(6), once the removal period has expired

and where release on supervision may be appropriate if there is no significant likelihood of removal in

the foreseeable future.

4. YCJ is a county owned and operated facility that houses county jail inmates and ICE

detainees. Through ICE’s Inter-Governmental Service Agreement (“IGSA”) with Yuba County, the

County provides the facility (YCJ) management, personnel and services for 24-hour supervision of

aliens in ICE custody at YCJ. Besides YCJ’s own county and state oversight and inspection processes,

the federal government also mandates oversight through various inspection processes by ICE and other

entities.

5. YCJ currently has the capacity to house 210 ICE detainees. YCJ’s total capacity is 420,

which includes county inmates. YCJ has the capability to identify, isolate, and segregate detainees from

each other.

6. On March 11, 2020, the World Health Organization (“WHO”) declared Coronoavirus

Disease 2019 (“COVID-19”) a global pandemic. At the time, the YCJ ICE detainee population was 168

detainees. Since that time, the ERO Sacramento/Stockton sub-offices have taken affirmative steps to

reduce the number of detainees at YCJ by reviewing its detained population by conducting custody

determinations, parole requests, and issuing orders of supervision on release for those aliens who are not

subject to mandatory custody, pose a danger to the community or flight risk; and/or for whom there is no

significant likelihood of removal in the foreseeable future.

7. Consequently, by March 30, 2020, ICE had reduced the YCJ ICE detainee population

from 168 to 150, approximately 10%.

DECLARATION OF ASSISTANT FIELD OFFICE DIRECTOR DANA FISHBURN

No. 3:20-cv-02731-VC

2

Case 3:20-cv-02731-VC Document 264-2 Filed 05/27/20 Page 3 of 30

8. As of May 26, 2020, ICE has reduced the YCJ ICE detainee population from 168 to 79, approximately 53%.
9. The net reduction in population from 168 to 79 understates the number of ICE detainees who have been released from YCJ, as these numbers reflect net releases, not gross releases.1 Between April 27, 2020 and May 27, 2020, YCJ has admitted nine new ICE detainees, of which 100% are subject to some form of statutorily authorized mandatory detention. Many of these new detainees are aliens with criminal histories released from county jail or state or federal prison, who are considered a danger to the public. At the same time, ICE has worked to reduce the population at YCJ. The daily updates that ICE has been providing the Court state that a total of 73 detainees have been released between April 27, 2020 and May 27, 2020, even without counting releases before April 27, 2020.
10. Since no later than May 13, 2020, YCJ has been running at below 50 percent of total capacity with respect to ICE detainees.
11. As of May 26, 2020, ICE detainees at YCJ are now only housed in pods A, B, C, D and E, with the population in every pod at 45% or below.
12. As of May 27, 2020, YCJ is currently running at 38% of total capacity with respect to ICE detainees.
13. There have never been any confirmed or suspected COVID-19 cases at YCJ among either detainees or staff at any point.
14. YCJ medical staff have not encountered any detainee experiencing COVID-19 symptoms.
15. No YCJ staff member has reported any symptoms consistent with COVID-19. CDC AND ICE GUIDANCE
16. Since the onset of reports of COVID-19, ICE epidemiologists have been tracking the outbreak, regularly updating infection prevent and control protocols, and issuing guidance to field staff on screening and management of potential exposure among detainees.
17. The Centers for Disease Control and Prevention (“CDC”) issued Interim Guidance on

1 Release from a detention facility includes release into the community, release for removal from the United States, and release for transfer to another facility for removal from the United States.

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Management of Coronavirus 2019 (COVID-19) in Correctional and Detention Facilities (https://www.

cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html),

and its general public guidance (https://www.cdc.gov/coronavirus/2019-ncov/index.html). As noted by

the CDC, “[t]he guidance may need to be adapted based on individual facilities’ physical space, staffing,

population, operations, and other resources and conditions.” ICE endeavors to closely follow the CDC

Guidance where possible, and as recommended, makes adaptations according to each facility’s spacing,

population and resources.

18. On April 10, 2020, ICE released its ERO COVID-19 Pandemic Response Requirements

(https://www.ice.gov/doclib/coronavirus/eroCOVID19responseReqsCleanFacilities.pdf), a guidance

document that builds upon previously issued guidance and sets 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 with respect to COVID-19.

SCREENING NEW ARRIVING DETAINEES

19. At YCJ, medical care, including screening of new detainees, is provided by the contract

medical staff on-site and is overseen by the ICE Health Services Corps (“IHSC”), which provides

medical services through a combination of U.S. Public Health Service Commission Corps officers,

federal civil servants, and contract health professionals. Each ICE facility is assigned an IHSC Field

Medical Coordinator (“FMC”), who serves as a medical consultant to the ICE field offices and oversees

clinical services at IGSA facilities, like YCJ, that house ICE detainees. IHSC’s FMCs ensure that the

provision of medical care by contractors to the ICE detainees within the IGSA facilities meets detention

standards, as required by the IGSA contract. The FMCs do not provide hands-on care or direct the care

within the IGSAs but monitor the medical care and services provided by the contract facilities. Medical

staff at the contract facilities are directly responsible for medical care at the facility.

20. Upon arrival at YCJ, each ICE detainee and YCJ inmate is screened by nurses, who wear

personal protective equipment, per protocol. During intake medical screenings, detainees are assessed

for fever and respiratory illness and are asked to confirm if they have had close contact with a person

with laboratory-confirmed COVID-19 in the past 14 days and whether they have traveled from or

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through area(s) with sustained community transmission in the past two weeks. The detainee’s responses

and the results of these assessments will dictate whether to monitor or isolate the detainee.

21. YCJ has the capability to identify, isolate, and segregate detainees from each other. Since

April 7, 2020, all arriving detainees are placed in a 14-day quarantine regardless of whether they are

arrested from the street or transferred from another detention facility. Detainees in 14-day quarantine are

housed in a specific housing unit (F-pod) for observation for 14 days. F-pod contains 20 two-person

cells, but each detainee in quarantine is housed in his or her own cell, and no two detainees in quarantine

share a cell. Detainees in quarantine are kept apart from the general population for 14 days. Once they

clear the 14 days, they are re-housed by security classification into a new housing unit. As of March 27,

2020, there are no ICE Detainees housed in F-pod for quarantine.

22. Detainees who present symptoms consistent with COVID-19 will be placed in isolation

in the Medical Unit, where they will be tested for COVID-19 and influenza to rule out any other source

of symptoms. YCJ has the capacity to collect specimens onsite and send the specimens to an offsite

laboratory for analysis, which takes three to four days to return a result. In testing for COVID-19, YCJ is

following guidance issued by the CDC to safeguard those in its custody and care. If COVID-19 testing is

positive, these individuals will remain isolated and treated. In case of any clinical deterioration,

detainees will be referred to a local hospital.

ONGOING MEDICAL CARE

23. YCJ provides daily access to sick calls in a clinical setting and has access to specialty

care services and hospital care. YCJ medical staff examines any detainee who submits a request to see

medical due to symptoms consistent with COVID-19. Medical staff triage the sick calls slips from most

urgent to least urgent based on their medical opinions and detainees are seen in the order of urgency as

determined by medical staff. Depending on volume of urgent requests, some of the less urgent sick calls

are generally responded to within one to two days.

24. As discussed in the previous paragraph, detainees who present symptoms consistent with

COVID-19 will be placed in isolation, where they will be tested for COVID-19 and influenza to rule out

any other source of symptoms. If COVID-19 testing is positive, these individuals will remain isolated

and treated. In case of any clinical deterioration, detainees will be referred to a local hospital.

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25. Per ICE policy, if detainees are diagnosed with any communicable disease, including COVID-19, the Health Services Administrator at the facility, the site and regional medical directors, and the ICE FMC are notified through their chain of command. Local public health and CDC will be notified with the completion of proper forms for reporting.
26. While YCJ has not had any confirmed or suspected cases of COVID-19, were one to arise, YCJ will quarantine any cases with signs and symptoms consistent with COVID-19 in a medical cell with alert notifications posted on the door alerting YCJ medical staff to use appropriate personal protective equipment for the condition.
27. YCJ is taking the temperature of all detainees on a daily basis. YCJ staff have been advised to inform detainees to stay at their bunks when temperatures are being taken in order to maintain social distancing.
28. YCJ will isolate, medically assess, and monitor any detainee who has a temperature of 100.4 or above, and any such detainee will be housed in the medical unit, cared for, and monitored for as long as medically necessary depending a variety of factors.
29. No detainee has presented with a temperature of 100.4 or above since March 11, 2020. EDUCATION ABOUT COVID-19
30. YCJ is providing education regarding COVID-19 to staff and detainees, including the importance of handwashing and hand hygiene, covering coughs with the elbow instead of with hands, sanitizing common surfaces, and other health and wellness information by video for detainees.
31. To further encourage proper handwashing, there are posters hung around the facility in both the English and Spanish languages on COVID-19, proper hand washing and other preventative measures, including the importance of wearing face masks and the proper way to wear them. See Exhibits A, B, C; see also photograph below. Along with these posters are signs in the English and Spanish languages stating that if any detainee needs extra soap, that s/he should make a request and it is free. See Exhibit C; see also photograph below. Examples of the posters and information that YCJ has posted are attached to the end of this declaration.

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Sinecesitauna barra de Jabonadicionaf, solo pregunte ...

iES gratisl
If you need and extra bar of soap, just ask ...

It ' s Free!

•

32. YCJ is requesting detainees to seek immediate medical care if they feel ill.

CLEANING AND SANITIZATION

33. The entire YCJ facility, including the housing units and bathrooms, are sanitized twice

daily per CDC guidelines, with particular attention focused on common area high-contact surfaces, such

as door handles, telephones, dining halls, and medical areas. There are postings in common areas,

including that telephone, reminding detainees to wipe down the phone before and after every use. See

Exh. E.

34. Each pod is assigned a cleaning cart which is stocked with sanitation supplies including

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disinfectants, sanitizer, soap, mop, broom, and paper towels. Additional cleaning supplies have been

offered to detainees who have been educated on how to sanitize the phones for common use before and

after each use. The administration is encouraging both staff and the detainee population to use these

tools often and liberally.

35. YCJ has added two handwashing stations within the facility to encourage and aid in

recommended handwashing. YCJ staff check the soap dispensers twice in every twelve-hour shift to

ensure they are promptly refilled as needed, or more promptly if they are informed that supplies have

run out. In addition, hand sanitizer is available for use by staff at the facility.

36. Upon arrival at YCJ, all detainees are provided free of charge with bar soap, shampoo,

toothpaste and a toothbrush. Reasonable requests for additional supplies of these items are furnished free

of charge.

DISTANCING

37. YCJ has housing units designated A through T, but only housing units A through E

currently are used to house ICE detainees. (F-pod is used to house new arriving detainees, including ICE

detainees, in accordance with the procedures described above.)

38. A-pod, D-pod, and E-pod each have a maximum capacity of 40 detainees, and B-pod and

C-pod each have maximum capacity of 50 detainees.

39. ICE has reduced the population at YCJ such that each housing unit is running below 50

percent capacity. As of May 27, 2020, there were 4 ICE detainees (and 7 Yuba County detainees) in A-

pod, 20 ICE detainees and no Yuba County detainees in B-pod, 19 ICE detainees and no Yuba County

detainees in C-pod, 18 ICE detainees and no Yuba County detainees in D-pod, and 18 ICE detainees and

no Yuba County detainees in E-pod. As of May 27, 2020, there are no ICD Detainees housed in F-pod.

40. In response to COVID-19, YCJ has moved ICE detainees such that no ICE Detainees will

no be housed in the so-called “old” side of the facility, i.e., housing units G–S.

A. Housing Units A, D, E, and F

41. Housing units A, D, E, and F have identical layouts. Each unit is a two-story pod of two-

person cells, ten cells on the lower level and ten cells on the upper level, in addition to a common area.

The cells measure 6’ x 11’7” with a ceiling height of 7’11” (except for the top tier of A-pod, where the

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ceiling height is 9’). Each cell has its own sink and toilet. There are two single showers in each unit, one on the lower floor and one on the upper floor. Being on separate floors, the showers are more than six feet apart from each other. No two detainees share a cell. Each detainee has his own cell, sink, and toilet.

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42. Detainees have six hours of program time each day when they can be either in their cells or in the common areas. To encourage social distancing, YCJ staggers program time to limit the number of detainees out in the common areas. Detainees do not have to go to the common areas during program time and are free to remain in, or return to, their cells at any time. Detainees can shower anytime during their scheduled program time.

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43. There are no dining halls at YCJ. Detainees take meals in their respective housing units which reduces potential exposure to other detainees and staff. YCJ staff who bring the meals to the cells and pods are all required to wear gloves and mask. YCJ staff utilize a different cart to bring meals to the different pods. The carts are cleaned after the meals are distributed.
44. Detainees do not have to stand in line to receive meals. It is possible for detainees to receive their meals while maintaining social distancing. For example, it is possible for each detainee to go up individually in turn to receive his or her meal, while the other detainees remain in their cells or in the common area standing six feet apart from each other. By taking turns, each detainee would be able to maintain distancing, should he or she choose to do so.
45. As of May 22, 2020, detainees in A, D and E remain in their cells and trays are given to them individually. In order to promote social distancing, detainees are no longer allowed to take meals at the shared tables but are now taking meals in their cells. B. Housing Units B and C
46. Housing unit B and C have identical layouts. Each unit is a two-story dorm-style housing unit. Each unit originally contained 25 two-person bunks, but YCJ removed five bunks from each unit, to further space out the bunks. The bunks are spaced approximately 6’2” apart by 6’ apart. All detainees sleep on the bottom bunk. No two detainees share a bunk, and no detainee has another detainee above or below him.

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47. Each unit has one shower, two toilets, and four sinks on the lower floor and two showers, four toilets, and two sinks on the upper floor. Detainees may shower at any time.
48. There are no dining halls at YCJ. Detainees take meals in their respective housing units which reduces potential exposure to other detainees and staff. YCJ staff who bring the meals to the cells and pods are all required to wear gloves and mask. YCJ staff utilize a different cart to bring meals to the different pods. The carts are cleaned after the meals are distributed.
49. Detainees do not have to stand in line to receive meals. It is possible for detainees to receive their meals while maintaining social distancing. For example, it is possible for each detainee to go up individually in turn to receive his or her meal, while the other detainees sit on their beds (which are over six feet apart from each other) or otherwise stay six feet apart from each other. By taking turns, each detainee would be able to maintain distancing, should he or she choose to do so.
50. As of May 22, 2020, detainees in B and C pods are required to remain at their bunks and are called up individually to get their trays. In order to promote social distancing, detainees are no longer allowed to take meals at the shared tables but are now taking meals at their bunks.

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C. Recreation Yards 51. YCJ has two recreation areas. One recreational area is called the Roof Recreational Area.
It is located outside on the roof of the jail. The area is approximately 1,402 square feet. The second area is called the Recreational Yard, which is an exercise yard approximately 1,165 square feet. YCJ staff are regularly clean the creation areas with CDC approved cleaning supplies. Due to COVID, YCJ is limiting the number of detainees who can be in the recreation areas to ensure social distancing.

52. Detainees are continuously encouraged by YCJ staff to exercise social distancing protocols while participating in outdoor recreation. No detainee is required to go out to the recreation areas. All detainees are free to stay in their housing units. D. Plaintiffs’ Photographs
53. I have reviewed the photograph of B-pod attached to the declaration of Gilberto Pablo Perez (ECF No. 229-7), which was also reproduced in paragraph 31 of the second supplemental declaration of Dr. Robert B. Greifinger (ECF No. 229-19). Mr. Perez’s declaration does not say precisely when this photograph was taken but does state that it was taken before February 11, 2020. See Perez Decl. ¶¶ 3, 15. The photograph does not accurately reflect the current conditions in B-pod, where the beds are now six feet apart from each other. The photographs that I have included above accurately

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reflect the current conditions in B-pod and C-pod.

54. I have reviewed the photographs attached to the declarations of Aroldo Rodriguez Diaz

and Maria Andreas Salgado (ECF Nos. 229-2, 229-7), which were also reproduced in paragraphs 33, 34,

40, 42, and 46 of the second supplemental declaration of Dr. Greifinger (ECF No. 229-19). With the

exception of the photograph of the common area in A-pod, none of the photographs accurately reflect

the current conditions of any unit housing ICE detainees. The units depicted in those photographs are

part of the “old” side of YCJ and currently are not used to house any ICE detainees

55. I have reviewed the declaration of Juan Erazo Herrera ((ECF Nos. 229-11) and confirm

that he was on a hunger strike from May 10-16, 2020. Per ICE’s hunger strike protocol, he was

transferred to the medical unit for closer observation by medical staff. I spoke with this detainee

personally to ask him why he was hunger striking, and he told me he was advised by his attorney to go

on a hunger strike in hopes of being released.

MASKS

56. All detainees at YCJ are provided with two washable cloth masks free of charge at which

time they were instructed on how to properly wear the masks to prevent infection. If the masks provided

becomes worn, detainees are instructed to ask for new masks. In addition to the fliers posted throughout

the facility that remind detainees of how to properly wear their masks, YCJ staff regularly remind them

to wear their mask. The masks are laundered per CDC guidelines.

57. All YCJ staff are required to wear masks at the facility at all times.

58. YCJ medical staff are required to wear a N95 mask during all contact with any detainee

who is being quarantined in F-pod.

MINIMIZING AND SCREENING OUTSIDE CONTACTS

59. YCJ has suspended all social visitations and has encouraged non-contact visits with

attorneys, while continuing to provide access to attorneys through various telephonic means as

established under the Lyon v. U.S. Immigration and Customs Enforcement settlement agreement. In

cases where in-contact legal visits are requested, YCJ staff schedules such visits but notifies attorneys in

advance that they must wear appropriate personal protective equipment and submit to medical screening

prior to entering the facility.

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60. YCJ is screening all staff and vendors when they enter the facilities for any symptoms, including body temperatures.
CONTINUED MONITORING 61. ICE and ERO management staff, including myself, conference daily over YCJ and issues stemming from COVID-19. Additionally, ICE staff is in daily contact with YCJ management, including the medical unit, over the health and safety of detainees. YCJ continues to identify additional ways to safeguard ICE detainees. Given the ICE protocols, YCJ staff and ICE officers are taking appropriate measures to ensure the health and safety of detainees and will continue to do so. ICE is on-site daily and can address any issues, as presented or directed, to ensure the ICE protocols are in place and to report back any issues they may observe that need to be addressed. 62. ICE will continue to review its detained population of people who are “at higher risk for severe illness,” as identified by the CDC, to determine if detention remains appropriate, considering the detainee’s health, public safety and mandatory detention requirements, and adjusted custody conditions, when appropriate, to protect health, safety and well-being of its detainees. YCJ medical staff will examine any detainee promptly who submits a medical request due to symptoms consistent with COVID-19. ICE staff is on-site daily and is able to address issues as presented and report back any issues they may observe that need to be addressed. I affirm under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. Executed at Sacramento, California.
DATED: May 27, 2020
Dana L. Fishburn

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EXHIBIT A

Case 3:20-cv-02731-VC Document 264-2 Filed 05/27/20 Page 17 of 30

COVID-19

VIRUSINFORMATIONFOR DETAINEDINDIVIDUALS

ICEis monitoring COVID-19and continues to follow the Centersfor

DiseaseControl and Prevention(CDC)guidelines,including:

• Screeningall new detaineeswho arrive at facilities for

symptoms and risk of exposureto COVID-19.

• Housingseparatelyand monitoring detaineeswith symptoms

for a period of 14 days.

_

• ICEpersonneland facility staff who havebeenexposedto the

virus are instructed to report exposureandto practiceself-

quarantine protocols per CDCguidance.

• ICEwill continue to share information on COVID-19casesin your

facility and post it on the ICEwebsite asit becomesavailable.

WHATCANYOUDO? If you feel illor have reasonto believeyou havebeenexposedto someone
with COVID-19y,ou are encouragedto submit a medical requestform assoon as possible.

WASH HANDS If additional hygienesuppliesare needed,complete a DetaineeRequestForm.

l.AVESE I.AS MANOS

INfORMACIONDEVIRUSPARA
INDIVIDUOS DETENH)OS
ICEesta monitoreando el COVID-1y9continuasiguiendo laspautasde los Centrosparael Controyl la Prevenci6n de Enfermedades(CDC,por sussiglaseningles}, incluyendo: • Examenesde detecci6n a todos losnuevosdetenidos
que llegana las instalacionesconsintomasy riesgo de exposici6nal COVID-19. • Alojamiento por separadoy monitoreode detenidos consintomas por un perfodode14dfas. • lnstrucci6n al personalde! ICEy alpersonalde las _ instalacionesque han estadoexpuestoasl virus para que informen de la exposici6ny practiquenlos protocolos decuarentenasegunlasindicacionesde losCDC. • ICEcontinuara compartiendo informaci6nsobre los casosde COVID-19en susinstalacioneys la publicara en el sitio web de ICEa medidaqueestedisponible.
,QUEPUEDEHACER?
Si sesiente enfermo o tiene razonesparacreer que ha
estadoexpuestoa alguiencon el COVID-1s9e, le anima a
enviar un formulario de solicitud medicatan pronto como sea posible.

Sise necesitansuministros de higiene adicionales,rellene un Formulariode Solicitud de Detenido.

SOCIAL DISTANCING Visitation with family membershasbeensuspendedtemporarily at all r-k,,ntion facilities to mitigate the potential transmission ofCOVID-19,however
,;taking stepsto facilitate communication with familiesvia extendedaccess to telephones and tablets, where available.Youcan submit a DetaineeRequest Form for extendedaccessto telephones/tablets.

SECONDS SEGUNDOS

DISTANCIAMU:NTO SOCIAL

Lasvisitas con los miembros de la familia se han suspendidotemporalmente en todos los centros de detenci6n para mitigar la posible transmisi6n de COVID-19, sin embargo,el ICEesta tomando medidas parafacilitar la comunicaci6ncon las familias a travesde ampliaci6n de accesoa telefonos y tabletas,cuando esten disponibles. Puedeenviar un Formulario de Solicitud de Detenidopara ampliaci6n de accesoa telefonos/tabletas.

QUESTIONSABOUTATTORNEYVISITATION?

Non-contact legalvisitation (e.g.Skypeor teleconference)will be encouraged asa first option to limit the facility's exposureto COVID-19I.f an in-personlegal visit is required, all legal visitors will be required to provide and wear personal protective equipment {PPE)(e.g.,gloves,N-95masks,and eyeprotection) and undergo the same medical screening proceduresasfacility staff members.If you needto speakwith your attorney, you cansubmit a DetaineeRequestForm.

iPREGUNTASSOBRELAVISITADELABOGADO?
Sefomentaran lasvisitas de ambito legal sin contacto (por ejemplo, Skypeo teleconferencia)como primera opci6n para limitar la exposici6nde la instalaci6n al COVID-19S. ise requiere una visita de ambito legalen persona, todos los visitantesjuridicos deberan proporcionary usar equipo de protecci6n personal (EPP)(por ejemplo, guantes, mascarasN-95y protecci6nocular)y someterse a los mismos procedimientos de detecci6n medica que los miembros del personal de la instalaci6n. Si necesita hablarcon su abogado,
ie enviar un Formulario de Solicitud de Detenido.

Case 3:20-cv-02731-VC Document 264-2 Filed 05/27/20 Page 18 of 30

~twell patli
To hope and hea ling .

Sent on bel1alf of: Wcllpath Clinical Team

What you need to know about the Coronavirus .

What is it7 2019 Novel Coronavi rus (2019 - nCoV) i!, a virus iden11fiE!c;ifs lhe cause of an r:iutbreak of respiratory illm~5sHrs1·t1etriclecl in Wull.:in. 01 im.

How is it spread? ll is 111ought lo spread viJ Il'Sph,1lo1y dmplets pr«Jduc:1:d when an infected person coughs or pathoge ns spHwd.

\.\.'hat is t h~ tre atment? There is 110 spQCiilc lt~'nlmcnl f,;,1 20.19-nCoV

in fection. People infected witt1 2019-nCoV sl1ould rix1?i.ve suppor live care

to help relieve symptoms. For severe cases. treatment should includ e t:i'lfe

to suppmt vital organ funct ions.
-----

____ --

______ __ .. ..., ,_ , ,

.,

What if I'm sic k? If you were in Cl1imi in llle last 14 days or 11xp~occl lo someone who is suspected o r diagnosed with 2019 -nCoV ancl f<:dsick with lever. cougl1. or difficu lty I,reathing, you should :;r:1!lc 1rwcJic;1,l.:arcri!Jl1t awoy.Befo re you go too doctor':; office,,,. r:mcr\J<!ncy101Jr1i, call ;11lc:,1dand tell th em about your recent tr.:ivcl .:ni d yow · symptoms. Avnirl conl,1c:t Wilh others and do not tr.ivC?IC. over your mol1lh und no:;c witl·1n tiSSIJro) r your sleeve (not your hands) whtm coLtghing or sm~e7.ni C),\hen thrnw lhe tis~uc:in the trash. Wash hands ofte11 with soap cJncWf ilh:r tw· :ii h::ist 20 ~,~r;onds to avoid spreading the virus lo others. Use an alcohol-bas~ ,d h;md i.;:initizcr lhal conta ins at least 60% alcohol if soap ;md wat, lr are not availablf!.

What yo u can do to prevent
infection?
There is cum:ntty 110 vaccine to prNent 2019-nCoV Infection. Thr. bestwayto prevcmt infection i~ to avoiclbr.ing ex11oscthdrougl1 1v: t:ryday prew:ntiw: ;ictions. including:
Wash your hands oft•~n with soapand wate r for at IP.ast20 seconds. Us,: an alcohol-based hand sanitizer that cont.iins .:il le.isl 60% alcoho l ii soap and wale r ilre 1101 available. ,'\void l()Uch ing your eyes, nose,and fllOUth willl unwashed h;:mds.
Avoid d o:;e conwctwith pcioplewhoare :;ick.
Stay home when yo 1.1are sick. Cover ym 1r c.ough or snf!P.Zewitha tissue. then throw the tissue in tile trash. Clean .-ind<Jisi11fl!ct fr~quently !ouched objects ancf surf.lees.

People who think they tnay have been exposed to 2019-nCoV should cont.1ct your healthcare provide r immediately.

---------------------

- - --- -- -- ·------ --..------ -- --

Formore information, visit: www.cdc.gov /corona virus/2019-ncov

Sent by the Wellpa th Communications Team
CRAIG DIAMOND // SVP// craig .dia111011d(<1Wcllp.ilh.iusLESLEYl(OLB ,'i Manager ii lesley.kolb@wellpath.Lis 1283 Murfreesboro Roc1d,Suite 500 ii Nashville. TN 37217 /! www.wcllpathcan?.com

Case 3:20-cv-02731-VC Document 264-2 Filed 05/27/20 Page 19 of 30

\~well path
To hope and heatin g.

Enviaclo en nombre del: Equipo Clinico de Wcllpath

Lo que necesita saber del Coronavirus.

lt..a!i1t 0'1Hfft ?

,ou& ~s:' - El 2019 Novel Corcmavirns (2019-nCi:N) es un virus identificado como la causu d e u11bmte de e11fcr:n11zd;:idesl'e:.pirutori;is detec:tadas por primera vel en Wuhan.Chim1.
• .:C<'imo~ ptOp;Jg;:i?- Se cree quc stJpropaga por rm~dio df: got;is
respiratorias que se produce, cuando un sujeto inreclado to::.eo se esparcen patogenos.
_,;C,~.:i,l;:s el tr,,l::;:n i,cnl <J~· - NrJ existe u11lrnla1n irmlc1 ,:sp<!dlkr>imrn Iv infeccion con d 2019 - nCoV. Los individuo~ conlagkiclos con 2019-
nCoV deben recibir lrotamicnlo par.i .~yu<.l:it;;i .iliviar lo~ sintornas. E,, c.isos sevcros, cl tr.ilamicn to d•)bcrti incluir ;,lc11ci,:,n que ;:ipoye d
funcio,,,m,ienlo clc los 6rganos vilalc~ .
,Gue hago si estoy enfermo? Sius\ccJv1sitr)Cl,ina en lcJs1jllimos 14 diil~o 11a est.:ido cxpuesto a .:ilguicn bajo sospcch.i <Jdi.:ignosticode com;igio lie 2019nCoV y se siente en(ermo con ficbrc, lOSo di(icult;iclesp;,r,J rr.r.pir.,r. 1fob1:r.i busCuralenci6n medica cle inmccliulo. Antes de acL1ri.rlil Lin con~ultmin m,~dico o salade emergencia, !lame y notifique!esde su viajerccienic y cir:sus ~intornas. Evite el contacto con otras persorliJsy no virJjt:.Al losr•!r o i:slnrrn.111r,,ctihra:;c111 boc.>y la n.>rizcon una toall.>de pap,~Io con sus mangas (no (on ~usma nos), y luego bote la toalla en la basura. Lavese las rrmnos frecu1mtement<~con agua y jabon por no menos de 20 segundos para evitar prop.;gar el virus. lfoe un desinfectante de manos a base de alcohol que conteng;ipor lo menos 1.11610% de alcohol si 110tiene .igua y jabon disponiblcs.

L0ue puedo hacer para preveni r una infecci6n?
En la aclualidcld no so cucnliJ conuna vacuna
que lm pida la infer.don con cl 2019-nCoV. La mejor milncr,1 de preveni r unairlcccion es evitar la <::><po$ic:il.t>onm. ando medidaspreventivas diarias, tales como:
• lavms1~ 111n5,anos lrec:1.mntm~ ente con agua y Jilbcin por rio menos du 20 segundos.
Usarun cJesinf,!ctantede manosQue cont,mg,1por lo menos un 6-0¾dealco11olsi
no se lh~ne a9ua y jabon. Evitllr toc:.irsF.los ojos, la narizy la boca con
rnanos sin lavar. • Evitar el c;ontac:tocercano conpersonas
enkrrnas. Ouedarsl! en c.:isasi eslii enrermo.
Cub rirse con una toalta de papelal toser o
estornudar y luego botar la toaHaen la basura.
Limpiar y de!;infectar frecuentementelos objetos
y superriciesque se tocan conrrecuencia.

---- ----- -··- - ----··- -·
Si sospecha que ha sido expuesto al 2019-nCoV comuniquese coh su proveedor de servicios medicos de inmecltato.

Para mas informacion, visite: www.cdc.gov/coronavlrus/20.19-ncov
Enviado por el Equipo de Comunicaciones de Wellpath
CRAIG DIAMOND ii $VP // crcli~1.di.i111oncl(?1wellpnll1.tJ!'.;Lf:'SLEYl{OLB // Mnmig,~r ti tesley.kolb@wellpath.us
1283 Mu1·rreesl>oro Hoocl,Suite 500 )! N:e lwillt·:, TN 37217 /' www .wcllpcltl'lcnr,:·.r;r;111

Case 3:20-cv-02731-VC Document 264-2 Filed 05/27/20 Page 20 of 30
EXHIBIT B

Case 3:20-cv-02731-VC Document 264-2 Filed 05/27/20 Page 21 of 30

Case 3:20-cv-02731-VC Document 264-2 Filed 05/27/20 Page 22 of 30

Case 3:20-cv-02731-VC Document 264-2 Filed 05/27/20 Page 23 of 30
EXHIBIT C

Case 3:20-cv-02731-VC Document 264-2 Filed 05/27/20 Page 24 of 30
HowtoWeaCr lothFaceCoverings
Clothfacecoveringshould• fit snuglybutcomfortablyagainsthesideoftheface • besecuredwithtiesor earloops • includemultiplelayersoffabric • allowfor breathingwithoutrestriction • beableto be launderedandmachinedriedwithoutdamageor
changeto shape
CDConHomemadCeothFacCe overings
CDCrecommendws earingdoth facecoveringsln publicsettingswhereother
socialdistancingmeasureasredifficultto maintain(e.g.g, roce;ystoresand
pharmaciese),speciallIynareasof significanct ommunity-basetdransmission. CDCalsoadvisestheuseofsimpleclothfacecoveringsto slowthespreadof thevirusandhelppeoplewhomayhavethevirusanddonotknowit from transmittingit to others.Clothfacecoveringsfashionedfromhousehold itemsor madeat homefromcommonmaterialsat lowcostcanbeusedasan additionalv, oluntarypublichealthmeasure. Clothfacecoveringshouldnot beplacedonyoungchildrenunderage 2, anyonewhohastroublebreathingo, risunconsciouisn,capacitateodr otherwiseunableto removethedoth facecoveringwithoutassistance. Theclothfacecoveringsrecommendeadrenotsurgicaml asksorN-95
respiratorsT. hosearecriticalsuppliesthatmustcontinueto be reservedfor
healthcareworkersandothermedicaflirstrespondersa,srecommendebdy currentCDCguidance.
Shouldclothfacecoveringbsewashedorotherwise deanedregularlyH?owregularly?
YesT. heyshouldberoutinelywasheddependingonthefrequency of use.
Howdoesonesafelysterilize/clea nclothfacecovering?
Awashingmachineshouldsufficein properlywashingaclothfacecovering.
Howdoesonesafelyremovaeuseddothfacecovering?
Individualsshouldbecarefulnot to touchtheir eyes,nose,andmouth whenremovingtheir cloth facecoveringandwashhandsimmediately after removing.
csmmslll/lO/lOl!l,a111Pl.l

Case 3:20-cv-02731-VC Document 264-2 Filed 05/27/20 Page 25 of 30

Use unacubiertade telapara caraparaayudara desacelerarla propagaci6nICDC

Page 1 of 4

Cen !ros po re el Control y lo Prevencl6n de Enfermedodes
CDC24/7:SaMlffl0Sllldos. Prologomoso lo genfe'M

Use una cubierta de tela para cara para ayudar a desacelerar la propagacion del COVID-19
Comousar una cubierta de tela para la cara
Lascubiertas de tela para caradeben:
• ajustarse de manera firme pero c6moda contra los !adosde la cara • asegurarsea las orejas con algun tipo de lazo • incluir varias capasde tela • permitir respirar sin restrlcci6n • poder lavarsey secarseen secadorasin sufrir danos ni deformarse
Recomendaciones de los CDCsobre las cubiertas de tela para la cara hechas en casa
Los coc recomlendan usar cublertas de tela para cara en entornos publlcos donde sea dlflcli mantener otras medldasde
distanciamiento social (p. ej., tlendas de comestibles y farmacias),especlalmenteen areas de transmlsi6n significativaenla comunldad.
LosCDCtambien recomiendan el uso de cubiertas de tela para cara simples para desacelerarla propagaci6n del virusy evltar que qulenes puedan tener el virus sin saberlo lo transmitan a otras personas. LasCubiertas de tela para cara confeccionadascon articulos del hogar o hechasen casaa partir de materiales comunesde bajo costo pueden usarsecomo medlda adldonaly voluntarla de salud publica.
Lascubiertas de tela para cara no se deber(an usar en niiios menores de 2 anos ni en personas con prob lemas resplratorioso
que esten inconsclentes, incapacltadaso no sean capacesde quitarselassin ayuda.
Lascublertas de tela para cara recomendadasno son mascarillas qulrurglcas nl mascarillasde respiraci6n N-95. Esosson suminlstros crfticos que se deben continuar reservando para los trabajadores de la salud y otros miembros del personalmedico de respuesta a emergenclas, como lo recomlenda la guraactual de los CDC.
lLas cubiertas de tela para cara deben lavarse o limpiarse de alguna manera con regularidad? lCon que frecuencia?
Si.Selas debe lavar rutinariamente segun la frecuenciade uso.

.tnnnmn

Case 3:20-cv-02731-VC Document 264-2 Filed 05/27/20 Page 26 of 30
EXHIBIT D

Case 3:20-cv-02731-VC Document 264-2 Filed 05/27/20 Page 27 of 30
t
.'
• I

Case 3:20-cv-02731-VC Document 264-2 Filed 05/27/20 Page 28 of 30

I •

it

n "' ,

• I
•
/

Case 3:20-cv-02731-VC Document 264-2 Filed 05/27/20 Page 29 of 30
EXHIBIT E

Case 3:20-cv-02731-VC Document 264-2 Filed 05/27/20 Page 30 of 30
ATTENTIONALL INMATES/DETAINEES:
ATENCIONA TODOSLOS
INMATES/DETENIDOS:
You have been provided paper-towels, along with cleaning supplies to wash the phone between every use. Each time, before and after using the phone, you shall wipe it down with the provided paper towels and cleaning supplies!
Se le han proporcionado toallas de papel, junto con suministros de limpieza para limpiar el telefono entre cada uso. Cada vez, antes y despues de usar el telefono, debe limpiar el telefono con las toallas de ,-papel y los suministros de lirnpieza proporcionados!

Case 3:20-cv-02731-VC Document 264-3 Filed 05/27/20 Page 1 of 10

DAVID L. ANDERSON (CABN 149604) United States Attorney
SARA WINSLOW (DCBN 457643) Chief, Civil Division
WENDY M. GARBERS (CABN 213208) ADRIENNE ZACK (CABN 291629) SHIWON CHOE (CABN 320041) Assistant United States Attorneys
450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Telephone: (415) 436-6967 Facsimile: (415) 436-6748 wendy.garbers@usdoj.gov adrienne.zack@usdoj.gov shiwon.choe@usdoj.gov
Attorneys for Federal Defendants
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, et al., Plaintiffs,
v. DAVID JENNINGS, et al.,
Defendants.

) CASE NO. 3:20-cv-02731-VC
)
) DECLARATION OF SHIWON CHOE IN ) SUPPORT OF FEDERAL DEFENDANTS’ ) (1) MOTION FOR ORDER CONFIRMING ) THAT TEMPORARY RESTRAINING ORDER ) HAS EXPIRED, ENDING BAIL PROCESS, AND ) VACATING BAIL ORDERS AND ) (2) OPPOSITION TO PLAINTIFFS’ MOTION ) FOR PRELIMINARY INJUNCTION )

DECLARATION OF SHIWON CHOE IN SUPP. OF FED. DEFS.’ MOT. AND OPP’N No. 3:20-cv-02731-VC

Case 3:20-cv-02731-VC Document 264-3 Filed 05/27/20 Page 2 of 10
I, Shiwon Choe, declare as follows: 1. I am an Assistant United States Attorney and counsel for Federal Defendants. The facts set forth in this declaration are within my personal knowledge or based on documents and information I have received in the course of this litigation. 2. Attached hereto as Exhibit 1 is a true and correct copy of the preliminary injunction issued on April 23, 2020 in Hernandez Roman v. Wolf, No. 5:20-cv-00768-TJH-PVC (C.D. Cal.), ECF No. 55. I declare under penalty of perjury that the foregoing is true and correct. Executed this 27th day of May 2020
s/Shiwon Choe SHIWON CHOE

DECLARATION OF SHIWON CHOE IN SUPP. OF FED. DEFS.’ MOT. AND OPP’N

No. 3:20-cv-02731-VC

1

Case 3:20-cv-02731-VC Document 264-3 Filed 05/27/20 Page 3 of 10
EXHIBIT 1

Case 5:20C-cavs-e0037:2608--cTvJ-H02-P7V31C-VCDocDuomceunmte5n5t 2F6i4le-3d 0F4i/l2e3d/2005/2P7a/2g0e 1Poafg7e 4Poafg1e0ID #:1348

1

2

3

4

5

6

7

8

11nitt~~tattS' !Ji:ligtric((tCourt

9

QCtntra!lJi:ligtricotf ((California

10

WtS'ttrni:libigion

11

12 KELVIN HERNANDEZ ROMAN , et al. , etc. ,
13
Petitioner s-Plaintiffs,
14
V. 15
CHAD F. WOLF , et al. ,
16
Re spondent s-Defendants .
17

EDCV 20-00768 TJH (PVC)
~reliminaryJfn)unction
[9]

18

19

The Court has considered Petitioners' motion for a class-wide preliminary

20 injunction , together with the moving , opposing, reply and sur-reply papers.

21

It is ~r~trt~ that the motion be, and hereby is, <5rantt~.

22

It is furtbtr~r~trt~ that the basis for this Preliminary Injunction is set forth

23 in the separately issued Findings of Fact and Conclusions of Law.

24

It is furtbtr~r~trt~ that Respondents' request for a stay of this Preliminary

25 Injunction pending appeal be , and hereby is, iltnit~.

26

It is furtbtr ~r~trt~ that , pending a final resolution of this case or further

27 order of the Court:

28 1. Adelanto shall not accept any new detainees.

Preliminary Inj unct ion - Page 1 of 7

Case 5:20C-cavs-e0037:2608--cTvJ-H02-P7V31C-VCDocDuomceunmte5n5t 2F6i4le-3d 0F4i/l2e3d/2005/2P7a/2g0e 2Poafg7e 5Poafg1e0ID #:1349

1 2.
2 3 4 5 6
7 3.
8
9 4.
10 11
12 5.
13 14 15 16 17 18 19
20 6.
21 22 23 24
25 7.
26
27 8.
28

Respondents shall immediately reduce the detainee population at the Adelanto Immigration and Customs Enforcement Processing Center [“Adelanto”] to such a level that would allow the remaining detainees to maintain a social distance of 6 feet from each other at all times and at all places, including while sleeping, eating, showering, and going about other daily activities, except when there is a medical necessity or a safety emergency. Respondents shall begin to reduce Adelanto’s detainee population forthwith and shall complete the task by May 4, 2020. Respondents shall reduce Adelanto’s detainee population by at least 100 detainees by April 27, 2020; by at least another 150 detainees by April 30, 2020; and, then, shall hit the target reduced population level by May 4, 2020. Respondents shall achieve the necessary population reduction by: A. Releasing selected detainees, with or without conditions of release; B. Deporting selected detainees who have final deportation orders, have
exhausted all appeals, and are otherwise deportable; or C. Transferring selected detainees to other detention facilities where detainees
are able to maintain a 6 foot social distance from each other at all times and at all places, including while sleeping, eating, showering, and going about other daily activities. Any detainee who is transferred to a facility where detainees are unable to maintain a 6 foot social distance from each other at all times and at all places, or where the cleaning standards of that facility do not comply with the cleaning standards required by this Preliminary Injunction for Adelanto, will be immediately released from detention by the Court. The Court shall retain jurisdiction over all class members who are transferred to other facilities regardless of where those facilities are located. Respondents shall have the discretion to determine which detainees are released, deported or transferred.

Preliminary Injunction – Page 2 of 7

Case 5:20C-cavs-e0037:2608--cTvJ-H02-P7V31C-VCDocDuomceunmte5n5t 2F6i4le-3d 0F4i/l2e3d/2005/2P7a/2g0e 3Poafg7e 6Poafg1e0ID #:1350

1 9.
2 3 4 5 6 7 8 9 10
11 10.
12
13 11.
14
15 12.
16 17
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19 20 21 22
23 14.
24 25
26 15.
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The Court encourages Respondents to give priority for release, in order of preference, to: A. Detainees over the age of 55 who have preexisting medical or mental
health conditions that make them more susceptible to COVID-19 complications; B. Other detainees over the age of 55; C. Other detainees who have preexisting medical or mental health conditions that make them more susceptible to COVID-19 complications; D. Other detainees who do not have a history of criminal convictions; and E. Other detainees who have a history of only minor criminal convictions. Respondents have the discretion to determine what conditions, if any, to place on the released detainees, including electronic and GPS monitoring. Respondents shall file, at least 24 hours in advance, a list of detainees they are going to release, deport or transfer. Respondents shall cooperate and coordinate with class counsel so that class counsel can arrange for transportation and housing in advance of the release of any detainee. Respondents shall immediately put into effect at Adelanto all mandates, best practices, recommendations and guidelines issued by the United States Centers for Disease Control and Prevention, the State of California, and the San Bernardino County Department of Public Health for the prevention of the transmission of the coronavius and COVID-19. Effective immediately, all Adelanto staff shall keep a 6 foot social distance from each other and from detainees, unless there is a medical necessity or a safety emergency. Effective immediately, Adelanto detainees shall be required to maintain, whenever possible, a social distance of 6 feet from each other, unless there is a medical necessity or a safety emergency.

Preliminary Injunction – Page 3 of 7

Case 5:20C-cavs-e0037:2608--cTvJ-H02-P7V31C-VCDocDuomceunmte5n5t 2F6i4le-3d 0F4i/l2e3d/2005/2P7a/2g0e 4Poafg7e 7Poafg1e0ID #:1351

1 16.
2 3
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5 6 7 8 9 10
11 18.
12 13 14 15 16 17 18 19
20 19.
21 22
23 20.
24
25 21.
26
27 22.
28

As soon as the Adelanto detainee population is sufficiently reduced, Adelanto detainees shall maintain a 6 foot social distance from each other at all times and at all places, unless there is a medical necessity or a safety emergency. All detainee common areas and shared items, including, but not limited to, rooms, floors, doors, tables, seats, telephones, electronic devices, showers, sinks and toilets shall be cleaned and disinfected by a professionally trained cleaning staff with appropriate equipment and supplies on a regular basis whenever those common areas and shared items are accessible to detainees. So, for example, common areas and shared items that are accessible by detainees 24 hours a day must be cleaned and disinfected multiple times throughout each 24 hour period. For any area or item including, but not limited to, rooms, sinks and toilets, that are used solely by one detainee, Respondents shall provide to each respective detainee sufficient training, cleaning equipment and supplies, at no cost to the detainee, so that the detainee can clean and disinfect those areas and items on a regular basis, but at least once a day. If any detainee is unable to clean and disinfect any exclusive use areas or items because of age, a medical or mental health issue, or other infirmity, Respondents shall have those areas and/or items cleaned and disinfected on a regular basis by a professionally trained cleaning staff. Any sleeping room/cell that contains a toilet without an integrated lid shall be limited to a single occupant, even if multiple occupants would be able to maintain a social distance from each other while in that sleeping room/cell. All Adelanto staff shall wear masks and gloves, provided by Respondents, at all times while on duty. All Adelanto detainees shall wear masks, provided by Respondents at no expense to the detainees, at all times except while eating, drinking or showering. Respondents shall provide sufficient pairs of gloves, at no expense to detainees, for detainees to wear at any and all times the detainees so desire.

Preliminary Injunction – Page 4 of 7

Case 5:20C-cavs-e0037:2608--cTvJ-H02-P7V31C-VCDocDuomceunmte5n5t 2F6i4le-3d 0F4i/l2e3d/2005/2P7a/2g0e 5Poafg7e 8Poafg1e0ID #:1352

1 23.
2 3
4 24. 5 25.
6
7 26.
8 9 10 11 12 13 14
15 27.
16 17 18 19 20 21 22 23 24 25 26 27 28

Adelanto shall provide all detainees, at no expense to the detainees, with sufficient quantities of soap, including hand soap, and paper towels, so that the detainees never run out of those supplies. As an alternative to hand soap, detainees may be provided with hand sanitizer. Respondents shall create and implement any and all rules at Adelanto necessary to comply with this Preliminary Injunction. Respondents shall propose, by April 27, 2020, for the Court’s approval: A. Adelanto’s detainee population reduction plan, including dimensions of all
common areas and sleeping rooms/cells, and details as to how detainees will be able to eat, shower, and go about other daily activities while maintaining 6 feet of social distance at all times and all places; B. Adelanto’s new cleaning procedures and schedule; and C. An operations plan that implements all components of this preliminary injunction. Respondents shall file, under seal, by May 1, 2020, a complete census of all members of the certified class, as it was defined by the Court in its class certification order. The census shall contain, at a minimum, each class member’s: A. Registration number; B. Name; C. Gender; D. Age; E. Housing unit and room assignment, if applicable; F. Criminal history; G. Known medical conditions; H. Location and detention status, specifically whether the class member remains detained at Adelanto, has been or will be released, transferred or deported; if the class member has been transferred, then the transfer location shall be stated;

Preliminary Injunction – Page 5 of 7

Case 5:20C-cavs-e0037:2608--cTvJ-H02-P7V31C-VCDocDuomceunmte5n5t 2F6i4le-3d 0F4i/l2e3d/2005/2P7a/2g0e 6Poafg7e 9Poafg1e0ID #:1353

1 2 3 4 5 6 7
8 28.
9 10 11 12 13 14 15 16 17 18
19 29.
20
21 30.
22 23
24 31.
25 26 27
28 32.

I. Immigration status; J. Immigration Court history and orders; K. Whether the person has any appeals pending before the Board of
Immigration Appeals or the Ninth Circuit Court of Appeals, and the status of those appeals; and L. Contact information for a family member or friend to aid class counsel to coordinate transportation and housing if the detainee is released. Starting on May 11, 2020, and on every Monday, thereafter, Respondents shall file a status report by 4:00 p.m. containing, inter alia: A. An updated detainee census, which shall be filed under seal; B. A summary of Adelanto’s current population; C. A housing assignment list, broken down by housing unit and room/cell, if applicable; D. Any new policy changes relating to the matters in this Preliminary Injunction; E. A summary of the progress made toward complying with this Preliminary Injunction; and F. Any explanation for any non-compliance with this Preliminary Injunction. If Respondents fail to comply with any of the above, the Court will consider the immediate release of class members. This Preliminary Injunction applies to all class members, including those who were ordered released pursuant to a Temporary Restraining Order issued by the Court in this case or in a class member’s separately and previously filed case. All class members released by the Court pursuant to a Temporary Restraining Orders, issued in this case or in a separately and previously filed case, shall remain released and subject to the terms and conditions of release set forth in each respective Temporary Restraining Order. The Court will not issue any additional Temporary Restraining Orders or

Preliminary Injunction – Page 6 of 7

Case 5:20C-acsve-030:72608-c-Tv-J0H2-7P3V1C-VCDoDcuomcuemnte5n5t 26F4il-e3d 0F4il/e2d3/0250/27P/a2g0e 7Paogf e7 10Paogf e10ID #:1354

1

Preliminary Injunctions for class members in separately filed cases as this class

2
3 33.
4

action was certified as a no opt out class action under Fed. R Civ. P. 23(b)(2). Class counsel shall, with the cooperation of Respondents, provide the best notice possible regarding the certification of this class action and the issuance of this

5

Preliminary Injunction to class members, and their separate counsel, for those

6

class members who may have separate counsel.

7 34. No bond shall be required for this Preliminary Injunction.

8
9 Date: April 23, 2020
10 11 12

__________________________________ Terry J. Hatter, Jr.
Senior United States District Judge

13

14

15

16

17

18

19

20

21

22

23

24

25

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27

28

Preliminary Injunction – Page 7 of 7

 
 Case 3:20-cv-02731-VC Document 286 Filed 05/29/20 Page 1 of 22

WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org SEAN RIORDAN (SBN 255752) sriordan@aclunc.org ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: (415) 553-9319 Facsimile: (415) 553-9810

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUBI RUIZ TOVAR, LAWRENCE KURIA MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,
Petitioners-Plaintiffs,

CASE NO. 3:20-CV-02731-VC
PETITIONERS-PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION AND OPPOSITION TO MOTION TO DISSOLVE TEMPORARY RESTRAINING ORDER

v.
DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,

DATE: TIME:

JUNE 2, 2020 10:00 A.M.

Respondents-Defendants.

CASE NO. 3:20-CV-02731-VC REPLY ISO MOTION FOR PI AND OPPOSITION TO MOTION TO DISSOLVE TRO

Case 3:20-cv-02731-VC Document 286 Filed 05/29/20 Page 2 of 22

BREE BERNWANGER* (NY SBN 5036397) bbernwanger@lccrsf.org HAYDEN RODARTE (SBN 329432) hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA 131 Steuart St #400 San Francisco, CA 94105 Telephone: (415) 814-7631
JUDAH LAKIN (SBN 307740) judah@lakinwille.com AMALIA WILLE (SBN 293342) amalia@lakinwille.com LAKIN & WILLE LLP 1939 Harrison Street, Suite 420 Oakland, CA 94612 Telephone: (510) 379-9216 Facsimile: (510) 379-9219

MARTIN S. SCHENKER (SBN 109828) mschenker@cooley.com COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111 Telephone: (415) 693-2000 Facsimile: (415) 693-2222
TIMOTHY W. COOK* (Mass. BBO 688688) tcook@cooley.com FRANCISCO M. UNGER* (Mass. BBO 698807) funger@cooley.com COOLEY LLP 500 Boylston Street Boston, MA 02116 Telephone: (617) 937-2300 Facsimile: (617) 937-2400

JORDAN WELLS (SBN 326491) jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568) spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA 1313 West Eighth Street Los Angeles, CA 90017 Telephone: (213) 977-9500 Facsimile: (213) 977-5297

Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice

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TABLE OF CONTENTS I. INTRODUCTION .............................................................................................................. 1 II. REPLY TO DEFENDANTS’ STATEMENT OF FACTS................................................. 1
A. Defendants Make No Attempt to Meet Plaintiffs’ Expert Testimony .................... 1 B. Defendants’ Factual Submissions Show, At Most, That Judicial Intervention
Remains Essential to Protecting the Class .............................................................. 2 III. ARGUMENT ...................................................................................................................... 5
A. Plaintiffs Satisfy the Requirements for a Preliminary Injunction ........................... 5 1. Defendants’ Remedial Measures to Date are Insufficient .......................... 5 2. Even if the Court Found Defendants’ Measures to Be Sufficient, an Injunction Would Still Be Necessary.......................................................... 6
B. Plaintiffs’ Narrowly Tailored Proposed Remedy Falls Squarely Within the Court’s Power ......................................................................................................... 7
C. The Court Has the Authority to Continue the Bail Process .................................. 11 IV. CONCLUSION................................................................................................................. 15
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TABLE OF AUTHORITIES
Page(s)
CASES
Adarand Constructors, Inc. v. Slater, 528 U.S. 216 (2000).................................................................................................................... 7
Bolante v. Keisler, 506 F.3d 618 (7th Cir. 2007) .................................................................................................... 12
Boumediene v. Bush, 553 U.S. 723 (2008).................................................................................................................. 12
Brenneman v. Madigan, 343 F. Supp. 128 (N.D. Cal. 1972) ........................................................................................... 11
Brown v. Plata, 563 U.S. 493 (2011).................................................................................................................. 11
Chin Wah v. Colwell, 187 F. 592 (9th Cir. 1911) .................................................................................................. 12, 13
Coronel v. Decker, 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020) .......................................................................... 14
Crawford v. Bell, 599 F.2d 890 (9th Cir.1979) ............................................................................................... 11, 12
Dawson v. Asher, 2020 WL 1304557 (W.D. Wash. Mar. 19, 2020) ....................................................................... 6
Demore v. Kim, 538 U.S. 510 (2003)............................................................................................................ 12, 13
Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011) .................................................................................................... 7
Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000).................................................................................................................... 7
Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) ...................................................................................................... 8
Granny Goose Foods, Inc. v. B’hood of Teamsters, etc., 415 U.S. 423 (1974).................................................................................................................... 5
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Helling v. McKinney, 509 U.S. 25 (1993)...................................................................................................................... 6
Hernandez v. Sessions, 872 F.3d 976 (9th Cir. 2017) ................................................................................................ 6, 13
I.N.S. v. St. Cyr, 533 U.S. 289 (2001)............................................................................................................ 12, 13
In re Ah Tai, 125 Fed. 795 (D. Mass 1903).................................................................................................... 13
In re Roe, 257 F.3d 1077 (9th Cir. 2001) .................................................................................................. 15
Innovation Law Lab v. Nielsen, 310 F.Supp.3d 1150 (D. Or. 2018) ............................................................................................. 7
Jennings v. Rodriguez, 138 S. Ct. 830 (2018) ................................................................................................................ 13
Jimenez v. Wolf, No. 19-cv-07996-NC, 2020 WL1082648 (N.D. Cal. 2020) ..................................................... 13
Land v. Deeds, 878 F.2d 318 (9th Cir. 1989) .................................................................................................... 11
Mapp v. Reno, 241 F.3d 221 (2d Cir. 2001)...................................................................................................... 13
Marino v. Vasquez, 812 F.2d 499 (9th Cir. 1987) .................................................................................................... 12
Merrill Lynch, Pierce, Fenner & Smith Inc. v. Doe, 868 F. Supp. 532 (S.D.N.Y. 1994) ............................................................................................. 8
Murai v. Adducci, 2020 WL 2526031 (E.D. Mich. May 18, 2020).......................................................................... 6
Nat'l Audubon Soc'y, Inc. v. Davis, 307 F.3d 835 (9th Cir. 2002) ...................................................................................................... 8
Nielsen v. Preap, 139 S. Ct. 954 (2019) ................................................................................................................ 13
Padilla v. ICE, 953 F.3d 1134 (9th Cir. 2020) .................................................................................................. 14
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Preiser v. Rodriguez, 411 U.S. 475 (1973).................................................................................................................. 10
Ramirez v. Galaza, 334 F.3d 850 (9th Cir.2003) ..................................................................................................... 10
Reebok Intern., Ltd. v. Marnatech Enterprises, Inc., 970 F.2d 552 (9th Cir. 1992) .................................................................................................... 11
Roman v. Wolf, No. 20-55436, 2020 WL 2188048 (9th Cir. May 5, 2020) ......................................................... 9
Sharp v. Weston, 233 F.3d 1166 (9th Cir. 2000) .................................................................................................... 8
Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) .................................................................................................... 8
Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832 (9th Cir. 2001) ...................................................................................................... 5
Swain v. Junior, 958 F.3d 1081 (11th Cir. 2020) ............................................................................................ 9, 10
Thakker v. Doll, 2020 WL 2025384 (M.D. Pa. Apr. 27, 2020) ............................................................................. 6
United States v. Concentrated Phosphate Export Assn., Inc., 393 U.S. 199 (1968)............................................................................................................ 7
United States v. Dade, 2020 WL 2570354 (9th Cir. May 22, 2020) ....................................................................... 14, 15
United States v. Mett, 41 F.3d (9th Cir. 1995) ............................................................................................................ 14
Valentine v. Collier, 956 F.3d 797 (5th Cir. 2020) ...................................................................................................... 9
Williams v. Wilson, -- U.S. --, 2020 WL 2644305 (May 26, 2020) ............................................................................ 8
Wilson v. Williams, No. 4:20-cv-00794, 2020 WL 1940882 (N.D. Ohio Apr. 22, 2020) .......................................... 8
Wilson v. Williams, No. 4:20-cv-00794, 2020 WL 2542131 (N.D. Ohio May 19, 2020) .......................................... 8
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Wright v. Henkel, 190 U.S. 40 (1903).................................................................................................................... 12
Zadvydas v. Davis, 533 U.S. 678 (2001).................................................................................................................. 14
Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) .............................................................................................................. 10
U.S. CONSTITUTION U.S. Const. amend. V...................................................................................................................... 9 U.S. Const. amend. VIII.................................................................................................................. 9 STATUTES 8 U.S.C. § 1226............................................................................................................................. 13 8 U.S.C. § 1252............................................................................................................................. 14 18 U.S.C. § 3143........................................................................................................................... 14 28 U.S.C. § 2241..................................................................................................................... 12, 13 28 U.S.C. § 2255........................................................................................................................... 14 42 U.S.C. § 1983........................................................................................................................... 11 RULES Fed. R. Civ. P. 65 ............................................................................................................................ 5
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I. INTRODUCTION Weeks after the rest of society made drastic changes in response to the COVID-19
pandemic, ICE failed to take meaningful measures to fulfill its constitutional duty to those in its custody. Following the Court’s grant of a TRO, ICE finally began to take some limited steps to address social distancing. These measures were not taken out of genuine concern for the detainees’ health and well-being. Defendants have always denied they were violating Plaintiffs’ constitutional rights (Opp. to TRO, ECF 37 at 1), and—as the Court noted—“the safety of the people at these facilities” was low on “ICE’s list of priorities.” (TRO, ECF 53 at 3.) Rather, they were reluctant steps taken in hopes of convincing the Court that judicial attention would no longer be required. Meanwhile, Defendants continued to uniformly oppose Class Members’ bail applications, transfer detainees in and out of Mesa Verde and Yuba with regularity, and resist the very notion that a federal court has the authority to address the constitutional violation caused by their conduct. Defendants now ask the Court to “trust us,” but their conduct does not warrant such trust. Preliminary injunctive relief is necessary to finish the job the TRO started and ensure the agency does not backslide into its irresponsible practices.
Defendants’ Opposition reveals that their doctrinal defenses to injunctive relief are unavailing, and the remedial steps they have taken to date are far from sufficient. Defendants have no answers to many of Plaintiffs’ facts, and no response to Plaintiffs’ experts. But even if the Court were convinced that Defendants had done enough to cure the identified constitutional violation, the fact that these steps were only taken in response to litigation is powerful proof that an injunction remains necessary to protect Class members. II. REPLY TO DEFENDANTS’ STATEMENT OF FACTS
A. Defendants Make No Attempt to Meet Plaintiffs’ Expert Testimony Plaintiffs have presented detailed testimony from four highly qualified experts—two of whom supplemented testimony submitted in support of the TRO—who have concluded that current conditions at the facilities remain extremely dangerous, and that a COVID-19 outbreak is only a matter of time. In more than five weeks since Plaintiffs moved for a TRO, Defendants have been unable to present a single medical or scientific witness who can affirm that class
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members’ conditions of confinement are acceptable, or that Defendants’ steps to alleviate the threat caused by their conduct are sufficient. Defendants’ sole response is to claim ignorance of any cases of COVID-19 at the facilities, and to fault Plaintiffs for failing to “address[ ] or explain [ ]” why a mass outbreak has not been detected. (Opp. at 11 n.9.)
To the contrary, Plaintiffs have explained that the absence of known cases is largely the result of Defendants’ refusal to test. (Greifinger, ECF 5-2, ⁋ 52; Iwasaki, ECF 229-16, ⁋ 44; Hernandez, ECF 229-17, ⁋ 6.) As the Court has noted, ICE’s failure to discover cases of COVID19 when it is not doing any testing “is not especially comforting” (TRO at 4), and ICE offers no evidence that it has tested even a single individual in addition to the two who had been tested as of a month ago. Even if there were currently no cases of COVID-19, injunctive relief would still be required by the overwhelming likelihood of a future outbreak. (Allen, ECF 229-18, ⁋ 47; Iwasaki, ECF 229-16, ⁋ 29; Hernandez, ECF 229-17, ⁋ 21; Greifinger, ECF 5-2, ⁋⁋ 17, 21, 23.)
B. Defendants’ Factual Submissions Show, At Most, That Judicial Intervention Remains Essential to Protecting the Class
In the absence of any expert testimony, Defendants rely exclusively on “guidance” by the CDC and ICE for managing COVID-19 (Opp. at 3-4), but in doing so, fail to address the testimony of Plaintiffs’ expert that ICE’s guidance “falls short of what is needed to address the threats posed to high-risk immigrant detainees by COVID-19.” (Greifinger, ECF 5-2, ⁋ 46.) In addition, Defendants bury the key qualifying phrase recited by their own declarants: that ICE “endeavors” to follow the CDC guidance “where possible,” but “makes adaptations according to each facility’s spacing, population and resources.” (Pham, ECF 264-1, ⁋ 18; Fishburn, ECF 2642, ⁋ 17 (emphasis added).) “Endeavors” are not enough if they do not ensure detainees’ safety.
For the most part, Declarants Pham and Fishburn recycle claims made in opposition to the TRO regarding screening of new detainees, medical care at the facilities, education, sanitation, masks, outside contacts, and “continued monitoring.” (Compare Pham, ECF 264-1, ⁋⁋ 20-37, 65-72 with Bonnar, ECF 37-1, ⁋⁋ 9-15; compare Fishburn, ECF, 264-2 ⁋⁋ 19-36, 56-62 with Kaiser, ECF, 37-3 ⁋⁋ 9-13.) The Court found these “modest measures” unconvincing as Defendants “[had] not come close to achieving social distancing for most detainees.” (TRO at 3.)
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Once again, Defendants’ declarants admit lack of personal knowledge (see Pham, ECF, 264-1 ⁋ 2; Fishburn, ECF, 264-2, ⁋ 2), and many of their claims are easily disproved.
For example, while Defendants claim that “detainees who present symptoms consistent with COVID-19 . . . will be tested . . .” (Pham, ECF 264-1, ⁋⁋ 23, 25; Fishburn, ECF 264-2, ⁋ 24), a review of just a few of the medical records produced by Defendants shows that Class members seeking medical attention for CDC-recognized symptoms of COVID-19 are not tested. (MacLean Dec. ⁋⁋ 2-8; see also, e.g., Arias, ECF 229-1, ⁋ 19; Singh, ECF 229-15, ⁋ 17.) Defendants’ claim to screen all new detainees at Mesa Verde for potential segregation or isolation “due to their travel history or exposure to COVID-19 patients” (Opp. at 5) misrepresents their own declarants’ statements.1 It is also belied by the shocking experience of Class member Arnulfo Ramirez Ramos, who just three days ago was transferred to Mesa Verde from the La Palma Correctional Facility in Eloy, AZ—where ICE reports that 75 detainees have confirmed cases of COVID-19—and was placed directly in Dorm D after being asked a few perfunctory questions. (Ramirez ⁋⁋ 4, 6-9; McLean ⁋ 10.) Defendants’ other third-hand claims about practices at Mesa Verde and Yuba are similarly contradicted by first-hand testimony from Class Members, to which Defendants have not responded. (See Pls.’ Opening Br. at 3-8.)
Defendants’ recent measures to increase social distancing at the facilities have been shown to be insufficient. First, they claim detainee populations have been reduced to “below 50 percent capacity.” (Pham, ECF 264-1, ⁋ 39; Fishburn, ECF 264-2, ⁋ 39.) As Plaintiffs have explained, without contradiction, this statistic is meaningless because it does not explain whether the reduction actually creates sufficient space to maintain social distancing. (Greifinger, ECF 229-19, ⁋⁋ 19-20, 30.) Dr. Greifinger and Dr. Iwasaki address the specific measures taken with respect to sleeping arrangements—such as “staggering” detainees in alternating top and bottom bunks at Mesa Verde—and conclude they are insufficient to protect detainees from severe risk of transmission of the virus. (Greifinger, ECF 229-19, ⁋⁋ 21-25; Iwasaki, ECF 229-16, ⁋ 31.) Dr. Greifinger states that at Mesa Verde, where beds are affixed to the floor and cannot be moved,
1 Detainees are only asked about “close contact with a person with laboratory-confirmed COVID-19.” (Pham, ECF 264-1, ⁋ 21 (emphasis added); McLean ⁋ 9.) Of course, Defendants do little testing, and have failed to define what they mean by “close contact.”
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every other bunk should be left vacant to attain the necessary ten feet of lateral distance between beds.2 (ECF 229-19, ⁋ 26.) Defendants present no witness to contradict this testimony.
In Yuba, it appears Defendants moved all ICE detainees out of units G-T just last week. While Ms. Fishburn claims this was done “[i]n response to COVID-19” (ECF 264-2, ⁋⁋ 37, 40), it was clearly in response to this litigation since as recently as May 18, more than two months after the WHO’s declaration of a pandemic, ICE detainees were still housed in many other units throughout the facility. (Schenker Dec., Ex. A (Email from S. Choe to M. Schenker, 5/19/20).) Even in Defendants’ belated arrangement, the beds remain inadequately spaced at barely 6 feet apart. (Fishburn, ECF 264-2, ⁋ 46.)
Defendants’ statements regarding social distancing at mealtimes similarly fail to rebut Plaintiffs’ factual showing. While Defendants describe measures taken to permit social distancing while detainees at Mesa Verde are eating, they do not even try to deny the problem identified by Plaintiffs, which is that detainees wait in crowded lines to receive food. Defendants state only that, “At Mesa Verde, no detainee is required to attend meal time” and that they “may walk to the dining hall at their leisure” (Pham, ECF 264-1, ⁋ 60). At Yuba, Defendants’ response, as of May 22, is further confinement: detainees are now required to eat at their bunks, where they still cannot maintain sufficient distance from others. (Fishburn, ECF 264-2, ⁋ 50.)
Defendants’ protestation that “six-foot social distancing” is not “a constitutional requirement” (Opp. at 13) ignores the actual constitutional requirement established by case law: that conditions of civil detention not create a risk that is excessive in relation to the government’s interest. (Motion for TRO, ECF 5 at 13-18.) Plaintiffs need not also demonstrate “deliberate indifference,” but have done so by showing Defendants’ failure to take the primary measures necessary to mitigate serious risk of harm. (Id. at 18-21.)
2 Defendants erroneously claim that the necessity of maintaining 10 feet between beds is a “new demand” (Opp. 16 n.13), but it is not; it was clearly set forth in Dr. Greifinger’s first declaration. (ECF 5-2, ⁋ 35.)
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III. ARGUMENT3 A. Plaintiffs Satisfy the Requirements for a Preliminary Injunction4
1. Defendants’ Remedial Measures to Date are Insufficient
Defendants present no new arguments concerning the standards for obtaining injunctive
relief. The Court thoroughly considered Defendants’ arguments at the TRO stage and decided
them in Plaintiffs’ favor. (TRO at 3-5). The same standards apply equally to a preliminary
injunction. Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir.
2001). Plaintiffs are entitled to a preliminary injunction because, despite the measures described
in Defendants’ opposition, the facts before the Court continue to support each of the Court’s
findings underpinning the TRO.
Specifically, Plaintiffs continue to have “an exceedingly strong likelihood” of prevailing
on their claim that current conditions of confinement “violate class members’ due process rights
by unreasonably exposing them to a significant risk of harm.” (TRO at 3; footnote omitted.)
While Defendants have taken some steps to “increase” social distancing, the unrebutted
testimony of Plaintiffs’ experts demonstrates that those steps are insufficient. Moreover, the lack
of testing renders Defendants’ claim of “no suspected or confirmed cases” meaningless.
The remaining factors— “a strong likelihood of irreparable harm” (TRO at 4) and the
“public interest and balance of hardships” (id. at 5)—have not changed. While it is true that the
3 Plaintiffs will not re-argue standing, venue, and class certification, which Defendants reference only in passing and without new arguments. (Opp. at 9.) As this Court properly found, venue is proper in this District. (TRO at 3 & n.4.) The Court’s holding that Plaintiffs have standing is in accord with every other court to have considered the issue to Plaintiffs’ knowledge. (TRO at 3 & n.5 (collecting cases).) Defendants’ arguments on commonality and typicality mirror their TRO Opposition (ECF 37 at 23-24), and were properly rejected by the Court. (TRO at 2 & n.1.) 4 Defendants previously stated they would move to “dissolve” the TRO, but now claim to seek “an order confirming that the TRO has expired.” (Opp. at 1.) They submit no argument in support of this supposed motion, and their only assertion about the duration of the TRO—that under Fed.R.Civ.P. 65(b)(2), a TRO expires after 14 days (or 28 days upon a showing of good cause) (Opp. at 1 n.1)—is incorrect. Rule 65(b)(2) expressly applies only to a “temporary restraining order issued without notice.” In any event, a TRO ordinarily dissolves if a motion for preliminary injunction is denied, or if the party fails to proceed with such a motion at the noticed time. Fed.R.Civ.P. 65(b)(3); Granny Goose Foods, Inc. v. B’hood of Teamsters, etc., 415 U.S. 423, 443 (1974). If Defendants’ “reply” in support of a motion they have not argued is, in fact, a further reply to the motion for Preliminary Injunction, it should be stricken. N.D. Cal. Civ. L.R. 7-3(d).
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Proposed PI is more comprehensive than the TRO, it only requires that Defendants do what is constitutionally required of them.
Defendants rely heavily on Thakker v. Doll, 2020 WL 2025384 (M.D. Pa. Apr. 27, 2020), in which the court, having granted a TRO, issued a preliminary injunction requiring the release of plaintiffs from one correctional institution but denied release to plaintiffs in two other facilities. (Opp. at 10-11.) The court supported its decision to deny injunctive relief as to two institutions by concluding that, because those institutions had not yet suffered an uncontrolled outbreak, the “enhanced procedures” must be “working.” By contrast, in the third institution an injunction was granted because an outbreak there showed that those same procedures “have been ineffective.” Thakker at *5-6. This mode of analysis, however, cannot be squared with the mandate of Helling v. McKinney, 509 U.S. 25, 34 (1993) that it would be improper to “deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing had yet happened to them.” Moreover, unrebutted expert testimony establishes the overwhelming likelihood that an outbreak will occur, if it has not already begun.5
2. Even if the Court Found Defendants’ Measures to Be Sufficient, an Injunction Would Still Be Necessary
Even if the Court were to determine that Defendants’ actions had eliminated any constitutional violation, a preliminary injunction would remain necessary to prevent Defendants from reverting to pre-litigation conduct. While Defendants do not explicitly argue that their actions have rendered Plaintiffs’ claims moot, that is the gist of their contention as they rely heavily on mitigation measures taken only after the case began.
“A defendant’s voluntary cessation of a challenged practice ordinarily does not deprive a federal court of its power to determine the legality of the practice. If it did, courts would be
5 Defendants’ reliance on Murai v. Adducci, 2020 WL 2526031 (E.D. Mich. May 18, 2020) and Dawson v. Asher, 2020 WL 1304557 (W.D. Wash. Mar. 19, 2020) is similarly misplaced. In Murai, the court relied not only on the fact of “minimal confirmed cases” within the facility but also on the notion that the petitioner would be at greater risk on the outside. Murai at *5. Such a conclusion finds no support in this case, where unrebutted expert testimony establishes that detainees would be at less risk on the outside. (See Hernandez, ECF 35, ⁋⁋ 29-34.) In Dawson, the court relied not only on the absence of evidence of infection, but also on the plaintiffs’ failure to address the defendants’ preventive measures. Dawson at *2. Here, Plaintiffs have addressed Defendants’ preventive measures through unrebutted expert testimony.
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compelled to leave the defendant free to return to its old ways.” Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 169-70 (2000). The well-established rule is that “voluntary cessation of challenged conduct moots a case . . . only if it is ‘absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’” Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 222 (2000) (quoting United States v. Concentrated Phosphate Export Assn., Inc., 393 U.S. 199, 203 (1968)). The party asserting mootness bears a “heavy burden” to persuade the court that “the challenged conduct cannot reasonably be expected to start up again.” Friends of the Earth, 528 U.S. at 189. This “voluntary cessation” rule applies with equal force when the defendant’s cessation of challenged conduct is the result of a TRO, Innovation Law Lab v. Nielsen, 310 F.Supp.3d 1150, 1164 (D. Or. 2018); and it also applies in habeas cases, Diouf v. Napolitano, 634 F.3d 1081, 1084 n.3 (9th Cir. 2011).
Defendants have not attempted to meet their “heavy burden” to show that they would not revert to their prior practices, nor could they. In issuing the TRO, the Court correctly noted that Defendants’ conduct up to that time “speaks volumes about where the safety of the people at these facilities falls on ICE’s list of priorities.” (TRO at 3 (footnote omitted).) The measures taken since then have been for the sole purpose of avoiding an injunction. And at the same time, Defendants have opposed every bail application submitted by Plaintiffs, including those filed on behalf of individuals without criminal records and those with serious medical vulnerabilities. In just the past few days, they have transferred more people into Mesa Verde than this Court has ordered released.6 And by challenging this Court’s bail authority, they seek the immediate return of all previously released detainees. There can be no doubt that if an injunction is not entered, Defendants will increase the number of people at Mesa Verde and Yuba.
B. Plaintiffs’ Narrowly Tailored Proposed Remedy Falls Squarely Within the Court’s Power
Contrary to Defendants’ argument that Plaintiffs’ proposed injunction is “overbroad” and “unduly intrusive,” the Proposed PI is laser-focused on ensuring that the two facilities make social distancing possible, and vests Defendants with maximum flexibility to devise plans for
6 Over the past three days, Defendants released 12 detainees at Mesa Verde pursuant to the Court’s bail orders, but added 16 new detainees to that facility. (Schenker Dec. ⁋ 3 & Exh. B.)
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rectifying the constitutional violation. (Proposed PI at 2(a).) It is narrowly tailored to “remedy the specific harm alleged.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1140 (9th Cir. 2009).7
Defendants contend that federal courts cannot provide equitable remedies where a statute “provides otherwise.” (Opp. at 15.) But the case Defendants cite, Garfias-Rodriguez v. Holder, 702 F.3d 504, 525 (9th Cir. 2012), did not involve a constitutional violation. Defendants simply ignore the numerous Ninth Circuit cases cited by Plaintiffs that hold that in conditions of confinement cases involving constitutional violations, district courts have “broad powers to fashion a remedy,” Sharp v. Weston, 233 F.3d 1166, 1173 (9th Cir. 2000), including by means of population caps and release orders. (Pls.’ Opening Br. at 13-14.)
Defendants’ invocation of stays of injunctive relief in COVID-19-related cases is unavailing. (Opp. 16-17.) As an initial matter, Defendants completely ignore the Supreme Court’s recent 6-3 decision declining to stay an injunction similar to the Proposed PI in a COVID-19 case concerning a subclass of medically vulnerable federal inmates. There, the district court granted a preliminary injunction ordering the government “to evaluate each subclass member’s eligibility for transfer out of [FCI] Elkton through any means . . . within two (2) weeks.” Wilson v. Williams, 4:20-cv-00794, 2020 WL 1940882, *10 (N.D. Ohio Apr. 22, 2020). Given the government’s “limited efforts to reduce the COVID-19 risk for subclass members,” the court later ordered, inter alia, “Respondents to make full use of the home confinement authority beyond the paltry grants of home confinement it has already issued” and expedited processing of requests for compassionate release. Wilson v. Williams, No. 4:20-cv00794, 2020 WL 2542131, *1 (N.D. Ohio May 19, 2020). After the Sixth Circuit declined to stay the order, the government sought relief from the Supreme Court, arguing that the injunction would result in release or transfer of at least a third of FCI Elkton’s population and was accordingly unreasonably intrusive. The Supreme Court denied the stay. Williams v. Wilson, --
7 Contrary to Defendants’ claim that preliminary declaratory relief does not exist (Opp. at 15), the Ninth Circuit has upheld the issuance of such relief. See Nat'l Audubon Soc'y, Inc. v. Davis, 307 F.3d 835, 845-47, 859 (9th Cir. 2002) (affirming preliminary declaratory order that statute was preempted), opinion amended on denial of reh'g, 312 F.3d 416 (9th Cir. 2002); see also Merrill Lynch, Pierce, Fenner & Smith Inc. v. Doe, 868 F. Supp. 532, 535–36, 541 (S.D.N.Y. 1994).
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U.S. --, 2020 WL 2644305 (May 26, 2020). While the denial was based in part on the “procedural posture” of the case, the Supreme Court’s order suggests that relief requiring
depopulation to address the risk of COVID-19 is not inherently overbroad. All of the circuit court stays cited by Defendants are distinguishable. The only stay issued
from the Ninth Circuit came in a case where the district court’s injunction required immediate,
large-scale depopulation (250 detainees within seven days of the injunction), along with court intervention into minute details of facility administration (regular disinfection by “professionally trained cleaning staff,” adding toilet seats, etc.). Roman v. Wolf, No. 20-55436, 2020 WL 2188048, at *1 (9th Cir. May 5, 2020). Since the relief ordered by the district court in Roman is far different than the relief sought here, the Ninth Circuit’s partial stay, which provided no substantive analysis (other than leaving the injunction in place to the extent that it required
substantial compliance with CDC guidelines), offers no meaningful guidance to this Court.
The two other stays concern criminal detention (and, therefore, the Eighth Amendment, as opposed to the more generous Fifth Amendment), and emphasize a state’s heightened interest
in administering prisons free of outside interference. In both cases, the district courts had issued detailed orders to state authorities directing allocation scarce carceral resources. See Swain v.
Junior, 958 F.3d 1081, 1090 (11th Cir. 2020); Valentine v. Collier, 956 F.3d 797, 803 (5th Cir. 2020).8 Unlike the relief in Swain and Valentine, the Proposed PI does not include measures that Valentine characterized as an “administrative nightmare” and does not direct Defendants how to
allocate scarce resources. Instead, the Proposed PI grants Defendants discretion to devise appropriate plans to achieve necessary social distancing in their facilities. (Proposed PI ⁋ 2(b).)
8 In Swain, the injunction required, among other things, that officials provide all inmates with a personal supply of soap and disinfectant products (“even though,” the court noted, “they may be more critical at another county facility”) and required testing in the facility of all inmates with COVID-19 symptoms and of anyone with whom they had been in contact (“at the expense of other county facilities”). 958 F.3d at 1090. The Eleventh Circuit explained that “[a]bsent a stay, the defendants will lose the discretion vested in them under state law to allocate scarce resources among different county operations necessary to fight the pandemic.” Id. In Valentine, the district court’s injunction required prison officials to implement an array of detailed requirements, including immediate wide-scale COVID-19 testing, guidelines for cleaning surfaces down to 30minute intervals and with mandated bleach products, and guidelines for oral presentations. 956 F.3d at 799-800. The court found that these measures amounted to an intrusive level of “micromanagement.” Id. at 806.
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ICE’s failure to promote social distancing prior to this Court’s intervention is another point of material distinction from the stay cases. Swain found no evidence “indicat[ing] that the defendants will abandon the current safety measures absent a preliminary injunction, especially since the defendants implemented many of those measures before the plaintiffs even filed the complaint.” Here, there is every reason to believe ICE would seek to increase the population of class members absent the preliminary injunction. Its “guidance,” after all, states that 75% of maximum capacity in any facility is acceptable.9 And, even as Mesa Verde and Yuba detainees filed numerous COVID-19 lawsuits in March and April, ICE took little action to reduce the population at those facilities. Only with the filing of this lawsuit—and particularly the entry of the TRO—did ICE begin to act more decisively, though still short of what public health experts believe to be minimally required. In addition, Defendants seek to vacate all of the Court’s orders for release on bail, which would rapidly increase the populations at both facilities.
Finally, Defendants’ argument that “there is no habeas jurisdiction” in cases challenging conditions of confinement (Opp. at 9) is without merit. The Supreme Court recently suggested that an immigration detainee should seek expedited relief from unconstitutional conditions of confinement through habeas. See Ziglar v. Abbasi, 137 S. Ct. 1843, 1863 (2017) (noting that “the habeas remedy, if necessity required its use, would have provided a faster and more direct route to relief” for detainees because “[a] successful habeas petition would have required officials to place respondents in less-restrictive conditions immediately”). Ninth Circuit case law—including the cases cited by Defendants—also makes clear that habeas jurisdiction is available in conditions of confinement cases wherever a successful claim would accelerate a prisoner’s release. See Ramirez v. Galaza, 334 F.3d 850, 858-859 (9th Cir.2003). Here habeas jurisdiction lies, as there is an inherent link between the alleged violation and the prospect of release. See Preiser v. Rodriguez, 411 U.S. 475, 487 (1973) (claims requesting present or future release are “within the core of habeas corpus”). Indeed, Defendants implicitly concede the link between the
9 See ICE, COVID-19 Pandemic Response Requirements (April 10, 2020), https://www.ice.gov/doclib/coronavirus/eroCOVID19responseReqsCleanFacilities.pdf.
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violation and the appropriate remedy when they tout the efficacy of their own releases in helping to mitigate unconstitutional conditions. (Opp. at 4-5.)
C. The Court Has the Authority to Continue the Bail Process The Court correctly ruled that it has authority to release class members on bail as a provisional remedy (TRO at 5 & n.17). “Bail pending a decision in a habeas case” is available, albeit “reserved for extraordinary cases involving special circumstances or a high probability of success.” Land v. Deeds, 878 F.2d 318, 318 (9th Cir. 1989). The COVID-19 pandemic certainly constitutes a “special circumstance.” Contrary to Defendants’ arguments, the Court also has authority to release class members as a provisional constitutional remedy pursuant to its federal question jurisdiction. (Complaint, ECF 1, ⁋ 13). The Court’s federal question jurisdiction includes “inherent equitable power to issue provisional remedies ancillary to its authority to provide final equitable relief.” Reebok Intern., Ltd. v. Marnatech Enterprises, Inc., 970 F.2d 552, 559 (9th Cir. 1992). Congress may limit that “inherent power to issue provisional remedies” through “a comprehensive enforcement scheme containing the exclusive remedies for a given statutory violation,” id. at 561 (emphasis added), but that limitation on remedies does not extend to cases involving constitutional violations. Courts have long exercised their authority to remedy constitutional violations by ordering people released from unconstitutional conditions. See Brown v. Plata, 563 U.S. 493, 499 (2011) (affirming remedial order in § 1983 action that “required [the State] to release some number of prisoners before their full sentences have been served”); Brenneman v. Madigan, 343 F. Supp. 128, 139 (N.D. Cal. 1972) (“If the state cannot obtain the resources to detain persons . . . in accordance with minimum constitutional standards, then the state simply will not be permitted to detain such persons.”); see also Pls.’ Opening Br. at 12-13. Defendants cite Crawford v. Bell, 599 F.2d 890, 892 (9th Cir.1979), to support their view that courts can order release only via habeas, but Crawford did not establish such a general rule. Rather, it held that, since the conditions problems alleged there (inter alia, lack of conjugal visits
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and deficient law library) could be cured without release, release was not warranted. Id. at 89293. Defendants’ reading of Crawford is also foreclosed by Plata, which was not a habeas case.10
Defendants make three other arguments that this Court lacks authority to admit class
members to bail; each fails. First, Defendants cite Chin Wah v. Colwell, 187 F. 592 (9th Cir.
1911) for the proposition that district courts only have the authority expressly given to them by
an immigration statute, and cannot release a petitioner under habeas jurisdiction while the merits
are pending. But the Supreme Court has since held that the general federal habeas statute, 28
U.S.C. § 2241, gives district courts habeas authority in immigration cases. I.N.S. v. St. Cyr, 533 U.S. 289, 302-03 (2001).11 See also Demore v. Kim, 538 U.S. 510, 517 (2003) (applying St. Cyr
to find jurisdiction over immigration detention claim). Under St. Cyr, § 2241 codifies the
common law writ as it existed in 1789, under which habeas courts possessed the power to admit
a petitioner to bail even absent statutory authorization. See Wright v. Henkel, 190 U.S. 40, 63
(1903) (quoting Queen v. Spilsbury, 2 Q. B. 615 (1898) for the proposition that “the Queen’s
Bench had, ‘independently of statute, by the common law, jurisdiction to admit to bail’”).
Defendants’ reliance on Chin Wah is irreconcilable with the St. Cyr framework.
Moreover, Defendants misread Chin Wah. It did not address whether a district court has the inherent authority to grant bail in a habeas case challenging immigration detention.12 The
petitioner’s principal argument appears to have been that the Chinese Exclusion Act provided
federal courts with authority to admit an individual to bail pending his appeal of his deportation
10 Defendants’ other authority is no more convincing. Marino v. Vasquez, 812 F.2d 499, 507 (9th Cir. 1987) states only that in a habeas proceeding, release authority “derives from the power to issue the writ itself.” But Marino does not purport to address provisional remedies in federal question cases. 11 St. Cyr held that reading the immigration statutes to foreclose review under § 2241 would create serious constitutional problems under the Suspension Clause. Thus, if Defendants were correct that the Court lacked the authority to release class members on bail, that result would likely violate the Suspension Clause. See Boumediene v. Bush, 553 U.S. 723, 746 (2008) (quoting St. Cyr, 533 U.S. at 301) (“‘at the absolute minimum’ the [Suspension] Clause protects the writ as it existed when the Constitution was drafted and ratified”). 12 Notably, Chin Wah’s application for bail was during the appeal of his deportation order, not during the habeas challenging his detention. While habeas jurisdiction over deportation orders has been reshaped in the past century, there should be no question that a district court has the power to admit someone to bail while exercising habeas jurisdiction over immigration detention, as in this case. See Bolante v. Keisler, 506 F.3d 618, 620 (7th Cir. 2007).
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order. The court agreed with the petitioner’s statutory analysis but affirmed the district court’s denial of release as a matter of discretion. 187 F. at 595. In doing so, Chin Wah articulated that “there was no authority to admit to bail in deportation cases prior to the act of 1892.” 187 F. at 593-94. That statement, however, appears to refer to the absence of explicit statutory authority in the immigration laws, not the absence of any common law authority. Indeed, Chin Wah favorably cited In re Ah Tai, 125 Fed. 795, 796-97 (D. Mass 1903), which describes cases where courts had admitted immigration petitioners to bail prior to 1892. Whatever Chin Wah means today (nearly seventy years since it was last cited by any court within the Ninth Circuit), it cannot foreclose the admission of class members to bail because it never mentions § 2241 and because its discussion of inherent authority is mere dicta as it was decided on statutory grounds.
Second, Defendants claim that 8 U.S.C. § 1226(e) and statutory mandatory detention provisions override the Court’s authority to release class members pending a resolution of this case. As the Supreme Court has repeatedly held, Section 1226(e)’s “clear text does not bar” constitutional challenges. Demore, 538 U.S. at 517; see also Jennings v. Rodriguez, 138 S. Ct. 830, 841 (2018) (§ 1226(e) does not bar consideration of constitutional entitlement to individualized bond hearing); Nielsen v. Preap, 139 S. Ct. 954, 962 (2019) (same); Hernandez v. Sessions, 872 F.3d 976, 987 (9th Cir. 2017) (constitutional challenge to manner of setting bond). Defendants acknowledge this binding interpretation (Opp. at 23 n.24) but claim it does not apply here because Section 1226(e) can still bar interim release. But the rationales in Demore, Rodriguez, Preap, and Hernandez foreclose that distinction. Those cases construe Section 1226(e) to bar review only over discretionary determinations, not constitutional claims. Defendants’ view would also require this Court to reject both the commonplace practice of Northern District courts releasing immigrant habeas petitioners via temporary restraining orders and the well-settled law that courts—both in habeas and injunctive cases—have authority to issue interim orders to ensure ultimate effective relief.13 See, e.g., Jimenez v. Wolf, No. 19-cv07996-NC, 2020 WL1082648 (N.D. Cal. 2020).
13 To the extent Defendants rely on mandatory detention provisions, none of those statutes contain a “clear statement of congressional intent to repeal habeas jurisdiction.” See St. Cyr, 533 at 298; see also Mapp v. Reno, 241 F.3d 221, 227 (2d Cir. 2001) (“Absent a clear direction from
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Defendants also invoke 8 U.S.C. § 1252(f)(1), which restricts lower courts’ ability to enjoin certain portions of the INA, but concede that binding Ninth Circuit authority holds that § 1252(f)(1) “does not restrict injunctive relief on a class basis” where class members are in removal proceedings and face immediate violation of their rights. (Opp. at 17, n.17 (citing Padilla v. ICE, 953 F.3d 1134, 1151 (9th Cir. 2020).) Defendants claim that the provision of the Proposed PI suspending new entrants to Mesa and Yuba falls outside of Padilla’s holding. But that provision would not enjoin the “operation” of any provision of the INA because it does not prohibit Defendants from detaining people elsewhere. Contrary to Defendants’ implicit contention, detention is not the only way to meet their legitimate objectives. The choice “is not between imprisonment and the [non-citizen] living at large . . . It is between imprisonment and supervision under release conditions that may not be violated.” See Zadvydas v. Davis, 533 U.S. 678, 696 (2001).
Third, Defendants audaciously assert that, even if this Court possesses authority to hear bail applications, Plaintiffs have failed to meet the “extraordinary case” standard. There is no question, however, that conditions are extraordinary given the “significant risk of harm” class members face from their inability to practice social distancing, which remains the only known way to keep someone safe from contracting COVID-19. TRO at 5-6; see also Coronel v. Decker, 2020 WL 1487274 * 9 (S.D.N.Y. Mar. 27, 2020).
Defendants cite United States v. Dade, 2020 WL 2570354 (9th Cir. May 22, 2020), but that case actually supports Petitioners’ claims. There, the Ninth Circuit denied release to a federal prisoner pending an appeal of his motion to vacate his sentence under 28 U.S.C. § 2255. The motions panel held that, as a prerequisite for release pending appeal, Dade had to first establish he met the standards set forth in the Bail Reform Act,18 U.S.C. § 3143(b)—i.e., that he was not likely to flee or pose a danger if released, id. at * 2—which he failed to do. Id. at *5. Dade also stated release is “reserved for extraordinary cases,” id. (citing United States v. Mett, 41 F.3d 128, 1282 (9th Cir. 1995)), but observed COVID-19 is “indeed a special circumstance
Congress, federal judicial power is unaltered, and the authority of the federal courts to admit to bail parties properly within their jurisdiction remains unqualified.”).
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[that could] warrant a change in the conditions of his confinement . . . if those risks are not being adequately addressed.” Had Dade met the standards in the Bail Reform Act, his “asserted risks in prison would be a factor that [the panel] could consider.” Far from supporting Defendants’ assertion that the Ninth Circuit has categorically held that COVID-19 cannot be an “exceptional circumstance,” Dade indicates the opposite.14 IV. CONCLUSION
For all of the above reasons, the Court should enter the Proposed PI.

Dated: May 29, 2020
Bree Bernwanger Hayden Rodarte LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA
Judah Lakin Amalia Wille LAKIN & WILLE LLP
Jordan Wells Stephanie Padilla AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA

Respectfully submitted,
/s/ William S. Freeman William S. Freeman Sean Riordan Angélica Salceda AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA
Manohar Raju Public Defender Matt Gonzalez Chief Attorney Francisco Ugarte Genna Ellis Beier Emilou H. MacLean OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO

Martin S. Schenker Timothy W. Cook Francisco M. Unger COOLEY LLP

Attorneys for Petitioners-Plaintiffs

14 Moreover, Defendants’ logic that the “extraordinary case” standard would be more stringent as applied to immigration detainees, as opposed to criminal detainees seeking post-conviction relief, defies logic. (See Opp. at 25.) As explained by the Ninth Circuit, criminal detainees seeking post-conviction relief “come before the habeas court with a strong—and in the vast majority of cases conclusive—presumption of guilt,” In re Roe, 257 F.3d 1077, 1081 (9th Cir. 2001), while immigration detainees are only detained pursuant to an alleged violation of civil immigration law.
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Case 3:20-cv-02731-VC Document 286-1 Filed 05/29/20 Page 1 of 5

WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org SEAN RIORDAN (SBN 255752) sriordan@aclunc.org ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: (415) 553-9319 Facsimile: (415) 553-9810

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUBI RUIZ TOVAR, LAWRENCE KURIA MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,

CASE NO. 3:20-CV-02731-VC
DECLARATION OF ARNULFO RAMIREZ RAMOS IN SUPPORT OF PETITIONERS-PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Petitioners-Plaintiffs,

v.

DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,

Respondents-Defendants.

CASE NO. 3:20-CV-02731-VC DECLARATION OF ARNULFO RAMIREZ RAMOS IN SUPPORT OF PETITIONERSPLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Case 3:20-cv-02731-VC Document 286-1 Filed 05/29/20 Page 2 of 5

BREE BERNWANGER* (NY SBN 5036397) bbernwanger@lccrsf.org HAYDEN RODARTE (SBN 329432) hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA 131 Steuart St #400 San Francisco, CA 94105 Telephone: (415) 814-7631
JUDAH LAKIN (SBN 307740) judah@lakinwille.com AMALIA WILLE (SBN 293342) amalia@lakinwille.com LAKIN & WILLE LLP 1939 Harrison Street, Suite 420 Oakland, CA 94612 Telephone: (510) 379-9216 Facsimile: (510) 379-9219

MARTIN S. SCHENKER (SBN 109828) mschenker@cooley.com COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111 Telephone: (415) 693-2000 Facsimile: (415) 693-2222
TIMOTHY W. COOK* (Mass. BBO 688688) tcook@cooley.com FRANCISCO M. UNGER* (Mass. BBO 698807) funger@cooley.com COOLEY LLP 500 Boylston Street Boston, MA 02116 Telephone: (617) 937-2300 Facsimile: (617) 937-2400

JORDAN WELLS (SBN 326491) jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568) spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA 1313 West Eighth Street Los Angeles, CA 90017 Telephone: (213) 977-9500 Facsimile: (213) 977-5297

Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice

CASE NO. 3:20-CV-02731-VC DECLARATION OF ARNULFO RAMIREZ RAMOS IN SUPPORT OF PETITIONERSPLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

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DECLARATION OF ARNULFO RAMIREZ RAMOS 1. I make this declaration from my personal knowledge and, if called to testify to these facts, could and would do so competently. I make this declaration in support of the Motion for Preliminary Injunction in Zepeda Rivas, et al. v. Jennings, et al., 20-cv-02731-VC. 2. My full name is Arnulfo Ramirez Ramos. I was born in Guatemala and I am 37 years old. I arrived in the United States in about 2001. My wife is a US Citizen and we have been married for about 11 years, and we have a US Citizen daughter who is about to turn 11 together. I also have two daughters and a son. 3. I have been in detention since November 24, 2018. I was first held by ICE at the Central Arizona Florence Complex, and was transferred to Taft Correctional Facility from May 2019 to March 6, 2020, where I contracted Valley Fever. On March 6, 2020, I was then transferred to Mesa Verde and was there from March 6, 2020 to about March 18, 2020. For a few days, I was in a holding facility that I only know as “El Cono.” On March 21, 2020, I was transferred back to the La Palma Correctional Center in Eloy, Arizona. I was held in La Palma from March 21 until May 25, 2020. 4. At La Palma, a lot of people got sick with the coronavirus. It was around March 26 or 27 that we heard about the first people getting sick, in C Dorm. We were told that all of those people were put into quarantine. I was in A Dorm. But people kept getting sick. We were so scared. We did not want to die in detention because of the coronavirus. 5. We decided to go on hunger strike because we were so scared to get coronavirus and die. But they did not give us any more information and we knew that more people were getting sick. So, on April 11, we refused to go back into our dorms and asked them to tell us what they were going to do to protect us. I was sitting at a table when guards threw tear gas at us, and one canister exploded right next to me. Then, they put me in the hole along with a lot of other detainees. I was in the hole for 30 days as punishment. I was not able to talk with my family during all that time.
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6. About one week after we were put in the hole, the detainee in the cell next to me got really sick. He was taken to the hospital for three or four days, and when he came back to La Palma, he was put back in the hole. During our time out of cells to shower, I asked him what had happened. That is when he told me that he had tested positive for coronavirus. He told me that it was really hard to breathe. He had a bad cough, a fever, and really bad body aches.
7. I was out of the hole again on May 11 and put in A Dorm. There were about 40 people in my housing unit. There were people there that got sick. One person had a bad cough, and he was only given some pills. The truth is that I feel like I was exposed to coronavirus at La Palma. The medics did not pay any attention to us.
8. On May 26, 2020, I was transferred from La Palma to Mesa Verde. When I arrived at Mesa Verde, it was about 5 or 5:30pm. A nurse took my temperature and my blood pressure. That was it. They asked me if I was sick and if I had a fever, cough or body aches. The nurse also asked me if I had COVID 19, and I said I did not think so, but I had never been tested. They did not ask me if I had been exposed to the coronavirus. They asked where I was coming from, and I told them La Palma. It was about 9 or 10 pm when I was given a blanket and assigned my bed in D Dorm. No effort was made to isolate me or segregate me from other detainees in D Dorm.
9. There was another person who came with me on May 26 from La Palma to Mesa Verde. We were together through the whole intake process, and then when officers walked us to our dorms, he was taken to a different dorm than me. I believe he was put in A Dorm.

I, Arnulfo Ramirez Ramos, declare under penalty of perjury that the foregoing is true and correct to the best of my recollection. I sign this from Bakersfield, California.

Date: May 29, 2020

//s// Arnulfo Ramirez Ramos Arnulfo Ramirez Ramos

2 CASE NO. 3:20-CV-02731-VC DECLARATION OF ARNULFO RAMIREZ RAMOS IN SUPPORT OF PETITIONERSPLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

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CERTIFICATE OF TRANSLATION AND AFFIRMATION I, Theodora Simon, certify that I am fluent in Spanish and English and that I am competent to interpret between these languages. I further certify that I have read the foregoing to Arnulfo Ramirez Ramos in Spanish. I further declare that I am competent to render this interpretation and that I would testify to the same under the penalty of perjury if I were called upon to do so.

I further certify that on May 29, 2020 I read the foregoing to Arnulfo Ramirez Ramos and that he affirmed that the foregoing is true and correct. I have not been able to obtain a signature from Arnulfo Ramirez Ramos because the Mesa Verde Detention Center is located approximately five hours away from my home by car, and at the time I reviewed the foregoing declaration with him, the county where I reside was, and remains, under a “shelter in place” order.

Date: May 29, 2020

//s// Theodora Simon Theodora Simon

3 CASE NO. 3:20-CV-02731-VC DECLARATION OF ARNULFO RAMIREZ RAMOS IN SUPPORT OF PETITIONERSPLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

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WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org SEAN RIORDAN (SBN 255752) sriordan@aclunc.org ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: (415) 553-9319 Facsimile: (415) 553-9810

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUBI RUIZ TOVAR, LAWRENCE KURIA MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,
Petitioners-Plaintiffs,

CASE NO. 3:20-CV-02731-VC
DECLARATION OF EMILOU MACLEAN IN SUPPORT OF PETITIONERS-PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

v.

DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,

Respondents-Defendants.

CASE NO. 3:20-CV-02731-VC DECLARATION OF EMILOU MACLEAN IN SUPPORT OF PETITIONERS-PLAINTIFFS’ REPLY IN
SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Case 3:20-cv-02731-VC Document 286-2 Filed 05/29/20 Page 2 of 5

BREE BERNWANGER* (NY SBN 5036397) bbernwanger@lccrsf.org HAYDEN RODARTE (SBN 329432) hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA 131 Steuart St #400 San Francisco, CA 94105 Telephone: (415) 814-7631
JUDAH LAKIN (SBN 307740) judah@lakinwille.com AMALIA WILLE (SBN 293342) amalia@lakinwille.com LAKIN & WILLE LLP 1939 Harrison Street, Suite 420 Oakland, CA 94612 Telephone: (510) 379-9216 Facsimile: (510) 379-9219

MARTIN S. SCHENKER (SBN 109828) mschenker@cooley.com COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111 Telephone: (415) 693-2000 Facsimile: (415) 693-2222
TIMOTHY W. COOK* (Mass. BBO 688688) tcook@cooley.com FRANCISCO M. UNGER* (Mass. BBO 698807) funger@cooley.com COOLEY LLP 500 Boylston Street Boston, MA 02116 Telephone: (617) 937-2300 Facsimile: (617) 937-2400

JORDAN WELLS (SBN 326491) jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568) spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA 1313 West Eighth Street Los Angeles, CA 90017 Telephone: (213) 977-9500 Facsimile: (213) 977-5297

Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice

CASE NO. 3:20-CV-02731-VC DECLARATION OF EMILOU MACLEAN IN SUPPORT OF PETITIONERS-PLAINTIFFS’ REPLY IN
SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Case 3:20-cv-02731-VC Document 286-2 Filed 05/29/20 Page 3 of 5
I, Emilou MacLean, declare as follows: 1. I am an attorney admitted to practice in California. I am a deputy public defender in the
immigration unit of the San Francisco Office of the Public Defender and counsel for PetitionersPlaintiffs in this action. I submit this declaration in support of Petitioners-Plaintiffs’ Reply in Support of Motion for Preliminary Injunction and Opposition to Motion to Dissolve TRO. I have personal knowledge of the facts stated in this declaration. Symptoms of COVID-19 from Medical Records
2. In the course of preparing bail applications in this litigation, I have reviewed dozens of medical records of class members who have been detained at Yuba County Jail and Mesa Verde Detention Center over the last two months. Looking only at medical records produced by Defendants concerning medical visits taking place between March 2020 and the present, I have identified various medical records which include references to CDC-recognized symptoms of COVID-19. The Centers for Disease Control and Prevention (CDC) recognizes as symptoms of COVID-19: “fever or chills, cough, shortness of breath or difficulty breathing, fatigue, muscle or body aches, headache, new loss of taste or smell, sore throat, congestion or runny nose, nausea or vomiting, diarrhea” and further notes that symptoms can range from “mild to severe.”1 The particular medical records are not being produced to protect the confidentiality of the subjects, but they are available for the Court’s in camera review if requested.
3. A number of these records show that class members reported CDC-recognized symptoms of COVID-19. None of the records I reviewed reflected that the class member had been tested for COVID-19. Following are some examples of the records I reviewed.
1 CDC, “Symptoms of Coronavirus,” rev’d May 13, 2020, at https://www.cdc.gov/coronavirus/2019ncov/symptoms-testing/symptoms.html (last visited May 29, 2020).
1 CASE NO. 3:20-CV-02731-VC DECLARATION OF EMILOU MACLEAN IN SUPPORT OF PETITIONERS-PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Case 3:20-cv-02731-VC Document 286-2 Filed 05/29/20 Page 4 of 5
4. One detainee at Mesa Verde reported a sore throat, dry cough, runny nose, and cough on March 30, 2020; cough, headache, body aches, sore throat, chest pain, as well as a history of heart problems on April 8, with the record noting that “Detainees in dorm c similar symptoms”; and on April 28, 2020, reports with “’body aches,’ ‘headache’ and ‘feeling weak.’ Denies cough, fever, chills.”
5. Another detainee at Mesa Verde submitted a medical slip for fever, headaches and sore throat on April 17, 2020 and explicitly asked for a coronavirus test, stating “I don’t know if I have coronavirus can you do a test because I feel sick.” (In Spanish: “No se si tengo coronavirus pueden aserme [sic] un examen porque siento enfermo.”) On April 20, 2020 he was seen by a provider for “sore throat, body aches, and tactile fevers” with a note that “Pt [patient] requesting to have COVID-19 testing.” The medical provider noted that he had no international travel and no interaction with “laboratory-confirmed” cases, and did not conduct a test. The provider notes state that “Pt [patient] …. [d]enied international travel prior to arrest and detention. . . Denied any contacts [with] laboratory-confirmed COVID-19 individuals.”
6. Another detainee at Mesa Verde submitted a medical slip on March 20, 2020, writing that “my chest is heavy as if I don’t have air to breathe.” (In Spanish: “mi pecho pesado como que me falta air para respirar.”) He reported chest congestion and body aches. He was seen on March 23, 2020 for self-reported sore throat, runny nose, headache, “fever” and cough.
7. A detainee at Yuba County Jail reported on March 20, 2020 that she suffered from a cough, sore throat and green phlegm and was provided, among other things, “over the counter medications a. for fever and/or mild pain.”
8. A detainee at Yuba County Jail reported on March 4, 2020 shortness of breath, cough, congestion, body aches and chills.
2 CASE NO. 3:20-CV-02731-VC DECLARATION OF EMILOU MACLEAN IN SUPPORT OF PETITIONERS-PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Case 3:20-cv-02731-VC Document 286-2 Filed 05/29/20 Page 5 of 5
ICE COVID-19 Screening Form
9. Some class members have a “Coronavirus Supplemental Screening” within their medical
records. One class member had such a screening document included in their Mesa Verde medical
records on March 25, 2020 which included two questions and advised that an individual was
“cleared” if they did not have “contact with a person with laboratory-confirmed COVID-19 in
the past 14 days” and did not travel outside the United States. The form inquires:
(1) Have you had close contact with a person with laboratory-confirmed COVID-19 in the past 14 days?
(2) What countries have you traveled from or through in the past 2 weeks?
If YES to Question #1 or patient has relevant travel history in the past 14 days: Does the patient have fever or respiratory illness? If YES to Question #1 or patient has relevant travel history WITHOUT fever or respiratory illness: detainee must be placed in observation for 14 days. Notify the Site Medical Director and IHSC Field Medical Coordinator. A medical hold shall be placed on the detainee as well.
(3) If YES to Question #1 or patient has relevant travel history AND has fever or respiratory illness [certain precautions and notifications must be taken].
(4) If NO to Question #1 AND patient does not have relevant travel history: the patient is cleared for purpose of this screening.
(Emphasis in original.)
Confirmed COVID-19 Cases at La Palma ICE Detention Center
10. On May 29, 2020, I reviewed the ICE webpage tracking “confirmed cases” of COVID-
19, available at https://www.ice.gov/coronavirus. According to ICE’s records, as of May 23,
2020, there were 75 confirmed cases of COVID-19 among the detained population at La Palma
Correctional Facility in Eloy, Arizona.
I declare under penalty of perjury that the foregoing is true and correct. Executed this 29th day of
May 2020 in Berkeley, California.
/s/ Emilou MacLean_______ Emilou MacLean
3 CASE NO. 3:20-CV-02731-VC DECLARATION OF EMILOU MACLEAN IN SUPPORT OF PETITIONERS-PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Case 3:20-cv-02731-VC Document 286-3 Filed 05/29/20 Page 1 of 13

WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org SEAN RIORDAN (SBN 255752) sriordan@aclunc.org ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: 415-553-9319 Fax: 415-553-9810

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUIZ TOVAR, LAWRENCE MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,
Petitioners-Plaintiffs,

CASE NO. 3:20-CV-02731-VC
DECLARATION OF MARTIN S. SCHENKER IN SUPPORT OF PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

v.

DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,

Respondents-Defendants.

COOLEY LLP
ATTORNEYS AT LAW SAN DIEGO

CASE NO. 3:20-CV-02731-VC DECLARATION OF MARTIN S. SCHENKER IN SUPPORT OF PLAINTIFFS’ REPLY
IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Case 3:20-cv-02731-VC Document 286-3 Filed 05/29/20 Page 2 of 13

BREE BERNWANGER* (NY SBN 5036397) bbernwanger@lccrsf.org TIFANEI RESSL-MOYER (SBN 319721) tresslmoyer@lccrsf.org HAYDEN RODARTE (SBN 329432) hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA 131 Steuart St #400 San Francisco, CA 94105 Telephone: (415) 814-7631
JUDAH LAKIN (SBN 307740) judah@lakinwille.com AMALIA WILLE (SBN 293342) amalia@lakinwille.com LAKIN & WILLE LLP 1939 Harrison Street, Suite 420 Oakland, CA 94612 Telephone: (510) 379-9216 Facsimile: (510) 379-9219
JORDAN WELLS (SBN 326491) jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568) spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA 1313 West Eighth Street Los Angeles, CA 90017 Telephone: (213) 977-9500 Facsimile: (213) 977-5297

MARTIN S. SCHENKER (SBN 109828) mschenker@cooley.com COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111 Telephone: (415) 693-2000
Facsimile: (415) 693-2222 TIMOTHY W. COOK (Mass. BBO# 688688) tcook@cooley.com FRANCISCO M. UNGER (Mass. BBO# 698807)* funger@cooley.com COOLEY LLP 500 Boylston Street Boston, MA 02116 Telephone: (617) 937-2300 Facsimile: (617) 937-2400

Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice

COOLEY LLP
ATTORNEYS AT LAW SAN DIEGO

CASE NO. 3:20-CV-02731-VC DECLARATION OF MARTIN S. SCHENKER IN SUPPORT OF PLAINTIFFS’ REPLY
IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Case 3:20-cv-02731-VC Document 286-3 Filed 05/29/20 Page 3 of 13
I, Martin S. Schenker, declare as follows: 1. I am a partner with the law firm of Cooley LLP, co-counsel of record in the above-
captioned matter for named Plaintiffs Angel De Jesus Zepeda Rivas, Brenda Ruiz Tovar, Lawrence Mwaura, Luciano Gonzalo Mendoza Jeronimo, Coraima Yaritza Sanchez Nuñez, Javier Alfaro, Dung Tuan Dang, and the Provisional Class. I have knowledge of the following, and if called as a witness, I could and would testify competently thereto.
2. Attached hereto as Exhibit A is a true and correct copy of an email I received from Shiwon Choe, counsel for the government, on May 19, 2020.
3. Attached hereto as Exhibit B are true and correct copies of emails I received from Jonathan Birch, a Paralegal Specialist in the U.S. Attorney’s Office, on May 27 and May 28, 2020, and a true and correct copy of an email I received on May 29, 2020 from Lucy Rollins, a Legal Assistant in the U.S. Attorney’s Office.
I declare under penalty of perjury that the foregoing is true and correct. Executed this 29th day of May 2020 at San Francisco, California.
/s/ Martin S. Schenker Martin S. Schenker

COOLEY LLP
ATTORNEYS AT LAW SAN DIEGO

1 CASE NO. 3:20-CV-02731-VC DECLARATION OF MARTIN S. SCHENKER IN SUPPORT OF PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Case 3:20-cv-02731-VC Document 286-3 Filed 05/29/20 Page 4 of 13
EXHIBIT A

Case 3:20-cv-02731-VC Document 286-3 Filed 05/29/20 Page 5 of 13

Schenker, Marty

From: Sent: To: Cc: Subject: Attachments:

Choe, Shiwon (USACAN) <Shiwon.Choe@usdoj.gov> Tuesday, May 19, 2020 10:12 AM Schenker, Marty Emilou Maclean; Garbers, Wendy (USACAN); Zack, Adrienne (USACAN) Zepeda Rivas v. Jennings, No. 3:20-cv-02731 2d suppl. objs. and resps. to 1st set of interrogs.pdf; suppl. objs. and resps. to 1st set of interrogs..pdf

[External]
Dear Marty:
In response to your request yesterday for the number of detainees (both ICE and non‐ICE) in each housing unit at Yuba County Jail, please see the below, which reflects the counts as of last night:
A. 5 ICE detainees, 8 non‐ICE detainees B. 14 ICE detainees, 3 non‐ICE detainees C. 20 ICE detainees, 0 non‐ICE detainees D. 0 ICE detainees E. 26 ICE detainees, 2 non‐ICE detainees F. 0 ICE detainees G. 5 ICE detainees, 4 non‐ICE detainees H. 8 ICE detainees, 2 non‐ICE detainees I. 0 ICE detainees J. 2 ICE detainees, 7 non‐ICE detainees K. 5 ICE detainees, 6 non‐ICE detainees L. 3 ICE detainees, 6 non‐ICE detainees N. 0 ICE detainees O. 0 ICE detainees P. 2 ICE detainees, 6 non‐ICE detainees Q. (males) 0 ICE detainees, 1 non‐ICE detainee
(females) 1 ICE detainee, 2 non‐ICE detainees R. 1 ICE detainee, 6 non‐ICE detainees S. 0 ICE detainees T. 1 ICE detainee, 0 non‐ICE detainees
Please also see attached Federal Defendants’ second supplemental responses to Plaintiffs’ first set of interrogatories, which contain updated information regarding the dining halls and meals at Mesa Verde (as discussed at the last case management conference).
Finally, please see attached a new copy of Federal Defendants’ [first] supplemental responses to Plaintiffs’ first set of interrogatories, with a hard‐copy signature from Assistant Field Office Director Dana Fishburn on the verification. The substance of these responses is unchanged. (We are sending out of an abundance of caution to avoid any possible issues regarding Ms. Fishburn’s prior electronic signature, when she did not have access to a scanner.)
Best regards, Shiwon

1

Case 3:20-cv-02731-VC Document 286-3 Filed 05/29/20 Page 6 of 13
Shiwon Choe Assistant United States Attorney Northern District of California 450 Golden Gate Avenue San Francisco, CA 94102 T: (415) 436‐6967 F: (415) 436‐6748 E: shiwon.choe@usdoj.gov
2

Case 3:20-cv-02731-VC Document 286-3 Filed 05/29/20 Page 7 of 13
EXHIBIT B

Case 3:20-cv-02731-VC Document 286-3 Filed 05/29/20 Page 8 of 13

Isela Bravo
From: Sent: To: Cc:
Subject:

Birch, Jonathan (USACAN) <Jonathan.Birch@usdoj.gov> Wednesday, May 27, 2020 4:46 PM 'Jonathan Rosenthal' Bree Bernwanger; Garbers, Wendy (USACAN); Winslow, Sara (USACAN); Choe, Shiwon (USACAN); Sean Riordan; Angelica Salceda; Emilou Maclean; Francisco Ugarte; Genna Beier; Jordan Wells; Judah Lakin; Marty Schenker; Zack, Adrienne (USACAN); Timothy Cook; Bill Freeman; 'Patrick Fuster'; 'Catherine Padhi'; Rollins, Lucy (USACAN) Zepeda Rivas: May 27 releases and May 26 new arrivals

Please find below the names and A‐numbers of the individuals who were released today, those pending release and new arrivals. Yuba County had no arrivals.

Yuba County Jail: A‐Number Last Name
089858601 CARMONA‐BLANCO

First Name ADRIAN

Reason Transferred for removal

208247260 HE

JUNZHEN

215572065 RODRIGUEZ‐MAGANA ERNESTO

PENDING
ERO bond set 5/6/20 and waiting on individual to post bond. 5/5/20: IJ set bond of $10,000.

Mesa Verde releases: A‐Number Last Name
036898625 ARELLANO‐CORONA
043651696 OCHOA
092029322 PEREZ‐HERRERA 093143212 HERNANDEZ CISNEROS

First Name SALVADOR DANIEL OMAR Jose ROBERTO

Reason for Release Released for removal Released for removal Released for removal Released for removal

205491234 DIKSHAT

DIKSHAT

PENDING
IJ bond of $20K lowered to $10K, because individual previously breached conditions of $9K bond. Waiting on individual to pay bond.

Mesa Verde arrivals: A‐Number Last Name 087594358 RAMIREZ‐RAMOS 088717741 LUCAS‐PEDRO 092029322 PEREZ‐HERRERA 215563561 DELACRUZ
Jon Birch Paralegal Specialist

First Name
ARNULFO DOMINGO Jose MARIO

Age Sex
37 M 35 M 40 M 32 M

Book‐In Date
05/26/2020 05/26/2020 05/26/2020 05/26/2020

1

Case 3:20-cv-02731-VC Document 286-3 Filed 05/29/20 Page 9 of 13
U.S. Attorney’s Office, NDCA 450 Golden Gate Ave San Francisco, CA 94102 (415) 436‐7422
2

Case 3:20-cv-02731-VC Document 286-3 Filed 05/29/20 Page 10 of 13

Isela Bravo
From: Sent: To: Cc:
Subject:

Birch, Jonathan (USACAN) <Jonathan.Birch@usdoj.gov> Thursday, May 28, 2020 4:47 PM 'Jonathan Rosenthal' Bree Bernwanger; Garbers, Wendy (USACAN); Winslow, Sara (USACAN); Choe, Shiwon (USACAN); Sean Riordan; Angelica Salceda; Emilou Maclean; Francisco Ugarte; Genna Beier; Jordan Wells; Judah Lakin; Marty Schenker; Zack, Adrienne (USACAN); Timothy Cook; Bill Freeman; 'Patrick Fuster'; 'Catherine Padhi'; Rollins, Lucy (USACAN) Zepeda Rivas: May 28 releases and May 27 new arrivals

Please find below the names and A‐numbers of the individuals who were released today, those pending release and new arrivals. Yuba County had no arrivals.

Yuba County Jail: A‐Number Last Name
094810453 TOVAR‐REYES

First Name Reason

RENE

District Court ordered release

208247260 HE 215572065 RODRIGUEZ‐MAGANA

PENDING
JUNZHEN ERO bond set 5/6/20 and waiting on individual to post bond.
ERNESTO 5/5/20: IJ set bond of $10,000.

Mesa Verde releases: A‐Number Last Name 215562512 CABRERA‐ARVIZO
204619354 DOMINGUEZ CANDELARIA 073507320 GRANT 098649201 MONTOYA‐AMAYA
208559623 RODRIGUEZ NUNEZ

First Name SALVADOR FELIX DONOVAN MARCO LEOBARDO

Reason for Release District Court ordered release District Court ordered release District Court ordered release District Court ordered release District Court ordered release

205491234 DIKSHAT

PENDING

DIKSHAT

IJ bond of $20K lowered to $10K, because individual previously breached conditions of $9K bond. Waiting on individual to pay bond.

Mesa Verde arrivals: A‐Number Last Name

094375069 204907133 041402446 205714544 215563549 047924807

Gaspar‐machado Corrales Olea Velazquez‐medina Morales‐sanchez Labastida Edmondson

First Name Age Sex Book‐In Date

Aaron

44 M 05/27/2020

Paulo

22 M 05/27/2020

Manuel

38 M 05/27/2020

Henry

43 M 05/27/2020

Alexander 27 M 05/27/2020

Alton

39 M 05/27/2020

1

Case 3:20-cv-02731-VC Document 286-3 Filed 05/29/20 Page 11 of 13

208559954 Narvaez

Pedro

25 M 05/27/2020

Jon Birch Paralegal Specialist U.S. Attorney’s Office, NDCA 450 Golden Gate Ave San Francisco, CA 94102 (415) 436‐7422

2

Case 3:20-cv-02731-VC Document 286-3 Filed 05/29/20 Page 12 of 13

Tara Coughlin

From: Sent: To: Cc:
Subject:

Rollins, Lucy (USACAN) <Lucy.Rollins@usdoj.gov> Friday, May 29, 2020 4:31 PM 'Jonathan Rosenthal' Bree Bernwanger; Garbers, Wendy (USACAN); Winslow, Sara (USACAN); Choe, Shiwon (USACAN); Sean Riordan; Angelica Salceda; Emilou Maclean; Francisco Ugarte; Genna Beier; Jordan Wells; Judah Lakin; Marty Schenker; Zack, Adrienne (USACAN); Timothy Cook; Bill Freeman; 'Patrick Fuster'; 'Catherine Padhi'; Birch, Jonathan (USACAN) Zepeda Rivas: May 29 releases and May 28 new arrivals

[External]

Please find below the names and A‐numbers of the individuals who were released today, those pending release and new arrivals. Yuba County had no arrivals.

Yuba County Jail releases:

A‐Number

Last Name

093379310

KAKANDE

027322079

KEO

Yuba County Pending:

208247260

HE

215572065

RODRIGUEZ‐MAGANA

First Name ALI KETHIKOUN

Reason District Court ordered release District Court ordered release

JUNZHEN ERNESTO

ERO bond set 5/6/20 and waiting on individual to post bond. 5/5/20: IJ set bond of $10,000.

Mesa Verde releases: A‐Number

Last Name

200242307 BASORTA‐ZAMORA 061312537 BRAVO ZAMBRANO 213001086 FRANCO PAZ 201945253 JOCOP‐PIRIR 200149687 LOPEZ‐HERNANDEZ 088449711 Mendez‐roeda 046609108 NORIEGA‐VALENZUELA 073886461 NUNEZ SALGADO 206876352 Pliego‐cayetano Mesa Verde Pending:

205491234 DIKSHAT

Mesa Verde arrivals:

First Name
JOSE JUAN CARLOS JUAN DOMINGO SENOBIO Miguel ANGEL ELEAZAR ARMANDO Adrian
DIKSHAT
1

Reason for Release
District Court ordered release District Court ordered release District Court ordered release District Court ordered release District Court ordered release
Released for removal Released for removal District Court ordered release Released for removal
IJ bond of $20K lowered to $10K, because individua previously absconded on $9K bond. Waiting on individual to pay bond.

Case 3:20-cv-02731-VC Document 286-3 Filed 05/29/20 Page 13 of 13

A‐Number
097352876 079357359 088449711 206876352 070956887

Last Name
Chung Garcia Mendez‐roeda Pliego‐cayetano Ramirez

First Name
Yong Joo Demetrio Miguel Adrian Arnoldo

Book‐In Date
05/28/2020 05/28/2020 05/28/2020 05/28/2020 05/28/2020

Lucy Rollins Legal Assistant U.S. Attorney’s Office 450 Golden Gate Ave San Francisco, CA 94102

2

 
 Case 3:20-cv-02731-VC Document 290 Filed 06/01/20 Page 1 of 16

DAVID L. ANDERSON (CABN 149604) United States Attorney
SARA WINSLOW (DCBN 457643) Chief, Civil Division
WENDY M. GARBERS (CABN 213208) ADRIENNE ZACK (CABN 291629) SHIWON CHOE (CABN 320041) Assistant United States Attorneys
450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Telephone: (415) 436-6967 Facsimile: (415) 436-6748 wendy.garbers@usdoj.gov adrienne.zack@usdoj.gov shiwon.choe@usdoj.gov
Attorneys for Federal Defendants
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, et al., Plaintiffs,
v. DAVID JENNINGS, et al.,
Defendants.

) CASE NO. 3:20-cv-02731-VC ) ) FEDERAL DEFENDANTS’ REPLY IN ) SUPPORT OF MOTION FOR ORDER ) CONFIRMING THAT TEMPORARY ) RESTRAINING ORDER HAS EXPIRED, ) ENDING BAIL PROCESS, AND VACATING ) BAIL ORDERS AND OBJECTION TO ) PLAINTIFFS’ DECLARATION ) ) Date: June 2, 2020 ) Time: 10:00 a.m.

DEFS.’ REPLY ISO MOT. FOR ORDER CONFIRMING T.R.O. EXPIRED AND ENDING BAIL & OBJ. TO PL. DECL. No. 3:20-cv-02731-VC

Case 3:20-cv-02731-VC Document 290 Filed 06/01/20 Page 2 of 16
TABLE OF CONTENTS INTRODUCTION .......................................................................................................................................1 ARGUMENT ...............................................................................................................................................1 I. Plaintiffs Wholly Ignore the En Banc Ninth Circuit’s Holding That Conditions-of-
Confinement Cases (Like This Case) Are Not Cognizable in Habeas, and That Courts Do Not Have the Authority to Order Release on Bail in a Non-Habeas Case.................................1 II. No Statute Authorizes Release on Bail Here, and the Statutory INA Prohibits It...........................2 III. This Case Does Not Satisfy the “Extraordinary Case” Standard, and a District Court “Clearly Errs” If It Orders Release Outside of the Context of an “Extraordinary Case” ................4 A. Plaintiffs Have Not Established a High Probability of Success on the Merits ....................5 B. Plaintiffs Have Not Established Special Circumstances......................................................9 IV. Federal Defendants Object to Plaintiffs’ Declaration ....................................................................10 CONCLUSION ..........................................................................................................................................10

DEFS.’ REPLY ISO MOT. FOR ORDER CONFIRMING T.R.O. EXPIRED AND ENDING BAIL & OBJ. TO PL. DECL.

No. 3:20-cv-02731-VC

i

Case 3:20-cv-02731-VC Document 290 Filed 06/01/20 Page 3 of 16

TABLE OF AUTHORITIES

Page(s)
Cases
Albino-Martinez v. Adducci, No. 2:20-cv-10893, 2020 U.S. Dist. LEXIS 65618 (E.D. Mich. Apr. 14, 2020) ................................... 7
Aslanturk v. Hott, No. 1:20-cv-00433 (RDA-JFA), 2020 U.S. Dist. LEXIS 85545 (E.D. Va. May 8, 2020)..................... 7
Benavides v. Gartland, No. 5:20-cv-46, 2020 U.S. Dist. LEXIS 69182 (S.D. Ga. Apr. 18, 2020) ............................................. 7
Betancourt Barco v. Price, No. 2:20-cv-350-WJ-CG, 2020 U.S. Dist. LEXIS 78564 (D.N.M. May 1, 2020) ................................. 7
Bolante v. Keisler, 506 F.3d 618 (7th Cir. 2007) .............................................................................................................. 2–4
Brown v. Plata, 563 U.S. 493 (2011)................................................................................................................................ 2
Chin Wah v. Colwell, 187 F. 592 (9th Cir. 1911) ............................................................................................................ 2, 3, 10
Cinquemani v. Ashcroft, No. 00-CV-1460 (RJD), 2001 WL 939664 (E.D.N.Y. Aug. 16, 2001).................................................. 4
Close v. Sotheby’s, Inc., 894 F.3d 1061 (9th Cir. 2018) ................................................................................................................ 1
Coal. of Clergy, Lawyers & Professors v. Bush, 310 F.3d 1153 (9th Cir. 2002) ................................................................................................................ 2
Crawford v. Bell, 599 F.2d 890 (9th Cir. 1979) .................................................................................................................. 2
Dawson v. Asher, No. C20-0409JLR-MAT, 2020 WL 1304557 (W.D. Wash. Mar. 19, 2020) (Dawson I) .................. 7, 9
Dawson v. Asher, No. C20-0409JLR-MAT, 2020 WL 1704324 (W.D. Wash. Apr. 8, 2020) (Dawson II) ....................... 7
Ex parte Perkov, 45 F. Supp. 864 (S.D. Cal. 1942)............................................................................................................ 3
Hall v. S.F. Super. Ct., No. C 09-5299 PJH, 2010 WL 890044 (N.D. Cal. Mar. 8, 2010) .......................................................... 5
Helling v. McKinney, 509 U.S. 25 (1993).................................................................................................................................. 9

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Hernandez Roman v. Wolf, No. 20-55436, 2020 WL 2188048 (9th Cir. May 5, 2020) ................................................................... 10
Hope v. Warden York Cty. Prison, 956 F.3d 156 (3d Cir. 2020).................................................................................................................. 10
In re Hanoff, 39 F. Supp. 169 (N.D. Cal. 1941) ........................................................................................................... 3
Mapp v. Reno, 241 F.3d 221 (2d Cir. 2001)........................................................................................................... passim
Moturi v. Asher, No. C19-2023 RSM-BAT, 2020 WL 2084915 (W.D. Wash. Apr. 30, 2020) ........................................ 8
Murai v. Adducci, No. 20-10186, 2020 WL 2526031 (E.D. Mich. May 18, 2020) ......................................................... 6–7
Nettles v. Grounds, 830 F.3d 922 (9th Cir. 2016) (en banc) ......................................................................................... passim
Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 631 (9th Cir. 2015) .................................................................................................................. 2
Ramirez v. Culley, No. 2:20-cv-00609-JAD-VCF, 2020 WL 1821305 (D. Nev. Apr. 9, 2020)........................................... 7
Ramirez v. Galaza, 334 F.3d 850 (9th Cir. 2003) .................................................................................................................. 2
Reebok Int’l, Ltd. v. Marantech Enters., Inc., 970 F.2d 552 (9th Cir. 1992) .................................................................................................................. 2
Rodriguez Alcantara v. Archambeault, __ F. Supp. 3d __, No. 20cv0756 DMS (AHG), 2020 WL 2315777 (S.D. Cal. May 1, 2020) (Rodriguez Alcantara I) ................................................... 6
Rodriguez Alcantara v. Archambeault, __ F. Supp. 3d __, No. 20cv0567 DMS (AHG), 2020 WL 2773765 (S.D. Cal. May 26, 2020) (Rodriguez Alcantara II) ........................................ 5–6, 8
Roe v. U.S. Dist. Ct. (In re Roe), 257 F.3d 1077 (9th Cir. 2001) ....................................................................................................... passim
Sacal-Micha v. Longoria, __ F. Supp. 3d __, No. 1:20-CV-37 2020 WL 1518861 (S.D. Tex. Mar. 27, 2020).................................................................................... 5, 7
Samson v. NAMA Holdings, LLC, 637 F.3d 915 (9th Cir. 2011) .................................................................................................................. 2
South Bay United Pentecostal Church v. Newsom, __ U.S. __, No. 19A1044, 2020 WL 2813056 (U.S. May 29, 2020) ................................................................................................ 9

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Thakker v. Doll, __ F. Supp. 3d __, No. 1:20-cv-480, 2020 WL 2025384 (M.D. Pa. Apr. 27, 2020) ..................................................................................... 7–9
Toure v. Hott, __ F. Supp. 3d __, No. 1:20-cv-395, 2020 WL 2092639 (E.D. Va. Apr. 29, 2020) ......................................................................................... 7
Ulger v. Barr, No. 20-CV-2952-LTS, 2020 WL 2061473 (S.D.N.Y. Apr. 29, 2020) ................................................... 7
United States v. Dade, __ F.3d __, No. 19-35172, 2020 WL 2570354 (9th Cir. May 22, 2020) ....................................................................................... 5, 9
Williams v. Barr, No. 4:20-CV-00704, 2020 U.S. Dist. LEXIS 79524 (M.D. Pa. May 6, 2020)....................................... 7
Williams v. Wilson, __ U.S. __, No. 19A1041, 2020 WL 2644305 (U.S. May 26, 2020) .............................................................................................. 10
Zepeda Rivas v. Jennings, __ F. Supp. 3d __, No. 20-cv-02731-VC, 2020 WL 2059848 (N.D. Cal. Apr. 29, 2020) ........................................................................................ 1
Ziglar v. Abbasi, 137 S. Ct 1843 (2017) ............................................................................................................................. 1

Statutes 8 U.S.C. § 1225........................................................................................................................................... 3 8 U.S.C. § 1226........................................................................................................................................... 3 8 U.S.C. § 1252........................................................................................................................................... 3 18 U.S.C. § 3626......................................................................................................................................... 2 28 U.S.C. § 2241......................................................................................................................................... 3

Other Authorities
Ctrs. for Disease Control and Prevention, People Who Are At Higher Risk (May 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html........ 6
Ctrs. for Disease Control and Prevention, Evaluating and Testing Persons for Coronavirus Diseas 2019 (COVID-19) (May 5, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-criteria.html ................................................ 8

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INTRODUCTION “At root, this lawsuit is not about whether any particular person should be released; it is about the conditions of confinement at the facilities.” Zepeda Rivas v. Jennings, __ F. Supp. 3d __, No. 20-cv02731-VC, 2020 WL 2059848, at *1 (N.D. Cal. Apr. 29, 2020). The en banc Ninth Circuit has held that challenges to conditions of confinement are not cognizable in habeas. Nettles v. Grounds, 830 F.3d 922, 933 (9th Cir. 2016) (en banc). Plaintiffs ignore the en banc Ninth Circuit altogether, not citing Nettles once in their filings. But Plaintiffs cannot erase Nettles, transform this case into a habeas case, or alter the fact that the Court does not have authority to order class members release on bail under “inherent authority.” Plaintiffs’ arguments to the contrary fail. Not only does no statute allow for a court to order immigration detainees released on bail in a pending litigation, the statutory Immigration and Nationality Act (INA) prohibits such release. And even assuming Plaintiffs could wish away Congress’s statutes, the mass-bail process cannot be reconciled with Ninth Circuit precedent, which has (1) never recognized a court’s authority to order release on bail in a pending civil litigation in any context and (2) held that a court “clearly err[s]” if orders bail outside of the context of an “extraordinary case.” Roe v. U.S. Dist. Ct. (In re Roe), 257 F.3d 1077, 1080 (9th Cir. 2001).
ARGUMENT I. Plaintiffs Wholly Ignore the En Banc Ninth Circuit’s Holding That Conditions-of-
Confinement Cases (Like This Case) Are Not Cognizable in Habeas, and That Courts Do Not Have the Authority to Order Release on Bail in a Non-Habeas Case The en banc Ninth Circuit was clear: detainees “may not challenge mere conditions of confinement in habeas corpus.” Nettles, 830 F.3d at 933. Plaintiffs pretend that this en banc precedent does not exist, not citing it once in either their opening brief or their reply. But it does exist, and it is controlling.1 This conditions-of-confinement case is not cognizable in habeas.2

1 Plaintiffs claim that the Supreme Court suggested that detainees may challenge conditions of confinement through habeas. Pls. Reply 10 (citing Ziglar v. Abbasi, 137 S. Ct 1843, 1863 (2017)). The Supreme Court did not so hold. Ziglar, 137 S. Ct at 1862–63 (“[T]he Court need not determine the scope of availability of the habeas corpus remedy, a question that is not before the Court and has not been briefed or argued.”). Nettles’s holding that conditions-of-confinement cases are not cognizable in habeas remains binding. See Close v. Sotheby’s, Inc., 894 F.3d 1061, 1072–73 (9th Cir. 2018) (precedent remains binding unless it is “clearly irreconcilable” with intervening authority).

2 Plaintiffs claim that habeas jurisdiction exists here because there is a link between their claims and the “prospect of release” generally. Pls. Reply 10. What Plaintiffs overlook is that a detainee cannot bring a habeas claim seeking other detainees’ release; he can bring a habeas claim (if at all) only for his own

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In a conditions-of-confinement case, even one that alleges “constitutional violations,” release from confinement is not an appropriate remedy, even were a plaintiff to win a final judgment. Crawford v. Bell, 599 F.2d 890, 892 (9th Cir. 1979). And a court may not order a remedy, such as release, on a preliminary basis that it cannot order in a final judgment. Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 631, 636 (9th Cir. 2015) (unless preliminary relief is “of the same character as that which may be granted finally. . . . the district court lacks authority to grant the relief requested”) (citation omitted); accord Reebok Int’l, Ltd. v. Marantech Enters., Inc., 970 F.2d 552, 560 (9th Cir. 1992) (cited by Pl. Reply 11) (“the authority to issue a preliminary injunction rests upon the authority to give final relief”); see also, e.g., Bolante v. Keisler, 506 F.3d 618, 620 (7th Cir. 2007) (assuming inherent authority to grant release in a pending litigation exists at all, it arises only incident to the habeas power to order release as final relief); Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001) (tying release on bail to “the habeas remedy”). The Court thus cannot grant preliminary release on bail here.
Plaintiffs claim that Brown v. Plata, 563 U.S. 493 (2011) supports their theory that courts have some freestanding power to order detainees released to remedy constitutional violations. Pls. Reply 11. Not so. Brown involved a statutory provision that allowed release as a remedy (and then only when ordered by a three-judge panel). 18 U.S.C. § 3626(a)(3)(B), (E); see Fed. Defs. Cross-Mot. 19–20 n.21. Neither Brown nor any of Plaintiffs’ other authorities support that a court has general freestanding authority, absent a statute, to order the release of detainees on bail in a pending litigation simply because the detainees may allege a constitutional claim. Cf. Roe, 257 F.3d at 1080 (“[T]he seriousness of the constitutional violations [detainee] alleges in his complaint does not justify [his] release on bail.”). II. No Statute Authorizes Release on Bail Here, and the Statutory INA Prohibits It
The Ninth Circuit held in Chin Wah v. Colwell, 187 F. 592 (9th Cir. 1911) that courts do not

release. Ramirez v. Galaza, 334 F.3d 850, 854 (9th Cir. 2003) (“habeas jurisdiction is absent . . . where a successful challenge to a prison condition will not necessarily shorten the prisoner’s sentence”); cf. Coal. of Clergy, Lawyers & Professors v. Bush, 310 F.3d 1153, 1159–60 (9th Cir. 2002) (setting out requirements for third-party habeas claim, none of which are met here). Plaintiffs disclaimed that they were seeking their own release in their pursuit of class certification, in an attempt to avoid the insuperable conflicts that would arise if each class member was seeking his own release. See Fed. Defs. Cross-Mot. 21 & n.23. Plaintiffs are judicially estopped from claiming that they are seeking their own release and, thus, from claiming that there is habeas jurisdiction. See Samson v. NAMA Holdings, LLC, 637 F.3d 915, 935 (9th Cir. 2011) (discussing judicial estoppel). Whether in a class action or individual actions, conditions-of-confinement cases are not cognizable in habeas. Nettles, 830 F.3d at 933.

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have inherent authority to release immigration detainees on bail absent a statute authorizing them to do so. Id. at 594. Courts uniformly confirm that under Chin Wah, “there is no such inherent power in the federal courts and that they cannot admit a person to bail unless such power is expressly conferred by statute.” Mapp, 241 F.3d at 225 (citing Chin Wah, 187 F. 592); accord Ex parte Perkov, 45 F. Supp. 864, 866–67 (S.D. Cal. 1942) (citing Chin Wah, 187 F. at 594); In re Hanoff, 39 F. Supp. 169, 172 (N.D. Cal. 1941) (citing Chin Wah, 187 F. at 594). No such statute exists here.
Plaintiffs cite the general habeas statute, 28 U.S.C. § 2241, Pls. Reply 12–13, but this does not authorize the Court to order release on bail. First, as discussed above, this case is not a proper habeas case, and hence § 2241 does not apply. Nettles, 830 F.3d at 933. Second, nothing in § 2241 authorizes a court to order release on bail in a pending litigation. Courts uniformly agree that any inherent authority that might exist to order release on bail is merely a common-law power, and none cite § 2241 as providing a statutory basis. See Bolante, 506 F.3d at 620 (ordering detainees released on bail “is an exercise of a court’s common law powers”); Mapp, 241 F.3d at 225 (same).
In any event, not only does no statute authorize release on bail here, the applicable statute — the INA — prohibits it. The INA provides that certain aliens are subject to mandatory detention, 8 U.S.C. §§ 1225(b), 1226(c), 1231(a)(2), and that ICE is vested with discretion regarding the detention of certain other aliens, 8 U.S.C. §§ 1226(a), 1231(a)(6), which courts cannot set aside, 8 U.S.C. § 1226(e). Bolante and other courts confirm that the statutory INA bars a court from ordering an alien who is detained pursuant to these provisions to be released on bail. See Fed. Defs. Cross-Mot. 22–23 (citing cases).
Plaintiffs suggest that Mapp holds that these INA detention provisions do not limit the authority of courts to order release on bail. Pls. Reply 13–14 n.13. They misread Mapp. The critical fact about Mapp is that none of the INA detention provisions applied there. The petitioner there had received an order of removal from an immigration judge (IJ) that was affirmed by the Board of Immigration Appeals (BIA), and subsequently filed a habeas petition. Mapp, 241 F.3d at 223–24.3 The government originally detained him pursuant to § 1226(c), which provides for mandatory detention of certain aliens who have

3 This took place before the enactment of the REAL ID Act, which now provides that the sole and exclusive means for judicial review of an order of removal is through a petition for review with a Court of Appeals, and not a habeas petition in district court. 8 U.S.C. § 1252(a)(5).

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committed certain crimes. Id. The government later took the position, however, that § 1226(c) applies only while administrative proceedings remain pending. Id. Because the petitioner’s administrative proceedings (before the IJ and the BIA) were completed, § 1226(c) no longer applied. Id. The government might have been able to detain the petitioner under § 1231(a)(6). Id.4 But the government had never exercised its discretion to detain him under § 1231(a)(6), because it had been operating under the assumption that § 1226(c) governed his detention. Id. at 229 n.12. As a result, none of the INA statutory detention provisions applied — which allowed the Second Circuit to hold, in the absence of any controlling INA detention statute, that a court had inherent authority to grant bail. See id. at 228–29. But see Roe, 257 F.3d at 1080 (the Ninth Circuit not agreeing with Mapp that courts do in fact have such authority). Critically, the Second Circuit held that “had the [government] exercised its discretion under § 1231(a)(6) and decided not to release Mapp on bail, we would be required to defer to its decision[.]” Mapp, 241 F.3d at 229 n.12. Mapp thus confirms that where an alien is validly detained pursuant to the INA’s statutory detention provisions, a court cannot supersede the statute and order the alien released on bail. Id.; see Cinquemani v. Ashcroft, No. 00-CV-1460 (RJD), 2001 WL 939664, at *7–8 (E.D.N.Y. Aug. 16, 2001) (applying Mapp and denying bail because where “the Attorney General has exercised its discretion and has determined to keep [detainee] in custody. . . . this Court would be required to defer to its decision.”) (emphasis in original). Here, like in Bolante and Cinquemani and unlike in Mapp, the statutory INA detention provisions apply, and the Court thus is barred from ordering class members released on bail, whom Congress by statute has provided to be detained. Bolante, 506 F.3d at 620–21.5 III. This Case Does Not Satisfy the “Extraordinary Case” Standard, and a District Court
“Clearly Errs” If It Orders Release Outside of the Context of an “Extraordinary Case” While the Ninth Circuit has never agreed that district courts have authority to order any releases

4 Aliens with final orders of removal are subject to mandatory detention for a 90-day removal period, § 1231(a)(2), after which they are subject to discretionary detention, § 1231(a)(6).
5 Plaintiffs allude to the Suspension Clause. Pls. Reply 12 n.11, 13 n.13. This argument is inapposite. First, as discussed above, this case is not a proper habeas case, and hence the Suspension Clause does not apply. Nettles, 830 F.3d at 933. Second, Plaintiffs confuse two separate issues: a court’s power to hear a case versus the power to grant bail while litigation in that case remains ongoing. The latter is not a constitutional power. The Ninth Circuit has expressed doubt whether such a power exists at all, Roe, 257 F.3d at 1080, and if it does exist, it is at most a common-law power, not a constitutional one, Bolante, 506 F.3d at 620.

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in a pending litigation in any context, it does agree that a district court “clearly err[s]” if it orders release on bail outside of the context of an “extraordinary case.” Roe, 257 F.3d at 1080. The “extraordinary case” standard requires a demonstration that the case involves “a high probability of success” on the merits and, additionally, “special circumstances.” United States v. Dade, __ F.3d __, No. 19-35172, 2020 WL 2570354, at *2 (9th Cir. May 22, 2020).6 “[T]he standard for bail pending habeas litigation is a difficult one to meet,” Mapp, 241 F.3d at 226 — and that heavy burden falls on the bail applicant to establish that his is an “extraordinary case,” not on the government to rebut it, id. (“The petitioner must demonstrate that the habeas petition raises substantial claims and that extraordinary circumstances exist that make the grant of bail necessary to make the habeas remedy effective.”) (emphasis added, brackets omitted). Plaintiffs and the individual bail applicants have not established a high probability of success on the merits or special circumstances, and hence the Court lacks authority to order their release on bail.
A. Plaintiffs Have Not Established a High Probability of Success on the Merits The Southern District of California recently denied a preliminary injunction in connection with an immigration detention center with numerous confirmed COVID-19 cases, holding that the plaintiffs there had not demonstrated a likelihood of success on the merits. Rodriguez Alcantara v. Archambeault, __ F. Supp. 3d __, No. 20cv0567 DMS (AHG), 2020 WL 2773765 (S.D. Cal. May 26, 2020) (Rodriguez Alcantara II). That case is instructive and reconfirms that Plaintiffs have not shown a high probability of success on the merits here. The immigration detention facility there, the Otay Mesa Detention Center (OMDC), has a maximum capacity of 1,970. Id. at *1. As of May 22, 2020, OMDC had reduced its population to 758 (489 immigration detainees and 269 criminal detainees), down from 987 three weeks earlier when the court had issued a temporary restraining order (TRO). Id. OMDC has 160 confirmed COVID-19 cases, the most of any immigration detention facility in the nation. Id. at *2. But OMDC had instituted a number of new practices to address the spread of COVID-19, and the rate of infection at the facility was

6 Roe described the “extraordinary case” standard using a disjunctive — “special circumstances or a high probability of success” — but as the Ninth Circuit confirmed, the test is a conjunctive test, requiring both special circumstances and a high probability of success on the merits. Dade, __ F.3d __, 2020 WL 2570354, at *2; accord, e.g., Hall v. S.F. Super. Ct., No. C 09-5299 PJH, 2010 WL 890044, at *3 (N.D. Cal. Mar. 8, 2010) (citing cases).

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decreasing. Id. The court found that, in light of those facts, the plaintiffs had not demonstrated a likelihood of success on the merits of their due-process claim based on their conditions of confinement at OMDC. Id. at *3. First, the majority (although not all) of the subclass at issue were in housing units with no positive COVID-19 cases. Id. Second, the subclass had “demonstrated criminal history, much of it significant,” raising the government’s interest in maintaining detention. Id. Third, the defendants had provided a list of medically vulnerable immigration detainees at OMDC, as determined by CDC’s list of risk factors (CDC Risk Factors),7 and had identified their locations. Id.8 While the court had found at the TRO stage that the plaintiffs had a likelihood of success on the merits, at the preliminary-injunction stage, it reversed course and found that the plaintiffs did not have a likelihood of success on the merits:
Given the reduction in the population and the current housing situation at OMDC, the policies and procedures instituted at OMDC to address COVID-19, and Defendants’ acquisition and use of information concerning medically vulnerable individuals at OMDC, the Court finds Plaintiffs have not demonstrated a likelihood of success on their due process claim. Id. at *4. Like the plaintiffs there, Plaintiffs here have not shown a likelihood of success on the merits of their claims here, let alone the high probability of success needed to make this an “extraordinary case.” In contrast to ODMC’s 160 confirmed COVID-19 cases, there are no confirmed cases here; like the subclass there, much of the class here has demonstrated criminal history, and the government has an interest in maintaining detention; and like there, ICE has provided lists here (on a weekly basis) identifying detainees who have health conditions identified in the CDC Risk Factors.9

7 Ctrs. for Disease Control and Prevention, People Who Are At Higher Risk (May 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html (last visited June 1, 2020).

8 The court defined “medically vulnerable” detainees as detainees age 60 or over or who have medical conditions that place them at heightened risk of severe illness or death from COVID-19 as determined by [the CDC Risk Factors].” Rodriguez Alcantara v. Archambeault, __ F. Supp. 3d __, No. 20cv0756 DMS (AHG), 2020 WL 2315777, at *6–7 (S.D. Cal. May 1, 2020) (Rodriguez Alcantara I).

9 Alcantara Rodriguez joins numerous other courts that have rejected claims by plaintiffs that they have shown a likelihood of success on the merits of due-process claims related to COVID-19 where the government has taken measures to safeguard against COVID-19 (including courts that found at the TRO stage that plaintiffs had a likelihood of success on the merits and then determined at the preliminaryinjunction stage that in fact plaintiffs did not in fact have a likelihood of success on the merits). See, e.g., Murai v. Adducci, No. 20-10186, 2020 WL 2526031, at *6–7 (E.D. Mich. May 18, 2020) (recognizing “inherent limitations in mandating widespread ‘social distancing’ while detaining hundreds of inmates” and holding that screening new arrivals, taking their temperature, asking them about COVID-19 history,

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Plaintiffs rely heavily on their experts to claim that there is an “overwhelming likelihood of a future outbreak.” Pls. Reply 2. But these assertions are conclusory and belied by the facts on the ground. At the TRO stage, Plaintiffs made similar conclusory assertions that did not come to pass. For example, their chief expert, Dr. Greifinger, attested at the TRO stage that “[s]ocial distancing and scrupulous hygiene and sanitation are required to avoid infection or an outbreak. If there is inadequate social distancing, hygiene and sanitation, there will almost certainly be infection and an outbreak.” Greifinger Original Decl. ¶ 31 (ECF No. 5-2). Over a month has passed, and no such infection or outbreak occurred despite the certainty of Dr. Greifinger’s prediction. Plaintiffs’ new expert declarations that there is an “overwhelming likelihood of a future outbreak” are similarly conclusory. When the World Health Organization first declared COVID-19 to be a global pandemic on March 11, 2020, there were 355 detainees at Mesa Verde (89% capacity) and 169 ICE detainees at Yuba (80% capacity). Now, ICE has reduced the population both Facilities by over 50% and has implemented many additional new measures and safeguards.10 Plaintiffs and their experts do not reconcile the fact that their “tinderbox” scenario did

restricting movement of detainees exposed to COVID-19, suspending social visits, and providing cleaning supplies to detainees, were reasonable measures, and denying detainee’s due-process claim); Aslanturk v. Hott, No. 1:20-cv-00433 (RDA-JFA), 2020 U.S. Dist. LEXIS 85545, at *10–14, *30–34, *37–39 (E.D. Va. May 8, 2020) (generally same); Williams v. Barr, No. 4:20-CV-00704, 2020 U.S. Dist. LEXIS 79524, at *5–8, *12–16, *18–20 (M.D. Pa. May 6, 2020) (generally same, and finding that “although [detention facility] does not permit the type of social distancing that individuals may undertake in their homes,” facility had taken steps to reduce population to 53% capacity, and holding that detainee did not state a valid due-process violation); Betancourt Barco v. Price, No. 2:20-cv-350WJ-CG, 2020 U.S. Dist. LEXIS 78564, at *12–14, *24–27 (D.N.M. May 1, 2020) (generally same); Toure v. Hott, __ F. Supp. 3d __, No. 1:20-cv-395, 2020 WL 2092639, at *2–3, *10–13 (E.D. Va. Apr. 29, 2020) (generally same, and recognizing “the social distancing recommendation is inherently at odds with the nature of incarceration” and that facility had taken steps to reduce population to 60% capacity, and holding that plaintiffs did not have a likelihood of success on the merits); Ulger v. Barr, No. 20-CV2952-LTS, 2020 WL 2061473, at *2–5 (S.D.N.Y. Apr. 29, 2020) (generally same); Thakker v. Doll, __ F. Supp. 3d __, No. 1:20-cv-480, 2020 WL 2025384, at *5 (M.D. Pa. Apr. 27, 2020) (generally same); Benavides v. Gartland, No. 5:20-cv-46, 2020 U.S. Dist. LEXIS 69182, at *14–15 (S.D. Ga. Apr. 18, 2020) (generally same); Albino-Martinez v. Adducci, No. 2:20-cv-10893, 2020 U.S. Dist. LEXIS 65618, at *9–11 (E.D. Mich. Apr. 14, 2020) (generally same, and finding that detainees’ claims that they were housed in 100-person dormitories with bunkbeds three to four feet apart did not give rise to a significant likelihood of success on the merits); Ramirez v. Culley, No. 2:20-cv-00609-JAD-VCF, 2020 WL 1821305, at *2–4 (D. Nev. Apr. 9, 2020) (generally same); Dawson v. Asher, No. C20-0409JLR-MAT, 2020 WL 1704324, at *5–6, 11–13 (W.D. Wash. Apr. 8, 2020) (Dawson II) (generally same, and finding that detainees were assigned to sleep in bunk beds with four feet of space between them, but holding that detainees nonetheless had not shown a likelihood of success on the merits); Sacal-Micha v. Longoria, __ F. Supp. 3d __, No. 1:20-CV-37, 2020 WL 1518861, at *5–6 (S.D. Tex. Mar. 27, 2020) (generally same); Dawson v. Asher, No. C20-0409JLR-MAT, 2020 WL 1304557, at *2 (W.D. Wash. Mar. 19, 2020) (Dawson I) (generally same).

10 Plaintiffs are correct that certain of ICE’s new measures were put in place more recently, such as

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not come to pass in the past two-and-a-half months, when populations were significantly higher and many of the safeguards had yet to be put in place, with their conclusion that the “tinderbox” scenario is imminent now, when the population is far lower and more safeguards are in place. Cf. Thakker v. Doll, __ F. Supp. 3d __, No. 1:20-cv-480, 2020 WL 2025384, at *8 (M.D. Pa. Apr. 27, 2020) (finding that “[t]he fears which we reasonably harbored of a ‘tinderbox’ scenario have largely failed to appear within those Facilities. This again is a credit to the staffs at those institutions” and holding that claims of a future “tinderbox” outbreak “are largely speculative”). Plaintiffs’ conclusions fail to establish a high probability of success on the merits of their due-process claim that their detention constitutes “punishment” or that ICE was deliberately indifferent. Cf. id. at *5.11
Plaintiffs claim that “the absence of known COVID-19 cases is largely the result of Defendants’ refusal to test.” Pls. Reply 2. This misstates the situation. ICE and the Facilities follow the CDC’s guidance regarding COVID-19 testing, Pham Decl. ¶ 23 (ECF No. 264-1), Fishburn Decl. ¶ 22 (ECF No. 264-2), which does not call for indiscriminate testing but instead provides that “[c]linicians should use their judgment to determine if a patient has signs and symptoms compatible with COVID-19 and whether the patient should be tested.” Ctrs. for Disease Control and Prevention, Evaluating and Testing Persons for Coronavirus Disease 2019 (COVID-19) (May 5, 2020), https://www.cdc.gov/coronavirus/ 2019-ncov/hcp/clinical-criteria.html (last visited June 1, 2020). In any event, even were there confirmed COVID-19 cases, to establish a likelihood of success on the merits (let alone the high probability of success they would need to show), Plaintiffs would further have to establish that ICE was incapable of managing the cases. Cf., e.g., Rodriguez Alcantara II, 2020 WL 2773765, at *3–4 (plaintiffs failed to establish likelihood of success where government had limited COVID-19 spread); Thakker, 2020 WL 2025384, at *5 (same where government was “able to effectively control transmission from COVID-

staggering mealtimes at Mesa Verde and moving all ICE detainees at Yuba out of the “old” side of the facility into the newer housing units and spacing all beds at least six feet apart. Cf. Pls. Reply 4. This reflects ICE’s continual efforts to add new measures and safeguards on an ongoing basis.
11 Plaintiffs attempt to make much of the fact that Federal Defendants have not submitted a medical or scientific expert. See, e.g., Pls. Reply 1. There is no rule that an expert can be rebutted only by another expert, or that in the absence of a rebuttal expert, an expert’s conclusions are automatically accepted. Cf., e.g., Moturi v. Asher, No. C19-2023 RSM-BAT, 2020 WL 2084915, at *4 (W.D. Wash. Apr. 30, 2020) (rejecting Dr. Greifinger’s opinions as “not . . . persuasive” and “overly conclusory”).

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positive inmates”); Dawson v. Asher, No. C20-0409JLR-MAT, 2020 WL 1304557, at *3 (W.D. Wash. Mar. 19, 2020) (Dawson I) (same where “[t]here is no evidence of an outbreak at the detention center or that Defendants’ precautionary measures are inadequate to contain such an outbreak or properly provide medical care should it occur”). Plaintiffs fail to do so.12
Because Plaintiffs have not established a high probability of success on the merits, they have not satisfied the “extraordinary case” standard, and the Court thus is not authorized to grant release on bail.
B. Plaintiffs Have Not Established Special Circumstances The Ninth Circuit has rejected the argument that a risk of COVID-19 constitutes “special circumstances” warranting release. Dade, __ F.3d __, 2020 WL 2570354, at *2. Further, as Federal Defendants explained (and as Plaintiffs do not rebut), the “special circumstances” standard cannot be satisfied by dozens or hundreds of class members who all claim the same injury, as that would transform what is at best an extremely constrained authority by courts to order release (assuming any such authority exists at all) into a broad judicial override of the laws. See Fed. Defs. Cross-Mot. 23–25; cf. South Bay United Pentecostal Church v. Newsom, __ U.S. __, No. 19A1044, 2020 WL 2813056, at *1 (U.S. May 29, 2020) (Roberts, C.J., concurring) (“Our Constitution principally entrusts the safety and

12 The measures and safeguards that the Facilities have implemented here are comparable to those implemented at other facilities where courts found that plaintiffs did not have a likelihood of success on the merits in light of such measures and safeguards. See supra note 9.
Plaintiffs’ reliance on Helling v. McKinney, 509 U.S. 25 (1993) is misplaced. Helling involved a plaintiff who originally was assigned to a cell with another inmate who smoked five packs of cigarettes a day. Id. at 28. The plaintiff brought an Eighth Amendment claim, and the parties had a trial, but the trial court awarded a directed verdict to the prison. Id. at 29. The case went up on appeal on the issue of whether the plaintiff could state an Eighth Amendment claim against the prison for his exposure to cigarette smoke and, thus, whether the trial court had erred in awarding a directed verdict against him. Id. at 30–31. The Supreme Court held that the plaintiff had stated an Eighth Amendment claim and remanded to give him another chance to prove his claim. Id. at 35. The Supreme Court noted in passing that “[i]t 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.” Id. at 33 (cited by Pls. Reply 6). But the Court also observed that the plaintiff might not in fact be able to “plainly prove” an unsafe, life-threatening condition. Among other things, the Court noted that (1) the plaintiff had been moved and was no longer housed with a five-pack-a-day smoker and (2) the prison had adopted new nonsmoking policies to minimize exposure to cigarette smoke. Id. at 35–36. The Court observed that “[i]t is possible that the new policy will be administered in a way that will minimize the risk to [plaintiff] and make it impossible for him to prove that he will be exposed to unreasonable risk with respect to his future health or that he is now entitled to an injunction.” Id. at 36. Similarly, Plaintiffs here have not “plainly proved” an unsafe, life-threatening condition in the Facilities or established that the Facilities’ policies and safeguards have not sufficiently minimized the risk such that Plaintiffs would be entitled to preliminary relief like release on bail while the lawsuit remains pending.

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the health of the people to the politically accountable officials of the States to guard and protect. When those officials undertake to act in areas fraught with medical and scientific uncertainties, their latitude must be especially broad. Where those broad limits are not exceeded, they should not be subject to second-guessing by an unelected federal judiciary, which lacks the background, competence, and expertise to assess public health and is not accountable to the people.”) (citations and quotation marks omitted). The Ninth and Third Circuits have both stayed attempts by district courts to order the mass release immigration detainees in response to COVID-19. Hernandez Roman v. Wolf, No. 20-55436, 2020 WL 2188048 (9th Cir. May 5, 2020), staying Hernandez Roman Injunction ¶¶ 2–12 (ECF No. 264-3); Hope v. Warden York Cty. Prison, 956 F.3d 156, 159 (3d Cir. 2020) (granting administrative stay of district-court order to release 20 detainees “within hours of the request”).13 Achieving the same mass-release result through a series of bail orders is no more authorized.14 IV. Federal Defendants Object to Plaintiffs’ Declaration
Federal Defendants object to the declaration of Emilou MacLean (ECF No. 286-2), which Plaintiffs attach to their reply. Ms. MacLean’s declaration about what unidentified medical records of unidentified detainees say is inadmissible hearsay and violates the best-evidence rule, does not provide Federal Defendants with enough detail so as to be able to intelligently respond, and should be stricken.
CONCLUSION Federal Defendants respectfully request that the Court enter an order (1) confirming that the TRO has expired, (2) ending the ongoing bail process, and (3) vacating all bail orders.

13 Williams v. Wilson, __ U.S. __, No. 19A1041, 2020 WL 2644305 (U.S. May 26, 2020) (cited by Pls. Reply 8–9) is not to the contrary. The Supreme Court denied a stay there because the original preliminary-injunction order being appealed had been superseded by a new preliminary-injunction order by the time the stay application came before the Court. Contrary to Plaintiffs’ claims, the Court did not suggest that the district court’s order was not overbroad. See id. at *1 (denying stay “without prejudice to the Government seeking a new stay if circumstances warrant”).

14 Plaintiffs claim, without citation, that it would defy logic for the “extraordinary case” standard to be more stringent as applied to immigration detainees than criminal detainees. Pls. Reply 15 n.14. The authority of the political branches is heightened in the area of immigration, and the judiciary’s role more constrained. See Pls. Cross-Mot. 24 (citing cases); accord Chin Wah, 187 F. at 594 (provisions for bail in criminal cases do not give rise to bail in immigration cases). Additionally, there is no issue of “presumption” here — Plaintiffs do not dispute that the INA authorizes their detention.

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DATED: June 1, 2020

Respectfully submitted,
DAVID L. ANDERSON United States Attorney
s/Shiwon Choe SHIWON CHOE Assistant United States Attorney
Attorneys for Federal Defendants

DEFS.’ REPLY ISO MOT. FOR ORDER CONFIRMING T.R.O. EXPIRED AND ENDING BAIL & OBJ. TO PL. DECL. No. 3:20-cv-02731-VC

 
 Case 3:20-cv-02731-VC Document 357 Filed 06/09/20 Page 1 of 12

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

ANGEL DE JESUS ZEPEDA RIVAS, et al.,
Plaintiffs,
v.
DAVID JENNINGS, et al., Defendants.

Case No. 20-cv-02731-VC
ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION Re: Dkt. 229

Seven weeks ago, ICE detainees at Mesa Verde Detention Center and Yuba County Jail filed this class action alleging the facilities were so crowded that any kind of social distancing— the primary available defense against Covid-19—was impossible. They also alleged that ICE had taken virtually no meaningful steps to reduce the risk of outbreak at either facility. This, according to the plaintiffs, rendered their detentions unconstitutional.
After full briefing and a hearing, this Court provisionally certified a class of all detainees at the two facilities and entered a temporary restraining order. Zepeda Rivas v. Jennings, __ F. Supp. 3d. ___, 2020 WL 2059848 (N.D. Cal. Apr. 29, 2020) (Dkt. No. 53). The TRO required ICE to give the Court and class counsel information about all the detainees, including any criminal history and any health vulnerabilities putting them at heightened risk. The TRO also established a system for the Court to consider, on an ongoing basis and with the assistance of briefing from both sides, whether certain detainees should be temporarily released to help mitigate the dangerous conditions in the facilities. This system contemplates that no detainee may be released unless class counsel demonstrates “extraordinary circumstances justifying

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release while the habeas petition is pending, based on a consideration of the following factors: (i) the likelihood that the class will ultimately prevail on its habeas petition; (ii) the risk posed to the detainee by current conditions at the facilities; (iii) the likelihood that the detainee will not be a danger to the community if released with conditions; and (iv) the likelihood that the detainee will appear for subsequent immigration/removal proceedings as required.” Dkt. No. 50.
The plaintiffs have now moved for a preliminary injunction. The motion is granted, but the injunction will be far narrower and less intrusive than what the plaintiffs request. This ruling assumes that the reader is familiar with the TRO ruling, and the analysis from that ruling is incorporated here.
I When this lawsuit was filed, governments and public health officials throughout the country had long since recognized the urgent danger posed by the coronavirus pandemic. Indeed, nearly five weeks had passed since Governor Newsom ordered a statewide shutdown that forced massive changes in the daily lives of virtually all Californians. But for the ICE detainees at Mesa Verde and Yuba County Jail, it was pretty much business as usual. People were still sleeping in barracks-style dorms within arm’s reach of one another. Only two detainees had been tested for Covid-19, despite the well-known “tinderbox” risk of jail epidemics. It appeared that ICE had not even made the effort to determine which of its detainees suffer from medical conditions that put them in particularly severe danger from the virus. Since the TRO, substantial progress has been made. The number of detainees in custody at both facilities has dropped, which has allowed for a greater degree of social distancing. For example, Mesa Verde has been able to stagger meals, limiting each dining table to a single detainee at a time. More than half the bunks in each Mesa Verde dorm are now empty, so the detainees sleep at alternating bunk-bed levels (with heads on alternating sides of the bed). The conditions in the facilities are hardly ideal, but they have indisputably improved. Subject to a few caveats discussed in the next section, it’s possible that the facilities have gotten close to the point where keeping certain detainees there (those who are a danger to the community or whose
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detention is otherwise necessary even in the face of the risks posed by the pandemic) does not create an unreasonable risk for the class in violation of due process.
However, these safety improvements came almost entirely from this litigation: ICE acted only because it was ordered to do so, or in response to concerns raised by the Court or the plaintiffs during the proceedings. Since the TRO, the parties have participated in eight status conferences, and ICE has been required to provide the Court and class counsel with a steady stream of information. Throughout this process, ICE has shown disinterest and a lack of dexterity in adjusting its conduct to respond to a global crisis, along with obstinance in evaluating whether any of its detainees can safely be temporarily released.
Take, for example, the bail process implemented in the wake of the TRO. On a schedule set by the Court, class counsel has submitted nearly two hundred requests for temporary release of individual detainees, subject to strict conditions such as identifying a custodian whom ICE can vet, observing a 14-day quarantine, and submitting to GPS monitoring. The population reduction in the facilities appears to have been accomplished largely by temporary releases ordered pursuant to this process, with 95 detainees having been ordered released.1 But invariably, ICE argues that the detainee in question should not be released because they pose a danger to the community or are a flight risk. To be sure, reasonable minds can differ on some of these release applications; indeed, the Court has denied release for 79 detainees, mostly out of concern that they would be a danger to the community. See, e.g., Order re Domestic Violence, Dkt. No. 224. But ICE’s insistence on opposing these bail applications on a blanket basis has led it to take some positions that are downright irrational, not to mention inhumane.
One example was Jose Luis Lopez-Guevara. Mr. Lopez-Guevara is 78 years old, walks with a cane, suffers from numerous chronic health conditions, and underwent heart surgery in March while in ICE custody. See Dkt. No. 66. Back in 1980, Mr. Lopez-Guevara was convicted of second-degree murder for shooting an acquaintance in the heat of argument, but was granted
1 ICE has also deported a large number of detainees, while at the same time detaining many new people.
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parole in 2019 after 38 years in custody when the parole board found (with Governor Newsom’s assent) that he poses no threat to the community due to his age, overall criminal history, and substantial evidence of self-improvement and rehabilitation. Following the grant of parole, ICE took Mr. Lopez-Guevara into custody pending deportation and had been holding him for nearly a year. In his request for temporary release from ICE custody, Mr. Lopez-Guevara explained that if released he would stay with his son Henry, a decorated U.S. Marine, and Henry’s wife, a registered nurse, in their five-bedroom house in Santa Clarita, in accordance with his approved parole plan. ICE opposed his release.
Or take Jennifer Lara Plascencia, a woman with a single conviction for wire fraud arising from improper use of her company’s credit card. See Dkt. No. 72-4. Her numerous medical conditions had landed her in the emergency room multiple times during her detention at Mesa Verde, and she sought temporary release to stay in Chula Vista with her husband, a U.S. military servicemember, and their 20-month-old U.S. citizen son. ICE opposed her release. Similarly, Victor Fierros Hurtado, a man with a single misdemeanor drug conviction from 2001, sought to be temporarily released to stay with his wife and three U.S. citizen children at their family home in Vallejo. See Dkt. No. 128-4. ICE opposed his release.
To be sure, ICE has released a relatively small number of people into the community without waiting for an order from this Court. But those decisions are, at least in large part, just as much a product of this litigation. For example, ICE has now taken the seemingly obvious step of releasing all remaining women from Mesa Verde—virtually none of whom appeared to have histories suggesting they were a danger to the community—to allow the male detainees to be spread out into the women’s dorm. But this measure came in response to questions posed by the Court during a status conference about why ICE was tying up an entire 100-bed dorm with a small number of women with little or no criminal record. In the many weeks prior, ICE either hadn’t thought of this or was too indifferent to make the effort.
In arguing that no further judicial intervention is necessary to address conditions in its facilities, ICE has also made at least one misrepresentation to the Court about a matter of great
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importance. A critical safety issue is how new arrivals to the facilities are processed and checked for Covid-19. In opposing the plaintiffs’ motion for a preliminary injunction, ICE filed a declaration from Alexander Pham, an ICE official responsible for oversight of Mesa Verde. Mr. Pham declared under oath: “All new arrivals transferred from another facility where there are any reported cases of COVID-19 infection will be placed in isolation for 14 days prior to being released into the general population.” Pham Decl. ¶ 22, Dkt. No. 264-1. In response, the plaintiffs filed a declaration from Arnulfo Ramirez Ramos, a detainee who recently arrived at Mesa Verde from La Palma Correctional Facility, which had 78 confirmed cases of Covid-19. Mr. Ramirez stated that upon arrival at Mesa Verde he was neither tested for Covid-19 nor quarantined, but instead was placed directly into the general population. Ramirez Decl. ¶ 8, Dkt. No. 286-1. After the Court issued an order indicating that an evidentiary hearing may be necessary, ICE submitted a new declaration in which Mr. Pham stated that his prior sworn declaration was “inadvertently inaccurate,” because ICE in fact does not quarantine detainees transferred from Covid-19-infected facilities unless the detainee is already experiencing symptoms or awaiting test results. Dkt. No. 324-1. The Court is still awaiting an adequate explanation for how ICE could have made so dramatic a misstatement about so important an issue (not to mention an explanation for why ICE is not doing what Pham originally asserted).
Responding to this fast-moving crisis is undoubtedly creating novel challenges for detention facilities across the country, but ICE’s conduct and attitude towards its detainees at Mesa Verde and Yuba County Jail since the pandemic began have shown beyond doubt that ICE cannot currently be trusted to prevent constitutional violations at these particular facilities without judicial intervention. As Judge Young recently noted of ICE’s response to the coronavirus in Massachusetts, “Where elasticity is vital, they are rigid; where life hangs upon a carefully drawn line, they opt for near-blanket incarceration. That is evidence of deliberate indifference.” Savino v. Souza, 2020 WL 2404923, at *9 (D. Mass. May 12, 2020).
Therefore, the fact that conditions have improved at the facilities does nothing to disturb the Court’s conclusion that the requirements for interim relief have been met, and that a
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preliminary injunction is needed, at a minimum, to lock in place the safety improvements achieved in recent weeks. See Winter v. NRDC, 555 U.S. 7, 20 (2008); Zepeda Rivas, 2020 WL 2059848, at *2–3; see also Costa v. Bazron, 2020 WL 2735666, at *5 (D.D.C. May 24, 2020) (“[M]ere compliance with the existing TRO does not obviate the need for preliminary relief.”).2
II Although preliminary injunctive relief is warranted, the plaintiffs propose judicial intervention into ICE’s detention practices that is more intrusive than necessary, at least on the current evidentiary record. The plaintiffs ask the Court to order ICE to ensure that detainees at both facilities be at least ten feet apart from one another while sleeping (with detailed sub-rules regarding the configuration of beds), and that they be able maintain a six-foot distance at almost all other times. The plaintiffs further propose that ICE be required to develop and submit to the Court “detailed written plans” for bringing each facility into compliance with this social distancing goal, subject to objection from the plaintiffs and scrutiny and modification by the Court. In addition, they propose that ICE should be flatly prohibited from admitting any new people into the detainee population until compliance with the plans is achieved, and barred from transferring detainees out of Mesa Verde or Yuba County Jail unless the destination facility has achieved an equal degree of social distancing. The plaintiffs’ proposed injunction appears based on the assumption that the government should create conditions of confinement for immigration detainees that approximate the level of safety achievable for people not in detention. Further, the plaintiffs often seem to assume that if
2 ICE argues that there has been no outbreak of Covid-19 yet at either facility, and that therefore the plaintiffs are not being irreparably harmed. This is wrong for several reasons. For one, the absence of the virus at the facilities is far from clear—ICE had tested only two detainees at the time of the TRO hearing, and there is no evidence that the agency has tested even a single additional person in the weeks since then. For another, the conditions at the facilities have improved primarily as a result of this litigation, so the absence of confirmed cases thus far does not imply that an injunction maintaining the status quo is unnecessary. And lastly, the fact that Covid-19 has not yet entered the facilities does nothing to undermine the unrebutted evidence that if and when it does, it may cause a rapid and dangerous outbreak. See, e.g., Iwasaki Decl. ¶ 40; see also Helling v. McKinney, 509 U.S. 25, 33 (1993).
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this level of safety cannot be achieved, the only answer is that more people should be released. But this is not what due process demands, and the plaintiffs’ proposed injunction thus intrudes too much on ICE’s function and decision-making authority.
Of course, people subject to government detention have a constitutional right to safe conditions of confinement. Youngberg v. Romeo, 457 U.S. 307, 316 (1982). But this right guarantees only “reasonable safety,” with the understanding that detention will almost never be as safe as freedom. DeShaney v. Winnebago County Dep’t of Social Servs., 489 U.S. 189, 200 (1989). To assess whether safety risks rise to the level of a constitutional violation in a particular case, courts must consider the government’s own interests, as well as the measures reasonably available to reduce the risks. See Helling v. McKinney, 509 U.S. 25, 35 (1993); Bell v. Wolfish, 441 U.S. 520, 537 (1979); Gordon v. County of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018); Jones v. Blanas, 393 F.3d 918, 931 (9th Cir. 2004). The unfortunate reality is that a certain degree of danger can be among the “inherent incidents of confinement in such a facility.” Bell, 441 U.S. at 537.
And the federal government has an interest in detaining people subject to removal proceedings who pose a danger to the community or are a flight risk. Demore v. Kim, 538 U.S. 510, 518–19 (2003); Zadvydas v. Davis, 533 U.S. 678, 690–91 (2001). Through the bail process, this Court has learned that many of the people currently detained at Mesa Verde and Yuba County Jail would in fact pose a significant danger to the community if released. Indeed, even though some of these people have medical vulnerabilities that make them more susceptible to severe outcomes of Covid-19 infection, it still is not appropriate to release them. This is presumably true of some of the people whom ICE might seek to detain in the future—sometimes detainees come to these facilities straight from jail or prison, having committed a string of violent crimes, and with little or no evidence that they’ve reformed. As Judge Sabraw recently noted, the government’s interest in protecting the community from dangerous detainees “fundamentally alters the analysis of whether the continued confinement of these subclass members violates their substantive due process rights.” Alcantara v. Archambeault, 2020 WL
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2773765, at *3 (S.D. Cal. May 26, 2020). Against this legal backdrop, it appears possible that the conditions at the facilities have
reached, or at least are approaching, the constitutional minimum given the health threat—at least for detainees who pose a significant danger to the community or otherwise should not be released. Based on the current record, detainees at Mesa Verde are sleeping in alternating directions on alternating levels of bunk beds that are spaced about three feet apart. See generally Pham Decl. No two detainees are sharing a bunk bed. About half the sinks, showers, and toilets are shut off to allow for greater spacing. Meals are staggered such that each detainee can sit at his own table during meal times. Masks are provided free of charge to detainees; new arrivals are screened by nurses for possible exposure to the coronavirus (although the effectiveness of this process is unclear); and medical staff will examine any detainee who submits a request due to symptoms consistent with Covid-19. At Yuba County Jail, no two detainees are sharing a cell in units A, D, and E, and each celled detainee has his own sink and toilet. See generally Fishburn Decl., Dkt. 264-2. In units B and C, no two detainees share a bunk and the bunks are spaced about six feet apart. Detainees can eat at their bunks or cells more than six feet from each other. Masks are provided free of charge, and detainees who present symptoms of Covid-19 are placed in isolation in the medical unit. Furthermore, although it appears that Yuba may have stopped taking new arrivals, all arriving detainees are placed in a 14-day quarantine. Id. ¶ 21.
Given the improvements that have been achieved since the TRO was entered, for now the primary relief to be ordered is that ICE must maintain the status quo of safety that currently exists in the facilities. See Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017) (per curiam) (“The purpose of . . . interim equitable relief is not to conclusively determine the rights of the parties, but to balance the equities as the litigation moves forward.”) (internal citation omitted). As a practical matter, this may mean that ICE cannot increase the net number of detainees more than minimally. But perhaps not, because ICE could conceivably find a way to change the way a facility is used or configured so as to allow more detainees to enjoy the same amount of distancing that currently exists (as occurred, for example, when the remaining women
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were released from Mesa Verde). Maintaining the status quo also means that the Court’s prior orders temporarily releasing certain detainees will remain in effect, and the Court will continue for now to consider requests from class counsel for the temporary release of individual detainees, as there are almost certainly still some people whose continued detention in the facilities under present circumstances is unreasonable and contributes to an unnecessary risk of harm to the class as a whole. As previously ordered, ICE will be granted additional time to respond to release requests to better facilitate vetting of custodians.
Evidentiary gaps in the parties’ presentations have left some unanswered questions regarding whether ICE could reasonably take additional steps to alleviate the likely due process violations in both facilities. In particular, there seems to be considerable uncertainty regarding how new arrivals are actually being screened at Mesa Verde, and whether those procedures are creating serious and avoidable health risks. The parties are ordered to meet and confer about that, and report to the Court at the next status conference. And if the plaintiffs believe that additional preliminary relief is necessary to address risks to class members who must continue to be detained, the Court will hold an evidentiary hearing.3 Any requests for additional relief, however, must recognize that “[w]hen [executive] officials undertake to act in areas fraught with medical and scientific uncertainties, their latitude must be especially broad.” S. Bay United Pentecostal Church v Newsom, 2020 WL 2813056, at *1 (U.S. May 29, 2020) (Roberts, C.J., concurring) (internal quotation marks omitted).
III ICE raises a number of legal objections to this narrower form of injunctive relief. But these objections do not prevent the Court from requiring that the status quo be maintained to protect detainees (not to mention facility staff and the surrounding communities) from the harm that would have likely occurred if ICE had been left to its own devices.
3 As discussed with the parties, the Court has not read or considered any aspect of the declaration of Dr. Allen, who has a distant relationship with a law clerk, and will not do so without further discussing with the parties whether they have any objections.
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ICE argues that Ninth Circuit law prohibits district courts from ordering the temporary release of immigration detainees while litigation is pending. For this proposition ICE cites Chin Wah v. Colwell, 187 F. 592 (9th Cir. 1911), a decision from more than one hundred years ago in which the Ninth Circuit interpreted the Chinese Exclusion Act and affirmed a district court’s discretionary denial of bail under that law. The court in that case concluded that “the power to admit to bail in deportation cases, if it exists, is created by implication in [certain] provisions of the exclusion acts . . . .” Id. at 594. Regardless of whether Chin Wah remains good law, its application to this case is questionable at best. The Ninth Circuit discussed the district court’s powers when adjudicating an appeal from a deportation order under a long-obsolete statutory scheme. The opinion did not address, let alone resolve, the question of whether a district court can order the temporary release of detainees held in unconstitutionally dangerous conditions. Indeed, many district courts throughout the Ninth Circuit have ordered the release of immigration detainees during the Covid-19 pandemic. See, e.g., Singh v. Barr, 2020 WL 2512410, at *10 (N.D. Cal. May 15, 2020); Pimentel-Estrada v. Barr, 2020 WL 2092430, at *19 (W.D. Wash. Apr. 28, 2020); Kaur v. U.S. Dep’t of Homeland Sec., 2020 WL 1939386, at *4 (C.D. Cal. Apr. 22, 2020).
ICE next argues that the Court cannot rely on its inherent authority to grant bail to habeas petitioners because challenges to conditions of confinement cannot be brought in habeas corpus petitions. ICE relies primarily on Nettles v. Grounds, 830 F.3d 922 (9th Cir. 2016) (en banc), but that case concerned only the relationship between habeas corpus and section 1983 remedies for state prisoners—the Ninth Circuit declined to address the scope of habeas for federal prisoners (or federal immigration detainees). Id. at 931. The rationales behind Nettles and the Supreme Court’s Preiser line of cases—in particular, the need to impose the correct set of statutory procedural safeguards on state prisoner claims—do not apply in a case involving federal immigration detainees. See id. at 934 (“If the prisoner’s claim challenges the fact or duration of the conviction or sentence, compliance with AEDPA is mandated, while if the claim challenges any other aspect of prison life, the prisoner must comply with the PLRA.”); Preiser v. Rodriguez,
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411 U.S. 475, 477 (1973). And the Supreme Court has long left open the possibility that conditions of confinement claims may be brought pursuant to habeas corpus. See Ziglar v. Abbasi, 137 S. Ct. 1843, 1862–63 (2017) (“A successful habeas petition would have required officials to place respondents in less-restrictive conditions immediately.”). Nor has Crawford v. Bell, 599 F.2d 890, 892 (9th Cir. 1979), foreclosed the possibility of federal detainees bringing conditions-of-confinement claims under 28 U.S.C. § 2241. See Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000) (per curiam) (noting that federal prisoner petitions that “challenge the manner, location, or conditions of a sentence’s execution must be brought pursuant to § 2241 in the custodial court.”); Moore v. Winn, 698 F. App’x 485, 486 (9th Cir. 2017) (unpublished) (holding that prisoners in federal custody can bring conditions-of-confinement claims via habeas corpus).
Furthermore, the plaintiffs have brought this case not only under habeas corpus but also as a claim for declaratory and injunctive relief. If ICE were correct that habeas relief is not available here, then the plaintiffs would be entitled to relief under the equitable power of federal courts to restrain unlawful executive action. See Armstrong v. Exceptional Child Center, Inc., 575 U.S. 320, 326–27 (2015); Sierra Club v. Trump, 929 F.3d 670, 694 (9th Cir. 2019); Solida v. McKelvey, 820 F.3d 1090, 1096 (9th Cir. 2016); see also Abbasi, 137 S. Ct. at 1862 (noting the possibility of “injunctive relief,” as distinct from habeas or Bivens relief, to address conditions of confinement). This Court has labeled its temporary release orders as “bail orders,” invoking the inherent power of federal courts to release habeas petitioners on bail in extraordinary cases. See Mapp v. Reno, 241 F.3d 221, 229 (2d Cir. 2001); Land v. Deeds, 878 F.2d 318, 318 (9th Cir. 1989) (per curiam); see also Zepeda-Rivas, 2020 WL 2059848, at *2–3; United States v. McCandless, 841 F.3d 819, 822 (9th Cir. 2016) (per curiam). But alternatively, these orders can be considered provisional relief on the plaintiffs’ equitable claim that the conditions of confinement pose unreasonable dangers to the class. See Brown v. Plata, 563 U.S. 493, 526 (2011); Doe v. Kelly, 878 F.3d 710, 720 (9th Cir. 2017); Reebok Int’l, Ltd. v. Marnatech Enterprises, Inc., 970 F.2d 552, 559 (9th Cir. 1992) (“[T]he injunction is authorized by the
11

Case 3:20-cv-02731-VC Document 357 Filed 06/09/20 Page 12 of 12

district court’s inherent equitable power to issue provisional remedies ancillary to its authority to

provide final equitable relief.”); see also Savino, 2020 WL 2404923, at *3.

Lastly, in its papers and at the preliminary injunction hearing, ICE has repeatedly claimed

that the Ninth Circuit’s recent decision in United States v. Dade, __ F.3d ___, 2020 WL 2570354

(9th Cir. May 22, 2020), establishes that “COVID-19 does not satisfy the ‘extraordinary case’

standard warranting release.” Opposition Brief at 25, Dkt. No. 264. That case says no such thing,

and ICE’s description of it is borderline sanctionable. In Dade, the court indicated that the

pandemic does present a “special circumstance,” but held (in the criminal collateral review

context) that the petitioner was also required to make a showing of lack of dangerousness and

flight risk. 2020 WL 2570354, at *2. In this case, which concerns civil rather than criminal

detention, this Court has granted temporary release only where it has concluded that a detainee

poses neither a danger to the community nor a flight risk. See Dkt. No. 50.

IV

The motion for a preliminary injunction is granted. ICE and all of its officers, agents,

servants, employees, and attorneys, are ordered while this case is pending to maintain, at a

minimum, the status quo that currently exists as it relates to protection from transmission of

Covid-19 at the Mesa Verde Detention Center and Yuba County Jail. ICE must also continue to

provide information to the Court and the plaintiffs as previously ordered, and must respond to

reasonable discovery requests from class counsel. A status conference will take place Thursday,

June 11, 2020, at 2:00 p.m. by videoconference to discuss the need for an evidentiary hearing

and any other matters the parties wish to address. If the parties prefer to push back the status

conference to the following week, they may submit a stipulated request to do so.

IT IS SO ORDERED.

Dated: June 9, 2020

______________________________________
VINCE CHHABRIA United States District Judge

12

 
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DAVID L. ANDERSON (CABN 149604) United States Attorney SARA WINSLOW (DCBN 457643) Chief, Civil Division WENDY M. GARBERS (CABN 213208) ADRIENNE ZACK (CABN 291629) SHIWON CHOE (CABN 320041) Assistant United States Attorneys
450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Telephone: (415) 436-7031 FAX: (415) 436-6748 adrienne.zack@usdoj.gov
Attorneys for Federal Defendants
SUSAN E. COLEMAN (SBN 171832) E-mail: scoleman @bwslaw.com BURKE, WILLIAMS & SORENSEN, LLP 444 South Flower Street, Suite 2400 Los Angeles, CA 90071-2953 Tel: 213.236.0600 Fax: 213.236.2700
Attorneys for THE GEO GROUP, INC. (sued herein as GEO GROUP, INC.) and NATHAN ALLEN

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, et al., Plaintiffs,
v. DAVID JENNINGS, et al.,
Defendants.

) Case No. 20-cv-02731 VC ) ) DEFENDANTS’ JOINT STATUS REPORT RE ) PLAN TO TEST ALL INCOMING DETAINEES ) AND POSITIVE COVID-19 TEST OF GEO ) OFFICER AT MESA VERDE ) ) ) )

On or about June 29, 2020, Mesa Verde Detention Facility will be implementing COVID-19 testing for all new arrivals. An Abbott ID Now instrument for Rapid RNA testing has been secured and delivered to Mesa Verde Detention Facility. Training for the medical staff and testing of the new equipment began the week of June 22, 2020. The equipment will provide same day results. New

DEFENDANTS’ JOINT STATUS REPORT RE TESTING & POSITIVE COVID-19 TEST AT MESA VERDE

Case No. 20-cv-02731 VC

1

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arrivals will be placed in a holding cell pending their test results. On June 25, 2020, ICE learned that a GEO officer working at the Mesa Verde Detention Facility
tested positive for COVID-19.1 The employee tested positive based on a specimen collected on June 17, 2020. The employee’s last scheduled work day was June 16, 2020. On that day, in accordance with protocol, he was screened for COVID-19 symptoms at the front reception area prior to reporting to work, which was negative, and his temperature was 97.9 degrees Fahrenheit. During his four-hour morning shift, the GEO officer was assigned to cleaning duties, wiping down and sanitizing high-touch surfaces in the common areas of the facility including hallways, administration, and intake. During his shift, the officer wore his personal protective equipment, including a surgical facemask and gloves. He was assisted by one detainee for one and a half to two hours, who was also wearing a surgical facemask. The officer went to one dorm, that of the assisting detaining, only to meet the detainee. The detainee did not have “close contact” with the officer, as defined by the CDC.2 The detainee remained more than six feet away from the officer when he was assisting him. The officer did not report any symptoms such as coughing prior to or during his shift.
After the completion of the officer’s shift, he left work and shortly thereafter began feeling unwell and feverish. The officer notified GEO management staff at Mesa Verde. On June 17, 2020, GEO management instructed that the officer not work for at least ten days and that he had to be asymptomatic without medication for at least three days before returning to work. On June 17, 2020, the officer was tested for COVID-19, and on June 18, 2020, was notified via email that his test was positive. On June 19, 2020, after receiving the testing medical provider’s official note, the officer forwarded that note to a GEO human resources employee. However, the human resources employee ended her shift prior to receiving the notification and did not see the email notification until June 25, 2020. (The human resources employee does not have remote access to email and was offsite for training and leave.) On

1 The instant notice was not filed immediately upon ICE learning of the positive test because counsel was awaiting additional information regarding the officer’s tasks.

2 The CDC defines “close contact” as “[s]omeone who was within 6 feet of an infected person for at least 15 minutes starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to specimen collection) until the time the patient is isolated.” See https://www.cdc.gov/ coronavirus/2019-ncov/php/contact-tracing/contact-tracing-plan/appendix.html#contact (last visited June 26, 2020).

DEFENDANTS’ JOINT STATUS REPORT RE TESTING & POSITIVE COVID-19 TEST AT MESA VERDE

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June 25, 2020, after the human resources employee accessed the email notice from the officer, GEO notified ICE of the positive test result.
As of June 26, 2020, the GEO officer is not yet back to work, although he is now asymptomatic. During his shift on June 16, 2020, the officer had contact with three other GEO employees, but not “close contact” as defined by the CDC. All GEO employees were also wearing surgical facemasks.
Although not required by CDC guidelines, a COVID-19 test was offered to the one identified detainee, who accepted and was tested. The test results returned on June 28, 2020, and were negative.

DATED: June 29, 2020

Respectfully submitted,
DAVID L. ANDERSON United States Attorney
/s/ Adrienne Zack ADRIENNE ZACK Assistant United States Attorney

DATED: June 29, 2020

BURKE, WILLIAMS & SORENSEN, LLP
By: /s/ Susan E. Coleman3 SUSAN E. COLEMAN
Attorneys for THE GEO GROUP, INC. and NATHAN ALLEN, Warden of Mesa Verde

3 In compliance with Civil Local Rule 5-1(i)(3), the filer of this document attests under penalty of perjury that all signatories have concurred in the filing of this document.

DEFENDANTS’ JOINT STATUS REPORT RE TESTING & POSITIVE COVID-19 TEST AT MESA VERDE

Case No. 20-cv-02731 VC

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1 WILLIAM S. FREEMAN (SBN 82002)

MANOHAR RAJU (SBN 193771)

wfreeman@aclunc.org 2 SEAN RIORDAN (SBN 255752)

Public Defender MATT GONZALEZ (SBN 153486)

3 sriordan@aclunc.org ANGÉLICA SALCEDA (SBN 296152)

Chief Attorney GENNA ELLIS BEIER (CA SBN 300505)

4 asalceda@aclunc.org

genna.beier@sfgov.org

AMERICAN CIVIL LIBERTIES UNION 5 FOUNDATION OF NORTHERN

EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org

CALIFORNIA 6 39 Drumm Street

FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org

7 San Francisco, CA 94111 Telephone: (415) 621-2493

OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO

8 Facsimile: (415) 255-8437

555 Seventh Street

9 Attorneys for Petitioners-Plaintiffs

San Francisco, CA 94103 Direct: (415) 553-9319

10

*Admitted Pro Hac Vice Additional Counsel Listed on Following Page

Facsimile: (415) 553-9810

11

12

UNITED STATES DISTRICT COURT

13

NORTHERN DISTRICT OF CALIFORNIA

14
ANGEL DE JESUS ZEPEDA RIVAS, 15 BRENDA RUBI RUIZ TOVAR, LAWRENCE
KURIA MWAURA, LUCIANO GONZALO 16 MENDOZA JERONIMO, CORAIMA
YARITZA SANCHEZ NUÑEZ, JAVIER 17 ALFARO, DUNG TUAN DANG,

Case No. 3:20-CV-02731-VC
NOTICE OF MOTION AND MOTION FOR TEMPORARY RESTRAINING ORDER

18

Petitioners-Plaintiffs,

19

v.

Date: August 5, 2020 Time: 9:00 a.m.

20 DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration
21 and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior
22 Official Performing the Duties of the Director of the U.S. Immigration and Customs
23 Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP,
24 INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,
25
Respondents-Defendants. 26

27

28

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1 BREE BERNWANGER* (NY SBN 5036397) MARTIN S. SCHENKER (SBN 109828)

bbernwanger@lccrsf.org 2 HAYDEN RODARTE (SBN 329432)

mschenker@cooley.com COOLEY LLP

3 hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR

101 California Street, 5th Floor San Francisco, CA 94111

4 CIVIL RIGHTS OF

Telephone: (415) 693-2000

SAN FRANCISCO BAY AREA 5 131 Steuart St #400

Facsimile: (415) 693-2222

San Francisco, CA 94105 6 Telephone: (415) 814-7631

TIMOTHY W. COOK* (Mass. BBO# 688688) tcook@cooley.com

7 JUDAH LAKIN (SBN 307740)

FRANCISCO M. UNGER* (Mass. BBO# 698807)

8 judah@lakinwille.com

funger@cooley.com

AMALIA WILLE (SBN 293342) 9 amalia@lakinwille.com

COOLEY LLP 500 Boylston Street

10

LAKIN & WILLE LLP 1939 Harrison Street, Suite 420

Boston, MA 02116 Telephone: (617) 937-2300

11 Oakland, CA 94612 Telephone: (510) 379-9216

Facsimile: (617) 937-2400

12 Facsimile: (510) 379-9219

13 JORDAN WELLS (SBN 326491)

14

jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568)

15 spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION

16 FOUNDATION OF SOUTHERN

CALIFORNIA 17 1313 West Eighth Street

18

Los Angeles, CA 90017 Telephone: (213) 977-9500

19 Facsimile: (213) 977-5297

20

21

22

23

24

25

26

27

28

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2

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1

PLEASE TAKE NOTICE that, on Wednesday, August 5, 2020 at 9 a.m., Plaintiffs will

2 and hereby do move, pursuant to Civil L. R. 7-1 and 65-1, for a temporary restraining order

3 (TRO) directing Defendants to conduct rapid testing of all class members at Mesa Verde

4 Detention Facility, clear a dorm to isolate all class members who are testing positive for COVID-

5 19, and observe the limits on increased population in the remaining dorms as set out by the

6 Court’s preliminary injunction order.

7

Pursuant to Civil L.R. 65-1(b), on August 3, 2020 at 6:00 p.m., counsel for Plaintiffs sent

8 an e-mail to counsel for Defendants to advise of the emergency reasons requiring them to seek a

9 TRO. Plaintiffs’ counsel have filed a redacted version of this notice of motion and motion on the

10 public docket for this case and have e-mailed the sealed, unredacted version to Defendants’

11 counsel.

12

INTRODUCTION

13

Defendants have failed to take meaningful steps to halt an outbreak of COVID-19 within

14 Mesa Verde Detention Facility (MVDF). Defendants first learned that MVDF staff members

15 tested positive for COVID-19 more than a month ago. In light of increasing numbers of staff

16 members who tested positive, more than ten days ago Plaintiffs implored Defendants to create a

17 testing and cohorting protocol for class members at MVDF. (See Joint Case Management

18 Statement, ECF No. 474 & Exh. A.) Yet Defendants neither implemented (nor substantively

19 responded to) Plaintiffs’ detailed plan nor took any other action to prevent COVID-19 from

20 spreading through MVDF.

21

To the contrary, during the week of July 27, Defendants added more class members to

22 MVDF than they released, increasing the density while the outbreak spread. At the same time,

23 Defendants left symptomatic class members who would test positive for COVID-19 in their

24 dorms to potentially infect other people. Numerous class members in multiple MVDF dorms have

25 now tested positive for COVID-19. At least one has been hospitalized. Plaintiffs’ requested TRO

26 is a stop-gap measure necessary to prevent this situation from becoming even more dire and

27 deadly.

28

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1

2

FACTS

3

4

As of Friday, July 31, 2020, when the parties filed their Joint Case Management

5 Statement, thirteen GEO staff and three class members at MVDF had tested positive for COVID-

6 19. See Dkt. 474. Despite the alarming rise in positive cases, Defendants have declined to provide

7 universal testing to class members, develop a comprehensive plan to test class members, house

8 them safely, or make further releases of medically vulnerable individuals. Defendants have also

9 admitted, through the deposition testimony of MVDF warden Nathan Allen, that GEO does not

10 require employees to be tested or to remain at home if they come into close contact with someone

11 who has tested positive. Coupled with recent intra-dorm transfers and new intakes from prison,

12 conditions at MVDF pose a grave and imminent risk to the health and safety of class members, as

13 well as to the general public.

14

Against this backdrop, on Saturday, August 1, Plaintiffs learned from other class members

15 that a fourth class member had tested positive for COVID-19. According to his attorneys, Mr.

16 Yao Saeturn, who is 65 years-old and suffers from chronic medical conditions,1 had been

17 exhibiting symptoms of COVID-19 for several days before he was brought to see Wellpath

18 medical staff on Friday, July 31. See Declaration of Susan Beaty (“Beaty Dec.”) at ¶ 6. Class

19 members from Dorm C, where Mr. Saeturn had been housed, reported to his attorneys that he had

20 been suffering from body aches, extreme fatigue, and coughing for more than two days – and that

21 his requests for medical attention were repeatedly ignored by GEO. Id.

22

Neither Plaintiffs’ counsel nor Mr. Saeturn’s attorneys were initially able to obtain basic

23 information from Defendants about his status, location or condition. Instead, information has

24 trickled out from class members calling in distress. According to class members in Dorm C, Mr.

25
26 1 Mr. Saeturn has hypertension, high cholesterol, gout, and cerebrovascular disease with significant functional limitations as a result of a prior stroke. See Dkt. 128-2 (Bail Application).
27 Defendants have consistently downplayed his medical conditions, and recently confiscated Mr. Saeturn’s walking cane that he relied upon for mobility. See Dkt. 139-2 (Response to Bail
28 Application); Beaty Dec. at ¶ 3.

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1 Saeturn was removed from the dorm, and class members in Dorm C were informed that he had

2 tested positive for the virus. Dorm C was then “cohorted,” meaning that it was placed on

3 lockdown. After being informed by a GEO officer that Mr. Saeturn had been hospitalized, Mr.

4 Saeturn’s attorneys succeeded in locating Mr. Saeturn at Mercy Hospital Downtown.

5

That same day (August 1), Plaintiffs requested information regarding the safety of Mr.

6 Saeturn and all class members from the Defendants via email. Maclean Dec., Exh. J (email from

7 Plaintiff’s counsel, Genna Beier). Specifically, Plaintiffs requested confirmation that Mr. Saeturn

8 had tested positive, and asked whether Defendants could provide his location and his status.

9 Among other things, Plaintiffs also asked for information relating to the well-being of all class

10 members, including whether testing had been offered to all those in Dorm C; what, if any, contact

11 tracing was being performed; what information about positive tests had been provided to class

12 members by Defendants; and what the capacity is for local hospitals to absorb patients from Mesa

13 Verde. Further, Plaintiffs called on Defendants to take urgent steps to protect class members,

14 including by providing universal rapid (point-of-care) testing to class members and staff alike,

15 offering Plaintiffs’ counsel immediate access to class members who have been offered testing and

16 refused, releasing medically vulnerable individuals such as Mr. Saeturn, and ceasing any new

17 intakes into the facility until universal periodic testing has been implemented. Defendants initially

18 failed to respond, other than to state that “Mr. Yao Saeturn was released to his family and is no

19 longer in custody” (Coleman email 8/2/20), and, “Mesa Verde does not have enough rapid testing

20 available to test all detainees.” (Choe email 8/3/20).2

21

On August 3, Plaintiffs’ counsel sent an e-mail requesting information about whether class

22 members had tested positive and whether those who tested positive were being segregated.

23 Maclean Dec., ¶ 11. Only in response to this request did Defendants inform Plaintiffs that five

24 detainees in Dorm B had tested positive, with results pending for an unknown number of

25 additional detainees, and that as of now, both Dorm B and Dorm C are “cohorted.” Id. Later, on

26 2 Plaintiffs have since learned that Mr. Saeturn was released from ICE custody on an order of

27 supervision and directly admitted to the Emergency Department, where he remained until

Sunday, August 2. Mercy Hospital Downtown discharged Mr. Saeturn on August 3. His attorneys

28 report that he will quarantine at a motel in Merced, California, prior to returning home to his

family. His condition, thankfully, is stable.

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1 the evening of August 3, Defendants finally provided additional information about Mr. Saeturn

2 and others in Dorm C. Maclean Dec., Exh. K. While Defendants’ represented that “arrangements”

3 to test the class members in Dorm C are “in progress,” as of the afternoon of August 3, none of

4 them had been tested. Beaty Decl. at ¶ 16. Moreover, class members report that approximately

5 one dozen individuals in Dorm C are ill and showing symptoms of COVID-19. Beaty Decl. at ¶

6 16. Although it is not clear from Defendants’ statements, it now appears that in at least three of

7 the four dormitories at MVDF, detainees who have tested positive and/or have been exposed to a

8 known case of COVID-19 are indiscriminately housed among the general population.3

9

Defendants also informed class counsel that ten class members were “transferred for

10 removal” on August 3. This is one of the largest, if not the largest, groups of daily releases from

11 MVDF. Defendants did not inform class counsel where those class members were transferred,

12 whether any of them had been tested prior to transfer, or whether they will be tested on arrival to

13 the facility receiving them. It thus appears that those transfers may spread COVID-19 to other

14 facilities.

15

Defendants know that it is unacceptable to simply leave detainees who have tested

16 positive in a dorm because such practices violate applicable ICE Health Service Corps policies

17 and risks exposing other detainees to COVID-19. Declaration of Francisco Unger (Unger Dec.),

18 Exh. A, GEO_07064 (6/4/2020, Warden Allen email to Cheryl Nelson and Paul Laird, with Allen

19 explaining that a detainee who tests positive cannot be left in dorm in view of “IHSC/Public

20 Health” protocols and “the continued exposure to other detainees.”). GEO has acknowledged that

21 even potentially exposed detainees— to say nothing of known positive cases— cannot be housed

22 in dormitories because of the risk of widespread transmission. Id., Exh. B, GEO_07202

23 (7/1/2020, Warden Allen writing to Cheryl Nelson, “I cannot put them [“potential exposures”] in

24 the dorms (with the risk of spreading an infection)…”). Throughout this litigation, GEO has

25 known that MVDF’s severe space limitations and small number of available isolation rooms

26

27 3 Even as Plaintiffs’ counsel were finalizing this motion, they continued to receive alarming

reports out of MVDF. For example, a class member reports that around 7 p.m. on August 3,

28 firefighters entered the building and left with a man on oxygen on a stretcher who had apparently

been in Dorm B. Beaty Decl. ¶ 17.

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1 make it all but impossible for the facility to safely manage multiple positive COVID-19 cases. Id.,

2 Exh. C, GEO_00003 (4/10/2020, Department of Homeland Security Survey filled out by Warden

3 Allen, with the question “How many ICE detainees can the facility hold in quarantine or isolation

4 if a detainee tests positive for COVID-19?” answered with “2.”); id, Exh. D, GEO_01052

5 (6/4/2020, Warden Allen email to Alexander Pham noting that “[t]he issue [regarding COVID

6 testing plan] is going to be the same as last time regarding housing for multiple positives.”). ICE

7 has recognized the need to release additional class members from MVDF to allow it to respond to

8 an outbreak, but has failed to release even those it classifies as having the “least egregious cases.”

9 Maclean Dec., Exh. M, ICE 637 (6/4/2020, Alexander Pham email to David Jennings).

10

Warden Allen has not minced words in addressing Mesa Verde’s inability to safely handle

11 multiple positive cases. When ICE intervened just last month to transfer six detainees exposed to

12 COVID-19 during the intake process to another facility with more space for cohorting and

13 isolation, Allen wrote to his colleagues “[l]ooks like we’re dodging a bullet.” Unger Dec., Exh. E,

14 GEO 06391 (7/2/2020, Warden Allen email to Paul Laird and Cheryl Nelson.) Yet GEO’s

15 awareness of a potential catastrophe at Mesa Verde has not been matched by a sense of urgency

16 in developing procedures and alternative housing arrangements that would mitigate risk. Indeed,

17 Warden Allen’s own GEO supervisor has harshly criticized MVDF’s lack of any “creative effort”

18 to develop safer procedures even after repeated prodding. Id., Exh. F, GEO_08822 (6/25/2020,

19 GEO Western Region Vice President Paul Laird writing to Warden Allen regarding Mesa Verde

20 intake procedures: “[w]e cannot just throw up our hands and say there isn’t anything we can do…

21 I know we have discussed this multiple times before and it appears there has been no creative

22 effort to come up with some mitigating strategies.”).

23

Even more troubling, ICE’s discussions suggest that MVDF has failed to implement

24 widespread testing of detainees and staff not because the facility lacks the resources to do so but

25 precisely because MVDF has not developed a workable strategy for facilitating the isolation and

26 cohorting that appropriately responding to many test results would require. Id., Exh. G,

27 GEO_06238 (7/6/2020, Brooke Sanchez-Othon writing to Janese Mull and Warden Allen that

28 ICE rejected Mesa Verde’s plan for testing all detainees because “[t]esting all detainees will

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1 potentially cause… [a] housing issue… [c]ompleting the testing is not the issue it is just what we

2 will need to do with the results once they are received.”); id., Exh. H, GEO_06450 (5/26/2020,

3 Warden Allen email to Cheryl Nelson noting that “[t]he [ICE] AFOD [Assistant Field Office

4 Director] mentioned… he would rather not have staff testing as… an asymptomatic person testing

5 positive would require dorm cohorts and detainee testing protocols.”); Maclean Dec., Exh. L, ICE

6 682 (5/27/20, email from David Jennings to Russell Hoyt regarding ICE’s concerns about testing

7 because “we have no place to cohort anyone who … is positive”). In other words, widespread

8 testing has not been done because Defendants fear they would not be able to handle the truths that

9 it would reveal.

10

LEGAL STANDARD

11

Plaintiffs are entitled to a temporary restraining order if they establish that they are “likely

12 to succeed on the merits, . . . likely to suffer irreparable harm in the absence of preliminary relief,

13 that the balance of equities tips in [their] favor, and that an injunction is in the public interest.”

14 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); Stuhlbarg Int’l Sales Co. v. John D.

15 Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001) (noting that preliminary injunction and

16 temporary restraining order standards are “substantially identical”). A temporary restraining order

17 may likewise issue where “serious questions going to the merits [are] raised and the balance of

18 hardships tips sharply in [plaintiff’s] favor.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127,

19 1131 (9th Cir. 2011) (citation omitted). To succeed under the “serious question” test, Plaintiffs

20 must show that they are likely to suffer irreparable injury and that an injunction is in the public’s

21 interest. Id. at 1132.

22

ARGUMENT

23

COVID-19 is spreading quickly through MVDF. Three months after the TRO, two

24 months after the preliminary injunction, one month after facility guards first tested positive for

25 COVID-19, and several weeks after a MVDF class member first tested positive, Defendants have

26 taken no effective action. The Court has already found that Plaintiffs satisfied the TRO and

27

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NOTICE OF MOTION AND MOTION

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FOR TEMPORARY RESTRAINING ORDER

CASE NO. 3:20-CV-02731-VC

Case 3:20-cv-02731-VC Document 485 Filed 08/05/20 Page 9 of 10

1 injunctive relief factors on a record where there were no confirmed positive tests at MVDF.4

2 (Dkt. 53; Dkt. 357.) In the face of Defendants’ inaction as COVID-19 spreads throughout MVDF,

3 the conditions are even more dangerous, the harm more imminent, and the equities more sharply

4 tipped in favor of immediate relief than at the preliminary-injunction phase. Defendants’

5 “disinterest and . . . lack of dexterity in adjusting its conduct to respond to a global crisis” has

6 come to roost. Dkt. 357 at 3.

7

Defendants have had months to prepare for the inevitable outbreak that experts long

8 warned would happen. Id. at 6, n. 2 (“[T]he fact that Covid has not yet entered the facilities does

9 nothing to undermine the unrebutted evidence that if and when it does, it may cause a rapid and

10 dangerous outbreak.”). They have done virtually nothing, refusing to implement a universal

11 testing and isolation protocol. Even the limited discovery taken to date demonstrates that

12 Defendants have long been aware of the serious risks that the inability to quarantine at MVDF,

13 that they failed to create any plan to respond to those risks, and that now that the risks are reality

14 that they have failed to meaningfully respond. As explained below, further temporary relief is

15 now necessary to prevent an increasingly dangerous situation from spiraling even more out of

16 control.

17

Immediate point-of-care testing is necessary to determine the scope of the outbreak.

18 Absent the rapid results that such testing produces, additional class members will inevitably

19 contract COVID-19 from their dorm-mates. Those infected will be at risk of becoming seriously

20 ill or dying, particularly the many class members who have COVID-19 risk factors. Third

21 Supplemental Declaration of Dr. Robert Greifinger (“Greifinger Dec.”) ¶¶ 9-12.

22

Once Defendants have the results from such rapid point-of-care tests they should

23 immediately isolate all of those who test positive in a cleared dorm, provided that there are no

24 further rooms in which to isolate individual class members. Greifinger Dec. ¶¶ 13-15. As

25 Defendants’ own documentary discovery shows, supra, isolating positive cases is the only way to

26

27 4 Defendants’ most vociferous responses to Plaintiffs’ requests for relief in this case had been that

there were no positive cases at MVDF and that class members were accordingly not endangered.

28 Dkt. 357, at 6, n. 2. While the Court has long been unpersuaded by this argument (see Dkt. 53 at

4), there can be no dispute that Plaintiffs’ position is stronger than it was previously.

NOTICE OF MOTION AND MOTION

9

FOR TEMPORARY RESTRAINING ORDER

CASE NO. 3:20-CV-02731-VC

Case 3:20-cv-02731-VC Document 485 Filed 08/05/20 Page 10 of 10

1 prevent other detainees sharing a dorm from contracting COVID-19. Thus, the equitable relief

2 factors weigh in favor of Plaintiffs’ requested relief.

3

CONCLUSION

4

For the foregoing reasons, the Court should grant Plaintiffs’ motion for a TRO.

5 Dated: August 5, 2020 6 7

AMERICAN CIVIL LIBERTIES FOUNDATION OF NORTHERN CALIFORNIA

8

By: /s/ Sean Riordan

9

Sean Riordan (255752)

10

Attorneys for Petitioners-Plaintiffs

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12

13

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15

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NOTICE OF MOTION AND MOTION

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FOR TEMPORARY RESTRAINING ORDER

CASE NO. 3:20-CV-02731-VC

Case 3:20-cv-02731-VC Document 486 Filed 08/05/20 Page 1 of 7

1 WILLIAM S. FREEMAN (SBN 82002)

MANOHAR RAJU (SBN 193771)

wfreeman@aclunc.org 2 SEAN RIORDAN (SBN 255752)

Public Defender MATT GONZALEZ (SBN 153486)

3 sriordan@aclunc.org ANGÉLICA SALCEDA (SBN 296152)

Chief Attorney GENNA ELLIS BEIER (CA SBN 300505)

4 asalceda@aclunc.org

genna.beier@sfgov.org

AMERICAN CIVIL LIBERTIES UNION

EMILOU H. MACLEAN (CA SBN 319071)

5 FOUNDATION OF NORTHERN

emilou.maclean@sfgov.org

CALIFORNIA 6 39 Drumm Street

FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org

7 San Francisco, CA 94111 Telephone: (415) 621-2493

OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO

8 Facsimile: (415) 255-8437

555 Seventh Street

9 Attorneys for Petitioners-Plaintiffs

San Francisco, CA 94103 Direct: (415) 553-9319

10

*Admitted Pro Hac Vice Additional Counsel Listed on Following Page

Facsimile: (415) 553-9810

11

12

UNITED STATES DISTRICT COURT

13

NORTHERN DISTRICT OF CALIFORNIA

14
ANGEL DE JESUS ZEPEDA RIVAS, 15 BRENDA RUBI RUIZ TOVAR, LAWRENCE
KURIA MWAURA, LUCIANO GONZALO 16 MENDOZA JERONIMO, CORAIMA
YARITZA SANCHEZ NUÑEZ, JAVIER 17 ALFARO, DUNG TUAN DANG,

18

Petitioners-Plaintiffs,

19

v.

20 DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration
21 and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior
22 Official Performing the Duties of the Director of the U.S. Immigration and Customs
23 Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP,
24 INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,
25
Respondents-Defendants. 26

Case No. 3:20-CV-02731-VC
DECLARATION OF SUSAN BEATY IN SUPPORT OF PETITIONERS-PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER

27

28
DECLARATION OF SUSAN BEATY ISO OF PLAINTIFFS’ MOTION FOR TRO
CASE NO. 3:20-CV-02731-VC

Case 3:20-cv-02731-VC Document 486 Filed 08/05/20 Page 2 of 7

1 BREE BERNWANGER* (NY SBN 5036397) MARTIN S. SCHENKER (SBN 109828)

bbernwanger@lccrsf.org 2 HAYDEN RODARTE (SBN 329432)

mschenker@cooley.com COOLEY LLP

3 hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR

101 California Street, 5th Floor San Francisco, CA 94111

4 CIVIL RIGHTS OF

Telephone: (415) 693-2000

SAN FRANCISCO BAY AREA

Facsimile: (415) 693-2222

5 131 Steuart St #400

San Francisco, CA 94105 6 Telephone: (415) 814-7631

TIMOTHY W. COOK* (Mass. BBO# 688688) tcook@cooley.com

7 JUDAH LAKIN (SBN 307740)

FRANCISCO M. UNGER* (Mass. BBO# 698807)

8 judah@lakinwille.com

funger@cooley.com

AMALIA WILLE (SBN 293342) 9 amalia@lakinwille.com

COOLEY LLP 500 Boylston Street

10

LAKIN & WILLE LLP 1939 Harrison Street, Suite 420

Boston, MA 02116 Telephone: (617) 937-2300

11 Oakland, CA 94612 Telephone: (510) 379-9216

Facsimile: (617) 937-2400

12 Facsimile: (510) 379-9219

13 JORDAN WELLS (SBN 326491)

14

jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568)

15 spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION

16 FOUNDATION OF SOUTHERN

CALIFORNIA 17 1313 West Eighth Street

18

Los Angeles, CA 90017 Telephone: (213) 977-9500

19 Facsimile: (213) 977-5297

20

21

22

23

24

25

26

27

28

DECLARATION OF SUSAN BEATY ISO OF PLAINTIFFS’ MOTION FOR TRO
CASE NO. 3:20-CV-02731-VC

Case 3:20-cv-02731-VC Document 486 Filed 08/05/20 Page 3 of 7
DECLARATION OF SUSAN BEATY I, Susan Beaty, hereby declare and state as follows:
1. My name is Susan Beaty. I am employed by Centro Legal de la Raza (“Centro Legal”) as an attorney in the Immigrants’ Rights Project. Centro Legal represents a number of individuals detained at the Mesa Verde Detention Facility (“MVDF”), including Yao Xeng Saeturn (“Mr. Saeturn”).
2. The facts stated in this declaration are true and of my own personal knowledge, except as to any matters stated on information and belief, and as to those matters, I am informed and believe them to be true.
3. Centro Legal has represented Mr. Saeturn in federal habeas proceedings and before ICE since April, 2020. Mr. Saeturn is 65 years-old, and suffers from a number of medical conditions which render him vulnerable to severe outcomes if he contracts COVID-19, including hypertension, cerebrovascular disease with significant functional limitations as a result of a prior stroke, and gout.
4. On Saturday, August 1, 2020, between 11am and 1pm, I spoke on the phone with the following individuals detained in Dorm C at MVDF: Gabriel Yucate-Camey (“Mr. Yucate-Camey”), Walter Cruz Zavala (“Mr. Cruz Zavala”), and Asif Qazi (“Mr. Qazi”). Later that same day, at 6pm, I had a follow up phone conversation with Mr. Qazi.
5. They each informed me that during the late evening on Friday, July 31, 2020, our client Mr. Saeturn was removed from the dormitory by medical staff. They informed me that after Mr. Saeturn was removed, a GEO official came into the dorm and announced that Mr. Saeturn had tested positive for COVID-19, and that the entire dorm is now under quarantine. They stated that, at the time of our calls, no one else in the dorm had been
1

Case 3:20-cv-02731-VC Document 486 Filed 08/05/20 Page 4 of 7
tested for COVID-19, and GEO staff had not cleaned or sanitized the dorm. 6. Mr. Qazi reported that Mr. Saeturn had been showing symptoms consistent with COVID-
19 for at least two days – including body ache, coughing, and extreme fatigue. Mr. Qazi said that he and other men in the dorm had informed GEO officers in the dorm about Mr. Saeturn’s condition at least four times. Mr. Qazi said that facility staff told him multiple times that Mr. Saeturn “looked fine” and refused to give Mr. Saeturn treatment. Mr. Qazi said that Mr. Saeturn’s symptoms became increasingly severe over the course of the day on Friday, July 31, until he was removed from the dorm. 7. Mr. Qazi also reported that dorm C has received several new transfers from criminal custody in the past week, and that none of the new transfers was quarantined prior to being placed in the dorm. 8. All three of the men I spoke with reported that the dorm is particularly unsanitary currently, because facility staff have not cleaned the bathrooms or other shared surfaces in over a week, since the majority of the men in the dorm began a labor strike to protest their conditions during the COVID-19 pandemic. All three of the men also reported that, due to the labor strike, facility staff had revoked access to the commissary this week, meaning that they will not be able to purchase additional hygiene supplies. 9. In the early afternoon on Saturday, August 1, our office called the front desk at Mesa Verde to inquire about Mr. Saeturn. My colleague Lisa Knox spoke with Lieutenant Vasquez, who confirmed that Mr. Saeturn was removed from the facility and taken to a nearby hospital. Lieutenant Vasquez would not disclose the name of the hospital or additional details about Mr. Saeturn’s condition. My colleague Ms. Knox asked Lieutenant Vasquez for a call with Mr. Saeturn as soon as possible.
2

Case 3:20-cv-02731-VC Document 486 Filed 08/05/20 Page 5 of 7
10. In an effort to locate our client, our office called at least six different hospitals in Bakersfield over the course of three hours. Shortly before 5pm, front desk staff at Mercy Hospital Downtown were able to confirm that an elderly man with Mr. Saeturn’s date of birth was brought to the hospital by ICE officials from the Mesa Verde Detention Facility. A doctor who refused to disclose her name said that Mr. Saeturn was being admitted into the Emergency Room and that he was stable. Our office requested to speak with Mr. Saeturn directly. Hospital staff connected Ms. Knox to someone who identified himself as Mr. Saeturn’s “guard”. He told us that ICE was processing Mr. Saeturn for release, but that ICE would not allow anyone to speak with Mr. Saeturn until he was released from their custody.
11. On Sunday, August 2, Ms. Knox called Mercy Hospital. A nurse who did not name herself informed Ms. Knox that Mr. Saeturn had been moved to a different floor of the hospital, and that he was no longer in the emergency department. She permitted Ms. Knox to place a call to Mr. Saeturn’s room. There was no answer. No further information regarding his condition was provided, other than the fact that he was “stable.”
12. Later on August 2, Ms. Knox spoke with another nurse, who stated that Mr. Saeturn was ready to be discharged, but had been ordered discharged to ICE. Ms. Knox explained that Mr. Saeturn had been released from ICE custody. The nurse was able to locate and review Mr. Saeturn’s release paperwork, and indicated he would be discharged from the hospital to his family on August 3.
13. On Monday, August 3, 2020, Ms. Knox spoke with ERO Deportation Officer Tamara Maldonado. She stated that she had been “called in” to process Mr. Saeturn’s release on August 1, but stated she did not know the reasons for his release. At approximately 1pm
3

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on August 3, 2020, Ms. Knox received a call from Mr. Saeturn who confirmed he had been discharged from the hospital. 14. At around 1pm on August 3, I received a phone call from an individual detained in Dorm B, Israel Parra (“Mr. Parra”). He reported that his friend had come back from the medical unit, where he was told that several of the coronavirus tests had come back with positive results, but that there were not enough medical segregation cells available to quarantine people. 15. Several hours later, around 5pm, I received another call from Mr. Parra. He informed me that he and four other people in Dorm B were told by Mesa Verde staff that they tested positive for COVID-19. He said that two of the five were moved into solitary confinement cells, and the other three were moved to the intake cells near the entrance of the facility. He said he was in one of the intake cells, which had just a bench and a toilet, but no bed. He reported that he had a headache and was having trouble breathing, and that he was worried for his health because he has diabetes. He said that he had not spoken with any medical staff or received any medical treatment since he was removed from the dorm. He said he believed that none of the other four people with confirmed COVID-19 cases had received treatment, either. 16. Also on August 3, between 2pm and 4pm, I received calls from Mr. Yacute Camey, Mr. Cruz Zavala, and Mr. Qazi from Dorm C. All three men confirmed that they had not received any updates or information from GEO or ICE personnel regarding COVID-19 at Mesa Verde. They confirmed that despite numerous requests to GEO staff, no one in dorm C had been tested for COVID-19 as of the time of our calls. They confirmed that GEO staff had still not cleaned or sanitized any part of their dormitory, nor provided
4

Case 3:20-cv-02731-VC Document 486 Filed 08/05/20 Page 7 of 7
them any additional cleaning supplies, leaving detained people to clean bathrooms and shared surfaces with soap and shampoo purchased from the commissary. Mr. Yacute Camey and Mr. Cruz Zavala reported that around a dozen men in Dorm C are currently sick, with symptoms like headaches, chills, and sore throats. 17. Just after 7pm on August 3, Mr. Parra called me again and shared that about 20 minutes before his call, guards came through and covered up the tiny window in his cell door (and did the same in the other solitary cells). He said he then heard sirens, and saw firefighters enter the building, and then leave with a man on a stretcher. The man had an oxygen mask on his face. Mr. Parra believes the man had been in Dorm B and was brought down from a medical isolation cell.
I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. Executed this 3rd day of August, 2020 in Berkeley, California.
s/ Susan Beaty Susan Beaty Declarant
5

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1

1 WILLIAM S. FREEMAN (SBN 82002)

MANOHAR RAJU (SBN 193771)

wfreeman@aclunc.org 2 SEAN RIORDAN (SBN 255752)

Public Defender MATT GONZALEZ (SBN 153486)

3 sriordan@aclunc.org ANGÉLICA SALCEDA (SBN 296152)

Chief Attorney GENNA ELLIS BEIER (CA SBN 300505)

4 asalceda@aclunc.org

genna.beier@sfgov.org

AMERICAN CIVIL LIBERTIES UNION

EMILOU H. MACLEAN (CA SBN 319071)

5 FOUNDATION OF NORTHERN

emilou.maclean@sfgov.org

CALIFORNIA 6 39 Drumm Street

FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org

7 San Francisco, CA 94111 Telephone: (415) 621-2493

OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO

8 Facsimile: (415) 255-8437

555 Seventh Street

9 Attorneys for Petitioners-Plaintiffs

San Francisco, CA 94103 Direct: (415) 553-9319

10

*Admitted Pro Hac Vice Additional Counsel Listed on Following Page

Facsimile: (415) 553-9810

11

12

UNITED STATES DISTRICT COURT

13

NORTHERN DISTRICT OF CALIFORNIA

14
ANGEL DE JESUS ZEPEDA RIVAS, 15 BRENDA RUBI RUIZ TOVAR, LAWRENCE
KURIA MWAURA, LUCIANO GONZALO 16 MENDOZA JERONIMO, CORAIMA
YARITZA SANCHEZ NUÑEZ, JAVIER 17 ALFARO, DUNG TUAN DANG,

18

Petitioners-Plaintiffs,

19

v.

20 DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration
21 and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior
22 Official Performing the Duties of the Director of the U.S. Immigration and Customs
23 Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP,
24 INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,
25
Respondents-Defendants. 26

Case No. 3:20-CV-02731-VC
THIRD SUPPLEMENTAL DECLARATION OF ROBERT GREIFINGER, MD IN SUPPORT OF PETITIONERS-PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER

27

28

DECLARATION OF ROBERT GREIFINGER MD

1

ISO OF PLAINTIFFS’ MOTION FOR TRO

CASE NO. 3:20-CV-02731-VC

Case 3:20-cv-02731-VC Document 487 Filed 08/05/20 Page 2 of 6
2

1 BREE BERNWANGER* (NY SBN 5036397) MARTIN S. SCHENKER (SBN 109828)

bbernwanger@lccrsf.org 2 HAYDEN RODARTE (SBN 329432)

mschenker@cooley.com COOLEY LLP

3 hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR

101 California Street, 5th Floor San Francisco, CA 94111

4 CIVIL RIGHTS OF

Telephone: (415) 693-2000

SAN FRANCISCO BAY AREA

Facsimile: (415) 693-2222

5 131 Steuart St #400

San Francisco, CA 94105 6 Telephone: (415) 814-7631

TIMOTHY W. COOK* (Mass. BBO# 688688) tcook@cooley.com

7 JUDAH LAKIN (SBN 307740)

FRANCISCO M. UNGER* (Mass. BBO# 698807)

8 judah@lakinwille.com

funger@cooley.com

AMALIA WILLE (SBN 293342) 9 amalia@lakinwille.com

COOLEY LLP 500 Boylston Street

10

LAKIN & WILLE LLP 1939 Harrison Street, Suite 420

Boston, MA 02116 Telephone: (617) 937-2300

11 Oakland, CA 94612 Telephone: (510) 379-9216

Facsimile: (617) 937-2400

12 Facsimile: (510) 379-9219

13 JORDAN WELLS (SBN 326491)

14

jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568)

15 spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION

16 FOUNDATION OF SOUTHERN

CALIFORNIA 17 1313 West Eighth Street

18

Los Angeles, CA 90017 Telephone: (213) 977-9500

19 Facsimile: (213) 977-5297

20

21

22

23

24

25

26

27

28

DECLARATION OF ROBERT GREIFINGER MD

2

ISO OF PLAINTIFFS’ MOTION FOR TRO

CASE NO. 3:20-CV-02731-VC

Case 3:20-cv-02731-VC Document 487 Filed 08/05/20 Page 3 of 6
3
THIRD SUPPLEMENTAL DECLARATION OF ROBERT GREIFINGER, MD
I, Robert B. Greifinger, declare as follows:
1. I am a physician who has worked in health care for prisoners for more than 30 years. I have managed the medical care for inmates in the custody of New York City (Rikers Island) and the New York State prison system. I have been an independent consultant on prison and jail health care since 1995. My clients have included the U.S. Department of Justice, Division of Civil Rights (for 23 years) and the U.S. Department of Homeland Security, Section for Civil Rights and Civil Liberties (for six years). I am familiar with immigration detention centers, having toured and evaluated the medical care in approximately 20 immigration detention centers, out of the several hundred correctional facilities I have visited during my career. I currently monitor the medical care in three large county jails for Federal Courts.
2. I provided three earlier declarations in this case, dated April 19 and April 26, 2020, and May 22, 2020. I now provide this third supplemental declaration after reviewing materials provided by the Defendants to the Court and to Plaintiffs in discovery, and reviewing information provided by Plaintiffs to me concerning recent developments at Mesa Verde Detention Center.
3. I have been informed of the following new developments at the Mesa Verde Detention Center: a. thirteen staff members contracted with ICE (from the security contractor GEO and the health contractor Wellpath) have tested positive for COVID-19 in recent weeks; b. at least nine individual detainees have tested positive for COVID-19, two while in intake and seven in different dorms (B and C), one of whom has since been released; c. multiple individuals have been moved between dorms over the past week, including from dorms with infected individuals to other dorms; and d. the Mesa Verde Facilities Administrator confirmed that GEO staff are not tested for COVID-19, there is no plan to test staff for COVID-19, and there is no obligation of contacts of staff who tested positive for COVID-19 to either test or quarantine if they are asymptomatic.
Responding to an Outbreak Through Testing and Isolation 4. In the event of an outbreak of COVID-19 in a congregate facility, the most urgent need is to
prevent any further spread. Given the infectious nature of the virus, preventing further spread is virtually impossible if quick action is not taken. Containment must be a very high priority in the event of any positive COVID-19 tests in a facility where people are living indoors in close proximity. In these contexts, the infectious spread can be extremely rapid.
5. Containment is only possible through quickly identifying those who are infected and isolating them. Containment efforts should also include isolating individuals who may be infected because they have had contact with others who are infected.

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4
6. It is not an effective containment strategy to only test individuals who are showing signs and symptoms of COVID-19. COVID-19 is highly contagious and can be spread by both symptomatic and asymptomatic people.
7. Testing to mitigate the risk of COVID-19 in a detention facility should be frequent and not once-off. This should be at least weekly in order to be able to respond rapidly to any new infections and isolate those who are infected. Nonetheless, in the event of any outbreak, it is critical to rapidly identify those who are infected with the virus and isolate them, even if it is not yet possible to identify or implement the medium- or long-term plan to further mitigate the risk.
8. In school or sports settings, where people are congregating in groups, public health experts have identified regular rapid testing in order to mitigate the risks of the virus. In some contexts, this means testing multiple times a week, but the recommendation is almost always at least weekly. This periodic testing is important for many reasons. Among the reasons: there is an incubation period for the virus, where individuals will test negative despite being positive; and individuals can be exposed and become positive after the initial test.
Point of Care and Laboratory Tests 9. “Point of care” tests are tests that can be both taken and analyzed on-site, producing
relatively quick results. Samples need not be sent to a laboratory for reading and results can be available within minutes or hours. This has obvious benefits in a congregate setting where delayed results mean that more people are at risk of getting infected through interactions which take place while waiting for results.
10. The Abbott ID Now is one such point of care test developed for COVID-19. Some early analysis of the Abbott ID Now test have shown that it can produce some so-called “false negatives.” False negatives are when an individual is in fact infected with COVID but the test result does not show that. This limitation of the test does not mean that it should not be used. The speed of the test, and its effectiveness in identifying most of those who are infected with COVID-19 (so-called “true positives”), make it a very useful tool in a congregate setting. The fact that there are some false negatives only suggests that there should also be confirmatory laboratory tests done for those who test negative.
11. The industry standard for COVID-19 testing is real-time reverse transcription polymerase chain reaction (rCT-PCR) testing. These tests analyze nucleic acid from SARS-CoV-2 in upper and lower respiratory specimens, such as nasophyarngeal or oropharyngeal swabs. These specimens need to be analyzed in a laboratory. Where there are adequate resources, laboratories can report results quite quickly. However, particularly in light of the increase in COVID-19 cases in the State of California and nationwide, there are often insufficient resources to allow for rapid results. This has resulted in some delays.
12. It is worthless to rely only on laboratory tests that produce very delayed results. I understand that Defendants in this case have identified that it could take “up to several weeks to obtain results” from laboratory tests they propose. Dkt. 429-1 at n.3. Such delayed results would

Case 3:20-cv-02731-VC Document 487 Filed 08/05/20 Page 5 of 6
5
provide no value. An individual who was positive several weeks ago, at the time the sample was taken, might no longer be positive at the time of the diagnosis, making the test meaningless for the individual. Moreover, the individual would likely have infected numerous other people in the interim if they were unable to quarantine in the period in which they were waiting for the results.
Isolating and Contact Tracing Despite Space Limitations 13. I am familiar with the space limitations for isolating individuals at Mesa Verde. I understand
that there five single cells with beds, with two in the medical unit and three for restricted housing, the latter typically used to respond to disciplinary violations. (Only the rooms in the medical unit have negative pressure ventilation which is important in limiting the likely spread of COVID-19.) I also understand that there are three intake rooms that do not have beds. Plaintiffs have informed me that GEO has identified these intake rooms as back-up isolation rooms in the event that they run out of space to house people who test positive for COVID-19 in the other five single-bed isolation rooms. To house people in these intake rooms, according to testimony provided by the Facilities Administrator at GEO, would require mats to be brought into the intake rooms and for individuals to sleep on these mats on the floor. Plaintiffs have informed me that spending more than 12 hours in these rooms is also a violation of the ICE guidelines.
14. Given the space limitations at Mesa Verde, if more than a few people test positive for COVID-19, it is urgent that a common living space be cleared to house all of those who test positive for COVID-19. It is best practice for people who test positive to be isolated in individual cells. However, if that is not possible, individuals who test positive should at a minimum be isolated from others who have tested negative or whose status is unknown. These individuals should be isolated for as long as required, in accordance with the CDC standards which I previously laid out in my May 22, 2020 Declaration at ¶ 56.
15. It is important that the isolation of those who test positive not lead to increased density in other living spaces. This would mean that risks would be diminished in one way (by isolating those who test positive) but increased in another way (by decreasing the prospects for social distancing for those who have not tested positive). Increasing the density of certain dorms would be particularly concerning where, as here, there is uncertainty that those who remain in the dorms do not have COVID-19 and that staff members who attend to detainees do not have COVID-19. One person who is infected with COVID-19 in a shared living space is very risky for everyone else in that shared living space if there is insufficient room to socially distance.
16. Individuals who do not test positive but who have had contact with individuals who test positive should also be cohorted and should not interact with others who have had no known contact with those infected with COVID-19. This means for the period where one shared living space is quarantined or cohorted, no new individuals should be introduced into that living space. I have further elaborated this in my May 22, 2020 Declaration at ¶ 55

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6
Refusals 17. In my experience, and through consulting with other experts, it is rare for individuals to
refuse the offer of a COVID-19 or other such test. If a large number of individual detainees were refusing to test, I would suspect that they did not understand the question being asked of them or they were distrustful of the entity making the request. While it is a violation of medical ethics to coerce people to take a test in this setting, all efforts should be made to ensure that individual detainees understand what a COVID-19 test consists of and why the individual is being asked to consent to a test.
18. In my opinion, if there is a high refusal rate, individuals who are skeptical of the test should be offered the opportunity to speak with an independent advisor or their own advocate prior to being classified as someone who is “refusing” to take a COVID-19 test.
19. It is particularly important to identify the reasons for purported refusals, and to try to encourage people to be tested if they are willing, if the individuals who are refusing to are new arrivals at the facility and being introduced into the general population directly. The risk of these transfers introducing COVID-19 into the general population is relatively high.
Staff Testing 20. The failure to regularly test staff in a congregate setting, such as Mesa Verde, and to ensure
that staff are not reporting to work while their results are pending, significantly increases the risk of COVID-19 transmission within the facility. As I have previously elaborated, one of the most common ways that COVID-19 enters congregate facilities, such as jails and detention centers, is through staff and contractors. Staff sometimes have a higher infection rate than detainees, and medical staff often have a higher rate of infection than other staff.
21. The recent developments at Mesa Verde are especially concerning. They provide strong evidence that more people (both staff and detainees) are infected currently with COVID-19 than are known to be infected. From the information I have reviewed over the course of this litigation, and from their response to the current positive tests, there is no evidence that either ICE or GEO has a plan in place to limit the risk of further spread of COVID-19. In such an environment, if immediate action is not taken to identify those who are infected and limit any further spread, I would expect that many more detainees will be infected quickly.
Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct.
Executed this 3rd day of August 2020 in Eastham, Massachusetts.
Robert B. Greifinger, M.D.

Case 3:20-cv-02731-VC Document 488 Filed 08/05/20 Page 1 of 7

1 WILLIAM S. FREEMAN (SBN 82002)

MANOHAR RAJU (SBN 193771)

wfreeman@aclunc.org 2 SEAN RIORDAN (SBN 255752)

Public Defender MATT GONZALEZ (SBN 153486)

3 sriordan@aclunc.org ANGÉLICA SALCEDA (SBN 296152)

Chief Attorney GENNA ELLIS BEIER (CA SBN 300505)

4 asalceda@aclunc.org

genna.beier@sfgov.org

AMERICAN CIVIL LIBERTIES UNION 5 FOUNDATION OF NORTHERN

EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org

CALIFORNIA 6 39 Drumm Street

FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org

7 San Francisco, CA 94111 Telephone: (415) 621-2493

OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO

8 Facsimile: (415) 255-8437

555 Seventh Street

9 Attorneys for Petitioners-Plaintiffs

San Francisco, CA 94103 Direct: (415) 553-9319

10 Additional Counsel Listed on Following Page Facsimile: (415) 553-9810

11

12

UNITED STATES DISTRICT COURT

13

NORTHERN DISTRICT OF CALIFORNIA

14

15 ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUBI RUIZ TOVAR, LAWRENCE
16 KURIA MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA
17 YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,
18 Petitioners-Plaintiffs,
19 v.
20 DAVID JENNINGS, Acting Director of the
21 San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T.
22 ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director
23 of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND
24 CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa
25 Verde Detention Facility,

Case No. 3:20-CV-02731-VC
DECLARATION OF EMILOU MACLEAN IN SUPPORT OF PETITIONERS-PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER

26

Respondents-Defendants.

27

28

CASE NO. 3:20-CV-02731-VC DECLARATION OF MARTIN S. SCHENKER IN SUPPORT OF PLAINTIFFS’ MOTION FOR TRO

Case 3:20-cv-02731-VC Document 488 Filed 08/05/20 Page 2 of 7

1 BREE BERNWANGER* (NY SBN 5036397) MARTIN S. SCHENKER (SBN 109828)

bbernwanger@lccrsf.org 2 HAYDEN RODARTE (SBN 329432)

mschenker@cooley.com COOLEY LLP

3 hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR

101 California Street, 5th Floor San Francisco, CA 94111

4 CIVIL RIGHTS OF

Telephone: (415) 693-2000

SAN FRANCISCO BAY AREA 5 131 Steuart St #400

Facsimile: (415) 693-2222

San Francisco, CA 94105 6 Telephone: (415) 814-7631

TIMOTHY W. COOK* (Mass. BBO# 688688) tcook@cooley.com

7 JUDAH LAKIN (SBN 307740)

FRANCISCO M. UNGER* (Mass. BBO# 698807)

8 judah@lakinwille.com

funger@cooley.com

AMALIA WILLE (SBN 293342) 9 amalia@lakinwille.com

COOLEY LLP 500 Boylston Street

10

LAKIN & WILLE LLP 1939 Harrison Street, Suite 420

Boston, MA 02116 Telephone: (617) 937-2300

11 Oakland, CA 94612 Telephone: (510) 379-9216

Facsimile: (617) 937-2400

12 Facsimile: (510) 379-9219

13 JORDAN WELLS (SBN 326491)

14

jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568)

15 spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION

16 FOUNDATION OF SOUTHERN

CALIFORNIA 17 1313 West Eighth Street

18

Los Angeles, CA 90017 Telephone: (213) 977-9500

19 Facsimile: (213) 977-5297

20

Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice

21

22

23

24

25

26

27

28

CASE NO. 3:20-CV-02731-VC DECLARATION OF MARTIN S. SCHENKER IN SUPPORT OF PLAINTIFFS’ MOTION FOR TRO

Case 3:20-cv-02731-VC Document 488 Filed 08/05/20 Page 3 of 7

1

DECLARATION OF EMILOU MACLEAN IN SUPPORT OF PETITIONERS-

PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER 2

3

I, Emilou MacLean, pursuant to 28 U.S.C. § 1746, declare as follows:

4

1. I am an attorney admitted to practice in California. I am a deputy public defender in the

5 immigration unit of the San Francisco Office of the Public Defender and counsel for Petitioners-

6 Plaintiffs in this action. I submit this declaration in support of Petitioners-Plaintiffs’ Motion for a

7 Temporary Restraining Order and to transmit true and correct copies of the following documents.
8 I have personal knowledge of the facts stated in this declaration.
9 2. Attached as Exhibit A is a true and correct copy of an email I sent to Defendants on June
10 11 23, 2020, immediately following Defendants’ Status Report to the Court concerning the first
12 positive test of a Wellpath staff at Mesa Verde. The Exhibit includes Plaintiffs’ initial email to

13 Defendants expressing concern about Defendants’ failure to provide sufficient information or take

14 adequate measures to mitigate the risk of further COVID-19 transmission in the facility. The
15 Exhibit also includes the complete response of Defendant GEO. Federal Defendants did not 16
respond to this communication from Plaintiffs. 17
3. Attached as Exhibit B is a true and correct copy of two emails sent by counsel for Federal 18 19 Defendants on July 2 and July 6, 2020, respectively, concerning the tests of detainees who had
20 contact with the first Wellpath staff member who tested positive for COVID-19 at Mesa Verde.

21

4. Attached as Exhibit C is a true and correct copy of a July 6, 2020 email exchange between

22 William Freeman, counsel for Plaintiffs, and Adrienne Zack, counsel for Federal Defendants,
23 concerning the transfer of six individuals to Adelanto Detention Center following the positive
24 COVID-19 test of an individual detainee who was admitted into Mesa Verde on July 1, 2020.
25 5. Attached as Exhibit D is a true and correct copy of a July 12, 2020 email communication
26
27 from Adrienne Zack, counsel for Federal Defendants, concerning a positive COVID-19 test for a

28

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Case 3:20-cv-02731-VC Document 488 Filed 08/05/20 Page 4 of 7

1 second GEO officer. The officer tested positive on July 5, 2020. (is the third staff member to have

2 tested positive as the second was identified in Dkt. 407.)
3 6. Attached as Exhibit E is a true and correct copy of a series of emails from Adrienne Zack,
4 counsel for Federal Defendants, dated July 15, July 16, and July 17, 2020 concerning additional
5 positive COVID-19 tests of Mesa Verde staff. The July 15 email confirms that three additional
6
7 staff members who received positive test results for COVID-19 on July 12. Staff Member 4 is a

8 medical records clerk; Staff Member 5 is a licensed vocational nurse (LVN); and Staff Member 6

9 is a GEO Officer. The July 16 email confirms that one additional staff member, a GEO Officer

10 (also identified as Staff Member 7), tested positive for COVID-19 on July 14. The July 17 email
11 confirms two additional staff members, a GEO Officer and a Registered Nurse (also identified as
12 Staff Members 8 and 9), tested positive for COVID-19 with positive results received on July 15
13
14 and 16, respectively.

15

7. Attached as Exhibit F is a true and correct copy of a pair of emails from Adrienne Zack,

16 counsel for Federal Defendants, dated July 22 and 23, 2020, confirming that three additional staff

17 members tested positive for COVID-19. Two GEO Officers, identified as Staff Members 10 and
18 11, received a positive test for COVID-19 on July 20. A Registered Nurse, identified as Staff 19
Member 12, received a positive test on July 22 (from a test taken on July 13). 20
8. Attached as Exhibit G is a true and correct copy of a pair of emails from Adrienne Zack, 21 22 counsel for Federal Defendants, dated July 28 and July 29, 2020, and confirming that a 13th staff
23 member at Mesa Verde, a GEO Officer, received a positive test for COVID-19 on July 28.

24

9. Attached as Exhibit H is a true and correct copy of a pair of emails from Adrienne Zack,

25 counsel for Federal Defendants, dated July 30 and July 31, 2020, concerning a second individual
26 detainee who tested positive for COVID-19 at intake after showing symptoms. The individual
27 with whom he had contact during transport was placed in Dorm B. A third individual detainee,
28

CASE NO. 3:20-CV-02731-VC DECLARATION OF MARTIN S. SCHENKER IN SUPPORT OF PLAINTIFFS’ MOTION FOR TRO

Case 3:20-cv-02731-VC Document 488 Filed 08/05/20 Page 5 of 7
1 who had been in Dorm B, also tested positive for COVID-19 on July 29, 2020, and was placed
2 into medical isolation. The remaining detainees in Dorm B were placed “on cohort for 14-day 3
monitoring” and, subsequently, offered testing. 4
10. Attached as Exhibit I is a true and correct copy of an email exchange between counsel for 5
Plaintiffs and counsel for Defendants concerning a proposal from Plaintiffs for periodic and 6 7 universal testing, contact tracing, and segregating detainees based on whether and how they test
8 for COVID-19. Sean Riordan, counsel for Plaintiffs, sent a proposal on July 24. Following a meet
9 and confer on July 27, Mr. Riordan sent a follow-up to the proposal on July 28, answering
10 questions identified by counsel for Defendants. Counsel for Defendants provided no further 11
substantive response. 12
11. Attached as Exhibit J is a true and correct copy of an email exchange initiated on August 13 14 1, 2020 concerning reports of an individual detainee who tested positive for COVID-19 and was 15 subsequently hospitalized. This email exchange includes all directly responsive communications.
16 On August 1, 2020, Genna Beier, counsel for Plaintiffs, notified Defendants that Plaintiffs heard
17 reports that a medically vulnerable and elderly individual tested positive for COVID-19 inside 18 Mesa Verde. Ms. Beier asked for additional information and for Defendants to take affirmative 19
steps to mitigate the risks of further transmission of COVID-19 among the detainee population in 20
Mesa Verde. On August 2, 2020, Susan Coleman, counsel for Defendant GEO responded that the 21 22 individual detainee of concern “was released to his family and is no longer in custody,” but did
23 not provide further responses to Plaintiffs’ questions. On August 3, 2020, Shiwon Choe, counsel
24 for Federal Defendants, did not answer the questions posed but provided that “ICE has requested
25 that GEO offer COVID-19 testing to all detainees in Dorm C” and that “Mesa Verde does not 26
have enough rapid testing available to test all detainees.” At 1:56 PM, I wrote to Defendants with 27
additional reports received by counsel for Plaintiffs of further positive COVID-19 tests of 28
CASE NO. 3:20-CV-02731-VC DECLARATION OF MARTIN S. SCHENKER IN SUPPORT OF PLAINTIFFS’ MOTION FOR TRO

Case 3:20-cv-02731-VC Document 488 Filed 08/05/20 Page 6 of 7

1 individual detainees at Mesa Verde. In response, at 3:48 PM, Mr. Choe wrote that counsel for

2 Defendants “have received word that five detainees in Dorm B who were tested on July 30 had
3 results come back that were positive for COVID-19” and “Dorms B and C currently remain
4 cohorted.”
5 12. Attached as Exhibit K is a true and correct copy of an email from Adrienne Zack, counsel
6
7 for Federal Defendants, dated August 3, 2020, confirming the positive test of an individual

8 detainee in Dormitory C following his admission to the emergency room for COVID-19 testing

9 on July 31, 2020, and his subsequent release on an order of supervision on August 2, 2020. This
10 individual is the individual referenced by Ms. Beier in the August 1, 2020 email included herein 11
as Exhibit J. 12
13. Attached as Exhibit L is a true and correct copy of an email from ERO Assistant Directors 13 14 to Field Office Directors and Deputy Field Office Directors, dated May 27, 2020; and a response
15 from ICE San Francisco Field Office Director David Jennings, produced as ICE 682.

16

14. Attached as Exhibit M is a true and correct copy of an email from Assistant Field Office

17 Director Alexander Pham to Field Office Director David Jennings, dated June 4, 2020, produced
18 as ICE 637.
19 I declare under penalty of perjury that the foregoing is true and correct.
20

21 Executed on August 3, 2020 in Berkeley, California.

22

/s/ Emilou MacLean

Emilou MacLean

23

24

25

26

27

28

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Case 3:20-cv-02731-VC Document 488 Filed 08/05/20 Page 7 of 7

1

CERTIFICATE OF SERVICE

2

I hereby certify that on this 3rd day of August, 2020, a true and correct copy of this

3 Declaration was served via electronic mail on (1) Shiwon Choe, counsel for Federal Defendants
4 and (2) Susan Coleman, counsel for GEO Defendants.
5

6

/s/ Martin S. Schenker

Martin S. Schenker

7

Cooley LLP

8

Attorney for Petitioners-Plaintiffs

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

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CASE NO. 3:20-CV-02731-VC DECLARATION OF MARTIN S. SCHENKER IN SUPPORT OF PLAINTIFFS’ MOTION FOR TRO

Case 3:20-cv-02731-VC Document 488-1 Filed 08/05/20 Page 1 of 8
Exhibit A

Case 3:20-cv-02731-VC Document 488-1 Filed 08/05/20 Page 2 of 8

Bree Bernwanger
From: Sent: To:
Cc:
Subject:

Maclean, Emilou (PDR) <emilou.maclean@sfgov.org> Tuesday, June 23, 2020 4:08 PM Coleman, Susan E.; Choe, Shiwon (USACAN); Garbers, Wendy (USACAN); Zack, Adrienne (USACAN) Bill Freeman; Sean Riordan; Angelica Salceda; Beier, Genna (PDR); Ugarte, Francisco (PDR); Bree Bernwanger; Cook, Timothy; Schenker, Marty; Judah Lakin; Amalia Wille Re: Zepeda: response to COVID-confirmed case at Mesa Verde

Dear Susan—
Thank you for confirming that one additional class member has been tested.
The status report filed with the Court yesterday confirms the fears of Plaintiffs’ counsel that ICE is not taking seriously identifying all of those potentially exposed (including by contact with people exposed to the infected nurse or by contact with the infected nurse prior to June 15, 2020); ensuring that all potentially exposed are promptly tested for COVID‐ 19, isolated, and monitored for symptoms, in order to further limit the risk of transmission within the facility; taking further measures to mitigate risk, including through testing beyond those potentially exposed here; and communicating with class members about the risks of transmission. Your resistance to even sharing basic information – the identities of 12 of our clients who Defendants admit have been exposed to a confirmed positive staff member as well as answers to the other questions presented – heightens our concern.
In order to understand if Defendants are adequately protecting class members from the threat of COVID‐19, we need to speak with the class members directly. This is particularly important as Defendants have previously presented inaccurate information to the Court and to class counsel regarding the procedures related to COVID‐19 at Mesa Verde, including related to intake, segregation, and testing. See Dkt. 286‐2 ¶¶ 3‐8; Dkt. 324.
Time is of the essence when there is a risk of exposure in a congregate living facility, as the exponential growth we now see at San Quentin Prison makes clear. Judge Chhabria has identified the “unrebutted evidence that if and when [Covid‐ 19 enters the facilities] it may cause a rapid and dangerous outbreak.” Dkt. 357 at 6 n. 2.
It is our responsibility as class counsel to communicate with our clients who have been exposed to COVID‐19 to understand the risk to them and the class and to be able to meaningfully communicate with the Court if measures are not being taken to adequately mitigate this risk. In the interest of the shared goal of protecting those in the facility from an outbreak, we expect cooperation from Defendants in providing this basic information to us without our needing to resort to judicial intervention. We thus renew our request for the information outlined in our previous correspondence.
Best, Emi

From: "Coleman, Susan E." <SColeman@bwslaw.com> Date: Tuesday, June 23, 2020 at 1:02 PM To: "Maclean, Emilou (PDR)" <emilou.maclean@sfgov.org>, "Choe, Shiwon (USACAN)" <Shiwon.Choe@usdoj.gov>, "Garbers, Wendy (USACAN)" <Wendy.Garbers@usdoj.gov>, "Zack, Adrienne (USACAN)" <Adrienne.Zack@usdoj.gov> Cc: Bill Freeman <wfreeman@aclunc.org>, Sean Riordan <SRiordan@aclunc.org>, Angelica Salceda
1

Case 3:20-cv-02731-VC Document 488-1 Filed 08/05/20 Page 3 of 8
<asalceda@aclunc.org>, "Beier, Genna (PDR)" <genna.beier@sfgov.org>, "Ugarte, Francisco (PDR)" <francisco.ugarte@sfgov.org>, Bree Bernwanger <bbernwanger@lccrsf.org>, "Cook, Timothy" <tcook@cooley.com>, "Schenker, Marty" <mschenker@cooley.com>, Judah Lakin <judah@lakinwille.com>, Amalia Wille <amalia@lakinwille.com> Subject: RE: Zepeda: response to COVID‐confirmed case at Mesa Verde
Emi – if the exposed persons have been tested (and I can now confirm that the person on suicide watch has also been tested), why do you have an obligation to communicate with them?
I also wanted to add that temperatures are not taken orally, so masks are not typically removed during medical encounters. You mentioned that vitals might require removal of masks but they do not.
Susan
Susan E. Coleman | Partner 444 South Flower Street, Suite 2400 | Los Angeles, CA 90071-2953 d - 213.236.2831 | t - 213.236.0600 | f - 213.236.2700 scoleman@bwslaw.com | vCard | bwslaw.com
The information contained in this e-mail message is intended only for the CONFIDENTIAL use of the designated addressee named above. The information transmitted is subject to the attorney-client privilege and/or represents confidential attorney work product. Recipients should not file copies of this email with publicly accessible records. If you are not the designated addressee named above or the authorized agent responsible for delivering it to the designated addressee, you received this document through inadvertent error and any further review, dissemination, distribution or copying of this communication by you or anyone else is strictly prohibited. IF YOU RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY TELEPHONING THE SENDER NAMED ABOVE AT 800.333.4297. Thank you.
From: Maclean, Emilou (PDR) [mailto:emilou.maclean@sfgov.org] Sent: Tuesday, June 23, 2020 12:26 PM To: Coleman, Susan E.; Choe, Shiwon (USACAN); Garbers, Wendy (USACAN); Zack, Adrienne (USACAN) Cc: Bill Freeman; Sean Riordan; Angelica Salceda; Beier, Genna (PDR); Ugarte, Francisco (PDR); Bree Bernwanger; Cook, Timothy; Schenker, Marty; Judah Lakin; Amalia Wille Subject: Re: Zepeda: response to COVID-confirmed case at Mesa Verde
[EXTERNAL]
Counsel,
Thank you for your quick response. However, we have an obligation to communicate with class members who may have been exposed to COVID‐19 through their interaction with this Mesa Verde staff member who has been confirmed to have COVID‐19, and we can only access this information through the facility. We also have an obligation to ensure that the person released is aware of his potential risk of exposure. Thus, we reiterate our request that you confirm the names of our clients who have been exposed. If you will not, we ask that you provide more specific information as to why that information may not be shared with class counsel.
Please also provide information to answer the other questions raised below:
1. what days the COVID‐confirmed medical provider worked in the two weeks before she tested positive;
2

Case 3:20-cv-02731-VC Document 488-1 Filed 08/05/20 Page 4 of 8
2. the names of each of the detained Zepeda class members who had any contact with the COVID‐confirmed
medical provider in the 14 days before she tested positive;
3. whether those detained class members have been informed that they have come into contact with the COVID‐
confirmed medical provider;
4. whether they have been informed that they have the right to a test, whether they have been tested for COVID,
and the results if any;
5. whether ICE has considered offering testing to all detained class members in light of the increased risk as well as
the new CDC guidelines;
6. whether any class members have been cohorted, quarantined, or otherwise segregated in light of exposure, and
whether the facility has the capacity to do so if there is a need;
7. whether staff outside of the medical unit have been offered testing in light of this recent development, whether
they have been tested, and the results if any; and
8. whether the staff member who refused to be tested despite coming into contact with the COVID‐infected nurse
is going to work despite being potentially infectious.
Thank you,
Emi
From: "Coleman, Susan E." <SColeman@bwslaw.com> Date: Tuesday, June 23, 2020 at 10:45 AM To: "Maclean, Emilou (PDR)" <emilou.maclean@sfgov.org>, "Choe, Shiwon (USACAN)" <Shiwon.Choe@usdoj.gov>, "Garbers, Wendy (USACAN)" <Wendy.Garbers@usdoj.gov>, "Zack, Adrienne (USACAN)" <Adrienne.Zack@usdoj.gov> Cc: Bill Freeman <wfreeman@aclunc.org>, Sean Riordan <SRiordan@aclunc.org>, Angelica Salceda <asalceda@aclunc.org>, "Beier, Genna (PDR)" <genna.beier@sfgov.org>, "Ugarte, Francisco (PDR)" <francisco.ugarte@sfgov.org>, Bree Bernwanger <bbernwanger@lccrsf.org>, "Cook, Timothy" <tcook@cooley.com>, "Schenker, Marty" <mschenker@cooley.com>, Judah Lakin <judah@lakinwille.com>, Amalia Wille <amalia@lakinwille.com> Subject: RE: Zepeda: response to COVID‐confirmed case at Mesa Verde
Counsel – GEO does not want to release these names, as the spreading of this information (and the likely corollary discovery of the name of the RN) may lead to disturbances at the facility affecting safety/security. The facility continues to follow CDC recommendations including providing masks to all detainees, allowing for social distance in housing, meals and other activities, and monitoring for symptoms.
Will let you know the results once they are returned. The facility plans to test the individual on suicide once he can be spoken with by a mental health professional, assuming he cooperates, but in the meantime he is isolated from others. The person who was released is no longer an issue for the remaining detainees.
Susan
Susan E. Coleman | Partner 444 South Flower Street, Suite 2400 | Los Angeles, CA 90071-2953 d - 213.236.2831 | t - 213.236.0600 | f - 213.236.2700
3

Case 3:20-cv-02731-VC Document 488-1 Filed 08/05/20 Page 5 of 8
scoleman@bwslaw.com | vCard | bwslaw.com
The information contained in this e-mail message is intended only for the CONFIDENTIAL use of the designated addressee named above. The information transmitted is subject to the attorney-client privilege and/or represents confidential attorney work product. Recipients should not file copies of this email with publicly accessible records. If you are not the designated addressee named above or the authorized agent responsible for delivering it to the designated addressee, you received this document through inadvertent error and any further review, dissemination, distribution or copying of this communication by you or anyone else is strictly prohibited. IF YOU RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY TELEPHONING THE SENDER NAMED ABOVE AT 800.333.4297. Thank you.
From: Maclean, Emilou (PDR) [mailto:emilou.maclean@sfgov.org] Sent: Tuesday, June 23, 2020 10:41 AM To: Coleman, Susan E.; Choe, Shiwon (USACAN); Garbers, Wendy (USACAN); Zack, Adrienne (USACAN) Cc: Bill Freeman; Sean Riordan; Angelica Salceda; Beier, Genna (PDR); Ugarte, Francisco (PDR); Bree Bernwanger; Cook, Timothy; Schenker, Marty; Judah Lakin; Amalia Wille Subject: Re: Zepeda: response to COVID-confirmed case at Mesa Verde
[EXTERNAL]
Dear Susan,
Thank you for this information. Can you please provide asap the names of the individual class members who were tested, as well as the names of the individuals not tested because they were released and on suicide watch, and facilitate calls between these still‐detained class members and class counsel today?
We also look forward to your responses to the other questions that are outstanding.
Sincerely,
Emi
From: "Coleman, Susan E." <SColeman@bwslaw.com> Date: Tuesday, June 23, 2020 at 10:38 AM To: "Maclean, Emilou (PDR)" <emilou.maclean@sfgov.org>, "Choe, Shiwon (USACAN)" <Shiwon.Choe@usdoj.gov>, "Garbers, Wendy (USACAN)" <Wendy.Garbers@usdoj.gov>, "Zack, Adrienne (USACAN)" <Adrienne.Zack@usdoj.gov> Cc: Bill Freeman <wfreeman@aclunc.org>, Sean Riordan <SRiordan@aclunc.org>, Angelica Salceda <asalceda@aclunc.org>, "Beier, Genna (PDR)" <genna.beier@sfgov.org>, "Ugarte, Francisco (PDR)" <francisco.ugarte@sfgov.org>, Bree Bernwanger <bbernwanger@lccrsf.org>, "Cook, Timothy" <tcook@cooley.com>, "Schenker, Marty" <mschenker@cooley.com>, Judah Lakin <judah@lakinwille.com>, Amalia Wille <amalia@lakinwille.com> Subject: RE: Zepeda: response to COVID‐confirmed case at Mesa Verde
This message is from outside the City email system. Do not open links or attachments from untrusted sources.
4

Case 3:20-cv-02731-VC Document 488-1 Filed 08/05/20 Page 6 of 8
Counsel – just wanted to let you know that 10 of the 12 detainees have already been tested. #11 was released. #12 is on suicide watch so he’s in solitary with direct observation, waiting for mental health to assist with administering the test. No results yet.
The screening given to staff on entry is compliant with CDC recommendations.
Also, it is my understanding the RN did not seek a COVID test, it was administered in connection with her medical appointment for other reasons.
Sincerely,
Susan
Susan E. Coleman | Partner 444 South Flower Street, Suite 2400 | Los Angeles, CA 90071-2953 d - 213.236.2831 | t - 213.236.0600 | f - 213.236.2700 scoleman@bwslaw.com | vCard | bwslaw.com
The information contained in this e-mail message is intended only for the CONFIDENTIAL use of the designated addressee named above. The information transmitted is subject to the attorney-client privilege and/or represents confidential attorney work product. Recipients should not file copies of this email with publicly accessible records. If you are not the designated addressee named above or the authorized agent responsible for delivering it to the designated addressee, you received this document through inadvertent error and any further review, dissemination, distribution or copying of this communication by you or anyone else is strictly prohibited. IF YOU RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY TELEPHONING THE SENDER NAMED ABOVE AT 800.333.4297. Thank you.
From: Maclean, Emilou (PDR) [mailto:emilou.maclean@sfgov.org] Sent: Tuesday, June 23, 2020 9:14 AM To: Choe, Shiwon (USACAN); Garbers, Wendy (USACAN); Zack, Adrienne (USACAN); Coleman, Susan E. Cc: Bill Freeman; Sean Riordan; Angelica Salceda; Beier, Genna (PDR); Ugarte, Francisco (PDR); Bree Bernwanger; Cook, Timothy; Schenker, Marty; Judah Lakin; Amalia Wille Subject: Zepeda: response to COVID-confirmed case at Mesa Verde
[EXTERNAL]
Dear Counsel:
Following up on your status report filed yesterday evening related to the confirmed COVID‐19 case at Mesa Verde, Plaintiffs seek further information.
Defendants’ status report to the Court raises serious concerns for Plaintiffs in light of what is included as well as what is lacking. It suggests that Defendants are neither taking this incident seriously nor taking appropriate action in response to it.
 Five days have passed since the confirmed case was identified at Mesa Verde and, based on your status report, there is no evidence that Defendants have tested – or offered testing to – a single one of the 12 detainees with whom she came in contact on her last day at work, let alone on any of the previous days she was working when she may also have been infected with COVID. The status report notes only that “ICE has requested that MV offer COVID‐19 testing” to a limited number of class members. (Plaintiffs reject Defendants’ assertion that class members face minimal risk of exposure where they came into contact with her to have their vital signs and
5

Case 3:20-cv-02731-VC Document 488-1 Filed 08/05/20 Page 7 of 8
blood sugar counts taken given that close proximity is necessary for such interactions. Moreover, given that vital signs were taken, it is likely that detainees were not wearing surgical masks at all times interacting with the health care provider. The status report seems unclear on this issue, noting only that detainees who visited the medical unit “were observed” wearing surgical masks, not that all these class members wore surgical masks at all relevant times.)  There is no evidence that even the 12 people who were in contact with the nurse on the final day that she worked have been cohorted let alone quarantined or individually segregated. Apparently none have been tested, and it seems none have even been offered testing. There is no evidence of quarantining, cohorting, testing, or offering tests for anyone who she came into contact with prior to her last working day. There is not even a recognition of the need to take into consideration the risks to these detained class members if they did not come into contact with the nurse on her last day at work. If any class members are infected, it appears that they remain in the general population where they are at high risk of infecting others.  There is no evidence that ICE is offering testing to all detained class members despite the new CDC guidance recommending this. New CDC guidance on testing, issued on June 13, affirms that “broader testing, beyond close contacts, is recommended as a part of a strategy to control transmission of SARS‐CoV‐2” in “high‐risk settings that have potential for rapid and widespread dissemination of SARS‐CoV‐2.” The guidelines recognize the risk of “substantial adverse effects” in “settings that house vulnerable populations in close quarters for extended periods of time (e.g., long‐term care facilities, correctional and detention facilities).” San Quentin provides further concerning evidence of the risk of exponential spread in detention settings—going from zero prisoner cases in late May to nearly 200 on Sunday to over 300 yesterday.  It is evident that the current practice of “screening for symptoms” for employees entering the facility is insufficient as, at a minimum, it does not catch asymptomatic cases. Defendants have provided no information regarding her symptoms or what kind of screening she underwent when she entered the facility.  It is concerning that a Mesa Verde health care worker would need to seek a test off‐site rather than on‐site. The fact that the health care worker requested a test with an independent health care provider suggests that at least some health care workers (and perhaps other staff) seek to be tested but are not provided that option by Defendants at work despite their work in a high‐risk environment. The status report also suggests that COVID testing following this confirmed case has only been offered to the medical unit but not all employees or contractors. As medical experts and the CDC have repeatedly recognized, employees are some of the most common vectors of transmission in congregate living facilities.
To allow us to provide accurate and timely information to our clients, and allow us to meaningfully respond to this new information, it is necessary that you provide advise us by 5:00 p.m. today with the following information:
1. what days the COVID‐confirmed medical provider worked in the two weeks before she tested positive; 2. the names of each of the detained Zepeda class members who had any contact with the COVID‐confirmed
medical provider in the 14 days before she tested positive;
3. whether those detained class members have been informed that they have come into contact with the COVID‐
confirmed medical provider;
4. whether they have been informed that they have the right to a test, whether they have been tested for COVID,
and the results if any;
5. whether ICE has considered offering testing to all detained class members in light of the increased risk as well as
the new CDC guidelines;
6. whether any class members have been cohorted, quarantined, or otherwise segregated in light of exposure, and
whether the facility has the capacity to do so if there is a need;
7. whether staff outside of the medical unit have been offered testing in light of this recent development, whether
they have been tested, and the results if any; and
8. whether the staff member who refused to be tested despite coming into contact with the COVID‐infected nurse
is going to work despite being potentially infectious.
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Case 3:20-cv-02731-VC Document 488-1 Filed 08/05/20 Page 8 of 8
We also ask that you facilitate phone calls before noon tomorrow between class counsel and each of the individual class members who came into contact with the COVID‐confirmed medical provider in the two weeks before she tested positive, so that we may discuss this new development and its impact on them. If satisfactory responses are not provided by 5:00 p.m. today, given the urgency and significance of this matter, we reserve the right to file a response with the court. Best, Emi
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Case 3:20-cv-02731-VC Document 488-2 Filed 08/05/20 Page 1 of 3
Exhibit B

Case 3:20-cv-02731-VC Document 488-2 Filed 08/05/20 Page 2 of 3

Bree Bernwanger
From: Sent: To:
Cc: Subject:

Zack, Adrienne (USACAN) <Adrienne.Zack@usdoj.gov> Monday, July 6, 2020 9:55 AM Sean Riordan; Angelica Salceda; Beier, Genna (PDR); Francisco Ugarte; Bree Bernwanger; Timothy Cook; Marty Schenker; Judah Lakin; Amalia Wille; Emilou Maclean; Bill Freeman Choe, Shiwon (USACAN); Garbers, Wendy (USACAN); Coleman, Susan E. RE: Zepeda Rivas - Detainees tested

Counsel,

The information in this message is designated CONFIDENTIAL pursuant to the protective orders. The detainee that was

tested due to his minimal contact with the GEO officer was Edmondson,

. As previously stated, his test

returned negative.

Regards, Adrienne

From: Zack, Adrienne (USACAN) Sent: Thursday, July 2, 2020 6:32 PM To: Sean Riordan <SRiordan@aclunc.org>; Angelica Salceda <asalceda@aclunc.org>; Genna Beier <genna.beier@sfgov.org>; Francisco Ugarte <francisco.ugarte@sfgov.org>; Bree Bernwanger <bbernwanger@lccrsf.org>; Timothy Cook <tcook@cooley.com>; Marty Schenker <mschenker@cooley.com>; Judah Lakin <judah@lakinwille.com>; Amalia Wille <amalia@lakinwille.com>; Emilou Maclean <emilou.maclean@sfgov.org>; Bill Freeman <wfreeman@aclunc.org> Cc: Choe, Shiwon (USACAN) <SChoe@usa.doj.gov>; Garbers, Wendy (USACAN) <wgarbers@usa.doj.gov>; Coleman, Susan E. <SColeman@bwslaw.com> Subject: Zepeda Rivas ‐ Detainees tested
Counsel,
The information in this message is designated CONFIDENTIAL pursuant to the protective orders. Below are the names of the detainees tested as a result of their minimal contacts with the nurse who tested positive for COVID‐19 at Mesa Verde. I am awaiting the name of the detainee tested due to his minimal contact with the GEO officer and will provide when I have it. As previously stated, all tests have returned as negative. The CDC contact tracing guidelines recommend identifying those with close contact “starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to specimen collection) until the time the patient is isolated.” See https://www.cdc.gov/coronavirus/2019‐ ncov/php/contact‐tracing/contact‐tracing‐plan/investigating‐covid‐19‐case.html. This guidance was followed and exceeded here, where none of the detainees had “close contact” as defined by the CDC.
Contact with Nurse on 6/15/2020: FLORES‐HIDALGO MANZANILLA LABASTIDA ARCHUNDIA VIGIL OROZCO GARCIA‐MARTINEZ CHHOEUNG
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Case 3:20-cv-02731-VC Document 488-2 Filed 08/05/20 Page 3 of 3
LOPEZ‐GARCIA LOPEZ‐SOLARIO AQUINO‐MIRANDA REYES CRUZ (removed) Contact with Nurse on 6/12/2020: ORELLANA MATIAS RAUDA Regards, Adrienne Zack Assistant United States Attorney Northern District of California 450 Golden Gate Avenue, 9th Floor San Francisco, CA 94102 415.436.7031 Adrienne.Zack@usdoj.gov
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Case 3:20-cv-02731-VC Document 488-3 Filed 08/05/20 Page 1 of 4
Exhibit C

Case 3:20-cv-02731-VC Document 488-3 Filed 08/05/20 Page 2 of 4

Bree Bernwanger
From: Sent: To: Cc:
Subject:

Zack, Adrienne (USACAN) <Adrienne.Zack@usdoj.gov> Monday, July 6, 2020 11:11 AM Bill Freeman; Choe, Shiwon (USACAN); Garbers, Wendy (USACAN); Winslow, Sara (USACAN) Bree Bernwanger; Sean Riordan; Angelica Salceda; Emilou Maclean; Francisco Ugarte; Beier, Genna (PDR); Judah Lakin; Marty Schenker; Timothy Cook; (USACAN); Stephanie Padilla RE: Zepeda Rivas: July 2 releases and July 1 arrivals

Bill,
As the Federal Defendants stated in their interrogatory responses, on Monday June 29, 2020, Mesa Verde began offering COVID‐19 testing to detainees upon intake to Mesa Verde. On July 1, 2020, a detainee, who was asymptomatic, agreed to be tested, and his intake same‐day‐test results were positive. That individual was then housed in a single cell medical isolation unit at Mesa Verde. The same day, Mesa Verde identified six other new arrivals that had potentially been exposed to the detainee during transport and/or while in the holding cell. Those detainees refused testing. They remained in the holding cell (and were not introduced into the general population at Mesa Verde) and were then transferred to Adelanto on July 2, 2020, for cohorting/quarantining because there is not space available at Mesa Verde for those six individuals to be cohorted/quarantined. The individual who tested positive has been re‐tested via nasopharyngeal collection and those results are pending.
Regards,
Adrienne Zack Assistant United States Attorney Northern District of California 450 Golden Gate Avenue, 9th Floor San Francisco, CA 94102 415.436.7031 Adrienne.Zack@usdoj.gov

From: Bill Freeman <wfreeman@aclunc.org>

Sent: Monday, July 6, 2020 10:02 AM

To: Choe, Shiwon (USACAN) <SChoe@usa.doj.gov>; Garbers, Wendy (USACAN) <wgarbers@usa.doj.gov>; Zack, Adrienne

(USACAN) <AZack1@usa.doj.gov>; Winslow, Sara (USACAN) <SWinslow@usa.doj.gov>

Cc: Bree Bernwanger <bbernwanger@lccrsf.org>; Sean Riordan <SRiordan@aclunc.org>; Angelica Salceda

<asalceda@aclunc.org>; Emilou Maclean <emilou.maclean@sfgov.org>; Francisco Ugarte <francisco.ugarte@sfgov.org>;

Genna Beier <genna.beier@sfgov.org>; Judah Lakin <judah@lakinwille.com>; Marty Schenker

<mschenker@cooley.com>; Timothy Cook <tcook@cooley.com>;

>;

Stephanie Padilla <SPadilla@aclusocal.org>

Subject: RE: Zepeda Rivas: July 2 releases and July 1 arrivals

Counsel,

We note from the below message that 6 persons were booked into Mesa Verde on July 1 and transferred to Adelanto on July 2. It is of great concern to us that individuals are being sent from Mesa Verde to a facility with a known, significant COVID‐19 outbreak, and where it is not apparent that measures to enable social distancing have been implemented. It is also a concern to us as to how these individuals are housed during the time they are present at Mesa Verde.
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Case 3:20-cv-02731-VC Document 488-3 Filed 08/05/20 Page 3 of 4
Please let us know, prior to today’s Case Management Conference, where each of these six individuals were housed during the night of July 1; what measures, if any, were taken to cohort or segregate any of them; and why the government believes it was appropriate to send them to Adelanto. Thank you.
Best regards,
Bill
William S. Freeman
Senior Counsel Pronouns: he/him
ACLU Foundation of Northern California 39 Drumm Street, San Francisco, CA 94111 415‐293‐6335

From: Sent: Thursday, July 2, 2020 4:54 PM To: 'Jonathan Rosenthal' <Jonathan_Rosenthal@cand.uscourts.gov> Cc: Bree Bernwanger <bbernwanger@lccrsf.org>; Garbers, Wendy (USACAN) <Wendy.Garbers@usdoj.gov>; Winslow, Sara (USACAN) <Sara.Winslow@usdoj.gov>; Choe, Shiwon (USACAN) <Shiwon.Choe@usdoj.gov>; Sean Riordan <SRiordan@aclunc.org>; Angelica Salceda <asalceda@aclunc.org>; Emilou Maclean <emilou.maclean@sfgov.org>; Francisco Ugarte <francisco.ugarte@sfgov.org>; Genna Beier <genna.beier@sfgov.org>; Jordan Wells <JWells@aclusocal.org>; Judah Lakin <judah@lakinwille.com>; Marty Schenker <mschenker@cooley.com>; Zack, Adrienne (USACAN) <Adrienne.Zack@usdoj.gov>; Timothy Cook <tcook@cooley.com>; Bill Freeman <wfreeman@aclunc.org>; 'Patrick Fuster' <Patrick_Fuster@cand.uscourts.gov>; 'Catherine Padhi' <Catherine_Padhi@cand.uscourts.gov>; Rollins, Lucy (USACAN) <Lucy.Rollins@usdoj.gov>; Stephanie Padilla <SPadilla@aclusocal.org> Subject: Zepeda Rivas: July 2 releases and July 1 arrivals

Please find below the names and A‐numbers of the individuals who were released today, and new arrivals. Yuba County Jail had no releases or arrivals.

As tomorrow is a federal holiday, releases and arrivals will next be reported on Monday.

Mesa Verde releases: A‐Number Last Name RAMIREZ‐BENITEZ ANDRADE‐MENJIVAR MIRANDA CHHOEUNG DOMINGUEZ‐DOMINGUEZ
HERNANDEZ‐PALMA

First Name PABLO KEVIN CESAR EDUARDO SOPHEAP GUSTAVO
MARTIN

Reason for Release Released on own recognizance Released on own recognizance Released on own recognizance Released on own recognizance Transfer to Adelanto due to unavailable housing Transfer to Adelanto due to unavailable housing

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Case 3:20-cv-02731-VC Document 488-3 Filed 08/05/20 Page 4 of 4

VASQUEZ‐AMARO HURTADO‐ROCHA ESCOBAR‐RIVERA FOLASA

JUAN GILBERTO GUSTAVO AFA

Transfer to Adelanto due to unavailable housing Transfer to Adelanto due to unavailable housing Transfer to Adelanto due to unavailable housing Transfer to Adelanto due to unavailable housing

Mesa Verde arrivals: A‐Number Last Name
DOMINGUEZ‐DOMINGUEZ HERNANDEZ‐PALMA VASQUEZ‐AMARO HURTADO‐ROCHA ESCOBAR‐RIVAS FOLASA BONILLA‐SOLANO OLIVARES‐PINEDA LEDESMA AGUAYO

First Name GUSTAVO MARTIN JUAN GILBERTO GUSTAVO AFA OSCAR LUIS EDUARDO

Age Sex 58 M 47 M 34 M 50 M 39 M 51 M 58 M 38 M 67 M

Book‐In Date 07/01/2020 07/01/2020 07/01/2020 07/01/2020 07/01/2020 07/01/2020 07/01/2020 07/01/2020 07/01/2020

Paralegal Specialist U.S. Attorney’s Office, NDCA 450 Golden Gate Ave San Francisco, CA 94102

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Case 3:20-cv-02731-VC Document 488-4 Filed 08/05/20 Page 1 of 2
Exhibit D

Case 3:20-cv-02731-VC Document 488-4 Filed 08/05/20 Page 2 of 2

Bree Bernwanger
From: Sent: To:
Cc: Subject:

Zack, Adrienne (USACAN) <Adrienne.Zack@usdoj.gov> Sunday, July 12, 2020 8:54 PM Schenker, Marty; Bill Freeman; Sean Riordan; Emilou Maclean; Angelica Salceda; Unger, Francisco L.M.; Bree Bernwanger; Judah Lakin; Beier, Genna (PDR); Timothy Cook Coleman, Susan E.; Garbers, Wendy (USACAN); Choe, Shiwon (USACAN) Zepeda Rivas - COVID+ tests

Counsel,
A second GEO officer has tested positive for COVID‐19 (referred to herein as Officer #2). He sought testing on July 2, 2020, as a precaution, in part because he had some exposure to the detainee who tested positive on July 1 during intake (that detainee remains in medical isolation and is asymptomatic). On July 5, Officer #2 received the positive test result. Officer #2 last worked at Mesa Verde on July 2 and July 3, 2020, doing intake. He was asymptomatic at the time. During his shift on each day, he wore his facemask during his entire shift. Contact tracing revealed that he had no close contact with detainees during either shift. (Mesa Verde had no new intakes on these days.) He did have some contact with three other GEO employees, who were also wearing masks (one on July 2 and two on July 3). GEO was not able to determine that this contact was not “close contact” as defined by the CDC and provided notice to the three officers. One of the officers with whom Officer #2 had contact on July 3 was tested for COVID‐19, and the results returned on July 10 as negative. If more information becomes available, we will provide an update.
Further, ICE was informed that Mr. Paulino Ambriz‐Bejar was unable to report to ERO as required on July 1, 2020, because he contracted COVID‐19 after being released by Judge Chhabria in early June. Federal Defendants request that Plaintiffs and/or class counsel provide notification to Defendants and Defendants’ counsel if a class member contracts COVID‐19 after being released on bail. If any other individuals apart from Mr. Ambriz‐Bejar have been diagnosed with COVID‐19 after being released to date, we request that Plaintiffs provide that information by Friday, July 17, at 3pm.
Thank you,
Adrienne Zack Assistant United States Attorney Northern District of California 450 Golden Gate Avenue, 9th Floor San Francisco, CA 94102 415.436.7031 Adrienne.Zack@usdoj.gov

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Case 3:20-cv-02731-VC Document 488-5 Filed 08/05/20 Page 1 of 4
Exhibit E

Case 3:20-cv-02731-VC Document 488-5 Filed 08/05/20 Page 2 of 4

Bree Bernwanger
From: Sent: To:
Cc: Subject:

Zack, Adrienne (USACAN) <Adrienne.Zack@usdoj.gov> Friday, July 17, 2020 5:12 PM Sean Riordan; Angelica Salceda; Beier, Genna (PDR); Francisco Ugarte; Bree Bernwanger; Timothy Cook; Marty Schenker; Judah Lakin; Amalia Wille; Emilou Maclean; Bill Freeman Choe, Shiwon (USACAN); Garbers, Wendy (USACAN); Coleman, Susan E. RE: Zepeda Rivas - COVID testing

Counsel,
Since our last update, two further Mesa Verde staff members have tested positive.
Staff Member #8 is a GEO Officer, and their last day at the facility was on July 13, 2020. On July 13, the officer had an onset of symptoms (coughing and congestion). On July 14, 2020, the officer took a COVID‐19 test, and the results returned positive on July 15. The officer’s last shifts were on July 11, 12, and 13, and contact tracing shows that they did not have close contact with any detainees on those days.
Staff Member #9 is an RN, and their last day at the facility was July 16, 2020. The RN, who has no symptoms, took a COVID‐19 test on July 8, 2020, and the results returned positive on July 16. The RN’s last shifts were on July 14, 15, and 16, and contact tracing shows that they did not have close contact with any detainees on those days.
Regarding Staff Member #4 – As previously stated, this medical records clerk’s last two days at the facility were July 8 and 9. They also worked on July 7. Contact tracing shows they did not have close contact with any detainees during any of the three days.
Regarding Staff Member #6 – As previously stated, this GEO officer’s last two days of work were July 6 and 7, 2020. Contract tracing shows that they did not have close contact with any detainees on those days.
Regarding Staff Member #7 – The GEO Officer’s last two days at the facility were July 13 and 14, 2020. During their shifts, they wore a facemask the entire shift. Contract tracing shows that they had no close contact with any detainees on those days.
Thank you, Adrienne
From: Zack, Adrienne (USACAN) Sent: Thursday, July 16, 2020 9:40 AM To: Sean Riordan <SRiordan@aclunc.org>; Angelica Salceda <asalceda@aclunc.org>; Genna Beier <genna.beier@sfgov.org>; Francisco Ugarte <francisco.ugarte@sfgov.org>; Bree Bernwanger <bbernwanger@lccrsf.org>; Timothy Cook <tcook@cooley.com>; Marty Schenker <mschenker@cooley.com>; Judah Lakin <judah@lakinwille.com>; Amalia Wille <amalia@lakinwille.com>; Emilou Maclean <emilou.maclean@sfgov.org>; Bill Freeman <wfreeman@aclunc.org> Cc: Choe, Shiwon (USACAN) <SChoe@usa.doj.gov>; Garbers, Wendy (USACAN) <wgarbers@usa.doj.gov>; Coleman, Susan E. <SColeman@bwslaw.com> Subject: RE: Zepeda Rivas ‐ COVID testing
Counsel,
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Case 3:20-cv-02731-VC Document 488-5 Filed 08/05/20 Page 3 of 4
On July 14, 2020, Mesa Verde Staff Member #7 received a positive test for COVID‐19. Staff Member #7 is a GEO officer, and his last day at the facility was on July 14, 2020. The officer was tested on July 11, 2020. He was and is asymptomatic. We will provide further updates regarding contact tracing as available.
Regarding Staff Member #4 – The medical records clerk’s last two days at the facility were July 8 and 9, 2020. During their shifts, they wore personal protective equipment, including a facemask and gloves. They remain asymptomatic. Based on the contact tracing done to date, Staff Member #4 did not have any contact with any detainees on their last two days at the facility. Any medical staff who had any contact with Staff Member #4 have been informed and are being offered COVID‐19 testing. Further contact tracing is ongoing.
Regarding Staff Member #5 – The LVN’s last two days at the facility were July 8 and 9, 2020. During their shifts, they wore personal protective equipment, including facemask and gloves. Based on the contact tracing done to date, Staff Member #5 did not have any close contact with any detainees. Any medical staff who had any contact with Staff Member #5 have been informed and are being offered COVID‐19 testing. Further contact tracing is ongoing.
Regarding Staff Member #6 – The GEO officer’s last two days of work at the were on July 6 and 7, 2020, on the security shift. During his shifts, he wore his personal protective equipment, including facemask and gloves. Contact tracing is ongoing.
Thank you, Adrienne
From: Zack, Adrienne (USACAN) Sent: Wednesday, July 15, 2020 8:58 AM To: Sean Riordan <SRiordan@aclunc.org>; Angelica Salceda <asalceda@aclunc.org>; Genna Beier <genna.beier@sfgov.org>; Francisco Ugarte <francisco.ugarte@sfgov.org>; Bree Bernwanger <bbernwanger@lccrsf.org>; Timothy Cook <tcook@cooley.com>; Marty Schenker <mschenker@cooley.com>; Judah Lakin <judah@lakinwille.com>; Amalia Wille <amalia@lakinwille.com>; Emilou Maclean <emilou.maclean@sfgov.org>; Bill Freeman <wfreeman@aclunc.org> Cc: Choe, Shiwon (USACAN) <SChoe@usa.doj.gov>; Garbers, Wendy (USACAN) <wgarbers@usa.doj.gov>; Coleman, Susan E. <SColeman@bwslaw.com> Subject: Zepeda Rivas ‐ COVID testing
Counsel,
Since our last correspondence, three additional Mesa Verde staff members have tested positive for COVID‐19. To date, we’ve referred to the staff members by their titles and a number (i.e., Officer #2), but moving forward, we will identify all as staff members for easier tracking (although we will still provide their titles where available). The names and information of the detainees in this message is designated CONFIDENTIAL pursuant to the protective orders.
Staff Member #4 is a medical records clerk, and their last day at the facility was July 9, 2020. The clerk tested offsite for COVID‐19 on July 10, 2020 and received a positive test result on July 12, 2020. The clerk reported being asymptomatic prior to testing and still has no symptoms. We will provide further updates regarding contact tracing as available.
Staff Member #5 is an LVN, and their last day at the facility was July 9, 2020. The LVN tested offsite for COVID‐19 on July 10, 2020 and received a positive test result on July 12, 2020. The LVN reported being asymptomatic prior to testing, but, as of July 12, 2020, reported experiencing a loss of taste and smell. We will provide further updates regarding contact tracing as available.
Staff Member #6 is a GEO officer, and their last day at the facility was July 7, 2020. The GEO officer, on July 8, 2020, began experiencing fever, chills, headache, and cough. The GEO officer tested offsite for COVID‐19 on July 9, 2020 and received a positive test result on July 12, 2020. We will provide further updates regarding contact tracing as available.
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Case 3:20-cv-02731-VC Document 488-5 Filed 08/05/20 Page 4 of 4

We also have additional information regarding Officer #2 (aka Staff Member #3). The officer also worked on June 30 and

July 1, 2020, doing intake. During each shift, he wore his personal protective equipment, including his facemask, the

entire time. On June 30, Officer #2 had close contact with detainee Gedber Morales‐Castillo,

during

intake. Officer #2 was wearing his facemask and gloves and otherwise maintained social distancing while searching and

inventorying Mr. Morales‐Castillo's property. On July 13, 2020, Mr. Morales‐Castillo was informed of the exposure and

offered COVID‐19 testing. He refused and denied any symptoms. On June 30, Officer #2 also had close contact with

detainee Ruben Seguido‐Velazquez,

, who was returning from offsite. Officer #2 pat‐searched Mr. Seguido‐

Velazquez and escorted him to his housing unit. Officer #2 was wearing his facemask and gloves during the

encounter. On July 13, 2020, Mr. Seguido‐Velazquez was informed of the exposure and offered COVID‐19 testing. He

refused and denied any symptoms.

On July 1, Officer #2 had close contact with detainee Oscar Gustavo Bonilla‐Solano,

, who was a new

intake. This is the detainee who tested positive at intake, as previously disclosed. During the intake, Officer #2 was

wearing his facemask and gloves. With respect to Mr. Bonilla‐Solano, there was a technical/lab error with the follow up

specimen collection that was taken on July 1, 2020. Medical staff sought to collect another specimen when this became

known, but Mr. Bonilla‐Solano refused. However, on July 11, 2020, he changed his mind, consented, and a new

specimen was collected. The results of that new sample are pending. Mr. Bonilla‐Solano is still asymptomatic and in

medical isolation.

Regards, Adrienne

Adrienne Zack Assistant United States Attorney Northern District of California 450 Golden Gate Avenue, 9th Floor San Francisco, CA 94102 415.436.7031 Adrienne.Zack@usdoj.gov

3

Case 3:20-cv-02731-VC Document 488-6 Filed 08/05/20 Page 1 of 3
Exhibit F

Case 3:20-cv-02731-VC Document 488-6 Filed 08/05/20 Page 2 of 3
From: "Zack, Adrienne (USACAN)" <Adrienne.Zack@usdoj.gov> Date: Thursday, July 23, 2020 at 6:48 PM To: Sean Riordan <SRiordan@aclunc.org>, Angelica Salceda <asalceda@aclunc.org>, "Beier, Genna (PDR)" <genna.beier@sfgov.org>, "Ugarte, Francisco (PDR)" <francisco.ugarte@sfgov.org>, Bree Bernwanger <bbernwanger@lccrsf.org>, Timothy Cook <tcook@cooley.com>, Marty Schenker <mschenker@cooley.com>, Judah Lakin <judah@lakinwille.com>, Amalia Wille <amalia@lakinwille.com>, "Maclean, Emilou (PDR)" <emilou.maclean@sfgov.org>, Bill Freeman <wfreeman@aclunc.org> Cc: "Choe, Shiwon (USACAN)" <Shiwon.Choe@usdoj.gov>, "Garbers, Wendy (USACAN)" <Wendy.Garbers@usdoj.gov>, "Coleman, Susan E." <SColeman@bwslaw.com> Subject: RE: Zepeda Rivas - COVID Testing Update
This message is from outside the City email system. Do not open links or attachments from untrusted sources.
Counsel,
Regarding Mr. Bonilla-Solano – Medical staff will follow a “test-based” protocol to determine when he can be released from medical isolation. This process was explained to Mr. Bonilla-Solano, who is agreeable. The protocol requires that all of the following conditions be met before release from medical isolation: No fever present on examination, the individual has not been using fever reducing medication, the individual has not developed symptoms, a minimum of 14 days has passed since the first specimen collection resulting in a positive test, and negative results on two separate COVID-19 FDA approved molecular assays obtained at least 24 hours apart. Another specimen was collected on July 22, 2020, and sent for testing.
Regarding Staff Member #10 – This GEO Officer’s last two days of work at the facility were July 14 and 15, 2020. Contact tracing shows that they had no close contact with any detainees on those days.
On July 20, 2020, Mesa Verde Staff Member #11 received a positive test for COVID-19. Staff Member #11 is a GEO officer, and their last day at the facility was July 5, 2020. The officer was tested on July 7, 2020. Contact tracing shows that during their shift on July 5, 2020, the officer did not have any close contact with any detainees.
On July 22, 2020, Mesa Verde Staff Member #12 received a positive test for COVID-19. Staff Member #12 is a nurse practitioner. They were tested on July 13, 2020. We will provide further updates regarding contact tracing as available.
Regards, Adrienne
From: Zack, Adrienne (USACAN) Sent: Wednesday, July 22, 2020 10:20 AM To: Sean Riordan <SRiordan@aclunc.org>; Angelica Salceda <asalceda@aclunc.org>; Genna Beier <genna.beier@sfgov.org>; Francisco Ugarte <francisco.ugarte@sfgov.org>; Bree Bernwanger

Case 3:20-cv-02731-VC Document 488-6 Filed 08/05/20 Page 3 of 3

<bbernwanger@lccrsf.org>; Timothy Cook <tcook@cooley.com>; Marty Schenker <mschenker@cooley.com>; Judah Lakin <judah@lakinwille.com>; Amalia Wille <amalia@lakinwille.com>; Emilou Maclean <emilou.maclean@sfgov.org>; Bill Freeman <wfreeman@aclunc.org> Cc: Choe, Shiwon (USACAN) <SChoe@usa.doj.gov>; Garbers, Wendy (USACAN) <wgarbers@usa.doj.gov>; Coleman, Susan E. <SColeman@bwslaw.com> Subject: Zepeda Rivas - COVID Testing Update

Counsel,

On July 18 and July 19, follow-up COVID-19 test results for Oscar Bonilla-Solano,

, returned

as positive. These results were from samples collected on July 14 and July 1, respectively. (The July 14

specimen was collected because there was concern that the lab to which the July 11 specimen

previously reported was sent might be delayed. Also, it appears that despite earlier reported trouble

with the July 1 specimen, the lab was able to complete the test.) Mr. Bonilla-Solano has been in medical

isolation since the Abbot test at his intake on July 1 returned a positive result, and he has had and

continues to have no symptoms. The medical providers at Mesa Verde are discussing a plan of care and

intend to provide an update soon.

On July 20, 2020, Mesa Verde Staff Member #10 received a positive test for COVID-19. Staff Member #10 is a GEO officer, and their last day at the facility was July 15, 2020. The officer was tested on July 17, 2020. We will provide further updates regarding contact tracing as available.

ICE also learned on July 21, 2020, that one Yuba County Jail staff member has had a positive COVID-19 test result. Contact tracing showed no detainee contact with the positive staff member.

Regards, Adrienne

Adrienne Zack Assistant United States Attorney Northern District of California 450 Golden Gate Avenue, 9th Floor San Francisco, CA 94102 415.436.7031 Adrienne.Zack@usdoj.gov

Case 3:20-cv-02731-VC Document 488-7 Filed 08/05/20 Page 1 of 3
Exhibit G

Case 3:20-cv-02731-VC Document 488-7 Filed 08/05/20 Page 2 of 3
From: "Zack, Adrienne (USACAN)" <Adrienne.Zack@usdoj.gov> Date: Wednesday, July 29, 2020 at 7:21 PM To: Sean Riordan <SRiordan@aclunc.org>, Angelica Salceda <asalceda@aclunc.org>, "Beier, Genna (PDR)" <genna.beier@sfgov.org>, "Ugarte, Francisco (PDR)" <francisco.ugarte@sfgov.org>, Bree Bernwanger <bbernwanger@lccrsf.org>, Timothy Cook <tcook@cooley.com>, Marty Schenker <mschenker@cooley.com>, Judah Lakin <judah@lakinwille.com>, Amalia Wille <amalia@lakinwille.com>, "Maclean, Emilou (PDR)" <emilou.maclean@sfgov.org>, Bill Freeman <wfreeman@aclunc.org> Cc: "Choe, Shiwon (USACAN)" <Shiwon.Choe@usdoj.gov>, "Garbers, Wendy (USACAN)" <Wendy.Garbers@usdoj.gov>, "Coleman, Susan E." <SColeman@bwslaw.com> Subject: RE: Zepeda Rivas - COVID Testing Update
This message is from outside the City email system. Do not open links or attachments from untrusted sources.
Counsel,
On July 28, 2020, Mesa Verde Staff Member #13 received a positive test for COVID-19. Staff Member #13 is a GEO officer, and their last day at the facility was July 24, 2020. The officer is asymptomatic. Their last shifts at the facility were on July 22, 23, and 24, and contact tracing shows that during those shifts the officer did not have any close contact with any detainees.
Regards, Adrienne
From: Zack, Adrienne (USACAN) Sent: Tuesday, July 28, 2020 1:21 PM To: Sean Riordan <SRiordan@aclunc.org>; Angelica Salceda <asalceda@aclunc.org>; Genna Beier <genna.beier@sfgov.org>; Francisco Ugarte <francisco.ugarte@sfgov.org>; Bree Bernwanger <bbernwanger@lccrsf.org>; Timothy Cook <tcook@cooley.com>; Marty Schenker <mschenker@cooley.com>; Judah Lakin <judah@lakinwille.com>; Amalia Wille <amalia@lakinwille.com>; Emilou Maclean <emilou.maclean@sfgov.org>; Bill Freeman <wfreeman@aclunc.org> Cc: Choe, Shiwon (USACAN) <SChoe@usa.doj.gov>; Garbers, Wendy (USACAN) <wgarbers@usa.doj.gov>; Coleman, Susan E. <SColeman@bwslaw.com> Subject: Zepeda Rivas - COVID Testing Update
Counsel,
On or about July 24, 2020, Yuba County Jail informed ICE that a second staff member has tested positive for COVID-19. The facility conducted contact tracing, and it reported that there was no close contact between Yuba Staff Member #2 and any detainees.

Case 3:20-cv-02731-VC Document 488-7 Filed 08/05/20 Page 3 of 3
Regarding Mesa Verde Staff Member #12 – this nurse practitioner’s last day of work at the facility was July 13, 2020. Staff Member #12 did not work on July 11 and 12, 2020. Contract tracing shows that they had no close contact with detainees on July 13, 2020.
Regarding Mr. Bonilla-Solano – the COVID-19 specimen collected on July 22, 2020, resulted positive on July 25, 2020. He remains in medical isolation and asymptomatic.
Regards, Adrienne
Adrienne Zack Assistant United States Attorney Northern District of California 450 Golden Gate Avenue, 9th Floor San Francisco, CA 94102 415.436.7031 Adrienne.Zack@usdoj.gov

Case 3:20-cv-02731-VC Document 488-8 Filed 08/05/20 Page 1 of 4
Exhibit H

Case 3:20-cv-02731-VC Document 488-8 Filed 08/05/20 Page 2 of 4

From: "Zack, Adrienne (USACAN)" <Adrienne.Zack@usdoj.gov> Date: Friday, July 31, 2020 at 6:19 PM To: Sean Riordan <SRiordan@aclunc.org>, Angelica Salceda <asalceda@aclunc.org>, "Beier, Genna (PDR)" <genna.beier@sfgov.org>, "Ugarte, Francisco (PDR)" <francisco.ugarte@sfgov.org>, Bree Bernwanger <bbernwanger@lccrsf.org>, Timothy Cook <tcook@cooley.com>, Marty Schenker <mschenker@cooley.com>, Judah Lakin <judah@lakinwille.com>, Amalia Wille <amalia@lakinwille.com>, "Maclean, Emilou (PDR)" <emilou.maclean@sfgov.org>, Bill Freeman <wfreeman@aclunc.org> Cc: "Choe, Shiwon (USACAN)" <Shiwon.Choe@usdoj.gov>, "Garbers, Wendy (USACAN)" <Wendy.Garbers@usdoj.gov>, "Coleman, Susan E." <SColeman@bwslaw.com> Subject: RE: Zepeda Rivas - COVID testing update
This message is from outside the City email system. Do not open links or attachments from untrusted sources.

Counsel,

The names and information of the detainees in this message are designated CONFIDENTIAL pursuant to the protective orders.

Detainee Santiago Pineda,

, was moved from the intake cell and placed in medical isolation.

Further, as previously stated, all detainees in B dorm were offered COVID-19 testing. 32 of the 33 detainees consented and were tested. The tests have been sent out for processing. The 33 detainees in Dormitory B will continue to be cohorted, monitored and checked twice daily for any COVID-19 symptoms.

Regards, Adrienne

From: Zack, Adrienne (USACAN) Sent: Thursday, July 30, 2020 8:55 PM To: Sean Riordan <SRiordan@aclunc.org>; Angelica Salceda <asalceda@aclunc.org>; Genna Beier <genna.beier@sfgov.org>; Francisco Ugarte <francisco.ugarte@sfgov.org>; Bree Bernwanger <bbernwanger@lccrsf.org>; Timothy Cook <tcook@cooley.com>; Marty Schenker <mschenker@cooley.com>; Judah Lakin <judah@lakinwille.com>; Amalia Wille <amalia@lakinwille.com>; Emilou Maclean <emilou.maclean@sfgov.org>; Bill Freeman <wfreeman@aclunc.org> Cc: Choe, Shiwon (USACAN) <SChoe@usa.doj.gov>; Garbers, Wendy (USACAN) <wgarbers@usa.doj.gov>; Coleman, Susan E. <SColeman@bwslaw.com> Subject: Zepeda Rivas - COVID testing update

Counsel,

Case 3:20-cv-02731-VC Document 488-8 Filed 08/05/20 Page 3 of 4

The names and information of the detainees in this message are designated CONFIDENTIAL pursuant to the protective orders. The remainder is not designated confidential.

Regarding Mr. Bonilla-Solano - He remains housed in medical at Mesa Verde, away from the other detainees, due to his persistent positive COVID-19 testing. The medical staff reports that he is no longer contagious—he is considered persistently positive by CDC guidelines—and he is off isolation precautions pending removal to Honduras, which likely will be within a week.

Detainee Santiago Pineda,

, arrived at the Mesa Verde facility as a new detainee on July 29,

2020, and during intake, he consented to COVID-19 testing via the Abbott ID Now machine. He tested

positive for COVID-19. He was febrile and placed into medical isolation in an individual intake cell,

where he remains. He had contact with detainee Jaswant Singh,

, during transport to the

facility. We will provide further updates regarding contact tracing as available.

Detainee Albert Orellana,

, was seen by medical staff at Mesa Verde on July 29, 2020,

because of his complaint of fever, headache, and body aches. He consented to testing for COVID-19 via

the Abbott ID Now machine and tested positive for COVID-19. He was placed into medical isolation in

one of the negative pressure rooms, where he remains. Because he was assigned to Dormitory B, that

dormitory and the detainees in it are on cohort for 14-day monitoring. As part of the cohorting, the 33

detainees in Dormitory B are being monitored and checked twice daily for any COVID-19 symptoms. Per

IHSC guidance, tests have not been offered to the cohorted detainees, but, as stated, the cohorted

detainees are being monitored for symptoms. The 33 detainees on cohort are listed below. We will

provide further updates regarding contact tracing as available.

(1) Hector Estevan Abadin,

;

(2) Ruben Alcala Almanza,

;

(3) Juan Manuel Alvarez-Gonzalez,

(4) Narcisco Aquino-Camiro,

1;

(5) Nestor Chavez,

(6) Alberto Diaz-Solano,

;

(7) Alton Edmondson,

;

(8) Eder Said Erazo-Diaz,

;

(9) Moises Adrian Gallardo-Lopez,

;

(10) Jose Guerra,

;

(11) Oswaldo Hernandez-Reyes,

;

(12) Jaime Lopez-Solario,

;

(13) Israel Marin-Parra,

;

(14) Jose Dino Mejia,

;

(15) Jose Melgoza-Enriquez,

;

(16) Antoni Mendoza,

;

(17) Jose Mendoza-Valdovinos,

;

(18) Juan Minchaca-Ramos,

(19) Jacinto Morales,

(20) Henry Morales-Sanchez,

(21) German Najera Grajeda,

;

(22) Marcos Najera-Sandoval,

(23) William Nickle,

(24) Oscar Perez,

Case 3:20-cv-02731-VC Document 488-8 Filed 08/05/20 Page 4 of 4

(25) Lam Quan,

(26) Hermelindo Rodriguez Galicia,

(27) Edgar Rodriguez-Rojas,

(28) Jose Ruiz,

;

(29) Jaswant Singh

(30) Gurmail Toor,

(31) John Victorio,

(32) Benito Villalobos-Sura,

(33) Margarito Zamora-Guzman,

; ; and

Adrienne Zack Assistant United States Attorney Northern District of California 450 Golden Gate Avenue, 9th Floor San Francisco, CA 94102 415.436.7031 Adrienne.Zack@usdoj.gov

Case 3:20-cv-02731-VC Document 488-9 Filed 08/05/20 Page 1 of 9
Exhibit I

Case 3:20-cv-02731-VC Document 488-9 Filed 08/05/20 Page 2 of 9 Monday, August 3, 2020 at 20:57:29 Paciﬁc Daylight Time

Subject: RE: [Zepeda Rivas] proposal for tes4ng/cohor4ng protocol

Date:

Tuesday, July 28, 2020 at 5:40:33 PM Paciﬁc Daylight Time

From:

Sean Riordan

To:

Choe, Shiwon (USACAN), Coleman, Susan E., Zack, Adrienne (USACAN), Garbers, Wendy

(USACAN)

CC:

Bill Freeman, Angelica Salceda, Marty Schenker, Maclean, Emilou (PDR), Bree Bernwanger,

Francisco Unger, Timothy Cook, Beier, Genna (PDR), Judah Lakin

AGachments: image001.jpg

This message is from outside the City email system. Do not open links or attachments from untrusted sources.

Dear Shiwon:
We’re following up here on several of the framework and substan4ve ques4ons you raised during yesterday’s mee4ng concerning tes4ng and cohor4ng protocols. We also address pending case management issues in advance of next Wednesday’s CMC.
TesHng and CohorHng Protocols
Nego4a4on Framework Ques4ons:
As we stated yesterday, if the par4es reach agreement on a protocol for tes4ng and cohor4ng class members, we would not seek an eviden4ary hearing absent changed circumstances or new disputes of which we are presently unaware.
As we indicated yesterday, we are willing to discuss a global resolu4on of the case if the Defendants are so interested. Indeed, if ICE is interested in exploring a global resolu4on, we believe that agreeing on a robust tes4ng/cohor4ng regime would be an important trust-building step. But regardless of whether there is progress to be had on possible seblement of the whole case, tes4ng/cohor4ng is an urgent issue that should be resolved as soon as possible.
Substan4ve Ques4ons:
Whether the plain4ﬀs would agree to increasing the density of certain dorms to free up other dorms for cohor4ng posi4ves and/or refusers:
As we indicated in our ini4al proposal, we recognize that some modest increase may

Page 1 of 7

Case 3:20-cv-02731-VC Document 488-9 Filed 08/05/20 Page 3 of 9

be necessary. Aeer further communica4on with experts on this ques4on, we con4nue to believe that anything more than a modest increase would be too dangerous. The Abbob ID Now test remains an important tool for universal periodic tes4ng, but it returns false nega4ves, as discovery in this case further aﬃrms. This limita4on means that a dorm of people who have all tested nega4ve cannot be guaranteed to not have any COVID-posi4ve detainees. Moreover, even those who do have the disease may not test posi4ve, depending on the par4cular point in the infec4on cycle at which they are tested. There is also risk that between tes4ng the virus could be introduced into a non-cohort dorm by other means – ven4la4on, facility personnel, etc. For all these reasons, maintaining social distancing remains important even with a rigorous tes4ng/cohor4ng system. You asked us to provide a par4cular number for any dorm that would be considered safe. We would be interested in working with ICE on a cap number, in keeping with the impera4ve for social distancing.

Whether class members denied bail by Judge Chhabria should not be released in order to achieve the safe cohor4ng of class members:
We propose a tes4ng/cohor4ng system where ICE would decide who should be released in circumstances where released is required to avoid the unsafe redensiﬁca4on of a par4cular dorm. Under the Plain4ﬀs’ proposal, ICE would have no obliga4on to release detainees previously denied bail by Judge Chhabria, but there would be no categorical prohibi4on against ICE deciding to release such detainees in its discre4on. To proac4vely address the possibility that at least one dorm may need to be cleared and the consequent density issues, we believe it would be wise for ICE to begin by temporarily hal4ng new arrivals to Mesa Verde and voluntarily releasing individuals who are a rela4vely lower security classiﬁca4on (see, e.g., ICE 637).

How long refusers should be cohorted: We believe that if ICE oﬀers tes4ng that provides prompt results, adequately explains the tests and the uses to which the results can be put, provides reasonable release forms, and allows class counsel to discuss the beneﬁts of tes4ng with puta4ve refusers, the number of refusers will be extremely low. If we can agree on the other aspects of a proposal, we would commit to use our best eﬀorts to convince any reluctant class member to submit to a test. For those who s4ll refuse, the cohor4ng 4me should be 14 days or un4l they are willing to be tested, whichever is shorter.

Whether the court should order that class members be required to wear masks: We would want addi4onal informa4on about the Defendants’ understanding of how oeen and in what circumstances class members are not wearing masks. We do not think development of this issue – which we are happy to con4nue discussing – should delay the implementa4on of a universal and regular tes4ng system with cohor4ng plans.

We hope this addi4onal informa4on is useful to you and the Defendants. We would be happy to set a further mee4ng to discuss tes4ng/cohor4ng issues at your earliest convenience.

Case Management Issues

Page 2 of 7

Case 3:20-cv-02731-VC Document 488-9 Filed 08/05/20 Page 4 of 9
Case Management Issues
We plan to submit a short case management statement tomorrow no4ng the recent COVID-19 posi4ve tests and the par4es’ discussion of a poten4al tes4ng/cohor4ng regime. We will indicate that if the par4es cannot resolve this issue that we plan to ﬁle a mo4on on or around August 14 seeking addi4onal preliminary injunc4ve relief of court-imposed tes4ng and cohor4ng requirements. We may seek an eviden4ary hearing to assist in resolving any such mo4on, and the court may order the same. If we are unable to resolve this issue by the 4me we ﬁle our mo4on, we will remain interested in con4nuing discussions thereaeer in an abempt to develop a mutually acceptable tes4ng and cohor4ng regime.
We also understand that the par4es are to confer in advance of the CMC on future case deadlines. We propose the following rough case management deadlines:
Fact discovery cut-oﬀ: March 2021. Expert discovery cut-oﬀ: June 2021. MSJ cut-oﬀ: August 2021. Trial: mid-2022.
Please let us know if you agree with these deadlines in principle.
Best Regards, Sean
From: Sean Riordan Sent: Saturday, July 25, 2020 1:24 PM To: 'Choe, Shiwon (USACAN)' <Shiwon.Choe@usdoj.gov>; Coleman, Susan E. <SColeman@bwslaw.com>; Zack, Adrienne (USACAN) <Adrienne.Zack@usdoj.gov>; Garbers, Wendy (USACAN) <Wendy.Garbers@usdoj.gov> Cc: Bill Freeman <wfreeman@aclunc.org>; Angelica Salceda <asalceda@aclunc.org>; Marty Schenker <mschenker@cooley.com>; Emilou Maclean <emilou.maclean@sfgov.org>; Bree Bernwanger <bbernwanger@lccrsf.org>; Francisco Unger <funger@cooley.com>; Timothy Cook <tcook@cooley.com>; Genna Beier <genna.beier@sfgov.org>; Judah Lakin <judah@lakinwille.com> Subject: RE: [Zepeda Rivas] proposal for tes4ng/cohor4ng protocol
Shiwon:
We appreciate the quick response on this.
Monday at 1 p.m. works best from our end. We recently switched over to “Microsoe Teams” as our remote mee4ng plavorm, and I can send an invite for that. Or if you have a conference call line, we’d be happy to use that.
Thanks, Sean
Page 3 of 7

Case 3:20-cv-02731-VC Document 488-9 Filed 08/05/20 Page 5 of 9
From: Choe, Shiwon (USACAN) <Shiwon.Choe@usdoj.gov> Sent: Friday, July 24, 2020 11:58 PM To: Sean Riordan <SRiordan@aclunc.org>; Coleman, Susan E. <SColeman@bwslaw.com>; Zack, Adrienne (USACAN) <Adrienne.Zack@usdoj.gov>; Garbers, Wendy (USACAN) <Wendy.Garbers@usdoj.gov> Cc: Bill Freeman <wfreeman@aclunc.org>; Angelica Salceda <asalceda@aclunc.org>; Marty Schenker <mschenker@cooley.com>; Emilou Maclean <emilou.maclean@sfgov.org>; Bree Bernwanger <bbernwanger@lccrsf.org>; Francisco Unger <funger@cooley.com>; Timothy Cook <tcook@cooley.com>; Genna Beier <genna.beier@sfgov.org>; Judah Lakin <judah@lakinwille.com> Subject: RE: [Zepeda Rivas] proposal for tes4ng/cohor4ng protocol
Dear Sean:
We have received Plain4ﬀs’ proposal and are reviewing and evalua4ng with ICE.
We had some ini4al ques4ons about Plain4ﬀs’ proposal where we may need further clarity in order to evaluate. We are happy to have a call to meet and confer to discuss on Monday between 10 and 11 or between 1 and 2, if that works for Plain4ﬀs and for GEO?
Best regards, Shiwon
Shiwon Choe Assistant United States Aborney Northern District of California 450 Golden Gate Avenue San Francisco, CA 94102 T: (415) 436-6967 F: (415) 436-6748 E: shiwon.choe@usdoj.gov
From: Sean Riordan <SRiordan@aclunc.org> Sent: Friday, July 24, 2020 1:26 PM To: Coleman, Susan E. <SColeman@bwslaw.com>; Zack, Adrienne (USACAN) <AZack1@usa.doj.gov>; Choe, Shiwon (USACAN) <SChoe@usa.doj.gov>; Garbers, Wendy (USACAN) <wgarbers@usa.doj.gov> Cc: Bill Freeman <wfreeman@aclunc.org>; Angelica Salceda <asalceda@aclunc.org>; Marty Schenker <mschenker@cooley.com>; Emilou Maclean <emilou.maclean@sfgov.org>; Bree Bernwanger <bbernwanger@lccrsf.org>; Francisco Unger <funger@cooley.com>; Timothy Cook <tcook@cooley.com>; Genna Beier <genna.beier@sfgov.org>; Judah Lakin <judah@lakinwille.com>
Page 4 of 7

Case 3:20-cv-02731-VC Document 488-9 Filed 08/05/20 Page 6 of 9
Subject: RE: [Zepeda Rivas] proposal for tes4ng/cohor4ng protocol
In our proposal, that would depend on the availability of RHU/medical isola4on space for those who refuse tes4ng. As an ini4al maber, we believe this would be a very small or non-existent group if other aspects of our proposal were implemented, including the provision where we as class counsel would speak to refusers about tes4ng. But if someone con4nued to refuse, the highlighted text below would cover that situa4on.
Refusal issues: If the beneﬁts of being tested were explained to all class members, we believe it would be very rare for a class member to refuse a test. With this in mind:
The par4es should work together to formulate an informa4on sheet providing basic informa4on about tes4ng to class members, which would be provided at the 4me a test is oﬀered. Any class members who refuse to be tested should be provided an opportunity to speak with class counsel. If aeer speaking with class counsel, they con4nue to decline tes4ng, they should be cohorted in one of the RHU or medical cells, if available, or, if space restric4ons render it necessary, in another dorm that could be cleared for the purpose of cohor4ng those who refuse. ICE should refrain from transferring to another deten4on facility anyone who refuses to be tested on intake. Public health experts inform us that this prac4ce presents a risk to the personnel involved in the transport and to the personnel and detainees at the receiving facility, and these concerns are consistent with the CDC Guidance on Management of COVID-19 in Correc4onal and Deten4on Facili4es which strongly discourages transfers of detained persons “unless necessary.” At intake, individuals should be presented in a posi4ve way the op4on of taking a test, aﬀorded an opportunity to speak with class counsel about the test if they express reluctance, and cohorted for 14 days with anyone else who refuses if they ul4mately decline to be tested.
From: Coleman, Susan E. <SColeman@bwslaw.com> Sent: Friday, July 24, 2020 1:20 PM To: Sean Riordan <SRiordan@aclunc.org>; Zack, Adrienne (USACAN) <Adrienne.Zack@usdoj.gov>; Choe, Shiwon (USACAN) <Shiwon.Choe@usdoj.gov>; Garbers, Wendy (USACAN) <Wendy.Garbers@usdoj.gov> Cc: Bill Freeman <wfreeman@aclunc.org>; Angelica Salceda <asalceda@aclunc.org>; Marty Schenker <mschenker@cooley.com>; Emilou Maclean <emilou.maclean@sfgov.org>; Bree Bernwanger <bbernwanger@lccrsf.org>; Francisco Unger <funger@cooley.com>; Timothy Cook <tcook@cooley.com>; Genna Beier <genna.beier@sfgov.org>; Judah Lakin <judah@lakinwille.com> Subject: RE: [Zepeda Rivas] proposal for tes4ng/cohor4ng protocol
Counsel – what do you propose to do for the plain4ﬀs-detainees that refuse tes4ng?
Susan E. Coleman | Partner 444 South Flower Street, Suite 2400 | Los Angeles, CA 90071-2953 d - 213.236.2831 | t - 213.236.0600 | f - 213.236.2700 scoleman@bwslaw.com | vCard | bwslaw.com
Page 5 of 7

Case 3:20-cv-02731-VC Document 488-9 Filed 08/05/20 Page 7 of 9
The information contained in this e-mail message is intended only for the CONFIDENTIAL use of the designated addressee named above. The information transmitted is subject to the attorney-client privilege and/or represents confidential attorney work product. Recipients should not file copies of this email with publicly accessible records. If you are not the designated addressee named above or the authorized agent responsible for delivering it to the designated addressee, you received this document through inadvertent error and any further review, dissemination, distribution or copying of this communication by you or anyone else is strictly prohibited. IF YOU RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY TELEPHONING THE SENDER NAMED ABOVE AT 800.333.4297. Thank you.
From: Sean Riordan [mailto:SRiordan@aclunc.org] Sent: Friday, July 24, 2020 12:47 PM To: Zack, Adrienne (USACAN); Choe, Shiwon (USACAN); Garbers, Wendy (USACAN); Coleman, Susan E. Cc: Bill Freeman; Angelica Salceda; Marty Schenker; Emilou Maclean; Bree Bernwanger; Francisco Unger; Timothy Cook; Genna Beier; Judah Lakin Subject: [Zepeda Rivas] proposal for testing/cohorting protocol
[EXTERNAL]
Dear Counsel:
We write to address the urgent need for universal and regular COVID-19 tes4ng of class members at Mesa Verde. As you know, twelve MVDF staﬀ and two detained class members have recently tested posi4ve for COVID-19. While we believe that universal and regular tes4ng should have already been occurring, in light of these developments it is impera4ve that ICE quickly establish such a tes4ng regime and a plan for responding to any posi4ve test. As the CDC’s tes4ng guidance (“CDC Guidance”) states, “Before tes4ng large numbers of asymptoma4c individuals without known or suspected exposure, facility leadership should have a plan in place for how they will modify opera4ons based on test results.”
In recent days we have consulted medical and public health experts to beber understand the problem and come up with poten4al solu4ons. Given that ICE has already expressed its willingness to engage in universal tes4ng, we hope the Defendants will quickly agree to the implementa4on of this plan. We note that Defendants iden4ﬁed problema4c condi4ons precedent to the implementa4on of universal tes4ng, see Bonnar Declara4on (ECF 429-1), para. 10 & n.3. Experts iden4ﬁed such condi4ons as either inconsequen4al or surmountable.
Speciﬁcally, we propose:
Intake: ICE con4nue to test all arriving class members at intake and to medically isolate any such person who tests posi4ve. Universal and regular tesHng: ICE test all MVDF personnel and class members on a regular basis, at least once per week, through a point of care test that returns results quickly, allowing the results to be acted upon.
Page 6 of 7

Case 3:20-cv-02731-VC Document 488-9 Filed 08/05/20 Page 8 of 9
results to be acted upon. Experts inform us that the Abbob ID test already in use at MVDF is adequate for these purposes. By contrast, any test would be inadequate if it presents a signiﬁcant delay in the availability of results, as Defendants have suggested is likely for tests that require oﬀsite laboratory analysis. See Bonnar Dec. n. 3. As a point of reference, some other ins4tu4ons – like universi4es – are planning to test their popula4ons two to three 4mes per week to control against outbreaks. Professional sports leagues are doing this daily – they are, like DHS, mul4-billion dollar opera4ons with the possibility of widespread COVID infec4on if adequate mi4ga4on measures are not implemented. Experts have advised that weekly tests are appropriate in a seyng such as MVDF, and this is consistent with CDC Guidance (“Approaches for early iden4ﬁca4on of asymptoma4c individuals include, ini4al tes4ng of everyone in the seyng, periodic (e.g., weekly) tes4ng of everyone in the seyng, and tes4ng of new or returning entrants into the seyng.”).
EﬀecHve contact tracing: ICE trace and test anyone who was in contact with staﬀ or class members who tested posi4ve, with a contact window beyond the two days that is the current prac4ce. Experts recommend tracing and tes4ng all those who came into contact with a conﬁrmed posi4ve individual within 14 days from the date that the individual contact tested posi4ve absent evidence that the person who tested posi4ve became infected only more recently.
Arranging facility for cohorHng: The Defendants establish a plan for responding to posi4ve tests among the general popula4on (i.e., not including intakes). If a class member tests posi4ve, they should be placed in medical isola4on consistent with the CDC guidelines. If there is insuﬃcient space in medical isola4on cells and/or the RHU in which to isolate that person, as an alterna4ve Plain4ﬀs propose that the Defendants would cohort the conﬁrmed COVID-posi4ve class members in a separate dorm. Thus, Defendants would:
Clear the class members from one of the dorms and use that dorm as the site in which to quaran4ne those who test posi4ve in a cohort. The clearing of that dorm should include taking measures to ensure that air is not circula4ng from that dorm to other parts of the facility. This may require modifying the exis4ng ven4la4on system. It should also include signiﬁcant measures to ensure that staﬀ serving that COVID-posi4ve dorm take measures to prevent transmission to other parts of the facility (i.e., with staﬀ limi4ng their engagement with other class members outside of the dorm of those who test posi4ve except to the extent necessary). On the expecta4on that adop4on of this protocol would increase the safety level of the remaining dorms, we would be willing to discuss a modest increase in the number of detainees housed in those dorms. Refrain from adding any new individual into a dorm from which a class member was moved aeer tes4ng posi4ve un4l 14 days have passed or all individuals in that dorm have tested nega4ve. The dorm from which a class member was moved essen4ally becomes its own temporary cohort.
Refusal issues: If the beneﬁts of being tested were explained to all class members, we believe it would be very rare for a class member to refuse a test. With this in mind:
The par4es should work together to formulate an informa4on sheet providing basic informa4on about tes4ng to class members, which would be provided at the 4me a test is oﬀered.
Page 7 of 7

Case 3:20-cv-02731-VC Document 488-9 Filed 08/05/20 Page 9 of 9
oﬀered. Any class members who refuse to be tested should be provided an opportunity to speak with class counsel. If aeer speaking with class counsel, they con4nue to decline tes4ng, they should be cohorted in one of the RHU or medical cells, if available, or, if space restric4ons render it necessary, in another dorm that could be cleared for the purpose of cohor4ng those who refuse. ICE should refrain from transferring to another deten4on facility anyone who refuses to be tested on intake. Public health experts inform us that this prac4ce presents a risk to the personnel involved in the transport and to the personnel and detainees at the receiving facility, and these concerns are consistent with the CDC Guidance on Management of COVID-19 in Correc4onal and Deten4on Facili4es which strongly discourages transfers of detained persons “unless necessary.” At intake, individuals should be presented in a posi4ve way the op4on of taking a test, aﬀorded an opportunity to speak with class counsel about the test if they express reluctance, and cohorted for 14 days with anyone else who refuses if they ul4mately decline to be tested.
Releasing individuals to avoid increased density if dorms need to be rearranged in light of posiHve test results: Given the signiﬁcant possibility that at least one and possibly two dorms would have to be cleared under this plan, and to comply with the preliminary injunc4on’s requirement that condi4ons be maintained at the current level of safety, ICE will likely need to release addi4onal class members at MVDF and/or slow or stop the arrival of new class members for a 4me. Otherwise, in clearing one or more dorms, the remaining dorms will be made signiﬁcantly more crowded, increasing the risk of COVID-19 transmission in those remaining dorms. This should be done either voluntarily or through the Court’s revisi4ng of bail applica4ons, and this should priori4ze those with medical vulnerabili4es.
The Defendants have already oﬀered universal tes4ng of some sort (Bonnar Dec. para. 10) and have apparently seriously considered a cohor4ng scheme similar to the one suggested here (GEO 059). We hope then that the par4es can reach a quick agreement to meaningfully address the tes4ng and cohor4ng issues that the recent posi4ve test results have made all the more urgent. Everyone involved has a signiﬁcant interest in ensuring that Mesa Verde doesn’t become the San Quen4n of immigra4on deten4on centers. Our experts think the measures we’ve proposed, which are consistent with CDC guidance, represent a reasonable way to hedge against a tragic and deadly outcome.
We suggest the par4es meet and confer to discuss this at the earliest opportunity. We hope to be able to resolve this without further li4ga4on.
Best Regards, Sean
Page 8 of 7

Case 3:20-cv-02731-VC Document 488-10 Filed 08/05/20 Page 1 of 6
Exhibit J

Case 3:20-cv-02731-VC Document 488-10 Filed 08/05/20 Page 2 of 6
From: "Choe, Shiwon (USACAN)" <Shiwon.Choe@usdoj.gov> Date: Monday, August 3, 2020 at 3:48 PM To: "Maclean, Emilou (PDR)" <emilou.maclean@sfgov.org>, "Coleman, Susan E." <SColeman@bwslaw.com>, "Beier, Genna (PDR)" <genna.beier@sfgov.org>, "Zack, Adrienne (USACAN)" <Adrienne.Zack@usdoj.gov>, "Garbers, Wendy (USACAN)" <Wendy.Garbers@usdoj.gov> Cc: Bill Freeman <wfreeman@aclunc.org>, "Schenker, Marty" <mschenker@cooley.com>, Angelica Salceda <asalceda@aclunc.org>, Bree Bernwanger <bbernwanger@lccrsf.org>, Judah Lakin <judah@lakinwille.com>, Amalia Wille <amalia@lakinwille.com>, Sean Riordan <SRiordan@aclunc.org> Subject: RE: [Zepeda Rivas] Urgent update re: COVID-19 at Mesa Verde
Dear Emi:
As of now, we have received word that five detainees in Dorm B who were tested on July 30 had results come back that were positive for COVID-19. If we receive more test results today, we will let you know. Dorms B and C currently remain cohorted.
Best regards, Shiwon
From: Maclean, Emilou (PDR) <emilou.maclean@sfgov.org> Sent: Monday, August 03, 2020 1:56 PM To: Choe, Shiwon (USACAN) <SChoe@usa.doj.gov>; Coleman, Susan E. <SColeman@bwslaw.com>; Beier, Genna (PDR) <genna.beier@sfgov.org>; Zack, Adrienne (USACAN) <AZack1@usa.doj.gov>; Garbers, Wendy (USACAN) <wgarbers@usa.doj.gov> Cc: Bill Freeman <wfreeman@aclunc.org>; Schenker, Marty <mschenker@cooley.com>; Angelica Salceda <asalceda@aclunc.org>; Bree Bernwanger <bbernwanger@lccrsf.org>; Judah Lakin <judah@lakinwille.com>; Amalia Wille <amalia@lakinwille.com>; Sean Riordan <SRiordan@aclunc.org> Subject: Re: [Zepeda Rivas] Urgent update re: COVID-19 at Mesa Verde
Dear Counsel:
We have received information from class members that there are additional COVID-19 positive results at Mesa Verde but insufficient space to segregate any further individuals who test positive.
Please notify us by 4 pm today if (a) you have received results from the recent COVID tests, and if so, the results of those tests; and (b) the plans for segregating anyone who tests positive given the acknowledged shortage of space.
Thank you,
Emi

Case 3:20-cv-02731-VC Document 488-10 Filed 08/05/20 Page 3 of 6
From: "Choe, Shiwon (USACAN)" <Shiwon.Choe@usdoj.gov> Date: Monday, August 3, 2020 at 10:08 AM To: "Coleman, Susan E." <SColeman@bwslaw.com>, "Beier, Genna (PDR)" <genna.beier@sfgov.org>, "Zack, Adrienne (USACAN)" <Adrienne.Zack@usdoj.gov>, "Garbers, Wendy (USACAN)" <Wendy.Garbers@usdoj.gov> Cc: Bill Freeman <wfreeman@aclunc.org>, "Schenker, Marty" <mschenker@cooley.com>, "Maclean, Emilou (PDR)" <emilou.maclean@sfgov.org>, Angelica Salceda <asalceda@aclunc.org>, Bree Bernwanger <bbernwanger@lccrsf.org>, Judah Lakin <judah@lakinwille.com>, Amalia Wille <amalia@lakinwille.com>, Sean Riordan <SRiordan@aclunc.org> Subject: RE: [Zepeda Rivas] Urgent update re: COVID-19 at Mesa Verde
Dear counsel,
We understand that ICE has requested that GEO offer COVID-19 testing to all detainees in Dorm C. Regarding your question about rapid testing, our understanding is that Mesa Verde does not have enough rapid testing available to test all detainees. We are working to get further information.
Best regards, Shiwon
From: Coleman, Susan E. <SColeman@bwslaw.com> Sent: Sunday, August 02, 2020 4:37 PM To: Beier, Genna (PDR) <genna.beier@sfgov.org>; Zack, Adrienne (USACAN) <AZack1@usa.doj.gov>; Garbers, Wendy (USACAN) <wgarbers@usa.doj.gov>; Choe, Shiwon (USACAN) <SChoe@usa.doj.gov> Cc: Bill Freeman <wfreeman@aclunc.org>; Schenker, Marty <mschenker@cooley.com>; Maclean, Emilou (PDR) <emilou.maclean@sfgov.org>; Angelica Salceda <asalceda@aclunc.org>; Bree Bernwanger <bbernwanger@lccrsf.org>; Judah Lakin <judah@lakinwille.com>; Amalia Wille <amalia@lakinwille.com>; Sean Riordan <SRiordan@aclunc.org> Subject: RE: [Zepeda Rivas] Urgent update re: COVID-19 at Mesa Verde
I don’t have any of the other information you requested.
As for information given to detainees, as Warden Allen testified, they are not informed about who tested positive, but only that they may have been exposed. Why would they be entitled to know the names of people who have tested positive, which is protected by HIPPAA?
Susan E. Coleman | Partner 444 South Flower Street, Suite 2400 | Los Angeles, CA 90071-2953 d - 213.236.2831 | t - 213.236.0600 | f - 213.236.2700 scoleman@bwslaw.com | vCard | bwslaw.com

Case 3:20-cv-02731-VC Document 488-10 Filed 08/05/20 Page 4 of 6
The information contained in this e-mail message is intended only for the CONFIDENTIAL use of the designated addressee named above. The information transmitted is subject to the attorney-client privilege and/or represents confidential attorney work product. Recipients should not file copies of this email with publicly accessible records. If you are not the designated addressee named above or the authorized agent responsible for delivering it to the designated addressee, you received this document through inadvertent error and any further review, dissemination, distribution or copying of this communication by you or anyone else is strictly prohibited. IF YOU RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY TELEPHONING THE SENDER NAMED ABOVE AT 800.333.4297. Thank you.
From: Beier, Genna (PDR) [mailto:genna.beier@sfgov.org] Sent: Sunday, August 2, 2020 4:22 PM To: Coleman, Susan E.; Zack, Adrienne (USACAN); Garbers, Wendy (USACAN); Choe, Shiwon (USACAN) Cc: Bill Freeman; Schenker, Marty; Maclean, Emilou (PDR); Angelica Salceda; Bree Bernwanger; Judah Lakin; Amalia Wille; Sean Riordan Subject: Re: [Zepeda Rivas] Urgent update re: COVID-19 at Mesa Verde
[EXTERNAL]
Thank you for the information. However, this does not obviate the need for Defendants to answer our questions and take the actions we identified, which relate to the safety of all class members and staff at Mesa Verde. We ask that you respond in full by tomorrow at 10 am.
From: "Coleman, Susan E." <SColeman@bwslaw.com> Date: Sunday, August 2, 2020 at 1:37 PM To: "Beier, Genna (PDR)" <genna.beier@sfgov.org>, "Zack, Adrienne (USACAN)" <Adrienne.Zack@usdoj.gov>, "Garbers, Wendy (USACAN)" <Wendy.Garbers@usdoj.gov>, "Choe, Shiwon (USACAN)" <Shiwon.Choe@usdoj.gov> Cc: Bill Freeman <wfreeman@aclunc.org>, "Schenker, Marty" <mschenker@cooley.com>, "Maclean, Emilou (PDR)" <emilou.maclean@sfgov.org>, Angelica Salceda <asalceda@aclunc.org>, Bree Bernwanger <bbernwanger@lccrsf.org>, Judah Lakin <judah@lakinwille.com>, Amalia Wille <amalia@lakinwille.com>, Sean Riordan <SRiordan@aclunc.org> Subject: RE: [Zepeda Rivas] Urgent update re: COVID-19 at Mesa Verde
This message is from outside the City email system. Do not open links or attachments from untrusted sources.
Mr. Yao Saeturn was released to his family and is no longer in custody.
Susan E. Coleman | Partner 444 South Flower Street, Suite 2400 | Los Angeles, CA 90071-2953 d - 213.236.2831 | t - 213.236.0600 | f - 213.236.2700 scoleman@bwslaw.com | vCard | bwslaw.com

Case 3:20-cv-02731-VC Document 488-10 Filed 08/05/20 Page 5 of 6
The information contained in this e-mail message is intended only for the CONFIDENTIAL use of the designated addressee named above. The information transmitted is subject to the attorney-client privilege and/or represents confidential attorney work product. Recipients should not file copies of this email with publicly accessible records. If you are not the designated addressee named above or the authorized agent responsible for delivering it to the designated addressee, you received this document through inadvertent error and any further review, dissemination, distribution or copying of this communication by you or anyone else is strictly prohibited. IF YOU RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY TELEPHONING THE SENDER NAMED ABOVE AT 800.333.4297. Thank you.
From: Beier, Genna (PDR) [mailto:genna.beier@sfgov.org] Sent: Saturday, August 1, 2020 5:06 PM To: Zack, Adrienne (USACAN); Garbers, Wendy (USACAN); Choe, Shiwon (USACAN); Coleman, Susan E. Cc: Bill Freeman; Schenker, Marty; Maclean, Emilou (PDR); Angelica Salceda; Bree Bernwanger; Judah Lakin; Amalia Wille; Sean Riordan Subject: [Zepeda Rivas] Urgent update re: COVID-19 at Mesa Verde
[EXTERNAL]
Dear Counsel,
We learned this morning that a medically vulnerable, 65 year-old class member detained in Dorm C, Mr. Yao Saeturn, tested positive for COVID-19, and has now been hospitalized. Mr. Saeturn is 65 years old, suffers from hypertension, high cholesterol, and ulcers, and has mobility impairments. See Dkt. 128-2. We understand that Mr. Saeturn had been exhibiting symptoms of COVID-19 for an extended period of time before he was taken to the medical unit. Despite requests for medical attention, we understand he was not taken to the medical unit until yesterday. We understand that he and other class members in Dorm C were informed of the positive test last night. If these accounts are correct, Mr. Saeturn is the fourth class member who has tested positive for the virus.
We write to ask for further information regarding Mr. Saeturn’s status, and about the risks to other class members. As Defendants may be aware, Kern County has recently experienced a critical shortage of hospital beds for COVID-19 patients; avoiding further transmission is not only imperative to the health and well-being of class members in Defendants’ custody, but to the community at large. As of Thursday, local news reports noted there were only two ICU beds open in Kern County.
We further call on Defendants to take immediate action to protect all class members from what could be the beginning of a COVID-19 outbreak at Mesa Verde. Plaintiffs hope that Defendants will act with the urgency this life-or-death scenario demands.
Requests for information • Can you confirm that Mr. Saeturn tested positive for coronavirus? What symptoms is he experiencing? Where is he currently being held? What medical treatment is being provided to him? Can you facilitate communication between Mr. Saeturn and his attorneys, Lisa Knox and Susan Beaty?

Case 3:20-cv-02731-VC Document 488-10 Filed 08/05/20 Page 6 of 6
• Warden Allen confirmed that detainees had been transferred from Dorm B to Dorms C and D. We understand that at least one individual was transferred from Dorm B to Dorm A. Can you confirm that transfers have also taken place from Dorm B to Dorm A? Please name all individuals transferred between dorms in the past 14 days.
• Class members have reported having no or little information about positive tests of either staff or detainees. What information have class members been provided regarding the positive tests of both detainees and staff at Mesa Verde?
• Plaintiffs have thus far been provided no information about contact tracing of staff. Please provide details about whether infected staff have had contact or close contact with other staff, and whether those staff contacts have been tested.
• Have the individuals in Dorms B and C been offered rapid testing? Have any staff? • What is the capacity of local Kern County hospitals to absorb Mesa Verde detainees
suffering from complications of COVID-19?
Actions to Protect Class Members (as well as staff and the surrounding community) • Plaintiffs ask that Defendants promptly offer rapid testing to all detainees AND GEO/WellPath staff to gauge the scope of any outbreak. While confirmatory tests sent to a laboratory are welcome, 4-7 days for results is an unacceptable delay in light of the risks of transmission in congregate settings. • Provide immediate access to class counsel if any class member expresses reluctance to be tested, prior to classifying an individual as a refuser. • Plaintiffs further ask that Defendants release class members, such as Mr. Saeturn, who have medical vulnerabilities that place them at high risk of suffering severe outcomes or death if they contract COVID-19. Concerns regarding flight risk can be ameliorated with alternatives to detention or home-arrest like conditions. • Plaintiffs request that Defendants cease any new intakes into the facility until universal periodic testing has been implemented and there is available space for COVID-infected class members.
In light of the seriousness of this situation, we believe that Defendants should take the necessary actions immediately, and we request that Defendants respond to us no later than 10:00 a.m. Monday, August 3, providing the information requested and informing us of what actions have been taken. We intend to file a supplemental CMC statement on Monday afternoon outlining the information we have learned and Defendants’ response to this communication. We hope that the parties can agree in principle that Defendants must do everything within their capacity to respond to this - the looming threat of an outbreak.
Thank you,
Genna She/Her/Ella Deputy Public Defender San Francisco Office of the Public Defender

Case 3:20-cv-02731-VC Document 488-11 Filed 08/05/20 Page 1 of 3
Exhibit K

Case 3:20-cv-02731-VC Document 488-11 Filed 08/05/20 Page 2 of 3

From: "Zack, Adrienne (USACAN)" <Adrienne.Zack@usdoj.gov> Date: Monday, August 3, 2020 at 6:34 PM To: Sean Riordan <SRiordan@aclunc.org>, Angelica Salceda <asalceda@aclunc.org>, "Beier, Genna (PDR)" <genna.beier@sfgov.org>, "Ugarte, Francisco (PDR)" <francisco.ugarte@sfgov.org>, Bree Bernwanger <bbernwanger@lccrsf.org>, Timothy Cook <tcook@cooley.com>, Marty Schenker <mschenker@cooley.com>, Judah Lakin <judah@lakinwille.com>, Amalia Wille <amalia@lakinwille.com>, "Maclean, Emilou (PDR)" <emilou.maclean@sfgov.org>, Bill Freeman <wfreeman@aclunc.org> Cc: "Choe, Shiwon (USACAN)" <Shiwon.Choe@usdoj.gov>, "Garbers, Wendy (USACAN)" <Wendy.Garbers@usdoj.gov>, "Coleman, Susan E." <SColeman@bwslaw.com> Subject: Zepeda Rivas - COVID testing update
This message is from outside the City email system. Do not open links or attachments from untrusted sources.

Counsel,

The names and information of the detainees in this message are designated CONFIDENTIAL pursuant to the protective orders.

Mr. Yao Saeturn,

was seen in medical on July 31, 2020, for complaints of cough, chest

pain, and sore throat. He was sent to the emergency room for COVID-19 testing, which came back

positive. He was admitted to the hospital. On August 2, 2020, Mr. Saeturn was released on an order of

supervision from ICE custody.

Because Mr. Saeturn had been housed in Dormitory C at Mesa Verde, that dorm was placed on cohort for 14-day monitoring. Arrangements to test those housed in C Dorm are in progress. The 31 detainees on cohort are listed below. We will provide further updates regarding contact tracing as available.

(1) Gabriel Yucute-Camey,

(2) Juan Lopez-Garcia,

(3) Isidro Benavides Caballo,

(4) Edwin Alas Alfaro,

(5) Antonio Gonzalez-Agaton,

(6) Julio Palma Aguilar,

(7) Benjamin Hernandez Garcia,

(8) Jose Camarena Navarrete,

(9) Kevin Arias Romero,

(10) Pedro Nunez,

;

(11) Jose Alfaro Henriquez,

(12) Samuel Rios-Alvarado,

(13) Jose Argueta-Rivera,

(14) Roberto Ramirez-Pineda,

(15) Angel Ordaz Camacho,

(16) Oscar Vigil,

;

;
; ;
; ;

Case 3:20-cv-02731-VC Document 488-11 Filed 08/05/20 Page 3 of 3

(17) Alejandro Flores-Banuelos,

;

(18) Luis Aguilar Carrion,

;

(19) Deepak Sahota,

;

(20) Walter Cruz-Zavala,

;

(21) Raleigh Figueras,

(22) Ivan Hernandez Pelayo,

;

(23) Reynaldo Dungo,

;

(24) Walter Carillo Torres,

;

(25) Jose Villanueva,

(26) Asif Qazi,

;

(27) Jose Robles Flores,

(28) Pedro Narvaez,

(29) Dilbagh Singh,

(30) Levi Cruz Menjivar,

; and

(31) Francisco Mendoza-Canales,

.

As previously reported, all 33 detainees in Dorm B were offered testing, of which 32 consented and 1

refused. All lab results have returned. 27 detainees in B Dorm tested negative for COVID-19. The

following detainees from Dorm B tested positive and have been informed of the their results: Israel

Marin-Parra,

; German Najera-Grajeda,

; Marcos Najera-Sandoval,

; Jose Ruiz,

; and Benito Villalobos-Sura,

. These five individuals have

been removed from Dorm B; two have been placed in the RHUs and three are in intake holding cells

with cots.

Mr. Oscar Bonilla Solano,

, who was taken off of medical isolation last week, has been

transferred from Mesa Verde for removal.

Adrienne Zack Assistant United States Attorney Northern District of California 450 Golden Gate Avenue, 9th Floor San Francisco, CA 94102 415.436.7031 Adrienne.Zack@usdoj.gov

Case 3:20-cv-02731-VC Document 488-12 Filed 08/05/20 Page 1 of 5
Exhibit L

Case 3:20-cv-02731-VC Document 488-12 Filed 08/05/20 Page 2 of 5

Case 3:20-cv-02731-VC Document 488-12 Filed 08/05/20 Page 3 of 5

Case 3:20-cv-02731-VC Document 488-12 Filed 08/05/20 Page 4 of 5

Case 3:20-cv-02731-VC Document 488-12 Filed 08/05/20 Page 5 of 5

Case 3:20-cv-02731-VC Document 488-13 Filed 08/05/20 Page 1 of 3
Exhibit M

Case 3:20-cv-02731-VC Document 488-13 Filed 08/05/20 Page 2 of 3

Case 3:20-cv-02731-VC Document 488-13 Filed 08/05/20 Page 3 of 3

Case 3:20-cv-02731-VC Document 489 Filed 08/05/20 Page 1 of 3

1 WILLIAM S. FREEMAN (SBN 82002)

MANOHAR RAJU (SBN 193771)

wfreeman@aclunc.org 2 SEAN RIORDAN (SBN 255752)

Public Defender MATT GONZALEZ (SBN 153486)

3 sriordan@aclunc.org ANGÉLICA SALCEDA (SBN 296152)

Chief Attorney GENNA ELLIS BEIER (CA SBN 300505)

4 asalceda@aclunc.org

genna.beier@sfgov.org

AMERICAN CIVIL LIBERTIES UNION

EMILOU H. MACLEAN (CA SBN 319071)

5 FOUNDATION OF NORTHERN

emilou.maclean@sfgov.org

CALIFORNIA 6 39 Drumm Street

FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org

7 San Francisco, CA 94111 Telephone: (415) 621-2493

OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO

8 Facsimile: (415) 255-8437

555 Seventh Street

San Francisco, CA 94103

9 Attorneys for Petitioners-Plaintiffs

Direct: (415) 553-9319

10

*Admitted Pro Hac Vice Additional Counsel Listed on Following Page

Facsimile: (415) 553-9810

11

12

UNITED STATES DISTRICT COURT

13

NORTHERN DISTRICT OF CALIFORNIA

14
ANGEL DE JESUS ZEPEDA RIVAS, 15 BRENDA RUBI RUIZ TOVAR, LAWRENCE
KURIA MWAURA, LUCIANO GONZALO 16 MENDOZA JERONIMO, CORAIMA
YARITZA SANCHEZ NUÑEZ, JAVIER 17 ALFARO, DUNG TUAN DANG,

18

Petitioners-Plaintiffs,

19

v.

20 DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration
21 and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior
22 Official Performing the Duties of the Director of the U.S. Immigration and Customs
23 Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP,
24 INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,
25
Respondents-Defendants. 26

Case No. 3:20-CV-02731-VC
DECLARATION OF FRANCISCO M. UNGER IN SUPPORT OF PETITIONERS-PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER

27

28

DECLARATION OF FRANCISCO M. UNGER

1

ISO OF PLAINTIFFS’ MOTION FOR TRO

CASE NO. 3:20-CV-02731-VC

Case 3:20-cv-02731-VC Document 489 Filed 08/05/20 Page 2 of 3

1 BREE BERNWANGER* (NY SBN 5036397) MARTIN S. SCHENKER (SBN 109828)

bbernwanger@lccrsf.org 2 HAYDEN RODARTE (SBN 329432)

mschenker@cooley.com COOLEY LLP

3 hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR

101 California Street, 5th Floor San Francisco, CA 94111

4 CIVIL RIGHTS OF

Telephone: (415) 693-2000

SAN FRANCISCO BAY AREA

Facsimile: (415) 693-2222

5 131 Steuart St #400

San Francisco, CA 94105 6 Telephone: (415) 814-7631

TIMOTHY W. COOK* (Mass. BBO# 688688) tcook@cooley.com

7 JUDAH LAKIN (SBN 307740)

FRANCISCO M. UNGER* (Mass. BBO# 698807)

8 judah@lakinwille.com

funger@cooley.com

AMALIA WILLE (SBN 293342)

COOLEY LLP

9 amalia@lakinwille.com

500 Boylston Street

10

LAKIN & WILLE LLP 1939 Harrison Street, Suite 420

Boston, MA 02116 Telephone: (617) 937-2300

11 Oakland, CA 94612 Telephone: (510) 379-9216

Facsimile: (617) 937-2400

12 Facsimile: (510) 379-9219

13 JORDAN WELLS (SBN 326491)

14

jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568)

15 spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION

16 FOUNDATION OF SOUTHERN

CALIFORNIA 17 1313 West Eighth Street

18

Los Angeles, CA 90017 Telephone: (213) 977-9500

19 Facsimile: (213) 977-5297

20

21

22

23

24

25

26

27

28

DECLARATION OF FRANCISCO M. UNGER

2

ISO OF PLAINTIFFS’ MOTION FOR TRO

CASE NO. 3:20-CV-02731-VC

Case 3:20-cv-02731-VC Document 489 Filed 08/05/20 Page 3 of 3

1

I, Francisco M. Unger, declare as follows:

2

1. I am an associate with the law firm of Cooley LLP, co-counsel of record in the

3 above-captioned matter for named Plaintiffs and the provisional Class. I have knowledge of the

4 following, and if called as a witness, I could and would testify competently thereto.

5

2. Attached hereto are the following true and correct copies of the following documents

6 produced by defendant GEO Group, Inc. in response to a request for production of documents

7 served by Plaintiffs:

8

9

Exhibit

Document Description

Email from Nathan Allen to Cheryl Nelson and Paul Laird, dated June 4,

10

A

2020. (GEO_07064). 11

B

Email from Nathan Allen to Cheryl Nelson, dated July 1, 2020. (GEO_07202).

12

C

Department of Homeland Security survey, dated April 10, 2020. (GEO_00003).

13

D

Email from Nathan Allen to Alexander Pham, dated June 4, 2020. (GEO_01052).

14

E

Email from Nathan Allen to Paul Laird and Cheryl Nelson, dated July 2, 2020.

15

(GEO_06391). 16

F

Email from Paul Laird to Nathan Allen, dated June 25, 2020. (GEO_08822).

17

18

G

Email from Brooke Sanchez-Othon to Janese Mull and Nathan Allen, dated July

19

6, 2020. (GEO_06238).

20

H

Email from Nathan Allen to Cheryl Nelson, dated May 26, 2020. (GEO_06450).

21

I declare under penalty of perjury under the laws of the United States that the foregoing is

22 true and correct.

23

Executed on August 3, 2020 in Cambridge, Massachusetts.

24 /s/ Francisco M. Unger

25

Francisco M. Unger

26

27

28

DECLARATION OF FRANCISCO M. UNGER

3

ISO OF PLAINTIFFS’ MOTION FOR TRO

CASE NO. 3:20-CV-02731-VC

Case 3:20-cv-02731-VC Document 489-1 Filed 08/05/20 Page 1 of 3
Exhibit A

Case 3:20-cv-02731-VC Document 489-1 Filed 08/05/20 Page 2 of 3

Case 3:20-cv-02731-VC Document 489-1 Filed 08/05/20 Page 3 of 3

Case 3:20-cv-02731-VC Document 489-2 Filed 08/05/20 Page 1 of 4
Exhibit B

Case 3:20-cv-02731-VC Document 489-2 Filed 08/05/20 Page 2 of 4

Case 3:20-cv-02731-VC Document 489-2 Filed 08/05/20 Page 3 of 4

Case 3:20-cv-02731-VC Document 489-2 Filed 08/05/20 Page 4 of 4

Case 3:20-cv-02731-VC Document 489-3 Filed 08/05/20 Page 1 of 4
Exhibit C

Case 3:20-cv-02731-VC Document 489-3 Filed 08/05/20 Page 2 of 4

Case 3:20-cv-02731-VC Document 489-3 Filed 08/05/20 Page 3 of 4

Case 3:20-cv-02731-VC Document 489-3 Filed 08/05/20 Page 4 of 4

Case 3:20-cv-02731-VC Document 489-4 Filed 08/05/20 Page 1 of 2
Exhibit D

Case 3:20-cv-02731-VC Document 489-4 Filed 08/05/20 Page 2 of 2

Case 3:20-cv-02731-VC Document 489-5 Filed 08/05/20 Page 1 of 3
Exhibit E

Case 3:20-cv-02731-VC Document 489-5 Filed 08/05/20 Page 2 of 3

Case 3:20-cv-02731-VC Document 489-5 Filed 08/05/20 Page 3 of 3

Case 3:20-cv-02731-VC Document 489-6 Filed 08/05/20 Page 1 of 3
Exhibit F

Case 3:20-cv-02731-VC Document 489-6 Filed 08/05/20 Page 2 of 3

Case 3:20-cv-02731-VC Document 489-6 Filed 08/05/20 Page 3 of 3

Case 3:20-cv-02731-VC Document 489-7 Filed 08/05/20 Page 1 of 4
Exhibit G

Case 3:20-cv-02731-VC Document 489-7 Filed 08/05/20 Page 2 of 4

Case 3:20-cv-02731-VC Document 489-7 Filed 08/05/20 Page 3 of 4

Case 3:20-cv-02731-VC Document 489-7 Filed 08/05/20 Page 4 of 4

Case 3:20-cv-02731-VC Document 489-8 Filed 08/05/20 Page 1 of 2
Exhibit H

Case 3:20-cv-02731-VC Document 489-8 Filed 08/05/20 Page 2 of 2

Case 3:20-cv-02731-VC Document 490 Filed 08/05/20 Page 1 of 4

1 WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org
2 SEAN RIORDAN (SBN 255752) sriordan@aclunc.org
3 ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org
4 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN
5 CALIFORNIA 39 Drumm Street
6 San Francisco, CA 94111 Telephone: (415) 621-2493
7 Facsimile: (415) 255-8437
8 Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page
9

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: 415-553-9319 Fax: 415-553-9810

10

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12

13 ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUIZ TOVAR, LAWRENCE
14 MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA
15 YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,
16 Petitioners-Plaintiffs,
17 v.
18 DAVID JENNINGS, Acting Director of the
19 San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T.
20 ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director
21 of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND
22 CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa
23 Verde Detention Facility,

Case No. 3:20-cv-02731-CV
[PROPOSED] TEMPORARY RESTRAINING ORDER

24

Respondents-Defendants.

25

26

27

28

[PROPOSED] TEMPORARY RESTRAINING ORDER
(CASE NO. 3:20-CV-02731-VC)

Case 3:20-cv-02731-VC Document 490 Filed 08/05/20 Page 2 of 4

1 BREE BERNWANGER* (NY SBN 5036397) MARTIN S. SCHENKER (SBN 109828)

bbernwanger@lccrsf.org

mschenker@cooley.com

2 TIFANEI RESSL-MOYER (SBN 319721)

COOLEY LLP

tresslmoyer@lccrsf.org

101 California Street, 5th Floor

3 HAYDEN RODARTE (SBN 329432)

San Francisco, CA 94111

hrodarte@lccrsf.org

Telephone: (415) 693-2000

4 LAWYERS’ COMMITTEE FOR

Facsimile: (415) 693-2222

CIVIL RIGHTS OF

5 SAN FRANCISCO BAY AREA

TIMOTHY W. COOK (Mass. BBO# 688688)*

131 Steuart St #400

tcook@cooley.com

6 San Francisco, CA 94105

FRANCISCO M. UNGER (Mass. BBO#

Telephone: (415) 814-7631

698807)*

7

funger@cooley.com

JUDAH LAKIN (SBN 307740)

COOLEY LLP

8 judah@lakinwille.com

500 Boylston Street

AMALIA WILLE (SBN 293342)

Boston, MA 02116

9 amalia@lakinwille.com

Telephone: (617) 937-2300

LAKIN & WILLE LLP

Facsimile: (617) 937-2400

10 1939 Harrison Street, Suite 420

Oakland, CA 94612

11 Telephone: (510) 379-9216

Facsimile: (510) 379-9219

12

JORDAN WELLS (SBN 326491)

13 jwells@aclusocal.org

STEPHANIE PADILLA (SBN 321568)

14 spadilla@aclusocal.org

AMERICAN CIVIL LIBERTIES UNION

15 FOUNDATION OF SOUTHERN

CALIFORNIA

16 1313 West Eighth Street

Los Angeles, CA 90017

17 Telephone: (213) 977-9500

Facsimile: (213) 977-5297

18

19

Attorneys for Petitioners-Plaintiffs

20

21

22

23

24

25

26

27

28

[PROPOSED] TEMPORARY

2

RESTRAINING ORDER

(CASE NO. 3:20-CV-02731-VC)

Case 3:20-cv-02731-VC Document 490 Filed 08/05/20 Page 3 of 4

1

[PROPOSED] TEMPORARY RESTRAINING ORDER

2

Plaintiffs-Petitioners filed a sealed administrative motion containing a Motion for

3 Temporary Restraining Order on August 4, 2020, refiled their Motion for Temporary Restraining

4 Order on the public docket on August 5, and filed an amended proposed order on August 5. On

5 August 4, the federal government defendants filed an opposition and defendant GEO, Inc., filed a

6 declaration in opposition. The Court heard the parties’ positions on Plaintiffs-Petitioners’ Motion

7 on August 5. Having considered the parties’ filings and the arguments presented, Plaintiffs’

8 Motion for Temporary Restraining Order is GRANTED.

9

The Court concludes that Plaintiffs-Petitioners have met their burden of showing: (1) a

10 likelihood of success on the merits that Defendants’ current practices as to COVID-19 testing and

11 the cohorting of class members in Dorm C at the Mesa Verde Detention Facility (MVDF) violate

12 the Due Process Clause of the Fifth Amendment because such practices exhibit deliberate

13 indifference; (2) that those practices are causing and will cause irreparable harm to MVDF class

14 members absent a temporary restraining order; (3) that the balance of equities weighs in

15 Plaintiffs-Petitioners’ favor; and (4) that the public interest favors granting the motion.

16

Pursuant to Rule 65 of the Federal Rules of Civil Procedure, Civil L. R. 65-1, and the

17 Court’s equitable powers, the Court orders Defendants as follows:

18

1. within 24 hours, administer a point-of-care COVID-19 test (i.e., a test that returns

19

rapid results) to all class members at MVDF, and administer such a test to all class

20

members at MVDF on a weekly basis thereafter;

21

2. maintain the current practice of not admitting new class members to MVDF;

22

3. maintain the population levels at each dormitory within MVDF in in a manner

23

consistent with the Court’s preliminary injunction order (ECF No. 357), specifically

24

including a maximum of 35 class members in each dormitory1;

25

4. maintain a dormitory to segregate detainees who test positive for COVID-19; and

26

27 1 Defendants have represented that there were 138 class members detained at MVDF on June 9,

28 2020, the date the preliminary injunction issued (ECF No. 484-1). Across the facility’s four

dorms, the average population on June 9 was accordingly approximately 35.

[PROPOSED] TEMPORARY

3

RESTRAINING ORDER

(CASE NO. 3:20-CV-02731-VC)

Case 3:20-cv-02731-VC Document 490 Filed 08/05/20 Page 4 of 4

1

5. on a daily basis, provide Plaintiffs-Petitioners’ counsel with (1) a roster indicating the

2

name and location within the facility of each class member at MVDF and (2) updates

3

of any tests offered or given to detainees, and the results of those tests.

4

5

ORDER TO SHOW CAUSE

6

Defendants are ordered to show cause before this Court why a preliminary injunction

7 should not issue requiring Defendants to perform as set forth herein on an ongoing basis. The

8 hearing on the order to show cause will be held on ______________________ at

9 ______________________.

10

11 IT IS SO ORDERED.

12 Dated this __ day of August 2020
13
14

THE HONORABLE VINCE CHHABRIA UNITED STATES DISTRICT JUDGE

15

16

17

18

19

20

21

22

23

24

25

26

27

28

[PROPOSED] TEMPORARY

4

RESTRAINING ORDER

(CASE NO. 3:20-CV-02731-VC)

 
 Case 3:20-cv-02731-VC Document 495 Filed 08/05/20 Page 1 of 3

DAVID L. ANDERSON (CABN 149604) United States Attorney
SARA WINSLOW (DCBN 457643) Chief, Civil Division
WENDY M. GARBERS (CABN 213208) ADRIENNE ZACK (CABN 291629) SHIWON CHOE (CABN 320041) Assistant United States Attorneys
450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Telephone: (415) 436-6967 Facsimile: (415) 436-6748 wendy.garbers@usdoj.gov adrienne.zack@usdoj.gov shiwon.choe@usdoj.gov
Attorneys for Federal Defendants
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, et al., Plaintiffs,
v. DAVID JENNINGS, et al.,
Defendants.

) CASE NO. 3:20-cv-02731-VC ) ) FEDERAL DEFENDANTS’ OBJECTIONS TO ) PLAINTIFFS’ REVISED PROPOSED ) TEMPORARY RESTRAINING ORDER ) ) ) ) ) ) )

FED. DEFS.’ OBJS. TO PLS.’ REVISED PROPOSED TRO No. 3:20-cv-02731-VC

Case 3:20-cv-02731-VC Document 495 Filed 08/05/20 Page 2 of 3

Federal Defendants respectfully submit the following objections to Plaintiffs’ revised proposed

temporary restraining order (Proposed Order) (ECF No. 490), with the numbers below corresponding to

the numbers in Plaintiffs’ revised proposed.

1. Federal Defendants object to the Proposed Order’s language requesting that Defendants

administer a point-of-care COVID-19 test to all class members within 24 hours. First, those that have

already tested positive should not be required to be retested. Second, while Federal Defendants have

been working on the Court’s order of the morning of August 5, 2020, at this time Defendants do not

have the requisite number of point-of-care test kits on hand to complete testing within 24 hours. See

Declaration of Acting Deputy Field Office Director Moises Becerra (Becerra Decl.) ¶ 10 (ECF No.

484-1). Moreover, Dorm C residents have been tested, and those test results are likely to be returned

before an adequate number of point of care tests can be acquired. Dorm A and D residents were also

tested yesterday via tests that are being or have already been sent out to the laboratory. Third, it is not

clear that, even with test kits, Mesa Verde could practically administer tests to all detainees within 24

hours. Moreover, in order to accomplish testing of all detained class members, the Court would have to

also require that the class members submit to testing. To date, when offered testing during the ongoing

whole-facility testing, several class members have refused. It would be inappropriate to enter a

Proposed Order with which Defendants may be unable to comply. Cf. Falstaff Brewing Corp. v. Miller

Brewing Co., 702 F.2d 770, 781 (9th Cir. 1983) (“No matter how reprehensible the conduct is[,] it does

not warrant issuance of an order which creates a duty impossible of performance, so that punishment can

follow.”) (internal quotation marks omitted).

Further, this evening, upon information received from the ICE Health Services Corps, Federal

Defendants are recommending to GEO that saturation testing be completed weekly for six weeks, until

September 15, 2020, utilizing nasopharyngeal swab tests sent to the laboratory. The testing would be

offered to all MVDF detainees who did not test positive. As stated above, as of yesterday, all

consenting detainees have been tested for COVID-19.

2. Federal Defendants object to the Proposed Order’s language requesting that Defendants

be indefinitely enjoined from accepting new detainees to Mesa Verde. This demand was not part of the

relief requested in Plaintiffs’ motion for TRO. Moreover, Defendants voluntarily ceased admitting new

FED. DEFS.’ OBJS. TO PLS.’ REVISED PROPOSED TRO

No. 3:20-cv-02731-VC

1

Case 3:20-cv-02731-VC Document 495 Filed 08/05/20 Page 3 of 3

detainees to Mesa Verde to manage the COVID situation, Becerra Decl. ¶ 2, making injunctive relief generally inappropriate and making it especially inappropriate to restrict Defendants’ discretion to manage the facility in this regard. Moreover, indefinite relief is not appropriate in a temporary restraining order.
3. Defendants object to the Proposed Order’s request to specifically limit the capacity of the individual dorms at a particular level. The Court’s preliminary injunction order did not require such a limit, ECF No. 357, and Defendants have maintained overall population levels near the level at the time the preliminary injunction was ordered. In the current circumstances, Defendants require the flexibility to combine dorms to allow for cohorting and segregation. An order to limit the populations of the individual dorms at 35 would require the immediate release of twenty or more people. In order for the population of the cohorted dorm (Dorm C) to be decreased, the entirety of Dorm A or D would have to be released or relocated into either Dorm A or Dorm D (whose populations are 24 and 30 people, respectively), to create another cohorted dorm. This would depend on the security levels of the detainees involved.
4. As stated in Defendants’ oppositions, ECF Nos. 482 and 484, Defendants have designated and arranged for Dorm B to house and segregate detainees who have tested positive for COVID-19.

DATED: August 5, 2020

Respectfully submitted,
DAVID L. ANDERSON United States Attorney
/s/ Adrienne Zack ADRIENNE ZACK Assistant United States Attorney
Attorneys for Federal Defendants

FED. DEFS.’ OBJS. TO PLS.’ REVISED PROPOSED TRO

No. 3:20-cv-02731-VC

2

 
 Case 3:20-cv-02731-VC Document 496 Filed 08/05/20 Page 1 of 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
BURKE, WILLIAMS & SORENSEN, LLP
ATTORNEYS AT LAW LOS ANGELES

Susan E. Coleman (SBN 171832) E-mail: scoleman@bwslaw.com BURKE, WILLIAMS & SORENSEN, LLP 444 South Flower Street, Suite 2400 Los Angeles, CA 90071-2953 Tel: 213.236.0600 Fax: 213.236.2700 Attorneys for Respondents-Defendants THE GEO GROUP, INC. (Sued herein as GEO GROUP, INC.) and NATHAN ALLEN

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUIZ TOVAR, LAWRENCE MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,
Petitioners-Plaintiffs, v. DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,
Respondents-Defendants.

Case No. 3:20-cv-02731-VC OBJECTIONS TO PLAINTIFFS’ PROPOSED TEMPORARY RESTRAINING ORDER [Doc. #490] Judge: Hon. Vince Chhabria

Defendants THE GEO GROUP, INC. and NATHAN ALLEN object to Plaintiffs’ proposed order (Doc. #490), as set forth below. Defendants also join in the objections filed by the Federal Defendants. (Doc. #495.)

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BURKE, WILLIAMS & SORENSEN, LLP
ATTORNEYS AT LAW LOS ANGELES

OBJECTIONS TO PROPOSED ORDER I. A FINDING OF DELIBERATE INDIFFERENCE IS PREMATURE
Plaintiffs’ proposed order includes a finding that they have met their burden of showing a likelihood of success on the merits that “Defendants’ current practices as to COVID-19 testing and the cohorting of class members in Dorm C at the Mesa Verde Detention Facility (MVDF) violate the Due Process Clause of the Fifth Amendment because such practices exhibit deliberate indifference.” (Proposed Order at 3:10-13.) But this finding is premature and the high standard for deliberate indifference has not been met.
To show deliberate indifference under the Fourteenth Amendment based on inadequate medical care, Plaintiffs must prove: (1) the defendants made an intentional decision regarding the conditions in which the plaintiffs were confined; (2) those conditions put the plaintiffs at substantial risk of serious harm; (3) the defendants did not take reasonable measures that were available to address that risk, even though a reasonable individual in said circumstances would have appreciated the high level of risk involved; (4) the conduct must be objectively unreasonable; and (5) due to not taking such measures, the defendants caused the plaintiffs’ injuries. Gordon v. County of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018).
The relevant Plaintiffs are detainees that remain in custody because of their criminal histories and other conditions that make them unsuitable for release. Mesa Verde has housed detainees in a dormitory setting for years. When the COVID-19 pandemic broke out, and orders began to issue in the state and country for handling the disease, staff at Mesa Verde -- including the GEO custody staff supervised by Facility Administrator Allen and the medical staff employed by Wellpath -- began taking different measures to try to prevent the spread of infection, working with ICE. For example, masks are regularly provided to detainees, and detainees are

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BURKE, WILLIAMS & SORENSEN, LLP
ATTORNEYS AT LAW LOS ANGELES

educated about the benefits of social distancing and wearing masks1. Detainees are tested upon intake, and anyone with COVID-19 symptoms is tested, and detainees with positive results are isolated. As we learn more about COVID-19, the Centers for Disease Control (CDC) continues to evolve its protocol for testing, quarantine, and isolation. So too, Mesa Verde has continued to follow CDC protocol and guidelines for its detainees and staff. Given that Mesa Verde has continued to follow CDC protocol, it cannot be considered deliberately indifferent in relying on the advice of medical professionals about infectious disease. II. A 24-HOUR TIME PERIOD FOR TESTING IS INSUFFICIENT AND
ONLY DETAINEES NOT YET TESTED SHOULD BE SUBJECT Plaintiffs suggest an order for testing of all detainees at MVDF, which is currently 121 detainees, within 24 hours. (Proposed Order at 3:18-20.) This is insufficient time to complete the testing and Defendants request 48 hours. First, the facility does not currently possess enough testing materials to conduct the testing of all detainees. See Becerra Decl. (Doc. #484-1). It would be inappropriate to enter a Proposed Order with which Defendants may be unable to comply. Cf. Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 781 (9th Cir. 1983). Second, the Abbott ID Now test uses a swab for the test, which must be administered in an isolated area in order to avoid exposure. The medical personnel use universal precautions to avoid infection, and other people should not be in the vicinity as the nasal swab tends to induce coughing. Thus, each detainee will need to go to the medical clinic in order to be tested, with the tests spaced out enough that the detainees can socially distance. Third, as all detainees in the B dorm were tested last Thursday (7/30/20), and the C dorm detainees were tested on Tuesday (8/04/20). These detainees should not

1 Given the plaintiffs’ continued failure to wear masks or socially distance from each other, causation is a major issue here.

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BURKE, WILLIAMS & SORENSEN, LLP
ATTORNEYS AT LAW LOS ANGELES

be immediately retested. Instead, any testing ordered should begin with A and D

dorms within an initial time period, and the detainees who have already been tested

should be included only in any successive testing done.

III. WEEKLY TESTING IS UNDULY BURDENSOME

Plaintiffs request that the Abott ID Now test be administered “on a weekly

basis” after an initial round of testing. (Proposed Order at 3:20.) However, this is

unduly burdensome and far exceeds CDC guidelines. Further, Plaintiffs do not

propose any end date to this protocol.

GEO Defendants join in the proposal of ICE to use nasal swab tests sent to

the laboratory after the initial round of Abbott ID Now tests are administered.

Additionally, these are more accurate and should be used for any successive tests.

IV. NEW INTAKES SHOULD BE PERMITTED

Plaintiffs propose that no new detainees should be allowed at Mesa Verde.

(Proposed Order at 3:21.) Mesa Verde has voluntarily stopped taking new intakes,

in order to address COVID-19 within the facility. However, it should not be

prevented from taking additional detainees into the facility at some point, with

appropriate testing and protocols.

V. DORMITORY POPULATIONS SHOULD NOT BE CAPPED AT 35

Plaintiffs propose that the population of each dorm be capped at 35, as the

preliminary injunction ordered. (Proposed Order at 3:24.) This is incorrect. This

Court’s preliminary injunction did not make such an order. (Doc. # 357.)

Moreover, there must be some flexibility in order to be able to segregate

detainees as appropriate. Plaintiffs’ proposal would prevent Mesa Verde and/or

ICE from having any discretion about how to house detainees within the facility.

For example, a cap of 35 would prevent one dorm being reserved for those who test

positive and another dorm dedicated to those who are exposed, as the remaining

two dorms would exceed the population cap. Currently, dorm B has been emptied

in order to segregate detainees who test positive. (See Docs. #482, 484.) Up to 50

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detainees can be safely housed in one dormitory with distancing of six feet (alternating lower and upper bunks), and this would be safe after negative tests are obtained from those detainees. Even 40 detainees could not be housed in one dorm under Plaintiffs’ current proposal. Defendants therefore request that a hard cap not be placed on the population for each dorm, or if one is imposed, that it be 50.
CONCLUSION For the reasons stated above, GEO Defendants request that Plaintiffs’ proposed order be modified as follows: 1. Change the 24 hour deadline for testing to 48 hours; 2. Apply the requirement for Abbot ID Now testing only to the detainees not already tested within the last week; 3. Require weekly tests only for a 6-week saturation period, as proposed by ICE, and permit the tests after the initial round to be sent into the lab instead of Abbott ID Now tests; 4. Allow up to 50 detainees per dormitory; and 5. Permit new intakes, starting on August 17, 2020, providing CDC and IHSC guidelines are followed.

Dated: August 5, 2020

BURKE, WILLIAMS & SORENSEN, LLP
By: /s/ Susan E. Coleman Susan E. Coleman
Attorneys for Defendants THE GEO GROUP, INC. and NATHAN ALLEN

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1 WILLIAM S. FREEMAN (SBN 82002)

MANOHAR RAJU (SBN 193771)

wfreeman@aclunc.org 2 SEAN RIORDAN (SBN 255752)

Public Defender MATT GONZALEZ (SBN 153486)

3 sriordan@aclunc.org ANGÉLICA SALCEDA (SBN 296152)

Chief Attorney GENNA ELLIS BEIER (CA SBN 300505)

4 asalceda@aclunc.org

genna.beier@sfgov.org

AMERICAN CIVIL LIBERTIES UNION 5 FOUNDATION OF NORTHERN

EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org

CALIFORNIA 6 39 Drumm Street

FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org

7 San Francisco, CA 94111 Telephone: (415) 621-2493

OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO

8 Facsimile: (415) 255-8437

555 Seventh Street

9 Attorneys for Petitioners-Plaintiffs

San Francisco, CA 94103 Direct: (415) 553-9319

10 Additional Counsel Listed on Following Page Facsimile: (415) 553-9810

11

12

UNITED STATES DISTRICT COURT

13

NORTHERN DISTRICT OF CALIFORNIA

14

15 ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUBI RUIZ TOVAR, LAWRENCE
16 KURIA MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA
17 YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,
18 Petitioners-Plaintiffs,
19 v.
20 DAVID JENNINGS, Acting Director of the
21 San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T.
22 ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director
23 of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND
24 CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa
25 Verde Detention Facility,

Case No. 3:20-CV-02731-VC
REPLY IN SUPPORT OF PLAINTIFFSPETITIONERS’ MOTION FOR TEMPORARY RESTRAINING ORDER

26

Respondents-Defendants.

27

28

CASE NO. 3:20-CV-02731-VC REPLY IN SUPPORT OF PLAINTIFFS’ MOTION FOR TRO

Case 3:20-cv-02731-VC Document 497 Filed 08/06/20 Page 2 of 8

1 BREE BERNWANGER* (NY SBN 5036397) MARTIN S. SCHENKER (SBN 109828)

bbernwanger@lccrsf.org 2 HAYDEN RODARTE (SBN 329432)

mschenker@cooley.com COOLEY LLP

3 hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR

101 California Street, 5th Floor San Francisco, CA 94111

4 CIVIL RIGHTS OF

Telephone: (415) 693-2000

SAN FRANCISCO BAY AREA 5 131 Steuart St #400

Facsimile: (415) 693-2222

San Francisco, CA 94105 6 Telephone: (415) 814-7631

TIMOTHY W. COOK* (Mass. BBO# 688688) tcook@cooley.com

7 JUDAH LAKIN (SBN 307740)

FRANCISCO M. UNGER* (Mass. BBO# 698807)

8 judah@lakinwille.com

funger@cooley.com

AMALIA WILLE (SBN 293342) 9 amalia@lakinwille.com

COOLEY LLP 500 Boylston Street

10

LAKIN & WILLE LLP 1939 Harrison Street, Suite 420

Boston, MA 02116 Telephone: (617) 937-2300

11 Oakland, CA 94612 Telephone: (510) 379-9216

Facsimile: (617) 937-2400

12 Facsimile: (510) 379-9219

13 JORDAN WELLS (SBN 326491)

14

jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568)

15 spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION

16 FOUNDATION OF SOUTHERN

CALIFORNIA 17 1313 West Eighth Street

18

Los Angeles, CA 90017 Telephone: (213) 977-9500

19 Facsimile: (213) 977-5297

20

Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice

21

22

23

24

25

26

27

28

CASE NO. 3:20-CV-02731-VC REPLY IN SUPPORT OF PLAINTIFFS’ MOTION FOR TRO

Case 3:20-cv-02731-VC Document 497 Filed 08/06/20 Page 3 of 8

1

In response to Defendants’ objections (ECF Nos. 495 & 496), Plaintiffs-Petitioners

2 respectfully submit the following reply in support of their motion for a temporary restraining
3 order (ECF No. 485) and revised proposed order (ECF No. 490).
4 Defendants’ assertions that they have acted quickly and appropriately to both prevent and
5 respond to the threat of the COVID-19 pandemic to protect people in their custody at Mesa Verde
6
7 Detention Facility is belied by the record. Defendants had considered and rejected prior universal

8 testing and dorm segregation plans which could have obviated the need for the emergency relief

9 that Plaintiffs-Petitioners seek today. See, e.g., Exh. B, ICE 691 (May 21, 2020 Alexander Pham
10 Conference Call Notes) (“At this time though, due to constraints that the IHSC guidelines would 11
put on our housing resources we will be limiting the scope of testing as much as possible”). The 12
current crisis is of Defendants’ own making. They should not be able to avoid a meaningful order 13 14 through bare, eleventh-hour statements that they are doing enough and that doing more would
15 pose challenges.

16

1. Defendants’ objections to the request for a Court order mandating point-of-care

17 testing for all willing class members are without merit. First, weekly point-of-care testing is
18 logistically possible. Indeed, point-of-care testing is the kind of testing that Defendants have 19
conducted without incident for all new intakes since June 29 to produce “same-day results.” 20
Declaration of Deputy Field Office Director Erik Bonnar (Bonnar Decl.) ¶ 8 (ECF No. 429-1). 21
22 Defendants have provided no explanation as to why point-of-care testing is more burdensome
23 than taking nasopharyngeal samples and sending them to a laboratory for analysis except that

24 Defendants would have to acquire more point of care test kits. ECF No. 495 (Federal Defendants

25 Objections to Proposed Order) at 1; ECF No. 496 (GEO Objections to Proposed Order) at 3.1 But 26

27 1 Defendant GEO asserts that “the Abbott ID Now test uses a swab for the test” and certain

28

precautions must be taken to avoid exposure. ECF No. 496 at 3. But Defendants have produced 3

CASE NO. 3:20-CV-02731-VC REPLY IN SUPPORT OF PLAINTIFFS’ MOTION FOR TRO

Case 3:20-cv-02731-VC Document 497 Filed 08/06/20 Page 4 of 8

1 this surmountable obstacle fails to justify using a test that would produce results beyond the

2 period of utility. See Declaration of Robert Greifinger (Greifinger Decl.) ¶¶ 4-5, 9-12 (ECF No.
3 488) (“It is worthless to rely only on laboratory tests that produce very delayed results.”). By
4 Defendants’ own representations, at the present time, laboratory testing would produce results
5 that are so delayed that they would have limited value in mitigating the risk of ongoing spread for
6
7 class members who are housed in close proximity without an ability to engage in adequate social

8 distancing. Declaration of Acting Deputy Field Office Director Moises Becerra (Becerra Decl.) ¶

9 9 (ECF No. 484-1) (results would be available in “4-7 days”); Bonnar Decl. at n. 3 (results may

10 take “up to several weeks”).2 Plaintiffs-Petitioners have no objection to laboratory PCR testing in

11 principle, but in the absence of rapid laboratory analysis—which is not presently available—
12 point-of-care testing is a necessary tool to respond to the fast-growing emergency at Mesa Verde.
13

14

Second, Defendants apparently considered a plan for universal testing of all detainees in

15 May, concluding that it could be done with relatively minimal resources over a short period of

16 time. Exh. C, GEO 134 (May 18, 2020 GEO Memorandum Re: COVID-19 Testing Operational

17 Plan). Defendants have provided no evidence that such a proposal could not be implemented
18 today. All evidence suggests that universal testing was not implemented in May only because of
19 concerns that it would uncover more widespread COVID-19 infection in the facility than
20

21

no evidence that this is different from the precautions that would need to be taken for 22 nasopharyngeal tests that require laboratory analysis and produce significantly more delayed

23

results. Federal Defendants’ expression of concern about the potential for refusals among the detainee population, see ECF No. 495 at 1, is undermined by the results thus far. Virtually all

24 class members have consented to be tested (only eight of 121 detainees refused) and class counsel for Plaintiffs-Petitioners have proposed to communicate with skeptical class members which

25 would be expected to result in even higher rates of acceptance. ECF No. 488-9. Moreover, there

need not be a requirement that all class members consent to testing in order for testing and 26 quarantining those who test positive to be an effective mechanism to limit further spread.

27

2 Yesterday Defendants reported a 14th staff member to have tested positive at Mesa Verde whose test results apparently took 15 days to be analyzed. Exh. A (Aug. 5, 2020 Email of

28 Adrienne Zack to Plaintiffs).

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Case 3:20-cv-02731-VC Document 497 Filed 08/06/20 Page 5 of 8

1 Defendants could reasonably manage. See, e.g., ECF No. 488-12, GEO 682 (“we submitted some

2 concerns about being a test place – in short we have no place to cohort anyone who refuses, is
3 positive, etc.”).
4 Finally, contrary to Defendant GEO’s assertions, ECF No. 496 at 4, weekly testing is
5 indeed consistent with guidelines from the Centers for Disease Control and the recommendations
6
7 of medical experts. CDC, “Overview of Testing for SARS-CoV-2,” July 17, 2020, at

8 https://www.cdc.gov/coronavirus/2019-ncov/hcp/testing-overview.html (“Approaches for early

9 intervention of asymptomatic individuals include . . . periodic (e.g., weekly) testing of everyone
10 in the setting”); Greifinger Decl. ¶¶ 7-8 (“Testing . . . should be frequent and not once-off,” and 11
“at least weekly” to permit a rapid response). 12
Despite recent tests there, retesting individuals in Dorms B and C is necessary in light of 13 14 the long delay between testing and laboratory analysis. Due to the failure to use point of care
15 testing at the outset, despite repeated entreaties, uninfected detainees have been in close contact

16 with COVID-infected individuals for days while test results remained pending and some are

17 likely now infected who were not at the time the tests were taken. See, e.g., Greifinger Decl. ¶ 12.

18 See also Exh. D, ICE 1944. Indeed, Defendants have admitted as much by retesting three class
19 members who previously tested negative following exposure to symptomatic detainees awaiting
20 COVID-19 tests. Exh. A, Zack email, Aug. 5, 2020. That same risk of infection is present for all
21
22 class members and retesting is thus necessary.

23

2. Contrary to Defendants’ assertions, ECF No. 495 at 1-2, ECF No. 496 at 4,

24 temporarily limiting new intakes is an appropriate remedy in the face of the current exigent

25 circumstances. This is not indefinite relief. By definition, relief ordered pursuant to a temporary
26 restraining order will either transform into a preliminary injunction or expire. Further, an
27 injunction may be appropriate despite the voluntary cessation of certain actions where “there
28

CASE NO. 3:20-CV-02731-VC REPLY IN SUPPORT OF PLAINTIFFS’ MOTION FOR TRO

Case 3:20-cv-02731-VC Document 497 Filed 08/06/20 Page 6 of 8

1 exists some cognizable danger of recurrent violation.” United States v. Laerdal Mfg. Corp., 73

2 F.3d 852, 854–55 (9th Cir. 1995). Here, given that Defendants were adding significant numbers

3 of new class members to the Mesa Verde population just last week – before abruptly reversing
4 course – an order temporarily requiring them to maintain their current practice of not admitting
5
new class members is appropriate. 6

7

3. Plaintiffs-Petitioners’ proposal to limit the capacity of individual dorms is likewise

8 appropriate and consistent with this Court’s prior orders. The “primary relief” the Court ordered

9 previously was that ICE “maintain the status quo of safety” that existed at the time of the

10 preliminary injunction order. ECF No. 357 at 8. The request here is merely that the Court ensure

11 that Defendants’ belated actions to remedy a crisis of their own making not further jeopardize the
12 health and safety of class members not already infected with COVID-19.
13

14

ICE seeks to forestall a court order that would require them to release individual

15 detainees. However, such action is necessary to ensure reasonable health and safety of individual

16 class members as well as the general public. Defendants themselves recognized as much when

17 they contemplated the release of individuals in the event of an outbreak, or to preemptively plan
18 for the possibility of one. See, e.g., ECF No. 488-13, GEO 637 (June 4, 2020 Assistant Field 19
Office Director Alexander Pham Email to Field Office Director David Jennings) (“the thought is 20
to identify the least egregious cases for release if necessary so as to be able to free up a dorm for 21
22 positive case cohorts”); Exh. B, ICE 691 (May 21, 2020 Alexander Pham Conference Call Notes)
23 (“Through an internal assessment, MV would likely not be able to accommodate more than 27 to

24 a dorm depending on how stringent the judge decides to get with what he deems necessary to

25 accommodate his understanding of social distancing in all areas and settings”); Exh. E, ICE 1854
26 (May 27, 2020 Alexander Pham Email) (“I see two options if our hand is forced. Let the lows go
27 and don’t take anymore in. . .”). Defendants even engaged in the exercise of identifying
28

CASE NO. 3:20-CV-02731-VC REPLY IN SUPPORT OF PLAINTIFFS’ MOTION FOR TRO

Case 3:20-cv-02731-VC Document 497 Filed 08/06/20 Page 7 of 8
1 individuals whom they could safely release in the event of an outbreak that required restructuring
2 the dorms. Deposition Transcript of ICE Assistant Field Office Director Alexander Pham (“Pham 3
Dep.”) 105:23-106:6, July 29, 2020 (Q: “Do you recall identifying detainees who could be 4
released if there were a plan in place for universal testing?” Alexander Pham: “I don't remember 5
as I sit here the timelines for when those actions occurred, but I do know that at some point we 6 7 did go through and identify detainees that could potentially be released.”). And Defendants have
8 demonstrated throughout this litigation, and as recently as this weekend, that they are capable of
9 releasing individuals in response to a crisis. See ECF No. 486 (describing the release of Mr. 10 Saeturn to the hospital emergency room when he tested positive for COVID-19). 11
Defendants’ assertions that this proposal does not allow for flexibility misunderstands the 12
options. Defendants can identify people throughout the facility who may be released, not only in 13 14 Dorms A and D. It is not true, as Defendants demonstrated with the release of Mr. Saeturn on 15 August 1, that individuals may not be released if they test positive for COVID-19 or are under
16 quarantine. Public health experts agree. See, e.g., ECF No. 5-1, Declaration of Dr. Sandra
17 Hernandez, ¶ 32 (“The current recommendations of health care providers in the state are for 18 individuals to rest and recuperate at home, including if they have been tested and/or exposed to 19
COVID-19, so long as they are not experiencing severe symptoms. . . . Therefore, individuals 20
who have been exposed to COVID-19, including in the detention centers, ought to [be] 21 22 quarantined where they are not in a congregate living situation and not exposing others to 23 potential infection. This is true for individuals who have exposure to COVID-19 in the detention
24 centers.”). Moreover, there are alternatives to detention, including electronic monitoring and other
25
26
27
28
CASE NO. 3:20-CV-02731-VC REPLY IN SUPPORT OF PLAINTIFFS’ MOTION FOR TRO

Case 3:20-cv-02731-VC Document 497 Filed 08/06/20 Page 8 of 8

1 limitations on outright liberty, that mitigate concerns about flight risk or dangerousness. Federal

2 Defendants regularly and effectively use these options.3
3 For the foregoing reasons, and those previously elaborated, the Court should grant
4 Plaintiffs-Petitioners’ motion for a TRO.
5

6 Dated: August 6, 2020 7 8 9

/s/ Emilou MacLean Emilou MacLean San Francisco Office of the Public Defender
Attorneys for Petitioners-Plaintiffs

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25
26 3 Alternatives to detention are effective in preventing criminal activity by immigrants released on bond. For instance, in 2011, fewer than 1% of participants in ICE’s intensive supervision program
27 were removed from the program due to arrest by another law enforcement agency. See Brief of 43 Social Science Researchers and Professors as Amici Curiae in Support of Respondents, at 36-37,
28 Jennings v. Rodriguez, 2016 WL 6276890, (No. 15-1204).

CASE NO. 3:20-CV-02731-VC REPLY IN SUPPORT OF PLAINTIFFS’ MOTION FOR TRO

Case 3:20-cv-02731-VC Document 498 Filed 08/06/20 Page 1 of 5

1 WILLIAM S. FREEMAN (SBN 82002)

MANOHAR RAJU (SBN 193771)

wfreeman@aclunc.org 2 SEAN RIORDAN (SBN 255752)

Public Defender MATT GONZALEZ (SBN 153486)

3 sriordan@aclunc.org ANGÉLICA SALCEDA (SBN 296152)

Chief Attorney GENNA ELLIS BEIER (CA SBN 300505)

4 asalceda@aclunc.org

genna.beier@sfgov.org

AMERICAN CIVIL LIBERTIES UNION 5 FOUNDATION OF NORTHERN

EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org

CALIFORNIA 6 39 Drumm Street

FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org

7 San Francisco, CA 94111 Telephone: (415) 621-2493

OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO

8 Facsimile: (415) 255-8437

555 Seventh Street

9 Attorneys for Petitioners-Plaintiffs

San Francisco, CA 94103 Direct: (415) 553-9319

10 Additional Counsel Listed on Following Page Facsimile: (415) 553-9810

11

12

UNITED STATES DISTRICT COURT

13

NORTHERN DISTRICT OF CALIFORNIA

14

15 ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUBI RUIZ TOVAR, LAWRENCE
16 KURIA MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA
17 YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,
18 Petitioners-Plaintiffs,
19 v.
20 DAVID JENNINGS, Acting Director of the
21 San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T.
22 ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director
23 of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND
24 CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa
25 Verde Detention Facility,

Case No. 3:20-CV-02731-VC
DECLARATION OF EMILOU MACLEAN IN SUPPORT OF PETITIONERS-PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER

26

Respondents-Defendants.

27

28

CASE NO. 3:20-CV-02731-VC DECLARATION OF EMILOU MACLEAN IN SUPPORT OF PLAINTIFFS’ REPLY IN SUPPORT OF A TRO

Case 3:20-cv-02731-VC Document 498 Filed 08/06/20 Page 2 of 5

1 BREE BERNWANGER* (NY SBN 5036397) MARTIN S. SCHENKER (SBN 109828)

bbernwanger@lccrsf.org 2 HAYDEN RODARTE (SBN 329432)

mschenker@cooley.com COOLEY LLP

3 hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR

101 California Street, 5th Floor San Francisco, CA 94111

4 CIVIL RIGHTS OF

Telephone: (415) 693-2000

SAN FRANCISCO BAY AREA 5 131 Steuart St #400

Facsimile: (415) 693-2222

San Francisco, CA 94105 6 Telephone: (415) 814-7631

TIMOTHY W. COOK* (Mass. BBO# 688688) tcook@cooley.com

7 JUDAH LAKIN (SBN 307740)

FRANCISCO M. UNGER* (Mass. BBO# 698807)

8 judah@lakinwille.com

funger@cooley.com

AMALIA WILLE (SBN 293342) 9 amalia@lakinwille.com

COOLEY LLP 500 Boylston Street

10

LAKIN & WILLE LLP 1939 Harrison Street, Suite 420

Boston, MA 02116 Telephone: (617) 937-2300

11 Oakland, CA 94612 Telephone: (510) 379-9216

Facsimile: (617) 937-2400

12 Facsimile: (510) 379-9219

13 JORDAN WELLS (SBN 326491)

14

jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568)

15 spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION

16 FOUNDATION OF SOUTHERN

CALIFORNIA 17 1313 West Eighth Street

18

Los Angeles, CA 90017 Telephone: (213) 977-9500

19 Facsimile: (213) 977-5297

20

Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice

21

22

23

24

25

26

27

28

CASE NO. 3:20-CV-02731-VC DECLARATION OF EMILOU MACLEAN IN SUPPORT OF PLAINTIFFS’ REPLY IN SUPPORT OF A TRO

Case 3:20-cv-02731-VC Document 498 Filed 08/06/20 Page 3 of 5

1

DECLARATION OF EMILOU MACLEAN IN SUPPORT OF PETITIONERS-

PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER 2

I, Emilou MacLean, pursuant to 28 U.S.C. § 1746, declare as follows:

3

1. I am an attorney admitted to practice in California. I am a deputy public defender in the

4 immigration unit of the San Francisco Office of the Public Defender and counsel for Petitioners-
5 Plaintiffs in this action. I submit this declaration in support of Plaintiffs-Petitioners’ Reply in
6
support of a Temporary Restraining Order and to transmit true and correct copies of the following 7

8 documents. I have knowledge of the following and if called as a witness I could and would testify

9 competently thereto.

10

2. Attached as Exhibit A is a true and correct copy of an August 5, 2020 email from

11 Adrienne Zack, counsel for Federal Defendants, concerning the fourteenth GEO employee to test
12 positive for COVID-19 at Mesa Verde.
13 3. Attached hereto are the following true and correct copies of the following documents
14
15 produced by Defendants Immigration and Customs Enforcement and GEO Group, Inc. in

16 response to a request for production of documents served by Plaintiffs.

17

Exhibit

Document Description

B

May 21, 2020 Email from ICE Assistant Field Office Director Alexander Pham

18

to himself regarding “Management Conference Call Notes” (ICE 691)

19

C

May 18, 2020 GEO Memorandum from Paul Laird, Western Region Vice

20

President to Nathan Allen, Mesa Verde Facilities Administrator, Re: “COVID-19

Testing Operational Plan” (draft) (GEO 134) 21

22

D

May 21, 2020 Email exchange between Wendy Baca, Acting Health Services

Administrator, Mesa Verde ICE Processing Center, Wellpath, and Nathan Allan,

23

Mesa Verde Facilities Administrator, GEO (copying Wellpath staff Richard

Medrano, Regional Medical Director, Brooke Sanchez Othon, Registered Nurse

24

and Tiffany Thompson, Registered Nurse regarding “COVID-19 testing of

asymptomatic intakes (STREET ARRESTS ONLY)”; forwarded to ICE

25

Assistant Field Office Director Alexander Pham; and subsequently to ICE

26

Deputy Field Office Director Erik Bonnar; and subsequently to ICE Field Office Director David Jennings (ICE 1944)

27

28

CASE NO. 3:20-CV-02731-VC DECLARATION OF EMILOU MACLEAN IN SUPPORT OF PLAINTIFFS’ REPLY IN SUPPORT OF A TRO

Case 3:20-cv-02731-VC Document 498 Filed 08/06/20 Page 4 of 5

1

E

May 27, 2020 Email communication to ICE Assistant Field Office Director

Alexander Pham Re: “COVID-19 Testing Operational Plan” (ICE 1854) 2

3

4

4. Attached as Exhibit F is a true and correct copy of excerpts (pages 103-106) of the

5 deposition transcript of ICE Assistant Field Office Director Alexander Pham, from a deposition
6 taken on July 29, 2020. 7
I declare under penalty of perjury that the foregoing is true and correct. 8

9 Executed on August 6, 2020 in Berkeley, California.

10

/s/ Emilou MacLean

Emilou MacLean

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

CASE NO. 3:20-CV-02731-VC DECLARATION OF EMILOU MACLEAN IN SUPPORT OF PLAINTIFFS’ REPLY IN SUPPORT OF A TRO

Case 3:20-cv-02731-VC Document 498 Filed 08/06/20 Page 5 of 5

1

CERTIFICATE OF SERVICE

2

I hereby certify that on this 6th day of August, 2020, a true and correct copy of this

3 Declaration was served via electronic mail on (1) Shiwon Choe, counsel for Federal Defendants
4 and (2) Susan Coleman, counsel for GEO Defendants.
5

6

/s/ Emilou MacLean

Emilou MacLean

7

San Francisco Office of the Public Defender

8

Attorney for Petitioners-Plaintiffs

9

10

11

12

13

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CASE NO. 3:20-CV-02731-VC DECLARATION OF EMILOU MACLEAN IN SUPPORT OF PLAINTIFFS’ REPLY IN SUPPORT OF A TRO

Case 3:20-cv-02731-VC Document 498-1 Filed 08/06/20 Page 1 of 4
Exhibit A

Case 3:20-cv-02731-VC Document 498-1 Filed 08/06/20 Page 2 of 4 Thursday, August 6, 2020 at 08:32:44 Paciﬁc Daylight Time
Subject: Zepeda Rivas - COVID Update Date: Wednesday, August 5, 2020 at 9:50:18 PM Paciﬁc Daylight Time From: Zack, Adrienne (USACAN) To: Sean Riordan, Angelica Salceda, Beier, Genna (PDR), Ugarte, Francisco (PDR), Bree Bernwanger,
Timothy Cook, Marty Schenker, Judah Lakin, Amalia Wille, Maclean, Emilou (PDR), Bill Freeman CC: Choe, Shiwon (USACAN), Garbers, Wendy (USACAN), Coleman, Susan E.
This message is from outside the City email system. Do not open links or attachments from untrusted sources.

Counsel,

The names and informaFon of the detainees in this message are designated CONFIDENTIAL pursuant to the protecFve orders.

TesYng As you know, Mesa Verde medical staﬀ completed COVID-19 tesYng on August 4, 2020, for all the 31 detainees in Dormitory C—28 detainees took the test on August 4, and 3 detainees, listed below, took the tests on August 3 . There were no refusals. Results are pending.

From Dormitory C, three detainees were reported to be displaying symptoms, so, as menYoned above, they

were oﬀered COVID-19 tesYng on August 3, 2020, they consented, took the tests, and the tests have been

sent oﬀ to the lab with results pending. Those three detainees are: Jose Alfaro Henriquez,

who

was experiencing headache, body aches, and feeling feverish; Roberto Ramirez-Pineda,

, who

was experiencing sore throat, fever, body aches, faYgue, headaches and cough; and Alejandro Flores-

Banuelos,

, who was experiencing headache, body aches, sore throat, and stuﬀy nose.

Further, on August 4, 2020, all consenYng detainees in both Dormitories A and D were tested for COVID-19 upon being oﬀered the tesYng. In Dormitory A, 23 detainees were tested, and 1 detainee refused tesYng. In Dormitory D, 24 detainees were tested, and 6 detainees refused. Their test specimens were sent to the lab today.

Refusals B-Dorm Refusal: Antoni Mendoza, A-Dorm Refusals: Romulo Flores Hildalgo, D-Dorm Refusals: Lateef Animawoun,

, .

Page 1 of 2

Case 3:20-cv-02731-VC Document 498-1 Filed 08/06/20 Page 3 of 4

David Ardebili,

;

Juan Jose Iglesias Iglesias,

Juan Orozco-Rivera,

Kenneth PorYllo-Navas,

Chuny Touch,

.

; ;
; and

CohorYng The detainees from Dormitories B and C were combined into only Dormitory C so as to create space for Dormitory B to house exclusively all COVID-19 posiYve detainees. Dormitory B is now designated as the COVID-19 posiYve dorm, where the 7 COVID-19 posiYve detainees are being housed.

Individual Updates

As to detainee German Najera-Grajeda,

, as you already know, on the evening of August 3, 2020,

he was transported by ambulance from the facility to a local hospital, Mercy Truxtun. Upon medical staﬀ at

the facility responding to a call for assistance, he was placed on oxygen unYl the ambulance arrived. He was

sent to the emergency room, in part, to rule out seizure and/or substance use. Then, he returned to the

Mesa Verde facility the same night at approximately 11:20PM. Upon discharge from the hospital, there are

no new treatments or diagnoses, and no medical intervenYon required. The emergency room prescribed him

Albuterol, and Azithromycin, which has already been ordered on August 3, 2020 by the facility’s on-site

physician. The detainee is not prescribed to be on supplemental oxygen by the provider (on-site or

discharging emergency room provider). The detainee’s Albuterol inhaler is kept on his person to use as

needed per the prescribed frequency.

Margarito Zamora-Guzman,

, was re-tested on August 4, 2020, due to presenYng with

symptoms, though he was previously negaYve when tested in Dormitory B on July 30, 2020. He is now in an

RHU.

Jaime Lopez-Solario,

, was re-tested on August 4, 2020, due to presenYng with symptoms,

though previously negaYve when tested in Dormitory B on July 30, 2020. He is now in an RHU.

Juan Carlos Minchaca-Ramos,

, was re-tested on August 4, 2020, due to presenYng with

symptoms, though previously negaYve when tested when tested in Dormitory B on July 30, 2020. He is now

in medical.

Staﬀ As to Mesa Verde staﬀ, a posiYve staﬀ member test was not previously reported and is disclosed now. Staﬀ Member #14, a GEO oﬃcer, took a test for COVID-19 on July 2, 2020. On July 17, 2020, the test returned posiYve. The oﬃcer’s last two days of work prior to tesYng posiYve were June 30 and July 1, 2020. The oﬃcer was wearing personal protecYve equipment and did not have close contact with any detainees.

Adrienne Zack Assistant United States Alorney Northern District of California 450 Golden Gate Avenue, 9th Floor San Francisco, CA 94102 415.436.7031 Adrienne.Zack@usdoj.gov

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Case 3:20-cv-02731-VC Document 498-2 Filed 08/06/20 Page 1 of 3
Exhibit B

Case 3:20-cv-02731-VC Document 498-2 Filed 08/06/20 Page 2 of 3

Case 3:20-cv-02731-VC Document 498-2 Filed 08/06/20 Page 3 of 3

Case 3:20-cv-02731-VC Document 498-3 Filed 08/06/20 Page 1 of 4
Exhibit C

Case 3:20-cv-02731-VC Document 498-3 Filed 08/06/20 Page 2 of 4

Case 3:20-cv-02731-VC Document 498-3 Filed 08/06/20 Page 3 of 4

Case 3:20-cv-02731-VC Document 498-3 Filed 08/06/20 Page 4 of 4

Case 3:20-cv-02731-VC Document 498-4 Filed 08/06/20 Page 1 of 4
Exhibit D

Case 3:20-cv-02731-VC Document 498-4 Filed 08/06/20 Page 2 of 4

Case 3:20-cv-02731-VC Document 498-4 Filed 08/06/20 Page 3 of 4

Case 3:20-cv-02731-VC Document 498-4 Filed 08/06/20 Page 4 of 4

Case 3:20-cv-02731-VC Document 498-5 Filed 08/06/20 Page 1 of 2
Exhibit E

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Case 3:20-cv-02731-VC Document 498-6 Filed 08/06/20 Page 1 of 11
Exhibit F

Case 3:20-cv-02731-VC Document 498-6 Filed 08/06/20 Page 2 of 11 CONFIDENTIAL

1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3

---oOo---

4 ANGEL DE JESUS RIVAS, BRENDA

RUBI RUIZ TOVAR, LAWRENCE

5 KURIA MWAURA, LUCIANO GONZALO

MENDOZA HERONIMO, CORAIMA

6 YARITZA SANCHEZ NUÑEZ, JAVIER

ALFARO, DUNG TUAN DANG,

7

Petitioner-Plaintiffs,

8

vs.

No. 3:20-CV-02731-VC

9

DAVID JENNINGS, Acting

10 Director of the San Francisco

Field Office of U.S.

11 Immigration and Customs

Enforcement; MATTHEW T.

12 ALBENCE, Deputy Director and

Senior Official Performing

13 the Duties of the Director of

the U.S. Immigration and

14 Customs Enforcement; U.S.

IMMIGRATION AND CUSTOMS

15 ENFORCEMENT; GEO GROUP, INC.;

NATHAN ALLEN, Warden of Mesa

16 Verde Detention Facility,

17

Respondents-Defendants.

____________________________/

18

19

REMOTE VIDEOTAPED DEPOSITION VIA ZOOM OF

20

ALEXANDER PHAM

21

_________________________________

22

WEDNESDAY, JULY 29, 2020

23

***CONFIDENTIAL***

24 REPORTED BY: HOLLY THUMAN, CSR No. 6834, RMR, CRR

25

(4190658)

Veritext Legal Solutions 866 299-5127

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Case 3:20-cv-02731-VC Document 498-6 Filed 08/06/20 Page 3 of 11 CONFIDENTIAL

1

--o0o--

2

Remote videotaped deposition of ALEXANDER PHAM,

3 taken by the Petitioner-Plaintiffs, with the witness

4 located in Bakersfield, California, commencing at 10:10

5 A.M. Pacific Time, on WEDNESDAY, JULY 29, 2020, before

6 me, HOLLY THUMAN, CSR, RMR, CRR.

7

APPEARANCES

8

(ALL APPEARANCES REMOTE)

9 FOR THE PETITIONER-PLAINTIFFS:

10

COOLEY LLP

101 California Street, 5th Floor

11

San Francisco, California 94111-5800

By: MARTIN S. SCHENKER, Attorney at Law

12

mschenker@cooley.com

13

COOLEY LLP

500 Boylston Street

14

Boston, Massachusetts 02116

By: FRANCISCO M. UNGER, Attorney at Law

15

funger@cooley.com

ELIZABETH RICE, Attorney at Law

16

erice@cooley.com

17

AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF

NORTHERN CALIFORNIA

18

39 Drumm Street

San Francisco, Califoarnia 94111

19

By: WILLIAM S. FREEMAN, Attorney at Law

wfreeman@aclunc.org

20

ANGELICA SALCEDA, Attorney at Law

asalceda@aclunc.org

21

22

OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO

555 Seventh Street

23

San Francisco, California 94103

By: EMILOU H. MacLEAN, Deputy Public Defender

24

emilou.maclean@sfgov.org

GENNA ELLIS BEIER, Deputy Public Defender

25

genna.geier@sfgov.org

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Case 3:20-cv-02731-VC Document 498-6 Filed 08/06/20 Page 4 of 11 CONFIDENTIAL

1 (Appearances, cont'd)

2

LAWYERS' COMMITTEE FOR CIVIL RIGHTS OF

SAN FRANCISCO BAY AREA

3

131 Steuart Street, Suite 400

San Francisco, California 94105

4

By: BREE BERNWANGER, Attorney at Law

bbernwanger@lccrsf.org

5

HAYDEN RODARTE, Attorney at Law

hrodarte@lccrsf.org

6

7 FOR THE WITNESS AND FEDERAL DEFENDANTS:

8

UNITED STATES ATTORNEY'S OFFICE

CALIFORNIA NORTHERN DISTRICT

9

450 Golden Gate Avenue, 11th Floor

San Francisco, California 94102

10

By: SHIWON CHOE, Assistant United States Attorney

shiwon.choe@usdoj.gov

11

ADRIENNE ZACK, Assistant United States

Attorney

12

adrienne.zack@usdoj.gov

13

DEPARTMENT OF HOMELAND SECURITY IMMIGRATION &

CUSTOMS ENFORCEMENT (ICE)

14

630 Sansome Street, Room 890

San Francisco, California 94111

15

By: PATRICIA SPALETTA

Acting Deputy Chief Counsel

16

patricia.spaletta@ice.dhs.gov

VINCENT PELLEGRINI, Attorney

17

vincent.d.pellegrini@ice.dhs.gov

18

19 FOR DEFENDANTS THE GEO GROUP, INC. and WARDEN NATHAN

ALLEN:

20

BURKE WILLIAMS & SORENSEN LLP

21

444 S. Flower Street, Suite 2400

Los Angeles, California 90071-2953

22

By: SUSAN E. COLEMAN, Attorney at Law

scoleman@bwslaw.com

23

24

25 (Cont'd)

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1 (Appearances, cont'd)

2 ALSO PRESENT/APPEARING:

3

SCOTT SLATER, Videographer

4

MICHAELA SANCHEZ

5

MADDIE BOYD

6

TEEGAN LEE

7

KATE MATHER

8

TAYLOR CHAMBERS

9

KELLY HERNANDEZ

10

TARA COUGHLIN

11

NATHAN ALLEN

12

DANIELA BERNSTEIN

13

ARDALAN RAGHIAN

14

15

16

17

18

19

20

21

22

23

24

25

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Case 3:20-cv-02731-VC Document 498-6 Filed 08/06/20 Page 6 of 11 CONFIDENTIAL

1 BY MS. MacLEAN:

12:48:58

2

Q. Do you recall that there was a number that

12:48:59

3 ICE and GEO had reached about how many people could

12:49:04

4 be safely in a particular dorm?

12:49:07

5

A. I don't recall that.

12:49:10

6

MR. CHOE: Object to the characterization.

12:49:11

7

(The reporter requested that people not

12:49:14

8

speak at once.)

12:49:14

9

THE WITNESS: I don't recall.

12:49:17

10

MR. CHOE: Objection.

12:49:18

11

Sorry. We were talking over each other.

12:49:23

12 Objection.

12:49:25

13 BY MS. MacLEAN:

12:49:26

14

Q. Do you recall any discussions about

12:49:26

15 whether testing everyone would require more

12:49:32

16 releases of detainees?

12:49:37

17

A. Could you please repeat that question?

12:49:41

18

Q. Do you recall any conversations about

12:49:43

19 whether universal testing of all detainees or

12:49:46

20 offering universal testing to all detainees would

12:49:50

21 require more detainees to be released?

12:49:53

22

A. I recall having conversations on that

12:49:56

23 topic, but I don't remember the specifics of those

12:49:57

24 conversations.

12:50:00

25

Q. What do you recall generally about those

12:50:03

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1 conversations?

12:50:05

2

A. Exactly what you stated.

12:50:11

3

Q. What is that?

12:50:16

4

A. That in order for us to expand testing to

12:50:21

5 offering it to the entire detainee population, that

12:50:26

6 it would likely involve having to make operational

12:50:31

7 decisions to allow for the cohort groups to exist.

12:50:38

8

Q. When you say "operational decisions to

12:50:46

9 allow for the cohort groups to exist," do you mean

12:50:48

10 that there would have to be decisions to release

12:50:51

11 people?

12:50:54

12

A. Potentially.

12:50:56

13

Q. And were you involved from some of those

12:50:59

14 conversations?

12:51:01

15

A. I'm sorry. Could you be more specific?

12:51:04

16

Q. Do you recall concluding that for a -- for

12:51:06

17 a universal testing plan to be implemented, some

12:51:12

18 detainees would have to be released?

12:51:15

19

MR. CHOE: Objection.

12:51:17

20

THE WITNESS: I don't recall specifically

12:51:26

21 what was going through my mind at the time that

12:51:27

22 you're referring to.

12:51:29

23

I just know that in consideration of

12:51:30

24 expanded testing, one of the factors that would

12:51:37

25 need to be considered would be releasing some

12:51:42

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Case 3:20-cv-02731-VC Document 498-6 Filed 08/06/20 Page 8 of 11 CONFIDENTIAL

1 detainees in order to make it logistically

12:51:49

2 possible. That was --

12:51:53

3 BY MS. MacLEAN:

12:51:58

4

Q. Do you recall who was involved -- sorry.

12:51:58

5

Continue.

12:52:00

6

A. I don't recall the specific conversations,

12:52:00

7 but again, these are conversations that would have

12:52:02

8 involved my management chain.

12:52:06

9

Q. So when you say your "management chain,"

12:52:09

10 do you mean yourself, DFOD Bonnar, and Field Office

12:52:11

11 Director Jennings?

12:52:14

12

A. Yes.

12:52:17

13

Q. Do you recall whether there had ever been

12:52:18

14 progress that was made in identifying detainees who

12:52:21

15 could be released if there were the implementation

12:52:25

16 of a plan to expand testing?

12:52:31

17

MR. CHOE: Objection. Vague and objection

12:52:34

18 to "could be released."

12:52:35

19

THE WITNESS: I'm not sure how to answer

12:52:39

20 that.

12:52:40

21

Could you please be more specific?

12:52:41

22 BY MS. MacLEAN:

12:52:42

23

Q. Do you recall identifying detainees who

12:52:42

24 could be released if there were a plan in place for

12:52:45

25 universal testing?

12:52:51

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1

MR. CHOE: Objection.

12:52:54

2

THE WITNESS: I don't remember as I sit

12:52:57

3 here the timelines for when those actions occurred,

12:52:59

4 but I do know that at some point, we did go through

12:53:03

5 and identify detainees that could potentially be

12:53:09

6 released.

12:53:20

7 BY MS. MacLEAN:

12:53:21

8

Q. Do you recall approximately how many

12:53:21

9 people were on that list?

12:53:22

10

A. I don't recall that.

12:53:25

11

Q. Do you recall whether those people were

12:53:27

12 released?

12:53:29

13

A. I don't recall that either.

12:53:31

14

Q. Do you think that those people were

12:53:33

15 released?

12:53:34

16

MR. CHOE: Objection. Speculation.

12:53:35

17

THE WITNESS: I don't know how to answer

12:53:41

18 that.

12:53:42

19 BY MS. MacLEAN:

12:53:42

20

Q. Do you recall making the decision to

12:53:45

21 release those people?

12:53:47

22

MR. CHOE: Objection.

12:53:50

23

THE WITNESS: Could you please repeat that

12:53:59

24 question?

12:54:00

25 //

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1

CERTIFICATE OF REPORTER

2

I, HOLLY THUMAN, a Certified Shorthand Reporter,

3 hereby certify that the witness in the foregoing

4 deposition was by me duly sworn to tell the truth, the

5 whole truth, and nothing but the truth in the

6 within-entitled cause; that said deposition was taken

7 down in shorthand by me, a disinterested person, at the

8 time and place therein stated; and that the testimony

9 of said witness was thereafter reduced to typewriting,

10 by computer, under my direction and supervision;

11

That before completion of the deposition review of

12 the transcript [X] was [] was not requested/offered.

13 If requested, any changes made by the deponent (and

14 provided to the reporter) during the period allowed are

15 appended hereto.

16

I further certify that I am not of counsel or

17 attorney for either or any of the parties to the said

18 deposition, nor in any way interested in the event of

19 this cause, and that I am not related to any of the

20 parties thereto.

21 DATED: this 3rd day of August, 2020.

22

23

24

<%11978,Signature%>

25

HOLLY THUMAN, CSR

Veritext Legal Solutions 866 299-5127

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Case 3:20-cv-02731-VC Document 498-6 Filed 08/06/20 Page 11 of 11
VERITEXT LEGAL SOLUTIONS COMPANY CERTIFICATE AND DISCLOSURE STATEMENT
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 Case 3:20-cv-02731-VC Document 500 Filed 08/06/20 Page 1 of 4

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

ANGEL DE JESUS ZEPEDA RIVAS, et al.,
Plaintiffs,
v.
DAVID JENNINGS, et al., Defendants.

Case No. 20-cv-02731-VC
ORDER GRANTING MOTION FOR TEMPORARY RESTRAINING ORDER

The plaintiffs have filed an application for a further temporary restraining order in response to the Covid-19 outbreak at the Mesa Verde Detention Center. The plaintiffs have demonstrated a strong likelihood of success on the merits of their claim that the defendants have violated the due process rights of the class members through deliberate indifference to the risk of an outbreak. Indeed, the documentary evidence shows that the defendants have avoided widespread testing of staff and detainees at the facility, not for lack of tests, but for fear that positive test results would require them to implement safety measures that they apparently felt were not worth the trouble. This conduct by the defendants has put the detainees at serious risk of irreparable harm. The defendants have also jeopardized the safety of their own employees. And they have endangered the community at large.
Thankfully, many detainees have been temporarily released as a result of this litigation, allowing them to avoid harm while at the same time creating greater flexibility for ICE and GEO to mitigate the risks to the people who remain in detention. But in hindsight, perhaps the Court

Case 3:20-cv-02731-VC Document 500 Filed 08/06/20 Page 2 of 4
should not have erred on the side of deference when issuing the original temporary restraining order and preliminary injunction. The defendants, having responded to the health crisis in such a cavalier fashion (even in the face of litigation and a string of court orders), have lost the credibility to complain that the relief requested by the plaintiffs is too rigid or burdensome. The defendants have also lost the right to be trusted that they will accomplish on their own what the plaintiffs contend requires a court order to ensure.
The defendants are now ordered to implement the following measures immediately at the Mesa Verde facility:
• Administer a Covid-19 test that returns rapid results to all detainees at the facility for each week at a minimum, beginning next week. (Testing is already in process this week.) Whether this must be “point of care” testing, as opposed to testing that requires lab analysis, depends on how quickly the defendants will be able to get lab results.
• Maintain the current practice of not admitting new class members to the facility absent further order from the Court.
• Maintain a dormitory to segregate detainees who test positive for Covid-19. • On a daily basis, file a report on the docket with information about the status of the
Mesa Verde facility and the defendants’ efforts to manage Covid-19 risk. This should include, at a minimum: (i) a roster indicating the name and location within the facility of each detainee at Mesa Verde; (ii) updates on any tests offered or given to detainees, and the results of those tests; (iii) updates on tests of employees and the results of those tests; (iv) updates on what the defendants are doing to manage the crisis. The defendants may also wish to incorporate into this report the daily updates they are already providing informally to class counsel and the Court about arrivals and departures from the facility. Class counsel may request that the daily reports include additional information; any dispute about what should be included in the reports can be resolved through the discovery letter process or at a status conference.
2

Case 3:20-cv-02731-VC Document 500 Filed 08/06/20 Page 3 of 4
These reports are due at 10 a.m. on the first business day of each week, and at 5:00 p.m. on each subsequent business day. The first report is due Monday, August 10 at 10:00 a.m.1 • Respond promptly to all other reasonable information requests from class counsel regarding safety conditions at the facilities. The requirement to file daily reports does not preclude class counsel from seeking and obtaining additional information (or the same information more rapidly) if the situation calls for it. The plaintiffs’ request to impose a rigid cap of 35 detainees per dormitory is denied at this time. Such an order would possibly force ICE to immediately release dozens of detainees— to many of whom the Court has denied bail based on evidence of dangerousness—without conducting any safety evaluation. The plaintiffs are free to propose additional measures to minimize risk for those detainees, and they are free to renew their request for a per-dormitory cap at the preliminary injunction stage. The defendants are ordered to show cause before this Court why a preliminary injunction should not issue requiring the defendants to meet some or all of the above requirements on an ongoing basis pending final resolution of this case. A response to the order to show cause is due August 17, 2020. A reply by the plaintiffs is due August 19, 2020. The hearing on the order to show cause will be held on August 21, 2020 at 9:00 a.m. The Court is tentatively inclined to require witness testimony at the hearing, including from the warden, to explore further the question of deliberate indifference. The parties should meet and confer to begin identifying the most appropriate witnesses. The Court previously scheduled a further status conference for August 17. That status
1 If the parties agree, the defendants can file a sealed and unsealed version of the report, with the sealed version containing actual names of detainees and employees about whom testing information is given, and the unsealed version containing something like “Detainee 1” or “Employee 1.” Further, the parties should meet and confer about whether it would be preferable to maintain a web page, updated daily, with the information contemplated here. For example, see https://www.alamedacountysheriff.org/admin_covid19.php. But unless both sides agree to that, the defendants must continue to file reports on the docket.
3

Case 3:20-cv-02731-VC Document 500 Filed 08/06/20 Page 4 of 4

conference is now moved up to Tuesday, August 11, 2020 at 2 p.m.

IT IS SO ORDERED.

Dated: August 6, 2020

______________________________________
VINCE CHHABRIA United States District Judge

4

 
 Case 3:20-cv-02731-VC Document 563 Filed 08/17/20 Page 1 of 2

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

ANGEL DE JESUS ZEPEDA RIVAS, et al.,
Plaintiffs,
v.
DAVID JENNINGS, et al., Defendants.

Case No. 20-cv-02731-VC
ORDER TO FILE BRIEFS REGARDING MEDICAL CONDITIONS FOR COVID POSITIVE DETAINEES

The parties are ordered to file briefs and accompanying declarations by Wednesday,

August 19, 2020 discussing the appropriate level of care and monitoring necessary for a dorm

full of people who have tested positive for Covid-19. The parties should address the measures

that can be taken to reduce the risk of detainees’ health deteriorating after being housed in the

Covid-positive dorm, and the level of monitoring necessary to ensure that detainees are

hospitalized promptly when needed. The parties should also address the assertion made by class

counsel at Friday’s hearing that people with Covid-19 are at a greater risk of complications or

death in the facility than if released. Finally, the parties should discuss who pays for

hospitalization and whether there are any financial disincentives to hospitalizing detainees.

Defendants need not file a separate submission by end of day today, Monday, August 17,

on the question of how it can be medically sufficient to check on people known to be infected

with Covid-19 only two times per day. Defendants are instead ordered to include this

information in the Wednesday brief.

IT IS SO ORDERED.

Dated: August 17, 2020

______________________________________

Case 3:20-cv-02731-VC Document 563 Filed 08/17/20 Page 2 of 2 VINCE CHHABRIA United States District Judge
2

 
 Case 3:20-cv-02731-VC Document 585 Filed 08/19/20 Page 1 of 6

DAVID L. ANDERSON (CABN 149604) United States Attorney
SARA WINSLOW (DCBN 457643) Chief, Civil Division
WENDY M. GARBERS (CABN 213208) ADRIENNE ZACK (CABN 291629) SHIWON CHOE (CABN 320041) Assistant United States Attorneys
450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Telephone: (415) 436-6967 Facsimile: (415) 436-6748 wendy.garbers@usdoj.gov adrienne.zack@usdoj.gov shiwon.choe@usdoj.gov
Attorneys for Federal Defendants
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, et al., Plaintiffs,
v. DAVID JENNINGS, et al.,
Defendants.

) CASE NO. 3:20-cv-02731-VC ) ) FEDERAL DEFENDANTS’ RESPONSE TO THE ) COURT’S AUGUST 17, 2020 ORDER CALLING ) FOR BRIEFS AND DECLARATIONS ) REGARDING MEDICAL CONDITIONS FOR ) COVID-POSITIVE DETAINEES ) ) ) ) )

FED. DEFS.’ RESP. TO COURT’S AUGUST 17, 2020 ORDER No. 3:20-cv-02731-VC

Case 3:20-cv-02731-VC Document 585 Filed 08/19/20 Page 2 of 6

Federal Defendants respectfully submit this response to the Court’s order of August 17, 2020

calling for the parties to file briefs and accompanying declarations regarding medical conditions for

COVID-positive detainees (ECF No. 563).

I. Appropriate Level of Care and Monitoring

The Court directed the parties to “address the appropriate level of care and monitoring necessary

for a dorm full of people who have tested positive for Covid-19.”

While COVID-19 can present serious complications for some individuals, according to guidance

from the Centers for Disease Control and Prevention (CDC), “[m]ost people with COVID-19 have mild

illness and can recover at home without medical care.” CDC, Coronavirus Disease 2019 (COVID-19) >

What to Do If You Are Sick (May 8, 2020), https://www.cdc.gov/coronavirus/2019-ncov/if-you-are-

sick/steps-when-sick.html (last visited Aug. 19, 2020) (What to Do); see also CDC, Coronavirus

Disease 2019 (COVID-19) > Interim Clinical Guidance for Management of Patients with Confirmed

Coronavirus Disease (COVID-19) (June 30, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/

clinical-guidance-management-patients.html (last visited Aug. 19, 2020) (“Patients with a mild clinical

presentation (absence of viral pneumonia and hypoxia) may not initially require hospitalization, and

many patients will be able to manage their illness at home.”) (cited by CDC, Coronavirus Disease 2019

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

Correctional and Detention Facilities (July 22, 2020), https://www.cdc.gov/coronavirus/2019-ncov/

community/correction-detention/guidance-correctional-detention.html (last visited Aug. 19, 2020));

accord United States v. Mays, No. 17-cr-96-pp, 2020 WL 4048501, at *5 (E.D. Wis. July 20, 2020)

(quoting CDC, What to Do, and applying it to correctional facility).

The CDC guidance states that individuals who have COVID-19 should “[m]onitor [their]

symptoms,” which “include fever, cough, or other symptoms.” CDC, What to Do. The CDC guidance

states that individuals should “[l]ook for emergency warning signs for COVID-19” and instructs that

“[i]f someone is showing any of these signs, seek emergency medical care immediately” and “[p]lease

call your medical provider for any other symptoms that are severe or concerning to you.” Id. Medical

staff at Mesa Verde monitor detainees’ temperature and vital signs twice a day, are present for hours

each day in Dorm B administering medical treatments, and are on site 24 hours at a day, seven days a

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week. Declaration of Dr. Richard Medrano, Regional Medical Director for Wellpath ¶¶ 7, 17–19 (ECF No. 581-1) (Medrano Decl.).
A number of courts that have addressed correctional and detention facilities with confirmed COVID-19 cases have found twice-daily monitoring of COVID-19 positive detainees by medical staff of temperatures and vital signs to be reasonable and not inappropriate or insufficient. See, e.g., United States v. Kline, No. 17-253 (01) (MJD), 2020 WL 4433018, at *2 (D. Minn. July 31, 2020) (discussing a detainee with obesity and hypertension who tested positive for COVID-19 and was checked twice a day for symptoms, and holding that the detainee “has not demonstrated that he suffers from a medical condition for which the BOP is unable to provide him appropriate medical treatment”); United States v. Billings, No. 19-cr-00099-REB, 2020 WL 4705285, at *4 (D. Colo. Aug. 13, 2020) (discussing the federal correctional facility with the largest number of COVID-19 infections of all federal facilities in the country, and describing the facility’s efforts “implementing mass testing of all inmates and staff, checking inmates’ temperature twice daily, and providing cloth masks to all inmates” with approval as “sweeping”); Duvall v. Hogan, No. ELH-94-2541, 2020 WL 3402301, at *5, *13 (D. Md. June 19, 2020) (discussing a detention facility where 60 detainees and staff members had tested positive and one staff member had died, and describing the facility’s efforts, including “creat[ing] a quarantine housing unit for infected detainees” who “are monitored twice per day by medical staff and remain there for at least 14 days,” as “a reasonable response to the unforeseen, rapidly evolving COVID-19 pandemic”); accord Declaration of Dr. Ada Rivera, Deputy Assistant Director for Clinical Services/Medical Director of the ICE Health Service Corps (IHSC) ¶ 5 (“Rivera Decl.”) (“Per CDC guidelines and my medical experience, monitoring and completing temperature and vitals checks twice daily meets the standard of care.”); Medrano Decl. ¶¶ 4–5 (generally similar).1 II. Risks in the Facility Versus Release
The Court directed the parties to “address the assertion made by class counsel at Friday’s hearing that people with COVID-19 are at a greater risk of complications or death in the facility than if

1 To the extent that Plaintiffs or their experts disagree regarding the appropriate standard of care, Federal Defendants respectfully note that “a mere difference of medical opinion is insufficient, as a matter of law, to establish deliberate indifference.” Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004) (internal quotation marks and alterations omitted).

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released.”

As noted above, detainees have access to on-site medical staff 24 hours at a day, seven days a

week, at Mesa Verde, which is coverage that they would not necessarily have if released. See Medrano

Decl. ¶¶ 4–8. A number of courts that have addressed the question of detention versus release have

disagreed with the assertion that there is a greater risk of complications or death from COVID-19 within

a detention facility than upon release. As one court noted in denying a motion brought by immigration

detainees seeking their immediate release:

[A]lthough medical care at a correctional facility is not optimal, in [the facilities], Petitioners have access to around-the-clock medical care and consistent checks to monitor whether they have potentially been infected with COVID-19. Moreover, should any individual test positive for COVID-19, they would be regularly monitored and have access to rapid medical care, including treatment at a local hospital, if needed. There is no evidence that Petitioners would have better access to medical care if released from custody—and therefore be safer if released—which in turn militates against a finding of irreparable harm.

Engelund v. Doll, No. 4:20-CV-00604, 2020 WL 1974389, at *13 (M.D. Pa. Apr. 24, 2020); accord,

e.g., United States v. Carrington, No. 2:19-CR-59-PPS-JPK, 2020 WL 2029391, at *8 (N.D. Ind. Apr.

28, 2020) (denying release of a pretrial detainee with chronic obstructive pulmonary disease, asthma,

emphysema, bronchitis, and congestive heart failure who tested positive for COVID-19, and noting that,

in detention, the detainee was checked on twice daily and a nurse was on call 24/7, whereas if the

detainee were released, she “would presumably would have to leave . . . home to see a healthcare

provider in person” and also “would significantly increase the risk of transmission to her [family]”);

United States v. West, No. ELH-19-0364, 2020 WL 1638840, at *2 (D. Md. Apr. 2, 2020) (denying

release of a pretrial detainee who tested positive for COVID-19 where “there is no specific plan offered

by [detainee] in the event he were released into the community and became ill” and “[w]hat the

[detainee] is asking is for the Court to take a person who has tested positive for COVID out of isolation

and place him into the community with no further information”); Rivera Decl. ¶ 6 (“Individuals with

COVID-19 are not at a greater risk of complications or death in the facility than if released. The risk of

complications or death for certain individuals is rather due to the factors making them more at risk for

complications if exposed to COVID-19, which are well defined by CDC, than detention itself. Further,

all individuals in ICE custody are provided with and have access to comprehensive medical care.”);

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Medrano Decl. ¶¶ 4–8 (generally similar).

III. Hospitalization

The Court directed the parties to “address the measures that can be taken to reduce the risk of

detainees’ health deteriorating after being housed in the Covid-positive dorm, and the level of

monitoring necessary to ensure that detainees are hospitalized promptly when needed” and “who pays

for hospitalization and whether there are any financial disincentives to hospitalizing detainees.”

As discussed above, medical staff at Mesa Verde check detainees’ temperature and vital signs

twice a day, are present for hours each day in Dorm B administering medical treatments, and are on site

24 hours at a day, seven days a week. Medrano Decl. ¶¶ 7, 17–19. Decisions about hospitalizations are

made by Mesa Verde medical staff in the exercise of their medical judgment. Id. ¶ 24. The ICE Health

Services Corps pays for hospitalizations. Rivera Decl. ¶ 9. Decisions about sending a detainee to a

hospital, however, are based on clinical determinations by the facility’s medical staff, and not on costs

or financial incentives or disincentives. Id.; Medrano Decl. ¶ 24; accord Declaration of Nathan Allen,

Facility Administrator of Mesa Verde ¶ 5 (ECF No. 581-2). Medical staff do not need ICE’s approval to

send someone to the hospital, and if they feel a detainee needs to go to the hospital, they do so in the

exercise of their discretion and medical judgment without regard to cost. Rivera Decl. ¶ 9; Medrano

Decl. ¶ 24; accord Allen Decl. ¶ 5.

IV. Retesting Individuals Who Previously Tested Positive

At the August 18, 2020 status conference, the Court directed the parties to address retesting

individuals who previously tested positive for COVID-19.

The CDC has issued guidance that states that “a person who has had and recovered from

COVID-19 may have low levels of virus in their bodies for up to 3 months after diagnosis. This means

that if the person who has recovered from COVID-19 is retested within 3 months of initial infection,

they may continue to have a positive test result, even though they are not spreading COVID-19.” CDC,

Coronavirus Disease 2019 (COVID-19) > Duration of Isolation & Precautions for Adults (Aug. 16,

2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/duration-isolation.html (last visited Aug. 19,

2020). More specifically, the CDC guidance states that:

Available data indicate that persons with mild to moderate COVID-19

remain infectious no longer than 10 days after symptom onset. Persons

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with more severe to critical illness or severe immunocompromise [sic] likely remain infectious no longer than 20 days after symptom onset. Recovered persons can continue to shed detectable SARS-CoV-2 RNA in upper respiratory specimens for up to 3 months after illness onset, albeit at concentrations considerably lower than during illness, in ranges where replication-competent virus has not been reliably recovered and infectiousness is unlikely. The etiology of this persistently detectable SARS-CoV-2 RNA has yet to be determined. Studies have not found evidence that clinically recovered persons with persistence of viral RNA have transmitted SARS-CoV-2 to others. These findings strengthen the justification for relying on a symptom based, rather than test-based strategy for ending isolation of these patients, so that persons who are by current evidence no longer infectious are not kept unnecessarily isolated and excluded from work or other responsibilities.
Id. The CDC recommends that “[f]or persons previously diagnosed with symptomatic COVID-19 who
remain asymptomatic after recovery, retesting is not recommended within 3 months after the date of
symptom onset for the initial COVID-19 infection” and that “[f]or persons who never developed
symptoms,” retesting is not recommended within three months of the first positive (reverse-transcription
polymerase-chain-reaction) COVID-19 test. Id. “For persons who develop new symptoms consistent
with COVID-19 during the 3 months after the date of initial symptom onset, if an alternative etiology
cannot be identified by a provider, then the person may warrant retesting.” Id.

DATED: August 19, 2020

Respectfully submitted,
DAVID L. ANDERSON United States Attorney
s/Shiwon Choe SHIWON CHOE Assistant United States Attorney
Attorneys for Federal Defendants

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 WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org SEAN RIORDAN (SBN 255752) sriordan@aclunc.org ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437 Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.orga GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: 415-553-9319 Fax: 415-553-9810

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUIZ TOVAR, LAWRENCE MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,

CASE NO. 3:20-CV-02731-VC PETITIONERS-PLAINTIFFS’ RESPONSE TO DEFENDANTS’ SUBMISSIONS RE MEDICAL CARE AT MESA VERDE

Petitioners-Plaintiffs,

v.

DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,

Respondents-Defendants.

CASE NO. 3:20-CV-02731-VC PETITIONERS-PLAINTIFFS’ RESPONSE RE MEDICAL CARE AT MESA VERDE

BREE BERNWANGER* (NY SBN 5036397) bbernwanger@lccrsf.org HAYDEN RODARTE (SBN 329432) hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA 131 Steuart St #400 San Francisco, CA 94105 Telephone: (415) 814-7631 JUDAH LAKIN (SBN 307740) judah@lakinwille.com AMALIA WILLE (SBN 293342) amalia@lakinwille.com LAKIN & WILLE LLP 1939 Harrison Street, Suite 420 Oakland, CA 94612 Telephone: (510) 379-9216 Facsimile: (510) 379-9219

MARTIN S. SCHENKER (SBN 109828) mschenker@cooley.com COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111 Telephone: (415) 693-2000 Facsimile: (415) 693-2222 TIMOTHY W. COOK (Mass. BBO# 688688)* tcook@cooley.com FRANCISCO M. UNGER (Mass. BBO# 698807)* funger@cooley.com COOLEY LLP 500 Boylston Street Boston, MA 02116 Telephone: (617) 937-2300 Facsimile: (617) 937-2400 Attorneys for Petitioners-Plaintiffs

JORDAN WELLS (SBN 326491) jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568) spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA 1313 West Eighth Street Los Angeles, CA 90017 Telephone: (213) 977-9500 Facsimile: (213) 977-5297

*Admitted Pro Hac Vice

CASE NO. 3:20-CV-02731-VC PETITIONERS-PLAINTIFFS’ RESPONSE RE MEDICAL CARE AT MESA VERDE

TABLE OF CONTENTS I. INTRODUCTION ............................................................................................................. 1 II. ADDITIONAL BACKGROUND REGARDING DEFENDANTS’
DECLARANTS ................................................................................................................. 2 A. Declaration of Dr. Richard Medrano ..................................................................... 2 B. Declaration of Nathan Allen .................................................................................. 4 C. Declaration of Dr. Ada Rivera ............................................................................... 4 III. RESPONSES TO THE COURT’S SPECIFIC QUESTIONS........................................... 5 A. Measures to reduce the risk of deteriorating health of Dorm B detainees............. 5 B. Level of monitoring necessary to ensure prompt hospitalization .......................... 8 C. Increased risk of complications or death within the facility compared to
outside .................................................................................................................... 9 D. Who pays for hospitalizations.............................................................................. 10 E. Responses to the Court’s questions regarding staff testing ................................. 11 IV. CONCLUSION................................................................................................................ 12
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I. INTRODUCTION Plaintiffs-Petitioners hereby respond to the briefs and declarations filed by Defendants on
August 19, 2020 addressing the Court’s questions regarding “the appropriate level of care and monitoring necessary for a dorm full of people who have tested positive for Covid-19.” (ECF 563.) The Court asked the parties to address four specific questions:
(1) “the measures that can be taken to reduce the risk of the detainees’ health deteriorating after being housed in the Covid-positive dorm;”
(2) “the level of monitoring necessary to ensure that detainees are hospitalized promptly when needed;”
(3) “the assertion made by class counsel … that people with Covid-19 are at greater risk of complications or death in the facility than if released; and
(4) “who pays for hospitalization and whether there are any financial disincentives to hospitalizing detainees.” Id.
At the most recent Case Management Conference, the Court also asked Plaintiffs to respond to Defendants’ comments regarding re-testing of staff who have previously tested positive.
In response, Defendants the GEO Group, Inc. and Nathan Allen (“GEO”) devote more than half of their brief to other issues, namely: (1) rearguing the general standards for preliminary injunctive relief and (2) arguing that they are not “deliberately indifferent” to the health of detainees. These are not the subjects on which the Court requested briefing from the parties, and a comprehensive response would require the completion of additional discovery. In light of the 24-hour turnaround for this response, Plaintiffs will remain focused on the Court’s specific questions. Plaintiffs will address the broader issues at the appropriate time, or upon the Court’s request.
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Further, Defendants’ responses are not based on credible expert testimony. GEO presents declarations from its contractor Wellpath’s regional Medical Director, and from the Mesa Verde warden. The Federal Defendants have also relied on an employee: a medical director stationed in Washington, D.C. Although all of them can describe written policies, none of them has first-hand knowledge of how care is actually being delivered. None of them has knowledge or experience concerning the provision of care during a pandemic. None of them demonstrates, either through experience or independence, why their views should be credited by the Court.
By contrast, Plaintiffs provide the testimony of four highly experienced experts who are qualified to address the proper treatment of infectious diseases in carceral settings and have reviewed key documents and events in the case. (Third Supplemental Declaration of Robert B. Greifinger, M.D. (“Greifinger”), ⁋⁋ 1-4; Second Supplemental Declaration of Sandra Hernandez (“Hernandez”), ⁋⁋ 1-4; Supplemental Declaration of Sarah Allen. M.D. (“S. Allen”), ⁋⁋1-6; Declaration of Allen Keller, M.D. (“Keller”), ⁋⁋ 1-6.) Plaintiffs also present the declaration of an attorney who has been in contact with multiple detainees at Mesa Verde whose actual experiences conflict with the rosy picture presented by Defendants. (Declaration of Susan Beaty (“Beaty”), ⁋⁋ 1-3.) II. ADDITIONAL BACKGROUND REGARDING DEFENDANTS’ DECLARANTS
A. Declaration of Dr. Richard Medrano Dr. Medrano’s declaration raises more questions than it answers. Although he is the Regional Medical Director for Wellpath, in a “region” that includes Mesa Verde and Adelanto, he does not explain how large the “region” is; how many other facilities it covers; how long he has held the position; or even how much of his practice is devoted to the job.1 Although he
1 WebMD and other internet sources show that a Dr. Richard M. Medrano is a family medicine practitioner based in Pasadena, CA who also practices at “one other location” in Adelanto, CA.
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claims that he is “on-call and/or serve[s] as backup Physician for the facility when needed”
(Medrano Dec. ⁋ 1), he does not explain whether the “facility” to which he refers is Mesa Verde
or the much larger Adelanto facility, and he does not state how often he has directly participated
in or even observed the delivery of medical care at Mesa Verde. Dr. Medrano states that he has
worked for Wellpath and its predecessor company, Correct Care Solutions, since 2015. During
this time period, the DHS Office of Inspector General conducted a site visit at Adelanto in May
2018, and issued a scathing report on the delivery of health care there.2 The Inspector General
cited numerous problems including wait times of “weeks and months” to see a doctor;
appointments “canceled with no explanation”; and appointments canceled because “guards were
not available to take detainees from their cells to their appointments.”3 The IG concluded that
“Failure to Provide Timely and Adequate Medical Care for Detainees Increases Health Risks,”
and that “Medical Care for Detainees is Delayed and Inadequate.”4 The Court is entitled to take
these findings into consideration when evaluating Dr. Medrano’s “professional opinion” that “the
current standard of care at Mesa Verde for COVID-19 positive patients exceeds the standard of
community care in the United States.5,6
E.g., https://doctor.webmd.com/doctor/richard-medrano-a56d3359-15ba-4e01-87f085dca2c1dfe0-appointments. Pasadena is about a two-hour drive from both Adelanto and Mesa Verde. 2 DHS Office of Inspector General, “Management Alert - Issues Requiring Action at the Adelanto ICE Processing Facility in Adelanto, California, September 27, 2018, available at: https://www.oig.dhs.gov/sites/default/files/assets/Mga/2018/oig-18-86-sep18.pdf. A copy of this report is attached as Exhibit 1 to the Declaration of William S. Freeman. 3 Id. at 8. 4 Id. at 7-8. 5 Wellpath is also the subject of significant criticism in the press as a private-equity-backed forprofit provider of in-custody medical services. See, e.g., “The Private Option,” The Atlantic, Sept. 12, 2019, available at: https://www.theatlantic.com/politics/archive/2019/09/privateequitys-grip-on-jail-health-care/597871/ 6 As discussed below, Plaintiffs have asked GEO to produce its contract relating to the provision of medical services at Mesa Verde, but GEO has stated that this contract is a “trade secret” and
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B. Declaration of Nathan Allen Warden Nathan Allen, the Facility Administrator at Mesa Verde, does not provide any additional information responsive to the Court’s specific questions. He states only that “custody staff” can call 911 in an emergency to “let medical staff know if a detainee seems to have a medical issue” (N. Allen Dec. ⁋⁋ 2-3), but understandably does not claim any specialized medical knowledge and states that GEO contracts with Wellpath to provide medical care at Mesa Verde. (Id. ⁋ 4.) C. Declaration of Dr. Ada Rivera It is not clear that Dr. Rivera, the Federal Defendants’ declarant, who “oversee[s] and monitors[s]” clinical services at ICE detention facilities that are staffed by ICE Health Services Corps personnel, can contribute any relevant testimony concerning the provision of services at a facility such as MV that is not staffed by IHSC. Dr. Rivera states that cohorting of lab-confirmed positive cases of COVID-19 is “specified as allowable” under CDC guidelines, but provides no information concerning facts on the ground at Mesa Verde, and does not even attempt address the Court’s question regarding “the measures that can be taken to reduce the risk of the detainees’ health deteriorating after being housed in the Covid-positive dorm.”7
will not be produced. Plaintiffs have also inquired concerning the time period of the contract; to date, GEO has not provided this information. 7 Notably, the CDC has also identified “cohorting” as a sub-optimal option. CDC, “Guidance for Correctional & Detention Facilities,” July 22, 2020, available at https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidancecorrectional-detention.html (“While cohorting those with confirmed COVID-19 is acceptable, cohorting individuals with suspected COVID-19 is not recommended due to high risk of transmission from infected to uninfected individuals.”).
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III. RESPONSES TO THE COURT’S SPECIFIC QUESTIONS A. Measures to reduce the risk of deteriorating health of Dorm B detainees In addition to increased frequency of monitoring and availability of self-monitoring
(discussed in III.B below), facilities must have a facility-specific plan in place that dictates how patients are triaged and diagnosed, how they will be isolated and monitored, and how they will be transferred to a higher level of care; how PPE will be handled; and how the area housing the patients will be sanitized on a daily basis. (S. Allen ⁋⁋ 9, 18; Greifinger ⁋ 18.) Not only is it clear that Defendants do not have such a plan (S. Allen ⁋ 20; Greifinger ⁋ 19), they admitted in a recent status conference that they still believe it is acceptable for infected detainees to be cleaning their own dormitory. Particularly in the face of the current widespread outbreak at Mesa Verde, there must be a system in place for life support or “Code Blue” situations (S. Allen ⁋ 11), and for immediate access to emergency medical care (Greifinger ⁋⁋ 10-11). There must be oxygen available at all times, and the current inventory of oxygen at Mesa Verde is inadequate. (S. Allen ⁋ 14.) Appropriate patient care during a pandemic requires a level of effective communication among medical personnel, and between members of the medical team and the patients, that goes far beyond anything described by Defendants. (Id. ⁋⁋ 15-16; Greifinger ⁋⁋ 1217.)
The practice described by Defendants under which known COVID patients are required to fill out “sick call slips” or “kites” and are “typically” seen within 24 hours (Medrano ⁋ 8) is “an entirely unsafe and inappropriate practice” and is “dangerous” because such patients should be constantly monitored and not have to take the initiative to seek care due to the risk of rapid deterioration. (S. Allen ⁋⁋ 10, 21-23; Greifinger ⁋⁋ 7, 25-27.) The failure of medical personnel to consistently respond within 24 hours to significant health concerns in the middle of a COVID
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outbreak is evidence of substandard care that places the lives and health of COVID-positive detainees at risk. (Keller ¶ 59.)
Defendants’ claim to have “custody officers within the housing units” who are “encouraged to let medical staff know if a detainee seems to have a medical issue” (Medrano ⁋ 11; N. Allen ⁋ 3) is inadequate if the officer has not been trained to spot the signs of a rapidly declining patient, and is not required to communicate urgently with medical personnel. (Greifinger ⁋⁋ 28-30.)
Having reviewed Defendants’ plans and protocols to the extent they exist, Dr. Sara Allen concludes that Defendant “have failed to provide the appropriate level of care to COVID patients in their care” and “need to take significant, immediate steps to improve the degree of patient monitoring, provide bedside access to medical care, and streamline access to emergency medical care.” (S. Allen ⁋ 19.) Dr. Allen’s specific findings are set forth in detail at ⁋⁋ 20-25 of her declaration. She concludes that “Defendants’ resources fail to meet the appropriate level of care” and that “barriers to medical treatment at [Mesa Verde] are deeply troubling.” (Id. ⁋⁋ 24, 28.)
Dr. Greifinger in particular explains that the blanket statement that Wellpath’s staff “is required to follow both CDC and IHSC [ICE Health Service Corps) guidelines” (Medrano ⁋ 8) provides no assurance because these guidelines state only general policies but do not specify, on an operational level, how staff should respond to particular situations; and this has not been done at Mesa Verde. (Greifinger ⁋⁋ 20-21, 24.) For example, Defendants relied on IHSC guidance when they initially refused to test people in dorms whether individuals had tested positive for COVID-19. (Id. ⁋ 22.) In addition, the general statement is untrue in many respects; for example, Defendant are not following CDC guidance that they revise their influenza and disaster plans for COVID-19 and train staff to the revised plan. (Id. ⁋ 24.)
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Dr. Greifinger concludes that Defendants’ failure to establish a detailed plan “to respond to the needs of COVID-infected individuals at Mesa Verde is a striking example” of their “indifference to the obligation to mitigate the risk of COVID transmission….” (Id. ⁋ 32.) He recommends that “Mesa Verde immediately establish an effective COVID-19 medical care plan that does not only rely on CDC and IHSC guidelines but that responds to the particular constraints, limitations and obligations that exist at Mesa Verde.” (Id. ⁋ 33.) Such a plan would require that on-site GEO officers communicate detainees’ health care needs directly to a health care professional review, and eliminate any existing obstacles to immediate assistance from onsite health care professionals. (Id.)
Ms. Beaty, whose non-profit legal organization represents many individual clients inside Mesa Verde, explains how the deficiencies detailed by the medical experts affect the quality and timeliness of health care delivered to detainees every day. Regarding the “sick call slip” system touted by Dr. Medrano, her clients report that often “it takes multiple days to be seen by a doctor after requesting medical care on the tablet … even after they have reported concerning COVID19 symptoms.” (Beaty ⁋⁋ 4-5; individual detainee experiences set forth at ⁋⁋ 6-9.) As Dr. Greifinger feared, GEO staff members, whether through lack of training or lack of caring, fail or delay in alerting medical staff to serious COVID-19 symptoms. (Id. ⁋ 10; examples at ⁋⁋ 11-19.) Medical personnel fail to provide adequate information to detainees related to the COVID-19 outbreak, leading to a climate of distrust of medical staff. (Id. ⁋ 23; examples at ⁋⁋ 24-26.) Class members lack basic information about what it means to have tested positive, signs and symptoms to watch for, when to alert staff, and the meanings of oxygen and blood pressure results. (Id. ⁋ 27; examples at ⁋⁋ 28-30.) Not only do these problems endanger detainees’ physical health; they adversely affect their mental health as well. (⁋ 34; examples at ⁋⁋ 35-38.)
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Finally, Dr. Keller, having had access to detailed medical records concerning four Covidpositive detainees, has engaged in a detailed review of those records and concludes, without hesitation, that numerous failures and delays in testing and treatment for these individuals could easily have cost these detainees their lives, and still could. (E.g., Keller ⁋⁋ 25, 35, 47, 58.) The review of these records makes clear that, among other things, (1) highly symptomatic individuals were not offered rapid tests which would have identified their COVID status earlier, thereby endangering their health and likely infecting many others; (2) seriously medically vulnerable individuals were placed in crowded close-contact cohort dorms and, in at least one identified case (and almost certainly others) contracted COVID as a result; and (3) MV health care providers repeatedly discounted legitimate and serious concerns of COVID-positive and medically vulnerable individuals, at critical moments in which their health was deteriorating. (Id. ¶¶ 12 (summary), 13-57 (details).)While Plaintiffs will not repeat here the shocking details of the substandard treatment provided to these class members, we earnestly hope the Court will review Dr. Keller’s declaration if it has any doubt that the deficiencies set forth here have life-or-death consequences.
B. Level of monitoring necessary to ensure prompt hospitalization Covid-19 patients - even those who have previously had mildly abnormal vital signs – can deteriorate dramatically in less than one hour due to a “cytokine storm” in which the body’s immune system overreacts to the virus. (S. Allen ⁋⁋ 7-8; Greifinger ⁋ 6.) For this reason, such patients should have instant access to nurses and physicians, either by means of a bedside buzzer or telephone, or via a medical professional or detention officer who is specifically trained to identify signs and symptoms requiring urgent treatment. (S. Allen ⁋ 10; Greifinger ⁋ 8.) In a multi-patient cohort setting like Dorm B at Mesa Verde, COVID-infected persons should be visually monitored at all times because not all patients may be physically able to call for a nurse.
8 CASE NO. 3:20-CV-02731-VC PETITIONERS-PLAINTIFFS’ RESPONSE RE MEDICAL CARE AT MESA VERDE

(S. Allen ¶ 23). Although twice- or thrice-daily monitoring of symptoms is acceptable in many situation, medically vulnerable detainees should have their vital signs checked even more frequently. (Id. ⁋ 13.)
C. Increased risk of complications or death within the facility compared to outside
Dr. Medrano states that in his opinion, detainees are at “no greater risk for complications” inside Mesa Verde than outside in the community, because access to care is more readily available inside. (Medrano ⁋ 6.) This opinion fails to take into account, however, for the fact that detainees in Dorm B are surrounded by other very sick people, whereas someone on the outside will not be, which brings with it the risk of infection by a whole host of serious secondary respiratory pathogens, which increases the likelihood of poor outcomes. (S. Allen ⁋ 25.) When influenza season arrives, as it surely will, there will be “more COVID-influenza co-infections and thus sicker patients.” (Id.) Ideally, COVID-positive patients should be medically isolated; proximity to other sick patients in a dormitory such as Dorm B increases the likelihood of coinfection. (Id. ⁋⁋ 25-27, 29.) Indeed, even the IHSC that Defendants purport to follow recognizes that “plac[ing] the [COVID-confirmed] detainee in a private medical housing room, ideally in an airborne infection isolation room” is preferable to merely “hous[ing] the ill detainee separately from the general population.” (ISHC Reference Sheet on COVID-19 (Freeman Ex. 3), p. 3.
Dr. Medrano’s sanguine view of the relative risk inside and outside the facility also fails to account for the overwhelming evidence of negligence, indifference, and lack of imagination and flexibility that the Court has repeatedly noted, and which leads inescapably to the conclusion that Defendants cannot be trusted to take any constructive action unless ordered to do so by the Court. As Dr. Keller concludes, “There is little evidence in the records I have reviewed that would give me confidence in the ability of Mesa Verde’s health care professionals to
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competently care for the health care of dozens of COVID-positive individuals in their custody. (Keller ⁋ 59.) Without further Court intervention, these failures will almost certainly lead to tragic results.
Dr. Hernandez concludes that “it is in the interest of public health to release detainees from detention centers so long as they can safely quarantine or isolate in the community” (Hernandez ⁋⁋ 5, 13, 18), and lays out the steps that are required for safe quarantine (Id. ⁋⁋ 6-11.) Releases will lower the risk of infection both inside the facility and in the greater community. (Id. ⁋⁋ 14-15.) Reducing the population of COVID-positive patients in Mesa Verde also lowers the risk of overburdening the already strained public health system in Kern County, which has the highest test positivity rate in the state (Id. ¶18). Ms. Beaty’s organization has created and executed numerous successful individual release plans, and stands ready to assist with more. (Beaty ⁋⁋ 39-42.) By contrast, even with regular testing, the frequency of staff and personnel movement within the facility inevitably increases the risk of further transmission, with detrimental health consequences for individuals who are detained as well as for the broader public. (Hernandez ⁋⁋ 16.)
D. Who pays for hospitalizations Defendants state that ICE pays for hospitalizations, and Plaintiffs have no basis to challenge this assertion. That is hardly the only question that must be answered to determine Wellpath’s potential financial interest in rationing the provision of medical care, however. As a for-profit business, Wellpath’s return to its investors depends on how economically it can deliver care; yet the existence of a pandemic and an outbreak within the facility clearly require that greater resources be expended per detainee. If Wellpath is not compensated for the greater effort
10 CASE NO. 3:20-CV-02731-VC PETITIONERS-PLAINTIFFS’ RESPONSE RE MEDICAL CARE AT MESA VERDE

required, it is unlikely to commit greater resources.8 For this reason, it is critical to know not just who pays for hospitalizations, but the basis on which Wellpath is paid for the delivery of its services: whether it is paid a fixed fee per detainee day, or a scheduled fee for each service delivered, or on a cost-plus basis, or on some other basis.
Plaintiffs have requested this information from GEO, but it has so far refused to provide it. Mindful of the Court’s repeated instruction to Defendants that they should respond promptly, and without requiring formal discovery requests, to reasonable requests for relevant information and documents, on Tuesday, August 18, Plaintiffs’ counsel orally requested that GEO’s counsel provide a copy of the contract between GEO and Wellpath so that Plaintiffs could determine the basis on which Wellpath is paid. See Freeman declaration, filed herewith, at ⁋ 3 Plaintiffs renewed the request Counsel renewed the request in writing on August 19. Id. ⁋ 4 and Ex. 2. Later that day, counsel for GEO stated that GEO would not provide the contract(s), claiming they are “trade secret protected.” Id. Plaintiffs renewed their request, and asked that GEO provide details concerning how Wellpath is compensated even if it would not produce the contract. Id. Counsel for GEO have not, as of this time, responded to this request. Id.
Plaintiffs respectfully request that GEO produce to Plaintiffs the contract(s) governing its provision of health care services at Mesa Verde.
E. Responses to the Court’s questions regarding staff testing At the most recent status conference, the Court also asked both parties to answer two questions concerning staff testing: (1) whether staff should be tested, and required to test negative, prior to returning to work after a positive test; and (2) whether staff who previously
8 Dr. Medrano states that because of the reduced population at Mesa Verde, there is a greater provider-to-detainee ration (Medrano Dec. ⁋ 9.) While this may be true, it does not account for the greatly increased medical needs of the remaining detainees, and the greatly increased level of effort needed to adequately care for them, which he does not address.
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tested positive should be required to be tested again in the weekly testing regimen established by this Court.
First, the CDC and other medical experts currently recommend a “symptom-based strategy” for returning to work after a positive COVID test. Thus, a negative test is not required; rather, the requirements for returning to work should conform to evolving CDC guidelines based on lack of symptoms and the passage of time.9 Second, a prior positive test should not eliminate the obligation of staff at MV to submit to regular testing. While there is significant ongoing research in this area, there is currently no confirmation that an individual cannot be re-infected with COVID—and be infectious to others—after a positive test.10 Routine and frequent testing thus continues to be recommended even after a prior COVID infection has resolved. IV. CONCLUSION
Contrary to Defendants’ blanket assurances that the level of medical care provided to detainees at Mesa Verde is adequate, the opinions of four independent experts, the actual stories of detainees’ experiences, and a detailed medical records review prove that it is woefully inadequate. Plaintiffs respectfully request that the Court require Defendants to bring their care up to acceptable standards or release additional detainees, contingent on a satisfactory release plan, to safely isolate in their communities.

Dated: August 20, 2020

Respectfully submitted, /s/ William S. Freeman William S. Freeman Sean Riordan Angélica Salceda

9 See https://www.cdc.gov/coronavirus/2019-ncov/hcp/return-to-work.html; https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/testing-non-healthcareworkplaces.html. 10 https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/testing-non-healthcareworkplaces.html. See also https://www.nytimes.com/2020/08/16/health/coronavirus-immunityantibodies.html.
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Bree Bernwanger Hayden Rodarte LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA Judah Lakin Amalia Wille LAKIN & WILLE LLP Jordan Wells Stephanie Padilla AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA

AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA Manohar Raju Public Defender Matt Gonzalez Chief Attorney Francisco Ugarte Genna Ellis Beier Emilou H. MacLean OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO Martin S. Schenker Timothy W. Cook Francisco M. Unger COOLEY LLP Attorneys for Petitioners-Plaintiffs

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 Case 3:20-cv-02731-VC Document 595 Filed 08/21/20 Page 1 of 2

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

ANGEL DE JESUS ZEPEDA RIVAS, et al.,
Plaintiffs,
v.
DAVID JENNINGS, et al., Defendants.

Case No. 20-cv-02731-VC
ORDER TO CREATE WRITTEN PLAN TO IMPROVE MEDICAL ASSISTANCE FOR COVID POSITIVE DETAINEES

The defendants are ordered to create a written plan to improve their system of monitoring, caring for, and responding to medical assistance requests from detainees who have tested positive and who have health conditions that the CDC has identified as creating an elevated risk of complications. They should consult CDC and IHSC guidelines, but keep in mind that these recommendations were not designed to deal with the current situation at Mesa Verde, where over half of detainees have tested positive for Covid-19. The written plan should address, at a minimum, how the defendants will provide information to detainees (including non-English speaking individuals) about managing and responding to symptoms, and how the defendants will ensure that they respond promptly to sick detainees requesting medical assistance.
The defendants are ordered to submit a draft of the plan to class counsel by noon on Wednesday, August 26, 2020. The defendants and class counsel are ordered to confer in detail about the draft, and the defendants are ordered to give serious consideration to any suggestions by class counsel for how to improve the plan. The Court hopes and expects that the parties will

Case 3:20-cv-02731-VC Document 595 Filed 08/21/20 Page 2 of 2

reach agreement on an appropriate plan. The defendants must file a final draft of the plan on the docket by Monday, August 31, 2020 at 5 p.m. If the plaintiffs disagree that the final plan is adequate, they may file objections to it by Wednesday, September 2 at 5 p.m.
In addition, the defendants are ordered to produce to class counsel a copy of the contract between Geo and Wellpath. This production must be completed by Monday, August 24 at 5 p.m., and it can be pursuant to a protective order if necessary.
Staff who have previously tested positive need not receive a negative test result before returning to work, so long as the defendants follow the CDC guidelines for returning to work based on lack of symptoms and passage of time.
Finally, to the extent that the defendants are continuing, despite the Court’s comments at the most recent status conference, to require detainees who are sick with Covid-19 to clean facilities in Dorm B, they are ordered to institute alternative cleaning arrangements by no later than Monday, August 24.

IT IS SO ORDERED. Dated: August 21, 2020

______________________________________
VINCE CHHABRIA United States District Judge

2

 
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DAVID L. ANDERSON (CABN 149604) United States Attorney
SARA WINSLOW (DCBN 457643) Chief, Civil Division
WENDY M. GARBERS (CABN 213208) ADRIENNE ZACK (CABN 291629) SHIWON CHOE (CABN 320041) Assistant United States Attorneys
450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Telephone: (415) 436-6967 Facsimile: (415) 436-6748 wendy.garbers@usdoj.gov adrienne.zack@usdoj.gov shiwon.choe@usdoj.gov
Attorneys for Federal Defendants
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, et al., Plaintiffs,
v. DAVID JENNINGS, et al.,
Defendants.

) CASE NO. 3:20-cv-02731-VC ) ) DEFENDANTS’ RESPONSE TO THE COURT’S ) AUGUST 21, 2020 ORDER TO CREATE A ) WRITTEN PLAN TO IMPROVE MEDICAL ) ASSISTANCE FOR COVID-POSITIVE ) DETAINEES ) ) ) ) )

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INTRODUCTION In response to the Court’s order of August 21, 2020 calling for Defendants “to create a written plan to improve their system of monitoring, caring for, and responding to medical assistance requests from detainees who have tested positive and who have health conditions that the CDC has identified as creating an elevated risk of complications” and to “file a final draft on the docket” (ECF No. 595), Defendants respectfully submit the attached draft written plan. Defendants also respond to Plaintiffs’ pending “request that the Court require Defendants to bring their care up to acceptable standards or release additional detainees, contingent on a satisfactory release plan, to safely isolate in their communities.” Pls. Br. 12 (ECF No. 591). This effectively is a request for a new mandatory injunction. See United States v. Oriho, __ F.3d __, No. 19-10291, 2020 WL 4579478, at *3 (9th Cir. Aug. 10, 2020) (an order not specifically styled as a restraining order or injunction nonetheless has the “practical effect” of an injunction where it is “‘directed to a party, enforceable by contempt, and designed to accord some or all of the relief sought by a complaint’”) (quoting United States v. Samueli, 582 F.3d 988, 993 (9th Cir. 2009)). Defendants respectfully submit that the procedures in place at the Mesa Verde Detention Facility satisfy all applicable constitutional and legal requirements and that Plaintiffs have not established an entitlement to a further injunction. As of today, all but 15 of the 101 detainees at Mesa Verde either have never tested positive for COVID-19 or have met the conditions set forth in guidance issued by the Centers for Disease Control and Prevention (CDC) for discontinuing isolation and precautions. While Defendants submit the attached draft plan in response to the Court’s August 21 order (and medical staff have implemented the measures in this draft plan), a further Court order (regarding either this draft plan or any alternative plan that Plaintiffs might propose) is unwarranted.1
LEGAL STANDARD I. Preliminary-Injunction Standard2
“A preliminary injunction is ‘an extraordinary remedy never awarded as of right.’” Benisek v.

1 Defendants specifically object to any conclusion that these changes or any others are constitutionally required, and reserve the right to appeal the Court’s August 21 order and any further order.

2 The standard for issuing a TRO is the same as the standard for issuing a preliminary injunction. See Stuhlbarg Int’l Sales Co, Inc. v. John D. Brush & Co, Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2001); Rovio

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Lamone, 138 S. Ct. 1942, 1943 (2018) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008)). “[P]laintiffs seeking a preliminary injunction face a difficult task in proving that they are entitled to this ‘extraordinary remedy.’” Earth Island Inst. v. Carlton, 626 F.3d 462, 469 (9th Cir. 2010). A plaintiff’s burden is a “heavy” one, id., that requires “substantial proof” and a “clear showing” that an injunction is warranted, Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis in original). “The burden to prove clear entitlement to injunctive relief always stays with the party requesting that relief.” Hope v. Warden York Cty. Prison, __ F.3d __, No. 20-1784, 2020 WL 5001785, at *5 (3d Cir. Aug. 25, 2020) (vacating TRO issued in immigration-detainee COVID-19 lawsuit where the district court placed the burden on the government to show why injunctive relief should not be entered, rather than on the immigration detainees to prove clear entitlement to injunctive relief); accord Valentine v. Collier, 956 F.3d 797, 801 n.1 (5th Cir. 2020) (staying preliminary injunction in prison-detainee COVID-19 lawsuit and holding that “of course, it’s the Plaintiffs’ burden to prove their entitlement to an injunction, not the Defendants’ burden to prove the opposite”), motion to vacate stay denied, 140 S. Ct. 1598 (2020).
In particular, “a mandatory injunction goes well beyond simply maintaining the status quo pendente lite and is particularly disfavored.” Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (citation, quotation marks, and brackets omitted). The burden on a plaintiff seeking a mandatory injunction “is doubly demanding: . . . she must establish that the law and facts clearly favor her position, not simply that she is likely to succeed.” Id. (emphasis in original). “The district court should deny such relief unless the facts and law clearly favor the moving party.” Id. (citations and quotation marks omitted).
Even where a clear showing has been made, “because injunctive relief must be narrowly tailored to remedy the specific harm alleged, an overbroad injunction is an abuse of discretion.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1140–41 (9th Cir. 2009) (citations, quotation marks, brackets, and ellipsis omitted) (vacating injunction where district court “failed to tailor the injunction” to the specific alleged constitutional harm of plaintiffs and instead “issued an overbroad injunction”).
“Every order granting an injunction and every restraining order must: (A) state the reasons why

Entm’t Ltd. v. Royal Plush Toys, Inc., 907 F. Supp. 2d 1086, 1092 (N.D. Cal. 2012).

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it issued; (B) state its terms specifically; and (C) describe in reasonable detail — and not by referring to

the complaint or other document — the act or acts restrained or required.” Fed. R. Civ. P. 65(d)(1).

Regarding the first requirement, the reasons for the injunction must be forward-looking, as “the well-

established purpose of [] preliminary injunctive relief . . . is to prevent future irreparable harm before a

final judgment on the merits can be made, not to remedy past harms.” GSI Tech., Inc. v. United

Memories, Inc., No. C 13-1081 PSG, 2013 WL 12172990, at *10 (N.D. Cal. Aug. 21, 2013). Regarding

the second and third requirements, “an injunction should be phrased in terms of objective actions, not

legal conclusions.” Hope, __ F.3d __, 2020 WL 5001785, at *5 (citation and quotation marks omitted)

(vacating TRO issued in immigration-detainee COVID-19 lawsuit where the district court required,

among other things, that the government impose “reasonable” terms of supervision and comply with

“guidance,” as being vague and violating Rule 65(d)); see Abbott v. Perez, 138 S. Ct. 2305, 2321 (2018)

(discussing the importance of Rule 65(d), which “protects the party against which an injunction is issued

by requiring clear notice as to what that party must do or refrain from doing”). “‘The specificity

provisions of Rule 65(d) are no mere technical requirements. The Rule was designed to prevent

uncertainty and confusion on the part of those faced with injunctive orders, and to avoid the possible

founding of a contempt citation on a decree too vague to be understood.’” Del Webb Cmtys., Inc. v.

Partington, 652 F.3d 1145, 1150 (9th Cir. 2011) (quoting Schmidt v. Lessard, 414 U.S. 473, 476

(1974)).

A court entering a preliminary injunction “must find the facts specifically and state its

conclusions of law separately.” Fed. R. Civ. P. 52(a); Diouf v. Mukasey, 542 F.3d 1222, 1235 n.7 (9th

Cir. 2008).

II. Medical-Care Standard

Claims brought by immigration detainees for allegedly inadequate medical care are evaluated

under an objective deliberate-indifference standard. See Gordon v. Cty. of Orange, 888 F.3d 1118,

1124–25 (9th Cir. 2018) (analyzing claim by pretrial detainee who had not been criminally convicted

under objective deliberative-indifference standard); Arizmendi de Paz v. Wolf, No. 20-cv-955-WQH-

BGS, 2020 WL 3469372, at *8 (S.D. Cal. June 25, 2020) (applying objective deliberate-indifference

standard to immigration detainee in COVID-19 lawsuit). The elements of an inadequate-medical-care

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claim under an objective deliberative-indifference standard are that:
(i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the defendant did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk involved — making the consequences of the defendant’s conduct obvious; and (iv) by not taking such measures, the defendant caused the plaintiff’s injuries.
Gordon, 888 F.3d at 1125. “With respect to the third element, the defendant’s conduct must be
objectively unreasonable, a test that will necessarily turn on the facts and circumstances of each
particular case.” Id. (citation, quotation marks, and brackets omitted). The “mere lack of due care by a
state official” does not plead a claim. Id. “Thus, the plaintiff must prove more than negligence but less
than subjective intent — something akin to reckless disregard.” Id. (citations and quotation marks
omitted). “[A] mere difference of medical opinion is insufficient, as a matter of law, to establish
deliberate indifference.” Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004) (citation, quotation
marks, brackets, and ellipsis omitted); see Hayes v. Williams, No. C-05-00070 RMW, 2009 WL
3004037, at *4 (N.D. Cal. Sept. 15, 2009) (under the objective deliberative-indifference standard, “a
plaintiff must [] show that the course of treatment was medically unacceptable under the circumstances.
This requires showing more than a difference of medical opinion about a prisoner’s treatment.”)
(citations, quotation marks, and ellipsis omitted); accord Hope, __ F.3d __, 2020 WL 5001785, at *12
(same, in immigration-detainee COVID-19 lawsuit).
APPLICATION
There currently are 101 detainees at Mesa Verde. Declaration of Dr. Richard Medrano, Regional
Medical Director for Wellpath ¶ 24 (Medrano Decl.). 41 of these detainees have tested negative for
COVID-19 on each of their repeated tests. Id. (A forty-second detainee tested negative on July 30, 2020
and subsequently refused all additional offers of testing. Id.) Of the remaining 59 detainees, 44 have now met the CDC’s guidance for discontinuing isolation and precautions. Id. ¶¶ 24–25.3 The remaining

3 The CDC states that “For most persons with COVID-19 illness, isolation and precautions can generally be discontinued 10 days after symptom onset and resolution of fever for at least 24 hours, without the use of fever-reducing medications, and with improvement of other symptoms. A limited number of persons with severe illness may produce replication-competent virus beyond 10 days that may warrant extending duration of isolation and precautions for up to 20 days after symptom onset; consider

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15 detainees who have tested positive for COVID-19 remain cohorted in Dorm B or housed in isolation units. Id. ¶ 22. Only six to eight detainees on average have active symptoms at any given time (such as headache, malaise, or diarrhea). Id. ¶ 21. While medical staff are routinely monitoring the detainees for changes in condition and development and/or changes for symptoms, not every detainee needs medicine for COVID-19 or other medical intervention. Id. Most will likely recover via rest and fluids. Id.; accord CDC, Coronavirus Disease 2019 (COVID-19) > What to Do If You Are Sick (May 8, 2020), https://www.cdc.gov/coronavirus/2019-ncov/if-you-are-sick/steps-when-sick.html (last visited Aug. 31, 2020) (What to Do) (“Most people with COVID-19 have mild illness and can recover at home without medical care.”); see United States v. Mays, No. 17-cr-96-pp, 2020 WL 4048501, at *5 (E.D. Wis. July 20, 2020) (quoting CDC, What to Do, and applying it to correctional facility); Chunn v. Edge, __ F. Supp. 3d __, No. 20-cv-1590 (RPK) (RLM), 2020 WL 3055669, at *16 (E.D.N.Y. June 9, 2020) (discussing “the ordinary standard of care for COVID-19 patients, who are commonly advised to ‘isolate and manage’ symptoms rather than to seek daily assessments from healthcare providers”).
In light of the above, Plaintiffs have not made a “clear showing” that an injunction is warranted, cf. Mazurek, 520 U.S. at 972 (emphasis in original), let alone that the law and facts “clearly favor” their position that they are entitled to a mandatory injunction, cf. Garcia, 786 F.3d at 740 (emphasis in original). 86 of the 101 detainees either have never tested positive for COVID-19 or have now met the CDC’s guidance for discontinuing isolation and precautions. Medical staff at Mesa Verde — who are onsite 24 hours a day, seven days a week, and spend approximately three hours per day in Dorm B4 — have been providing and continue to provide medical care to the remaining 15 detainees who have tested positive for COVID-19 and who have not met the CDC’s guidance for discontinuing isolation and precautions, including checking each such detainee’s temperature, blood pressure, heart rate, respiration rate, and oxygen-saturation level twice a day; asking each such detainee about their symptoms; and

consultation with infection control experts. For persons who never develop symptoms, isolation and other precautions can be discontinued 10 days after the date of their first positive RT-PCR test for SARSCoV-2 RNA.” CDC, Coronavirus Disease 2019 (COVID-19) > Duration of Isolation & Precautions for Adults (Aug. 16, 2020) (emphasis in original), https://www.cdc.gov/coronavirus/2019-ncov/hcp/ duration-isolation.html (last visited Aug. 31, 2020); accord Medrano Decl. ¶ 25.

4 Medical staff previously spent approximately four to six hours a day in Dorm B, [First] Declaration of Dr. Richard Medrano, Regional Medical Director for Wellpath ¶ 20 (ECF No. 581-1), but this number has gone down as the population in Dorm B has gone down. [Second] Medrano Decl. ¶ 20.

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responding to detainee sick-call requests. Medrano Decl. ¶¶ 7, 15–20; accord Third Supplemental Declaration of Dr. Robert B. Greifinger ¶ 31 (ECF No. 591-4) (agreeing that medical staffing levels are adequate). Medical staff follow both the CDC’s guidelines regarding COVID-19 symptoms and the ICE Health Services Corps’ recommendations, and often exceed these guidelines. Medrano Decl. ¶ 3 & Ex. A. Medical staff use their experience, training, and medical judgment to determine whether to send a detainee to the hospital (and do not need ICE’s or GEO’s approval to do so). Id. ¶¶ 13, 26.5
The medical care provided at Mesa Verde already complies with all applicable constitutional and legal requirements. Plaintiffs have not made a clear showing that this level of medical care for the remaining 15 detainees in Dorm B or isolation units, or even for all 59 detainees who have tested positive for COVID-19 at any time, is so constitutionally deficient that a further court order is warranted. Cf., e.g., Chunn, __ F. Supp. 3d __, 2020 WL 3055669, at *15–16 (rejecting argument by class-action prisoner plaintiffs on behalf of both prisoners and pretrial detainees that “twice-daily medical rounds are insufficient” and rejecting “[p]etitioners’ preferred procedures[, which] go beyond anything the CDC has recommended” and “do not even appear to be consistent with the ordinary standard of care for COVID-19 patients, who are commonly advised to ‘isolate and manage’ symptoms rather than to seek daily assessments from healthcare providers”); United States v. Billings, No. 19-cr00099-REB, 2020 WL 4705285, at *4 (D. Colo. Aug. 13, 2020) (discussing the federal correctional facility with the largest number of COVID-19 infections of all federal facilities in the country, and describing the facility’s efforts “implementing mass testing of all inmates and staff, checking inmates’ temperature twice daily, and providing cloth masks to all inmates” with approval as “sweeping”); Duvall v. Hogan, No. ELH-94-2541, 2020 WL 3402301, at *5, *13 (D. Md. June 19, 2020) (addressing lawsuit brought by pretrial detainees under the Fourteenth Amendment involving a detention facility where 60 detainees and staff members had tested positive and one staff member had died, and describing the

5 According to Google Maps, Mercy Hospital on Truxtun Avenue in Bakersfield is eight minutes away from Mesa Verde. Google Maps, https://www.google.com/maps/dir/Mesa+Verde+ICE+Processing+ Facility,+425+Golden+State+Ave,+Bakersfield,+CA+93301/Mercy+Hospital+Downtown+-+ Bakersfield,+2215+Truxtun+Ave,+Bakersfield,+CA+93301 (last visited Aug. 31, 2020); accord Medrano Decl. ¶ 13. Of the last five detainees sent to the hospital, only one was admitted; the other four detainees were returned to Mesa Verde without being admitted to the hospital, and with prescriptions for the same medications they were already prescribed by Mesa Verde medical staff. Medrano Decl. ¶ 14.

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facility’s efforts, including “creat[ing] a quarantine housing unit for infected detainees” who “are

monitored twice per day by medical staff and remain there for at least 14 days,” as “a reasonable

response to the unforeseen, rapidly evolving COVID-19 pandemic”); Engelund v. Doll, No. 4:20-CV-

00604, 2020 WL 1974389, at *10–11 (M.D. Pa. Apr. 24, 2020) (addressing lawsuit brought by

immigration detainees and holding that conditions of confinement that included daily temperature

checks and screenings for COVID-19 symptoms “do not amount to punishment in violation of the

Constitution” or deliberate indifference); see also Valentine, 956 F.3d at 802 (staying COVID-19

preliminary injunction in prisoner class action where the district court had issued its injunction because

“it wanted to see ‘extra measures’” that “go beyond [the facility’s] and CDC policies” but where

plaintiffs cited no precedent holding that the facility’s and CDC policies were insufficient to satisfy the

Constitution).

Plaintiffs and their experts might prefer a different plan. But as courts in this district and

elsewhere have recognized:

Defendants’ approach may not be the plan that Plaintiffs think best; it may not even be the plan that the Court would choose, if it were sufficiently informed to offer an opinion on the subject. But the Fourteenth Amendment does not afford litigants and courts an avenue for de novo review of the decisions of prison officials.

Gonzalez v. Ahern, No. 19-cv-07423-JSC, 2020 WL 3470089, at *8 (N.D. Cal. June 25, 2020)

(quotation marks and brackets omitted) (addressing COVID-19 claims of plaintiffs, whom the court

assumed to be pretrial detainees, under the objective deliberative-indifference standard and denying

TRO) (quoting Money v. Pritzker, __ F. Supp. 3d __, No. 20-cv-2093, 2020 WL 1820660, at *18 (N.D.

Ill. Apr. 10, 2020)). As the Third Circuit recently held in vacating a TRO issued in an immigration-

detainee COVID-19 lawsuit, “‘mere disagreement’ as to the response to the risk to Petitioners in light of

their medical condition will not support constitutional infringement.” Hope, __ F.3d __, 2020 WL

5001785, at *12. As the Fifth Circuit similarly held in staying a district court’s preliminary injunction in

a COVID-19 prisoner class action, “[a]lthough the district court might do things differently, mere

‘disagreement’ with [the facility’s] medical decisions does not establish deliberate indifference.”

Valentine, 956 F.3d at 803. As another court similarly explained in denying a motion for a TRO and

preliminary injunction challenging cohorting of prisoners who tested positive for COVID-19, including

DEFS.’ RESP. TO COURT’S AUGUST 21, 2020 ORDER

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the medical care they provided received:
[T]he existence of an alternative plan — even a better plan — is not evidence that the challenged plan is unconstitutional or illustrative of deliberate indifference. Whether the Plaintiffs’ proffered alternative plan . . . is feasible and better than Defendants’ plan is not the inquiry. Plaintiffs must offer evidence that the challenged plan is unconstitutional, and they have not done so.
Gumns v. Edwards, No. 20-231-SDD-RLB, 2020 WL 2510248, at *15 (M.D. La. May 15, 2020).
CONCLUSION Plaintiffs have not shown that the medical care at Mesa Verde is constitutionally deficient, let
alone made the required clear showing that the law and facts clearly favor them such that they are
entitled to a mandatory injunction. Defendants thus respectfully submit that no further Court order is
warranted.
If the Court were to enter a further order, Defendants respectfully request that the Court state
specifically in objective terms what the constitutional requirements are for treating COVID-19 patients.
For example, if the Court were to determine that twice-daily temperature and vital-sign checks are constitutionally insufficient,6 Defendants respectfully request that the Court state specifically in
objective terms exactly what the constitutional requirements are and what Defendants must do to meet
those requirements. Cf. Fed. R. Civ. P. 65(d). Defendants further respectfully submit that any order must
be “narrowly tailored” to constitutional requirements and that an order directing Defendants to go beyond constitutional requirements would be inappropriate.7 Plaintiffs’ requested order — an order for
“Defendants to bring their care up to acceptable standards” or otherwise to release additional detainees
— is too vague to satisfy the requirements of Rule 65(d)(1) and would leave Defendants unclear as to
how to comply. Cf. Hope, __ F.3d __, 2020 WL 5001785, at *5 (vacating TRO issued in immigration-

6 But see Chunn, __ F. Supp. 3d __, 2020 WL 3055669, at *15–16; Billings, 2020 WL 4705285, at *4; Duvall, 2020 WL 3402301, at *5, *13; Engelund, 2020 WL1974389, at *10–11.

7 Cf. Valentine, 956 F.3d at 802 (staying COVID-19 preliminary injunction where plaintiffs cited no precedent that facility’s policies were constitutionally deficient); Stormans, 586 F.3d at 1140–41 (vacating as “overbroad” an injunction where district court “failed to tailor the injunction to remedy the specific harm alleged by the [plaintiffs]”); see also Gonzalez, 2020 WL 3470089, at *8 (COVID-19 medical-care claim, even under “the more stringent objective deliberative indifference standard,” “does not afford litigants and courts an avenue for de novo review of the decisions of prison officials”). Defendants maintain that the current medical care practices and procedures at Mesa Verde satisfy all constitutional requirements.

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detainee COVID-19 lawsuit that required the government impose “reasonable” terms of supervision and comply with “guidance,” as being vague and violating Rule 65(d)); see also, e.g., Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020, 1048 (9th Cir. 2013) (vacating injunction prohibiting copyright defendant from targeting a user base “generally understood” to be engaging in infringement, because “[h]ow is one to determine what is ‘generally understood’ — whose knowledge matters, and how widespread must the understanding be? . . . . Unless it can be rewritten to comply with the requirements of Rule 65(d) for fair notice through adequate specificity and detail, [that requirement] must be excised.”).

DATED: August 31, 2020

Respectfully submitted,
DAVID L. ANDERSON United States Attorney
s/Shiwon Choe SHIWON CHOE Assistant United States Attorney
Attorneys for Federal Defendants

BURKE,WILLIAMS & SORENSEN, LLP
s/Susan E. Coleman* SUSAN E. COLEMAN
Attorneys for GEO Defendants

* In compliance with Civil Local Rule 5-1(i)(3), the filer attests that all signatories have concurred in the filing of this document.

DEFS.’ RESP. TO COURT’S AUGUST 21, 2020 ORDER

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Case 3:20-cv-02731-VC Document 645-1 Filed 08/31/20 Page 1 of 7
MEDICAL COVID-19 RESPONSE PLAN – MESA VERDE
Providing excellent health care services to our detainees is of paramount importance to our company. Our ability to properly and effectively identify patients who are at highest risk for developing serious complications due to coronavirus remains a top priority in our patients well-being.
To accomplish this, this we implement the following actions based on the guidance offered by the CDC:
At intake into the facility, all detainees go through a thorough and complete evaluation of their medical history as well as a review of any ongoing signs and symptoms of an illness and medications they have been prescribed.
Once a high risk detainee is identified, such as those with diabetes, cancer, asthma, heart disease, chronic kidney disease, HIV, obesity, liver disease, COPD, they undergo a complete physical examination and are placed in the appropriate chronic care clinic for timely follow-up appointments.
Treatments for their conditions are initiated and /or continued such as dialysis for those with kidney failure, chemotherapy or radiation therapy for cancer, lab analysis for diabetics and those with liver disease, HIV medications and pulmonary hygiene for those with asthma or chronic obstructive lung disease (COPD).
The detainees are also educated, in their language, for better understanding their underlying illnesses.
Or pharmaceutical vendor makes sure that there are adequate supplies of medication in case of the occurrence of an emergent situation, such as a natural disaster.
Additional details are provided below.

Case 3:20-cv-02731-VC Document 645-1 Filed 08/31/20 Page 2 of 7
Before Infection
High Risk Non-Positive Patients:
 Adhere to CDC guidelines (https://www.cdc.gov/coronavirus/2019-ncov/dailylife-coping/shared-housing/index.html) for high risk patients based on CDC’s recommendations for high risk patients in congregate housing to prevent COVID-19.
 Decrease in population has occurred to allow for appropriate social distancing to continue.
 Social distance when possible  Masks have been issued to all detainees to prevent the spread when other
social distancing measures are difficult to maintain.  Enhanced cleaning throughout the facility (refer to Operations).  Keep up-to-date lists of medical conditions and medications.  Ensure adequate stock of necessary medications on hand.  Educate detainees regarding serious and concerning symptoms and how
to seek immediate help if needed.  Non-essential visitors/volunteers will be limited or avoided.  Staff will limit entry into living quarters unless it is necessary.  Isolate sick or positive cases of COVID-19 away from those not infected.  In addition to access to the sick call request process noted below, a nurse
will make rounds on a daily basis to high risk patients who have CDC listed preexisting conditions monitoring for elevated temperature and symptoms.  Any concerning clinical findings will be immediately addressed by an onsite or on-call provider 24/7.

Case 3:20-cv-02731-VC Document 645-1 Filed 08/31/20 Page 3 of 7
Before Infection
Access to Care and Sick Call Process:  All detainees are provided a copy of the access to care memo at intake and it is posted in all the housing units in English and Spanish. The access to care memo includes information on how to submit a sick call, sick call triage, sick call scheduling process, provider schedules, pill call schedules, insulin schedule, medication re-fill process, emergency care "code blue", mental health care, dental care and the medical grievance process.
o Sick call policy:  Sick calls are collected at midnight every night and triaged.  Sick calls are scheduled to be seen within 24 hours for urgent matters. Emergent matters are seen immediately.
 Providers are advised of any positive symptom screens and see detainees accordingly.
 Nursing protocols are in place and can be utilized to address any positive symptom screens as well.
 CDC posters are posted throughout the facility and in each housing unit in both English and Spanish regarding COVID-19, hand hygiene. CDC hand hygiene and “Cover Your Cough” are in the intake education packet routinely, even prior to COVID.
 A detainee will be referred to a provider any time there are concerns regarding a detainee’s health status. A provider evaluation consists of a typical office visit in which the underlying issue is addressed and treated if necessary.
 Treatment for moderate illness is very vast and depends on the presenting issue. This would be at provider discretion based on the presentation of the patient.

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Post Infection
Detainees who have tested positive for COVID-19 will be provided written or verbal communication in their respective language via use of a medical translator or the language line translation service regarding the monitoring and management of COVID19 symptoms as well as how to request care should symptoms arise or worsen. Wellpath response goes above and beyond CDC criteria.

CDC treatment guidelines for COVID-19

Asymptomatic or

Presymptomatic Infection

• People who test positive for
SARS-CoV-2 by molecular

diagnostic or antigen testing

(see Testing for SARS-CoV-2)

and who are asymptomatic

should self- isolate at home and

“take care of yourself” with rest

and hydration.

•

If they remain asymptomatic,

they can discontinue isolation 10 days after the date of their

first positive SARS-CoV-2 test.
• Individuals who become
symptomatic should contact
their health care provider for
further guidance.
• Current CDC
recommendations for

individuals who develop symptoms are to self- isolate

for at least 10 days from the

onset of their symptoms and

until they have no fever and

improvement in respiratory

symptoms for at least 24

hours.

Wellpath Medical response/treatment
• Twice daily vital signs monitoring
o Blood Pressure o Pulse o Oxygen Saturation o Respirations o Temperature
• Twice daily symptom and Mental
health screening.
• M-F medical provider review of
vitals/symptoms screening forms to screen for detainees requiring an urgent same day visit.
• M-F medical provider walk through. • M-F medical provider sick
call appointments/routine appointments/ follow up on those with symptoms.
• 24/7 nursing on-site • 24/7 on-call providers • Sick call • Emergency response- “code blue”
o All staff are trained in CPR/AED
o 4-minute response

Case 3:20-cv-02731-VC Document 645-1 Filed 08/31/20 Page 5 of 7
Post Infection

CDC treatment guidelines for COVID-19

Wellpath Medical response/treatment

Mild Illness
 Patients may have mild illness defined by a variety of signs
and symptoms (e.g., fever, cough, sore throat, malaise, headache, muscle pain) without shortness of breath, dyspnea on exertion, or abnormal imaging. Most mildly ill patients can manage themselves with OTC medication or at home through telemedicine or remote visits.
 All patients with symptomatic COVID-19 and risk factors for severe disease should be closely monitored. In some patients, the clinical course may rapidly progress.
 No specific laboratory evaluations are indicated in otherwise healthy patients with mild COVID-19 disease.

• Twice daily vital signs monitoring
o Blood Pressure
o Pulse o Oxygen Saturation o Respirations
o Temperature
• Twice daily symptom and Mental
health screening.
• M-F medical provider review of
vitals/symptoms screening forms
to screen for detainees requiring
an urgent same day visit.
• M-F medical provider walk through. • M-F medical provider sick call
appointments/routine
appointments/ follow up on
those with symptoms.
• 24/7 nursing on-site • 24/7 on-call providers • Sick call • Emergency response- “code blue”
o All staff are trained in CPR/AED
o 4-minute response

Case 3:20-cv-02731-VC Document 645-1 Filed 08/31/20 Page 6 of 7

Post Infection

CDC treatment guidelines for COVID-19
Moderate Illness
• Moderate COVID-19 illness is
defined as evidence of lower respiratory disease by clinical assessment or imaging with SpO2 94% on room air at sea level. Given that pulmonary disease can rapidly progress in patients with COVID-19, close monitoring of patients with moderate disease is recommended.
• If bacterial pneumonia or
sepsis is strongly suspected, administer empiric antibiotic treatment for communityacquired pneumonia, reevaluate daily, and if there is no evidence of bacterial infection, de-escalate or stop antibiotics.

Wellpath Medical response/treatment
• Prepare detainee for emergent evaluation by a nurse or provider.
• Follow nursing practice
protocols or provider orders and implement immediate interventions as indicated.
• Refer detainee to Emergency
room for further evaluation and treatment if on- site interventions are not successful.

Case 3:20-cv-02731-VC Document 645-1 Filed 08/31/20 Page 7 of 7
Criteria for hospital send-out
 Severe dyspnea (dyspnea at rest, and interfering with the ability to speak in complete sentences).
 Oxygen saturation on room air of 90 percent, regardless of severity of dyspnea.  Concerning alterations in mentation (eg, confusion, change in behavior,
difficulty in rousing) or other signs and symptoms of hypoperfusion or hypoxia (eg, falls, hypotension, cyanosis, anuria, chest pain suggestive of acute coronary syndrome)
This list is not all-inclusive and a patient may be sent out emergently basely solely upon provider discretion.
Recovery
Patient shall be deemed recovered with the meet IHSC and CDC criteria per below (note that a negative test is NOT required unless severely immunocompromised).
Symptomatic Patients: I. At least 10 days have passed since symptom onset and; II. At least 24 hours have passed since resolution of fever without the use of feverreducing medications and; III. Other symptoms have improved.
Asymptomatic Patients: Detainees infected with SARS-CoV-2 (positive test result) who never develop COVID-19 symptoms may discontinue isolation and other precautions 10 days after the date of their first positive RT-PCR test for SARS-CoV-2 RNA (so long as they remain afebrile and asymptomatic). Again, a negative test is NOT required unless severely immunocompromised.
Ongoing Care: Detainees will continue to have the same access to care and sick call process outlined above should any unexpected complications occur. High risk patients will continue to be monitored by a medical provider at an appropriate interval deemed appropriate by the medical provider.

Case 3:20-cv-02731-VC Document 645-2 Filed 08/31/20 Page 1 of 22

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BURKE, WILLIAMS & SORENSEN, LLP
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Susan E. Coleman (SBN 171832) E-mail: scoleman@bwslaw.com BURKE, WILLIAMS & SORENSEN, LLP 444 South Flower Street, Suite 2400 Los Angeles, CA 90071-2953 Tel: 213.236.0600 Fax: 213.236.2700 Attorneys for Respondents-Defendants THE GEO GROUP, INC. (Sued herein as GEO GROUP, INC.) and NATHAN ALLEN

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUIZ TOVAR, LAWRENCE MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,
Petitioners-Plaintiffs, v. DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,
Respondents-Defendants.

Case No. 3:20-cv-02731-VC DECLARATION OF RICHARD MEDRANO, M.D., REGARDING MEDICAL CARE FOR COVID+ PATIENTS AT MESA VERDE Judge: Hon. Vince Chhabria

I, RICHARD MEDRANO, M.D. declare as follows:

1. I am the Regional Medical Director for Wellpath, overseeing facilities

in the area including Mesa Verde and Adelanto ICE Detention Facilities. My role

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is to oversee the clinical care provided within the region and to provide guidance. I am often on-call and/or serve as a backup Physician for Mesa Verde when needed. I visit Mesa Verde in person at least every two months and more if needed. I am in contact with the medical leadership there multiple times per week and always available to them. In 2016, I briefly filled in at Mesa Verde in the capacity of a Physician when they were between physicians, and I am cleared and available to fill in again when and if I am needed.
2. I previously worked for Correct Care Solutions beginning in 2015, before it combined with CMGC to form Wellpath. I went to medical school at the University of Southern California, Keck School of Medicine, and graduated in 2006. Thereafter, I did a 3 year combined internship/residency in Family Medicine at Kaiser Los Angeles Medical Center. I am a licensed Physician in the State of California. I have personal knowledge of the statements herein, and if called upon to do so, I could and would testify competently thereto.
3. I am familiar with the CDC guidelines regarding COVID-19 symptoms, ways to minimize infection, and recommended protocol for detention facilities. I am also familiar with IHSC guidelines, which govern ICE facilities. We continue to implement IHSC guidelines as they evolve for care of COVID patients and prevention of the spread of infection, including the August 2020 IHCS recommendations1. The medical staff is required to follow both CDC and IHSC guidelines, and we often exceed these guidelines. All medical staff is required to wear PPE when interacting with detainees and/or in close contact with other staff.
4. Based on my supervision, observations, and experience working for CCS and now Wellpath at Mesa Verde Detention Facility, it is my informed professional opinion that the current standard of care at Mesa Verde for COVID-19 positive patients exceeds the standard of community care in the United States.

1 Attached as Exhibit A is a true and correct copy of the August 2020 IHSC recommendations (v. 12), which we follow at Mesa Verde.

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Testing, care, and monitoring are also more readily available and accessible at Mesa Verde than in the community.
5. Even with COVID-19 infections on the rise in many communities, and mortality rates for this novel virus, it has been my experience and observation that it still takes time to obtain appointments for a COVID test (sometimes 1-2 weeks unless symptoms are severe) and the results can take as long as 7-10 days. Same day appointments are rare outside the correctional environment, and same day results for COVID-19 tests are uncommon. People who test positive with COVID19 are told to stay at home and isolate and not go to the hospital unless they have severe symptoms such as chest pain, shortness of breath, or other concerning symptoms. They are not routinely checked by any medical provider in person unless there is a concern.
6. In my medical opinion, detainees who are COVID+ are at no greater risk for complications than if they were in the community, and if anything they are at less risk. There is an increased level of access to care and monitoring provided in the facility, timely intervention for complications is more likely. Further, a person who tests positive in the community is most likely to be isolated at home without any routine checks on their vital signs and oxygen saturation. Most lay persons are also less likely to recognize warning signs than trained medical professionals.
7. In contrast, detainees have 24/7 access to medical care and even asymptomatic COVID-positive patients are seen and evaluated several times a day. Mesa Verde currently has 1 full time physician, 1 full-time Nurse Practitioner, 1 full time Physician’s Assistant2, 4 full-time Registered Nurses, and 7 full-time Licensed Vocational Nurses. From 7:00 a.m. to 8:00 p.m. Mondays – Fridays, there is always a provider on duty at the facility; on weekends and evenings, one medical provider (above the level of R.N.) is always on call. Nurses are staffed on

2 Currently the P.A. is on FMLA leave (non-COVID related), and a second M.D. is covering full-time hours for the P.A. in their absence.

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12-hour shifts. On day shift, there are 2 LVNs on duty and at night there is 1 RN

and 1 LVN on duty.

8. Detainees can submit sick call requests on their Tablets or on paper

forms that are picked up daily in the units by a nurse. A Registered Nurse triages

the sick call slips based on the reported symptoms, with the most severe symptoms

resulting in the shortest turnaround time. Most detainees are seen the same day,

though routine requests (such as refills of Tylenol or fungal powder) may be done

within the following day or two. Sick call slips averaged 600 to 700 per month

before the pandemic, and with the reduced population are now approximately 200-

250 or less per month.

9. Currently, the population at Mesa Verde is greatly reduced

(approximately 101 detainees) but we have not reduced the level of medical

staffing, so there is a greater ratio of medical providers to detainees. Between the

reduction in sick call requests, the reduction in detainees, and the same level of

medical staffing, detainees are seen very quickly for any medical issues.

10. Detainees are educated about their health care access upon intake and

orientation, in both English and Spanish.

11. Bilingual staff are usually available for Spanish translation if needed.

If a translator is needed in another language to communicate with a detainee, they

are escorted to medical and the translation line is called to assist.

12. Custody officers within the housing units often communicate to the

medical clinic the need for care for a particular detainee, and they can either call the

medical unit if it is an emergency (“code blue”) or escort/send the detainee to the

clinic as appropriate. Staff and detainees are both taught to say something if they

are having an emergency or observe one, whether medical or otherwise.

13. Medical staff are expected to use their experience, training, and

discretion in determining whether to send a detainee to the hospital, either via

custody staff or by ambulance if emergent. I advise medical staff to do what is

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correct, medically speaking, and to use their medical judgment. Nurses have

discretion to call 911, but they can also reach a provider on-call if they have any

questions. Mercy Hospital is very close to the Facility, on Truxtun Avenue, so they

can be transported quickly and ambulances respond quickly if needed. I do not feel

it is appropriate to set specific criteria or list the symptoms to trigger specific care

or a certain diagnosis, as it is preferred to use medical judgement in diagnosing and

treating patients. Similarly, it is not appropriate to dictate that detainees should be

sent to the hospital if they have certain symptoms or complaints, as this decision

must be left within the medical providers’ judgment and discretion.

14. Wellpath medical staff errs on the side of caution in sending detainees

out to the hospital. In fact, of the last 5 detainees sent to the hospital, only detainee

Zamora Guzman ended up being admitted. He was retained at the hospital longer

than he would have been simply to wean him off oxygen. We do not administer

continuous oxygen at Mesa Verde, though we have supplies and the training and

capability to provide oxygen in the short term if needed. The other 4 detainees

were returned to the Facility without being admitted, and with prescriptions for the

same medication they were already prescribed by Mesa Verde medical staff.

15. For the B dorm, which contains detainees who have tested positive for

COVID-19, nurses check on each detainee at least twice per day and chart their

findings in the person’s chart. This involves taking the detainee’s temperature,

blood pressure, heart rate, respiration rate, and Oxygen saturation level. The person

is also asked about symptoms and how they feel, and any significant comments are

noted on the patient’s chart.

16. In addition to these twice-daily checks by nurses in B dorm, doctors

also do rounds daily in the B dorm and ask patients how they are doing. They

routinely select a few patients to do a full assessment on, with the selection based

on factors such as if someone is medically vulnerable and of concern to them, or if

someone has been putting in sick call slips or complaining to nurses. A full

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assessment might include an interview, review of systems and symptoms, review of

medications and adjustment as needed, heart and lung examination, etc.

17. The medical plan also adds a rover, which is a nurse who will patrol

the dorms to check on high-risk patients with pre-existing conditions to monitor

them for elevated temperature and other COVID symptoms. Any detainee who

exhibits signs and symptoms of COVID is tested with the Abbott ID Now.

18. Detainees at Mesa Verde have now been provided hard copies of their

individual laboratory results for all of their August 2020 COVID tests. I am

informed and believe that enhanced cleaning protocols have been instituted, with

cleaning done by staff three times per week of B Dorm.

19. Nurses are in B dorm approximately 3 times per 12-hour shift (or 6

times per day). In addition to taking vitals and other measurements, nurses also

conduct pill call, passing out medications to detainees including giving insulin.

Nurses also administer any treatments prescribed to detainees such as

nebulizer/breathing treatments. During these times, detainees often speak with

nurses about any concerns or questions.

20. Now that the population has recently dropped in B dorm, Nurses are in

the dorm providing care approximately 3 hours per day, depending on the day and

what needs to be done, as well as the population in the unit. For the vitals, it takes

about 1-2 hours per day with 2 nurses doing them. Medical providers (above the

level of RN) currently spend 1-3 hours per day in B dorm. This is in addition to

custody staff, on duty 24 hours per day in the dorm.

21. In B dorm, although all of the detainees housed in that dormitory are

positive, only 6-8 persons on average have active symptoms at any one time (such

as headache, malaise or diarrhea). Thus, while medical staff is routinely monitoring

the detainees for changes in condition and development and/or changes of

symptoms, not every detainee in the unit needs medicine for COVID-19 or other

medical intervention. Most will likely recover from COVID via rest and fluids.

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22. Given that the dorms have different COVID-19 statuses, medical staff

is currently following a protocol to make their rounds in a particular order: D and A

dorms first (where everyone tested negative on the last round), then C dorm (with

persons considered recovered from COVID), then lastly B dorm (mostly positive

detainees plus a few detainees who have refused to move). The positive detainees

who are not considered recovered yet per CDC guidelines are all housed in B dorm,

plus 1 person in medical isolation.

23. Medical staff has separate equipment to check vitals for the D and A

dorms, C dorm, and the B dorm, so that it is not shared even though it’s routinely

disinfected after use. Medical staff also wears full PPE – gown gloves, face shield,

bouffant plastic cap to cover hair, shoe covers, and a N95 mask with surgical mask

over it to all pods. This PPE is changed/replaced between dorms to limit cross-

contamination.

24. There currently are 101 detainees at Mesa Verde. 41 of these

detainees have tested negative on each of their repeated tests. One detainee tested

negative on July 30, 2020 and subsequently refused all additional offers of testing.

Of the remaining 59 detainees, 44 detainees are considered recovered from COVID.

Apart from detainee Boar (who tested positive on 8/18/20), all detainees in A and D

dorms have tested negative twice in a row now, suggesting the population is stable.

There have been no fatalities at Mesa Verde from COVID-19, and no one has been

intubated (even at the hospital). While 5 detainees were sent to the hospital with

COVID symptoms, only 1 person was admitted, and he has now been discharged.

25. The criteria to be considered recovered for COVID-19, according to

IHSC and CDC criteria, is as follows: For symptomatic patients: i. At least 10 days

have passed since symptom onset; ii. At least 24 hours have passed since resolution

of fever without the use of fever-reducing medications and; iii. Other symptoms

have improved. For asymptomatic patients: Detainees infected with SARS-CoV-2

(positive test result) who never develop COVID-19 symptoms may discontinue

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3:20-CV-02731-VC DR. MEDRANO DECL. RE MEDICAL CARE AT MESA VERDE

Case 3:20-cv-02731-VC Document 645-2 Filed 08/31/20 Page 8 of 22

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
BURKE, WILLIAMS & SORENSEN, LLP
ATTORNEYS AT LAW LOS ANGELES

isolation and other precautions 10 days after the date of their first positive RT-PCR test for SARS-CoV-2 RNA (so long as they remain afebrile and asymptomatic). Again, a negative test is NOT required unless severely immunocompromised.
26. I rely on my medical judgment, training, experience and discretion about whether to send someone to the hospital and I instruct and expect all Wellpath medical staff at Mesa Verde to do the same. Wellpath medical staff do not need or seek ICE or GEO’s approval before sending someone to the hospital, and if they feel a detainee needs to go to the hospital, they do it forthwith.
I declare under penalty of perjury that the foregoing is true and correct. Executed on August 31, 2020, at Carlsbad, California.
RICHARD MEDRANO, M.D.

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3:20-CV-02731-VC DR. MEDRANO DECL. RE MEDICAL CARE AT MESA VERDE

Case 3:20-cv-02731-VC Document 645-2 Filed 08/31/20 Page 9 of 22
EXHIBIT A

Case 3:20-cv-02731-VC Document 645-2 Filed 08/31/20 Page 10 of 22
Immigration and C ustoms Enforce ment Washington, DC 20536
Interim Reference Sheet on 2019-Novel Coronavirus (COVID-19): Detainee Care Version 12.0, August 7, 2020
Key changes Version 12.0
 Added more detailed information on testing.  Added information on retesting and isolating people who tested positive within the last 3
months.  Revised the intake process to include testing and routine cohorting for all new intakes.  Changed the isolation time period to 10 days to be in line with revised CDC guidance.  Detainee face coverings must not contain metal pieces.
Situation Summary The CDC is closely monitoring a pandemic caused by a novel (new) coronavirus (COVID-19). The situation is evolving and expanding with community transmission occurring in multiple countries including the United States. For the most current information, check the CDC information pages at https://www.cdc.gov/coronavirus/2019- ncov/index.html frequently for updates. CDC interim guidance for health care professionals, including clinical criteria, is available at https://www.cdc.gov/coronavirus/2019- nCoV/hcp/index.html
ICE Health Service Corps Recommendations Note: recommendations will be updated if and as necessary to address the evolving public health situation. Always review current CDC guidance in addition to IHSC documents. See also 2019 Novel Coronavirus Resource Page and CDC Guidance for Dental Settings.
1. During intake medical screening:

Case 3:20-cv-02731-VC Document 645-2 Filed 08/31/20 Page 11 of 22
 Perform pre-intake screening on all new arrivals which includes asking verbal screening questions for COVID-19 symptoms, contact with known cases, and obtain a safe temperature check.
 Detainees should be provided cloth face coverings (unless contraindicated)  This screening should take place before staff and new intakes enter the facility or just
inside the facility, where practicable in order to identify and immediately isolate any detainee with symptoms of COVID-19.  Verbal screening for symptoms of COVID-19 and contact with COVID-19 cases should include the following questions:
i. Today or in the past 24 hours, have you had any of the following symptoms:  Fever, felt feverish, or had chills  Cough  Shortness of breath or difficulty breathing  Fatigue  Muscle or body aches  Headache  Sore throat  Congestion or runny nose  New loss of taste or smell  Nausea or vomiting  Diarrhea
ii. In the past 14 days, have you had close contact with a person known to be infected with (COVID-19) where you were not wearing the recommended PPE?
iii. If the detainee has a fever and/or symptoms consistent with COVID-19, require the individual to wear a facemask, ensure that staff interacting with the symptomatic individual wears recommended PPE and isolate the individual; refer to ISOLATION below.
2. COVID-19 testing during the intake screening process:  All new arrivals require COVID-19 testing within 12 hours of arrival and quarantine for 14 days upon intake screening. Collection timeframe may extend to 24 hours if facility collection logistics require additional time.
Some exceptions to COVID-19 testing and quarantine requirements may include:
Detainees who arrive at a facility to stage for movement to another detention facility and are held at the site for less than 72 hours, do not require this COVID-19 testing.
Asymptomatic detainees with a documented positive COVID-19 test in the last 3 months who have been appropriately cleared with either a test-based, symptom-based, or time-
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Case 3:20-cv-02731-VC Document 645-2 Filed 08/31/20 Page 12 of 22
based strategy, at another detention facility do not require testing or cohorting for 14 days upon intake.
Detainees who test positive within 3 months of their original positive COVID-19 test, cleared isolation precautions, and who remain asymptomatic do not need to be isolated or quarantined due to recurrent or persistent positive results.
Detainees who test positive greater than 3 months after their original positive test result or develop new or worsening symptoms that are consistent with COVID-19 infection should be isolated and evaluated in conjunction with infectious disease experts and the health department for possible re-infection.
 Housing and exposure based cohorting: Cohort all new arrivals, preferably in a cell by themselves, for 14 days after their arrival. An alternate housing option may include housing detainees arriving within 48 hours of each other together for the 14day cohorting period, as their security level permits. If new arrivals are added to a cohort group, the 14 day cohort period is restarted.
 Cohort detainees who refuse testing for 14 days and monitor for symptoms consistent with COVID-19. Document the refusal. Staff may offer the COVID-19 test again during their cohort period in the event the detainee reconsiders testing. If the detainee is asymptomatic after 14 days, staff may release the detainee to general population.
 A field office may choose to house new arrival detainees in a specific detention facility to best manage available bed space for single cell housing during the cohort period. In such a situation, a detainee who has been cleared to be released from cohort may be transferred from the cohorting/testing facility to another nearby facility for longer term housing and is not required to undergo cohorting and testing again upon arrival at the new facility as long as the detainee was never placed in general population at the cohorting/testing facility.
 Isolate COVID-19 positive symptomatic detainees with other positive symptomatic detainees, and isolate COVID-19 negative symptomatic individuals with other COVID-19 negative symptomatic individuals.
 Avoid mixing individuals quarantined due to exposure to someone with COVID-19 with individuals undergoing routine intake quarantine.
 Utilize all appropriate administrative, engineering, or PPE controls as needed to minimize potential person-to-person spread.
 Healthcare staff should evaluate persons with COVID-19 symptoms and those who are close contacts of someone with COVID-19 in a separate room, with the door closed if possible, while earing recommended PPE and ensuring that the individual being evaluated is wearing a cloth face covering.
 Testing should not be used to release detainees from exposure based cohorting before completion of the most recent incubation period.
 Educate all detainees to include the importance of hand washing and hand hygiene, covering coughs with the elbow instead of with hands, and requesting sick call if they
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Case 3:20-cv-02731-VC Document 645-2 Filed 08/31/20 Page 13 of 22
feel ill. Illness Prevention and Patient Education resources in multiple languages are available on the 2019 Novel Coronavirus Resource Page.
3. ENCOUNTER. During sick call, intake, health assessment, or other clinical encounter in which a detainee presents with or complains of fever and/or symptoms of COVID-19 infection, or is observed with signs of fever and/or symptoms of COVID-19 infection: a. Require the individual to wear a cloth face covering (as much as possible, use cloth face coverings in order to reserve surgical masks for situations requiring PPE). Anyone who has trouble breathing, or is unconscious, incapacitated or otherwise unable to remove the mask without assistance should not wear a cloth face covering. b. Face coverings for detainees must not have metal pieces built into the mask (for example, the nose bridge). Detainees should either be issued a cloth face mask or any metal pieces must be removed before distribution. c. Ensure that staff who have direct contact with the symptomatic individual wear recommended PPE. d. Place the individual under medical isolation and refer to healthcare staff for further evaluation.  Medical isolation is private medical housing room, ideally in an airborne infection isolation room if available. If no single occupancy medical housing unit room is available, placement in other areas of the facility may be utilized to house the ill detainee separately from the general detention population e. During medical evaluation the provider: i. Should assess whether the detainee is at increased risk for severe illness from COVID-19 ii. Will determine the appropriate monitoring care plan based on the detainee’s signs and symptoms. iii. Is strongly encouraged to test for other causes of respiratory illness, including infections such as influenza. However, presence of another illness such as influenza does not rule out COVID-19. iv. Staff evaluating and providing care for individuals with confirmed or suspected COVID-19 should follow the CDC Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19) and monitor the guidance website regularly for updates to these recommendations. v. Healthcare staff should evaluate persons with COVID-19 symptoms and those who are close contacts of someone with COVID-19 in a separate room, with the door closed if possible, while wearing recommended PPE and ensuring that the individual being evaluated is wearing a cloth face covering.
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Case 3:20-cv-02731-VC Document 645-2 Filed 08/31/20 Page 14 of 22
vi. Perform COVID-19 LabCorp RT-PCR testing (see specimen collection and testing information below)
vii. Educate detainees on symptoms of COVID-19 and to report any new or worsening symptoms to medical staff at sick call or to the custody officer i. Educate detainees to include the importance of hand washing and hand hygiene, covering coughs with the elbow instead of with hands, and requesting sick call if they feel ill. ii. Illness Prevention and Patient Education resources in multiple languages are available on the 2019 Novel Coronavirus Resource Page
f. The detainee will receive at minimum daily sick call, daily vital signs to include pulse oximetry for the duration of isolation/quarantine. (refer to the Clinical Services Reference Sheet for more details on clinical management) i. Consider more frequent vital sign collection if the patient is medically vulnerable (age or comorbidities) and/or is complaining of lower tract symptoms (cough, shortness of breath or chest pain). If oxygen saturation is below 95% on room air, consult with your CD or designee for emergency department referral. ii. Patients with COVID-19 may have symptoms and even complications after the acute illness, including thromboembolic phenomena; evaluate patients with a history of recent COVID-19 infection (the past 30 days) with close attention to their distal extremities, heart and lung examination. Promptly seek consultation with your CD, RCD and/or Infectious Disease Program as necessary. iii. Use the eCW templates (ACUTE: COVID-19 Medical Provider Template or ACUTE: Nurse COVID-19 Template) to help guide and optimally document clinical observations and care
g. If the detainee has underlying illness or is acutely ill, or symptoms do not resolve, consult with the Regional Clinical Director, and/or Infectious Disease program.
h. If the detainee is referred to a local hospital, call the hospital in advance to notify of the recent relevant travel history and respiratory symptoms and to coordinate how manage the detainee safely.
i. Promptly notify the facility’s staff responsible for infection prevention and control (e.g., in IHSC facilities, notify the Infection Prevention Officer, or the Facility Healthcare Program Manager (if the facility does not have an Infection Prevention Officer position); if the Infection Prevention Officer or Facility Healthcare Program Manager is not available, IHSC staff should notify the Infection Prevention Group at #IHSC PHSP IPO@ice.dhs.gov.
j. Facilities without IHSC medical staffing should notify their assigned Field Medical Coordinator.
k. IHSC Infection Prevention Officers, Facility Healthcare Program Managers, Field Medical Coordinators, or designees should notify the Regional Infection Prevention Supervisory Nurse immediately.
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Case 3:20-cv-02731-VC Document 645-2 Filed 08/31/20 Page 15 of 22
l. Detainees isolated for respiratory illness and who have epidemiologic risk for COVID-19 exposure should wear a cloth face covering when outside of the isolation room.
m. The duration of the contagious period for COVID-19 is still uncertain. n. A person with COVID-19 is thought to be contagious starting 48 hours before symptom
onset o. If the detainee tests negative for COVID-19 and fever and/or symptoms persist, consult
with the Regional Clinical Director and/or Infectious Disease Program p. Educate detainees to include the importance of hand washing and hand hygiene, covering
coughs with the elbow instead of with hands, requesting sick call if they feel ill, and social distancing to maintain 6 feet (2 meters) between individuals when possible. q. Illness Prevention and Patient Education resources in multiple languages are available on the 2019 Novel Coronavirus Resource Page.
4. CRITERIA FOR DISCONTINUING ISOLATION  Detainees with COVID-19 (positive test result) who reported symptoms consistent with COVID-19 may discontinue isolation under the following conditions: i. At least 10 days have passed since symptom onset and; ii. At least 24 hours have passed since resolution of fever without the use of fever-reducing medications and; iii. Other symptoms have improved.  A limited number of persons with severe illness may produce replication-competent virus beyond 10 days, that may warrant extending duration of isolation for up to 20 days after symptom onset. Consider consultation with infection control experts. See Discontinuation of Transmission-Based Precautions and Disposition of Patients with COVID-19 in Healthcare Settings (CDC Interim Guidance). Such patients are generally considered to have required hospitalization.  Detainees infected with SARS-CoV-2 (positive test result) who never develop COVID-19 symptoms may discontinue isolation and other precautions 10 days after the date of their first positive RT-PCR test for SARS-CoV-2 RNA.  RT-PCR testing for detection of SARS-CoV-2 RNA for discontinuing isolation could be considered for detainees who are severely immunocompromised, in consultation with infectious disease experts. For all others, a test-based strategy is no longer recommended except to discontinue isolation or other precautions earlier than would occur under the symptom-based strategy outlined above.  The test-based strategy for severely compromised detainees requires negative results using RT-PCR for detection of SARS-CoV-2 RNA under an FDA Emergency Use Authorization (EUA) for COVID-19 from at least two consecutive respiratory specimens collected ≥24 hours apart (total of two negative specimens) (see CDC
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Case 3:20-cv-02731-VC Document 645-2 Filed 08/31/20 Page 16 of 22
Interim Guidelines for Collecting, Handling, and Testing Clinical Specimens from Persons for Coronavirus Disease 2019).  All test results should be final before isolation is ended.  In the event detainees are being considered for transfer or release during a period of medical isolation or medical hold, see #7 below for requirements.
5. SPECIMEN COLLECTION AND TESTING for COVID-19  Only molecular assays for detection of SARS-CoV-2 with an FDA EUA should be used for diagnosis and clinical decisions (laboratory-based, and point-of-care molecular tests are acceptable).  Laboratory testing for COVID-19 is available through commercial laboratories including LabCorp and through local and/or state health departments.  Point-of-care testing using the Abbott ID NOW is currently used for removal testing  Testing is recommended for all detainees with signs or symptoms of COVID-19  Testing is recommended for all close contacts of a detainee or staff member who tested positive for COVID-19  It is recommended that the facility work with their local health department to determine if broad based testing is indicated for the facility if a staff member or detainee tests positive for COVID-19  All new intakes will receive testing prior to release to general population  For laboratory-based tests the following samples are acceptable: i. Nasopharyngeal ii. Oropharyngeal iii. Nasal mid-turbinate (supervised self-collected or collected by a healthcare professional) iv. Anterior nares specimen (self-collected or collected by a healthcare professional v. Nasopharyngeal wash/aspirate vi. Nasal wash or aspirate vii. Sputum sample (non-induced)  Laboratory-based samples should be in viral transport medium (VTM)/saline and stored frozen at -20° C (preferred). Refrigerated specimens acceptable (if received for testing within 72 hours of collection). Room temperature swabs are acceptable (if received within 24 hours of collection).  LabCorp testing for removals is required by certain countries. LabCorp test results are good for 10 days after testing  LabCorp ordering codes are 2019 Novel Coronavirus (COVID-19), NAA; TEST: 139900.  Abbott ID NOW testing (FDA instructions for use)  Acceptable specimens include:
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Case 3:20-cv-02731-VC Document 645-2 Filed 08/31/20 Page 17 of 22
i. Throat swab (for optimal test performance use the swabs provided in the test kit)  Collect patient specimen by swabbing the posterior pharynx, tonsils and other inflamed areas. Avoid touching the tongue, cheeks and teeth with the swab.
ii. Nasal swab (for optimal test performance use the swabs provided in the test kit)  To collect a nasal swab sample, carefully insert the swab into the nostril exhibiting the most visible drainage, or the nostril that is most congested if drainage is not visible. Using gentle rotation, push the swab until resistance is met at the level of the turbinate (less than one inch into the nostril). Rotate the swab several times against the nasal wall then slowly remove from the nostril. Using the same swab, repeat sample collection in the other nostril.
iii. Nasopharyngeal swab (use sterile rayon, foam, polyester or flocked flexible-shaft NP swabs)  To collect a nasopharyngeal swab sample, carefully insert the swab into the nostril exhibiting the most visible drainage, or the nostril that is most congested if drainage is not visible. Pass the swab directly backwards without tipping the swab head up or down. The nasal passage runs parallel to the floor, not parallel to the bridge of the nose. Using gentle rotation, insert the swab into the anterior nares parallel to the palate advancing the swab into the nasopharynx, leave in place for a few seconds, and then slowly rotate the swab as it is being withdrawn.
iv. Used for removal to countries requesting testing and not requiring LabCorp tests prior to removal
v. Abbott ID NOW samples should NOT be stored in VTM or saline after collection
vi. The specimen can be stored in the original package or in a tightly capped conical tube at room temperature for less than 2 hours prior to testing
vii. The specimen can be stored in the original package or in a tightly capped conical tube in the refrigerator (2-8° C) for less than 24 hours prior to testing.
viii. Result must be documented on the transfer summary ix. Detainees with inconclusive results can be tested an additional 1 time with the Abbott ID NOW machine; repeat inconclusive results require the detainee be tested with a laboratory-based RT-PCR test
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Case 3:20-cv-02731-VC Document 645-2 Filed 08/31/20 Page 18 of 22
x. Detainees who previously tested positive and cleared isolation precautions using the symptom-based criteria, within the last 3 months DO NOT need to be tested with Abbott ID NOW prior to deportation
 See Specimen Collection instructions on the 2019 Novel Coronavirus Resource Page.
6. Recommendations to the Field Office Director or Designee and the Facility Administrator or Warden for routine intake cohorting a. Cohort all new arrivals, preferably in a cell by themselves, for 14 days after arrival. An alternate housing option may include housing detainees who arrive within 48 hours of each other together for the 14-day cohorting period, as their security level permits. (SEPARATELY from other individuals who are cohorted due to contact with a COVID-19 case). b. Cohort detainees who refuse testing for 14 days and monitor for symptoms consistent with COVID-19. Document the refusal. Staff may offer the COVID-19 test again during their cohort period in the event the detainee reconsiders testing. If the detainee is asymptomatic after 14 days, staff may release the detainee to general population. c. If any person in the routine intake cohort does develop fever or symptoms, the cohort status would be changed to an exposure-based cohort d. Routine intake cohorts do not require tracking or reporting
7. Recommendations to the Field Office Director or Designee Regarding Detainee Release and Special Circumstance Movement  All requirements on the ERO Checklist for Removals, Releases or Transfers should be met before a detainee is released unless the movement is to facilitate a medicallyor behaviorally necessary placement  Recommend all detainees being released be given the fact sheets Steps to help prevent the spread of COVID-19 if you are sick and Stop the spread of germs.  Recommend the following considerations if decisions are made to release in the U.S. detainees with confirmed or suspected COVID-19 and detainees exposed to a person with confirmed or suspected COVID-19: i. For all detainees that have tested positive for COVID-19 (including detainees that have completed the isolation period) and for afebrile and asymptomatic detainees that must be released before the recommended cohorting period is complete, discuss release of the individual with state or local health department with as much advance notice as possible, preferably at least 24 hours advance notice  Provide the health department with the detainee’s name, intended address, email address, all available telephone numbers, and planned mode of transportation to their intended destination  Coordinate with the health department to facilitate any needed public health actions; examples of public health actions include but are not Page 9 of 13

Case 3:20-cv-02731-VC Document 645-2 Filed 08/31/20 Page 19 of 22
limited to delivering health officer orders and making the detainee available for transportation if arranged by the health department. ii. Facilitate safe transport, continued shelter, and medical care, as part of release planning.  Make direct linkages to community resources to ensure proper medical isolation and access to medical care if needed.  Coordinate with the detainee for a family member or friend to provide transportation  Advise the detainee to avoid public transportation, commercial ride sharing (e.g., Uber, Lyft), and taxis iii. Give the detainee the CDC’s What To Do if You Are Sick fact sheet (see
https://icegov.sharepoint.com/sites/ihsc/phspunit/2019nCoV/PHSPMostCurrentGuidance/patient%20education)  Detainees under isolation or cohort should be permitted to attend other medically necessary appointments with advance coordination with the receiving facility  Detainees under isolation or cohort should not be restricted from movement to facilitate a medically- or behaviorally necessary placement  If a detainee under isolation or cohort must be moved to another facility; the receiving facility must be notified of the isolation or cohort end dates i. Recommend to Field Office Director or designee that detainees that are in isolation, are febrile, symptomatic, have pending test results or that were exposed to a person with confirmed or suspected COVID-19 in the past 14 days NOT BE TRANSFERRED OR TRANSPORTED UNLESS MEDICALLY NECESSARY. ii. See IHSC Interim COVID-19 Risk Assessment on the 2019 Novel Coronavirus Resource Page.  If a detainee is inadvertently removed that is febrile and/or symptomatic, that tests positive for COVID-19, that has a pending test result for COVID-19, or that was exposed to a person with confirmed or suspected COVID-19 in the past 14 days, recommend that the Field Office Director or designee notify the respective consulate so notifications and public health actions can occur.
8. REPORTING  Document any detainee who tests positive for COVID-19 on the Lower Respiratory Illness Tracking Tool. i. Only document tests and results performed using molecular assays for detection of SARS-CoV-2 with an FDA EUA; do not document antibody tests or results that are not approved for diagnosis.  Document exposure-based cohorting through routine IHSC cohort reporting protocols using the Cohort Tracker.  Any employee known to have a positive test result for COVID-19 must be promptly reported to the local or state health department in accordance with local or state Page 10 of 13

Case 3:20-cv-02731-VC Document 645-2 Filed 08/31/20 Page 20 of 22

public health laws and permissible exemptions under the Health Insurance Portability and Accountability Act (HIPAA) requiring notifications to public health departments for conducting investigations and interventions and to avert a serious threat to public health and safety. Reported must include the employee’s name, date of birth, address, phone number, and testing location.

1Close contact is defined as:
a) being within approximately 6 feet (2 meters) of a COVID-19 case for a prolonged period of time; close contact can occur while caring for, living with, visiting, or sharing a healthcare waiting area or room with a COVID-19 case – or – b) having direct contact with infectious secretions of a COVID-19 case (e.g., being coughed on)
If such contact occurs while not wearing recommended personal protective equipment or PPE (e.g., gowns, gloves, NIOSH-certified disposable N95 respirator, eye protection), criteria for PUI consideration are met.

Resources and references  2019 Novel Coronavirus Resource Page on SharePoint  ERO Pandemic Response Requirements (PRR)  Illness Prevention and Patient Education resources in multiple languages are available on SharePoint.

IHSC Official Guidance

Guidance number Guidance name

Type

05-02

Occupational Health Directive

Policy

05-02 G-04 05-02 G-1 05-02 G-2 05-02-G-03

Occupational Health Guide: Workforce Health

Guide

Occupational Health Guide: Bloodborne Potentially Infectious Materials

Pathogens

and

Other

Guide

Occupational Health Guide: Personal Protective Equipment Program

Guide

Occupational Health Guide: Respiratory Protection Program Guide

05-04

Environmental Health Directive

Policy

05-04 G-01

IHSC Environmental Health Guide

Guide

05-06

Infectious Disease Public Health Actions Directive

Policy

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Case 3:20-cv-02731-VC Document 645-2 Filed 08/31/20 Page 21 of 22

Guidance number Guidance name

Type

05-06 G-01 05-06 G-02 05-06 G-03

Infectious Disease Public Health Actions Guide: Contact and Outbreak Investigation Guide

Guide

Infectious Disease Public Health Actions Guide: Management of Detainees Exposed to Infectious

Isolation and Organisms

Guide

Infectious Disease Public Health Actions Guide: Surveillance and Reporting

Guide

 Infection Control: Novel Coronavirus 2019 (COVID-19) | CDC  Information for Healthcare Professionals about Coronavirus (COVID-19)|CDC  Resources for Correctional and Detention Facilities | CDC  Overview of COVID-19 Testing | CDC  CDC COVID-19 What’s New?  People who are at increased risk for COVID-19 | CDC  Clinical Questions about COVID-19: Questions and Answers| CDC  Duration of Isolation and Precautions for Adults with COVID-19| CDC
Points of contact for questions  IHSC Staff: Regional Infection Prevention Supervisory Nurses, PHSP Unit Senior Public Health Analyst, PHSP Unit Chief
 Facilities without IHSC Medical Staffing: Assigned Field Medical Coordinators
 Public health agencies: IHSC InfectionPrevention@ice.dhs.gov

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Case 3:20-cv-02731-VC Document 645-2 Filed 08/31/20 Page 22 of 22
Appendix A: Intake Screening Questions Updated August XX, 2020
1. Have you had fever and/or symptoms consistent with COVID-19 in the past 14 days?  Signs and symptoms include fever, feeling feverish, chills, cough, shortness of breath or difficulty breathing, fatigue, muscle or body ache, headache, sore throat, new loss of taste or smell, congestion or runny nose, nausea or vomiting, and diarrhea  If yes, what date did you first notice symptoms?: mm/dd/yyyy  If yes, isolate in a single room (preferred) if available, implement daily vital signs including oxygen saturation, and refer to a medical provider, add Medical Hold, notify FHPM, IPO, or designee.  See Reducing the Risk of COVID-19 Transmission  Proceed with intake COVID-19 testing  If no, implement intake quarantine; house in single room (preferred) if available, implement daily checks for 14 days after initial intake, add Medical Hold, notify FHPM, IPO, or designee, and proceed with intake COVID-19 testing
2. Does the detainee have any of the High-Risk Conditions?  Yes: Schedule an appointment with a provider within the next 5 days  No: Routine PE-S/PE-C process
Page 13 of 13

 
 Case 3:20-cv-02731-VC Document 658 Filed 09/02/20 Page 1 of 19

WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org SEAN RIORDAN (SBN 255752) sriordan@aclunc.org ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney FRANCISCO UGARTE (SBN 241710) francisco.ugarte@sfgov.orga GENNA ELLIS BEIER (SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (SBN 319071) emilou.maclean@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: 415-553-9319 Fax: 415-553-9810

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUIZ TOVAR, LAWRENCE MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,
Petitioners-Plaintiffs,

CASE NO. 3:20-CV-02731-VC
PLAINTIFFS’ OBJECTIONS TO DEFENDANTS’ WRITTEN PLAN TO IMPROVE MEDICAL ASSISTANCE FOR COVID-POSITIVE DETAINEES AT MESA VERDE

v.

DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,

Respondents-Defendants.

CASE NO. 3:20-CV-02731-VC PLAINTIFFS’ OBJECTIONS TO DEFENDANTS’ WRITTEN PLAN TO IMPROVE MEDICAL ASSISTANCE FOR COVID-POSITIVE DETAINEES AT MESA VERDE

Case 3:20-cv-02731-VC Document 658 Filed 09/02/20 Page 2 of 19

BREE BERNWANGER* (NY SBN 5036397) bbernwanger@lccrsf.org HAYDEN RODARTE (SBN 329432) hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA 131 Steuart St #400 San Francisco, CA 94105 Telephone: (415) 814-7631
JUDAH LAKIN (SBN 307740) judah@lakinwille.com AMALIA WILLE (SBN 293342) amalia@lakinwille.com LAKIN & WILLE LLP 1939 Harrison Street, Suite 420 Oakland, CA 94612 Telephone: (510) 379-9216 Facsimile: (510) 379-9219

MARTIN S. SCHENKER (SBN 109828) mschenker@cooley.com COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111 Telephone: (415) 693-2000 Facsimile: (415) 693-2222
TIMOTHY W. COOK (Mass. BBO# 688688)* tcook@cooley.com FRANCISCO M. UNGER (Mass. BBO# 698807)* funger@cooley.com COOLEY LLP 500 Boylston Street Boston, MA 02116 Telephone: (617) 937-2300 Facsimile: (617) 937-2400
Attorneys for Petitioners-Plaintiffs

JORDAN WELLS (SBN 326491) jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568) spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA 1313 West Eighth Street Los Angeles, CA 90017 Telephone: (213) 977-9500 Facsimile: (213) 977-5297

*Admitted Pro Hac Vice

REDACTED VERSION OF DOCUMENT SUBMITTED PARTIALLY UNDER SEAL

CASE NO. 3:20-CV-02731-VC PLAINTIFFS’ OBJECTIONS TO DEFENDANTS’ WRITTEN PLAN TO IMPROVE MEDICAL ASSISTANCE FOR COVID-POSITIVE DETAINEES AT MESA VERDE

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TABLE OF CONTENTS I. INTRODUCTION .............................................................................................................. 1 II. BACKGROUND ................................................................................................................ 2
A. Defendants Submitted an Outdated, Incomplete Draft Medical Plan for Plaintiffs’ Review. ................................................................................................................... 2
B. Defendants Failed to Meet and Confer, Contrary to the Court’s Order.................. 3 C. Defendants Submitted An Unresponsive Medical Plan in Defense of its Current
Practices. ................................................................................................................. 4 III. PLAINTIFFS’ SPECIFIC OBJECTIONS TO DEFENDANTS’ MEDICAL PLAN ........ 6 IV. DEFENDANTS’ CONTRACT FOR THE PROVISION OF MEDICAL CARE
REQUIRES MORE MEDICAL PLANNING AND PREPAREDNESS BUT INCENTIVIZES LIMITING CARE. ............................................................................... 11 V. CONCLUSION................................................................................................................. 13
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Authorities Blake Ellis & Melanie Hicken, “Please Help Me Before It’s Too Late,” CNN, Jan. 25, 2019,
https://www.cnn.com/interactive/2019/06/us/jail-health-care-ccs-invs/ .................................. 13 DHS Office of Inspector General, “Management Alert - Issues Requiring Action at the Adelanto
ICE Processing Facility in Adelanto, California, September 27, 2018, https://www.oig.dhs.gov/sites/default/files/assets/Mga/2018/oig-18-86-sep18.pdf) ............... 10 Dictionary, Merriam Webster, https://www.merriam-webster.com/dictionary/plan ................................................................. 11 ICE, Progress in Implementing 2011 PBNDS Standards 5 (Jan. 17, 2017), https://www.hsdl.org/?abstract&did=818058 ........................................................................... 12 Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional & Detention Facilities, https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidancecorrectional-detention.html ......................................................................................................... 8
Rules Civ. L.R. 7-9(a)............................................................................................................................... 6 Civ. L.R. 7-9(b)............................................................................................................................... 6
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I. INTRODUCTION Defendants have effectively flouted this Court’s order, ignored its guidance, and refused to engage with Plaintiffs or their experts. On August 21, 2020, this Court ordered Defendants to create a “written plan to improve their system of monitoring, caring for, and responding to medical assistance requests from detainees who have tested positive and who have health conditions that the CDC has identified as creating an elevated risk of complications.” Dkt. 595 at 1. This Court expressed a strong “hope[] and expect[ation]” that the plan could be agreeable to all parties, after meaningful consultation, but permitted Plaintiffs to file objections should there be a dispute. Id. at 1-2. Because Defendants failed to meaningfully engage with Plaintiffs and produced a Medical Plan which is nothing more than an attempted formalization of its inadequate practices and an opposition to an invisible motion, Plaintiffs object. The Medical Plan is too vague even to describe meaningfully the current practice at Mesa Verde, let alone provide for improvements to practices recognized as deficient. Instead, it attempts to dress up the ineffective protocols that have been in place for months that failed to anticipate a readily foreseeable outbreak, prevent its spread, protect those most medically vulnerable, and respond to the dire and growing medical needs of class members. Defendants make no effort to rebut reports of their deficiencies and instead rely on the medical overseer of Mesa Verde who has seemingly never visited the facility since the onset of the COVID-19 pandemic. Rather than heed the Court’s explicit guidance, Defendants have opposed a straw-man injunction that was neither requested nor ordered. Contrary to Defendants’ assertions, Plaintiffs have not sought further injunctive relief on medical care. Instead, they had hoped to work with Defendants, consistent with the Court’s expectation, to reach meaningful change that would
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recognize the time-sensitive need for improvement. Having been rebuffed, and in response to the express instructions of this Court, Plaintiffs outline objections to Defendants’ Medical Plan in the hope that Defendants will incorporate Plaintiffs’ suggestions to obviate the need for further motion practice on medical care at Mesa Verde. However, due to Defendants’ unwillingness to engage in meaningful negotiation, the Court should grant Plaintiffs prompt discovery on the medical care at Mesa Verde to permit Plaintiffs to seek timely injunctive relief if warranted.
II. BACKGROUND A. Defendants Submitted an Outdated, Incomplete Draft Medical Plan for
Plaintiffs’ Review. Prior to last week, Defendants had no written plan to respond to COVID-related medical needs at Mesa Verde. See Bernwanger Dec. ¶ 2, Exh. A. On August 26, 2020, in response to this Court’s Order, Defendants produced three documents constituting a “draft of the medical plan” that was still “awaiting additional input from [ICE Health Service Corps]” (hereinafter “Draft Medical Plan”). Bernwanger Dec. Exhs. B-D. First, Defendants produced GEO guidance from February 28, 2020 concerning COVID-19 management. Id. Exh. B. That guidance was not specific to Mesa Verde and was outdated; for example, it advised staff that “clinical observations” for diagnosing COVID required “a history of recent travel to China (within 14 days).” Id. at 1. Second, Defendants provided a one-page “Brief Summary of CDC’s Recommendations for High-Risk Patients Living in Congregate Housing to Prevent COVID-19.” Id. at Exh. C. This document was also not specific to Mesa Verde and appears written to provide guidance to individuals in custody, not to translate CDC guidance to Facility personnel as a plan would.1 Finally, Defendants provided a three-page comparison document listing “CDC treatment
1 This document is a modification of a document produced by CDC for “Living in Shared Housing,” such as “apartments, condominiums, student or faculty housing,” etc. It is not clear if or how this document was used at Mesa Verde.
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guidelines for COVID-19” alongside “Wellpath Medical response/treatment” (hereinafter
“Wellpath Response/Treatment Document”). Defendants sent no further drafts or edits to
Plaintiffs. B. Defendants Failed to Meet and Confer, Contrary to the Court’s Order. After sending Plaintiffs the three documents described above, Defendants refused to
engage in the court-ordered process for developing the plan. Specifically, the Court ordered that Defendants (1) submit a draft plan to class counsel, (2) “confer in detail about the draft,” (3) “give serious consideration” to Plaintiffs’ suggested improvements, and (4) file a final draft of the plan. Dkt. 595 at 2. Defendants’ Medical Plan—which they appear to have spent significantly less energy on than a legal brief and declaration arguing that they do not need a plan—is the product of their refusal to meet the Court’s expectations at every turn.
Defendants never supplemented their initial draft plan with Plaintiffs, despite multiple requests from Plaintiffs to meet and confer as Defendants revised their draft. See Bernwanger Dec. ¶¶ 6-7. Within hours of receiving the Draft Medical Plan, Plaintiffs notified Defendants that the Draft was outdated and generic, failing to comply even with the broadest requirements of the Court’s order. Bernwanger Dec. Exhs. E, F. Compare Id. Exhs. B-D (including policy dated February 2020) with Dkt. 595 (ordering a plan to “improve” care “designed to deal with the current situation at Mesa Verde.”). Although Defendants ultimately added additional documents when they filed their Medical Plan with the Court, Defendants failed to share them with Plaintiffs for consultation or feedback, contrary to the Court’s order.
For example, Defendants decided to include August 2020 IHSC Guidance in support of their plan, but never shared that document with Plaintiffs. See Dkt. 645-2 at 10.2 And although Defendants informed Plaintiffs that they were consulting on the Medical Plan with Wellpath and Dr. Medrano, at no point did Defendants share any proposals from Wellpath or Dr. Medrano, any draft declarations from Dr. Medrano, or offer a chance to engage with Dr. Medrano’s apparent
2 The document was dated August 7, 2020, and thus was readily available when Defendants provided Plaintiffs with their Draft Medical Plan.
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rejection of Plaintiffs’ proposals. For example, although Dr. Medrano apparently disagreed with Plaintiffs’ recommendation, drawn from multiple expert opinions, that an adequate medical plan must provide protocols for consistent identification of COVID-19 symptoms and determining when hospitalization is appropriate, Plaintiffs did not learn of that disagreement until the declaration was filed on the docket. Compare Dkt. 645-2 ¶ 13 (“I do not feel it is appropriate to set specific criteria or list the symptoms to trigger specific care or a certain diagnosis. . . Similarly, it is not appropriate to dictate that detainees should be sent to the hospital if they have certain symptoms or complaints. . .”) with Bernwanger Dec. Exh. F (citing to expert declarations to propose nursing protocols that list COVID-19 symptoms to aid proper diagnosis and that set standards for hospitalization).
Plaintiffs repeatedly informed Defendants that they were available to meet and confer concerning the Medical Plan, but Defendants agreed only to a single phone call. See Bernwanger Dec. ¶¶ 5-7, Exh. E. During that phone call, Defendants’ counsel declined to discuss any of Plaintiffs’ proposals. See Bernwanger Dec. ¶ 5. In sum, Defendants stonewalled Plaintiffs and ignored their attempts to participate in crafting the Medical Plan.
C. Defendants Submitted An Unresponsive Medical Plan in Defense of its Current Practices.
Defendants’ final Medical Plan was only slightly modified from the draft version which
Defendants had previously described as preliminary. Despite its deficiencies, the Wellpath
Response/Treatment Document is incorporated wholesale into Defendants’ final Medical Plan.
Dkt. 645-1 at 4-6. Defendants added five new sections:
(1) a general, aspirational description of their commitment to “providing excellent health care services,” Dkt. 645-1 at 1;
(2) a mislabeled page on “Before Infection: High Risk Non-Positive Patients,” which largely states general affirmations regarding, for example, social distancing, “enhanced cleaning,” population decreases, etc.; the only point relevant to high-risk patients is that “a nurse will make rounds on a daily basis to high risk patients who
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have CDC listed preexisting conditions monitoring for elevated temperature and symptoms.” Dkt. 645-1 at 23;
(3) an expanded section on the “sick call process”, Dkt. 645-1 at 3;
(4) “criteria for hospital sendout”; and
(5) a definition of COVID-19 “recovery” including a vague expectation of “ongoing care” once an individual is deemed “recovered.” Dkt. 645-1 at 7 (“High risk patients will continue to be monitored by a medical provider at an appropriate interval deemed appropriate by the medical provider.”).
In support of their final Medical Plan, Defendants produced a supplemental declaration
from Dr. Richard Medrano, the Regional Director for Wellpath, who “oversee[s] facilities in the
area including Mesa Verde and Adelanto ICE Detention Facilities.” Dkt. 645-2 (Medrano Decl.)
at 1 ¶ 1. Defendants also produced an IHSC guidance document concerning “COVID-19
Detainee Care,” dated August 7, 2020. Dkt. 645-2 at 10 (IHSC Guidance, Exh. A to Medrano
Decl.). Dr. Medrano asserted in his declaration that Wellpath “continue[s] to implement IHSC
guidelines . . . including the August 2020 IHCS [sic] recommendations.” Dkt. 645-2 (Medrano
Decl.) at 2 ¶ 3. In fact, there is no evidence that Defendants are implementing these IHSC
recommendations at Mesa Verde, and there are certain recommendations clearly not being
implemented—and even in conflict with Defendants’ Medical Plan.4
3 This section also cites to apparent “CDC guidelines . . . for high risk patients in congregate housing,” but the citation referenced actually does not address high-risk patients. See Dkt. 645-1 at 2 (citing https://www.cdc.gov/coronavirus/2019-ncov/daily-life-coping/shared-housing/index.html). 4 Even assuming that the IHSC Guidance could stand alone as an operational care plan for Mesa Verde—a notion this Court has rightly rejected (see Dkt. 595 at 1)—many IHSC recommendations are open to discretion and interpretation. See, e.g., Dkt. 645-2 at 14 (instructing that detention centers “[c]onsider more frequent vital sign collection if the patient is medically vulnerable” without offering concrete instruction). Defendants’ Medical Plan also includes plain contradictions of the IHSC Guidance, such as waiting until oxygen saturation dips below 90% to seek hospitalization whereas the IHSC Guidance instructs detention centers to consider hospitalization anywhere below 95%. Compare Dkt. 645-1 at 7 (Medical Plan) with Dkt. 645-2 at 14 (IHSC Guidance). See also CDC, “Discharging COVID-19 Patients,” Aug. 10, 2020, at https://www.cdc.gov/coronavirus/2019-ncov/hcp/dispositionhospitalized-patients.html (defining “severe illness” to include an oxygen saturation level less than 94%). But see Dkt. 591-6 (Keller Dec.) ¶ 57 (class member with oxygen reading of 93% did not have another oxygen reading for eight hours and had “no further action/evaluation . . . until the next day”). Defendants’ practice also conflicts with IHSC recommendations in other concrete ways. For instance, Defendants do not: “[c]ohort all new arrivals, preferably in a cell by themselves, for 14 days after their arrival,” “[c]ohort detainees who refuse testing for 14 days
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*** It is telling that seven months into an unprecedented global pandemic, and one month into a Facility outbreak resulting in multiple class members facing medical emergencies, Defendants only developed a written plan for providing medical care in response to the Court’s order. See Dkt. 591-4 (Greifinger Dec.) ⁋ 33 (Defendants’ failure to establish a detailed plan “to respond to the needs of COVID-infected individuals at Mesa Verde is a striking example” of their “indifference to the obligation to mitigate the risk of COVID transmission….”). Yet, rather than using the time they had to meaningfully engage with Plaintiffs or to draft a professional medical plan to protect those in their care, Defendants chose to devote their time and energy to attack the Court’s order.5 See Dkts. 645, 645-2; see also Dkts. 581, 585 (legal briefs in response to Court’s factual questions regarding medical care).
III. PLAINTIFFS’ SPECIFIC OBJECTIONS TO DEFENDANTS’ MEDICAL PLAN
Plaintiffs object to Defendants’ medical care plan on the following grounds:
First, Defendants’ Medical Plan fails to address key questions raised by the Court. See
Dkt. 595. The Court ordered that, at a minimum, the plan should address “how the defendants
will provide information to detainees (including non-English speaking individuals) about
managing and responding to symptoms, and how the defendants will ensure that they respond
promptly to sick detainees requesting medical assistance.” Id. With regard to responding to the
needs of class members with limited English proficiency, Defendants only provide that “[t]he
and monitor for symptoms consistent with COVID-19,” place symptomatic individuals “under medical isolation,” or ensure that “[a]ll new intakes . . . receive testing prior to release to general population.” See Dkt. 645-2 at 12, 13, 14, 16, 18. The bald assertion that the IHSC recommendations guide decisions at Mesa Verde, or can otherwise be incorporated by reference into an otherwise deficient plan, is false. 5 Although Defendants frame their unsolicited legal brief as an opposition to a future order for injunctive relief, which Plaintiffs have not at this time sought, Defendants appear to actually be challenging the order the Court already issued requiring Defendants to work with Plaintiffs to develop a plan for COVID-related medical care at Mesa Verde. See Dkt. 595. To the extent that Defendants ask the Court to revisit that order, they have improperly moved for reconsideration without seeking leave to do so. See Civ. L.R. 7-9(a) (requiring leave of court to file a motion to reconsider interlocutory order). Nor have Defendants met the standard here. Civ. L.R. 7-9(b).
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detainees are [] educated, in their language, for better understanding their underlying illnesses,”
and that detainees are provided translation assistance at the time of a positive COVID test. Dkt.
645-1 at 1, 4. With regard to prompt response to medical needs, Defendants outline a “sick call
policy” which provides that “urgent matters” may be seen up to 24 hours after they are
identified. Dkt. 645-1 at 3 (sick calls are collected at midnight and then “scheduled to be seen within 24 hours for urgent matters”).6 Defendants do not provide a meaningful description of
how they intend to provide class members with information about managing COVID symptoms,
other than a vague commitment to “educate detainees regarding serious and concerning
symptoms” and a reference to CDC posters about COVID-19. Dkt. 645-1 at pp. 2-3.
Second, Defendants’ Medical Plan confirms their unwillingness to make any changes to
their existing medical care. Indeed, the Plan does not acknowledge any shortfalls in the provision
of medical care, nor does it list any facility-specific steps Defendants will take to address the
delayed and substandard medical care that has endangered class members’ lives. See Dkt. 591-6
at ¶¶ 36, 50, 58, 62 (Keller Decl.). Defendants’ Medical Plan reinforces that Defendants have not
taken seriously either the Court’s order or the deficiencies in medical care elaborated by
Plaintiffs which preceded the Court’s order. See, e.g., Dkts. 591, 591-2, 591-3, 591-4, 591-5,
6 As Plaintiffs previously elaborated, the practice described by Defendants under which known COVID patients are required to fill out “sick call slips” or “kites” as the main mechanism for accessing medical care is “an entirely unsafe and inappropriate practice” and is “dangerous because such patients should be constantly monitored and not have to take the initiative to seek care. Dkt. 591-2 (S. Allen Dec.) ¶¶ 21-23; Dkt. 591-4 (Greifinger Dec.) ¶¶ 7, 2527.) See also Dkt. 591-6 (Keller Dec.) ¶¶ 41-42, 54-56 (“Despite suffering symptoms classic for acute COVID infection, the request was triaged as being ‘routine’ rather than urgent” and the class member was seen two days after the request and, by that time, with symptoms deteriorating so severely that he was sent to the emergency room on the same day); Dkt. 591-3 (Beaty Dec.) ¶¶ 4-9. Further, despite express concerns about the failure to require indorm custody officers to communicate urgently with medical personnel if a class member has a medical issue, Defendants’ Medical Plan entirely ignores the role of in-dorm custody officers and leaves in place the existing policy which leaves it up to the officer’s discretion whether to seek medical care. See Dkt. 591-4 (Greifinger Dec.) ¶¶ 28-30; Dkt. 591-3 (Beaty Dec.) ¶¶ 10-19.
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591-6. The plan to continue the status quo will only result in putting vulnerable class members at the mercy of a medically negligent care plan.
Third, Defendants’ Plan lacks the basic criteria for a plan in response to the pandemic. See Dkt 591-4 at ¶ 18 (Greifinger Decl.) (“COVID-19 presents unique challenges that cannot be met without specialized planning…”). Defendants’ Plan lacks the central elements needed in any meaningful response to the pandemic in a detention setting, including: 1) explicit nursing protocols for class members in different states (i.e. intake quarantine, close contacts, infected and medically vulnerable); 2) explicit protocols for detainees with Limited English Proficiency; 3) protocol for the care of medically vulnerable class members, infected or uninfected with COVID; and 4) protocol for immediate attention to pressing health concerns. See Bernwanger Decl. ¶ 5, Exh. F. While Defendants vaguely refer to “nursing protocols,” as being “in place” to address “positive symptom screens” and “implement immediate interventions,” these supposed protocols were not included, leaving Plaintiffs unable to probe their adequacy. See Dkt. 645-1 at 3, 6. The Medical Plan also lacks critical details, such as the definition of “severe” COVID-19, which goes unmentioned in the entire Plan.
Defendants cling to general CDC and IHSC guidance as a stand-in for operational protocol. But even the CDC acknowledges that its guidance is not intended to serve this purpose. The CDC directs correctional facilities to, i.e., make plans to “disseminate critical information to incarcerated/detained persons” about COVID, and isolate, test, and provide medical care for infected individuals. See Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional & Detention Facilities, available at: https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidancecorrectional-detention.html (“Review existing influenza, all-hazards, and disaster plans, and
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revise for COVID-19. . . Train staff on the facility’s COVID-19 plan.”). Medical and correctional health experts affirm that relying on general guidance does not substitute for on-theground planning. See Dkt. 591-4 at ¶ 18 (Greifinger Decl.) (“It is insufficient to rely on the general guidance from the CDC and the IHSC.”); Dkt. 591-1 at ¶¶ 19-20 (Allen Decl.) (“The fact that no written police specific to Mesa Verde exists reflects a concerning lack of preparation.”). Thus, Defendants’ recitation that they follow generic public health guidance does not assuage concerns that poor facility planning could result in permanent injury or death.
Fourth, Defendants still have neither shared with Plaintiffs nor filed publicly a number of documents that appear integral to fully understanding their Plan. The Medical Plan itself makes several references to separate documents or policies related to ostensible COVID-19 precautions and care, including “Operations” related to “enhanced cleaning” in the facility (Dkt. 645-1 at 2), “nursing protocols” for sick calls (Id. at 3), “nursing practice protocols” for moderately ill patients (Id. at 6), information on “the monitoring and management of COVID-19 symptoms” (Id. at 4, mentioning “written or verbal communication”), and information on “how to request care should symptoms arise or worsen” (Id. at 4, also mentioning that information may be “written or verbal”).7 Defendants neither shared these documents with Plaintiffs nor filed them with the Court. The Court should order Defendants to provide the missing documents.
Fifth, the declaration of Dr. Richard Medrano, Wellpath’s Regional Medical Director, does not support the Medical Plan. As a threshold issue, Dr. Medrano does not practice medicine at Mesa Verde. See Dkt. 645-2 ¶ 1 (“I visit Mesa Verde at least every two months. . . In 2016, I briefly filled in at Mesa Verde. . .”); see also Dkt. 591 n.1 (Dr. Medrano’s professional web
7 The Medical Plan also refers to a number of documents that may have bearing on their COVID-19 response which Defendants did not produce to Plaintiffs or file with the Court, including a medical history evaluation (id. at 1), a review of symptoms (id.), a process for identification of “high risk” detainees (id. at 2), an “access to care memo” provided to newly-arrived detainees (id. at 4), and a “code blue” process for emergencies (id. at 4, 5).
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presence mentions only practice outside Mesa Verde). Dr. Medrano states that he is “often oncall” or a “backup Physician for Mesa Verde.” See Dkt. 645-2 ¶ 1. But the declaration does not indicate when he last visited, whether his scheduled visits continued into the pandemic, when he last was called into Mesa Verde as an on-call or backup physician, or indeed whether, since 2016, he has ever been called into Mesa Verde as an on-call or backup physician. Dr. Medrano can state with no specificity the capacity in which he has been involved in the provision of medical care at Mesa Verde at all. Dr. Medrano states that “[w]e” implement IHSC and CDC guidelines without stating who “[w]e” is or where the guidelines are being implemented. Id. ¶ 3.
Aside from reciting CDC and IHSC guidelines, Dr. Medrano offers no credentials related to viral or other infectious diseases, nor does he mention ever actually treating anyone diagnosed with COVID-19. He refers to “experience and observation” regarding “obtain[ing] appointments” for COVID-19 tests, but offers no further information about when or where this experience or observation occurred. Id. ¶ 10. Dr. Medrano fails to establish “the standard of community care in the United States.” Id. ¶ 4.
Also relevant, as Plaintiffs discussed previously, see Dkt. 591 at 3, Dr. Medrano appears to have been employed in a leadership role over the Adelanto Detention Facility at the time the DHS Office of Inspector General (OIG) issued a scathing report finding that “[d]elayed and [i]nadequate” medical care “[i]ncreased [h]ealth [r]isks” for detainees.8 Dr. Medrano nowhere defends the actual medical care provided to class members. He does not explain the decision to forego detainee testing, the refusal to administer rapid testing, the wait time for COVID test results, or the decision to cohort detainees with pending test results.
8 See Dkt. 591-1 Exh. 1 at 7-8 (DHS Office of Inspector General, “Management Alert - Issues Requiring Action at the Adelanto ICE Processing Facility in Adelanto, California, September 27, 2018, available at: https://www.oig.dhs.gov/sites/default/files/assets/Mga/2018/oig-18-86-sep18.pdf) (hereafter “OIG Report”).
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The Court should not credit the testimony of a supervising doctor who has apparently never visited the facility during a massive outbreak.
* * * Overall, the Medical Plan is too vague to be useful. See, e.g., Dkt. 645-1 at 3 (“treatment for moderate illness is very vast and depends on the presenting issue”). It lacks the kind of actionable and explicit guidance indicative of a plan.9 Nor does it outline who is responsible for enacting the plan or how it will be implemented. Defendants have demonstrated they have no plan to respond to medical needs in the midst of a novel pandemic and significant outbreak. IV. DEFENDANTS’ CONTRACT FOR THE PROVISION OF MEDICAL
CARE REQUIRES MORE MEDICAL PLANNING AND PREPAREDNESS BUT INCENTIVIZES LIMITING CARE. Since the parties’ prior briefing on this issue, Plaintiffs have been able to review the contract regarding the provision of medical care at Mesa Verde (“Mesa Verde Contract”).10 On the one hand, Defendants’ own contract seems to require more medical planning, epidemic preparedness, and prompt and effective medical care than Defendants have provided. On the other, the Mesa Verde Contract disincentivizes the provision of such care with a payment structure that rewards its medical care contractor for limiting its expenditures. The existing contractual obligations compel Wellpath, Mesa Verde’s medical care contractor, to provide responsive and effective care. Bernwanger Dec. Exh. H (GEO 1291112).11 They also compel Wellpath to plan for and respond to emergencies such as the COVID-19
9 A plan is defined as “a detailed formulation of a program of action.” Dictionary, Merriam Webster, https://www.merriam-webster.com/dictionary/plan. 10 The Mesa Verde Contract, as defined here, includes the original contract as well as amendments, statements of work, and other incorporated documents. 11 Among other things, the Mesa Verde Contract requires compliance with
Bernwanger Dec. Exh. H (GEO 12911-12)
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; (GEO 12909)

; (GEO 12927-28

. Such medical

care and planning is also required by the ICE Performance-Based National Detention Standards

(“PBNDS”). See Bernwanger Dec. Exh. H (GEO 12844, 12902, 12909).12 The PBNDS require

that “detainees have access to appropriate and necessary medical . . . health care, including

emergency services.” PBNDS at 257. To meet this goal, a facility must, among other things,

have a “plan that address[es] the management of infectious and communicable diseases,

including screening, prevention, education, identification monitoring and surveillance,

immunization (when applicable), treatment, follow-up, isolation (when indicated) and reporting,”

and provide 24-hour emergency medical services to all detainees. Id. at 261.13 Despite the

obligations of the Mesa Verde Contract and the PBNDS, Defendants lack a meaningful plan and

have failed to implement effective medical care in response to the pandemic.

The failure to develop and implement effective emergency medical planning in response

to COVID is perhaps unsurprising in light of the compensation structure for the provision of

medical care at Mesa Verde. Wellpath, the nation’s largest for-profit health care provider for

correctional facilities, is paid

See Bernwanger Dec. Exh. H (GEO 13036-37) (current

12 The PBNDS establish a set of “mandatory requirements to which a facility is bound.” ICE, Progress in Implementing 2011 PBNDS Standards 5 (Jan. 17, 2017), https://www.hsdl.org/?abstract&did=818058. 13 The PBNDS also require that CDC “guidelines for the prevention and control of infectious and communicable diseases [] be followed.” PBNDS at 258. The CDC requires updating emergency plans to account for COVID. See Dkt. 591-4 (Greifinger Decl.) ¶ 24; Dkt. 591 at 6.
12 CASE NO. 3:20-CV-02731-VC
PLAINTIFFS’ OBJECTIONS TO DEFENDANTS’ WRITTEN PLAN TO IMPROVE
MEDICAL ASSISTANCE FOR COVID-POSITIVE DETAINEES AT MESA VERDE

Case 3:20-cv-02731-VC Document 658 Filed 09/02/20 Page 17 of 19
compensation structure).14 See also id. (GEO 12844, 12876-77, 12882). At the same time,
Wellpath is “
.15 Bernwanger Dec. Exh. H
(GEO 12849, 12855, 12858). With such a compensation structure, Wellpath is incentivized to
provide fewer medical services at the lowest possible cost. As a for-profit business, Wellpath’s
return to its investors depends on how economically it can deliver care. As Wellpath is not
compensated for greater effort, it is able to garner greater profits from minimizing resource
expenditure.16
V. CONCLUSION
The Court ordered Defendants to work with Plaintiffs in the service of what should be an
urgent and common goal: protecting current and future class members infected with COVID-19
from suffering serious illness and dying. Instead, in a repeat of their performance two weeks ago
when this Court first requested information about medical care at Mesa Verde, Defendants
devoted their time and energy to mounting a legal defense against a motion that Plaintiffs have
14 CCS became Wellpath following a merger with a competitor. See Bernwanger Dec. Exh. H (GEO 12882-84) . See also Blake Ellis & Melanie Hicken,
“Please Help Me Before It’s Too Late,” CNN, Jan. 25, 2019, at https://www.cnn.com/interactive/2019/06/us/jailhealth-care-ccs-invs/ (“Recently renamed Wellpath after being acquired by a multibillion-dollar private equity firm and combined with a smaller competitor, it is the nation’s largest for-profit provider of health care to correctional facilities.”). Notably, Mesa Verde contractors were highly capable of creating a detailed plan for the transition of medical services from CCS to Wellpath. Compare Bernwanger Dec. Exh. H (GEO 12884-94) with Dkt. 645-1. 15 Defendants have previously asserted that hospitalizations are compensated by ICE. However, that is not clear from Plaintiffs’ review of the contract. See, e.g., Bernwanger Dec. Exh. H (GEO 12858)
Defendants have stated that this information may be included within an ICE-GEO contract. 16 This compensation structure dictates “a focus on ‘cost containment’” which critics around the country have decried as contributing to “substandard care that has led to deaths and other serious outcomes that could have been avoided.” See Blake Ellis & Melanie Hicken, “Please Help Me Before It’s Too Late,” CNN, Jan. 25, 2019, at https://www.cnn.com/interactive/2019/06/us/jail-health-care-ccs-invs/ (extensive investigation into Wellpath practices and complaints at correctional institutions around the country).
13 CASE NO. 3:20-CV-02731-VC PLAINTIFFS’ OBJECTIONS TO DEFENDANTS’ WRITTEN PLAN TO IMPROVE MEDICAL ASSISTANCE FOR COVID-POSITIVE DETAINEES AT MESA VERDE

Case 3:20-cv-02731-VC Document 658 Filed 09/02/20 Page 18 of 19
not filed and responding to questions the Court did not ask. See Dkts. 581, 585. Because Defendants have refused to meaningfully engage in the meet and confer process with Plaintiffs ordered by this Court, submitted a vague and incomplete plan, and supported their plan with a declaration lacking any foundation of personal knowledge or competence, Plaintiffs remain at a serious information deficit regarding the provision of medical care at Mesa Verde. Plaintiffs therefore respectfully request that the Court:
(1) Order Defendants to file all documents referenced by the Medical Plan filed on August 31, but not filed concurrently with the medical plan, on the public docket by 5:00 PM on September 8, 2020, including: a. “Operations” related to “enhanced cleaning” in the facility (Dkt. 645-1 at 2); b. “Nursing protocols” for sick calls (id. at 3); c. “Nursing practice protocols” for moderately ill COVID-19 patients (id. at 6); d. Written information provided to detainees on “the monitoring and management of COVID-19 symptoms” (id. at 4); and e. Written information provided to detainees on “how to request care should symptoms arise or worsen” (id. at 4);
(2) Order Defendants to file all existing documents related to the following practices mentioned in the medical plan: a. Medical history evaluation (id. at 1); b. Review of symptoms (id.); c. Process for identification of “high risk” detainees (id. at 2); d. “Access to care memo” provided to newly-arrived detainees (id. at 4); and e. “Code blue” process for emergencies (id. at 4, 5). 14 CASE NO. 3:20-CV-02731-VC
PLAINTIFFS’ OBJECTIONS TO DEFENDANTS’ WRITTEN PLAN TO IMPROVE MEDICAL ASSISTANCE FOR COVID-POSITIVE DETAINEES AT MESA VERDE

Case 3:20-cv-02731-VC Document 658 Filed 09/02/20 Page 19 of 19

(3) Order Defendants to promptly respond to Plaintiffs’ discovery requests related to the

provision of medical care at Mesa Verde, including but not limited to interrogatories,

requests for document production, and depositions.

Dated: September 2, 2020
Judah Lakin Amalia Wille LAKIN & WILLE LLP Jordan Wells Stephanie Padilla AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA

Respectfully submitted,
/s/ Emilou MacLean Manohar Raju Public Defender Matt Gonzalez Chief Attorney Francisco Ugarte Genna Ellis Beier Emilou H. MacLean OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO
Bree Bernwanger Hayden Rodarte LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA
William S. Freeman Sean Riordan Angélica Salceda AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA
Martin S. Schenker Timothy W. Cook Francisco M. Unger COOLEY LLP
Attorneys for Petitioners-Plaintiffs

15 CASE NO. 3:20-CV-02731-VC PLAINTIFFS’ OBJECTIONS TO DEFENDANTS’ WRITTEN PLAN TO IMPROVE
MEDICAL ASSISTANCE FOR COVID-POSITIVE DETAINEES AT MESA VERDE

Case 3:20-cv-02731-VC Document 659 Filed 09/02/20 Page 1 of 6

WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org SEAN RIORDAN (SBN 255752) sriordan@aclunc.org ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.orga GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: 415-553-9319 Fax: 415-553-9810

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUIZ TOVAR, LAWRENCE MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,
Petitioners-Plaintiffs,
v.

CASE NO. 3:20-CV-02731-VC
DECLARATION OF BREE BERNWANGER IN SUPPORT OF PLAINTIFFS’ OBJECTIONS TO DEFENDANTS’ WRITTEN PLAN TO IMPROVE MEDICAL ASSISTANCE FOR COVID-POSITIVE DETAINEES AT MESA VERDE

DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,

Respondents-Defendants.

CASE NO. 3:20-CV-02731-VC BERNWANGER DEC. I/S/O PLAINTIFFS’ OBJECTIONS TO DEFENDANTS’ WRITTEN PLAN TO IMPROVE MEDICAL ASSISTANCE FOR COVID-POSITIVE DETAINEES AT
MESA VERDE

Case 3:20-cv-02731-VC Document 659 Filed 09/02/20 Page 2 of 6

BREE BERNWANGER* (NY SBN 5036397) bbernwanger@lccrsf.org HAYDEN RODARTE (SBN 329432) hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA 131 Steuart St #400 San Francisco, CA 94105 Telephone: (415) 814-7631
JUDAH LAKIN (SBN 307740) judah@lakinwille.com AMALIA WILLE (SBN 293342) amalia@lakinwille.com LAKIN & WILLE LLP 1939 Harrison Street, Suite 420 Oakland, CA 94612 Telephone: (510) 379-9216 Facsimile: (510) 379-9219

MARTIN S. SCHENKER (SBN 109828) mschenker@cooley.com COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111 Telephone: (415) 693-2000 Facsimile: (415) 693-2222
TIMOTHY W. COOK (Mass. BBO# 688688)* tcook@cooley.com FRANCISCO M. UNGER (Mass. BBO# 698807)* funger@cooley.com COOLEY LLP 500 Boylston Street Boston, MA 02116 Telephone: (617) 937-2300 Facsimile: (617) 937-2400
Attorneys for Petitioners-Plaintiffs

JORDAN WELLS (SBN 326491) jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568) spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA 1313 West Eighth Street Los Angeles, CA 90017 Telephone: (213) 977-9500 Facsimile: (213) 977-5297

*Admitted Pro Hac Vice

CASE NO. 3:20-CV-02731-VC BERNWANGER DEC. I/S/O PLAINTIFFS’ OBJECTIONS TO DEFENDANTS’ WRITTEN PLAN TO IMPROVE MEDICAL ASSISTANCE FOR COVID-POSITIVE DETAINEES AT
MESA VERDE

Case 3:20-cv-02731-VC Document 659 Filed 09/02/20 Page 3 of 6
I, Bree Bernwanger declare: 1. I am a member of the bars of the States of California and New York. I am one of the attorneys representing Plaintiffs in this action. The following facts are set forth based on personal knowledge.
2. Attached hereto as Exhibit A is a true and correct copy of an email chain including a message from counsel for GEO, dated August 18, 2020 recognizing that despite having considered and discarded draft plans, Defendants had “[n]o written policies formalized for COVID care.”
3. In response to the Court’s order that Defendants produce a written plan concerning medical care at Mesa Verde, see Dkt. 595, on Wednesday, August 26, 2020, Defendants emailed class counsel three documents and stated in a cover email that the documents comprised “a draft of the medical plan.” Defendants stated that they were “still awaiting input from IHSC, so this draft is not final.” Defendants told Plaintiffs that their input and suggestions were welcome. The “draft of the medical plan” consisted of three documents: 1) GEO February 28, 2020 guidance concerning COVID-19 management, a true and correct copy of which is attached hereto as Exhibit B; 2) a one-page “Brief Summary of CDC’s Recommendations for High-Risk Patients Living in Congregate Housing to Prevent COVID-19,” a true and correct copy of which is attached hereto as Exhibit C; and 3) a three-page comparison document listing “CDC treatment guidelines for COVID19” alongside “Wellpath Medical response/treatment,” a true and correct copy of which is attached hereto as Exhibit D. A true and correct copy of the email correspondence attaching the plan, which continued through August 31, 2020 as described below, is attached hereto as Exhibit E.
CASE NO. 3:20-CV-02731-VC BERNWANGER DEC. I/S/O PLAINTIFFS’ OBJECTIONS TO DEFENDANTS’ WRITTEN PLAN TO IMPROVE MEDICAL ASSISTANCE FOR COVID-POSITIVE DETAINEES AT
MESA VERDE

Case 3:20-cv-02731-VC Document 659 Filed 09/02/20 Page 4 of 6
4. On Wednesday, August 26, 2020, at 5:14 PM, I responded to Defendants noting that we had shared the draft plans with expert witnesses and reiterating the concerns with the draft plan that Plaintiffs voiced during the case management conference that day: that it did not appear responsive to the Court’s order even at a general level, because it did not include any provisions specific to Mesa Verde and it did not include any provisions that improved care. Defendants responded requesting that Plaintiffs “make some constructive suggestions.” I let Defendants know that we would provide a number of concrete suggestions the following day. I asked Defendants what additional input they were seeking internally and what additional steps they expected to take before reaching a final draft, aside from seeking Plaintiffs’ input. Defendants did not respond to this question, but reiterated their request that Plaintiffs provide concrete suggestions that could be shared with Defendants’ clients. A true and correct copy of this correspondence is included in the email chain attached hereto at Exhibit E.
5. On Thursday, August 27, 2020, Plaintiffs emailed Defendants a list of deficiencies in Defendants’ plan, as identified in consultation with expert witnesses who have provided testimony in this case. The list was described as an “Initial Response to COVID ‘Medical Plan,’” as Plaintiffs had the “expectation that Defendants will produce a revised draft plan that will allow for [Plaintiffs’ counsel] to provide more concrete and detailed recommendations” prior to the presentation of the plan to the Court as “Defendants stated that this is a preliminary draft that does not yet reflect complete input from ICE.” A true and correct copy of this correspondence, including Plaintiffs’ attached responses to Defendants’ plan is attached hereto as Exhibit F. At 5:00 PM that day, Emilou MacLean and I met and conferred with counsel for Federal Defendants Sara Winslow and Shiwon Choe, along with counsel for Defendant GEO Susan Coleman and Royal Oakes. During this meet and confer, Attorney MacLean asked Defendants what the process for CASE NO. 3:20-CV-02731-VC
BERNWANGER DEC. I/S/O PLAINTIFFS’ OBJECTIONS TO DEFENDANTS’ WRITTEN PLAN TO IMPROVE MEDICAL ASSISTANCE FOR COVID-POSITIVE DETAINEES AT
MESA VERDE

Case 3:20-cv-02731-VC Document 659 Filed 09/02/20 Page 5 of 6
continued review and editing of the plan would be. Defendants informed us that Dr. Medrano and Wellpath were working on the plan. Plaintiffs asked if a more developed draft would be circulated for Plaintiffs’ input. Defendants’ counsel told us that they would let us know when they could. Aside from a limited discussion about medical supplies, Defendants did not respond to or discuss Plaintiffs’ feedback in writing or orally. Attorney MacLean told Defendants we were available to continue meeting and conferring, including over the weekend, as they continued to develop their plan.
6. After Thursday evening’s meet and confer call, Defendants did not reach out to Plaintiffs regarding the medical plan. Defendants sought no further discussion of Plaintiffs’ concerns or proposals, did not share further drafts, and did not otherwise engage Plaintiffs in the plan’s conception or drafting.
7. On the morning of Monday, August 31, 2020, I emailed Defendants to reiterate our concern about their existing draft and to state that Plaintiffs continued to be available to meet and confer, although the short turnaround time before Defendants’ deadline would make any meaningful collaboration quite difficult. Counsel for Federal Defendants promptly responded that Plaintiffs’ comments had been “passed … on to the medical professionals at ICE and GEO who are working to finalize the draft that will be filed in court today.” A true and correct copy of this correspondence is included in the email chain attached hereto as Exhibit E. Plaintiffs received the final draft of the medical plan when it was filed on the public docket.
8. Attached hereto as Exhibit G is a true and correct copy of an email from Defendants’ counsel, stating that on August 8, 2020, according to LVN Guzman from Wellpath Medical, COVID-positive class member Jose Ruiz “began to feel better and ceased coughing” after being “provided additional education on using his inhaler.” Medical
CASE NO. 3:20-CV-02731-VC BERNWANGER DEC. I/S/O PLAINTIFFS’ OBJECTIONS TO DEFENDANTS’ WRITTEN PLAN TO IMPROVE MEDICAL ASSISTANCE FOR COVID-POSITIVE DETAINEES AT
MESA VERDE

Case 3:20-cv-02731-VC Document 659 Filed 09/02/20 Page 6 of 6 records for Mr. Ruiz later indicated that he had been diagnosed with pneumonia in both lungs before this interaction. 9. Attached hereto as Exhibit H is a true and correct copy of excerpts from the contract between Defendant GEO and Wellpath Medical, as produced to Plaintiffs by GEO. I declare under penalty perjury that the foregoing is true and correct. Executed on September 2, 2020 in Berkeley, California.
/s/ Bree Bernwanger Bree Bernwanger
CASE NO. 3:20-CV-02731-VC BERNWANGER DEC. I/S/O PLAINTIFFS’ OBJECTIONS TO DEFENDANTS’ WRITTEN PLAN TO IMPROVE MEDICAL ASSISTANCE FOR COVID-POSITIVE DETAINEES AT
MESA VERDE

Case 3:20-cv-02731-VC Document 659-1 Filed 09/02/20 Page 1 of 5
EXHIBIT A

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FW: Topics for today's call
Maclean, Emilou (PDR) <emilou.maclean@sfgov.org>
Wed 9/2/2020 1:27 AM To: Bree Bernwanger <bbernwanger@lccrsf.org>
4 attachments (644 KB) COVID Report20200816115547 (2).pdf; IHSC Interim Reference Sheet COVID-19.pdf; Hospitals and Specialty Care.pdf; IHSC COVID-19 ASSESSMENT algorithm.pdf;

From: "Coleman, Susan E." <SColeman@bwslaw.com> Date: Tuesday, August 18, 2020 at 4:25 PM To: Bill Freeman <wfreeman@aclunc.org>, "Winslow, Sara (USACAN)" <Sara.Winslow@usdoj.gov> Cc: "Maclean, Emilou (PDR)" <emilou.maclean@sfgov.org> Subject: RE: Topics for today's call
Telling detainees in B dorm:
They have been advised verbally that they are posi ve for COVID. The provider has now seen all detainees as of 8/17/20 and shared this informa on with them. Copies of medical records cannot be issued directly to detainees.
Cardiotropic results – a ached
Zamora – stable and is an cipated to be discharged tomorrow. Info provided already.
Lin – currently in RHU on suicide watch.
Medical care policies –here is some addi onal info received from Wellpath regarding their policies and IHSC policies relied upon.
Susan E. Coleman | Partner 444 South Flower Street, Suite 2400 | Los Angeles, CA 90071-2953 d - 213.236.2831 | t - 213.236.0600 | f - 213.236.2700 scoleman@bwslaw.com | vCard | bwslaw.com

The information contained in this e-mail message is intended only for the CONFIDENTIAL use of the designated addressee named above. The information transmitted is subject to the attorney-client privilege and/or represents confidential attorney work product. Recipients should not file copies of this email with publicly accessible records. If you are not the designated addressee named above or the authorized agent responsible for delivering it to the designated addressee, you received this document through inadvertent error and any further review, dissemination, distribution or copying of this communication by you or anyone else is strictly prohibited. IF YOU RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY TELEPHONING THE SENDER NAMED ABOVE AT 800.333.4297. Thank you.

From: Bill Freeman [mailto:wfreeman@aclunc.org] Sent: Tuesday, August 18, 2020 3:50 PM To: Winslow, Sara (USACAN); Coleman, Susan E.

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Cc: Emilou Maclean Subject: RE: Topics for today's call

[EXTERNAL]

Sara and Susan,

In connec on with one of the ques ons that the Court has asked the par es to address concerning health care re possible “ﬁnancial disincen ves to hospitalizing detainees” (see ECF 563), Plain ﬀs request that Federal Defendants and/or GEO promptly provide us with copies of ICE’s (or GEO’s) contract(s) with Wellpath that control the provision of medical services at Mesa Verde. Thank you.

Bill

From: Winslow, Sara (USACAN) <Sara.Winslow@usdoj.gov> Sent: Tuesday, August 18, 2020 3:43 PM To: Emilou Maclean <emilou.maclean@sfgov.org>; Coleman, Susan E. <SColeman@bwslaw.com>; Bill Freeman <wfreeman@aclunc.org> Subject: RE: Topics for today's call
Emi,

Regarding your 3rd bullet point below, we are gathering these citations and anticipate including them in our filing tomorrow.

Best, Sara

From: Maclean, Emilou (PDR) <emilou.maclean@sfgov.org> Sent: Tuesday, August 18, 2020 2:02 PM To: Coleman, Susan E. <SColeman@bwslaw.com>; Bill Freeman <wfreeman@aclunc.org>; Winslow, Sara (USACAN) <SWinslow@usa.doj.gov> Subject: Re: Topics for today's call

Thank you, Susan.
If you have no policies regarding COVID-speciﬁc health care, can you please send:
Any policies regarding emergency care, Any policies regarding general access to care, and Whatever speciﬁc CDC and IHSC guidance the Facility follows.
Best, Emi
From: "Coleman, Susan E." <SColeman@bwslaw.com> Date: Tuesday, August 18, 2020 at 1:57 PM To: Bill Freeman <wfreeman@aclunc.org>, "Winslow, Sara (USACAN)" <Sara.Winslow@usdoj.gov> Cc: "Maclean, Emilou (PDR)" <emilou.maclean@sfgov.org> Subject: RE: Topics for today's call

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This message is from outside the City email system. Do not open links or attachments from untrusted sources.

I am checking on some of this. Zamora is s ll at hospital and stable. Will see if I can get more info. Not sure about what B dorm people and they’ve been told – checking. Will ask what healthcare providers are telling them but again, this is a third party en ty.
No staﬀ hospitaliza ons.
I don’t believe we have results yet from the ini al round of tests sent to Cardiotropic. Will let you know upon receipt even though these are superseded by more recent tests.
Medical records – requests are being routed from ICE to Wellpath Policies – we follow CDC and IHSC recommenda ons. No wri en policies formalized for COVID care – you’ve seen dra s in the email produc on but none were implemented. Here is a GEO policy re calling 911, – one given to detainees and one for custody. Medical staﬀ relies on training/experience/knowledge/discre on for when to send to hospital. Checking on oxygen info.
Susan E. Coleman | Partner 444 South Flower Street, Suite 2400 | Los Angeles, CA 90071-2953 d - 213.236.2831 | t - 213.236.0600 | f - 213.236.2700 scoleman@bwslaw.com | vCard | bwslaw.com

The information contained in this e-mail message is intended only for the CONFIDENTIAL use of the designated addressee named above. The information transmitted is subject to the attorney-client privilege and/or represents confidential attorney work product. Recipients should not file copies of this email with publicly accessible records. If you are not the designated addressee named above or the authorized agent responsible for delivering it to the designated addressee, you received this document through inadvertent error and any further review, dissemination, distribution or copying of this communication by you or anyone else is strictly prohibited. IF YOU RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY TELEPHONING THE SENDER NAMED ABOVE AT 800.333.4297. Thank you.

From: Bill Freeman [mailto:wfreeman@aclunc.org] Sent: Tuesday, August 18, 2020 12:12 PM To: Winslow, Sara (USACAN); Coleman, Susan E. Cc: Emilou Maclean Subject: Topics for today's call

[EXTERNAL]

Dear counsel,

Here are today’s topics. We can start at 4:45 pm with a hard stop at 5:30. Thanks.

Informa on about medical status of Dorm B class members: Class members who are in Dorm B have expressed concern that they have not been told that they have tested posi ve for COVID, or have not been shown evidence that they have tested posi ve, or not been provided informa on about their medical status. Can you please conﬁrm that Defendants have shared the COVID-posi ve status, and conﬁrma on of that, with each of the class members in Dorm B? Can you please also conﬁrm that the healthcare providers

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are instructed to answer class members’ ques ons about their medical status, test, results, medical care, etc.? August 3/4/5 tests: Can you please inform us of the status of the August 3/4/5 tests? Plain ﬀs would like those tests whenever they are available. Staﬀ COVID hospitaliza ons: Please inform us whether any staﬀ have been hospitalized due to COVID (since the beginning of the pandemic) and inform us if any staﬀ become posi ve moving forward. Mr. Zamora: Please provide an update on the status of Mr. Margarito Zamora, the individual class member who is currently hospitalized. Mr. Lin: Please provide an update on what happened with Mr. Wei Lin, who was transferred from D to B and then apparently back to D. We also no ced on the report yesterday that he does not appear anywhere in the list of detainees at the facility. Please conﬁrm where he is presently in addi on to providing further details about what happened on the day that he was transferred into B temporarily. Informa on concerning medical treatment: Please provide, as instructed by the Court, informa on we need in order to address issues related to medical care for those who are COVID-posi ve in Dorm B:
Medical records (both from Mesa Verde and from any hospital visits) for the four individuals (iden ﬁed in the prior email) who were sent to the hospital as COVID-posi ve (whether or not Defendants iden ﬁed them as “hospitalized”). Wri en policies for trea ng Covid-posi ve detainees Wri en policies for reques ng medical care Wri en policies for hospitaliza on of detainees The number of oxygen monitors available at Mesa Verde The number of oxygen tanks and nasal cannula set ups available at Mesa Verde. Transfers for removal: We request that opposing counsel share with class counsel the plan for removing class members who are “transferred for removal” or “released for removal,” including: What deten on facility the person is being transferred to; As of the me of transfer, the date of the planned removal; A copy of the travel documents; Conﬁrma on that the transfer complies with the transfer checklist ICE produced at Dkt. 324-1; and With 24 hours a er the removal, conﬁrma on a er the removal has occurred. We also request that Defendants’ counsel provide this informa on now with regard to Lateef Animawun (A 207046678), who was “transferred for removal” on August 10, 2020 but who class counsel understands has not been removed, and for whom class counsel has not received conﬁrma on that travel documents exist. Outstanding issues: We also have as outstanding issues: Whether we have a revised proposal for bail applica ons and opposi ons that would work for both par es; Whether Defendants are ready to discuss and resolve any issues concerning Dr. Greiﬁnger’s site visit

Bill

William S. Freeman
Senior Counsel Pronouns: he/him
ACLU Founda on of Northern California 39 Drumm Street, San Francisco, CA 94111 415-293-6335

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EXHIBIT E

Case 3:20-cv-02731-VC Document 659-5 Filed 09/02/20 Page 2 of 7

Bree Bernwanger
From: Sent: To: Cc:
Subject:

Bree Bernwanger Monday, August 31, 2020 12:41 PM 'Winslow, Sara (USACAN)'; 'Coleman, Susan E.'; Maclean, Emilou (PDR) Bill Freeman; Garbers, Wendy (USACAN); Zack, Adrienne (USACAN); Choe, Shiwon (USACAN); Marty Schenker; Sean Riordan; Judah Lakin; Newman, Michael A.S.; Oakes, Royal F.; Weinstein, David S. RE: Zepeda Rivas - draft medical plan

Understood. Thank you, Sara.
From: Winslow, Sara (USACAN) [mailto:Sara.Winslow@usdoj.gov] Sent: Monday, August 31, 2020 10:04 AM To: Bree Bernwanger <bbernwanger@lccrsf.org>; 'Coleman, Susan E.' <SColeman@bwslaw.com>; Maclean, Emilou (PDR) <emilou.maclean@sfgov.org> Cc: Bill Freeman <wfreeman@aclunc.org>; Garbers, Wendy (USACAN) <Wendy.Garbers@usdoj.gov>; Zack, Adrienne (USACAN) <Adrienne.Zack@usdoj.gov>; Choe, Shiwon (USACAN) <Shiwon.Choe@usdoj.gov>; Marty Schenker <mschenker@cooley.com>; Sean Riordan <SRiordan@aclunc.org>; Judah Lakin <judah@lakinwille.com>; Newman, Michael A.S. <mnewman@hinshawlaw.com>; Oakes, Royal F. <roakes@hinshawlaw.com>; Weinstein, David S. <DWeinstein@hinshawlaw.com> Subject: RE: Zepeda Rivas ‐ draft medical plan
Bree,
We received your comments in writing and orally on Thursday, and we have passed those on to the medical professionals at ICE and GEO who are working to finalize the draft that will be filed in court today.
Best, Sara
From: Bree Bernwanger <bbernwanger@lccrsf.org> Sent: Monday, August 31, 2020 9:34 AM To: 'Coleman, Susan E.' <SColeman@bwslaw.com>; Winslow, Sara (USACAN) <SWinslow@usa.doj.gov>; Maclean, Emilou (PDR) <emilou.maclean@sfgov.org> Cc: Bill Freeman <wfreeman@aclunc.org>; Garbers, Wendy (USACAN) <wgarbers@usa.doj.gov>; Zack, Adrienne (USACAN) <AZack1@usa.doj.gov>; Choe, Shiwon (USACAN) <SChoe@usa.doj.gov>; Marty Schenker <mschenker@cooley.com>; Sean Riordan <SRiordan@aclunc.org>; Judah Lakin <judah@lakinwille.com>; Newman, Michael A.S. <mnewman@hinshawlaw.com>; Oakes, Royal F. <roakes@hinshawlaw.com>; Weinstein, David S. <DWeinstein@hinshawlaw.com> Subject: RE: Zepeda Rivas ‐ draft medical plan
Dear Counsel:
You asserted during the Wednesday case management conference that the medical plan you produced to us was a draft that was still in the process of internal review. On Thursday, we sent recommended requirements for a medical plan, supported by our experts. We also expressed in a call on Thursday afternoon a willingness to
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review subsequent drafts, and to further meet and confer (including over the weekend) after you had the opportunity to discuss further internally with your clients. Despite that, you are due to produce the medical plan to the Court today, and we have heard nothing further from you about your medical plan since our Thursday afternoon call.
We remain willing to meet and confer regarding the Mesa Verde medical plan, as compelled both by the Court and the current health crisis at Mesa Verde. However, we regret that any meet and confer at this stage is unlikely to be productive given the short time that remains and our need to consult with our experts about any proposal. We remain deeply concerned about the fact that months into the pandemic, and at least one month into the outbreak at Mesa Verde, Defendants lack any meaningful plan to respond to the health needs of class members.
Please let us know how you propose to move forward.
Best, Bree
Bree Bernwanger (she/her) Senior Staff Attorney Lawyers’ Committee for Civil Rights of the San Francisco Bay Area 131 Steuart Street, Suite 400 San Francisco, CA 94105 Tel: (415) 543-9444 x.209 Fax: (415) 543-0296 www.lccrsf.org
From: Coleman, Susan E. [mailto:SColeman@bwslaw.com] Sent: Thursday, August 27, 2020 10:18 AM To: Bree Bernwanger <bbernwanger@lccrsf.org>; Winslow, Sara (USACAN) <Sara.Winslow@usdoj.gov>; Maclean, Emilou (PDR) <emilou.maclean@sfgov.org> Cc: Bill Freeman <wfreeman@aclunc.org>; Garbers, Wendy (USACAN) <Wendy.Garbers@usdoj.gov>; Zack, Adrienne (USACAN) <Adrienne.Zack@usdoj.gov>; Choe, Shiwon (USACAN) <Shiwon.Choe@usdoj.gov>; Marty Schenker <mschenker@cooley.com>; Sean Riordan <SRiordan@aclunc.org>; Judah Lakin <judah@lakinwille.com>; Newman, Michael A.S. <mnewman@hinshawlaw.com>; Oakes, Royal F. <roakes@hinshawlaw.com>; Weinstein, David S. <DWeinstein@hinshawlaw.com> Subject: RE: Zepeda Rivas ‐ draft medical plan
Any written suggestions before/outside of the conference are appreciated. As you know, we need to include our clients in any decisions so there is a process to go through.
Susan E. Coleman | Partner 444 South Flower Street, Suite 2400 | Los Angeles, CA 90071-2953 d - 213.236.2831 | t - 213.236.0600 | f - 213.236.2700
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scoleman@bwslaw.com | vCard | bwslaw.com
The information contained in this e-mail message is intended only for the CONFIDENTIAL use of the designated addressee named above. The information transmitted is subject to the attorney-client privilege and/or represents confidential attorney work product. Recipients should not file copies of this email with publicly accessible records. If you are not the designated addressee named above or the authorized agent responsible for delivering it to the designated addressee, you received this document through inadvertent error and any further review, dissemination, distribution or copying of this communication by you or anyone else is strictly prohibited. IF YOU RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY TELEPHONING THE SENDER NAMED ABOVE AT 800.333.4297. Thank you.
From: Bree Bernwanger [mailto:bbernwanger@lccrsf.org] Sent: Wednesday, August 26, 2020 5:42 PM To: Coleman, Susan E.; Winslow, Sara (USACAN); Maclean, Emilou (PDR) Cc: Bill Freeman; Garbers, Wendy (USACAN); Zack, Adrienne (USACAN); Choe, Shiwon (USACAN); Marty Schenker; Sean Riordan; Judah Lakin; Newman, Michael A.S.; Oakes, Royal F.; Weinstein, David S. Subject: RE: Zepeda Rivas - draft medical plan
[EXTERNAL]
Dear Susan,
We are working with our experts and plan to be prepared with a number of concrete and specific suggestions tomorrow, assuming we are all able to speak at our standing 5:00 PM time.
At this point, as laid out in my prior email, it is difficult to provide concrete feedback, as the proposed plan does not depart in any discernable way from what was happening in Mesa Verde prior to the Court’s order on Friday and does not include any provisions specific to the conditions and outbreak at Mesa Verde.
We also understand that this is not a final draft and that ICE is continuing to provide input to GEO. On our end, it would be helpful to know from you all what additional steps Defendants expect to take before reaching a draft that reflects both GEO and ICE’s input—which is the point where it seems input from us would be most productive. Which individuals and entities have already reviewed the plan and provided input, and which individuals and entities are you still awaiting input from?
Best, Bree
Bree Bernwanger (she/her) Senior Staff Attorney Lawyers’ Committee for Civil Rights of the San Francisco Bay Area 131 Steuart Street, Suite 400 San Francisco, CA 94105 Tel: (415) 543-9444 x.209 Fax: (415) 543-0296 www.lccrsf.org
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From: Coleman, Susan E. [mailto:SColeman@bwslaw.com] Sent: Wednesday, August 26, 2020 5:15 PM To: Bree Bernwanger <bbernwanger@lccrsf.org>; Winslow, Sara (USACAN) <Sara.Winslow@usdoj.gov>; Maclean, Emilou (PDR) <emilou.maclean@sfgov.org> Cc: Bill Freeman <wfreeman@aclunc.org>; Garbers, Wendy (USACAN) <Wendy.Garbers@usdoj.gov>; Zack, Adrienne (USACAN) <Adrienne.Zack@usdoj.gov>; Choe, Shiwon (USACAN) <Shiwon.Choe@usdoj.gov>; Marty Schenker <mschenker@cooley.com>; Sean Riordan <SRiordan@aclunc.org>; Judah Lakin <judah@lakinwille.com>; Newman, Michael A.S. <mnewman@hinshawlaw.com>; Oakes, Royal F. <roakes@hinshawlaw.com>; Weinstein, David S. <DWeinstein@hinshawlaw.com> Subject: RE: Zepeda Rivas ‐ draft medical plan
Please make some constructive suggestions for us to consider.
Thanks,
Susan
Susan E. Coleman | Partner 444 South Flower Street, Suite 2400 | Los Angeles, CA 90071-2953 d - 213.236.2831 | t - 213.236.0600 | f - 213.236.2700 scoleman@bwslaw.com | vCard | bwslaw.com
The information contained in this e-mail message is intended only for the CONFIDENTIAL use of the designated addressee named above. The information transmitted is subject to the attorney-client privilege and/or represents confidential attorney work product. Recipients should not file copies of this email with publicly accessible records. If you are not the designated addressee named above or the authorized agent responsible for delivering it to the designated addressee, you received this document through inadvertent error and any further review, dissemination, distribution or copying of this communication by you or anyone else is strictly prohibited. IF YOU RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY TELEPHONING THE SENDER NAMED ABOVE AT 800.333.4297. Thank you.
From: Bree Bernwanger [mailto:bbernwanger@lccrsf.org] Sent: Wednesday, August 26, 2020 5:14 PM To: Coleman, Susan E.; Winslow, Sara (USACAN); Maclean, Emilou (PDR) Cc: Bill Freeman; Garbers, Wendy (USACAN); Zack, Adrienne (USACAN); Choe, Shiwon (USACAN); Marty Schenker; Sean Riordan; Judah Lakin; Oakes, Royal F.; Weinstein, David S. Subject: RE: Zepeda Rivas - draft medical plan
[EXTERNAL]
Dear Counsel:
As discussed in today’s case management conference, we have reviewed the proposed medical plan and have serious concerns. We are still consulting with our experts regarding details, but have two major areas of global concern. First, we see no meaningful difference between the proposal and the level of care prior to the court’s order. Second, we see nothing in the proposal specific to the outbreak or to Mesa Verde at all. It appears that this proposal is thus not responsive to the Court’s order requiring Defendants to improve their system of care and to do so with the particular crisis situation in Mesa Verde in mind. See Dkt. 595.
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We welcome the opportunity to meet and confer but do not expect that doing so would be fruitful until significant changes are made to bring the plan in line with the broad contours of the Court’s order. We will nonetheless continue to engage with our experts, and would like to reserve tomorrow afternoon’s 5:00 PM standing call to discuss the medical plan.
Sincerely, Bree
Bree Bernwanger (she/her) Senior Staff Attorney Lawyers’ Committee for Civil Rights of the San Francisco Bay Area 131 Steuart Street, Suite 400 San Francisco, CA 94105 Tel: (415) 543-9444 x.209 Fax: (415) 543-0296 www.lccrsf.org
From: Coleman, Susan E. [mailto:SColeman@bwslaw.com] Sent: Wednesday, August 26, 2020 11:37 AM To: Winslow, Sara (USACAN) <Sara.Winslow@usdoj.gov>; Maclean, Emilou (PDR) <emilou.maclean@sfgov.org> Cc: Bill Freeman <wfreeman@aclunc.org>; Garbers, Wendy (USACAN) <Wendy.Garbers@usdoj.gov>; Zack, Adrienne (USACAN) <Adrienne.Zack@usdoj.gov>; Choe, Shiwon (USACAN) <Shiwon.Choe@usdoj.gov>; Marty Schenker <mschenker@cooley.com>; Sean Riordan <SRiordan@aclunc.org>; Bree Bernwanger <bbernwanger@lccrsf.org>; Judah Lakin <judah@lakinwille.com>; Oakes, Royal F. <roakes@hinshawlaw.com>; Weinstein, David S. <DWeinstein@hinshawlaw.com> Subject: RE: Zepeda Rivas ‐ draft medical plan
Counsel – attached is a draft of the medical plan. We are still awaiting additional input from IHSC, so this is not yet final; however, we welcome your input and suggestions.
Best,
Susan
Susan E. Coleman | Partner 444 South Flower Street, Suite 2400 | Los Angeles, CA 90071-2953 d - 213.236.2831 | t - 213.236.0600 | f - 213.236.2700 scoleman@bwslaw.com | vCard | bwslaw.com
The information contained in this e-mail message is intended only for the CONFIDENTIAL use of the designated addressee named above. The information transmitted is subject to the attorney-client privilege and/or represents confidential attorney work product. Recipients should not file copies of this email with publicly accessible records. If you are not the designated addressee named above or the authorized agent responsible for delivering it to the designated addressee, you received this document through inadvertent error
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and any further review, dissemination, distribution or copying of this communication by you or anyone else is strictly prohibited. IF YOU RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY TELEPHONING THE SENDER NAMED ABOVE AT 800.333.4297. Thank you.
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EXHIBIT F-1

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Bree Bernwanger
From: Sent: To:
Cc:
Subject: Attachments:

Maclean, Emilou (PDR) <emilou.maclean@sfgov.org> Thursday, August 27, 2020 12:58 PM Coleman, Susan E.; Bill Freeman; Newman, Michael A.S.; Oakes, Royal F.; Weinstein, David S. Winslow, Sara (USACAN); Choe, Shiwon (USACAN); Zack, Adrienne (USACAN); Garbers, Wendy (USACAN); Marty Schenker; Bree Bernwanger; Sean Riordan; Angelica Salceda; Judah Lakin [Zepeda] Initial comments on draft medical plan and call today 2020.08.27 Medical Plan Initial Recommendations.pdf

Dear Counsel:
We expect to spend the bulk of today’s 5pm call discussing the draft medical plan. To that end, please see attached a list of some of the deficiencies we identify that we hope can assist Defendants in the production of a more constructive and final draft. We also seek information about the process by which Defendants will engage to reach a final draft, and the parties involved in that process.
Please see below additional issues. We hope to receive information in advance of the call on these issues so that we can reserve the call for the medical plan to the extent possible.
1. Mesa Verde related requests for information: a. Please confirm that class members have received, and will continue to receive, written COVID test
results pursuant to Judge Chhabria’s order.
b. Please clarify movement between dorms that we understand has been ongoing over the past 24 hours. c. Please provide names of individuals who are symptomatic, an update on Margarito Zamora Guzman,
and the names of any individuals suffering from severe COVID.
2. Yuba‐related requests for information and testing: a. Please confirm which dorms are currently being occupied by ICE detainees (and have been occupied
over the past 2 weeks) in Yuba County Jail;
b. Please confirm that there are thus far (i) no tests of detainees in Yuba besides the two that were done
on new arrivals months ago; and (ii) no known positive tests of detainees at Yuba; and (iii) only the two positive COVID staff tests previously identified by Federal Defendants
c. We request that Defendants test for COVID Jose Cruz ORTEGA GARCIA, A 206‐149‐562, a detainee at
Yuba County Jail with COVID symptoms: body aches, congested, no olfactory sense, trouble swallowing food, burning sensation in his throat, a dry cough, headaches, nausea and respiratory distress.
Best, Emi

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EXHIBIT F-2

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To: Defendants ICE, GEO and Nathan Allen From: Plaintiffs, Zepeda Rivas et al. v. Jennings et al. August 27, 2020
Initial Response to COVID “Medical Plan” Presented August 26, 2020
The Court ordered that Defendants “create a written plan to improve their system of monitoring, caring for, and responding to medical assistance requests from detainees who have tested positive and who have health conditions that the CDC has identified as creating an elevated risk of complications.” Dkt. 595 at 1. In particular, the Court ordered that the written plan address, “at a minimum, how the defendants will provide information to detainees (including non-English speaking individuals) about managing and responding to symptoms, and how the defendants will ensure that they respond promptly to sick detainees requesting medical assistance.” Id.
Defendants produced three documents on August 26, 2020 constituting a “draft of the medical plan” that was still “awaiting additional input from [ICE Health Service Corps]” (hereinafter “Draft Plan”). The three documents are:
• GEO Correctional Health Services, “Chapter: Infection Control,” “Title: Coronavirus (COVID-19) Management,” Number 531-A, effective date Feb. 28, 2020 (hereinafter “GEO Feb. 28 Guidance”)
• A one-page “Brief Summary of CDC’s Recommendations for High-Risk Patients Living in Congregate Housing to Prevent COVID-19” (hereinafter “CDC Congregate Housing COVID Summary”)
• A 3-page comparison document listing “CDC treatment guidelines for COVID-19” and “Wellpath Medical response/treatment” (hereinafter “Wellpath Response/Treatment Document”)
Defendants stated that this is a preliminary draft that does not yet reflect complete input from ICE. Putting aside that this does not comply with the terms of the Order, Plaintiffs offer the following observations. Among other things:
• The GEO Feb. 28 Guidance is extraordinarily outdated, produced at a time when much less was known about COVID, its identification, and its management. As but one example, under the section on “Clinical Observations,” it includes “a history of recent travel to China (within 14 days)” as a prime factor identifying the existence of COVID, even though in August 2020, COVID faces uncontrolled spread virtually everywhere in the United States, including Kern County, the site of the Mesa Verde Detention Facility.
• None of these documents appear specific to Mesa Verde; none even mention Mesa Verde. It is possible that the Wellpath Response/Treatment Document is intended to be specific to Mesa Verde, but that is not evident from anything in the document. The other two documents are definitively not specific to Mesa Verde.
• The WellPath Response/Treatment Document is written in shorthand that is unclear even to knowledgeable outsiders.
• None of the documents suggest that Defendants have taken seriously either the Court’s order of the deficiencies in medical care elaborated by Plaintiffs which preceded the
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Court’s order. See, e.g., Dkts. 591, 591-2, 591-3, 591-4, 591-5, 591-6. To the extent that the Wellpath Response/Treatment Document is specific to Mesa Verde, it appears to merely elaborate what the existing practice is, and not suggest any improvements upon that practice. • The Draft Plan, as produced, lacks basic elements that should be included in any plan responsive to the Court’s order, including, i.e., 1) explicit nursing protocols for detainees in different states (i.e., intake quarantine, close contacts, infected and medically vulnerable, etc.); 2) explicit protocols for detainees with Limited English Proficiency; 3) protocol for the care of medically vulnerable detainees, infected or uninfected with COVID; 4) protocol for immediate attention to pressing health concerns; and 5) protocol for being deemed “recovered” from COVID.
In the interest of providing constructive input in a timely fashion to achieve better health care for class members in the middle of a COVID outbreak at Mesa Verde, Plaintiffs offer the following recommendations to address the Draft Plan’s deficiencies with the expectation that Defendants will produce a revised draft plan that will allow for us to provide more concrete and detailed recommendations. Where relevant, Plaintiffs also cite to expert declarations previously produced.
A final medical plan should include, at a minimum:
1) Explicit nursing protocols and care plans, specific to the situation and resources at Mesa Verde and the particular needs of detainees, including specifically for detainees in:
a) 14-day intake sequestration, b) close contact quarantine, c) known infected isolation for lower-risk detainees, d) known infected isolation for aged and otherwise vulnerable detainees, and e) known infected isolation and with moderate or severe COVID, or otherwise in
deteriorating health.
These protocols should include timing of assessments and instructions as to when to access a higher level of care, such as a physician or hospital. These should include a staffing roster with clearly defined roles. A registered nurse (RN) should perform or review assessments on a contemporaneous basis. Roles must be assigned consistent with licensure and there should be sufficient staff to carry out the duties outlined in the appropriate timelines. A general statement that Defendants will rely only on the CDC and IHSC Guidelines is insufficient. There should be Facility-specific guidance that incorporates these more general guidelines.
See Dkt. 591-4 (Greifinger Decl.) ¶¶ 12-13, 18; Dkt. 591-2 (Allen Decl.) ¶ 9
2) Explicit protocols for detainees with Limited English Proficiency
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All elements of the plan that involve communication with detainees must include a clear plan for using necessary language interpretation, including the use of medical interpreters.
See Dkt. 591-6 (Keller Decl.) ¶¶ 12.g, 49.
3) Instructions for how to perform CPR in the face of COVID-infection
4) Thresholds for higher level care such that custody and health care staff know when to refer COVID-19 positive individuals to what level of care o See Dkt. 591-4 (Greifinger Decl.) ¶ 18. See also Dkt. 591-2 (Allen Decl.) ¶ 9 (“Every medical facility responsible for treating COVID patients should have a plan in place specific to their facility which includes…what criteria will be used to transfer the patient for higher level of care.”).
5) Protocol to ensure immediate attention for urgent (as opposed to emergent) conditions. Mesa Verde must have a system for responding within minutes to a class member who develops symptoms or shows signs of deterioration, including: a) A plan for having a dedicated trained officer to the COVID-infected dorm (Dorm B) 24/7. b) Training for the officer to identify signs and symptoms requiring urgent treatment (which should be done by a medical professional). c) Clear requirements that the officer summon medical professionals in response to medical requests and under other clearly-defined circumstances. d) Medically-appropriate definitions of what constitutes an emergency in the COVID context, including: 1. Difficulty breathing 2. Persistent pain or pressure in chest 3. New confusion 4. Inability to wake/stay awake 5. Bluish lips/face e) On-call medical professional who can immediately report for evaluation when an issue is flagged. f) Clear plan and timelines for responding to oral requests for care.
See Dkt. 591-4 (Greifinger Decl.) ¶¶ 7-10, 27. “Mesa Verde should have an officer in Dorm B at all times (24/7) to monitor whether any detainee needs immediate medical intervention. That officer must be provided with appropriate training to be able to identify the signs and symptoms that require urgent or emergent evaluation and treatment. It is not enough to have general emergency practices in place, or for custody officers to know that they can call the medical department in case of an emergency. What constitutes an emergency, in the context of a dorm full of COVID-19 positive individuals, must be welldefined.” Dkt. 591-4 (Greifinger Decl.) ¶ 8. See also Dkt. 591-5 (Hernandez Decl.) ¶ 7 (importance of identifying “warning signs for health deterioration); Dkt. 591-2 (Allen Decl.) ¶ 11 (“There must also be a system in place for life support or “Code Blue” situations.”).
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6) Protocol to ensure minimal delay for transport to emergency care, including: a) Clear, streamlined process for summoning emergency assistance. b) No obstacles to summoning emergency care. c) Deference to medical staff on all situations requiring medical or nursing judgment.
See Dkt. 591-4 (Greifinger Decl.) ¶¶ 9, 11. Dkt. 591-2 (Allen Decl.) ¶ 11 7) Protocol to inform COVID-positive detainees how to self-identify COVID-19
medical emergencies Training should be provided by medical staff and include the provision of clear information on how to identify, but not treat, a COVID medical emergency. See Dkt. 591-4 (Greifinger Decl.) ¶ 16. 8) Protocol to provide basic health information to detainees, including test results for those who have been tested for COVID See, e.g., Dkt. 591-5 (Hernandez Decl.) ¶ 20. 9) Protocol for vaccination against influenza and testing for other respiratory illnesses Dkt. 591-2 (Allen Decl.) ¶ 25. 10) Protocol to respond to surge in COVID-positive detainees (in addition to plan for responding to and caring for individual patients) See Dkt. 591-4 (Greifinger Decl.) ¶ 18. 11) Protocol to describe when COVID-19 positive individuals are deemed “recovered” Dkt. 591-2 (Allen Decl.) ¶ 18. 12) Protocol and criteria for COVID-19 point-of-care testing of symptomatic detainees See Dkt. 591-6 (Keller Decl.) ¶ 23. 13) Protocols and criteria for contact tracing 14) Training for medical staff and line staff, including:
a) Health care staff training on mode of transmission, use of containment, and signs and symptoms of disease and deterioration.
b) Security staff training on when to summon medical professional and when to call 911.
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See Dkt. 591-4 (Greifinger Decl.) ¶ 15. 15) Mechanism to evaluate the quality of compliance with the policies and training in
the plan See Dkt. 591-4 (Greifinger Decl.) ¶ 17. 16) Protocol to minimize risk of transmission via staff and to staff See, e.g., Dkt. 591-5 (Hernandez Decl.) ¶¶ 15, 16 17) Detailed plan for provision and use of personal protective equipment (PPE) Dkt. 591-2 (Allen Decl.) ¶ 9 (“Details as to how healthcare providers should be containing spread of the infection should be very clear, including which masks should be worn, and how PPE is to be donned and doffed. Healthcare personnel should be fit-tested for N-95 masks, and if the N-95 mask cannot be documented to be adequate for the healthcare provider, access must be available for the provider to be trained and to wear a powered air-purifying respirator (PAPR). Face shields should be in use in addition to N95 masks.”). But see GEO Feb. 28 Guidance at 7 (“Facility Administrator/designee will assure an adequate supply of PPE is maintained on-site.”). 18) Plan to ensure hygiene and sanitation throughout the facility, including in particular among those detainees in isolation and contact quarantine Dkt. 591-2 (Allen Decl.) ¶ 9 19) Plan to ensure sufficient medical supply level Dkt. 591-2 (Allen Decl.) ¶¶ 4, 14 20) Protocol to ensure proper coordination with local public health officials in the case of infections, outbreaks, and hospitalizations See, e.g., Dkt. 591-5 (Hernandez Decl.) ¶ 18 21) Alternative or contingency plans, i.e., if there is an outbreak or if hospitalization is needed and there are insufficient beds available at the local hospital
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 Case 3:20-cv-02731-VC Document 672 Filed 09/04/20 Page 1 of 5

DAVID L. ANDERSON (CABN 149604) United States Attorney
SARA WINSLOW (DCBN 457643) Chief, Civil Division
WENDY M. GARBERS (CABN 213208) ADRIENNE ZACK (CABN 291629) SHIWON CHOE (CABN 320041) Assistant United States Attorneys
450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Telephone: (415) 436-6967 Facsimile: (415) 436-6748 wendy.garbers@usdoj.gov adrienne.zack@usdoj.gov shiwon.choe@usdoj.gov
Attorneys for Federal Defendants
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, et al., Plaintiffs,
v. DAVID JENNINGS, et al.,
Defendants.

) CASE NO. 3:20-cv-02731-VC ) ) DEFENDANTS’ (1) OBJECTION TO ) PLAINTIFFS’ CHARACTERIZATION OF ) DEFENDANTS’ RESPONSE TO THE COURT’S ) AUGUST 21, 2020 ORDER TO CREATE A ) WRITTEN PLAN TO IMPROVE MEDICAL ) ASSISTANCE FOR COVID-POSITIVE ) DETAINEES AND (2) OPPOSITION TO THE ) EXTENT PLAINTIFFS SEEK EXPEDITED ) DISCOVERY )

DEFS.’ (1) OBJ. TO PLS.’ CHARACTERIZATION AND (2) OPP’N TO EXPEDITED DISCOVERY No. 3:20-cv-02731-VC

Case 3:20-cv-02731-VC Document 672 Filed 09/04/20 Page 2 of 5

Defendants respectfully (1) object to Plaintiffs’ characterization of Defendants’ response to the Court’s August 21, 2020 order and (2) oppose Plaintiffs’ request for an order for Defendants to “promptly respond” to Plaintiffs’ discovery requests to the extent that Plaintiffs seek discovery on an expedited basis or other than through the standard procedures set out in the Federal Rules of Civil Procedure. I. Defendants’ Objections to Plaintiffs’ Characterization
Defendants object to Plaintiffs’ characterization that “Defendants have effectively flouted this Court’s order, ignored its guidance, and refused to engage with Plaintiffs or their experts.” Contra Pls. Objs. 1 (ECF No. 658). As ordered, Defendants (1) sent a draft plan to class counsel by noon on Wednesday, August 26, 2020, (2) reviewed class counsel’s written response to the draft plan and met and conferred with class counsel to discuss class counsel’s response and comments, (3) considered class counsel’s response and comments and made changes to the draft plan that addressed certain issues that class counsel raised,1 and (4) filed a final draft of the plan on the docket on Monday, August 31, 2020 at 5:00 p.m. See Declaration of Shiwon Choe (Choe Decl.).
That Plaintiffs might be of the view that the draft is “vague,” as measured against some standard that Plaintiffs leave undefined,2 does not make their view legally controlling or establish that Defendants have failed to comply with the Court’s order. Likewise, that Plaintiffs might be of the view that the practices and procedures at the Mesa Verde Detention Facility are “inadequate” or “deficient” does not

1 Class counsel raised that the original draft plan did not include criteria for determining when a detainee who tested positive for COVID-19 would be deemed recovered. Choe Decl. ¶ 8. The revised draft plan includes these criteria. Id.; Final Draft 7 (ECF No. 645-1); accord CDC, Coronavirus Disease 2019 (COVID-19) > Duration of Isolation & Precautions for Adults (Aug. 16, 2020) (emphasis in original), https://www.cdc.gov/coronavirus/2019-ncov/hcp/duration-isolation.html (last visited Sept. 4, 2020). Class counsel raised that the original draft plan did not include the criteria for determining when to send a detainee to the hospital. Choe Decl. ¶ 9. The revised plan includes these criteria, while also reiterating that the criteria are not all-inclusive and that a medical provider may send a detainee who does not meet these criteria to the hospital based solely on the provider’s discretion. Id.; Final Draft 7 (ECF No. 645-1).

2 During the meet and confer, Defendants asked Plaintiffs if they had any model that showed what level of detail that Plaintiffs maintain that the draft plan must include. Defendants invited Plaintiffs to send them any such model. Plaintiffs did not do so. Choe Decl. ¶ 6. In their objections, Plaintiffs selectively cite to a dictionary definition of “plan” as “a detailed formulation of a program of action” to try to define the level of detail they maintain is required, Pls. Objs. 11 n.9 (ECF No. 658), but ignore the earlier definitions from that same dictionary of “a method for achieving an end” and “an often customary method of doing something.” Dictionary, Merriam Webster, https://www.merriam-webster.com/ dictionary/plan (last visited Sept 4, 2020).

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make their view legally controlling or establish that Defendants have failed to comply with the Court’s

order. Case law supports the Defendants’ position that the practices and procedures at Mesa Verde

satisfy constitutional requirements without a further medical plan. See Defs. Resp. (ECF No. 645) (citing

case law); Fed. Defs. Br. (ECF No. 585) (citing case law); cf. Pls. Objs. (ECF No. 658) (citing no case

law); Pls. Br. (ECF No. 591) (citing no case law). Despite this, per the Court’s order, Defendants sent a

further draft plan to Plaintiffs, met and conferred with Plaintiffs, and filed a final draft of the plan on the

docket. That the draft might not be the plan that Plaintiffs (or the Court) might have drafted is not a basis

for saying that Defendants “flouted” the Court’s order. See generally S. Bay United Pentecostal Church

v. Newsom, 140 S. Ct. 1613, 1613–14 (2020) (Roberts, C.J., concurring) (“When [government] officials

undertake to act in areas fraught with medical and scientific uncertainties, their latitude must be

especially broad. Where those broad limits are not exceeded, they should not be subject to second-

guessing by an unelected federal judiciary, which lacks the background, competence, and expertise to

assess public health and is not accountable to the people.”) (citations, quotation marks, and brackets

omitted); Gonzalez v. Ahern, No. 19-cv-07423-JSC, 2020 WL 3470089, at *8 (N.D. Cal. June 25, 2020)

(“Defendants’ approach may not be the plan that Plaintiffs think best; it may not even be the plan that

the Court would choose,” but due-process claim “does not afford litigants and courts an avenue for de

novo review of the decisions of prison officials”) (citation and quotation marks omitted).

II. Defendants’ Opposition to Request For Expedited Discovery

Defendants oppose Plaintiffs’ request that the Court “[o]rder Defendants to promptly respond to

Plaintiffs’ discovery requests,” Pls. Objs. 15 (ECF No. 658), to the extent that Plaintiffs seek discovery

on an expedited basis or through procedures other than the standard procedures set out in the Federal

Rules of Civil Procedure.

First, “expedited discovery is not automatically granted merely because a party seeks a

preliminary injunction.” Kayvan v. Pompeo, No. 5:19-cv-08071-EJD, 2020 WL 553940, at *2 (N.D.

Cal. Feb. 4, 2020) (quoting Am. LegalNet, Inc. v. Davis, 673 F. Supp. 2d 1063, 1066 (C.D. Cal. 2009)).

Second, Plaintiffs have expressly disavowed that they are seeking further injunctive relief regarding

medical care, Pls. Objs. 1, further undermining any basis for expedited discovery. That Plaintiffs might

seek further injunctive relief at some (unspecified) point in the future is not a basis for expedited

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discovery. Facebook, Inc. v. Various, Inc., No. C-11-01805-SBA (DMR), 2011 WL 2437433, at *3

(N.D. Cal. June 17, 2011) (courts “usually do not [find good cause for expedited discovery] when

presented with a party’s mere inclination to file such a motion”) (citing cases). Third, Plaintiffs have not

proposed any specific discovery requests. A blanket request that a defendant respond to a plaintiff’s

discovery requests generally on an expedited basis (whatever the requests might be) untethered to

specific, narrowly tailored requests, is improper. See Rovio Entm’t Ltd. v. Royal Plush Toys, Inc., 907 F.

Supp. 2d 1086, 1100 (N.D. Cal. 2012) (denying request for expedited discovery because “Plaintiff has

not clearly shown that the discovery requested is narrowly tailored to obtain information relevant to a

preliminary injunction determination” and where plaintiff did not submit its actual proposed discovery

requests). Fourth, Defendants are currently working to respond to numerous expedited discovery

requests that Plaintiffs have already issued so that the parties may proceed to an evidentiary hearing on

whether a second preliminary injunction should issue. Ordering expedited discovery into this additional

issue would only divert Defendants’ resources and further delay the evidentiary hearing.

As of today, all of the detainees at Mesa Verde who tested positive for COVID-19 have

recovered under the criteria set out by the Centers for Disease Control and Prevention (CDC) and the

ICE Health Services Corps. Declaration of Wendy Baca ¶¶ 2–4; see CDC, Coronavirus Disease 2019

(COVID-19) > Duration of Isolation & Precautions for Adults (Aug. 16, 2020), https://www.cdc.gov/

coronavirus/2019-ncov/hcp/duration-isolation.html (last visited Sept. 4, 2020) (setting out criteria when

isolation and precautions can be discontinued). In light of the fact that all of the detainees at Mesa Verde

either have never tested positive or have met the CDC’s guidance for discontinuing isolation and

precautions, Plaintiffs have not shown a basis for further injunctive relief, much less “articulated any

specific missing evidence essential for injunctive relief” that might justify a request for expedited

discovery. Cf. Rovio, 907 F. Supp. 2d at 1109–10 (denying request for expedited discovery where

“[p]laintiff has not clearly shown that the information it seeks is needed on an expedited basis to obtain a

preliminary injunction” and “has not articulated any specific missing evidence essential for injunctive

relief”). Plaintiffs may seek discovery under the standard procedures set out in the Federal Rules. But to

the extent that Plaintiffs are requesting that the Court order Defendants to respond on an expedited basis

to whatever future unspecified requests Plaintiffs may come up with, Plaintiffs’ request is improper and

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unwarranted and should be denied.

DATED: September 4, 2020

Respectfully submitted,
DAVID L. ANDERSON United States Attorney
s/Shiwon Choe SHIWON CHOE Assistant United States Attorney
Attorneys for Federal Defendants

BURKE,WILLIAMS & SORENSEN, LLP
s/Susan E. Coleman* SUSAN E. COLEMAN
Attorneys for GEO Defendants

* In compliance with Civil Local Rule 5-1(i)(3), the filer attests that all signatories have concurred in the filing of this document.

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DAVID L. ANDERSON (CABN 149604) United States Attorney
SARA WINSLOW (DCBN 457643) Chief, Civil Division
WENDY M. GARBERS (CABN 213208) ADRIENNE ZACK (CABN 291629) SHIWON CHOE (CABN 320041) Assistant United States Attorneys
450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Telephone: (415) 436-6967 Facsimile: (415) 436-6748 wendy.garbers@usdoj.gov adrienne.zack@usdoj.gov shiwon.choe@usdoj.gov
Attorneys for Federal Defendants
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, et al., Plaintiffs,
v. DAVID JENNINGS, et al.,
Defendants.

) CASE NO. 3:20-cv-02731-VC ) ) DECLARATION OF SHIWON CHOE ) ) ) ) ) ) ) )

DECLARATION OF SHIWON CHOE No. 3:20-cv-02731-VC

Case 3:20-cv-02731-VC Document 672-1 Filed 09/04/20 Page 2 of 3

I, Shiwon Choe, declare as follows:

1. I am an Assistant United States Attorney and counsel for Federal Defendants. The facts

set forth in this declaration are within my personal knowledge.

2. On August 26, 2020, at 11:42 a.m., Defendants sent Plaintiffs a draft plan regarding

medical care at the Mesa Verde Detention Facility. See Exhibit A.

3. On August 27, 2020, at 12:58 p.m., Plaintiffs sent Defendants a response to Defendants’

draft plan. See Exhibit B.

4. On August 27, 2020, at 5:00 p.m., Civil Chief Sara Winslow and I met and conferred via

telephone with Emilou MacLean, Genna Beier, and Bree Bernwanger, counsel for Plaintiffs, and Susan

Coleman and Royal Oakes, counsel for GEO Defendants. During the meet and confer, we discussed

Defendants’ draft plan of August 26, 2020 and Plaintiffs’ response thereto.

5. Defendants asked Plaintiffs for specific suggestions for the draft plan. For example,

Plaintiffs’ written response states, “Plan to ensure sufficient medical supply level.” Exhibit B, ¶ 19.

During the meet and confer call, Defendants asked what a “sufficient medical supply level” would be.

Plaintiffs did not identify what level Plaintiffs would consider “sufficient.” For example, Plaintiffs’

expert had opined that six oxygen tanks were “inadequate,” Declaration of Dr. Sarah Allen ¶ 14 (ECF

No. 591-2), but when Defendants asked how many oxygen tanks would be adequate, Plaintiffs were

unable to say.

6. Plaintiffs said that because the draft plan was (in Plaintiffs’ view) not specific, Plaintiffs

had difficulty in providing specific feedback to Defendants, or words to that effect. Plaintiffs said that

they first wanted a more fulsome draft from Defendants, and that then they would provide further

feedback, or words to that effect. Defendants asked if Plaintiffs had a model that showed what level of

detail that Plaintiffs maintain that the draft plan must include. Plaintiffs did not have a model.

Defendants invited Plaintiffs to send any model that Plaintiffs wanted Defendants to review. Plaintiffs

did not do so.

7. On August 31, 2020, at 5:00 p.m., Defendants filed a final draft of the plan. ECF No.

645-1.

8. During the meet and confer process, Plaintiffs requested that the draft plan include

DECLARATION OF SHIWON CHOE

No. 3:20-cv-02731-VC

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criteria for determining when a detainee who tested positive for COVID-19 would be deemed recovered. The final draft includes such criteria. ECF No. 645-1, at 7.
9. During the meet and confer process, Plaintiffs requested that the draft plan include criteria for determining when to send a detainee to the hospital. The final draft includes such criteria. ECF No. 645-1, at 7.
I declare under penalty of perjury that the foregoing is true and correct. Executed this 4th day of September 2020.
s/Shiwon Choe SHIWON CHOE

DECLARATION OF SHIWON CHOE

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1 Susan E. Coleman (SBN CA 171832)

2

E-mail: scoleman@bwslaw.com BURKE, WILLIAMS & SORENSEN, LLP

3

444 South Flower Street, Suite 2400 Los Angeles, CA 90071-2953

4 Tel: 213.236.0600 Fax: 213.236.2700

5

Royal F. Oakes (SBN CA 080480) roakes@hinshawlaw.com

6

Michael A.S. Newman (SBN CA 205299) mnewman@hinshawlaw.com

7

HINSHAW & CULBERTSON LLP 350 South Grand Ave., Suite 3600

8

Los Angeles, CA 90071-3476 Tel: 213-680-2800; Fax: 213-614-7399

9 David S. Weinstein [Admitted Pro Hac Vice]

10

Dweinstein@hinshawlaw.com HINSHAW & CULBERTSON LLP

11

2525 Ponce de Leon Blvd, 4th Floor Coral Gables, FL 33134

12 Tel: 305-428-5038; Fax: 305-577-1063

13

Attorneys for Respondents-Defendants THE GEO GROUP, INC. and NATHAN ALLEN

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16 ANGEL DE JESUS ZEPEDA RIVAS, BRENDA
RUIZ TOVAR, LAWRENCE MWAURA,
17 LUCIANO GONZALO MENDOZA JERONIMO,
CORAIMA YARITZA SANCHEZ NUÑEZ,
18 JAVIER ALFARO, DUNG TUAN DANG,

19

Petitioners-Plaintiffs,

20

vs.

Case No. 3:20-cv-02731-VC
(Honorable Vince Chhabria)
MOTION BY DEFENDANTS THE GEO GROUP, INC. AND NATHAN ALLEN TO DISMISS PLAINTIFFS’ COMPLAINT

21 DAVID JENNINGS, Acting Director of the San
Francisco Field Office of U.S. Immigration and
22 Customs Enforcement; MATTHEW T.
ALBENCE, Deputy Director and Senior Official
23 Performing the Duties of the Director of the U.S.
Immigration and Customs Enforcement; U.S.
24 IMMIGRATION AND CUSTOMS
ENFORCEMENT; GEO GROUP, INC.;
25 NATHAN ALLEN, Warden of Mesa Verde
Detention Facility,
26
Respondents-Defendants.
27

Date: October 29, 2020 Time: 10:00 a.m. Courtroom: 4
Complaint Filed: April 20, 2020

28
HINSHAW & CULBERTSON LLP 350 South Grand Ave., Suite 3600
Los Angeles, CA 90071-3476 213-680-2800

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1

TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD HEREIN:

2

PLEASE TAKE NOTICE that on October 29, 2020, at 10:00 a.m., in Courtroom 4 of the

3 above-entitled Court, located at 450 Golden Gate Avenue, San Francisco, CA 94102, Defendants

4 The GEO Group, Inc. (“GEO”) and Nathan Allen (“Allen”) (collectively, “GEO Defendants”) will

5 and hereby do move this Court for an order dismissing this matter in favor of the GEO Defendants,

6 pursuant to Fed. R. Civ. Proc., Rule 12(b)(6), on the following ground:

7

The Second Cause of Action, the only cause of action asserted against the GEO Defendants,

8 fails to state a claim upon which relief can be granted.

9

This Motion is based upon this Notice, the concurrently-filed Memorandum of Points and

10 Authorities, and upon such other oral or documentary evidence and argument that this Court may

11 deem relevant.

12
DATED: September 21, 2020
13

BURKE, WILLIAMS & SORENSEN, LLP

14

By: /s/Susan E. Coleman

Susan E. Coleman

15

Attorneys for Respondents-Defendants

THE GEO GROUP, INC. and NATHAN

16

ALLEN

17

18 DATED: September 21, 2020

HINSHAW & CULBERTSON LLP

19

By: /s/Royal F. Oakes

20

Royal F. Oakes

Michael A.S. Newman

21

David S. Weinstein

Attorneys for Respondents-Defendants

22

THE GEO GROUP, INC. and NATHAN

ALLEN
23

24

25

26

27

28
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Los Angeles, CA 90071-3476 213-680-2800

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1

MEMORANDUM OF POINTS AND AUTHORITIES

2
I. INTRODUCTION
3
Plaintiffs are detainees of defendant Immigration and Customs Enforcement (“ICE”) who
4
have sued alleging the violation of their Fifth Amendment due process rights (first claim for relief),
5
for violation of the First Amendment (second claim for relief), and for violation of the
6
Administrative Procedure Act (third claim for relief). Of these, Defendants The GEO Group, Inc.
7
(“GEO”) and Nathan Allen (“Allen”) (collectively, “GEO Defendants”) have only been sued on the
8
second claim for relief. That is, the only claim against the GEO Defendants is that they violated
9
Plaintiffs’ First Amendment rights. In particular, Plaintiffs claim the GEO Defendants retaliated
10
against them for conducting a hunger strike.
11
In fact, there is no First Amendment right to engage in a hunger strike, just as there is no
12
constitutional right to cut or mutilate oneself, hurt others, engage in violence, or commit suicide.
13
Regardless of the “expressive” content of such acts, they are not and should not be protected.
14
Furthermore, even if such acts were protected, the GEO Defendants would have a clear and
15
legitimate goal in seeking to preserve the health of the civil detainees. Therefore, as Plaintiffs have
16
failed to state a claim upon which relief can be granted as to the GEO Defendants, the instant motion
17
should be granted, without leave to amend.
18
II. THE PERTINENT ALLEGATIONS OF THE COMPLAINT
19
Although the lawsuit focuses primarily on medical and living conditions in the subject
20
facilities, the GEO Defendants have been sued on one cause of action only, the Second Claim For
21
Relief for violation of the First Amendment. Complaint, ¶ 140. Plaintiffs allege they engaged in a
22
hunger strike to protest the conditions in the facility operated by the GEO Defendants, and that the
23
GEO Defendants responded to the hunger strike by closing the commissary, thus preventing inmates
24
from making purchases there. Plaintiffs allege this “retaliatory” conduct constitutes a violation of
25
the First Amendment. Complaint, ¶¶ 4, 87-97, 130-38, 140.
26

27

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III. THE STANDARD UNDER FED. R. CIV. PROC., RULE 12(B)(6) Under Fed. R. Civ. Proc., Rule 12(b)(6), a complaint may be dismissed for failure to state a claim on which relief may be granted. "The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of the complaint." N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). To survive a motion to dismiss, a plaintiff is required to “state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In this, plaintiffs cannot survive a Rule 12(b)(6) motion merely by showing that their theory is possible; rather, their complaint must be dismissed unless they have “nudged their claims across the line from conceivable to plausible.” Id. at 570. See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). “While the court generally must assume factual allegations to be true, it need not assume the truth of legal conclusions cast in the form of factual allegations.” United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 fn. 2 (9th Cir. 1986). IV. THE SECOND CAUSE OF ACTION FAILS AS AGAINST THE GEO DEFENDANTS A. The Test for a First Amendment Retaliation Claim “A viable claim of First Amendment retaliation against a civil detainee entails five elements: (1) the plaintiff engaged in protected conduct; (2) an assertion that a state actor took some adverse action against the plaintiff; (3) the adverse action was ‘because of the plaintiff's protected conduct’ (i.e., ‘retaliatory motive’); (4) the adverse action ‘would chill or silence a person of ordinary firmness from future First Amendment activities;’ and (5) the action did not reasonably advance a legitimate correctional goal.” Walker v. King, 2017 U.S. Dist. LEXIS 37255, *11 (E.D. Cal. 2017); Saint-Martin v. Price, 2018 U.S. Dist. LEXIS 19550, *6-7 fn. 3 (E.D. Cal. 2018); Smith v. Napa State Hosp., 2016 U.S. Dist. LEXIS 147812, *7 (C.D. Cal. 2016); Ryan v. Siqueiros, 2016 U.S. Dist. LEXIS 65645, *9 (E.D. Cal. 2016); Karboau v. Clark, 2012 U.S. Dist. LEXIS 155521, *10-11 (W.D. Wash. 2012). Plaintiffs do not satisfy these elements.
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B. A Hunger Strike is Not First Amendment Protected Conduct As discussed above, to state a First Amendment claim, Plaintiffs must first establish they were engaged in protected conduct. Walker v. King, supra at *11. Plaintiffs assert that the hunger strike they engaged in, and encouraged others to engage in, is First Amendment protected conduct. In fact, they have not established that it is protected conduct at all. As noted in Rios v. Gipson, 2019 U.S. Dist. LEXIS 39830, *17 (E.D. Cal. 2019), there is no United States Supreme Court or Ninth Circuit Court of Appeals case holding that a hunger strike is protected First Amendment speech. See also Ransom v. Lee, 2017 U.S. Dist. LEXIS 225568, *16-17 (C.D. Cal. 2017) (noting lack of Ninth Circuit or Supreme Court authority). Indeed, many courts across the country have questioned or rejected the idea that a hunger strike is protected by the First Amendment. Khaldun v. Daughtery, 2009 U.S. Dist. LEXIS 118707 (S.D. Ind. 2009) (“[Plaintiff’s] act of going on a hunger strike was not protected activity under the First Amendment . . . .”); Owens v. Blagojevich, 2007 U.S. Dist. LEXIS 815, *6 (S.D. Ill. 2007) (“The Court is not aware of any specific guarantee under the First Amendment that protects inmate hunger strikes” and noting that the Seventh Circuit “has frowned upon inmate coercive tactics like hunger strikes.”); Haywood v. Rednor, 2012 U.S. Dist. LEXIS 70812, * 4-5 (S.D. Ill. 2012) (questioning whether there is any “specific guarantee under the First Amendment, or any other constitutional provision, that protects inmate hunger strikes” and further noting that force-feeding a striking inmate is no violation); Crawford v. Kalaher, 2012 U.S. Dist. LEXIS 170796, *5 (S.D. Ill. 2012) (“The Court is not aware of any specific guarantee under the First Amendment, or any other constitutional provision, that protects inmate hunger strikes.”); Smith v. USP Terre Haute Clinical Dir., 2013 U.S. Dist. LEXIS 61118, *3 (S.D. Ind. 2013) (“The court has found no authority for the proposition that the First Amendment protects prisoner hunger strikes.”); Malone v. Conley, 2018 U.S. Dist. LEXIS 55988, *5 (S.D. Ohio 2018) (accord); White v. Suneja, 2010 U.S. Dist. LEXIS 120496, at *2 (S.D. Ill. Nov. 15, 2010) (accord). Plaintiffs may assert a hunger strike is protected because it is “expressive.” However, the law permits “a freer hand in restricting expressive conduct than . . . in restricting the written or spoken word.” City of Erie v. Pap's A.M., 529 U.S. 277, 299 (2000) (citation omitted). Indeed,
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expressive conduct that causes physical harm is generally not protected; thus, acts of violence that are meant to convey a “message” are nonetheless not protected. N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886, 916 (1982) ("Certainly violence has no sanctuary in the First Amendment, and the use of weapons, gunpowder, and gasoline may not constitutionally masquerade under the guise of advocacy."); United States v. Jenkins, 909 F. Supp. 2d 758, 776 (E.D. Ky. 2012) (“Violence is not constitutionally protected conduct.”); United States v. Hossein Afshari, 426 F.3d 1150, 1161 (9th Cir. 2003) (no First Amendment right to facilitate terrorism by giving terrorists the weapons and explosives to carry out their missions).
Not only are violent acts not protected activity, but even writings that contain violent or threatening material are not protected. Bauer v. Sampson, 261 F.3d 775, 782 (9th Cir. 2001) (threats of violence are not protected by the First Amendment); Williams v. Wetzel, 2017 U.S. Dist. LEXIS 213262, *8 (W.D. Penn. 2017) (“[W]riting a graphic, violent letter about two prison staff members does not qualify.”); Torres v. Clark, 522 F. App'x 103, 105 (3d Cir. 2013) (holding that a prisoner's letter containing a threat against a correctional officer is not constitutionally protected); Brown v. Hannah, 850 F. Supp. 2d 471, 479 (M.D. Pa. 2012) (there is no “constitutionally protected right, in the prison setting, to use inappropriate, disrespectful and derogatory language to [the prison official].").
Self-harm is no more protected by the First Amendment than is harming others. Indeed, a facility is constitutionally required to take steps to prevent inmates from self-harm and suicide. Conn v. City of Reno, 572 F.3d 1047, 1051 (9th Cir. 2009). Thus, "[a]ttempting suicide is not constitutionally protected conduct.” Reese v. Unknown Bolm, 2020 U.S. Dist. LEXIS 27828, *14 (W.D. Mich. 2020) (citing Robinson v. Schertz, 2007 U.S. Dist. LEXIS 91984, *2 (W.D. Mich. 2007); Lisle v. Goldman, 2018 U.S. Dist. LEXIS 161986, *7 (S.D. Ill. 2018) (“[T]here is no First Amendment right to attempt suicide.”). A hunger strike works as a coercive tool because, carried to its logical endpoint, it can lead to severe health consequences or death. To say that an inmate has a First Amendment right to go on a hunger strike is no different than saying he or she has a First Amendment right to attempt to engage in self-harm or to commit suicide. Again, a facility has the
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right, and even the duty, to intervene and prevent this. See, e.g., Brown v. McGinnis, 2012 U.S. Dist. LEXIS 10847, *8 (W.D.N.Y. 2012) (approving “the practice of force-feeding inmates who are engaging in a hunger strike.”).
Further, encouraging another to harm themselves by engaging in a hunger strike is not protected speech either. Dearing v. Denny, 2017 U.S. Dist. LEXIS 199081, *18 (S.D. Ohio. 2017) (plaintiff’s action in “soliciting his fellow inmates to participate in a collective hunger strike” is “not protected under the First Amendment.”). Indeed, it is a felony under California law to encourage another person to commit suicide. Cal. Pen. Code § 401 (“Any person who deliberately aids, advises, or encourages another to commit suicide is guilty of a felony.”); Fulton v. Lamarque, No. C 03-4709 RMW (PR), 2008 U.S. Dist. LEXIS 26234, *5 (N.D. Cal. Mar. 31, 2008) ("To the extent defendants segregated and instituted disciplinary proceedings against plaintiff because they believed he instigated the strike [which included a hunger strike], this does not amount to retaliation for the exercise of a constitutional right[] because plaintiff had no First Amendment right to instigate the strike.").
A civil detainee using a hunger strike as a lever to coerce change is substantively no different from any other kind of coercion based on the threat of physical harm, to oneself or others. Say, for example, an inmate brandishes a hatchet and threatens to cut her own fingers off, unless the facility improved its policies. Would that be protected conduct merely because it is meant to “express” protest? Would an inmate have a First Amendment protected right to cut herself, or burn herself with cigarettes, if her purpose was expressive, and if her goal was to get the public and the governor’s attention? Is there a constitutional protection for an inmate who seeks to immolate herself, if the purpose of such conduct was to convey a “message”? The clear answer is no. Where “expressive” conduct threatens to cause physical harm to the perpetrator or to others, it is no longer protected.1
1 In their Complaint, Plaintiffs cite to FTC v. Superior Court Trial Lawyers Ass'n, 493 U.S. 411, 450 (1990) in support of their claim that “[h]unger strikes are quintessential expressive conduct and symbolic speech.” What Plaintiffs fail to note is that the FTC case deals with boycotts, and the majority opinion does not ever mention hunger strikes. Hunger strikes are only discussed in the dissent, once, in passing. Id. At 450.
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In short, regardless of its “message,” there is and can be no First Amendment right to commit self-harm by slowly starving oneself, or by encouraging others to do the same. Therefore, Plaintiff cannot satisfy the first element of the analysis for First Amendment retaliation.
C. Curbing a Hunger Strike Reasonably Advances Legitimate Goals of the GEO Defendants
As noted above, to obtain First Amendment protection, it is not enough for civil detainees to plead that they are engaged in protected activity; they must also plead that facility’s action in curbing such conduct did not reasonably advance a legitimate goal of the facility. Walker v. King, 2017 U.S. Dist. LEXIS 37255, *11 (E.D. Cal. 2017). Moreover, such an allegation cannot simply be asserted; it must be “plausible on its face,” and must “nudge” such claims “across the line from conceivable to plausible.” Bell Atl. Corp. v. Twombly, supra at 570.
Here, it is not facially plausible to assert that the GEO Defendants lacked a legitimate goal in seeking to prevent civil detainees from harming themselves. How can it be denied that maintaining the health of civil detainees is a legitimate goal? Indeed, the entire premise of this lawsuit is that the alleged failure to ensure the health of inmates constituted a violation of the detainees’ constitutional rights. In other words, the facility does not merely have a right to prevent inmates from being hurt, it has a duty to do so. It follows that the right to prevent inmates from hurting themselves, and from encouraging others to hurt themselves, by engaging in a hunger strike is at the top of the list of legitimate goals.
It is more than a little ironic that Plaintiffs, who allege that the failure to protect the health of detainees constituted a constitutional violation, at the same time claim that GEO Defendants violated their constitutional rights by seeking to prevent them from hurting themselves.
When it comes to hunger strikes, a facility is not merely permitted to intervene when inmates seek to starve themselves, but it must do so. Thus, they cannot “allow a prisoner to starve himself to death, or even starve himself to the point at which he seriously impairs his health . . . .” Freeman v. Berge, 441 F.3d 543, 546 (7th Cir. 2006) (emphasis added); Conn v. City of Reno, 572 F.3d 1047, 1051 (9th Cir. 2009) (a prison facility violates the constitutional rights of inmates if it fails to
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implement policies aimed at suicide prevention); Rodriguez v. Briley, 403 F.3d 952, 953 (7th Cir. 2005) (“At some point, refusal to eat might turn suicidal and then the prison would have to intervene.”) (emphasis added); Nesmith v. Cty. of San Diego, 2019 U.S. Dist. LEXIS 49606, *86 (S.D. Cal. 2019) (finding that a prison’s inadequate suicide prevention program could be deemed to have violated the constitutional rights of inmates). If a facility has an obligation to prevent an inmate from harming himself or herself, then at very least it has the right to curb activity that may inevitably lead to self-harm and death.
Furthermore, a facility need not adopt a policy that is “least restrictive,” especially when Plaintiffs’ actions threaten to harm them. Talib v. Gilley, 138 F.3d 211, 215 fn. 4 (5th Cir. 1998) (“[P]rison officials are not required to adopt the policy ‘least restrictive’ of prisoners' rights, so long as the policy adopted is itself reasonable.”); Brown v. McGinnis, 2012 U.S. Dist. LEXIS 10847, * 8 (W.D.N.Y. 2012) (“Prisoner retaliation claims ‘pose a substantial risk of unwarranted judicial intrusion in matters of general prison administration.’”); People ex rel. Ill. Dep't of Corr. v. Millard, 335 Ill. App. 3d 1066, 1071 (2003) (agreeing with decisions upholding the right to force-feed hunger-striking prisoners.) For these reasons, it is clear Plaintiffs have not established and cannot establish the fifth element of the First Amendment analysis, even if a hunger strike constituted protected activity, which it is not.
Finally, even in the jurisdictions where courts have found that prisoners could in theory have a First Amendment right to engage in a hunger strike (again neither the Supreme Court nor the Ninth Circuit has ever so held), such courts have qualified this right by holding that “so long as reasonable and effective means of communication remain open and no discrimination in terms of content is involved,” officials are accorded latitude in restricting such conduct. Stefanoff v. Hays County, 154 F.3d 523, 527 (5th Cir. 1998) (finding that, even if theoretically protected, a hunger strike was “sufficiently disruptive” to give the facility a reasonable interest in curtailing it); People ex rel. Ill. Dep't of Corr. v. Millard, 335 Ill. App. 3d 1066, 1071 (2003) (agreeing with decisions upholding the right to force-feed hunger-striking prisoners.) Here, the fact Plaintiffs had other reasonable and effective means of communicating their protests is evidenced by the very existence of this lawsuit.
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1 There is no allegation, nor is there any indication, that Plaintiffs were barred in their ability to

2 communicate with the very organizations and attorneys that are zealously advocating for them in

3 this case. Chavez v. City of Oakland, 2009 U.S. Dist. LEXIS 46250, *9 (N.D. Cal. 2009) (noting

4 that filing a lawsuit is a “classic First Amendment activity.”). In short, even if a hunger strike

5 enjoyed some modicum of First Amendment protection (it should not), Plaintiffs’ access to the

6 alternative forum of litigation, the latitude given officials in curbing such conduct, and the obvious

7 legitimate interest the GEO Defendants would have in preventing inmates from harming themselves,

8 makes it clear Plaintiffs could not plausibly satisfy the fifth element of First Amendment analysis.

9

D. Leave to Amend Should be Denied

10

Dismissal without leave to amend is proper if it is clear "the complaint could not be saved

11 by any amendment." Intri-Plex Techs. v. Crest Group, Inc., 499 F.3d 1048, 1056 (9th Cir. 2007);

12 Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989) ("Leave need not be granted

13 where the amendment of the complaint . . . constitutes an exercise in futility . . . .")). Here, because

14 Plaintiffs cannot demonstrate they were engaged in First Amendment protected activity, or that the

15 GEO Defendants lacked a legitimate reason for curbing a hunger strike, any attempt to amend the

16 complaint will be an exercise in futility. Leave to amend should not be granted.

17

V. CONCLUSION

18

For the foregoing reasons, the instant motion to dismiss should be granted without leave to

19 amend.

20 DATED: September 21, 2020 21
22
23 24 DATED: September 21, 2020

BURKE, WILLIAMS & SORENSEN, LLP
By: /s/Susan E. Coleman Susan E. Coleman Attorneys for Respondents-Defendants
HINSHAW & CULBERTSON LLP

25
26
27
28
HINSHAW & CULBERTSON LLP 350 South Grand Ave., Suite 3600
Los Angeles, CA 90071-3476 213-680-2800

By: /s/Royal F. Oakes Royal F. Oakes Michael A.S. Newman David S. Weinstein Attorneys for Respondents-Defendants
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 Case 3:20-cv-02731-VC Document 1134-5 Filed 08/04/21 Page 1 of 10

WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org SEAN RIORDAN (SBN 255752) sriordan@aclunc.org EMILOU H. MACLEAN (SBN 319071) emaclean@aclunc.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (SBN 300505) genna.beier@sfgov.org FRANCISCO UGARTE (SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: (415) 553-9319 Facsimile: (415) 553-9810

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUBI RUIZ TOVAR, LAWRENCE KURIA MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,

CASE NO. 3:20-CV-02731-VC
SEVENTH SUPPLEMENTAL DECLARATION OF ROBERT B. GREIFINGER, MD
JUDGE VINCE CHHABRIA

Petitioners-Plaintiffs,

v.

DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,

Respondents-Defendants.

No. 3:20-cv-02731-VC SEVENTH SUPPLEMENTAL DECLARATION OF ROBERT B. GREIFINGER, MD

Case 3:20-cv-02731-VC Document 1134-5 Filed 08/04/21 Page 2 of 10

BREE BERNWANGER (SBN 331731) bbernwanger@lccrsf.org HAYDEN RODARTE (SBN 329432) hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA 131 Steuart St #400 San Francisco, CA 94105 Telephone: (415) 814-7631
JUDAH LAKIN (SBN 307740) judah@lakinwille.com AMALIA WILLE (SBN 293342) amalia@lakinwille.com LAKIN & WILLE LLP 1939 Harrison Street, Suite 420 Oakland, CA 94612 Telephone: (510) 379-9216 Facsimile: (510) 379-9219

MARTIN S. SCHENKER (SBN 109828) mschenker@cooley.com COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111 Telephone: (415) 693-2000 Facsimile: (415) 693-2222
TIMOTHY W. COOK* (Mass. BBO# 688688) tcook@cooley.com FRANCISCO M. UNGER* (Mass. BBO# 698807) funger@cooley.com COOLEY LLP 500 Boylston Street Boston, MA 02116 Telephone: (617) 937-2300 Facsimile: (617) 937-2400

JORDAN WELLS (SBN 326491) jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568) spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA 1313 West Eighth Street Los Angeles, CA 90017 Telephone: (213) 977-9500 Facsimile: (213) 977-5297

Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice

No. 3:20-cv-02731-VC SEVENTH SUPPLEMENTAL DECLARATION OF ROBERT B. GREIFINGER, MD

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Seventh Supplemental Declaration of Robert B. Greifinger, MD
I, Robert B. Greifinger, declare as follows:
1. I am a physician who has worked in health care for prisoners for more than 30 years. I have managed the medical care for inmates in the custody of New York City (Rikers Island) and the New York State prison system. I have been an independent consultant on prison and jail health care since 1995. My clients have included the U.S. Department of Justice, Division of Civil Rights (for 24 years) and the U.S. Department of Homeland Security, Section for Civil Rights and Civil Liberties (for six years). I am familiar with immigration detention centers, having toured and evaluated the medical care in approximately 20 immigration detention centers, out of the several hundred correctional facilities I have visited during my career. I currently monitor the medical care in three large county jails for Federal Courts.
2. I provided seven earlier declarations in this case, see ECF Nos. 5-2, 39-1, 229-19, 477-29, 487, 591-4, 913,1 and testified at the evidentiary hearing the Court held in November 2020. I now provide this supplemental declaration to evaluate GEO Group’s request to modify the preliminary injunction issued in December 2020 as to the Mesa Verde Immigration Detention Facility, in light of current COVID-19 epidemiology in carceral settings.
3. In addition to the documents I reviewed previously for this case, I have reviewed:
a GEO Group’s motion to modify the December 2020 preliminary injunction (ECF 1082);
b the declarations GEO submitted in support of their motion to modify the preliminary injunction (ECF 1082-1 & 1082-2);
c GEO Group’s renewed motion to modify the December 2020 preliminary injunction (ECF 1104); and,
d current CDC guidance concerning COVID-19.
4. From the information I have reviewed, and based on my experience and professional expertise, it is my opinion that it is premature to modify the mitigation measures that the December 2020 preliminary injunction requires at Mesa Verde, particularly as the Delta variant of SARS-CoV-2 spreads rapidly throughout the United States and the CDC recommends reinstituting mitigation measures throughout society.
5. GEO Group’s motion seeks to modify the preliminary injunction in three ways: (1) by eliminating the population cap for any dormitory at Mesa Verde that contains only fully vaccinated detainees, (2) by eliminating the weekly testing of all fully vaccinated detainees and staff, unless they are exposed to a COVID-positive person
1 I am captioning this my “Seventh Supplemental Declaration” to accurately capture the number of declarations I have submitted. However, two of my prior declarations were each inadvertently captioned as “Third Supplemental Declaration,” and as a result, my last declaration was captioned as my “Fifth Supplemental Declaration” even though it was in fact my sixth.
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and have symptoms of infection, and (3) by establishing a total facility population cap of 300 detainees.
6. CDC guidance does not support GEO Group’s requests. At the time GEO Group filed its motion, the CDC stated that “correctional settings” should “continue to practice additional prevention strategies (e.g., wearing masks, social distancing) after vaccine has been administered[.]”2 The CDC “strongly recommend[ed]” that detention facilities “continue using all the tools available to help stop transmission, like continue to wear a mask, stay at least 6 feet (two arm lengths) away from others (social distancing), avoid crowds and poorly ventilated spaces, and wash your hands often if soap and water aren’t available, use hand sanitizer containing at least 60% alcohol.” (Emphasis in original.) These protections remained necessary “while experts learn more about the protection that COVID-19 vaccines provide under real-life conditions,” including how long vaccine-conferred immunity lasts and “whether the vaccine can decrease the chances that an infected person can spread the virus.” While the CDC later issued new “FAQ” language focusing on detained persons and correctional staff wearing well-fitting masks, its other guidance and its recent statements on the danger of the Delta variant, including for vaccinated people, show that GEO Group’s requests remain unsupported by CDC guidance.
7. As the CDC states in its June 9, 2021 interim guidance on fully vaccinated individuals, “not enough information is available to determine a specific level of vaccination coverage needed to modify facility-level prevention measures[.]”3 It also recommends the maintenance of mitigation measures where the physical characteristics of a facility allow COVID-19 to spread easily: “Maintain COVID-19 prevention measures for longer durations in facilities where the layout, ventilation, or movement patterns inhibit physical distancing or the frequency of air exchange.”4As the Court knows from my prior declarations and testimony and its own findings, the open dorms at Mesa Verde are optimized for viral transmission. Moreover, I am aware of no evidence in the case concerning the capacity of the ventilation system to adequately filter and transfer air in a manner that would mitigate the risks of detention in congregate dorms.
8. The CDC also recommends that, before relaxing mitigation measures, facilities consider the “historical levels of transmission within the facility and the ability to swiftly respond to outbreaks, including … space for potential quarantine and isolation.”5 The CDC recommends that “[i]f historical transmission levels have been
2 CDC, “Vaccine FAQs in Correctional & Detention Centers,” rev’d Feb. 16, 2021, at https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/vaccine-faqs.html, accessed April 6, 2021. 3 CDC, “Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities,” rev’d June 9, 2021, at https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctional-detention.html, accessed Aug. 1, 2021. 4 Id. 5 CDC, “Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities,” rev’d June 9, 2021, at https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctional-detention.html, accessed Aug. 1, 2021.
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high or outbreak response has been difficult in the facility,” facilities should “consider maintaining COVID-19 prevention measures for a longer duration.”6 As this Court is also aware from my previous declarations and testimony and its own findings, the congregate, dormitory structure of Mesa Verde and limited isolation space has historically led to swift, high levels of transmission that were difficult to control.
9. The CDC also explicitly recommends that “[f]acility prevention procedures should not be lifted when any transmission is occurring within the facility.”7 Based on a GEO Group filing (ECF 1126), as recently as July 8, a GEO staff member worked in the facility while infected with COVID-19. While this latter infection, in and of itself, does not necessarily demonstrate transmission within the facility, it suggests substantial risk of transmission, knowing what we know about the prevalence of the Delta variant and this variant’s increased risk of transmission.
10. Another factor that the CDC recommends be evaluated before relaxing mitigation measures is the level of community spread, “both in the community where the facility is located and in the communities from which incarcerated/detained people originate.” According to published information, Kern County is currently averaging 128 new COVID-19 cases per day, an alarming increase from where that figure stood two weeks ago.8 The CDC’s “community transmission” tracker, which the CDC cites in guidance on testing in correctional and detention settings, registers current rates of community transmission in Kern County as “substantial.”9 GEO Group has submitted no evidence about the transmission rates in communities or correctional facilities from where new detained persons might be arrested or transferred, making it impossible to credibly say that it would be reasonably safe to allow the repopulation of Mesa Verde through such arrests and transfers.
11. GEO Group also seeks to largely abandon two “[b]aseline prevention measures” the CDC believes a facility should “always keep in place,” even if some relaxation of mitigation measures is otherwise appropriate under the factors discussed above.
a “Maintain COVID-19 testing strategies: If a facility chooses to modify prevention measures, maintaining a robust testing program (including both diagnostic and screening testing) can provide critical data for ongoing assessment. See Interim Guidance for SARS-CoV-2 Testing in Correctional and Detention Facilities for more information about testing strategies, including options for designing a screening testing program based on the
6 Id. 7 Id. 8 Tracking the coronavirus in Kern County, Los Angeles Times, July 30, 2021, at https://www.latimes.com/projects/california-coronavirus-cases-tracking-outbreak/kern-county/, accessed July 31, 2021. 9 CDC, “COVID-19 Integrated County View,” at https://covid.cdc.gov/covid-data-tracker/#county-view, accessed Aug. 2, 2021.
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unique features of a particular facility and its population.”10 GEO Group’s request to do away with all screening testing for vaccinated individuals while repopulating Mesa Verde ignores this baseline prevention measure, and would be a particularly bad idea given new information about the ability of vaccinated people to transmit SARS-CoV-2.
b “Continue to have a plan for scalable isolation and quarantine: Facilities should maintain the ability to respond quickly to an increase in the number of positive cases.”11 In light of this and similar guidance, I am concerned about the prospect of Mesa Verde being repopulated where there are only five cells in which individuals could be medically isolated based on a COVID-19 exposure (or the development of COVID-19 symptoms). If the Court were to grant GEO Group’s motion, there could be up to 100 people in a vaccinated dorm and up to 300 people in the facility as a whole. Such increased numbers make it more likely that Mesa Verde will not have space to quarantine people as required by CDC guidance. As far as I can tell, GEO Group has not created a plan to account for the ongoing need to medically isolate people who have either been exposed to COVID-19 or who present COVID-19 symptoms, despite asking the Court to allow it to significantly increase the population at Mesa Verde. This is particularly concerning given GEO Group’s prior failures to develop meaningful plans to address foreseeable COVID-19 contingencies at Mesa Verde.
12. CDC guidance also does not support the pace at which GEO Group seeks to relax mitigation measures. “Procedures must be changed gradually … Any modifications to procedures should be conducted in a stepwise fashion, one prevention measure at a time, with continued screening testing to carefully monitor for COVID-19 cases in the facility before making changes to additional prevention measures.”12
13. The CDC’s action last week to promote mitigation measures throughout society in light of the surge of Delta variant cases and new evidence that vaccinated people carry significant viral loads further demonstrates the inconsistency between GEO Group’s requests and the CDC’s current view of appropriate public health measures.13
14. Dr. Henderson’s declaration relies on general CDC guidance concerning how fully vaccinated persons may interact indoors with other fully vaccinated persons. ECF No. 1082-1, ¶ 7. The citation on which he relies does not support the conclusion which he reaches. The CDC guidance that Dr. Henderson relies on states only that fully vaccinated people can “[v]isit with other fully vaccinated people indoors without
10 CDC, “Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities,” rev’d June 9, 2021, at https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctional-detention.html, accessed Aug. 1, 2021. 11 Id. 12 Id. 13 CDC, “Interim Public Health Recommendations for Fully Vaccinated People,” rev’d July 28, 2021, at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html, accessed Aug. 1, 2021
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wearing a masks or social distancing.”14 (Emphasis added.) It does not state that fully vaccinated people can or should be housed in congregate settings together, let alone housed together in numbers that would prevent meaningful social distancing. As noted above, the specific CDC guidance makes clear that it remains premature to house fully vaccinated people in congregate housing where social distancing is impossible. Moreover, the same CDC guidance on which Dr. Henderson relies urges vaccinated people to “avoid medium- and large-sized in-person gatherings,” and to wear a mask and engage in “physical distancing” while “in public” and even while “visiting” with anyone vaccinated who may reside with anyone “unvaccinated” and “at increased risk for severe COVID-19 disease.”
15. Dr. Henderson also relies on what he calls “the vaccine’s prevention of serious illness” to form the “medical opinion that removing any population cap for dorm[s] housing fully vaccinated individuals would be reasonable and are not inconsistent with the CDC’s updated recommendations.” ECF No. 1082-1, ¶ 7. I disagree that the COVID-19 vaccines prevent all serious illness. It is accurate that the authorized vaccines are highly effective at preventing death, ICU hospitalization and other forms of “severe” COVID disease. However, the vaccines have not been shown to prevent a number of COVID-19 symptoms that doctors would typically consider to be serious, including severe body aches, vomiting, diarrhea, respiratory distress, and lifethreatening vascular conditions like blood clots and stroke.
16. The CDC has also made clear that there is much we do not know about the effectiveness of approved vaccines against COVID-19 variants, such as the Delta variant that is currently dominant. “We are still learning how effective the vaccines are against new variants of the virus that causes COVID-19. New variants of the virus that causes COVID-19 are spreading in the United States. Current information suggests that COVID-19 vaccines authorized for use in the United States offer protection against most variants. However, some variants might cause illness in some people after they are fully vaccinated if the variants are circulating in the community.”15 Last week, a CDC document recognized that recent outbreaks in large groups of fully vaccinated people suggest the possibility that vaccinated people may be able to transmit the virus to one another and to the unvaccinated. The CDC concurrently raised questions about the level of vaccine effectiveness against the Delta variant. All of this undermines Dr. Henderson’s conclusion that it would be safe to put 100 vaccinated people together in the dorms at Mesa Verde.
17. Dr. Henderson also states that COVID-19 vaccines “have tested to be more than 95% protective against serious illness such as hospitalization and death in clinical trials.” ECF No. 1082-1, ¶ 6. I have been informed that the detainees at Mesa Verde received the Janssen/Johnson & Johnson vaccine, which did not have a trial showing that it is 95% protective against serious illness – that 95% figure comes from the trials for the Pfizer and Moderna vaccines. Janssen’s trials showed much lower figures at
14 CDC, “Interim Public Health Recommendations for Fully Vaccinated People,” rev’d April 2, 2021, at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html, accessed April 6, 2021. 15 CDC, “Key Things to Know About COVID-19 Vaccines,” rev’d June 25, 2021, at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html, accessed Aug. 1, 2021.
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preventing moderate to severe COVID-19 symptoms—66% efficacy against moderate to severe/critical COVID-19 across all countries.16
18. Another noteworthy aspect of GEO Group’s motion is the absence of any information regarding GEO Group’s plan for vaccinating new arrivals at Mesa Verde, including how the facility would procure vaccines for the new arrivals and how new arrivals would be managed between the time they are booked and the time they become “fully vaccinated” as defined by the CDC (for example, 14 days after administration of the Janssen vaccine). CDC guidance makes clear that “continu[ing] to encourage COVID-19 vaccination for those who have not yet received it” is a necessary baseline mitigation measure.17 The CDC elsewhere “recommends everyone” in a correctional setting “get vaccinated against COVID-19.”18 Given that poor planning has enabled outbreaks at Mesa Verde in the past, it is concerning the GEO Group includes no plan or other information about administration of COVID-19 vaccines while proposing dramatic redensification.
19. GEO Group also does not provide information about what percentage of staff are vaccinated. This omission is significant because Dr. Henderson states that his opinion on eliminating any population cap for vaccinated dormitories depends on “all staff members who interact with the vaccinated detainees” being “either fully vaccinated or wearing masks, social distancing, and maintaining proper hygiene techniques.” ECF No. 1082-1, ¶ 7. Unfortunately, staff at prisons, jails and detention facilities have too often been reluctant to agree to universal vaccination. As I noted in my November testimony, I am also concerned about inconsistent mask-wearing at Mesa Verde based on the documents I have reviewed and my virtual visit to the facility. I have also consistently noted the high risks of COVID transmission of staff at correctional and detention facilities – both to those in custody and those in the surrounding communities. Without further information confirming that all staff members at Mesa Verde who interact directly or indirectly with detainees are fully vaccinated and wearing masks and social distancing, I do not believe that Dr. Henderson’s apparent assumption about staff vaccination and practices can be considered relevant.
20. Dr. Henderson also states that under updated CDC recommendations, fully vaccinated people should not be tested “unless they have been exposed to someone known to be Covid-positive and they have symptoms of infection.” ECF No. 1082-1, ¶ 8. He uses this to assert that fully vaccinated detainees and staff need not be vaccinated absent exposure and COVID symptoms. This is inconsistent with current CDC guidance. That guidance states that “[f]ully vaccinated people with no COVID-like symptoms following an exposure to someone with suspected or confirmed COVID-19” “should
16 The study showed a slightly higher efficacy (72%) in the United States, however, at the time of the study certain concerning variants, including Delta, were not circulating in the United States. 17 CDC, “Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities,” rev’d June 9, 2021, at https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctional-detention.html, accessed Aug. 1, 2021 18 CDC, “Vaccine FAQs in Correctional & Detention Centers,” rev’d June 1, 2021, at https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/vaccine-faqs.html, accessed Aug. 1, 2021.
6

Case 3:20-cv-02731-VC Document 1134-5 Filed 08/04/21 Page 9 of 10
be tested” within 3-5 days of that exposure.19 As the CDC elsewhere explains, “Regardless of whether they develop symptoms of COVID-19, incarcerated/detained persons who are fully vaccinated should continue to be tested for SARS-CoV-2 following an exposure to someone with suspected or confirmed COVID-19.”20
21. It is also important to note that reluctance to be vaccinated is heightened in detention settings. A recent CDC report demonstrated this with regard to the COVID vaccine. In a survey of three prisons and 13 jails,21 fewer than half of those in custody expressed a willingness to be vaccinated. Forty-five percent expressed a refusal to be vaccinated, and approximately 10 percent expressed hesitancy. In this study, individuals reported the motivation for their reluctance or refusal to be inadequate information, concerns about efficacy or safety, “distrust of health care, correctional, or governmental personnel or institutions,” or a perception that the vaccine was unnecessary. The study concluded, in part, that it is important for vaccination information to be “culturally relevant and appropriate for persons of all health literacy levels.” The study also recognized that “detained persons might have inherent higher distrust of governmental systems based on their interactions with law enforcement or the justice system or their experiences with institutional racism, emphasizing the need for trust messengers.” I share these conclusions. As I have previously stated with regard to mask-wearing, there is an important role to be played in detention settings for authorities to positively encourage vaccination among those in custody. Reluctance to be vaccinated by those being detained is understandable and should be addressed through thoughtful communication by those who manage detention settings. I have not seen any proposals presented in the materials I have reviewed that suggest such communication has occurred or is being planned at Mesa Verde. In addition to the broader epidemiological concerns discussed throughout this declaration, I would be concerned about the premature lifting of mitigation measures prior to the implementation of such communication measures by detention center authorities.
22. In sum, neither CDC guidance nor other epidemiological principles support the lifting of protective mitigation measures at Mesa Verde under the facts presented by GEO Group. Moreover, it is important for the detention center authorities to develop and implement proactive and culturally appropriate communications to encourage widespread vaccination and to create a meaningful plan for COVID-19 contingencies prior to the relaxation of mitigation measures.
19 CDC, “Interim Public Health Recommendations for Fully Vaccinated People,” rev’d July 28, 2021, at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html, accessed Aug. 1, 2021. 20 CDC, “Recommendations for Quarantine Duration in Correctional and Detention Facilities,” rev’d June 9, 2021, at https://www.cdc.gov/coronavirus/2019-ncov/community/quarantine-duration-correctional-facilities.html, accessed Aug. 1, 2021. 21 Marc Stern, et al., “Willingness to Receive a COVID-19 Vaccination Among Incarcerated or Detained Persons in Correctional and Detention Facilities — Four States, September–December 2020,” CDC’s Morbidity and Mortality Weekly Report, April 2, 2021, at https://www.cdc.gov/mmwr/volumes/70/wr/mm7013a3.htm.
7

Case 3:20-cv-02731-VC Document 1134-5 Filed 08/04/21 Page 10 of 10 Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed this 3rd day of August, 2021 in Eastham, Massachusetts. Robert B. Greifinger, M.D.
8

 
 Case 3:20-cv-02731-VC Document 780 Filed 10/30/20 Page 1 of 41

1 WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org
2 SEAN RIORDAN (SBN 255752) sriordan@aclunc.org
3 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN
4 CALIFORNIA 39 Drumm Street
5 San Francisco, CA 94111 Telephone: (415) 621-2493
6 Facsimile: (415) 255-8437
7 Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page
8
9

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: 415-553-9319 Fax: 415-553-9810

10

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12

13 ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUIZ TOVAR, LAWRENCE
14 MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA
15 YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG, JUAN
16 JOSE ERAZO HERRERA, RAJNISH RAJNISH, and WILLIAN MATIAS
17 RAUDA,

Case No. 3:20-cv-02731-VC
FIRST AMENDED CLASS PETITION FOR WRIT OF HABEAS CORPUS AND CLASS COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

18

Petitioners-Plaintiffs,

19

v.

20 DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration
21 and Customs Enforcement; TONY H. PHAM, Senior Official Performing the Duties of the
22 Director of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND
23 CUSTOMS ENFORCEMENT; GEO GROUP, INC.; and NATHAN ALLEN, Warden of Mesa
24 Verde Detention Facility,

25

Respondents-Defendants.

26

27

28
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Case 3:20-cv-02731-VC Document 780 Filed 10/30/20 Page 2 of 41

1 BREE BERNWANGER (SBN 331731)

MARTIN S. SCHENKER (SBN 109828)

bbernwanger@lccrsf.org

mschenker@cooley.com

2 HAYDEN RODARTE (SBN 329432)

COOLEY LLP

hrodarte@lccrsf.org

101 California Street, 5th Floor

3 LAWYERS’ COMMITTEE FOR

San Francisco, CA 94111

CIVIL RIGHTS OF

Telephone: (415) 693-2000

4 SAN FRANCISCO BAY AREA

Facsimile: (415) 693-2222

131 Steuart St #400

5 San Francisco, CA 94105

TIMOTHY W. COOK (Mass. BBO# 688688)*

Telephone: (415) 814-7631

tcook@cooley.com

6

FRANCISCO M. UNGER (Mass. BBO# 698807)*

JUDAH LAKIN (SBN 307740)

funger@cooley.com

7 judah@lakinwille.com

COOLEY LLP

AMALIA WILLE (SBN 293342)

500 Boylston Street

8 amalia@lakinwille.com

Boston, MA 02116

LAKIN & WILLE LLP

Telephone: (617) 937-2300

9 1939 Harrison Street, Suite 420

Facsimile: (617) 937-2400

Oakland, CA 94612

10 Telephone: (510) 379-9216

Facsimile: (510) 379-9219

11

JORDAN WELLS (SBN 326491)

12 jwells@aclusocal.org

STEPHANIE PADILLA (SBN 321568)

13 spadilla@aclusocal.org

AMERICAN CIVIL LIBERTIES UNION

14 FOUNDATION OF SOUTHERN CALIFORNIA

1313 West Eighth Street

15 Los Angeles, CA 90017

Telephone: (213) 977-9500

16 Facsimile: (213) 977-5297

17

Attorneys for Petitioners-Plaintiffs

*Admitted Pro Hac Vice

18

19

20

21

22

23

24

25

26

27

28
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1 I. INTRODUCTION

2

1. Defendant Immigration and Customs Enforcement (ICE) has been holding

3 Petitioners-Plaintiffs (Plaintiffs) and a proposed class of similarly situated detainees in civil

4 immigration detention at Yuba County Jail (YCJ) and Mesa Verde ICE Processing Facility

5 (Mesa Verde) (collectively, the Facilities) under extraordinarily dangerous conditions during the

6 current COVID-19 pandemic. Defendants GEO Group, Inc., the for-profit ICE contractor that

7 runs Mesa Verde, and Nathan Allen, a GEO employee and the Warden at Mesa Verde

8 (collectively, GEO), are the agents and/or alter ego of Defendant ICE, and perform a

9 governmental function in connection with the detention of proposed class members at Mesa

10 Verde, and are therefore liable for the constitutional violations described herein.

11

2. Two of the most effective means of preventing the spread of COVID-19 are

12 social distancing—where people limit unnecessary interactions and remain at least six feet apart

13 from each other whenever possible—and swift testing and separation of individuals who may be

14 infected with the virus. But months into the global COVID-19 pandemic, conditions at the

15 Facilities still rendered social distancing impossible, and Defendants refused to take even

16 minimal precautions to test and separate those who are or may be infected with COVID-19.

17 Detainees in the Facilities lived in crowded, shared spaces. Many slept and spent most waking

18 hours within arm’s reach of one another in assigned bunk beds in cramped dormitories. When

19 one bed emptied, usually because a detainee was deported, it was swiftly filled with a new

20 arrestee who was neither tested nor quarantined before entering the general population. Until

21 barred from doing so by a COVID outbreak and subsequent court order concerning one of the

22 Facilities, ICE continued to introduce new detainees into both Facilities. All the while, detainees

23 shared dining areas, standing inches apart as they waited in line for food and then sitting

24 shoulder to shoulder as they ate on chairs that are bolted to the floor. They shared communal

25 bathrooms and showers that were similarly congested, with toilet and shower stalls that were

26 well under six feet apart and separated only by thin dividers, and with adjacent sinks that left the

27 detainees using them standing shoulder to shoulder. The toilets and showers, moreover, were

28
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1 not disinfected after each use. Detainees have had little access to essential hygiene products

2 such as hand sanitizer. ICE and GEO’s failure to provide adequate hygiene—necessary to help

3 stem the transmission of COVID-19—has risked exacerbating the health crisis COVID-19 has

4 caused, and will inevitably continue to cause, because the Facilities lack proper social

5 distancing.

6

3. Defendants’ refusal to adequately respond to the COVID-19 pandemic has

7 required emergency court intervention in multiple lawsuits, including multiple orders in this

8 one. Court intervention secured the temporary release of many class members to facilitate social

9 distancing and imposed testing and quarantine requirements in Mesa Verde in the face of a

10 massive COVID-19 outbreak. Despite this intervention, absent a permanent injunction,

11 Defendants’ practices in the Facilities will continue to subject detainees to catastrophic risk.

12

4. While certain individuals are at higher risk of severe illness or death if they

13 contract COVID-19, all members of the proposed class are at risk of severe respiratory distress,

14 damage to vital organs, other debilitating, long-term health effects, and death.

15

5. ICE’s decision to continue to detain putative class representatives such as Brenda

16 Ruiz Tovar after the onset of the pandemic exemplifies ICE and the GEO Defendants’

17 dangerous course. Ms. Ruiz Tovar has prevailed against ICE in immigration court and been

18 granted relief by an immigration judge—twice. When she should have been safely sheltering at

19 home with her U.S.-citizen child and other family, ICE insisted on detaining her in an

20 environment where social distancing was impossible, releasing her nearly two months into the

21 pandemic and only upon a court order in this case.

22

6. On behalf of all persons detained at the Facilities, the putative class

23 representatives respectfully request an order directing ICE and GEO to implement and maintain

24 social distancing, testing, and safe quarantine practices at the Facilities, including releasing

25 sufficient class members to make social distancing possible and implementing testing and

26 quarantine procedures for class members who remain detained.

27

7. The Facilities are especially vulnerable to the explosive and lethal spread of

28
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1 COVID-19. As Judge Chesney found before this lawsuit was filed, detainees in YCJ and Mesa

2 Verde “cannot practice meaningful social distancing in their respective detention facilities.”

3 Bahena Ortuño v. Jennings, No. 20-CV-2064-MMC, 2020 WL 1701724, at *6 (N.D. Cal. Apr.

4 8, 2020). In the same vein, another decision predating this lawsuit emphasized failures by ICE

5 to take appropriate measures to make social distancing possible at Mesa Verde. Bent v. Barr,

6 No. 19-cv-06123- DMR, 2020 WL 1812850, at *6 (N.D. Cal. Apr. 9, 2020) (“Although

7 Respondents represent that they are following CDC guidelines, they make no representations

8 that they have attempted to implement CDC recommendations on social distancing in detention

9 facilities, including by staggering meal and recreation times, rearranging bunks and dining hall

10 seating, or minimizing the mixing of individuals from different housing units.”). Even months

11 after these decisions, Defendants refused to take the precautions necessary to ensure the

12 reasonable safety of those in their custody until ordered by the Court to do so.

13

8. Defendants continued to fail to act after seeing the devastating results of such

14 failures elsewhere, with COVID-19 suddenly tearing through detention centers, yielding

15 fatalities and alarming rates of cases. At the Otay Mesa Detention Center near San Diego, the

16 virus had spread to half the facility and infected scores of detainees and staff by April 2020. In

17 the midst of growing outbreaks at ICE detention facilities, ICE’s acting director stated to a

18 congressional committee on April 17, 2020 that the agency had no existing plans to release

19 additional detainees around the country. As ICE refused to act, the outbreaks, not surprisingly,

20 increased throughout ICE’s detention centers nationwide. In August 2020, even after population

21 reductions secured by court order, over half of the class members who remained detained in

22 Mesa Verde contracted the virus when Defendants refused to test detainees, and to quarantine in

23 response to positive cases.

24

9. Without conditions that make it possible to achieve comprehensive social

25 distancing, and to ensure preventative quarantine and effective testing of potentially-exposed

26 detainees, there will be no effective way to prevent the transmission of COVID-19 in the

27 Facilities. In the absence of sufficient reductions in population levels at the Facilities and safe

28
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1 testing and separation practices for detainees who remain, remedial measures such as improved

2 sanitation or hygiene will be insufficient to prevent the spread of COVID-19. As the CDC has

3 warned, COVID-19 presents a serious risk of widespread transmission via asymptomatic

4 carriers. Thus, screening and quarantine practices based on demonstrated symptoms or on

5 whether a new detainee has been in contact with a known carrier of the virus are inadequate to

6 contain the spread of the virus.

7

10. Numerous courts released individual habeas petitioners from YCJ and Mesa

8 Verde before this case was filed. But relief in such cases benefitted a select number of

9 immigrants with attorneys. Meanwhile, the vast majority of detainees at the Facilities lack the

10 resources to file individual lawsuits. Even if they all could somehow sue, a piecemeal approach

11 would be too slow to meet the emergency at hand, too disorganized to ensure an orderly

12 process, and too resource-intensive to be sustainable. It would also fail to reckon with the

13 broader issue at stake: namely, that it is unconstitutional for ICE and GEO to detain individuals

14 in crowded detention facilities without meaningful safety precautions in the context of the

15 current pandemic. ICE’s and GEO’s patently inadequate response to the pandemic—including

16 the glacially slow pace at which ICE released detainees at its onset and Defendants’ resistance

17 to implementing effective public health measures—endangers the lives of class members by

18 failing to protect them from contracting COVID-19. The resulting risk of harm is “so grave that

19 it violates contemporary standards of decency to expose anyone unwillingly to such a risk.”

20 Helling v. McKinney, 509 U.S. 25, 36 (1993). This class action is a superior mechanism for the

21 Court to address the due process violation at hand and resolve class members’ overlapping

22 claims to relief.

23

11. While social distancing is now ubiquitous in all corners of American society, and

24 government authorities have been ordering reductions in prison and jail populations throughout

25 the country, YCJ and Mesa Verde remain an aberration. As district courts around the country

26 have found, Defendants’ continued detention of civil detainees where there is “potential

27 exposure . . . to a serious, communicable disease” that is “very likely to cause a serious illness”

28
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1 violates the Due Process Clause. Castillo v. Barr, No. cv-20-00605 TJH (AFMX), 2020 WL

2 1502864, at *5 (C.D. Cal. Mar. 27, 2020) (“Civil detainees must be protected by the

3 Government. Petitioners have not been protected. They are not kept at least 6 feet apart from

4 others at all times.”); see also Xochihua-Jaimes v. Barr, No. 18-71460, 2020 WL 1429877, at

5 *1 (9th Cir. Mar. 24, 2020) (sua sponte ordering immediate release of ICE detainee “[i]n light

6 of the rapidly escalating public health crisis, which public health authorities predict will

7 especially impact immigration detention centers”); see also Bahena Ortuño, 2020 WL 1701724,

8 at *4 (holding that four individuals were likely to succeed that continued detention violated due

9 process where they “cannot practice meaningful social distancing in their respective detention

10 facilities”); see also Bent, 2020 WL 1812850, at *6 (quoting DeShaney v. Winnebago Cty.

11 Dep't of Soc. Servs., 489 U.S. 189, 199-200 (1989) (“[E]ven assuming that Respondents

12 accurately describe Mesa Verde’s current practices, these practices are inadequate to ensure the

13 ‘safety and general wellbeing’ of Mesa Verde detainees during the COVID-19 pandemic.”).

14

12. The present circumstances call for class treatment, in the interests of ICE

15 detainees as well as orderly and fair judicial administration. See Hernandez Roman v. Wolf,

16 2020 WL 5683233, at *5 (9th Cir. Sept. 23, 2020) (affirming provisional certification of class of

17 immigrant detainees at Adelanto ICE Processing Center). As District of Massachusetts Judge

18 William Young stated in certifying a facility-wide class of ICE detainees, all detainees in a

19 given facility share an interest in the “release [of] a critical mass of [d]etainees—such that social

20 distancing will be possible and all those held in the facility will not face a constitutionally

21 violative substantial risk of serious harm.” Savino v. Souza, 20-cv-10617-WGY, 2020 WL

22 1703844 at *7 (D. Mass. Apr. 8, 2020); see also Hernandez Roman, 2020 WL 5683233, at *5

23 (“The preliminary injunction afforded class-wide relief that would have remedied the

24 constitutional violations as to all detainees, even though it would have entailed the release or

25 transfer of only some of the detainees.”).

26

13. This Court has the authority to order ICE to release as many class members as

27 necessary to guard against the spread of COVID-19 in the Facilities, and to require Defendants

28
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1 to take such steps as may be necessary with respect to the conditions of confinement at the

2 Facilities to comply with the Fifth Amendment. Whether by setting a benchmark population

3 limit during the pandemic, by requiring Defendants to develop appropriate plans and protocols

4 for the testing, detention and care of class members during an ongoing pandemic, or—as the

5 Plaintiffs’ first motion for preliminary injunction proposed, by engaging in expedited review of

6 class members’ requests for release,1 this Court should proceed with all dispatch to order ICE to

7 release enough class members to enable the necessary social distancing and to order Defendants

8 to take measures to protect the health and safety of class members. Furthermore, this Court

9 should order ICE to abstain temporarily from introducing any new detainees into the Facilities.

10 II. JURISDICTION AND VENUE

11

14. Jurisdiction is proper and relief is available pursuant to 28 U.S.C. § 1331 (federal

12 question), 28 U.S.C. § 1346 (original jurisdiction), 5 U.S.C. § 702 (waiver of sovereign

13 immunity), 28 U.S.C. § 2241 (habeas corpus jurisdiction), 28 U.S.C. §§ 2201-02 (declaratory

14 relief); 28 U.S.C. § 1651 (All Writs Act); 28 U.S.C. § 1361 (mandamus); Article I, Section 9,

15 clause 2 of the United States Constitution (the Suspension Clause); the Due Process Clause of

16 the Fifth Amendment to the United States Constitution; the First Amendment to the United

17 States Constitution; and Article III of the United States Constitution.

18

15. Venue is proper in the Northern District of California under 28 U.S.C. § 1391(e),

19 because at least one federal Defendant resides in this District. Venue is also proper under 28

20 U.S.C. § 2243 because the actual custodians of all Plaintiffs reside in this District.

21 III. PARTIES

22

A. Plaintiffs

23

16. Angel de Jesus Zepeda Rivas is a 32-year-old man who was detained by ICE at 24

25 1 This truncated system for considering class members’ claims for release is similar to one that has been in use for
ICE detainees in the District of Massachusetts and in other courts. See Savino, 2020 WL 1703844. See also In re
26 Expedited Detention Hearing Procedures Effective April 7, 2020, Miscellaneous General Order 20-12 (D. Alaska)
(establishing expedited procedures for consideration motions for pretrial and presentence release based on COVID-
27 19); Criminal Case Standing Order Re: Procedure for Review of Detention Orders in Light of Coronavirus
Pandemic, M.J. Nat Cousins, Effective Mar. 16, 2020 (N.D. Cal.) (establishing expedited procedure for any request
28 to reopen a detention hearing on health grounds in light of COVID 19 pandemic).
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1 YCJ from November 21, 2019 until ICE released him under the pressure of this litigation. He

2 has a two-year-old U.S.-citizen child with his long-term partner. Angel was diagnosed with type

3 2 diabetes in early 2019, and prior to arriving at YCJ, was taking medication to control the

4 diabetes. During his time at YCJ, Angel experienced worsening symptoms, including painfully

5 swollen feet and legs and tingling and numbness throughout his body. Angel has recently been

6 diagnosed with hypertension, and the shortness of breath and chest pain have led to a constant

7 fear of a life-threatening health event. YCJ medical staff recently prescribed him medication for

8 diabetes and hypertension, along with chronic headaches and severe allergies, but this treatment

9 has failed to relieve the pain, swelling, and other symptoms.

10

17. Angel was found to have reasonable fear of torture if returned to his native

11 country, El Salvador, and is in withholding proceedings. As a teenager, he was targeted by

12 gangs and, when he refused to sell drugs for them, was sexually and physically assaulted. He

13 has also been severely beaten by law enforcement in El Salvador. As COVID-19 spread through

14 the United States, he was terrified to stay in YCJ, since he was unable to maintain a safe

15 distance or protect himself from COVID-19, while sleeping in his bunk bed, standing in line for

16 his medication and meals, or even while walking to see the medical staff at the facility. When

17 he ran out of soap to wash his hands and clothes, Angel would use a chemical disinfectant,

18 which would burn his skin. Angel experienced COVID-19 symptoms in YCJ but was never

19 tested for coronavirus there. While he was detained, Angel’s partner’s adult daughter stood

20 ready to receive him into her home in Oakland, California until he was past the COVID-19

21 incubation period, at which point he could have returned home to his own two-year-old

22 daughter and partner.

23

18. Brenda Rubi Ruiz Tovar is a 31-year-old Mexican national who was detained

24 by ICE at YCJ from October 2, 2018 until the court ordered her temporary release on May 6,

25 2020 pending this litigation. She suffers from PTSD and Generalized Anxiety Disorder,

26 stemming from childhood sexual abuse. Twice, she has won relief from deportation under the

27 Convention Against Torture in immigration court. Each time, the Immigration Judge found that

28
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1 she met the high bar of showing it is more likely than not she will be tortured or killed in

2 Mexico by or with the acquiescence of government actors. Each time, ICE has appealed the

3 Judge’s grant of protection. She remained in detention while her case was on appeal to the

4 Board of Immigration Appeals (BIA) a second time. In the twenty-plus months Brenda was in

5 detention, she was separated from her family, including her 11-year-old U.S.-citizen son,

6 throughout her removal proceedings.

7

19. Brenda suffered symptoms consistent with COVID-19 while at YCJ. After

8 contact with a fellow detainee who was sick, she was quarantined for several days with two

9 other women. Even while in quarantine, she was unable to maintain the recommended distance

10 from her cellmate, and she was forced to clean a bathroom area covered in feces. She was tested

11 for the flu, but never for COVID-19, and then reintegrated into the general population. She now

12 lives with her parents in Fresno, California, who were ready and able to receive her into their

13 home since her detention.

14

20. Lawrence Mwaura is a 27-year-old man who was detained at YCJ from April

15 12, 2019 until the Court ordered his temporary release on October 20, 2020. In 2002, he fled

16 Kenya, fearing for his life. He was granted asylum in 2003 and became a permanent resident in

17 2006. His mother, brother, and sister are naturalized U.S. citizens, and his wife is a U.S. citizen.

18 Lawrence is contesting a final order of removal before the Ninth Circuit, which has issued a

19 stay preventing ICE from removing him.

20

21. Due to respiratory complications stemming from severe pneumonia which he

21 suffered while working as a firefighter in 2014, Lawrence demonstrated asthma symptoms and

22 later contracted Valley Fever in March 2018. These conditions have caused him permanent lung

23 scarring, severe pain, difficulty breathing, coughing, and high sensitivity to pollutants, air-bone

24 particles, and changes in temperature. His respiratory specialist told him his Valley Fever can

25 return at any time and cause serious damage to his brain, nervous system, and skeletal system,

26 including paralysis. Lawrence continues to experience difficulty breathing, lung pain, and cough

27 in the cold, dusty confines of YCJ. Although his specialist told him he should have his blood

28
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1 cells checked every 90 days to monitor his immune system due to his Valley Fever, YCJ

2 medical staff did not test him for over ten months. A psychiatrist at YCJ also informed

3 Lawrence that he meets the criteria for Post-Traumatic Stress Disorder. While detained at YCJ,

4 Lawrence was terrified due to the lack of social distancing, unsanitary facility conditions,

5 inadequate ventilation against contagion and air pollutants, constant movement of YCJ staff into

6 the facility, and YCJ officials’ lack of policies to protect detainees from COVID-19 infection.

7

22. Luciano Gonzalo Mendoza Jeronimo is a 31-year-old Indigenous Mayan man

8 and Guatemalan national who was in civil detention at YCJ, from February 2020 until ICE

9 released him under the pressure of this litigation. His wife and daughter are permanent residents

10 and his youngest son is a U.S. citizen, born in Berkeley, California. Luciano fled Guatemala

11 after he was beaten by the National Civil Police for refusing forcible recruitment. His wife was

12 granted asylum and filed a petition on his behalf. However, because he had a prior order of

13 removal in absentia, ICE arrested him and reinstated the prior order. He passed a reasonable fear

14 screening test with an asylum officer and was placed in withholding-only proceedings.

15

23. Luciano feared contracting COVID-19 while at YCJ. Even though his pod was

16 not completely full, he reported that it was not possible to consistently maintain six feet of

17 distance. Throughout his detention, his wife and children stood ready to receive him into their

18 home in Oakland, California.

19

24. Coraima Yaritza Sanchez Nuñez is a 26-year-old Mexican national who was in

20 civil detention at Mesa Verde from April 2019 until ICE released her under the pressure of this

21 litigation. The United States is the only country she knows, having been brought here as an

22 infant. She received Deferred Action for Childhood Arrivals (“DACA”) when the program first

23 began. As a DACA beneficiary, she worked as a full-time Lead Teller at Chase Bank for just

24 under five years. She was detained by ICE in 2019, the year after she lost her DACA protection.

25 She is currently pursuing an appeal to the BIA. Her U.S.-citizen husband will be filing a Form I-

26 130, Petition for Alien Relative, in order to begin the Immigrant Visa process on her behalf.

27

25. Coraima has always suffered from asthma, a condition aggravated whenever she

28
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1 suffers from a cold or flu. She knows that her asthma puts her at a higher risk of suffering

2 severe complications from COVID-19. She has participated in the hunger strike at Mesa Verde

3 to convey through symbolic speech the inhumane conditions inside the facility—including not

4 receiving antibacterial soap, cleaning supplies, and protective equipment—and to call for

5 liberation from immigration detention. She felt very threatened by Defendants’ threats of

6 suspending her access to commissary, but she was even more worried about dying from

7 COVID-19. Throughout her time in detention, her husband and family who all live in Sonoma,

8 County, California, stood ready to receive her back into their home.

9

26. Javier Alfaro is a 39-year-old Salvadoran national who was detained by ICE at

10 Mesa Verde from January 14, 2020 until ICE released him under the pressure of this litigation.

11 Javier was granted Temporary Protected Status (TPS) in approximately 2001, and only when he

12 was placed in removal proceedings did he learn that DHS sought to terminate it. He was

13 arrested by plainclothes ICE officers at the Fresno County Courthouse after a criminal court

14 hearing he was required to attend. Between then and his release in May 2020, he was separated

15 from his wife and three U.S.-citizen children, ages 15, 8, and 10 months.

16

27. Javier suffers from diabetes, high cholesterol and high blood pressure. In Mesa

17 Verde, he worried for himself and for the safety of all detainees, because their ability to stay

18 healthy was largely out of their control. He reported that even after the onset of the pandemic,

19 within hours of a bed emptying in his 100-person dorm, a new detainee would arrive to fill it.

20 Throughout Javier’s detention, his family stood ready to receive him back into their home in

21 Mendota, California.

22

28. Dung Tuan Dang is a 49-year-old Vietnamese national who was detained by

23 ICE at Mesa Verde from June 7, 2019 until the court ordered his temporary release pending this

24 litigation on June 10, 2020. Dung’s father was a U.S. soldier fighting in Vietnam, and his

25 mother was a Vietnamese woman. His biological parents abandoned him, and he was taken in

26 by an adoptive Vietnamese family. He immigrated lawfully to the United States in 1989 under

27 the Homecoming Act and has lived here continuously since then. Despite the fact that Dung was

28
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1 stoned, beaten, and forced into a labor camp as a child, the Immigration Judge found that he

2 would not face the requisite level of risk if he were deported to Vietnam. His application for

3 protection was denied and he was ordered removed. He is now appealing to the BIA. Even if his

4 removal order becomes final, he is very unlikely to be deported to Vietnam because of a long-

5 standing diplomatic agreement concerning Vietnamese nationals who entered the United States

6 before July 12, 1995. In that event, it is likely he eventually will be entitled to release from

7 detention if and when it becomes clear the detention serves no legitimate purpose.

8

29. Dung has a latent tuberculosis infection, which puts him at an elevated risk of

9 suffering severe complications from COVID-19. After the onset of the pandemic, he was

10 terrified to remain at Mesa Verde, where social distancing is impossible. He participated in the

11 hunger strike aimed to get public attention on the dangers of COVID-19 to himself and fellow

12 detained individuals. Throughout his detention, his adopted parents and siblings, stood ready to

13 receive them in their home in San Jose, California.

14

30. Juan Jose Erazo Herrera is a 20-year-old national of El Salvador who first

15 entered the United States as an unaccompanied minor at the age of 16 years old. He is currently

16 detained at YCJ. He is a survivor of child abuse, and as a teenager, he was tortured by the

17 Salvadoran military and police, and also suffered threats from gang members. The immigration

18 judge denied his application for relief. Juan Jose appealed this decision, and his case is currently

19 at the Ninth Circuit Court of Appeals.

20

31. In August 2020, a family court judge appointed U.S. citizen Pedro Alanis as Juan

21 Jose’s legal guardian due to abandonment and neglect by both parents and abuse by his mother.

22 He now also has a pending application for Special Immigrant Juvenile Status. Juan Jose has

23 been a leader while in custody at Yuba, participating in six hunger strikes and frequently

24 speaking out about conditions there. The California Immigrant Youth Justice Alliance and

25 numerous other local organizations have submitted letters in support of his release. He is a past

26 smoker, and suffers from post-traumatic stress disorder based on the violence he suffered in El

27 Salvador.

28
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1

32. Rajnish Rajnish is a 19-year-old national of India who fled to the United States

2 after he was badly beaten and threatened with death because of his family’s political beliefs.

3 Upon arrival, he was designated an unaccompanied minor. He is currently detained at YCJ. In

4 July 2020, an Immigration Judge granted Rajnish withholding of removal because of the high

5 likelihood he will suffer renewed persecution or torture in India. However, he remains detained

6 because the government appealed the Immigration Judge’s decision to the Board of Immigration

7 Appeals, a process which could take months to resolve. Rajnish suffers from adjustment

8 disorder and schizophrenia. He continues to be designated a patient with “mental health special

9 needs” by health care workers at YCJ. He has suffered symptoms consistent with COVID

10 during his detention, including significant and recurring respiratory symptoms, but has never

11 been tested for COVID-19.

12

33. Willian Matias Rauda is a 23-year-old father of two U.S. citizen children. He is

13 currently detained at Mesa Verde. He fled his native El Salvador at 16 years old after being

14 caught in a crossfire between gangs and police. As a teenager, gangs forced him to do work for

15 them against his will. The police misidentified him as an active gang member, and he was

16 tortured on two different occasions by two different state security forces.

17

34. In removal proceedings, Willian applied for relief under the Convention Against

18 Torture, asserting that it was more likely than not that he would be tortured again if deported to

19 El Salvador. The Immigration Judge found that Willian had been tortured on multiple occasions

20 by police, but denied Willian’s application because he found that Willian was now a family man

21 and unlikely to be tortured because police would no longer identify him as a gang member. He

22 appealed this decision. His case is currently before the Ninth Circuit Court of Appeals. Willian

23 suffers from asthma, and has reported significant breathing problems since being detained at

24 Mesa Verde. His asthma places him at an elevated risk of suffering severe complications from

25 COVID-19. Willian has also complained of severe prostate pain over the past several months.

26

B. Defendants

27

35. Respondent-Defendant David Jennings is the Acting Field Officer Director for

28
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1 the San Francisco Field Office of ICE and maintains his office in San Francisco, California,

2 within this judicial district. The San Francisco Field Office is responsible for carrying out ICE’s

3 immigration detention operations at Mesa Verde and YCJ. Defendant Jennings is a legal

4 custodian of Plaintiffs. He is sued in his official capacity.

5

36. Respondent-Defendant Tony H. Pham is the Deputy Director and Senior Official

6 Performing the Duties of the Director of ICE. Defendant Pham is responsible for ICE’s policies,

7 practices, and procedures, including those relating to the detention of immigrants. Defendant

8 Pham is a legal custodian of Plaintiffs. He is sued in his official capacity.

9

37. Respondent-Defendant ICE is a federal law enforcement agency within the

10 Department of Homeland Security. ICE is responsible for the criminal and civil enforcement of

11 immigration laws, including the detention and removal of immigrants. Enforcement and

12 Removal Operations (“ERO”), a division of ICE, manages and oversees the immigration

13 detention system. Defendant ICE is a legal custodian of Plaintiffs.

14

38. Defendant GEO Group, Inc. is a private company that contracts with government

15 entities to provide corrections officers and other detention-related services, and in doing so

16 performs a governmental function. It is headquartered in Boca Raton, Florida. GEO contracts

17 with ICE to operate Mesa Verde.

18

39. Defendant Nathan Allen is a GEO employee and the warden of Mesa Verde

19 Detention Facility. He is sued in his official capacity.

20 IV. FACTUAL ALLEGATIONS

21

A. COVID-19 Poses Grave Risk of Harm, Including Serious Illness or Death.

22

40. COVID-19 is a disease caused by a coronavirus that has reached pandemic

23 status.

24

41. As of October 2020, COVID-19 has killed over 220,000 people in the United

25 States, and more than 8.5 million people in the United States have tested positive for the virus.

26 For months, the United States has had more confirmed cases than any other country in the

27 world.

28
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1

42. As of October 2020, there were ICE reports that there have been more than 6,800

2 confirmed cases of COVID-19 in its detention facilities, although this total is likely understated,

3 due to the dearth of testing at ICE facilities.2

4

43. People who contract severe cases of COVID-19 need intensive medical support,

5 requiring highly specialized equipment that is in limited supply, and an entire team of care

6 providers, including 1:1 or 1:2 nurse to patient ratios, respiratory therapists, and intensive care

7 physicians.

8

44. COVID-19 infects people who come into contact with respiratory droplets and

9 aerosols that contain the coronavirus, such as those produced when an infected person talks,

10 coughs or sneezes. Such droplets and aerosols can spread between people at distances of greater

11 than six feet. The virus that causes COVID-19 is highly contagious and can survive for long

12 periods in the air and on inanimate surfaces, making it inevitable that the disease will spread

13 among communities where it appears.

14

45. COVID-19 can severely damage lung tissue, which requires an extensive period

15 of rehabilitation, and in some cases, can cause a permanent loss of respiratory capacity.

16 COVID-19 may also cause inflammation of the heart muscle. This is known as myocarditis; it

17 can affect the heart muscle and electrical system, reducing the heart’s ability to pump. This

18 reduction can lead to rapid or abnormal heart rhythms in the short term, and long-term heart

19 failure that limits exercise tolerance and the ability to work.

20

46. COVID-19 also can trigger an over-response of the immune system, further

21 damaging tissue and potentially resulting in widespread damage to the body’s organs, including

22 permanent injury to the kidneys and neurologic injury.

23

47. The need for care, including intensive care, and the likelihood of death, is much

24 higher from COVID-19 than from influenza.

25

48. Current research estimates the fatality rate for COVID-19 to be much higher—

26 ten times or more—than a severe seasonal influenza, even in advanced countries with highly

27

28 2 ICE Guidance on COVID-19, U.S. Immigration and Customs Enforcement, https://www.ice.gov/covid19.
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1 effective health care systems.

2

49. There is no known cure for COVID-19 at this time. The only way to protect

3 people from grave illness and death is to prevent them from being infected with the coronavirus.

4 Thus, the only known means of minimizing the risk of infection is social distancing, combined

5 with rigorous sanitization practices. The only means of definitively detecting infection is

6 testing. Promising forms of treatment, such as Remdesivir, remain expensive and not widely

7 available.

8

50. Nor is there scientific consensus as to whether COVID-19 infection confers

9 immunity. Subsequent infections are possible and can be more serious than the initial infection.

10

B. Everyone Detained at the Facilities is Vulnerable to Harm from COVID-19.

11

51. Every adult faces grave risks of harm from COVID-19, not just those deemed

12 particularly vulnerable. The CDC has reported that up to 20% of coronavirus hospitalizations in

13 the United States were of people under 44. And the WHO has reported that, globally, 10-15% of

14 adults under 50 who contract COVID-19 suffer moderate to severe cases.

15

52. Recent findings reveal that the incidence of COVID-19 in the U.S. is “highest

16 amount young adults ages 20 to 29” and “adults ages 30 to 39” are the “second-largest group of

17 cases.”3 A research paper published in the American Medical Association’s Internal Medicine

18 Journal found that, in a study of 3,200 adults ages 18 to 34 hospitalized with COVID-19, 21

19 percent required intensive care, 10 percent required mechanical ventilation and nearly 3 percent

20 died.4 These findings make clear that “Covid-19 is a life-threatening disease in people of all

21 ages….”5

22

53. Preliminary data shows that Black and Hispanic people are twice as likely to die

23 of COVID-19 as are white people. There is a significantly higher proportion of Black and

24 Hispanic people at the Facilities than in the broader U.S. population.

25

54. The Facilities also include a disproportionate number of people at heightened

26
3 Jacqueline Stenson, Young people are at risk of severe Covid-19 illness, NBC News (Sept. 28, 2020),
27 https://www.nbcnews.com/health/health-news/young-people-are-risk-severe-covid-19-illness-n1240761.
4 Id.
28 5 Id.
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1 risk for other reasons. The CDC and other experts have identified several particularly vulnerable

2 groups, including older adults, people who are immunocompromised, and people with a variety

3 of pre-existing medical conditions of any age, including lung disease, heart disease, chronic

4 liver or kidney disease (including hepatitis and dialysis), diabetes, asthma, epilepsy,

5 hypertension, compromised immune systems (such as from cancer, HIV, or autoimmune

6 disease), blood disorders (include sickle cell disease), inherited metabolic disorders, stroke

7 developmental delay, pregnancy (current or recent), and obesity.

8

55. A significant percentage of the individuals at the Facilities have these medical

9 conditions. Many of these conditions are disproportionately present among populations who are

10 indigent with little or no access to high-quality healthcare, which is true of class members. In

11 many cases, these individuals may not even be aware that they have relevant pre-existing

12 conditions. Many class members likely have undiagnosed risk factors for COVID-19.

13

C. Conditions at the Facilities Create a Massive Risk of COVID-19 Infection.

14

56. The conditions at the Facilities endanger the lives of all who are detained there,

15 as well as staff who work there.

16

57. Because of the ease with which COVID-19 can spread via respiratory droplets,

17 aerosolized particles, and also through long-lasting contamination of surfaces, enclosed group

18 environments are especially prone to facilitating the rapid spread of COVID-19.

19

58. Enclosed group environments, and especially prisons and detention centers, have

20 long been the epicenters of the most severe COVID-19 outbreaks. By the time this case was

21 filed, more than 700 people had tested positive at the jail complex on Rikers Island, which

22 boasted one of the country’s fastest rates of transmission.6 Prior to the Rikers outbreak, Cook

23 County Jail in Chicago was considered the “largest single point of infection in the U.S., with

24 more than 500 people testing positive.”7 Since then, enclosed carceral settings have continued to

25 experience large-scale, dangerous, outbreaks. Avenal State Prison is the “state prison with the

26

27

28
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1 highest cumulative case count,” with a staggering 3,246 confirmed COVID-19 infections.8 A

2 state appellate court recently ordered San Quentin State Prison, where 2,539 inmates have tested

3 positive for COVID-19, to release or move nearly 1,500 inmates, holding that this was the only

4 means to protect inmates in this congregate setting.9 These group settings share fundamental—

5 and dangerous—similarities to detention centers like the Facilities: numerous people living

6 indoors in close proximity, staff that interacts with multiple individuals, and regular foot traffic

7 in and out of the facility.

8

59. Many outbreaks in carceral settings have been traced to new entrants who were

9 not tested and quarantined properly. At San Quentin State Prison (“San Quentin”), over 1,500

10 inmates and over 200 staff were infected after being commingled with inmates who were

11 transferred from a facility with a known outbreak based on outdated test results and without

12 appropriate quarantining.10 Detainee transfers without appropriate testing and quarantine

13 practices have also caused COVID-19 outbreaks in ICE detention centers in five states.11 Staff

14 who come and go between their communities and congregate facilities are another widely

15 recognized cause of transmission. See Hernandez Roman v. Wolf, CV 20-00768 TJH, 2020 WL

16 6107069, at *8 (C.D. Cal. Oct. 15, 2020) (“[T]he current COVID-19 outbreak [at Adelanto] was

17 most likely caused by a staff member who – hopefully, unknowingly – reported to work while

18 infected with COVID-19.”).

19

60. In response to such outbreaks, jails in more than half of the states in the country

20 have released thousands of people from criminal custody, acknowledging the grave threat that

21

22 8 Kerry Klein, Valley's New Cases Drop, But Not Within Avenal State Prison - COVID-19 Update For Sept. 25,

23

Valley Public Radio (Sept. 25, 2020), https://www.kvpr.org/post/valleys-new-cases-drop-not-within-avenal-stateprison-covid-19-update-sept-25#stream/0; The New York Times, Covid in the U.S.: Latest Map and Case Count,

24

https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html (last visited Oct. 23, 2020). 9 Covid in the U.S.: Latest Map and Case Count, supra note 7; Rebecca Griesbach and Timothy Williams, San

25

Quentin Ordered to Reduce Prison Population by Half Over Virus Fears, The New York Times (Oct. 21, 2020), https://www.nytimes.com/2020/10/21/us/san-quentin-prison-coronavirus.html.

26

10 Bob Egelko, San Quentin coronavirus outbreak apparently result of missed steps by prison overseer, San Francisco Chronicle (July 20, 2020), https://www.sfchronicle.com/news/article/San-Quentin-coronavirus-outbreak-

27

apparently-15421664.php 11 Lisa Riordan Seville and Hannah Rappleye, ICE keeps transferring detainees around the country, leading to

COVID-19 outbreaks, NBC News (May 31, 2020), https://www.nbcnews.com/politics/immigration/ice-keeps-
28 transferring-detainees-around-country-leading-covid-19-outbreaks-n1212856

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1 an outbreak in jails and detention centers poses.12 As the court noted in United States v.

2 Garlock, No. 18-cr-00418-VC, 2020 WL 1439980, at *1 (N.D. Cal. Mar. 25, 2020), “[b]y now

3 it almost goes without saying that we should not be adding to the prison population during the

4 COVID-19 pandemic if it can be avoided.”

5

61. The Facilities are similarly dangerous enclosed environments. Detainees in the

6 Facilities live, sleep, and eat in congregate, enclosed settings. Before a series of emergency

7 court orders in this case reduced their populations, detainees in YCJ and Mesa Verde had no

8 ability to keep a safe distance from large groups or to avoid surfaces that countless others

9 regularly contact. And they were subject to security measures that render “social distancing”

10 impossible. These are ideal incubation conditions for the rapid spread of COVID-19. Indeed,

11 they resulted in a catastrophic COVID-19 outbreak at Mesa Verde that infected more than half

12 of the detainees in the facility at the time.

13

62. At the time of filing the Complaint, at Mesa Verde, all detainees lived in four

14 dormitories that held up to 100 detainees. As of April 2, 2020 two dorms were at or near

15 capacity. In these dormitories, detainees must share one large room for sleeping, eating, and

16 socializing. Their beds are bunked and placed only a few feet apart. Scores of detainees in each

17 dormitory must share a relatively small number of sinks, toilets, and showers. The facility has

18 two single-cell medical segregation units, three single-cell units for administrative segregation,

19 and three intake units that are not designed, outfitted or authorized for long-term detention.

20 These few individual cells are regularly occupied for reasons unrelated to COVID infections.

21 There is thus limited space for isolation or quarantine in the event of an infection or outbreak.

22

63. At the time of filing the Complaint, at YCJ, detainees lived in a variety of

23 housing units, each with its own alphabetical designation. There are three dorms (B, C, R) in

24 which detainees sleep in bunk beds in close proximity to one another. The C and D dorms have

25 50 beds. Six other housing units (G, H, I, J, K, L) have bunk beds bolted to the wall and are

26 separated from corridors by a set of bars with open space between the bars, so air flows freely

27
12 Response to the COVID-19 pandemic, Prison Policy Initiative (Apr. 16, 2020),
28 https://www.prisonpolicy.org/virus/virusresponse.html
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1 between the cells and the corridors. The distance from top to bottom bunk throughout the

2 facility is less than six feet. Several other housing units (A, D, E, F, P, S, Q, T and N) involve

3 single-, double- or quad-cells surrounding a common area. Some of these are used as

4 administrative and medical segregation units. YCJ includes both County and ICE detainees, and

5 at the start of this litigation, various units commingled the two groups.

6

64. As of April 18, 2020, there were 157 ICE detainees at YCJ. This marked a net

7 increase of seven ICE detainees at YCJ since April 2. During the same period, the YCJ

8 population of criminal detainees decreased by several dozen. Thus, during the same period that

9 Yuba County responded to COVID-19 by decreasing its population of criminal detainees, ICE

10 made the same facility more crowded than it otherwise would have been.

11

65. Food preparation and food service in the Facilities is communal, with little

12 opportunity for disinfection. Sinks, toilets, and showers are also shared. The showers are

13 consistently dirty and infrequently sanitized.

14

66. Staff members in the Facilities arrive and leave on a shift basis, and until the

15 Court issued an order requiring testing of Mesa Verde staff, there was limited ability to

16 adequately screen staff for new, asymptomatic infection.

17

67. Moreover, because detention facilities also limit access to items and services that

18 are necessary to maintaining hygiene, such as hand sanitizer and clean clothes, the risk of

19 disease spread is even higher. And typically, there is little instruction given to detainees

20 regarding sanitation, including in response to the COVID-19 pandemic. At the Facilities,

21 detainees have not been provided with hand sanitizer. They have been instructed about the need

22 for social distancing, but not consistently provided with conditions in which it can be practiced.

23

68. Months into this litigation, Defendants had a policy and practice of introducing

24 most new detainees into Mesa Verde with no testing or quarantine, despite the risks. They relied

25 primarily on screening for symptoms. The fact that no detainees were tested for COVID-19 by

26 late July as a result of an identification of COVID symptoms strongly suggests that the

27 symptom screening was inadequate. ICE misrepresented its intake policy in a sworn filing and

28
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1 Defendants began testing new intakes only after the commencement of this litigation.

2

69. Until required to do so by order of the Court, staff members at the Facilities were

3 not systemically testing detainees for COVID-19 or being tested themselves. The daily

4 temperature test introduced at YCJ was not an adequate replacement for an actual COVID-19

5 test. Even when more than a dozen staff members at Mesa Verde tested positive for COVID-19,

6 Defendants did not modify their policies to require greater staff testing or quarantining to

7 minimize the risk of transmission to class members.

8

70. Just days before the filing of the Complaint in this action, a judge within the

9 Northern District found that conditions in YCJ and Mesa Verde made them ripe for the spread

10 of COVID-19 and rendered social distancing impossible:

11

[P]etitioners cannot practice meaningful social distancing in their respective

detention facilities. Petitioners have offered evidence, undisputed by respondents,

12

that detainees, both at Yuba and Mesa Verde, are kept in close proximity, i.e., less

than six feet apart, not only when in their living quarters… but also during meals…

13

and, at Yuba, when lining up for temperature checks as well.

14 Bahena Ortuño, 2020 WL 1701724, at *4.

15

71. Dr. Robert Greifinger, a correctional health expert with over three decades of

16 prisoner health care experience, attests that the crowded conditions at immigration detention

17 centers like YCJ and Mesa Verde make one of the most vital preventive measures, social

18 distancing, impossible.

19

72. At the outset of the pandemic, experts predicted that it was “perhaps inevitable”

20 that COVID-19 would reach immigration detention facilities like YCJ and Mesa Verde, if it had

21 not already.

22

73. After reviewing the COVID-19 protocols announced by ICE at the onset of the

23 pandemic, including the April 10 guidance, Dr. Greifinger concluded that the guidance was

24 “deficient” and did not reflect the reality of the overcrowded conditions in immigration

25 detention. Dr. Greifinger found that the most important mitigation measures for congregate

26 facilities—social distancing and release—are neglected in the COVID-19 protocols. Social

27 distancing is presented as “optional,” and as Plaintiffs consistently report, is unacknowledged

28
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1 and non-existent at the facilities. While “release is the most important means of mitigating the

2 spread of COVID-19 in ICE detention centers,” Dr. Greifinger concluded that ICE presents

3 “arbitrary” and “inadequate” goals with regard to release.

4

74. Dr. Greifinger further cited Defendants’ failure to test and quarantine new

5 entrants into the facilities as “rais[ing] concerns about the virus’ introduction into the facilities.”

6 Although medical consensus recognizes testing and quarantine for new entrants as a necessary

7 safety measure to prevent the virus from entering the facility, ICE guidance issued as recently as

8 September 4, 2020 suggests only that detention centers “[c]onsider testing all newly detained

9 persons before they join the rest of the population in the detention facility.”

10

75. The ICE guidance issued on April 10, 2020 acknowledged that the options to

11 safeguard vulnerable detainees “depend on available space.” The updated guidance issued on

12 September 4, 2020 purports to excuse detention centers from maintaining “strict social

13 distancing” because it “may not be possible in congregate settings such as detention facilities”

14 and suggests only that it be maintained “[w]henever possible.” This updated guidance,

15 however, cannot excuse or cure the constitutional violations alleged herein. The evidence at

16 YCJ and Mesa Verde shows that the immigration facilities simply do not have that space, and

17 therefore are incapable of protecting Plaintiffs and other detainees from the risks of COVID-19.

18

76. Until the Court ordered them to do so, Defendants conducted no regular testing

19 in Mesa Verde. In YCJ, Defendants still conduct no regular testing of the detainee population.

20 In a context where wide-scale testing is unavailable or not implemented, a lack of proven cases

21 of COVID-19 is functionally meaningless in determining the risk of COVID-19 transmission

22 within an institution.

23

77. Defendants’ lack of testing meant they could not adequately protect detainees, in

24 part, because of the prevalence of asymptomatic spread. As the CDC has recognized, COVID-

25 19 can be spread by people who are not showing symptoms. Indeed, as one example of the

26 exponential rate of asymptomatic transmission, the Boston Health Care for the Homeless

27 Program tested every resident at a Boston homeless shelter for coronavirus. Program doctors

28
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1 were “stunned” by the results: 146 of the 397 (36%) people tested were positive but

2 asymptomatic.13

3

D. Defendants’ Resistance to COVID-19 Testing and Quarantine Led to a

Massive Outbreak in Mesa Verde.

4

5

78. Defendants several times considered plans to conduct testing among the detainee

6 population in Mesa Verde, but consistently rejected those plans because even at reduced

7 population levels, even a handful of identified positive cases would require isolation and

8 cohorting exceeding the available space in the facility. Defendants did not take adequate

9 measures to resolve the space constraints. Sadly, Defendants’ failure to take steps to ensure

10 safe conditions of confinement played out with predictably dangerous and unconstitutional

11 consequences for class members.

12

79. In June and July 2020, as coronavirus cases spiked in the community

13 surrounding Mesa Verde, increasing numbers of Mesa Verde staff informed GEO that they had

14 tested positive offsite. GEO had no systematic policy for testing staff, requiring offsite staff

15 testing, or ensuring that offsite positive tests were reported to management and acted upon.

16 Defendants also remained steadfast in their refusal to develop or implement testing protocols for

17 detainees. Defendants purported to test symptomatic members of the proposed class, but before

18 the end of July asserted that they found none. Defendants established in late June a system to

19 offer intake testing for incoming detainees, but introduced members of the purported class to

20 dormitory settings whether or not they agreed to be tested. Defendants refused to test one

21 detainee who had been exposed to infected staff, stating that he could not be tested unless he

22 was symptomatic. Defendant GEO confirmed that a staff member should come to work without

23 any obligation to test despite living with COVID-positive family members.

24

80. On July 1, 2020, a new entrant into the facility tested positive for coronavirus.

25 He had exposed six additional entrants to the virus. Lacking space to quarantine the additional

26

27 13 See John Karalis, Coronavirus spread: Testing shows ‘stunning’ asymptomatic COVID-19 rate at Boston
homeless shelter, Masslive.com, Apr. 15, 2020 https://www.masslive.com/coronavirus/2020/04/coronavirus-
28 spread-testing-shows-stunning-asymptomatic-covid-19-rate-at-boston-homeless-shelter.html.
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1 exposed entrants, Defendants transferred them to the Adelanto Detention Facility in Adelanto,

2 California, increasing the risk of transmission associated with transfers. A GEO officer exposed

3 to the infected entrant also tested positive.

4

81. By July 29, thirteen facility staff members had tested positive. This number is

5 almost certainly an undercount of staff members who had had COVID by this time, as there was

6 no systematic staff testing in place. Yet that same week, Defendants increased the number of

7 detainees in Mesa Verde, booking in more new entrants than were released.

8

82. On July 29, a second new entrant tested positive in intake. Instead of

9 quarantining any close contacts of the positive proposed class member, Defendants immediately

10 introduced one close contact to Dormitory B (“Dorm B”) and commingled him with the general

11 population.

12

83. Only July 29, Albert Orellana, a highly symptomatic detainee housed in Dorm B

13 also tested positive for the virus. At the time, 33 other class members were detained in Dorm B,

14 but several had been moved from Dorm B to Dorms C and D in the several days preceding the

15 positive test, increasing the risk of facility-wide spread. The following day, after counsel for

16 Plaintiffs urged them to do so, Defendants tested the remaining class members in Dorm B using

17 laboratory tests that would take days to return results. Defendants took no steps to test class

18 members in other dorms. Exposed class members remained housed in congregate dorms while

19 awaiting their test results.

20

84. On July 31, Yao Xeng Saeturn, a medically-vulnerable class member in Dorm C

21 who had been requesting medical attention for symptoms consistent with COVID-19 for at least

22 two days, was hospitalized. He tested positive for COVID-19 at the hospital. On August 1,

23 Defendants released him from custody while he was hospitalized. For days, Defendants failed to

24 test the remaining 31 detainees in Dorm C. On August 4, after Plaintiffs filed a motion for an

25 emergency TRO requiring Defendants to test all remaining class members using rapid-results

26 tests, Defendants offered laboratory testing to the remaining class members in Dorm C and

27 throughout the facility. Defendants were aware that results would take days to come back.

28
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1 Defendants still housed exposed detainees in congregate dorms while awaiting these results.

2

85. On August 3, Defendants had received test results for detainees in Dorm B. Five

3 had tested positive. Lacking any appropriate space to isolate them, Defendants isolated them in

4 a cohort in spaces otherwise reserved for intake. Notably, the 27 detainees who tested negative

5 had been exposed to the five infected detainees for four days while awaiting test results.

6 Nonetheless, they were not immediately retested.

7

86. On August 4, Defendants combined the class members from Dorm B who had

8 tested negative in tests administered on July 30 with the class members in Dorm C, who were

9 only tested on the same day. This increased the density of Dorm C significantly with no reliable

10 determination of who in the dorm was infected with coronavirus. Defendants did not receive the

11 laboratory results for the tests administered to Dorm C on August 4 for over two weeks.

12 Multiple detainees in the commingled dorm of COVID contacts were already symptomatic at

13 the time the dorms were commingled.

14

87. On August 6, the Court ordered that Defendants maintain a dedicated dormitory

15 for infected class members, conduct weekly testing of all class members detained in the facility,

16 and refrain from booking new entrants into the facility, among other things. The Court left open

17 the question of whether to administer point of care tests, which return results in a matter of

18 minutes, or laboratory tests, which return results days or weeks later. Defendants refused to use

19 point of care tests.

20

88. On August 14, Defendants received test results for some class members who had

21 been combined in Dorm C and had tests taken August 11. More than half tested positive. When

22 Defendants finally received the results of their August 4 tests on August 19, it became clear that

23 11 of the 32 who tested positive on August 14 had already been infected on August 4. On

24 August 14, the Court ordered immediate, point of care testing for all detainees who had not yet

25 tested positive. Eventually, approximately 90% of the cohorted dorm would test positive for the

26 virus. At least four class members were rushed to the hospital; two required hospitalization.

27 Although the outbreak occurred nearly six months into the pandemic, Defendants had no written

28
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1 policies for providing medical care to class members suffering from COVID-19 at Mesa Verde.

2 Defendants also had no plan for cleaning and sanitizing their detention space and required

3 infected detainees to clean and sanitize their own dorm.

4

89. Defendants’ refusal to address their space constraints in the months leading to

5 the outbreak created conditions in which infection spread like wildfire, as experts knew it

6 would. Defendants’ failure to procure sufficient point of care tests, and refusal to use the point

7 of care tests they had, caused delays in testing during while dozens of class members were

8 exposed to the virus, many of whom were ultimately infected. Only through court orders did

9 Defendants take minimal steps to control the outbreak by conducting universal testing.

10

E. Maintaining Significantly Reduced Population Levels is Required to Ensure

Reasonable Safety for Individuals at the Facilities.

11

12

90. Social distancing is required to prevent the widespread transmission of COVID-

13 19.

14

91. To achieve social distancing at the Facilities, the detainee population must

15 remain significantly reduced.

16

92. Reviewing current conditions at both facilities at the time of filing the

17 Complaint, Dr. Greifinger concluded that YCJ and Mesa Verde “are not prepared to prevent the

18 spread of COVID-19, treat those who are most medically vulnerable, and contain any outbreak,

19 and the risk of infectious spread at each of these facilities is very high.” He concluded further

20 that “[t]he facilities fail to meet minimally acceptable standards of social distancing, putting the

21 residents at grave and unacceptable risk of pervasive infections, leading to serious illness and

22 death. The only way to avoid these unacceptable risks is to materially reduce the population,

23 implement social distancing as described herein, and ensure appropriate hygiene.”

24

93. It is not possible to achieve social distancing if more than one person is housed

25 in each cell, or if beds in dorms are placed within less than 8-10 feet of each other. Nor can

26 anyone share a bunk bed with another person under social distancing.

27

94. The government’s own subject matter experts have also called for ICE to release

28
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1 detainees to protect them. Nearly five months ago, Dr. Scott Allen and Dr. Josiah Rich, medical

2 experts to DHS, warned the agency about the danger to detainees of rapid spread of COVID-19

3 in immigration detention facilities.

4

95. In a whistleblower letter to Congress, Dr. Allen and Dr. Rich recommended that

5 “[m]inimally, DHS should consider releasing all detainees in high risk medical groups such as

6 older people and those with chronic diseases.” They concluded that “acting immediately will

7 save lives not of only those detained, but also detention staff and their families, and the

8 community-at-large.”

9

F. ICE Has Failed to Implement Adequate Measures to Contain the Risk of

COVID-19 Transmission in its Facilities.

10

11

96. Except as required by court orders, ICE has failed to adequately heed the

12 imperative to reduce population levels in its facilities so that detainees are able to practice safe

13 social distancing. Instead, ICE’s response to the pandemic has been characterized by a business-

14 as-usual approach. ICE has failed to adequately reduce population levels in its facilities, just as

15 it has failed to ensure the availability of adequate hygiene products, sanitation, and medical

16 care. In its Order Granting Motion for Preliminary Injunction (ECF 357 at 2), the Court

17 concurred that at the time the Complaint was filed, “for the ICE detainees at Mesa Verde and

18 Yuba County Jail, it was pretty much business as usual.” Since then, in the face of Defendants’

19 dangerous response to positive cases in Mesa Verde, the Court recognized that “[D]efendants

20 have also lost the right to be trusted that they will accomplish on their own what the plaintiffs

21 contend requires a court order to ensure.” (ECF 500 at 2.) Meanwhile, ICE has continued to

22 conduct its standard enforcement and detention operations, further increasing the risk of

23 COVID-19 transmission.

24

97. From early on in California’s state of emergency, Defendants have resisted the

25 need for substantial adaptations to their operations to mitigate the spread of the virus. As

26 Californians in many cities began to shelter in their homes in compliance with public health

27 directives on March 16, 2020, ICE’s Los Angeles Field Office executed pre-dawn raids to cram

28
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1 even more immigrants into detention centers.14 Following public outcry, ICE claimed it would

2 modify its enforcement efforts in apparent recognition of the need to protect public health, but

3 declined to suspend arrests.15

4

98. The day after, however, in response to a lawsuit for the release of vulnerable ICE

5 detainees, the agency again demonstrated its failure to appreciate the threats posed by the

6 COVID-19 pandemic, insisting that “Plaintiffs’ assertion that detention per se poses an

7 increased risk of health complications or death from COVID-19 is purely speculative.”16 The

8 agency has repeated this claim in defending subsequent lawsuits.

9

99. On April 10, 2020, after weeks of defending itself against a tidal wave of

10 litigation, ICE issued a guidance document titled “COVID-19 Pandemic Response

11 Requirements.” This document, however, falls well short of what is needed to protect the people

12 in ICE’s custody. The document acknowledges the need for social distancing, but sets an

13 arbitrary goal of reducing ICE facility populations to 75% of their capacities, a generic standard

14 that is devoid of any detailed analysis of relevant factors and that fails to account for variation

15 in facility design. Less than one week later, ICE undermined its limited April 10 guidance,

16 when then-Acting Director Albence stated to the congressional Committee on Oversight and

17 Reform that “our review of our existing population has been completed” and that ICE had no

18 existing plans to release additional detainees to slow the spread of the virus.

19

100. Further, although ICE has made other updates to its non-binding guidance

20 responding to the pandemic, the most recent version, released on September 4, 2020, still

21 maintains this arbitrary 75% population goal, regardless of whether that number actually makes

22 social distancing possible.

23

101. ICE has reiterated its intent to arrest and detain immigrants in facilities like the

24 Facilities. On September 25, 2020, ICE updated its COVID-19 information webpage to

25

26 14 Brittny Mejia, With Masks at the Ready, ICE Agents Make Arrests on First Day of California Coronavirus
Lockdown, L.A. Times, Mar. 17, 2020, https://www.latimes.com/california/story/2020-03-17/for-ice-agents-its-
27 business-as-unusual-day-after-sweeping-coronavirus-order.
15 ICE Guidance on COVID-19, U.S. Custom and Immigration Enforcement, https://www.ice.gov/covid19.
28 16 Defs.’ Opp., Dawson v. Asher, No. 20-0409 (W.D. Wash. Mar. 18, 2020), ECF No. 28 at 8.
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1 announce its plans to proceed with full enforcement operations.17 Furthermore, ICE has recently

2 announced a series of raids targeted at cities in California, including San Francisco and Los

3 Angeles.18

4

102. Despite the recognized risk of COVID transmission in congregate facilities,

5 except as required by court orders Defendant GEO Group did not implement basic public health

6 measures recommended to mitigate the risk of transmission, including social distancing,

7 quarantining of new arrivals, systematic testing, and effective monitoring of symptoms.

8

103. Defendants’ head-in-the-sand response to the threats of this pandemic will prove

9 deadly to people in immigration detention if it is not remedied through this Court’s intervention.

10 As the Court has observed (ECF 357 at 3), throughout this litigation, “ICE has shown disinterest

11 and a lack of dexterity in adjusting its conduct to respond to a global crisis;” and any safety

12 improvements at the facilities “came almost entirely from this litigation: ICE acted only because

13 it was ordered to do so, or in response to concerns raised by the Court of the plaintiffs during

14 the proceedings.”

15

104. Until ordered by the Court to cease doing so (see Order Granting Motion for

16 Temporary Restraining Order, ECF 500, at 2), ICE continued to introduce new detainees into

17 both Mesa Verde and YCJ. Defendants actively resisted effective systematic testing of detainees

18 and staff, conceding only when ordered by the Court and asserting no intention to continue such

19 testing if no longer under a court mandate. Defendants do not have a competent medical plan to

20 respond to COVID and failed to meaningfully monitor symptoms to permit early identification

21 of symptomatic COVID cases, which have higher likelihood of transmission.

22

105. Inside the facilities, moreover, immigrants say that Defendants are not

23 consistently taking even the less aggressive precautionary measures necessary to contain the

24

25

26 17 Monique O. Madan, ICE reverses COVID-19 measure, says it will resume arresting non-criminal migrants,
Miami Herald (Sept. 29, 2020), https://www.miamiherald.com/news/local/immigration/article246093015.html.
27 18 Tatiana Sanchez, ICE arrests 128 undocumented immigrants in California’s sanctuary cities, critics blast Trump
for ‘political theater’, San Francisco Chronicle (Oct. 7, 2020), https://www.sfchronicle.com/bayarea/article/ICE-
28 arrests-128-undocumented-immigrants-in-15628389.php.
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1 transmission of COVID-19. Detainees at the Facilities continue to report insufficient access to

2 basic hygiene and sanitation products.

3

106. This echoes a concern of the two DHS experts, who say that “the track record of

4 ICE facilities implementing [early screening, testing, isolation and quarantine] protocols

5 historically has been inconsistent.”

6 V. CLASS ALLEGATIONS

7

107. This case is ideally suited to class treatment. Attorneys’ collective realization

8 that ICE failed to release enough people from Mesa Verde and YCJ has understandably resulted

9 in the filing of multiple individual actions in the Northern District seeking the release of their

10 particular clients. Unrepresented individuals, however, continue to languish in these facilities,

11 fearing for their lives but lacking the wherewithal to sue ICE for their release. The resource-

12 intensive process of litigating multiple individual cases is not ideally suited to the urgent

13 situation at hand, where due process requires the swift but orderly release of significant

14 numbers of ICE detainees.

15

108. This case is brought on behalf of a class consisting of all civil immigration

16 detainees at the Facilities. On April 29, 2020, the Court provisionally certified the proposed

17 class. See ECF 53 at 1.

18

109. Plaintiffs further propose two sub-classes defined as follows:

19

Sub-Class 1: All civil immigration detainees at YCJ, including those who were

20

in custody at the time this action was filed or who entered during the course of this

21

litigation, but who have been released to the community either through ICE’s

22

voluntary action or a bail order issued by this Court (the “YCJ Subclass”).

23

Sub-Class 2: All civil immigration detainees at Mesa Verde, including those who

24

were in custody at the time this action was filed or who entered during the course

25

of this litigation, but who have been released to the community either through

26

ICE’s voluntary action or a bail order issued by this Court (the “Mesa Verde

27

Subclass”).

28
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1

110. The proposed class and sub-classes satisfy the requirements of Rule 23(a)(1)

2 because they are sufficiently numerous so as to make joinder impracticable. At the time of filing

3 the Complaint, there were more than 280 class members at Mesa Verde and approximately 150

4 detainees at YCJ. And Defendants were continuing to funnel new detainees into these facilities.

5 Joinder is also impracticable because many in the proposed class are pro se, indigent, have

6 limited English proficiency, and/or have a limited understanding of the U.S. judicial system.

7

111. The proposed class and sub-classes meet the commonality requirements of

8 Federal Rule of Civil Procedure 23(a)(2) because there are common questions of law and fact

9 affecting members of the proposed class, including “whether the government must modify the

10 conditions of confinement—or, failing that, release a critical mass of [d]etainees—such that

11 social distancing will be possible and all those held in the facility will not face a constitutionally

12 violative substantial risk of serious harm.” Savino, 2020 WL 1703844, at *7; Hernandez

13 Roman, 2020 WL 5683233, at *5 (“The preliminary injunction afforded class-wide relief that

14 would have remedied the constitutional violations as to all detainees, even though it would have

15 entailed the release or transfer of only some of the detainees.”).

16

112. While some class members are healthier than others, they are all at grave risk of

17 contracting COVID-19. As another federal court held in provisionally certifying a nearly

18 identical class: It is a “troubling fact that even perfectly healthy detainees are seriously

19 threatened by COVID-19. To be sure, the harm of a COVID-19 infection will generally be more

20 serious for some petitioners than for others. Yet it cannot be denied that the virus is gravely

21 dangerous to all of us.” Savino, 2020 WL 1703844, at *7.

22

113. The proposed class and sub-classes meet the typicality requirement of Federal

23 Rule of Civil Procedure 23(a)(3) because the claims of the representative Plaintiffs are typical

24 of the claims of the class as a whole. Each named putative class representative has been harmed

25 by the same course of conduct as the rest of the class, namely Defendants’ decision to continue

26 to detain them in a setting that makes social distancing impossible. And each seeks similar relief

27 as the rest of the class.

28
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1

114. The proposed class and sub-classes meet the adequacy requirements of Federal

2 Rule of Civil Procedure 23(a)(4). Each putative class representative has committed to fairly and

3 adequately protecting the interests of the class and is aware of no conflict that would preclude

4 fair and adequate representation.

5

115. Proposed class counsel are highly qualified to serve as class counsel and

6 collectively have extensive experience litigating class actions, immigration detention cases, and

7 First Amendment issues.

8

116. Furthermore, Defendants’ conduct has harmed all class members. An injunction

9 or declaration will provide relief on a class-wide basis.

10 VI. LEGAL FRAMEWORK

11

A. Immigrant Detainees are Entitled to Constitutional Due Process Protections

Against Exposure to Infectious Disease.

12

13

117. Whenever the government detains or incarcerates someone, it has an affirmative

14 duty to provide conditions of reasonable health and safety. As the Supreme Court has explained,

15 “when the State takes a person into its custody and holds him there against his will, the

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

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

18 199–200 (1989). As a result, the government must provide those in its custody with “food,

19 clothing, shelter, medical care, and reasonable safety.” Id. at 200. Because the GEO Defendants

20 perform the federal public function of holding immigration detainees, the conditions of

21 confinement at Mesa Verde are the result of government action, and they are liable for

22 constitutional violations occurring there. Torres v. U. S. Department of Homeland Security, 411

23 F. Supp. 3d 1036, 1057 (C.D. Cal. 2019), and cases cited therein.

24

118. Conditions that pose an unreasonable risk of future harm violate the Eighth

25 Amendment’s prohibition on cruel and unusual punishment, even if that harm has not yet come

26 to pass. The Eighth Amendment requires that “inmates be furnished with the basic human

27 needs, one of which is ‘reasonable safety.’” Helling, 509 U.S. at 33 (quoting DeShaney, 489

28
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1 U.S. at 200). Accordingly, “[i]t would be odd to deny an injunction to inmates who plainly

2 proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had

3 happened to them.” Id.

4

119. The Supreme Court has explicitly recognized that the risk of contracting a

5 communicable disease may constitute such an “unsafe, life-threatening condition” that threatens

6 “reasonable safety.” Id.

7

120. These principles also apply in the context of immigration detention.

8

121. The constitutional protections afforded to immigration detainees are more

9 comprehensive than those afforded to criminal defendants. Immigrant detainees, even those

10 with prior criminal convictions, are civil detainees held pursuant to civil immigration laws.

11 Zadvydas v. Davis, 533 U.S. 679, 690 (2001). Even those who in the past were convicted of

12 crimes and have completed their criminal sentences are being detained solely by reason of their

13 immigration status. Because detained immigrants are civil detainees, their constitutional

14 protections while in custody are derived from the Fifth Amendment. The Eighth Amendment

15 prohibits punishment that is “cruel and unusual,” whereas the Due Process Clause of the Fifth

16 Amendment prohibits any punishment at all.

17

122. The Ninth Circuit has applied this principle to make clear that civil detainees,

18 like Plaintiffs here, are entitled to conditions of confinement that are superior to those of

19 convicted prisoners and to those of criminal pretrial detainees. Jones v. Blanas, 393 F.3d 918,

20 933-34 (9th Cir. 2004), cert. denied, 546 U.S. 820 (2005); see also King v. Cty. of Los Angeles,

21 885 F.3d 548, 557 (9th Cir. 2018) (finding presumption of punitive, and thus unconstitutional,

22 treatment where conditions of confinement for civil detainees are similar to those faced by pre-

23 trial criminal detainees).

24

123. Moreover, civil detainees like Plaintiffs need not show “deliberate indifference”

25 to establish a constitutional violation. Jones, 393 F.3d at 934. Instead, a condition of

26 confinement for a civil immigration detainee violates the Constitution “if it imposes some harm

27 to the detainee that significantly exceeds or is independent of the inherent discomforts of

28
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1 confinement and is not reasonably related to a legitimate governmental objective or is excessive

2 in relation to the legitimate governmental objective.” Unknown Parties v. Johnson, No. CV-15-

3 00250-TUC-DCB, 2016 WL 8188563, at *5 (D. Ariz. Nov. 18, 2016), aff’d sub nom. Doe v.

4 Kelly, 878 F.3d 710 (9th Cir. 2017).

5

124. In the context of the COVID-19 pandemic, the Ninth Circuit recently held that

6 “fail[ing] to impose social distancing,” “mix[ing] new detainees with the general population or

7 … other new detainees who arrived at different times,” and refusing to provide necessary

8 cleaning and hygiene supplies to civil immigration detainees likely violated their Fifth

9 Amendment rights by depriving them of reasonable safety. See Roman v. Wolf, 2020 WL

10 6043833 (9th Cir. Oct. 13, 2020).

11

B. Defendants Are Violating Plaintiffs’ Constitutional Due Process Rights.

12

125. The conditions described above are sufficient to demonstrate that Plaintiffs’

13 constitutional due process rights are being violated. Keeping Plaintiffs detained in such close

14 proximity to one another in unsafe conditions serves no legitimate purpose. Nor is detention

15 under these circumstances rationally related to the enforcement of immigration laws. Finally,

16 even if there were a legitimate purpose, it could be achieved by alternative and less harsh

17 methods.

18

126. ICE has a range of highly effective tools to ensure that individuals report for

19 court hearings and other appointments. For example, ICE’s conditional supervision program,

20 ISAP (Intensive Supervision Appearance Program), relies on the use of electronic ankle

21 monitors, biometric voice recognition software, unannounced home visits, employer

22 verification, and in-person reporting to supervise participants. A government-contracted

23 evaluation of this program reported a 99% attendance rate at all immigration court hearings and

24 a 95% attendance rate at final hearings.

25

127. Plaintiffs’ due process rights will continue to be violated absent court

26 intervention because the conditions of confinement imposed by Defendants place them at

27 serious risk of being infected with COVID-19 and Defendants are being deliberately indifferent

28
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1 to this critical safety concern. Although Plaintiffs need not prove deliberate indifference here,

2 they undoubtedly have. See Roman v. Wolf, supra (holding substantially similar conduct by ICE

3 and GEO in civil immigration detention violates due process).

4

128. There is no question that COVID-19 poses a serious risk to Plaintiffs. COVID-19

5 is highly contagious and can cause severe illness and death.

6

129. Defendants are aware of the serious risk that COVID-19 poses to Plaintiffs and

7 have failed to meaningfully mitigate that risk. Medical experts for the Department of Homeland

8 Security have also identified the risk of COVID-19 spreading to ICE detention centers.

9

130. Defendants also are aware that significantly reducing the detained population in

10 order to facilitate consistent, meaningful, social distancing is the only effective preventative

11 measure. Dr. Allen and Dr. Rich, their own medical experts, told them as much in three letters,

12 sent in February and March 2020, which emphasized that “[s]ocial distancing through release is

13 necessary to slow transmission of infection.”

14

131. Nevertheless, Defendants have failed to take sufficient steps to ensure that

15 Plaintiffs can maintain consistent social distancing within Mesa Verde and YCJ. Instead, they

16 have taken a series of half measures that are “patently insufficient to protect [Plaintiffs].”

17 Basank v. Decker, No. 20 Civ. 2518, 2020 WL 1481503, at *6-*7 (S.D.N.Y. Mar. 26, 2020).

18 Defendants’ response, in turn, constitutes deliberate indifference to a serious risk to Plaintiffs’

19 health and safety.

20

132. Moreover, other prisons and jails around the country have released detainees

21 because the risk of contagion is overwhelming.

22

133. The circumstances of this case make clear that continued release, paired with

23 meaningful testing and quarantine, is the only means to ensure compliance with Plaintiffs’ due

24 process rights. Public health information makes clear that the only way to prevent infection is

25 through social distancing and increased hygiene. These measures are functionally impossible to

26 implement under current conditions at YCJ and Mesa Verde. The only course of action that can

27 remedy these unlawful conditions is to maintain populations sufficient to enable social

28
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1 distancing in these detention centers through orderly, ongoing releases and limits to increases in

2 population. In conjunction with release, Defendants must be required to institute and maintain

3 sufficient plans, procedures, and reporting to ensure constitutionally adequate testing, medical

4 care and conditions of confinement to ensure the reasonable safety of class members who are

5 not released. As the Court has noted, Defendants “have lost the right to be trusted that they will

6 accomplish on their own what the plaintiffs contend requires a court order to ensure.” Dkt. 500.

7

C. The Court Has Authority to Order Plaintiffs’ Release to Vindicate Their

Fifth Amendment Rights, and Such Relief Is Necessary Here.

8

9

134. Courts have broad power to fashion equitable remedies to address constitutional

10 violations in prisons, Hutto v. Finney, 437 U.S. 678, 687 n.9 (1978), and “[w]hen necessary to

11 ensure compliance with a constitutional mandate, courts may enter orders placing limits on a

12 prison’s population,” Brown v. Plata, 563 U.S. 493, 511 (2011). Accordingly, “the district

13 court ha[s] the authority both to entertain Plaintiffs’ constitutional challenges and to grant

14 injunctive relief in response to them.” Hernandez Roman, 2020 WL 5683233, at *3.

15

135. “The scope of a district court's equitable powers” in this regard “is broad, for

16 breadth and flexibility are inherent in equitable remedies.” Hutto, 437 U.S., at 687, n. 9. Thus,

17 even where “[t]he inquiry involves uncertain predictions regarding the effects of population

18 reductions, as well as difficult determinations regarding the capacity of prison officials to

19 provide adequate care at various population levels,” federal courts “have substantial flexibility

20 [in] making these judgments” and crafting an appropriate remedy. Plata, 563 U.S. at 538.

21

136. In the weeks preceding the filing of the Complaint, a judge within the Northern

22 District, and numerous other courts ordered, the release of ICE detainees and criminal justice

23 system prisoners and detainees as a result of COVID-19 concerns. See, e.g., Ortuño, 2020 WL

24 1701724 at *4 (N.D. Cal. Apr. 8, 2020) (holding that four individuals were likely to succeed,

25 that continued detention violated due process where they “cannot practice meaningful social

26 distancing in their respective detention facilities”); see also Xochihua-Jaimes v. Barr, No. 18-

27 71460, 2020 WL 1429877, at *1 (9th Cir. Mar. 24, 2020) (sua sponte ordering immediate

28
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1 release of ICE detainee “[i]n light of the rapidly escalating public health crisis, which public

2 health authorities predict will especially impact immigration detention centers”); Bent v. Barr,

3 No. 19-cv-06123-DMR, 2020 WL 1812850 at *6 (N.D. Cal. Apr. 9, 2020) (quoting DeShaney,

4 489 U.S. at 199-200 (1989) (“[E]ven assuming that Respondents accurately describe Mesa

5 Verde’s current practices, these practices are inadequate to ensure the ‘safety and general

6 wellbeing’ of Mesa Verde detainees during the COVID-19 pandemic.”); United States v.

7 Stephens, No. 15-cr-95 (AJN), 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020) (releasing

8 pretrial detainee in light of “the unprecedented and extraordinarily dangerous nature of the

9 COVID-19 pandemic”); State v. Ferguson, No. 2019-270536-FH, Order (Mich. Ct. App. Mar.

10 23, 2020) (ordering defendant’s immediate release on bond due to “the public health factors

11 arising out of the present public health emergency”); In re Request to Commute or Suspend

12 County Jail Sentences, No. 084230 (N.J. Mar. 22, 2020) (court consent order, creating

13 immediate presumption of release for every person serving a county jail sentence based on

14 COVID-19); Malam v. Adduci, No. 20 Civ. 10829, 2020 WL 1672662 (E.D. Mich. Apr. 5,

15 2020), as amended (Apr. 6, 2020) (granting petitioner’s release for duration of COVID-19

16 emergency); Ali v. Dep’t of Homeland Sec., No. 20 Civ. 140, 2020 WL 1666074 (S.D. Tex.

17 Apr. 2, 2020) (granting petitioner’s release due to coronavirus pandemic where the government

18 was not likely to remove petitioner in the foreseeable future); Hernandez v. Decker, No. 20 Civ.

19 1589, 2020 WL 1547459 (S.D.N.Y. Mar. 31, 2020) (granting ICE detainee’s release due to risks

20 of COVID-19 where practice of social distancing was impossible in facility); Thakker v. Doll,

21 451 F.Supp.3d 358 (M.D. Pa. Mar. 31, 2020) (granting release of ICE detainees due to

22 imminent, irreparable harm posed by COVID-19). Recently, the Ninth Circuit endorsed the

23 issuance of such an order in a case involving a class of civil ICE detainees. See Roman at 14,

24 15, 19.

25

137. This raft of recent COVID-19-related decisions in keeping with a well-

26 established tradition of federal courts ordering the release of detained persons when necessary to

27 remedy unconstitutional conditions caused by overcrowding. See Hernandez Roman, 2020 WL

28
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1 5683233, at *4 (“[T]he district court's power to grant injunctive relief included the authority to

2 order a reduction in population, if necessary to remedy a constitutional violation.”). See also

3 Plata, 563 U.S. 493; Duran v. Elrod, 713 F.2d 292, 297-98 (7th Cir. 1983), cert. denied, 465

4 U.S. 1108 (1984) (concluding that court did not exceed its authority in directing release of low-

5 bond pretrial detainees as necessary to reach a population cap); Mobile Cty. Jail Inmates v.

6 Purvis, 581 F. Supp. 222, 224-25 (S.D. Ala. 1984) (concluding that district court properly

7 exercised remedial powers to order a prison’s population reduced to alleviate unconstitutional

8 conditions and noting other cases); Inmates of the Allegheny Cty. Jail v. Wecht, 565 F. Supp.

9 1278, 1297 (W.D. Pa. 1983) (order to reduce overcrowding “is within our power to correct the

10 constitutional violations”); Brenneman v. Madigan, 343 F. Supp. 128, 139 (N.D. Cal. 1972) (“If

11 the state cannot obtain the resources to detain persons . . . in accordance with minimum

12 constitutional standards, then the state simply will not be permitted to detain such persons.”);

13 see also Unknown Parties v. Nielsen, No. CV-15-00250-TUC-DCB, 2020 WL 813774, *1 (D.

14 Ariz. Feb. 19, 2020) (ordering that DHS release from custody detainees to whom it did not

15 provide a bed, shower, nutritious food, and screening by a medical professional within 48 hours

16 of booking).

17

138. Public health information makes clear that social distancing and increased

18 hygiene are critical to preventing the spread of infection. The only way to monitor and control

19 infections is through testing and quarantining. Yet the defendants are detaining the plaintiffs

20 under conditions that force them into close contact with many other detainees and staff and

21 refuse to implement meaningful testing or quarantine protocols unless directed to do so by a

22 court. By continuing detention in these circumstances, Defendants are subjecting class members

23 to unreasonable harm. The only course of action that can remedy these unlawful conditions is

24 the release of a substantial number of class members from detention and require testing and

25 quarantining to protect the class members who remain in custody.

26

27

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FIRST CLAIM FOR RELIEF: VIOLATION OF THE FIFTH AMENDMENT RIGHT

1

TO SUBSTANTIVE DUE PROCESS (BY ALL PLAINTIFFS AGAINST ALL

DEFENDANTS) 2

3

139. Defendants’ detention of Plaintiffs and other class members during the COVID-

4 19 pandemic violates the Due Process Clause of the Fifth Amendment of the United States

5 Constitution. Defendants GEO Group, Inc. and Allen are liable for these violations together

6 with ICE because they are the agents and/or alter ego of ICE and perform a governmental

7 function in connection with the detention of proposed class members at Mesa Verde.

8 PRAYER FOR RELIEF
9
WHEREFORE, Plaintiffs respectfully ask that this Court: 10
a. Take jurisdiction over this matter; 11
b. Certify the proposed Class and Sub-classes as indicated above, and appoint the 12
named Petitioners/Plaintiffs as class representatives and the undersigned counsel as class 13
counsel; 14
c. Declare that the continued detention of the plaintiff class members violates the 15
Due Process Clause; 16
d. In gross or individually, order Defendants to release enough class members 17
sufficient for the continued detention of any remaining class members not to violate their 18
constitutional rights; 19
e. Order Defendants to institute and maintain sufficient plans, procedures, and 20
reporting to ensure constitutionally adequate testing, medical care, and conditions of 21
confinement for class members who are not released. 22
f. Order Defendants to suspend, temporarily, the introduction of immigration 23
detainees into the Facilities until authorized by the Court to resume the introduction of new 24
detainees into the Facilities; 25
g. Order Defendants to abstain from placing plaintiff class members into solitary 26
confinement as a means of achieving social distancing; 27
h. Award Plaintiffs costs and reasonable attorneys’ fees in this action under the 28
38
FIRST AMENDED CLASS PETITION FOR WRIT OF HABEAS CORPUS AND CLASS COMPLAINT FOR
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Case 3:20-cv-02731-VC Document 780 Filed 10/30/20 Page 41 of 41

1 Equal Access to Justice Act, as amended, 5 U.S.C. § 504 and 28 U.S.C. § 2412, and on any

2 other basis justified under law; and,

3

i. Grant such other and further relief as this Court deems just and appropriate.

4 5 Dated: October 30, 2020

6

7

8

9

10

Bree Bernwanger Hayden Rodarte

11

LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF

12 SAN FRANCISCO BAY AREA

13

Judah Lakin Amalia Wille

14 LAKIN & WILLE LLP

15

Jordan Wells Stephanie Padilla

16

Michael Kaufman AMERICAN CIVIL LIBERTIES UNION

17

FOUNDATION OF SOUTHERN CALIFORNIA

18

Respectfully submitted,
/s/ William S. Freeman William S. Freeman Sean Riordan
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA
Manohar Raju Public Defender Matt Gonzalez Chief Attorney Francisco Ugarte Genna Ellis Beier Emilou H. MacLean OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO
Martin S. Schenker Timothy W. Cook Francisco M. Unger COOLEY LLP
Attorneys for Petitioners-Plaintiffs

19

20

21

22

23

24

25

26

27

28
39 FIRST AMENDED CLASS PETITION FOR WRIT OF HABEAS CORPUS AND CLASS COMPLAINT FOR
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 Case 3:20-cv-02731-VC Document 1134-6 Filed 08/04/21 Page 1 of 20

WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org SEAN RIORDAN (SBN 255752) sriordan@aclunc.org EMILOU H. MACLEAN (SBN 319071) emaclean@aclunc.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney GENNA ELLIS BEIER (SBN 300505) genna.beier@sfgov.org FRANCISCO UGARTE (SBN 241710) francisco.ugarte@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: (415) 553-9319 Facsimile: (415) 553-9810

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ANGEL DE JESUS ZEPEDA RIVAS, BRENDA RUBI RUIZ TOVAR, LAWRENCE KURIA MWAURA, LUCIANO GONZALO MENDOZA JERONIMO, CORAIMA YARITZA SANCHEZ NUÑEZ, JAVIER ALFARO, DUNG TUAN DANG,

CASE NO. 3:20-CV-02731-VC
DECLARATION OF SALMAAN KESHAVJEE, MD, PHD, SCM
JUDGE VINCE CHHABRIA

Petitioners-Plaintiffs,

v.

DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GEO GROUP, INC.; NATHAN ALLEN, Warden of Mesa Verde Detention Facility,

Respondents-Defendants.

No. 3:20-cv-02731-VC DECLARATION OF SALMAAN KESHAVJEE, MD, PHD, SCM

Case 3:20-cv-02731-VC Document 1134-6 Filed 08/04/21 Page 2 of 20

BREE BERNWANGER (SBN 331731) bbernwanger@lccrsf.org HAYDEN RODARTE (SBN 329432) hrodarte@lccrsf.org LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF SAN FRANCISCO BAY AREA 131 Steuart St #400 San Francisco, CA 94105 Telephone: (415) 814-7631
JUDAH LAKIN (SBN 307740) judah@lakinwille.com AMALIA WILLE (SBN 293342) amalia@lakinwille.com LAKIN & WILLE LLP 1939 Harrison Street, Suite 420 Oakland, CA 94612 Telephone: (510) 379-9216 Facsimile: (510) 379-9219

MARTIN S. SCHENKER (SBN 109828) mschenker@cooley.com COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111 Telephone: (415) 693-2000 Facsimile: (415) 693-2222
TIMOTHY W. COOK* (Mass. BBO# 688688) tcook@cooley.com FRANCISCO M. UNGER* (Mass. BBO# 698807) funger@cooley.com COOLEY LLP 500 Boylston Street Boston, MA 02116 Telephone: (617) 937-2300 Facsimile: (617) 937-2400

JORDAN WELLS (SBN 326491) jwells@aclusocal.org STEPHANIE PADILLA (SBN 321568) spadilla@aclusocal.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA 1313 West Eighth Street Los Angeles, CA 90017 Telephone: (213) 977-9500 Facsimile: (213) 977-5297

Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice

No. 3:20-cv-02731-VC DECLARATION OF SALMAAN KESHAVJEE, MD, PHD, SCM

Case 3:20-cv-02731-VC Document 1134-6 Filed 08/04/21 Page 3 of 20
DECLARATION OF SALMAAN KESHAVJEE, MD, PHD, SCM
I, Salmaan Keshavjee, declare as follows:
1. I am a professor in the Department of Global Health and Social Medicine and Department of Medicine at Harvard Medical School, director of Harvard Medical School’s Center for Global Health Delivery, and a co-faculty dean at Harvard College’s Adams House. I also work at the Brigham and Women’s Hospital in Boston, Massachusetts, as an attending physician in the Department of Medicine and in the Division of Global Health Equity.
2. I received my medical degree from Stanford University, a doctorate in Anthropology and Middle Eastern Studies from Harvard University, and a master’s degree in immunology and infectious diseases from the Harvard School of Public Health. I completed my physician-scientist residency in Internal Medicine and a fellowship in Social Medicine at Brigham and Women’s Hospital. My scholarship focuses on health policy and healthcare delivery, specifically as they pertain to global tuberculosis treatment and control.
3. I have published on infectious disease management and transmission, immunology and drug resistance, and health policy in international medical journals including The New England Journal of Medicine, Journal of the American Medical Association, Lancet, Lancet Infectious Diseases, Lancet Respiratory Medicine, Lancet Global Health, PLoS One, Clinical Infectious Diseases, Emerging Infectious Diseases, American Journal of Respiratory and Critical Care Medicine, European Respiratory Journal, Journal of Internal Medicine, and Tuberculosis.
4. I worked with Brigham and Women’s Division of Global Health Equity and the Bostonbased non-profit, Partners In Health, where I am the senior tuberculosis specialist, to establish a multidrug-resistant tuberculosis (MDR-TB) treatment program in Tomsk, Russia, and the first community-based treatment program to treat patients co-infected with HIV and MDR-TB in Lesotho. I also served as the chair of the Green Light Committee Initiative, a joint initiative of the Stop TB Partnership and the World Health Organization which helped countries gain access to high-quality second-line anti-TB drugs so they can provide treatment for people with MDR-TB.
5. I am a co-founder of Advance Access & Delivery, a non-profit committed to addressing critical challenges in access to medicines and the delivery of comprehensive healthcare, particularly for economically and socially marginalized groups.
6. I am not being compensated for providing my testimony in this case. I also submitted an expert declaration in the Hernandez Roman v. Mayorkas case in the U.S. District Court for the Central District of California, but have otherwise not previously served as an expert witness.
7. In support of this declaration, I have relied on my scientific and specialized knowledge, skill, experience, training, and education. I have also reviewed the following materials from Zepeda Rivas v. Jennings:
a. Court orders granting a temporary restraining order and preliminary injunctions, ECF 53, 357, and 867;
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Case 3:20-cv-02731-VC Document 1134-6 Filed 08/04/21 Page 4 of 20
b. Declaration of Dr. Robert Greifinger, dated May 22, 2020, at ECF 229-19, including details about the two facilities at issue in this litigation;
c. Declaration of Dr. Sean Henderson, dated Mar. 25, 2021, at ECF 1082-1.
8. Further, I have been informed that:
a. Defendants in this case have made the Janssen/Johnson & Johnson COVID-19 vaccine available to class members at Mesa Verde. At Mesa Verde, the initial vaccination acceptance rate was approximately 57% though some additional class members subsequently agreed to be vaccinated, increasing the acceptance rate to more than 70% at the time of this declaration.
b. The majority of those detained by Defendants at Mesa Verde have been transferred from jails or prisons. That is expected to continue to be true if new intakes resume at the facilities, though Defendants might also increasingly transfer people to Mesa Verde who have been arrested at or near the U.S.-Mexico border and who are seeking humanitarian relief.
c. Defendants have provided no information about the vaccination of staff and contractors at Mesa Verde or plans for subsequent vaccination of new class members should intakes resume at either facility.
9. I am further aware that:
a. In Kern County, where Mesa Verde is located, 36.2% of County residents are fully vaccinated.1 By contrast, 70.2% of San Francisco County residents are fully vaccinated.2
b. Kern County is currently averaging 128 new cases and 1.1 deaths per day, both substantial increases over where those figures stood two weeks ago. This amounts to approximately 102 cases per 100,000 residents.3
Summary of Opinions
10. Vaccination alone will be insufficient to stop COVID-19 outbreaks in detention facilities at this time. At present, due to epidemiological characteristics particular to SARS-CoV-2 (the virus that causes COVID-19) and immigration detention facilities, there will continue to be a significant risk of SARS-CoV-2 transmission and related illness or death in congregate facilities if depopulation and other mitigation measures are relaxed or ended. While this has been my long-standing opinion, it is bolstered by recent information about the course of the pandemic and the effectiveness of vaccines, including evidence that vaccines provide lesser protection against the transmission of the “Delta variant” and that viral loads in vaccinated people who are infected with COVID-19 may be as high as viral loads in unvaccinated infected people.
1 Tracking coronavirus vaccinations in California, at https://www.latimes.com/projects/california-coronavirus-casestracking-outbreak/covid-19-vaccines-distribution/,accessed July 31, 2021. 2 Id. 3 Tracking the coronavirus in Kern County, Los Angeles Times, July 30, 2021, at https://www.latimes.com/projects/california-coronavirus-cases-tracking-outbreak/kern-county/, accessed July 31, 2021.
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11. Continued COVID-19 mitigation measures are necessary – generally and especially in detention facilities – to increase the real-world effectiveness of vaccination, disrupt wideranging viral transmission chains, and turn off the epidemiologic pump that jeopardizes the health of detained individuals and broader surrounding communities that are put at risk by the spillover of outbreaks from detention facilities. This is consistent with the conclusion in a recent CDC document that, “[g]iven increased transmissibility, lower [vaccine effectiveness], and current vaccine coverage, [non-pharmaceutical interventions (“NPIs”) are] needed to reduce transmission of Delta variant.”4
12. Vaccines are safe and effective, and a critical part of a multi-layered set of interventions that are needed to respond to the COVID-19 pandemic. Yet there are significant obstacles to achieving adequately high rates of vaccination among those staff and detainees in immigrant detention facilities for a variety of reasons, including inadequate education and guidance regarding vaccine risks; resistance to vaccination documented among guards; and limited trust of health professionals and detention center authorities among detainees. Indeed, early studies show limited vaccine uptake with the SARS-CoV-2 vaccines inside and outside of detention facilities, including among staff and guards employed by detention facilities, and people in custody.
13. Exposure to SARS-CoV-2 in crowded settings even after some people have been vaccinated may still pose significant and serious health risks since it is unclear to what degree the vaccines prevent the transmission of SARS-CoV-2. The clinical trials that led to FDA approval for the three vaccines currently approved in the U.S. did not demonstrate to what extent vaccination prevents individuals from transmitting the virus to others. Alarmingly, a recent CDC study of hundreds of people infected in a Massachusetts county in July 2021 indicates that vaccinated people can harbor large amounts of the virus and are apparently substantially involved in the transmission of the Delta variant. That study found 75% of the infected people were vaccinated and 90% of them were infected with the Delta variant. Notably, PCR tests of people infected in this chain of outbreaks showed similar values for both vaccinated and unvaccinated people, which “might mean that the viral load of vaccinated and unvaccinated persons infected with SARS-CoV-2 is also similar.”5 The reality that vaccinated people bear a significant viral load and transmit the Delta variant suggests that at this point and with our current vaccines, vaccine-derived herd immunity may no longer be sufficient to control the spread of SARS-CoV-2, a conclusion that would be even stronger in congregate settings where herd immunity as a concept is already of diminished utility.
14. Exposure to SARS-CoV-2 in crowded settings even after some people have been vaccinated may also pose significant and serious health risks because vaccine
4 CDC, “Improving communications around vaccine breakthrough and vaccine effectiveness,” July 29, 2021 (slide 20), at https://context-cdn.washingtonpost.com/notes/prod/default/documents/8a726408-07bd-46bd-a9453af0ae2f3c37/note/57c98604-3b54-44f0-8b44-b148d8f75165.#page=1, accessed July 31, 2021 5 CDC, “Outbreak of SARS-CoV-2 Infections, Including COVID-19 Vaccine Breakthrough Infections, Associated with Large Public Gatherings — Barnstable County, Massachusetts, July 2021” (July 30, 2021), at https://www.cdc.gov/mmwr/volumes/70/wr/mm7031e2.htm?s_cid=mm7031e2_w, accessed July 31, 2021.
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effectiveness is linked to the reproduction number, which increases as the contact rate between people (population density) increases. Thus, even after some people are vaccinated, infections can occur among the vaccinated and non-vaccinated.
15. Preliminary studies have shown excellent vaccine results in preventing death and ICU admission, and some other severe COVID-19 symptoms. However, clinical trials of all three vaccines and recent studies of outcomes for the vaccinated have demonstrated that they are not perfect, with some vaccinated individuals progressing to severe disease. When one considers that vaccine effectiveness can be markedly reduced in congregate settings with a higher reproduction number, that those in detention facilities represent a vulnerable population with potential co-morbidities, and that emerging variants of the COVID-19 virus that have higher “resistance” to the available vaccines are increasingly circulating in the general population, it is clear that vaccination should not be the only mitigation layer being deployed during the pandemic.
16. While “mild” disease from COVID-19 is popularly viewed as without detriment, studies have confirmed that long-term consequences of SARS-CoV-2 infection––what is called “long COVID”––can appear in individuals who did not initially show signs of a serious infection. For example, a large recent study found that 27% of people who experienced only mild or moderate COVID-19 symptoms and 19% of people who experienced asymptomatic COVID-19 infection sought medical treatment for new health problems one month or more after their infection.6 These new health problems included nerve and muscle pain; breathing difficulties; high cholesterol; malaise and fatigue; high blood pressure; migraines; skin problems; heart abnormalities; sleep disorders; anxiety; and depression.7 Because of the recency of the studies, there is not yet evidence that allows scientists to determine whether vaccines prevent so-called long COVID, the symptoms of which can be debilitating for an as-yet-unknown period of time lasting at least months.
17. Until more is known about the effectiveness of the vaccines in response to the COVID-19 variants and long COVID, and until there can be greater vaccination of staff and detainees, as well as the broader public, it is very important that existing measures of mitigating COVID-19 transmission exist alongside vaccination of facility staff and detained people. These include, critically, the following NPIs:
a. Population Reduction/Social Distancing: Ensuring the populations of facilities and individual housing units are sufficiently low to allow for adequate social distancing;
b. Testing: Regular testing of both staff and detainees; c. Quarantine: Effective quarantine and/or isolation of COVID-positive people,
symptomatic individuals, and close contacts;
6 Pam Beluck, “Many Post-Covid Patients Are Experiencing New Medical Problems, Study Finds,” New York Times, June 15, 2021, at https://www.nytimes.com/2021/06/15/health/covid-19-patients.html. 7 Id.
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d. Access to Personal Protective Equipment: Guaranteed access to masks and PPE for all detainees and staff; and the encouragement of their use by detainees, and requirement of their use by staff;
e. Sanitation and Hygiene: Continued free access to sufficient quantities of soap and personal hygiene supplies, and a heightened focus on sanitation at the facilities;
f. Ventilation: Appropriate ventilation for infection control, including, where appropriate, the use of upper-room UV-C germicidal lighting to increase the number of effective air exchanges in congregate settings;
g. Effective medical care: Medical care effective in responding to the pandemic, and up-to-date with the evolving science and public health recommendations;
h. Reporting: Timely public disclosure of information concerning vaccination, testing rates, positive tests, hospitalizations, deaths, and facility and dormitory population levels.
18. While testing for COVID-19 is important, it is often not enough to stop transmission of the virus. First, the window between infection and the presence of the virus on a test can be a few days. There is some suggestion that even with a negative test, people may still be infected.8 Since approximately 45% of individuals have asymptomatic disease, symptoms are also not a reliable marker of whether an individual can transmit the disease to others. Further, because vaccine effectiveness in a given setting depends on the efficacy of the vaccine, the reproduction number, and other factors such as population density, vaccination itself cannot be used as a proxy for not having active disease. Thus, although testing is useful as a layer of protection, testing alone at Mesa Verde (or testing only those who are unvaccinated) is not enough to mitigate the risk of disease in this vulnerable population.9
19. Although individuals detained in congregate settings are at higher risk of airborne disease transmission, when rates in the community and facilities are sufficiently low as to present a minimal risk to the population, mitigation measures can be relaxed. However, it is presently not clear at what point the current pandemic can be considered contained and of low risk to the population.
COVID-19 Variants
20. The Centers for Disease Control (CDC) and World Health Organization have been identifying and monitoring new variants of COVID-19. 10 They have classified “variants
8 Xi He, et al., “Temporal Dynamics in Viral Shedding and Transmissibility of COVID-19,” Nature Medicine, Apr. 15, 2020, at https://www.nature.com/articles/s41591-020-08695?fbclid=IwAR3x2cKnIDqZfFIpOn6R04KCFDkD7y2Fn1jVlQHC1G8Uq9iCt0w8H7OXmpk. 9 Michael Mina, et al., “Rethinking Covid-19 Test Sensitivity—A Strategy for Containment,” New England Journal of Medicine, Sept. 30, 2020, at https://www.nejm.org/doi/full/10.1056/nejmp2025631. 10 See, e.g., CDC, “SARS-CoV-2 Variant Classifications and Definitions,” rev’d June 14, 2021, accessed June 14, 2021, at https://www.cdc.gov/coronavirus/2019-ncov/variants/variant-info.html.
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of concern” where there is scientific evidence that the variant is more contagious, causes more severe disease, and/or may cause vaccines to be less effective. The following variants of concern are currently circulating in the United States, including in California11:
A. B.1.1.7 was first identified in the United Kingdom and was detected in the United States in December 2020. It is now the most common variant in the United States. Early studies indicate that it is approximately 50% more transmissible and is also associated with increased risk of hospitalization and death.
B. B.1.351 was first identified in South Africa in October 2020. It was detected in the United States in January 2021 and is approximately 50% more transmissible.
C. B.1.427/B.1.429 was first identified in California in the winter of 2020 and rapidly became responsible for more than half of the infections in the state.12 The CDC estimates that it is approximately 20% more transmissible.
D. B.1.617.2 (the Delta variant) was first identified in India and has been linked to the country’s recent devastating surge. As described throughout this declaration, evidence suggests it is more transmissible and better at evading immunity. The Delta variant is now dominant in California, representing 83% of COVID-19 cases sampled in July 2021.13
E. P.1 was first identified in Brazil. Research indicates that it is up to twice as transmissible and is better at evading immunity.14
21. The Delta variant has caused devastation around the world and is now causing similar devastation in the United States.15 It is currently understood that the Delta variant is as transmissible as chicken pox and more transmissible than MERS, the flu, the common cold, Ebola, and smallpox. Delta variant infections are characterized by a higher viral load, longer duration of viral shedding, and a higher risk of reinfection.16 Based on the study of the July 2021 outbreaks in Massachusetts described above, a CDC researcher concluded, “Delta variant vaccine breakthrough cases may be as transmissible as
11 See California Department of Public Health, “Tracking Variants,” June 10, 2021 at https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/COVID-Variants.aspx, accessed June 15, 2021. 12 Joel Achenbach, et. al., “New research shows California coronavirus variant is more transmissible,” The Washington Post, Feb. 24, 2021, at https://www.washingtonpost.com/health/california-covidvariant/2021/02/24/0fb75550-76a3-11eb-948d-19472e683521_story.html. 13 Michael McGough, “Delta made up 83% of California’s recently sampled COVID cases, matching U.S. rate,” Sacramento Bee, July 22, 2021, at https://www.sacbee.com/news/coronavirus/article252928578.html 14 See Tina Hesman Saey, “The P.1 coronavirus is twice as transmissible as earlier strains,” ScienceNews, April 14, 2021, at https://www.sciencenews.org/article/covid-coronavirus-p1-variant-brazil-strain-transmission-immunity. 15 See, e.g., Talha Burki, “No end in sight for the Brazilian COVID-19 crisis,” The Lancet, May, 2021, at https://www.thelancet.com/journals/lanmic/article/PIIS2666-5247(21)00095-1/fulltext; Gayathri Vaidyanathan, “Coronavirus variants are spreading in India – what scientists know so far,” Nature, May 11, 2021, at https://www.nature.com/articles/d41586-021-01274-7. 16 CDC, “Improving communications around vaccine breakthrough and vaccine effectiveness,” July 29, 2021, at https://context-cdn.washingtonpost.com/notes/prod/default/documents/8a726408-07bd-46bd-a9453af0ae2f3c37/note/57c98604-3b54-44f0-8b44-b148d8f75165.#page=1, accessed July 31, 2021
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unvaccinated cases.”17 There is also some evidence that the Delta variant causes more severe disease and presents higher odds of hospitalization than the ancestral or Alpha variants.18
COVID-19 Vaccines
22. There are three vaccines which have been authorized for emergency use by the U.S. Food and Drug Administration in the United States. These are produced by Pfizer-BioNTech, Moderna, and Janssen/Johnson & Johnson, respectively (and will be identified here, for the sake of clarity, by the name of the producer).
23. The Pfizer-BioNTech and Moderna vaccines are two-dose vaccines provided 21 and 28 days apart, respectively. An individual is considered to be fully vaccinated two weeks after their second dose of the Pfizer-BioNTech or Moderna vaccines, or after the single dose of the Janssen vaccine.
24. Of these vaccines, the Janssen vaccine has the fewest obstacles to effective vaccine distribution because it can be stored longer and in more readily available conditions. The Pfizer-BioNTech vaccine requires ultra-cold refrigeration; the Moderna vaccine can be kept in normal freezer temperatures; and the Janssen vaccine can be stored in normal refrigeration temperatures. The Pfizer-BioNTech vaccine has the shortest period of use of the three vaccines—five days while being refrigerated and only six hours once mixed. The Moderna vaccine may be stored for up to 30 days before being punctured, and only six hours once the first dose is withdrawn. The Janssen vaccine can be stored for a longer period of time—three months at normal refrigerator temperatures or two years if frozen. However, it may only be used for up to two or six hours after the vial is punctured, depending on whether it is stored at room temperature or refrigerated during that time.
25. In controlled studies that involved individuals largely infected with the B.1.1.7 (Alpha) strain of COVID-19, the strain first detected in the United States in December 2020, the Moderna vaccine showed a 94.1% efficacy at preventing symptomatic COVID-19,19 the Pfizer-BioNTech vaccine showed 95% efficacy at preventing symptomatic COVID-19,20 and the Janssen vaccine showed a 66% efficacy in preventing moderate to severe COVID-19 and an 85% efficacy in preventing severe/critical COVID-19.21
26. Recent unpublished preliminary data from the Israeli Ministry of Health has shown that when rolled out in a real-world setting, vaccine efficacy for preventing transmission of
17 Id. 18 Id. 19 See Lindsay R. Baden, M.D., et. al., “Efficacy and Safety of the mRNA-1273 SARS-CoV-2 Vaccine,” New England Journal of Medicine, Feb. 4, 2021, at https://www.nejm.org/doi/full/10.1056/nejmoa2035389. 20 See Fernando P. Polack, M.D., et. al, “Safety and Efficacy of the BNT162b2 mRNA Covid-19 Vaccine,” New England Journal of Medicine, Dec. 31, 2020, at https://www.nejm.org/doi/10.1056/NEJMoa2034577?url_ver =Z39.88-2003&rfr_id=ori:rid:crossref.org&rfr_dat=cr_pub%20%200pubmed. 21 See FDA, Janssen COVID-19 Vaccine Frequently Asked Questions, “How well does Janssen COVID-19 Vaccine prevent COVID-19”?, rev’d April 27, 2021, accessed June 15, 2021.
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the Delta variant of COVID-19 drops to 39.0%.22 While the vaccine does continue to protect individuals from hospitalization (88.0%) and severe COVID-19 (91.4%), these data suggest significant potential for ongoing transmission and is much lower than the efficacy shown in the original clinical trials. Other data from the United Kingdom, while a little more optimistic than the large Israeli study, demonstrate that vaccine efficacy drops from 48.7% to 30.7% for people infected with the Delta variant who have received one dose of vaccine.23 Those who have received two doses appeared to have a vaccine efficacy of 88% with the Delta variant (as compared to 93.7% with the Alpha variant). Both the Israeli and United Kingdom data suggest that current vaccines are less efficacious for the Delta variant and that their efficacy can vary markedly based on the population being vaccinated.
27. Even before the emergence of the Delta variant, there was reasonable uncertainty about the exact level of protection of the currently approved vaccines. For example, there is some evidence that the Janssen vaccine may have decreased efficacy in preventing moderate to severe COVID against the South African variant that has circulated in the United States.24
28. The vaccines available in the United States prevent death, ICU admission, and some of the most severe symptoms of COVID-19 disease in most vaccinated individuals beginning about two weeks after full vaccination. Although the vaccines have all exceeded the threshold efficacy of preventing 50% of those vaccinated from getting disease or getting “severe” disease, their efficacy outside of clinical trials in diverse populations and congregate settings is still emerging. mRNA vaccines appear to be less effective at protecting immunocompromised people and elderly nursing home residents25 and their protection may also begin to wane after six months, possibly increasing the risk of infection by up to 80% at that point.26 There are several examples of outbreaks causing substantial hospitalization of the vaccinated. For example, in the cases studied from the recent Massachusetts outbreaks, four of the five people hospitalized had been fully
22 Israeli Ministry of Health, Vaccine Efficacy Report (slide 7), July 18, 2021, at https://www.gov.il/BlobFolder/reports/vaccine-efficacy-safety-follow-upcommittee/he/files_publications_corona_two-dose-vaccination-data.pdf, accessed Aug. 2, 2021. 23 Jamie Lopez Bernal, et al., “Effectiveness of Covid-19 Vaccines against the B.1.617.2 (Delta) Variant,” New England Journal of Medicine, July 21, 2021, at https://www.nejm.org/doi/10.1056/NEJMoa2108891 24 See, e.g., CDC, “Science Brief: Background Rationale and Evidence for Public Health Recommendations for Fully Vaccinated People,” rev’d May 27, 2021, accessed June 15, 2021, at https://www.cdc.gov/coronavirus/2019ncov/science/science-briefs/fully-vaccinated-people.html (“Clinical trial data suggest that the Johnson & Johnson/Janssen COVID-19 vaccine may have reduced overall efficacy against the B.1.351 variant.”). 25 CDC, “Improving communications around vaccine breakthrough and vaccine effectiveness,” July 29, 2021 (slides 9-10), at https://context-cdn.washingtonpost.com/notes/prod/default/documents/8a726408-07bd-46bd-a9453af0ae2f3c37/note/57c98604-3b54-44f0-8b44-b148d8f75165.#page=1, last accessed July 31, 2021. 26 Dvir Aran, “Are we we seeing immunity waning in Israel?” July 21, 2021 (string of tweets analyzing raw data released by Israel’s Ministry of Health), at https://twitter.com/dvir_a/status/1417813556888735750, accessed July 31, 2021
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vaccinated. In another example, from an outbreak at a homeless shelter in Sonoma County, California, six of nine people hospitalized had been fully vaccinated.27
29. The real-world effectiveness of vaccination programs depends on the context in which they are implemented, including population density. For example, prior to the introduction of the Delta variant, the Pfizer-BioNTech vaccine was shown to have an effectiveness against SARS-CoV-2 infection and symptomatic disease ranging from 86 to 96% in adult populations in the United States.28 This dropped to 87% when looking at healthcare workers and residents in a skilled nursing facility.
30. Recent studies also suggest that the vaccines are much less effective for individuals who are immunocompromised.29 For example, a study of transplant recipients found that only 46% had an antibody response (indicating immunity to COVID-19) after receiving two doses of an mRNA vaccine such as the Pfizer-BioNTech or Moderna.30 A similarly reduced response was found in patients with certain blood cancers.31
31. It is still unclear how much any of the vaccines prevent or limit COVID transmission, rather than disease progression. Some studies show promising results suggesting that at least some of the vaccines have some effect on reducing transmissibility of the virus.32 However, as described above, newer evidence shows that vaccinated people can harbor large amounts of the virus and are apparently substantially involved in the transmission of the Delta variant.
Continued COVID-19 Risks in Immigration Detention Despite Vaccines and the Need for Non-Pharmaceutical Interventions
32. The context in which a COVID-19 vaccine is introduced substantially impacts the effectiveness of the vaccine. Even a highly efficacious vaccine – i.e., one with 90%
27 Aidin Vaziri, “COVID outbreak sweeps through Sonoma County homeless shelter, including many vaccinated residents,” San Francisco Chronicle, June 14, 2021, at https://www.sfchronicle.com/health/article/COVID-outbreaksweeps-through-Sonoma-County-16315571.php. 28 Pawlowski C LP, Puranik A, et. al. FDA-authorized COVID-19 vaccines are effective per real-world evidence synthesized across a multi-state health system. medRxiv. 2021; https://www.medrxiv.org/content/10.1101/2021.02.15.21251623v1.full.pdf. Andrejko K. PJ, Myers JF., et al. Early evidence of COVID-19 vaccine effectiveness within the general population of California. MedRxiv. 2021; https://www.medrxiv.org/content/10.1101/2021.04.08.21255135v1. Vahidy FS. PL, Tano ME., et al. Real World Effectiveness of COVID-19 mRNA Vaccines against Hospitalizations and Deaths in the United States. medRxiv. 2021;https://www.medrxiv.org/content/10.1101/2021.04.21.21255873v1 29 See Ariana Eunjung Cha, Coronavirus vaccines may not work in some people. It’s because of their underlying conditions, The Washington Post, May 18, 2021, at https://www.washingtonpost.com/health/2021/05/18/ immunocompromised-coronavirus-vaccines-response/. 30 See Brian J. Boyarsky, et. al., “Antibody Response to 2-Dose SARS-CoV-2 mRNA Vaccine Series in Solid Organ Transplant Recipients,” JAMA, May 5, 2021, at https://jamanetwork.com/journals/jama/fullarticle/2779852. 31 See Mounzer Agha, et. al., “Suboptimal response to COVID-19 mRNA vaccines in hematologic malignancies patients,” April 7, 2021 (pre-print), at https://www.medrxiv.org/content/10.1101/2021.04.06.21254949v1. 32 Noa Dagan, et al., “BNT162b2 mRNA Covid-19 Vaccine in a Nationwide Mass Vaccination Setting,” New England Journal of Medicine, Feb. 24, 2021, at https://www.nejm.org/doi/full/10.1056/NEJMoa2101765.
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efficacy – will have suboptimal preventive effects in high-spread, congregate settings such as immigration detention centers.33
33. For this reason, vaccination efforts must complement, and not replace, existing mitigation measures (also known as nonpharmaceutical interventions, or NPIs). The most important NPI with which to effectively prevent COVID-19 in carceral institutions and detention facilities is population reduction, followed by social distancing, regular testing, effective quarantine and isolation, access to personal protective equipment, and sanitation and hygiene. The diminution of NPIs upon the availability of vaccines would undermine the benefit of the vaccines and would ensure sustained risk of transmission and resulting illness, despite increasing vaccine access.
34. Even in the event that relatively high rates of vaccination are achieved and maintained (e.g. over 75% among both detainees and staff), stemming the risk of COVID-19 outbreaks with vaccination alone is likely to remain out of reach in most detention facilities at this time because of the high transmissibility of COVID-19, especially the Delta variant; the risks presented by new, more contagious and more deadly COVID-19 variants; the limitations of the vaccines in preventing transmission; and the greater risks of infectious spread in congregate facilities (due to, i.e., limited capacity for social distancing, regular transfers, daily staff movements, and limitations in personal protective equipment, testing and healthcare). In almost any congregate setting, but most notably prisons and other detention facilities, the reproduction number (Ro)— which tells you the average number of people who will contract a contagious disease from one person who has the disease—is higher than that of the general population. The reason the reproduction number is higher is that it is a dynamic value that depends on the rate of human-human interactions. Any factor having the potential to influence the contact rate (e.g. population density) or the ability of the virus to infect with each contact (e.g. a mutation with higher or lower infectiousness) will have an effect on the reproduction number. In congregate settings that are densely populated the reproduction number increases.
35. It is also important to consider the seasonal nature of COVID-19. Because COVID-19 is seasonal, the reproduction number varies over seasons, becoming higher in the winter and lower in the summer, though because of the increased transmissibility of the Delta variant and the relaxation of mitigation measures in society at large, California (and much of the world) are seeing a spike in infections and hospitalizations. The seasonality of COVID19 combined with the pandemic’s ongoing surge is further reason not to relax mitigation measures leading into the upcoming fall and winter. Moreover, some experts have predicted that COVID-19 may become a chronic seasonal disease, with fall or winter surges every year.34
33 Benjamin Barsky, Eric Reinhart, Paul Farmer, & Salmaan Keshavjee, “Vaccination Plus Decarceration — Stopping Covid-19 in Jails and Prisons,” New England Journal of Medicine, Mar. 3, 2021, at https://www.nejm.org/doi/10.1056/NEJMp2100609?url_ver=Z39.882003&rfr_id=ori:rid:crossref.org&rfr_dat=cr_pub%20%200pubmed. 34 See Christopher Murray and Peter Piot, “The Potential Future of the COVID-19 Pandemic,” JAMA, March 3, 2021, at https://jamanetwork.com/journals/jama/fullarticle/2777343.
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36. In a model presented in the American Journal of Preventive Medicine examining the efficacy needed for a COVID-19 vaccine to stop an epidemic if it were the sole intervention, Sarah Bartsch and colleagues point out that with a reproduction number of 3.5 (similar or lower than some prison settings in the United States) one would need a vaccine with a minimal 80% efficacy and 75% coverage to prevent an ongoing epidemic.35 This model was developed before the emergence of the Delta variant, which is estimated to be 1.4 to 1.6 times as transmissible as the early strains,36 and has a basic reproduction number of estimated at least 7.0,37 a figure that would likely be even higher in a congregate detention center like Mesa Verde.
37. Early modeling has demonstrated the effect of the premature relaxation of NPIs outside of detention centers. A recent mathematical model predicted high risks of continued COVID-19 transmission and severe disease “with early or rapid relaxation of NPIs.” Even assuming a very high degree of “vaccine uptake” (75-95% depending on age) and very high vaccine efficacy (88%), a recent mathematical model identified that “vaccination alone is insufficient to contain the outbreak” without continued implementation of NPIs.38 This was true even among the general population. The risk factors unique to carceral institutions and detention centers heighten the concerns identified in the model.
38. There is also already information showing a correlation between increased population in immigration detention centers and increased rates of infection with COVID-19 in those immigration detention centers. Over the past six months, the number of people in immigration detention in the United States has roughly doubled. In that time, “[w]hile the national COVID-19 positivity rate has dropped to below 0.1 percent, the rates among people in immigration detention have climbed to as high as 10 percent, according to ICE’s own published data.”39 Based on that data, which was collected before the emergence of the Delta variant in the United States, social scientists projected that even while levels of COVID-19 were declining in the community, there remained considerable potential for explosive outbreaks inside ICE facilities. “[S]lowing viral spread in ICE detention will continue to require implementing aggressive public health measures inside facilities to affect conditions for those detained, beginning with population reduction.”40
35 Sarah Bartsch, et al., “Vaccine Efficacy Needed for a COVID-19 Coronavirus Vaccine to Prevent or Stop an Epidemic as the Sole Intervention,” American Journal of Preventive Medicine, July 15, 2020, at https://www.ajpmonline.org/article/S0749-3797(20)30284-1/fulltext. 36 Kimihito Ito, et al., “Predicted dominance of variant Delta of SARS-CoV-2 before Tokyo Olympic Games, Japan, July 2021,” Eurosurveillance, July 8, 2021, at https://www.eurosurveillance.org/content/10.2807/15607917.ES.2021.26.27.2100570?crawler=true 37 Talha Khan Burki, “Lifting of COVID-19 restrictions in the UK and the Delta variant,” The Lancet, July 12, 2021, at https://www.thelancet.com/pdfs/journals/lanres/PIIS2213-2600(21)00328-3.pdf 38 Sam Moore, et al., “Vaccination and Non-Pharmaceutical Interventions for COVID-19: A Mathematical Modelling Study,” The Lancet, Mar. 18, 2021, at https://doi.org/10.1016/S1473-3099(21)00143-2. 39 Andrea Allen, Minali Aggarwal, and Neal Marquez, “As Long as There is COVID-19, Immigration Detention Centers Will be Poised for Disaster,” UCLA Law COVID Behind Bars Data Project, July 27, 2021, at https://uclacovidbehindbars.org/ice-outbreaks-report, accessed July 31, 2021. 40 Id.
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39. There are various reasons for the limited effectiveness of vaccines introduced in isolation (or as replacement for NPIs) in immigration detention facilities like Mesa Verde. I lay these reasons out below.
a. High reproduction number of the virus (generally and especially in congregate settings). One of the reasons that COVID-19 has been so devastating in the United States and globally is its high reproduction number. The reproduction number of the virus is even greater in carceral institutions and detention centers because it depends on the rate of human-human interactions. Any factor having the potential to influence the contact rate (e.g. population density) will have an effect on the reproduction number. In congregate settings that are densely populated the reproduction number increases. A vaccine’s effectiveness is markedly diminished where the reproduction number is higher.41 A vaccine with low efficacy (e.g., 25%) can have a powerful preventive effect in areas where the effective reproduction number of the virus is low (e.g., R0=1.5, a reproduction number classified as outbreak control through mitigation measures). By contrast, a vaccine with much higher efficacy (e.g., 75%; similar to the Janssen vaccine) can nonetheless fail to prevent a large proportion of severe cases and deaths when deployed in areas where the effective reproduction number is high (e.g., Rt=2.1).
COVID-19 has been found to have higher reproduction numbers in certain highpopulation jails than anywhere in the world.42 Only where aggressive mitigation measures have been implemented in carceral institutions and scrupulously adhered to has there been documented effective viral control (i.e., decreased rates of COVID transmission).
So, where immigration detention centers relax mitigation measures – i.e., increasing population density, reducing social distancing, etc. – the COVID reproduction number will likely increase, and the positive impact of the vaccine will correspondingly diminish. Therefore, as explained in an article by David Paltiel et al., and co-authored by current CDC Director Rochelle Walensky: “Managing and reducing [the reproductive rate] requires a sustained commitment to the public health practices and tools known to reduce the spread of COVID-19. Investment in these activities remains imperative not simply until the arrival of a vaccine but throughout the likely prolonged period during which a vaccine is being deployed [in the general population].”43
41 See David Paltiel, Jason Schwartz , Amy Zheng, & Rochelle Walensky, “Clinical Outcomes of a COVID-19 Vaccine: Implementation Over Efficacy,” Health Affairs, Vol. 40, No. 1, pp. 42-52, at https://www.healthaffairs.org/doi/10.1377/hlthaff.2020.02054 (“All other things being held equal, the proportional power of any vaccine to reduce infections, deaths, and peak hospitalization was greatest at lower values of Rt.”). 42 See, e.g., Lisa Puglisi, et al., “Estimation of COVID-19 Basic Reproduction Ratio in a Large Urban Jail in the United States,” Annals of Epidemiology, Jan. 2021, Vol. 53, pp. 103-105, at https://www.sciencedirect.com/science/article/abs/pii/S1047279720303471?via%3Dihub. 43 Paltiel et al., supra, note 31.
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b. Reluctance to receive the vaccine. Reluctance to take the COVID-19 vaccine is a problem within society as a whole because of, among other things, issues of trust, often inadequate public health messaging about the value and safety of vaccination and the politicization of COVID and vaccines.44
This reluctance may be heightened in immigration detention settings because of particular factors unique to this environment. Detained individuals are typically offered little to no educational material about COVID-19 vaccines. The materials provided often lack cultural sensitivity and may not match with literacy and education levels of detained individuals. There is also a long history of understandable distrust which typically exists between those who are detained and their jailers.
Some prison systems, including California state prisons, have nonetheless managed to achieve relatively high rates of vaccination among incarcerated individuals, showing that involving incarcerated individuals in vaccine outreach and reoffering vaccines to those who initially declined have been important to increasing vaccine uptake in the state’s prisons.45
Even in prison systems such as California’s that have achieved relatively high rates of vaccination among incarcerated individuals, vaccination rates among prison staff remain low.46
Before the emergence of the Delta variant, an estimated rate of vaccination of 70-90% was considered necessary to achieve herd immunity in non-congregate settings.47 The higher transmissibility of the Delta variant likely requires an even higher rate, if herd immunity is achievable at all with our current vaccines. Yet prevalent vaccine distrust makes this threshold difficult to achieve, further suggesting that vaccines should not be used as the sole intervention.48
44 Anya van Wagtendonk, “The Partisan Divide on Vaccination, Explained in 3 Charts,” Vox, Mar. 21, 2021, at https://www.vox.com/2021/3/21/22342184/democrats-republicans-covid-19-vaccine-hesitancy-polls. 45 See Elizabeth T. Chin, et. al., “COVID-19 Vaccine Acceptance in California State Prisons,” New England Journal of Medicine, May 12, 2021, at https://www.nejm.org/doi/full/10.1056/NEJMc2105282 (“Among the residents who had initially declined but were subsequently reoffered vaccination, 45.9% (901 of 1962) accepted at least one dose.”); Ann Hinga Klein, “Some U.S. states have higher vaccination rates inside prisons than outside,” N.Y Times, June 7, 2021, at https://www.nytimes.com/2021/06/01/us/vaccine-prison-covid.html (“At one California prison, inmates held a town-hall-style meeting in which medical experts answered questions about the safety of the vaccines.”) 46 Rhonda Lyons, “Most prison staff refuse COVID vaccine – should California let them?,” CalMatters, May 11, 2021, at https://calmatters.org/health/coronavirus/2021/05/prison-workers-refuse-covid-vaccine-california/ (57% of California prison employees have refused free vaccinations offered on the job); Jean Trounstine, “Why Are Half of Mass Correction Officers Refusing the COVID Vaccine?,” DIG Boston, at https://digboston.com/why-are-half-ofmass-correction-officers-refusing-the-covid-vaccine/. 47 See, e.g., Donald McNeil, “How Much Herd Immunity Is Enough?,” NY Times, Dec. 24, 2020; WHO, “Coronavirus Disease (COVID-19): Herd Immunity, Lockdowns and COVID-19,” Dec. 31, 2020, at https://www.who.int/news-room/q-a-detail/herd-immunity-lockdowns-and-covid-19?gclid=Cj0KCQjwo-aCBhCARIsAAkNQiuzfHrK69QjyRTeAArqzU2YR_FbEvtAj3eZ5XubNcf2GtvKGvDcb78aAmcSEALw_wcB#. 48 Christie Aschwanden, “Five Reasons Why COVID Herd Immunity Is Probably Impossible,” Nature, Mar. 18, 2021, at https://www.nature.com/articles/d41586-021-00728-2.
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In sum, a campaign of vaccination alone will not stop viral transmission in facilities with high turnover, multiple families, individuals with different comorbidities, and high population density. Vaccines need to be viewed as one layer in a responsible, multi-layered mitigation strategy to stop the transmission of COVID-19 to individuals in detention facilities.
c. Limitations of vaccines—some serious COVID-19 symptoms. The available vaccines have a high efficacy in limiting death, ICU admission, and some other severe symptoms of COVID disease. They are nonetheless imperfect: for example, in clinical trials, the Janssen vaccine had an 85% efficacy in preventing what the trial study classified as “severe” COVID. The vaccines also have a quite high efficacy in preventing what the study classified as “moderate” COVID, though the Janssen vaccine is significantly lower than the rate of preventing severe COVID—with rates of preventing moderate and severe COVID of 72% in the United States, 66% in Latin America, and 57% in South Africa at the time of the tests (when different variants of concern were dominant in Latin America and South Africa than in the United States).49
d. Limitations of vaccines—likely continued transmissibility of the virus. Vaccine effectiveness incorporates both the vaccine’s effect in limiting COVID transmission and the vaccine’s effect on limiting disease progression and mortality. Although there are some indications that people vaccinated with mRNA vaccines (Pfizer-BioNTech and Moderna) are less likely to transmit SARS-CoV-2 to other, the extent of this protection, or its variation in different populations and settings, is not clearly understood. Effectiveness in preventing transmission was not required for the FDA’s emergency use authorization of the three vaccines approved for use in the United States. Also, because the vaccines also are not authorized for use in children under 12 years of age, even with very high vaccine uptake, there will likely be virus circulating for some time. Recent data from the CDC suggests that viral loads may remain high in the nares of vaccinated individuals thereby allowing transmission to continue even from this group of individuals.
e. Limitations of vaccines—no evidence on certain COVID risks including “long COVID.” The studies did not define either moderate or severe COVID to include socalled “long COVID.” Long COVID is defined as a set of symptoms that can last months or more after the initial COVID infection. Long COVID symptoms include, i.e., extreme tiredness, memory and concentration problems, shortness of breath, insomnia, heart palpitations, migraine-like headaches, cognitive disturbances, depression and anxiety, and decline in quality of life. Long COVID can occur even for people who have mild symptoms at the outset (and in fact does not seem linked to the severity of the initial symptoms). Studies have demonstrated that long COVID
49 Heather McKenzie, “Johnson & Johnson COVID-19 Vaccine’s 66% Efficacy Rate Not the Entire Story,” BioSpace, Jan. 29, 2021, at https://www.biospace.com/article/j-and-j-covid-19-vaccine-66-percent-effective-againstall-strains/.
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presents a significant risk for those infected. A comprehensive review of the literature identified various studies reporting that between 30% and 87% of patients reported recurring symptoms months after acute COVID infection.50
f. Existence of (current and likely new) variants with high reproduction numbers and diminished vaccine efficacy. Some concerning new COVID-19 variants, in particular the Delta variant, have greater infectiousness and produce a more severe disease. The CDC and the WHO have all identified the risks of these new variants in contributing to “another avoidable surge” of COVID-19 if there is a relaxation of mitigation measures in the wake of greater vaccine access.51
g. The greater risks of infectious spread in congregate facilities (due to, i.e., limited capacity for social distancing, regular transfers, staff movements, and limitations in personal protective equipment, testing and healthcare). The factors that have contributed to prisons, jails and detention centers becoming hotspots for COVID-19 outbreaks since the start of this pandemic are the same factors that limit the effectiveness of vaccines in isolation at this stage of the pandemic.
i. Inadequate social distancing ensures that there will be continued and rapid spread if mitigation measures are relaxed and COVID is introduced into the facilities.
ii. The high-volume daily inflow and outflow of staff and detainees, when mitigation measures are relaxed, ensures continued spread even as vaccines become more available. Immigration detention centers, much like jails, are dynamic populations which regular population shifts. Cycling of individuals through detention facilities, and back into the community, has been recognized to be a significant factor in COVID-19 transmission. The extraordinarily high risk of transmission associated with transfers is why the CDC has consistently advised strongly against any transfers between detention facilities or correctional institutions unless strictly necessary.52 Similarly, the fact that staff and contractors (as well as vendors) come and go on a daily basis increases the risk of COVID transmission to those who operate within or are in the custody of immigration detention centers. The inflow and outflow of both detainees and staff presents heightened risks of transmission, new and more dangerous COVID-19 variants, and exposure to unvaccinated individuals.
iii. The lack of consistent personal protective equipment; and inadequacies in testing and health care increase the risk of rapid COVID-19 spread in the event of the
50 See Ani Nalbandian, et al., “Post-Acute COVID-19 Syndrome,” Nature, Mar. 22, 2021, at https://www.nature.com/articles/s41591-021-01283-z. 51 See, e.g., Jacqueline Howard & Christina Maxouris, “CDC Director Warns Coronavirus Variants Could Spark Another Avoidable Surge,” CNN, Mar. 23, 2021, at https://www.cnn.com/2021/03/22/health/us-coronavirusmonday/index.html; Maggie Fox, “A More Contagious Coronavirus Variant Is Spreading Across the US. Can Vaccines Stop It?,” CNN, Mar. 20, 2021, at https://www.cnn.com/2021/03/20/health/variant-b117-vaccineswork/index.html. 52 See, e.g., CDC, “Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities,” rev’d June 9, 2021, accessed June 15, 2021 (“Limit transfers of incarcerated/detained persons to and from other jurisdictions and facilities unless necessary. . .”).
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introduction of the virus into the facility. Any delays in vaccination of new intakes, or unwillingness to test asymptomatic individuals, ensures delayed identification of COVID-19 in the facility and an increased risk of outbreak.
Public Health Effects of Premature Repopulation of Detention Facilities
40. There is constant movement in and out of jails and detention centers, and typically high population density and limited capacity for social distancing. As a result, infectious diseases transmit very easily in such contexts. These facilities are known to operate as epidemiologic pumps that amplify infectious diseases into surrounding communities. Thus, not only do carceral conditions lead to rapidly multiplying COVID-19 cases among detained persons and staff, these institutions also operate as high-pressure disease reservoirs that spread the virus into surrounding communities.53
41. Stopping the epidemic in correctional institutions and detention centers is vital for protecting staff and incarcerated people; it is also critical for curbing the spread of COVID-19 into surrounding communities. The premature relaxation of NPIs at Mesa Verde would dramatically increase the risks for those unvaccinated, and significantly for those who are vaccinated within the facilities. It would also increase the risk to the community at large because of the characteristics at detention facilities which make them incubators for widespread transmission.
42. The premature relaxation of restrictions – coupled with “pandemic fatigue” and the growing presence of new and more easily transmissible variants – are believed to have contributed to an increased incidence of COVID-19 in certain places.54
43. Relaxation of restrictions are also likely to create conditions in which new, vaccine resistant variants of SARS-CoV-2 will emerge. The Strategic Advisory Group of Experts – the U.K. government’s advisory group that provides scientific and technical advice to support policy makers – issued a paper last week finding that “reducing transmission” is a necessary step to avoid the emergence of vaccine evading variants.55 Using sophisticated stochastic modeling, other researchers recently noted that the “lack of nonpharmaceutical interventions” can “increase the probability of establishment of vaccineresistant strains.”56
53 See, e.g., Eric Lofgren, et al., “The Epidemiological Implications of Jails for Community, Corrections Officer, and Incarcerated Population Risks from COVID-19,” medRxiv (preprint), Jan. 7, 2021, at https://doi.org/10.1101/2020.04.08.20058842; Brendan Saloner, “COVID-19 Cases and Deaths in Federal and State Prisons,” JAMA, Aug. 11, 2020, at COVID-19 Cases and Deaths in Federal and State Prisons (nih.gov). 54 See, e.g., Melissa Quinn, “Fauci Warns Against Potential New COVID-19 Surge as Cases Remain High,” CBS News, Mar. 28, 2021, at https://www.cbsnews.com/news/anthony-fauci-coronavirus-vaccine-covid-19-surge-facethe-nation/. 55 SAGE, “Can we predict the limits of SARS-CoV-2 variants and their phenotypic consequences?,” at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1007566/S1335_L ong_term_evolution_of_SARS-CoV-2.pdf, accessed Aug. 1, 2021. 56 Simon A. Rella, Yuliya A. Kulikova, Emmanouil T. Dermitzakis & Fyodor A. Kondrashov, “Rates of SARSCoV-2 transmission and vaccination impact the fate of vaccine-resistant strains,” Nature Scientific Reports, at https://www.nature.com/articles/s41598-021-95025-3, accessed July 31, 2021.
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44. For these reasons, national and international public health experts have strongly advised against the premature relaxation of NPIs in the wake of the introduction of vaccines. As the World Health Organization warned:
Safe and effective vaccines are a game-changing tool: but for the foreseeable future we must continue wearing masks, cleaning our hands, ensuring good ventilation indoors, physically distancing and avoiding crowds. Being vaccinated does not mean that we can throw caution to the wind and put ourselves and others at risk, particularly because research is still ongoing into how much vaccines protect not only against disease but also against infection and transmission.57
45. NPIs have been found to be highly effective in reducing COVID-19 transmission in correctional facilities and detention centers.58 These are the environments where there will likely remain very high epidemic risk even after a declared end of this pandemic in the community. Models suggest that early removal of NPIs in high-risk settings may be detrimental.59
46. Epidemiologists have long recognized the relationship between infectious disease outbreaks in correctional institutions and the broader community in connection with other diseases, including influenza, viral hepatitis, HIV/AIDS, and tuberculosis.60 So far, two modeling studies and one empirical analysis suggest that such a carceral-community transmission dynamic exists in the context of COVID-19 as well.61
47. The cycling into and out of immigration detention centers – of both detained people and staff – ensures that the continued spread of COVID-19 in detention centers will both be
57 See, e.g., WHO, “COVID-19 Vaccines,” at https://www.who.int/emergencies/diseases/novel-coronavirus2019/covid-19-vaccines (last visited June 15, 2021). 58 See, e.g., Giovanni Malloy, et al., “The Effectiveness of Interventions to Reduce COVID-19 Transmission in a Large Urban Jail,” medRxiv, June 18, 2020, at https://doi.org/10.1101/2020.06.16.20133280 (preprint, accepted for publication in British Medical Journal Open) (concluding that “depopulation efforts should be a primary strategy for COVID-19 mitigation” in correctional institutions, alongside social distancing and asymptomatic testing). 59 Moore, et al, supra, note 6. 60 See, e.g., Kate Dolan, et al., “Global Burden of HIV, Viral Hepatitis, and Tuberculosis in Prisoners and Detainees,” The Lancet, Sept. 10, 2016, Vol. 388, Issue 10049, pp. 1089-1112, at https://doi.org/10.1015/S0140=6736(16)30466-4; David Stuckler, et al., “Mass Incarceration Can Explain Population Increases in TB and Multidrug-Resistant TB in European and Central Asian Countries,” Proceedings of the National Academy of Sciences, Sept. 9, 2008, Vol. 105, pp. 13280-13285, at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2533181. 61 Eric Reinhart & Daniel Chen, “Incarceration and its Disseminations: COVID-19 Pandemic Lessons from Chicago’s Cook County Jail,” Health Affairs, June 4, 2020, Vol. 39, No. 8, at https://doi.org/10.1377/hlthaff.2020.00652; Eric Lofgren, et al., “The Epidemiological Implications of Incarceration Dynamics in Jails for Community, Corrections Officer, and Incarcerated Population Risks from COVID-19,” medRxiv (preprint), Jan. 7, 2021, at https://doi.org/10.1101/2020.04.08.20058842; Gipsy Escobar & Sema Taheri, “Incarceration Weakens a Community’s Immune System: Mass Incarceration and COVID-19 Cases in Milwaukee,” Measures for Justice, June 2, 2020, at https://measuresforjustice.org/about/docs/Incarceration_Weakens_Community_Immune_System_Preliminary_Resul ts.pdf.
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affected by, and continue to affect, the surrounding communities. One study found, for instance, that the cycling between correctional institutions and the community was one of the strongest predictors of COVID-19 rates in ZIP codes across Illinois.62 Indeed, this study found that one in six cases in Illinois had resulted from transmission linked to a single jail. The extraordinarily high rate of infection and transmission in correctional institutions and detention centers heightens the risk that they present to the control of the virus more broadly.63
Conclusion
48. The premature relaxation of multi-layered mitigation measures at immigration detention centers, including Mesa Verde, risks the health and safety of those detained, and also the broader community. With the emergence of new variants, some of which are highly infectious, transmission of COVID-19 remains a significant problem. Continued transmission in detention centers increases the risk for transmission in surrounding communities. Mitigation measures should remain in place until certain identified thresholds are reached because of the limitations of the existing vaccines (despite their overall efficacy), the high transmissibility of COVID-19 in detention facilities, the community spread of newer COVID-19 variants that may evade the protective effects of the vaccine, inability to achieve sufficient vaccine coverage due to high turnover and issues of vaccine distrust on the part of detainees and prison staff, and the potential longterm effects of mild and moderate COVID-19 infection. Vaccines should be viewed as one component of a multi-layered strategy to stop viral transmission. Even when an initial relaxation of NPIs may be warranted, such relaxation should be done cautiously, in a limited way at the outset, and with continued monitoring of the effects of the evolving pandemic at the facilities.
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct to the best of my information and belief.
Executed this 2nd day of August 2021 in Cambridge, Massachusetts.
Salmaan Keshavjee, MD, PhD, ScM Professor of Global Health and Social Medicine Harvard Medical School Boston, Massachusetts
62 Eric Reinhart & Daniel Chen, “Incarceration and its Disseminations: COVID-19 Pandemic Lessons from Chicago’s Cook County Jail,” Health Affairs, June 4, 2020, Vol. 39, No. 8, at https://doi.org/10.1377/hlthaff.2020.00652. 63 Brendan Saloner, et al., “Covid-19 Cases and Deaths in Federal and State Prisons,” JAMA, Aug. 11, 2020, Vol. 324(6), pp. 602-03, at http://jamanetwork.com/journals/jama/fullarticle/2768249 (incarcerated individuals have quintuple the risk of COVID-19 transmission as compared to the general population and triple the mortality, after adjusting for other variables).
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