Case: 4:20-cv-596 As of: 07/13/2020 07:38 PM CDT 1 of 13
CLOSED,HABEAS
U.S. District Court Northern District of Alabama (Middle) CIVIL DOCKET FOR CASE #: 4:20−cv−00596−RDP−JHE

Archilla et al v. Witte et al Assigned to: Judge R David Proctor Referred to: Magistrate Judge John H England, III Cause: 28:2241 Petition for Writ of Habeas Corpus (federa
Petitioner

Date Filed: 04/29/2020 Date Terminated: 06/22/2020 Jury Demand: None Nature of Suit: 530 Habeas Corpus (General) Jurisdiction: U.S. Government Defendant

Sarail Michael Archilla

represented by Ghita R Schwarz CENTER FOR CONSITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 10012 212−614−6445 Fax: 212−614−6445 Email: gschwarz@ccrjustice.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessica Myers Vosburgh ADELANTE ALABAMA WORKER CENTER 2104 Chapel Hill Road Birmingham, AL 35216 205−317−1481 Fax: 2052249675 Email: Jessica@adelantealabama.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy Jong LAW OFFICE OF JEREMY JONG 3527 Banks St New Orleans, LA 70119 504−475−6728 Email: jermjong@gmail.com PRO HAC VICE ATTORNEY TO BE NOTICED

Khaled Alrabe NATIONAL IMMIGRATION PROJECT NATIONAL LAWYERS GUILD 2201 Wisconsin Avenue, NW, Ste. 200 Washington, DC 20007 510−679−3994 Email: khaled@nipnlg.org PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew Scott Vogel NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Ave, NW, Suite 200 Washington, DC 20007 718−419−5876 Fax: 617−227−5495 Email: matt@nipnlg.org PRO HAC VICE

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ATTORNEY TO BE NOTICED

Sirine Shebaya NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Avenue NW Suite 200 Washington, DC 20007 202−656−4788 Email: sirine@nipnlg.org PRO HAC VICE ATTORNEY TO BE NOTICED

Petitioner Maxime P Blanc

represented by Jessica Myers Vosburgh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy Jong (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Khaled Alrabe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew Scott Vogel (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Sirine Shebaya (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Petitioner Geovanny Gerardo Castellano

represented by Jessica Myers Vosburgh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy Jong (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Khaled Alrabe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew Scott Vogel (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Sirine Shebaya (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

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Petitioner Antonio Melquezideth Castro
Petitioner Edson Flores
Petitioner Ray Fuller

represented by Jessica Myers Vosburgh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeremy Jong (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Khaled Alrabe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Scott Vogel (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sirine Shebaya (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jessica Myers Vosburgh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeremy Jong (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Khaled Alrabe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Scott Vogel (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sirine Shebaya (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jessica Myers Vosburgh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeremy Jong (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

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Petitioner Jose Antonio Garcia Rivera also known as Domingo Castillo
Petitioner Karim Tahir Golding

Khaled Alrabe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Scott Vogel (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sirine Shebaya (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jessica Myers Vosburgh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeremy Jong (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Khaled Alrabe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Scott Vogel (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sirine Shebaya (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jessica Myers Vosburgh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeremy Jong (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Khaled Alrabe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Scott Vogel (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sirine Shebaya

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

Petitioner Alex Hernandez

represented by Jessica Myers Vosburgh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy Jong (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Khaled Alrabe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew Scott Vogel (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Sirine Shebaya (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Petitioner Bakhodir Madjitov

represented by Jessica Myers Vosburgh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy Jong (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Khaled Alrabe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew Scott Vogel (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Sirine Shebaya (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Petitioner Kenneth Manning

represented by Jessica Myers Vosburgh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy Jong

Case: 4:20-cv-596 As of: 07/13/2020 07:38 PM CDT 6 of 13

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

Khaled Alrabe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew Scott Vogel (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Sirine Shebaya (See above for address) ATTORNEY TO BE NOTICED

Petitioner Landry Emily Mbendeke

represented by Jessica Myers Vosburgh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy Jong (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Khaled Alrabe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew Scott Vogel (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Sirine Shebaya (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Petitioner Tesfa Miller

represented by Jessica Myers Vosburgh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy Jong (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Khaled Alrabe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew Scott Vogel (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

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Petitioner Allen Roger Olano Esparza
Petitioner Sergio Quito
Petitioner Joseph Debonnaire Soho TERMINATED: 05/14/2020

Sirine Shebaya (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jessica Myers Vosburgh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeremy Jong (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Khaled Alrabe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Scott Vogel (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sirine Shebaya (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jessica Myers Vosburgh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeremy Jong (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Khaled Alrabe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Scott Vogel (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sirine Shebaya (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jessica Myers Vosburgh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 4:20-cv-596 As of: 07/13/2020 07:38 PM CDT 8 of 13

Petitioner Churvin Webster
Petitioner Randane Williams

Jeremy Jong (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Khaled Alrabe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Scott Vogel (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sirine Shebaya (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jessica Myers Vosburgh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeremy Jong (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Khaled Alrabe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Scott Vogel (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sirine Shebaya (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jessica Myers Vosburgh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeremy Jong (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Scott Vogel (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sirine Shebaya

Case: 4:20-cv-596 As of: 07/13/2020 07:38 PM CDT 9 of 13
(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

V. Respondent Dianne Witte In her official capacity as Interim New Orleans Field Office Director
Respondent Matthew T Albence In his official capacity as Deputy Director
Respondent Immigration and Customs Enforcement
Respondent

represented by Jason R Cheek U.S. Attorney's Office 1801 Fourth Avenue North Birmingham, AL 35203 205−244−2104 Fax: 205−244−2181 Email: jason.cheek@usdoj.gov ATTORNEY TO BE NOTICED
Mary Lester Marshall United States Attorneys Office 1801 Fourth Avenue North Birmingham, AL 35203 205−244−2121 Fax: 205−244−2181 Email: Margaret.marshall@usdoj.gov ATTORNEY TO BE NOTICED
Sarah Stevens Wilson U.S. Attorney's Office Northern District of Alabama 1801 Fourth Avenue North Birmingham, AL 35203 205−244−2140 Fax: 205−244−2181 Email: Sarah.S.Wilson@usdoj.gov ATTORNEY TO BE NOTICED
represented by Jason R Cheek (See above for address) ATTORNEY TO BE NOTICED
Mary Lester Marshall (See above for address) ATTORNEY TO BE NOTICED
Sarah Stevens Wilson (See above for address) ATTORNEY TO BE NOTICED
represented by Jason R Cheek (See above for address) ATTORNEY TO BE NOTICED
Mary Lester Marshall (See above for address) ATTORNEY TO BE NOTICED
Sarah Stevens Wilson (See above for address) ATTORNEY TO BE NOTICED

Case: 4:20-cv-596 As of: 07/13/2020 07:38 PM CDT 10 of 13
Jonathan Horton In his official capacity as Sheriff of Etowah County

Date Filed 04/29/2020
04/29/2020
04/29/2020
04/29/2020 04/30/2020 04/30/2020
04/30/2020 04/30/2020 04/30/2020
05/04/2020 05/04/2020

# Docket Text
1 PETITION for Writ of Habeas Corpus, filed by Churvin Webster, Kenneth Manning, Antonio Melquezideth Castro, Alex Hernandez, Sarail Michael Archilla, Landry Emily Mbendeke, Sergio Quito, Tesfa Miller, Allen Roger Olano Esparza, Maxime P Blanc, Edson Flores, Jose Antonio Garcia Rivera, Karim Tahir Golding, Bakhodir Madjitov, Ray Fuller, Joseph Debonnaire Soho, Geovanny Gerardo Castellano.(JLC) (originally filed in 4:20−cv−304−AKK) Modified on 4/30/2020 (KAM, ). (Entered: 04/29/2020)
2 MOTION for Temporary Restraining Order by Sarail Michael Archilla, Maxime P Blanc, Geovanny Gerardo Castellano, Antonio Melquezideth Castro, Edson Flores, Ray Fuller, Karim Tahir Golding, Alex Hernandez, Bakhodir Madjitov, Kenneth Manning, Landry Emily Mbendeke, Tesfa Miller, Allen Roger Olano Esparza, Sergio Quito, Jose Antonio Garcia Rivera, Joseph Debonnaire Soho, Churvin Webster. (Attachments: # 1 Memorandum of Law in Support of Motion, # 2 Declaration of Jessica Myers Vosburgh, # 3 Exhibit 1−22)(Vosburgh, Jessica) (Entered: 04/29/2020)
3 MOTION for Leave to Appear Pro Hac Vice by Sarail Michael Archilla, Maxime P Blanc, Geovanny Gerardo Castellano, Antonio Melquezideth Castro, Edson Flores, Ray Fuller, Karim Tahir Golding, Alex Hernandez, Bakhodir Madjitov, Kenneth Manning, Landry Emily Mbendeke, Tesfa Miller, Allen Roger Olano Esparza, Sergio Quito, Jose Antonio Garcia Rivera, Joseph Debonnaire Soho, Churvin Webster. (Attachments: # 1 Exhibit A − Declaration of Khaled Alrabe)(Vosburgh, Jessica) (Entered: 04/29/2020)
6 ORDER in 4:20−cv−304−AKK To avoid any allegations of judge shopping, the Clerk is DIRECTED to open a new, separate case for the Corrected Amended Complaint 11 . Signed by Judge Abdul K. Kallon on 4/29/2020. (KAM) (Entered: 04/30/2020)
4 TEXT ORDER granting 3 Motion to Admit Pro Hac Vice attorney Khaled Alrabe, but with the understanding and on the condition he pay the applicable fee and register for e−filing and notification within 14 days, unless he has already done so. Signed by Magistrate Judge John H England, III on 4/30/2020. (AVC) (Entered: 04/30/2020)
5 ORDER This case is before the court on Petitioners Motion for a Temporary Restraining Order (TRO) 2 , filed on April 29, 2020; To the extent they have not already done so, Petitioners are DIRECTED to serve Respondents with copies of their Petition for Writ of Habeas Corpus 1 and Motion for TRO 2 ; Respondents are DIRECTED to file a response by May 4, 2020; Petitioners SHALL reply by May 6, 2020. Signed by Judge R David Proctor on 4/30/2020. (KAM) (Entered: 04/30/2020)
7 NOTICE of Appearance by Sarah Stevens Wilson on behalf of Immigration and Customs Enforcement, Dianne Witte (Wilson, Sarah) (Entered: 04/30/2020)
8 NOTICE of Appearance by Sarah Stevens Wilson on behalf of Matthew T Albence (Wilson, Sarah) (Entered: 04/30/2020)
9 NOTICE by Sarail Michael Archilla, Maxime P Blanc, Geovanny Gerardo Castellano, Antonio Melquezideth Castro, Edson Flores, Ray Fuller, Karim Tahir Golding, Alex Hernandez, Bakhodir Madjitov, Kenneth Manning, Landry Emily Mbendeke, Tesfa Miller, Allen Roger Olano Esparza, Sergio Quito, Jose Antonio Garcia Rivera, Joseph Debonnaire Soho, Churvin Webster re 1 Petition for Writ of Habeas Corpus, 2 MOTION for Temporary Restraining Order CORRECTED CERTIFICATE OF SERVICE (Vosburgh, Jessica) (Entered: 04/30/2020)
10 NOTICE of Appearance by Jason R Cheek on behalf of Matthew T Albence, Immigration and Customs Enforcement, Dianne Witte (Cheek, Jason) (Entered: 05/04/2020)
11 RESPONSE in Opposition re 2 MOTION for Temporary Restraining Order filed by Matthew T Albence, Immigration and Customs Enforcement, Dianne Witte. (Attachments: # 1 Exhibit 1: Facility Response Declaration, # 2 Exhibit 2: Detainees' Status Declaration)(Wilson, Sarah) (Entered: 05/04/2020)

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

12 NOTICE of Appearance by Mary Lester Marshall on behalf of Matthew T Albence, Immigration and Customs Enforcement, Dianne Witte (Marshall, Mary) (Entered: 05/05/2020)
13 NOTICE by Sarail Michael Archilla, Maxime P Blanc, Geovanny Gerardo Castellano, Antonio Melquezideth Castro, Edson Flores, Ray Fuller, Karim Tahir Golding, Alex Hernandez, Bakhodir Madjitov, Kenneth Manning, Landry Emily Mbendeke, Tesfa Miller, Allen Roger Olano Esparza, Sergio Quito, Jose Antonio Garcia Rivera, Joseph Debonnaire Soho, Churvin Webster, Randane Williams Letter to Court (Alrabe, Khaled) (Entered: 05/05/2020)
14 MOTION for Leave to Appear Pro Hac Vice by Sarail Michael Archilla, Maxime P Blanc, Geovanny Gerardo Castellano, Antonio Melquezideth Castro, Edson Flores, Ray Fuller, Karim Tahir Golding, Alex Hernandez, Bakhodir Madjitov, Kenneth Manning, Landry Emily Mbendeke, Tesfa Miller, Allen Roger Olano Esparza, Sergio Quito, Jose Antonio Garcia Rivera, Joseph Debonnaire Soho, Churvin Webster, Randane Williams. (Attachments: # 1 Exhibit A − Declaration of Guadalupe Aguirre)(Vosburgh, Jessica) (Entered: 05/06/2020)
15 MOTION for Leave to Appear Pro Hac Vice by Sarail Michael Archilla, Maxime P Blanc, Geovanny Gerardo Castellano, Antonio Melquezideth Castro, Edson Flores, Ray Fuller, Karim Tahir Golding, Alex Hernandez, Bakhodir Madjitov, Kenneth Manning, Landry Emily Mbendeke, Tesfa Miller, Allen Roger Olano Esparza, Sergio Quito, Jose Antonio Garcia Rivera, Joseph Debonnaire Soho, Churvin Webster, Randane Williams. (Attachments: # 1 Exhibit A − Declaration of Baher Azmy)(Vosburgh, Jessica) (Entered: 05/06/2020)
16 MOTION for Leave to Appear Pro Hac Vice by Sarail Michael Archilla, Maxime P Blanc, Geovanny Gerardo Castellano, Antonio Melquezideth Castro, Edson Flores, Ray Fuller, Karim Tahir Golding, Alex Hernandez, Bakhodir Madjitov, Kenneth Manning, Landry Emily Mbendeke, Tesfa Miller, Allen Roger Olano Esparza, Sergio Quito, Jose Antonio Garcia Rivera, Joseph Debonnaire Soho, Churvin Webster, Randane Williams. (Attachments: # 1 Exhibit A − Declaration of Angelo Guisado)(Vosburgh, Jessica) (Entered: 05/06/2020)
17 MOTION for Leave to Appear Pro Hac Vice by Sarail Michael Archilla, Maxime P Blanc, Geovanny Gerardo Castellano, Antonio Melquezideth Castro, Edson Flores, Ray Fuller, Karim Tahir Golding, Alex Hernandez, Bakhodir Madjitov, Kenneth Manning, Landry Emily Mbendeke, Tesfa Miller, Allen Roger Olano Esparza, Sergio Quito, Jose Antonio Garcia Rivera, Joseph Debonnaire Soho, Churvin Webster, Randane Williams. (Attachments: # 1 Exhibit A − Declaration of Astha Sharma Pokharel)(Vosburgh, Jessica) (Entered: 05/06/2020)
18 MOTION for Leave to Appear Pro Hac Vice by Sarail Michael Archilla, Maxime P Blanc, Geovanny Gerardo Castellano, Antonio Melquezideth Castro, Edson Flores, Ray Fuller, Karim Tahir Golding, Alex Hernandez, Bakhodir Madjitov, Kenneth Manning, Landry Emily Mbendeke, Tesfa Miller, Allen Roger Olano Esparza, Sergio Quito, Jose Antonio Garcia Rivera, Joseph Debonnaire Soho, Churvin Webster, Randane Williams. (Attachments: # 1 Exhibit A − Declaration of Ghita Schwarz)(Vosburgh, Jessica) (Entered: 05/06/2020)
19 MOTION for Leave to Appear Pro Hac Vice by Sarail Michael Archilla, Maxime P Blanc, Geovanny Gerardo Castellano, Antonio Melquezideth Castro, Edson Flores, Ray Fuller, Karim Tahir Golding, Alex Hernandez, Bakhodir Madjitov, Kenneth Manning, Landry Emily Mbendeke, Tesfa Miller, Allen Roger Olano Esparza, Sergio Quito, Jose Antonio Garcia Rivera, Joseph Debonnaire Soho, Churvin Webster, Randane Williams. (Attachments: # 1 Exhibit A − Declaration of Brittany Thomas)(Vosburgh, Jessica) (Entered: 05/06/2020)
20 TEXT ORDER −− This matter is before the court on Plaintiffs Motion for Leave to Appear Pro Hac Vice, filed on behalf of Attorney Brittany Thomas 19 . Plaintiffs Motion 19 is CONDITIONALLY GRANTED. Attorney Thomas SHALL pay the $75.00 admission fee on or before May 8, 2020. Signed by Judge R David Proctor on 5/6/2020. (KAM) (Entered: 05/06/2020)
21 TEXT ORDER −− This matter is before the court on Plaintiffs Motion for Leave to Appear Pro Hac Vice, filed on behalf of Attorney Ghita Schwarz 18 . Plaintiffs Motion

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05/06/2020 05/06/2020 05/06/2020 05/06/2020 05/06/2020
05/07/2020 05/08/2020
05/08/2020 05/08/2020 05/11/2020

18 is CONDITIONALLY GRANTED. Attorney Schwarz SHALL pay the $75.00 admission fee on or before May 8, 2020. Signed by Judge R David Proctor on 5/6/2020. (KAM) (Entered: 05/06/2020)
22 TEXT ORDER −− This matter is before the court on Plaintiffs Motion for Leave to Appear Pro Hac Vice, filed on behalf of Attorney Astha Sharma Pokharel 17 . Plaintiffs Motion 17 is CONDITIONALLY GRANTED. Attorney Sharma Pokharel SHALL pay the $75.00 admission fee on or before May 8, 2020. Signed by Judge R David Proctor on 5/6/2020. (KAM) (Entered: 05/06/2020)
23 TEXT ORDER −− This matter is before the court on Plaintiffs Motion for Leave to Appear Pro Hac Vice, filed on behalf of Attorney Guadalupe Aguirre 14 . Plaintiffs Motion 14 is CONDITIONALLY GRANTED. Attorney Aguirre SHALL pay the $75.00 admission fee on or before May 8, 2020. Signed by Judge R David Proctor on 5/6/2020. (KAM) (Entered: 05/06/2020)
24 TEXT ORDER −− This matter is before the court on Plaintiffs Motion for Leave to Appear Pro Hac Vice, filed on behalf of Attorney Baher Azmy 15 . Plaintiffs Motion 15 is CONDITIONALLY GRANTED. Attorney Azmy SHALL pay the $75.00 admission fee on or before May 8, 2020. Signed by Judge R David Proctor on 5/6/2020. (KAM) (Entered: 05/06/2020)
25 TEXT ORDER −− This matter is before the court on Plaintiffs Motion for Leave to Appear Pro Hac Vice, filed on behalf of Attorney Angelo Guisado 16 . Plaintiffs Motion 16 is CONDITIONALLY GRANTED. Attorney Guisado SHALL pay the $75.00 admission fee on or before May 8, 2020. Signed by Judge R David Proctor on 5/6/2020. (KAM) (Entered: 05/06/2020)
26 REPLY to Response to Motion re 2 MOTION for Temporary Restraining Order filed by Sarail Michael Archilla, Maxime P Blanc, Geovanny Gerardo Castellano, Antonio Melquezideth Castro, Edson Flores, Ray Fuller, Karim Tahir Golding, Alex Hernandez, Bakhodir Madjitov, Kenneth Manning, Landry Emily Mbendeke, Tesfa Miller, Allen Roger Olano Esparza, Sergio Quito, Jose Antonio Garcia Rivera, Joseph Debonnaire Soho, Churvin Webster, Randane Williams. (Attachments: # 1 Declaration of Jessica Myers Vosburgh, # 2 Exhibit 23 − Huber Declaration, # 3 Exhibit 24 − Dr. Venters Declaration, # 4 Exhibit 25 − Supplemental Williams Declaration, # 5 Exhibit 26 − Supplemental Golding Declaration, # 6 Exhibit 27 − Reichlin−Melnick Declaration, # 7 Exhibit 28 − Court Orders)(Vosburgh, Jessica) (Entered: 05/06/2020)
27 NOTICE by Matthew T Albence, Immigration and Customs Enforcement, Dianne Witte re 11 Response in Opposition to Motion, OF SUPPLEMENTAL AUTHORITY (Attachments: # 1 Exhibit 1: Swain v. Junior, −−− F.3d −−− (11th Cir. 2020))(Wilson, Sarah) (Entered: 05/07/2020)
28 ORDER Telephone Hearing on Petitioners Motion for Temporary Restraining Order is set for 5/12/2020 03:00 PM before Judge R David Proctor. Counsel for Petitioners and Respondents are DIRECTED to dial−in to the conference by calling 866−434−5269 at the scheduled time. The access code is 6022965; In advance of the conference, or before Monday May 11, 2020 at 4:30 p.m., Petitioners SHALL submit a five (5) page brief regarding their position on the effect of the Eleventh Circuits recent decision in Swain v. Junior, −− F.3d −−, 2020 WL 2161317, *1 (11th Cir. May 5, 2020). Signed by Judge R David Proctor on 5/8/2020. (KAM) (Entered: 05/08/2020)
PHV Fee paid for Guadalupe Aguirre in the amount of $75.00, Credit Card receipt number 1126−3586925, NDAL receipt #B4601105846. (Alrabe, Khaled) Modified on 5/8/2020 (JLC). (Entered: 05/08/2020)
PHV Fee paid for Ghita Schwarz in the amount of $75.00, Credit Card receipt number 1126−3587008, NDAL receipt #B4601105847. (Schwarz, Ghita) Modified on 5/8/2020 (JLC). (Entered: 05/08/2020)
29 RESPONSE to re 27 filed by Sarail Michael Archilla, Maxime P Blanc, Geovanny Gerardo Castellano, Antonio Melquezideth Castro, Edson Flores, Ray Fuller, Karim Tahir Golding, Alex Hernandez, Bakhodir Madjitov, Kenneth Manning, Landry Emily Mbendeke, Tesfa Miller, Allen Roger Olano Esparza, Sergio Quito, Jose Antonio Garcia Rivera, Joseph Debonnaire Soho, Churvin Webster, Randane Williams. (Vosburgh, Jessica) (Entered: 05/11/2020)

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05/12/2020 05/12/2020 05/13/2020 05/13/2020
05/14/2020 05/14/2020
05/15/2020 05/15/2020
05/21/2020 06/19/2020
06/22/2020

PHV Fee paid: for Astha Sharma Pokharel $75, receipt number B4601105848 (KAM) (Entered: 05/12/2020)
Minute Entry for proceedings held before Judge R David Proctor: Telephone Conference held on 5/12/2020. Any supplemental briefs in support/opposition to motion shall be filed by 5/13/2020. A separate order will be entered by the court thereafter. (Court Reporter Risa Entrekin.) (KLL) (Entered: 05/12/2020)
30 AFFIDAVIT re 11 Response in Opposition to Motion, (Supplemental Declaration of Bryan Pitman) by Matthew T Albence, Immigration and Customs Enforcement, Dianne Witte. filed by Matthew T Albence, Immigration and Customs Enforcement, Dianne Witte (Wilson, Sarah) (Entered: 05/13/2020)
31 NOTICE by Sarail Michael Archilla, Maxime P Blanc, Geovanny Gerardo Castellano, Antonio Melquezideth Castro, Edson Flores, Ray Fuller, Karim Tahir Golding, Alex Hernandez, Bakhodir Madjitov, Kenneth Manning, Landry Emily Mbendeke, Tesfa Miller, Allen Roger Olano Esparza, Sergio Quito, Jose Antonio Garcia Rivera, Joseph Debonnaire Soho, Churvin Webster, Randane Williams of Post−Argument Supplemental Brief (Vosburgh, Jessica) (Entered: 05/13/2020)
32 CERTIFICATE of Counsel re PHV Fee Paid, 21 Order on Motion for Leave to Appear, by Ghita R Schwarz on behalf of All Plaintiffs (Attachments: # 1 Exhibit Certificate of Good Standing)(Schwarz, Ghita) (Entered: 05/14/2020)
33 ORDER After consideration of the record in this action, the court finds that Petitioners release on an order of supervised release has rendered his habeas corpus petition and accompanying Motion for TRO moot; Petitioner Joseph Debonnaire Soho's habeas corpus petition and his Motion for TRO are DISMISSED as MOOT. Signed by Judge R David Proctor on 5/14/2020. (KAM) (Entered: 05/14/2020)
34 MEMORANDUM OPINION. Signed by Judge R David Proctor on 5/15/2020. (KAM) (Entered: 05/15/2020)
35 ORDER This case is before the court on Petitioners Motion for Temporary Restraining Order 2 ; after careful review of the briefing and the arguments presented to the court, and for the reasons explained in the contemporaneously filed Memorandum Opinion, Petitioners Motion for Temporary Restraining Order (Doc. # 2 ) is DENIED. Signed by Judge R David Proctor on 5/15/2020. (KAM) (Entered: 05/15/2020)
36 ORDER in light of the court's review of the Amended Petition, it is ORDERED that on or before 6/12/2020, counsel are DIRECTED to meet and confer, and on or before 6/19/2020, they SHALL file a joint report, addressing the issues as set out in this order. Signed by Judge R David Proctor on 5/21/2020. (KAM) (Entered: 05/21/2020)
37 NOTICE of Voluntary Dismissal by Sarail Michael Archilla, Maxime P Blanc, Geovanny Gerardo Castellano, Antonio Melquezideth Castro, Edson Flores, Ray Fuller, Karim Tahir Golding, Alex Hernandez, Bakhodir Madjitov, Kenneth Manning, Tesfa Miller, Allen Roger Olano Esparza, Sergio Quito, Jose Antonio Garcia Rivera, Churvin Webster, Randane Williams (Vosburgh, Jessica) (Entered: 06/19/2020)
38 ORDER pursuant to the Petitioner's Notice of Voluntary Dismissal, this action is DISMISSED without prejudice; costs taxed as paid. Signed by Judge R David Proctor on 6/22/2020. (KAM) (Entered: 06/22/2020)

 
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FILED

2020 Apr-279 APM 1015:4223 U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION

RANDANE WILLIAMS SARAIL MICHAEL ARCHILLA MAXIME P. BLANC GEOVANNY GERARDO CASTELLANO ANTONIO MELQUEZIDETH CASTRO EDSON FLORES RAY FULLER JOSE ANTONIO GARCIA RIVERA (a/k/a DOMINGO CASTILLO) KARIM TAHIR GOLDING ALEX HERNANDEZ BAKHODIR MADJITOV KENNETH MANNING LANDRY (EMILY) MBENDEKE TESFA MILLER ALLEN ROGER OLANO ESPARZA SERGIO QUITO JOSEPH DEBONNAIRE SOHO CHURVIN WEBSTER Etowah Detention Center 827 Forrest Avenue Gadsden, AL 35901,
Petitioners-Plaintiffs,
v.
DIANNE WITTE, in her official capacity as Interim New Orleans Field Office Director, U.S. Immigration and Customs Enforcement 1250 Poydras, Suite 325 New Orleans, LA 70113;
MATTHEW T. ALBENCE, in his official capacity as Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement, U.S. Immigration and Customs Enforcement 500 12th St., S.W. Washington, DC 20536;

AMENDED PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
No. 4:20-cv-304-AKK-JHE

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IMMIGRATION AND CUSTOMS ENFORCEMENT, 500 12th St., S.W. Washington, DC 20536;
JONATHAN HORTON, in his official capacity as Sheriff of Etowah County, KEITH PEEK, in his official capacity as Chief Deputy, Etowah County Detention Center 827 Forrest Avenue Gadsden, AL 35901,
Respondents-Defendants.

Jessica Myers Vosburgh jessica@adelantealabama.org ADELANTE ALABAMA WORKER CENTER 2104 Chapel Hill Road Birmingham, AL 35216 205.317.1481
Sirine Shebaya* sirine@nipnlg.org Matthew S. Vogel* matt@nipnlg.org Khaled Alrabe** khaled@nipnlg.org NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Avenue NW, Suite 200 Washington, DC 20007 718.419.5876
Jeremy Jong* jermjong@gmail.com 3527 Banks Street New Orleans, LA 70119 504.475.6728

Baher Azmy* bazmy@ccrjustice.org Ghita Schwarz* gschwarz@ccrjustice.org Angelo Guisado* aguisado@ccrjustice.org Guadalupe V. Aguirre* laguirre@ccrjustice.org Astha Sharma Pokharel* asharmapokharel@ccrjustice.org Brittany Thomas* bthomas@ccrjustice.org CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 11201 212.614.6427
Counsel for Petitioners-Plaintiffs *pro hac vice applications forthcoming ** admitted pro hac vice
April 27, 2020

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AMENDED PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Pursuant to Fed. R. Civ. P. 15(a)(1)(B), Petitioners-Plaintiffs hereby file the following amended petition for a writ of habeas corpus and complaint for injunctive and declaratory relief:
INTRODUCTION 1. This case presents a request for immediate relief on behalf of eighteen PetitionersPlaintiffs (“Plaintiffs”), who are especially vulnerable to serious injury or death if they contract COVID-19, the highly contagious and potentially lethal disease that is sweeping the globe. Respondent-Defendants (“Defendants”) are holding Plaintiffs in civil immigration detention in the Etowah County Detention Center (ECDC) in Gadsden, Alabama. The coronavirus feeds on precisely the unsafe, congregate conditions in which Plaintiffs are being held, putting them at imminent risk of contracting COVID-19. 2. The risks and consequences of COVID-19 cannot be overstated. COVID-19 has reached global pandemic status. As of April 26, 2020, more than 2,800,000 individuals worldwide have confirmed diagnoses, including almost 900,000, in the United States.1 The World Health Organization reports that more than 193,000 individuals worldwide have died as a result of COVID-19, including more than 46,000 in the United States.2 Those numbers are growing significantly every day, with more than 84,000 new cases worldwide in the past day alone.3 By the time the Court reads this complaint, there will be more diagnoses, and more deaths, with no end in sight.
1 WORLD HEALTH ORG., Coronavirus Disease 2019 (COVID-19) Situation Report – 97 (Apr. 26, 2020), https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200426-sitrep-97-covid19.pdf?sfvrsn=d1c3e800_6. 2 Id. 3 Id.
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3. As of today’s date, there were 6,429 COVID-19 cases in Alabama.4 The number of infected people is rising exponentially; 219 people in Alabama have already died from the disease.5 These data include 125 cases and eight deaths in Etowah County, Alabama.6 Immediate relief is necessary before the coronavirus ignites within ECDC. As Judge John E. Jones, III, sitting in the Middle District of Pennsylvania, said in terms equally applicable to ECDC, “it is not a matter of if COVID-19 will enter Pennsylvania prisons, but when it is finally detected therein.” Thakker v. Doll, No. 1:20-CV-00480 (M.D. Pa. Mar. 31, 2020) at 8 (emphasis in original).
4. There is no known treatment for or vaccine against COVID-19, and there is no known cure. The only known effective measures to reduce the risk of COVID-19 are to prevent infection through social distancing and vigilant hygiene. Yet “social distancing” is a meaningless term in ECDC, where detainees are in constant close contact with each other and with facility staff. Increased and vigilant hygiene is similarly unavailable under the conditions inside the detention center.
5. ECDC is under the jurisdiction and direction of the regional U.S. Immigration and Customs Enforcement (ICE) Field Office located in New Orleans, which has jurisdiction over detention facilities in Alabama, Arkansas, Louisiana, Mississippi, and Tennessee. As of April 25, 2020, ICE reports that it has 317 confirmed cases of COVID-19 among detained people nationwide, including 81 at seven different facilities within the New Orleans Field Office’s jurisdiction, and fourteen cases of COVID-19 among employees at the Alexandria Staging
4 ALABAMA DEP’T OF PUBLIC HEALTH, DIV. OF INFECTIOUS DISEASES & OUTBREAKS, COVID-19 in Alabama, https://dph1.adph.state.al.us/covid-19/ (last accessed Apr. 27, 2020). 5 Id. 6 Id.
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Facility, also within the New Orleans Field Office’s jurisdiction.7 Because ICE does not engage in regular testing, all of these numbers must be assumed to be far higher. ICE regularly transfers individuals from one of these facilities to another—including frequent transfers between ECDC and LaSalle ICE Processing Center and other Louisiana facilities as recently as last week—and continues to make such transfers and receive transfers from other parts of the United States even since the COVID-19 outbreak.8
6. Plaintiffs fear for their lives because they have medical conditions—including diabetes, hypertension, lung disease, kidney disease, and compromised immune systems—and/or advanced age that place them amongst those sectors of the population that are most vulnerable to serious injury or death should they be infected with COVID-19. And for good reason: they are trapped in a facility that can only be described as a breeding ground for the disease. Despite warnings and pleas for release from public health experts and advocates, Defendants have chosen to continue to confine Plaintiffs in close proximity, without adequate personal protective equipment or hygiene supplies; to admit and transfer individuals to ECDC without COVID-19 testing or sufficient screening; to refuse to implement cleaning and protection procedures adequate to combat COVID-19; and to resist releasing even the most medically vulnerable individuals. The conditions and treatment at ECDC have created a dangerous situation that threatens Plaintiffs’ lives, as well as the wellbeing of staff, others in the surrounding community, and the general public.
7 IMMIG. AND CUSTOMS ENFORCEMENT, ICE Guidance on COVID-19, Confirmed Cases, https://www.ice.gov/coronavirus (last accessed Apr. 25, 2020). 8 See, e.g., Yeganeh Torbati, Dara Lind & Jack Gillum, In a 10-Day Span, ICE Flew This Detainee Across the Country Nine Times, PROPUBLICA (Mar. 27, 2020), https://www.propublica.org/article/coronavirus-ice-flightsdetainee-sirous-asgari (documenting transfer of man through several facilities, including those within jurisdiction of New Orleans Field Office).
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7. Several recent federal court rulings ordering release have explained the health risks—to those who are detained, staff, and the outside community at large—created by large prison and detention populations. See, e.g., Jimenez v. Wolf, No. 18-10225-MLW (D. Mass. Mar. 26, 2020) (ordering release of detained immigrant in the midst of the COVID-19 pandemic and noting that “being in a jail enhances risk” and that in jail “social distancing is difficult or impossible”); Basank v. Decker, No. 1:20-cv-02518-AT (S.D.N.Y. Mar. 26, 2020) (ordering the release of ten people from three immigration detention facilities in New Jersey because “confining vulnerable individuals . . . without enforcement of appropriate social distancing and without specific measures to protect their delicate health ‘pose[s] an unreasonable risk of serious damage to [their] future health’”) (internal citation omitted); Thakker v. Doll, No. 1:20-cv00480-JEJ (M.D. Pa. Mar. 31, 2020) (ordering release of 13 people from three immigration detention facilities in Pennsylvania because “preventative measures” against the “grave risk” of COVID-19 cannot be practiced in “tightly confined, unhygienic spaces”); Fraihat v. Wolf, No. 2:20-CV-590-TJH (C.D. Cal. Mar. 30, 2020) (ordering release of individual from immigration detention facility because COVID-19 “can spread uncontrollably with devastating results in a crowded, closed facility”); United States v. Ramos, No. 18-CR-300009-FDS, 2020 WL 14778307, at *1 (D. Mass. Mar. 25, 2020) (stating that “it is not possible for a medically vulnerable inmate . . . to isolate himself in this institutional setting as recommended by the CDC, and guards and newly arrested individuals must enter the facility on a daily basis”); Coronel v. Decker, No. 20-cv-2472 (AJN), 2020 WL 1487274, at *3 (S.D.NY. Mar. 27, 2020) (noting that “being in immigration detention places petitioners at significantly higher risk of contracting COVID-19”); United States v. Kennedy, No. 18-20315, 2020 U.S. Dist. LEXIS 53359, at * (E.D. Mich. Mar. 27, 2020) (stating that the CDC “acknowledged that correctional detention facilities
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‘present unique challenges for control of COVID-19 transmission among incarcerated/detained persons, staff, and visitors.’”).
8. Recognizing the urgency of this situation, judges, prosecutors and governors across the country have been ordering releases to protect individuals and the public health. On March 26, 2020, Attorney General Barr issued a directive to the federal Bureau of Prisons urging reduction of the prison population through the use of home confinement.9 Likewise, on April 2, 2020, Alabama Governor Kay Ivey issued a supplement to Alabama’s State of Emergency allowing local officials to reduce county jail populations in a way that does not jeopardize public safety.10 By April 10, after multiple inmates and staff contracted COVID-19, Mobile Metro Jail had decreased its population from 1,580 to 1,100 to prevent further exposure of COVID-19 to particularly vulnerable populations. Law enforcement officials in New Orleans, Nashville, Houston, San Antonio, Charlotte, New York City, Chicago, Oakland, New Jersey, Cleveland, and numerous other jurisdictions are releasing thousands of individuals in both civil and criminal detention and incarceration because of the threat COVID-19 poses inside jails, prisons, and detention centers. On March 22 the New Jersey Supreme Court issued a consent order for the presumptive release of approximately 1,000 persons by March 26.11
9. On March 24, the Los Angeles County Sheriff’s Department in California had released approximately 1,700 persons from county jails in response to COVID-19.12 Sentencing
9 Memorandum from Attorney General William Barr to Director of Bureau of Prisons, Prioritization of Home Confinement as Appropriate in Response to COVID-19 Pandemic (Mar. 26, 2020), https://www.politico.com/f/?id=00000171-1826-d4a1-ad77-fda671420000 10 Gov. Kay Ivey, Fifth Supplemental SOE COVID-19 (Apr. 2, 2020), https://governor.alabama.gov/assets/2020/04/2020-04-02-Fifth-Supplemental-SOE_COVID-19.pdf. 11 Tracey Tulley, 1,000 Inmates Will Be Released from N.J. Jails to Curb Coronavirus Risk, N.Y. TIMES (Mar. 23, 2020), https://www.nytimes.com/2020/03/23/nyregion/coronavirus-nj-inmates-release.html.
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judges in Michigan have released over 500 people from county jails in the Detroit area, as of April 1.13 By April 13, 912 persons were released from Allegheny County jail in Pennsylvania upon approval from the district court administrator.14 In Boulder County, Colorado, the District Attorney’s office has released more than 100 persons to reduce jail populations in light of COVID-19 as of April 4.15 On April 13, almost a quarter of the persons previously in pretrial detention in Stanislaus County Jail in California were released due to concerns over COVID19.16
10. Such releases protect the people with the greatest vulnerability to serious illness and death from COVID-19. They also protect all those in custody or working in the prison, jail, or detention center, and reduce the burden on the surrounding region’s healthcare infrastructure, as they lessen the likelihood that an overwhelming number of people will become seriously ill from COVID-19 at the same time. This is particularly significant here, as Etowah County, a predominantly rural community in northeastern Alabama, has very limited healthcare infrastructure.
12 Justin Carissmo, 1,700 inmates released from Los Angeles County in response to coronavirus outbreak, CBS NEWS (Mar. 24, 2020), https://www.cbsnews.com/news/inmates-released-los-angeles-county-coronavirus-response2020-03-24/ 13 Amber Ainsworth, Hundreds of inmates released from Metro Detroit county jails amid coronavirus (COVID-19) outbreak, WDIV (NBC)/CLICKON DETRIOT (Apr. 1, 2020), https://www.clickondetroit.com/news/local/2020/04/02/hundreds-of-inmates-released-from-metro-detroit-countyjails-amid-coronavirus-covid-19-outbreak/. 14 912 inmates released from Allegheny County Jail due to coronavirus concerns, WTAE-ABC (Apr. 13, 2020), https://www.wtae.com/article/inmates-released-from-allegheny-county-jail-due-to-coronavirus-concerns/31953103. 15 Daliah Singer, In Colorado prisons and jails, a piecemeal approach to the threat of coronavirus, THE COLORADO SUN (Apr. 2, 2020), https://coloradosun.com/2020/04/04/colorado-prisons-jails-coronavirus-covid-criminal-justice/ 16 Erin Tracy, COVID-19 concerns will result in release of up to 300 Stanislaus County Jail inmates, THE MODESTO BEE (Apr. 12, 2020), https://www.modbee.com/news/local/crime/article241929456.html.
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11. By contrast, Defendants’ response to the threats this pandemic poses to the immigrants under their custody and care has been abysmal. Following public outcry, on March 17, 2020, ICE issued a statement that it would modify its enforcement efforts in apparent recognition of the need for alternatives to detention to protect public health.17
12. The next day, however, in response to a lawsuit for the release of vulnerable ICE detainees in Washington state, the agency showed a deep failure to appreciate the urgency and threat the COVID-19 pandemic presents, stating that “Plaintiffs’ assertion that detention per se poses an increased risk of health complications or death from COVID-19 is purely speculative.”18 ICE’s head-in-the-sand response to the threats of this pandemic will prove deadly to Plaintiffs and surrounding communities if it is not remedied through this Court’s intervention.
13. On March 19, 2020, two medical experts for the Department of Homeland Security’s Office of Civil Rights and Civil Liberties sent a whistleblower letter to Congress, to highlight “the need to implement immediate social distancing to reduce the likelihood of exposure to detainees, facility personnel, and the general public,” and arguing that ICE detention presents a “tinderbox scenario” and “it is essential to consider releasing all detainees who do not pose an immediate risk to public safety.”19 On multiple occasions since at least February 25, 2020, these experts had sounded the alarm within the agency about the impending risks to the health of those in immigration detention and the public at large unless swift mitigation measures, including releasing persons in immigration detention, are taken.
17 IMMIG. AND CUSTOMS ENFORCEMENT, Press Release: Updated ICE statement on COVID-19 (Mar. 18, 2020), https://www.ice.gov/news/releases/updated-ice-statement-covid-19 18 Respondents-Defendants’ Opposition at 8, Dawson v. Asher, ECF No. 28, Case No. 20-0409 (W.D. Wash. Mar. 18, 2020). 19 Letter from Scott A. Allen, MD and Josiah Rich, MD, MPH to Congressional Committee Chairpersons (Mar. 19, 2020), https://assets.documentcloud.org/documents/6816336/032020-Letter-From-Drs-Allen-Rich-to-CongressRe.pdf (emphasis in original).
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14. Inside ECDC, Defendants are not consistently adhering to the measures ICE claims it is taking. For example, Defendants are bringing new individuals into the jail (both ICE detainees and county inmates) on a weekly or even daily basis without testing or sufficient screening, and continue to transfer individuals between detention centers without such protective measures. The facility has also adopted measures—including crowding the entire ICE population of over one hundred detainees into a single housing unit within the jail, and using a “fogger” machine to spray disinfectant throughout the housing units—that are in direct contravention of public health experts’ recommendations on social distancing and proper hygiene, potentially putting Plaintiffs at even greater risk.
15. This echoes a concern of the two Department of Homeland Security (DHS) medical experts, who say that “the track record of ICE facilities implementing [early screening, testing, isolation and quarantine] protocols historically has been inconsistent.”20 Moreover, even if ICE was consistently taking these precautions, the DHS experts have explained that they will not be enough without rapidly releasing those who do not pose an immediate danger to public safety. Defendants stubbornly refuse to heed the advice of public health experts, including their own.
16. Plaintiffs are also suffering from a unconstitutional deprivation of liberty due to the excessively prolonged nature of their civil detention without review—ranging from thirteen months to nine years. Thus they are entitled to release or a constitutionally adequate bond hearing to assess the legality and necessity of their ongoing detention.
17. Plaintiffs, who are confined in civil, nonpunitive detention, are at risk of serious injury or death because of Defendants’ flawed choices and the conditions in ECDC. Defendants’ failure to follow public health guidance endangers the lives of those they have chosen to detain.
20 Id. at 5.
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The only way to effectively inhibit the spread of COVID-19 and to protect Plaintiffs and others from the risks posed by COVID-19 infection is to immediately release Plaintiffs, so that they can actually adhere to the guidance from public health experts and take the necessary steps to protect themselves and the public.
18. Defendants cannot justify continuing to subject Plaintiffs to extraordinary risk of illness and death with any legitimate government objective, particularly in light of the alternatives available to them to release Plaintiffs under appropriate conditions. The danger posed by Plaintiffs’ detention during the current outbreak of COVID-19 is “so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk” and violates their constitutional right to safety in government custody. Helling v. McKinney, 509 U.S. 25, 36 (1993) (emphasis in original). Plaintiffs bring this action to remedy grave violations of their constitutional rights that imminently threaten them with serious illness and death.
19. Unless this Court intervenes to order the release of the Plaintiffs, they, along with many other detained individuals and entire communities, will face dramatically increased chances of contracting COVID-19, becoming seriously ill, and dying.
JURISDICTION AND VENUE 20. This action arises under the Due Process Clauses of the Fifth Amendment to the United States Constitution, the federal habeas corpus statute, 28 U.S.C. § 2241, and the Rehabilitation Act, 29 U.S.C. § 701 et seq. 21. This Court has subject-matter jurisdiction pursuant to 28 U.S.C. § 2241 (habeas corpus), 28 U.S.C. § 1331 (federal question), 5 U.S.C. § 702 (waiver of sovereign immunity), 28 U.S.C. § 1346 (original jurisdiction), 28 U.S.C. § 1651 (All Writs Act), 28 U.S.C. §1361
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(Mandamus Act), and Article I, Section 9, clause 2 of the United States Constitution (the Suspension Clause).
22. Venue is proper in the Northern District of Alabama pursuant to 28 U.S.C. § 2241(d) and pursuant to 28 U.S.C. § 1391(b) and (e).
PARTIES Petitioners-Plaintiffs
23. Petitioner-Plaintiff Randane Williams is a 30-year-old native and citizen of Jamaica who is currently detained without bond by ICE at ECDC. He has been in ICE custody since February 2018. He has been subject to an administratively final order of removal since December 18, 2018. His removal is stayed pending judicial review of his removal order in the Ninth Circuit Court of Appeals. He suffers from hypertension and a heart murmur. Mr. Williams is therefore at high risk of severe illness or death if he contracts COVID-19. If released, he will reside with his cousin in Atlanta, Georgia.
24. Petitioner-Plaintiff Sarail Michael Archilla is a 44-year-old apparently stateless individual who is currently detained without bond by ICE at ECDC. He was born in Canada to parents of Jamaican descent, but it appears neither country recognizes him as their citizen. He has been in ICE custody since July 2017. He has been subject to an administratively final order of removal since approximately August 18, 2017. ICE has not been able to obtain a travel document for him from Canada, Jamaica, or any other country. Mr. Archilla suffers from hypertension and chronic asthma. He is therefore at high risk of severe illness or death if he contracts COVID-19. If released, he will reside with his girlfriend in St. Paul, Minnesota.
25. Petitioner-Plaintiff Maxime P. Blanc is a 46-year-old native and citizen of Dominica who is currently detained without bond by ICE at ECDC. He has been in ICE custody
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since June 2018. He has been subject to an administratively final order of removal since June 6, 2019. His removal is stayed pending judicial review of his removal order in the Eleventh Circuit Court of Appeals, which has appointed him pro bono counsel. Blanc v. U.S. Atty. Gen., No. 1912503 (11th Cir.). Mr. Blanc suffers from pre-diabetes, high cholesterol, and hypertension. He is therefore at high risk of severe illness or death if he contracts COVID-19. If released, he will reside with his cousin New York, New York.
26. Petitioner-Plaintiff Geovanny Gerardo Castellano is a 60-year-old native and citizen of Nicaragua who is currently detained without bond by ICE at ECDC. He has been in ICE custody since January 2016. He has been subject to an administratively final order of removal since April 1, 1988. Mr. Castellano suffers from hypertension and a heart condition. Because of his age and medical conditions, he is at high risk of severe illness or death if he contracts COVID-19. If released, he will reside with his girlfriend in Chatsworth, California.
27. Petitioner-Plaintiff Antonio Melquezideth Castro is a 38-year-old native and citizen of Belize who is currently detained without bond by ICE at ECDC. He has been in ICE custody since September 2017. He has been subject to an administratively final order of removal since December 13, 2018. On December 13, 2019, the Third Circuit Court of Appeals denied his petition for review of his removal order, but ICE has not yet executed his removal to Belize. Mr. Castro suffers from ongoing kidney disease and lung difficulties. Because of his medical conditions, he is at high risk of severe illness or death if he contracts COVID-19. If released, he will reside with his cousin in Plainfield, New Jersey or Brentwood, New York.
28. Petitioner-Plaintiff Edson Flores is a 48-year-old native and citizen of Honduras who is currently detained without bond by ICE at ECDC. He has been in ICE custody since
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2011. The Second Circuit Court of Appeals recently granted his petition for review of his removal order and remanded his case to the Board of Immigration Appeals (“BIA”). Summary Order, Flores v. Barr, No. 17-3421, ECF No. 144-1 (2d Cir. Oct. 26, 2019). He is currently awaiting the BIA’s decision. Mr. Flores suffers from hypertension, high cholesterol, and diabetes. He required hospitalization in March of 2020, but was told by ECDC staff that they could not take him because of COVID-19 risk. He is at high risk of severe illness or death if he contracts COVID-19. If released, he will reside with his mother in New York, New York.
29. Petitioner-Plaintiff Ray Fuller is a 54-year-old native and citizen of Jamaica who is currently detained without bond by ICE at ECDC. He has been in ICE custody since 2014. The Seventh Circuit Court of Appeals recently granted his petition for review of his removal order and remanded his case to the BIA. Fuller v. Whitaker, 914 F.2d 514 (7th Cir. Jan. 23, 2019). Mr. Fuller suffers from hypertension and a cardiopulmonary disease. He is therefore at high risk of severe illness or death if he contracts COVID-19. If released, he will reside at an interfaith community center in Chicago, Illinois.
30. Petitioner-Plaintiff Jose Antonio Garcia Rivera (a/k/a Domingo Castillo) is a 62-year-old21 man who is currently detained without bond by ICE at ECDC. He has been in ICE custody since 2013. Mr. Garcia suffers from asthma. Because of his medical condition and age, he is at high risk of severe illness or death if he contracts COVID-19. If released, he will reside with his partner in Scranton, Pennsylvania.
31. Petitioner-Plaintiff Karim Tahir Golding is a 35-year-old native and citizen of Jamaica who is currently detained without bond by ICE at ECDC. He has been in ICE custody
21 ICE is detaining and attempting to deport Mr. Garcia based on an allegation that his true identity is Domingo Castillo, a native and citizen of the Dominican Republic born in 1963. Mr. Garcia was in fact born in Puerto Rico in 1958. But even assuming that ICE’s allegations are correct, he would still be at high risk for severe COVID-19 based on his age and medical condition.
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since October 2016. He has been subject to an administratively final order of removal since March 5, 2018. His removal is stayed pending judicial review of his removal order in the Second Circuit Court of Appeals, which has appointed him pro bono counsel. Golding v. Barr, No. 18772 (2d. Cir.). Mr. Golding suffers from asthma. He is therefore at high risk of severe illness or death if he contracts COVID-19. If released, he will reside with his mother in Valley Stream, New York.
32. Petitioner-Plaintiff Alex Hernandez is a 49-year-old native and citizen of Honduras who is currently detained without bond by ICE at ECDC. He has been in ICE custody since October 2016. He has been subject to an administratively final order of removal since July 24, 2017. His removal is stayed pending judicial review of his removal order in the Ninth Circuit Court of Appeals, which has appointed him pro bono counsel. Hernandez v. Barr, No. 17-73332 (9th Cir.). Mr. Hernandez suffers from hypertension and other medical conditions. He is currently recovering from a recent surgery, which has left him in a weakened state and causes pain and inflammation. He is therefore at high risk of severe illness or death if he contracts COVID-19. If released, he will reside with his daughter in Los Angeles, California.
33. Petitioner-Plaintiff Bakhodir Madjitov is a 38-year-old native and citizen of Uzbekistan who is currently detained without bond by ICE at ECDC. He has been in ICE custody since December 2017. He has been subject to an administratively final order of removal since July 24, 2014. He is currently seeking judicial review in the Eleventh Circuit Court of Appeals of the BIA’s denial of his motion to reopen his removal order, but the Eleventh Circuit denied his request for a stay. Mr. Madjitov suffers from hypertension and a chronic heart condition that causes his heart to beat abnormally slow. He is therefore at high risk of severe
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illness or death if he contracts COVID-19. If released, he will reside with his wife and children in Connecticut.
34. Petitioner-Plaintiff Kenneth Manning is a 61-year-old native and citizen of Jamaica who is currently detained without bond by ICE at ECDC. He has been in ICE custody since August 2016. The Second Circuit Court of Appeals recently granted his petition for review of his removal order and remanded his case to the BIA. Manning v. Barr, 954 F.3d 477 (2d Cir. Mar. 31, 2020). Mr. Manning suffers from prostate cancer and a chronic heart condition. Because of his medical conditions and age, he is at high risk of severe illness or death if he contracts COVID-19. If released, he will reside with his daughter in Maryland.
35. Petitioner-Plaintiff Landry (Emily) Mbendeke is a 40-year-old native and citizen of Cameroon who is currently detained without bond by ICE at ECDC. Ms. Mbendeke is a transgender female who was assigned male at birth. She has been in ICE custody since November 2017. She has been subject to an administratively final order of removal since May 20, 2019. Her removal is stayed pending judicial review of her removal order in the Second Circuit Court of Appeals, where she is represented by retained pro bono counsel. Mbendeke v. Barr, No. 19-1766 (2d Cir.). Ms. Mbendeke suffers from hypertension and xxxxxxxxxxxxx. She is therefore at high risk of severe illness or death if she contracts COVID-19, and an outbreak in ECDC would also severely compromise the monitoring and routine care she requires to keep her condition under control. She has a place to live if released.
36. Petitioner-Plaintiff Tesfa Miller is a 38-year-old native and citizen of St. Vincent and the Grenadines who is currently detained without bond by ICE at ECDC. He has been in ICE custody since April 2018. The Eleventh Circuit Court of Appeals recently vacated the BIA’s order in his removal case and remanded his case to the BIA on the government’s motion. See
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Order, Miller v. Barr, No. 19-13738 (11th Cir. Dec. 23, 2019). He is currently awaiting a decision from the BIA. He also has a pending U Visa application based on his status as a victim of attempted murder and his cooperation with law enforcement in the investigation of the crime. Mr. Miller suffers from hypertension, high cholesterol and chronic bronchitis. He is therefore at high risk of severe illness or death if he contracts COVID-19. If released, he will reside with his mother in Riverdale, Georgia.
37. Petitioner-Plaintiff Allen Roger Olano Esparza is a 37-year-old native and citizen of Peru who is currently detained without bond by ICE at ECDC. He has been in ICE custody since December 2016. He has been subject to an administratively final order of removal since September 14, 2018. His removal is stayed pending judicial review of his removal order in the Ninth Circuit Court of Appeals. Olano-Esparza v. Barr, No. 18-72758 (9th Cir.). The Ninth Circuit has held his case in abeyance pending the resolution of another case presenting a similar issue, Menendez v. Whitaker, No. 14-72730 (9th Cir.). See id., ECF No. 10 (Feb. 13, 2019). The Ninth Circuit has since granted the petition for review in Menendez and remanded to the BIA; the government is seeking rehearing. Mr. Olano suffers from hypertension, kidney disease, and an irregular thyroid. Because of his medical conditions, he is at high risk of severe illness or death if he contracts COVID-19. If released, he will reside with his family friend in Escondido, California.
38. Petitioner-Plaintiff Sergio Quito is a 45-year-old native and citizen of Ecuador who is currently detained without bond by ICE at ECDC. He has been in ICE custody since June 2016. He has been subject to an administratively final order of removal since March 19, 2018. The Second Circuit Court of Appeals denied his petition for review of his removal order on January 15, 2020, but ICE has not yet executed his removal to Ecuador. Mr. Quito suffers from
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hypertension and epilepsy. He has had five seizures at ECDC. He is therefore at high risk of severe illness or death if he contracts COVID-19. If released, he will reside with his wife and daughter in New York, New York.
39. Petitioner-Plaintiff Joseph Debonnaire Soho is a 46-year-old native and citizen of Ivory Coast who is currently detained without bond by ICE at ECDC. He has been in ICE custody since March 2019. He has been subject to an administratively final order of removal since August 1, 2019. Despite being subject to a final and executable order of removal, ICE has not been able to obtain a travel document for Mr. Soho and execute his removal to either Ivory Coast or, alternatively, Cameroon, where his father was born. Mr. Soho suffers from hypertension and anemia. He is therefore at high risk of severe illness or death if he contracts COVID-19. If released, he will reside with his wife and children in Atlanta, Georgia.
40. Petitioner-Plaintiff Churvin Webster is a 57-year-old native and citizen of Anguilla who is currently detained without bond by ICE at ECDC. He has been in ICE custody since October 2017. He has been subject to an administratively final order of removal since May 17, 2019. His removal is stayed pending judicial review of his removal order in the Third Circuit Court of Appeals. Webster v. U.S. Atty. Gen., No. 19-2256 (3d Cir.). The Third Circuit held his case in abeyance pending the disposition of another case presenting a similar issue, Rosa v. Att’y Gen., No. 18-1765 (3d Cir.). The Third Circuit recently issued a precedential opinion granting the petition for review in Rosa, see id., Opinion & Judgment (3d Cir. Jan. 29, 2020); the government is seeking rehearing. Mr. Webster suffers from hypertension and asthma. Mr. Webster is therefore at high risk of severe illness or death if he contracts COVID-19. If released, he will reside with his girlfriend in New Brunswick, New Jersey.
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Respondents-Defendants 41. Respondent-Defendant Dianne Witte is the Interim ICE New Orleans Field Office
Director for Enforcement and Removal Operations. The New Orleans Field Office has jurisdiction over Alabama, Arkansas, Mississippi, Louisiana and Tennessee. This office is responsible for carrying out ICE’s immigration detention operations in ECDC, where Plaintiffs are currently detained. Defendant Witte is a legal custodian of Plaintiffs. She is sued in her official capacity.
42. Respondent-Defendant Matthew T. Albence is the Deputy Director and Senior Official Performing the Duties of the Director of ICE. Defendant Albence is responsible for ICE’s policies, practices, and procedures, including those relating to the detention of immigrants. Defendant Albence is a legal custodian of Plaintiffs. He is sued in his official capacity.
43. Respondent-Defendant ICE is a federal law enforcement agency within the Department of Homeland Security. ICE is responsible for the criminal and civil enforcement of immigration laws, including the detention and removal of immigrants. Enforcement and Removal Operations (“ERO”), a division of ICE, manages and oversees the immigration detention system. Defendant ICE is a legal custodian of Plaintiffs.
44. Respondent-Defendant Jonathan Horton is the Sheriff of Etowah County, Alabama. As Sheriff, he is responsible for overseeing the administration and management of the Etowah County Detention Center, where Plaintiffs are detained. Respondent-Defendant Horton is a legal custodian of Plaintiffs. He is sued in his official capacity.
45. Respondent-Defendant Keith Peek is the Chief Deputy of Corrections for the Etowah County Sheriff’s Office. He is responsible for overseeing the administration and
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management of the Etowah County Detention Center, where Plaintiffs are detained. RespondentDefendant Peek is a legal custodian of Plaintiffs. He is sued in his official capacity.
FACTUAL BACKGROUND A. COVID-19 Is an Unprecedented and Lethal Global Pandemic. 46. COVID-19 is a disease caused by a novel coronavirus that has reached global pandemic status. As of April 26, 2020, more than 2,800,000 individuals worldwide have confirmed diagnoses, including almost 900,000, in the United States.22 More than 193,000 individuals worldwide have died as a result of COVID-19, including more than 46,000 in the United States.23 Those numbers are growing significantly every day, with more than 84,000 new cases worldwide in the past day alone.24 47. Nationally, the Centers for Disease Control and Prevention (CDC) projections indicate that over 200 million individuals in the United States could be infected with COVID-19 over the course of the epidemic without effective public health intervention, with as many as 1.7 million deaths in the worst projections.25 48. President Trump has projected, optimistically, that the United States will experience up to 200,000 coronavirus-related deaths.26
22 WORLD HEALTH ORG., COVID-19 Situation Report – 97, supra n.1 23 Id. 24 Id. 25 See James Glanz, et al., Coronavirus Could Overwhelm U.S. without Urgent Action, Estimates Say, N.Y. TIMES (Mar. 20, 2020), https://www.nytimes.com/interactive/2020/03/20/us/coronavirus-model-us-outbreak.html; Sheri Fink, Worst-Case Estimates for U.S. Coronavirus Deaths, N.Y. TIMES (Mar. 13, 2020), https://www.nytimes.com/2020/03/13/us/coronavirus-deaths-estimate.html. 26 See Rebecca Ballhause et al., White House Extends Social-Distancing Guidelines Until End of April, WALL STREET JOURNAL (Mar. 30, 2020), https://www.wsj.com/articles/coronavirus-deaths-top-30-000-as-china-opens-upprovince-where-it-began-11585466594?mod=hp_lead_pos1 (“So, if we can hold that down, as we’re saying to 100,000—it’s a horrible number—maybe even less, but to 100,000 — so we have between 100,000 to 200,000 — we all together have done a very good job,” the president said.”).
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49. COVID-19 is a highly contagious disease that is easily transmitted through respiratory droplets, especially when one is within six feet of an infected individual. Due to this, President Trump issued guidelines recommending that all individuals “avoid nonessential travel, going to work, eating at bars and restaurants, or gathering in groups of more than 10” at least until April 30, 2020 and perhaps until June.27 Its symptoms include fever, cough, shortness of breath, chills, muscle pain, headache, and sore throat.28
50. People can also spread COVID-19 but be asymptomatic or pre-symptomatic,29 making testing or seclusion of only those who are symptomatic an ineffective solution.
51. COVID-19 can result in respiratory failure, kidney failure, and death. Infected individuals who do not die from the disease can face serious damage to the lungs, heart, liver, or other organs, resulting in prolonged recovery periods, including extensive rehabilitation from neurological damage and loss of respiratory capacity.
52. COVID-19 can also severely damage lung tissue, affect cardiac functions, and cause widespread damage to other organs. These complications can manifest at an alarming pace. Patients can show the first symptoms of infection in as little as two days after exposure, and their condition can seriously deteriorate in as little as five days or sooner.
53. Younger and healthy individuals who contract COVID-19 may require supportive care. And those who develop serious complications will need advanced support, including highly specialized equipment that is in very limited supply, and an entire team of care providers giving
27 Michael D. Shear, Trump Extends Social Distancing Guidelines Through End of April, N.Y. TIMES (Mar. 29, 2020), https://www.nytimes.com/2020/03/29/us/politics/trump-coronavirus-guidelines.html. 28 CENTERS FOR DISEASE CONTROL AND PREVENTION, Coronavirus Disease 2019 (COVID-19), https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html (last accessed Apr. 24, 2020) 29 A study in Iceland, where COVID-19 testing is widespread, found that about half those who tested positive have no symptoms. Jason Gale, Coronavirus Cases Without Symptoms Spur Call for Wider Tests, BLOOMBERG (Mar. 22, 2020), https://www.bloomberg.com/news/articles/2020-03-22/one-third-of-coronavirus-cases-may-show-nosymptom-scmp-reports.
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24-hour care, including 1:1 or 1:2 nurse to patient ratios, respiratory therapists, and intensive care physicians. This level of support is especially difficult to provide to detained individuals, particularly at unsafe and under-resourced ICE detention facilities like ECDC.
54. There is no vaccine against COVID-19, nor is there any known medication to prevent or cure infection from the virus.
55. The only known effective measure to reduce the risk of severe illness or death to vulnerable individuals is to prevent them from being infected with the coronavirus. Social distancing, or remaining physically separated from known or potentially infected individuals, and vigilant hygiene, including frequently washing hands with soap and water and disinfecting commonly touched areas, are the only known effective measures to prevent infection. In addition, those who are symptomatic, or who have come into contact with those who have tested positive for the virus, are advised to self-quarantine, removing themselves entirely from physical contact with others to as to prevent spread of the virus for a period of up to fourteen days.
56. None of these practices are possible in detention facilities like ECDC, where large numbers of people are housed in close quarters in congregate settings, with minimal access to sinks, showers, toilets, water, personal hygiene and facility cleaning supplies.
B. COVID-19 is Exceedingly Dangerous for Individuals Like Plaintiffs, Who Have Underlying Health Conditions.
57. Older individuals and those with certain medical conditions face dramatically higher chances of serious illness or death from COVID-19.30 Certain underlying medical conditions increase the risk of serious COVID-19 disease for individuals of any age, including
30 CENTERS FOR DISEASE CONTROL AND PREVENTION, Coronavirus Disease 2019 (COVID-19): People Who Are at Higher Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-athigher-risk.html (last accessed Apr. 26, 2020).
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moderate to severe asthma, chronic lung disease, hypertension and other serious heart conditions, diabetes, severe obesity, chronic liver or kidney disease, and compromised immune systems.31
58. Individuals detained in immigration detention are also more susceptible to experiencing complications from infectious diseases than the population at large. This is especially true for individuals with underlying medical conditions. Moreover, correctional health experts agree that the CDC’s risk factor for age should be lowered from 65 for the general population to 55 years of age for incarcerated individuals, and a recent study in The Lancet suggests that the risk associated with advanced age for the general population may start at 50 years old.32
59. Plaintiffs in this case are individuals who are particularly vulnerable to serious illness or death if infected by COVID-19 and who are currently detained in ICE custody in ECDC:
60. Randane Williams is a 30-year-old man who is currently detained by ICE at ECDC. He suffers from hypertension and a heart murmur. He is therefore at high risk of severe illness or death if he contracts COVID-19. Mr. Williams’ medical condition qualifies as a disability under the Rehabilitation Act.
61. Sarail Michael Archilla is a 44-year-old man who suffers from hypertension and chronic asthma. His asthma combined with the conditions in ECDC has caused him to cough up blood and brown fluid. He therefore at high risk of severe illness or death if he contracts
31 CENTERS FOR DISEASE CONTROL AND PREVENTION, Coronavirus Disease 2019 (COVID-19): Groups at Higher Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higherrisk.html (last accessed Apr. 26, 2020). 32 See Williams, Brie A. et al., Aging in Correctional Custody: Setting a Policy Agenda for Older Prisoner Health Care. AM. J. PUB. HEALTH (2012), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3464842/; Verity, Robert et al., Estimates of the severity of coronavirus disease 2019: a model-based analysis. THE LANCET – INFECTION DISEASES (Mar. 30, 2020). https://doi.org/10.1016/S1473-3099(20)30243-7.
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COVID-19. Mr. Archilla’s medical conditions qualify as a disability under the Rehabilitation Act.
62. Maxime Blanc is a 46-year-old man who suffers from pre-diabetes, high cholesterol, and asthma. He is therefore at high risk of severe illness or death if he contracts COVID-19. Mr. Blanc’s medical conditions qualify as a disability under the Rehabilitation Act.
63. Geovanny Gerardo Castellano is a 60-year-old man who suffers from hypertension and heart disease. He is therefore at high risk of severe illness or death if he contracts COVID-19. Mr. Castellano’s medical conditions qualify as a disability under the Rehabilitation Act.
64. Antonio Melquezideth Castro is a 38-year-old man who suffers from ongoing kidney issues and lung problems. He is therefore at high risk of severe illness or death if he contracts COVID-19. Mr. Castro’s medical conditions qualify as a disability under the Rehabilitation Act.
65. Edson Flores is a 48-year-old man who suffers from hypertension, high cholesterol, and diabetes. He is therefore at high risk of severe illness or death if he contracts COVID-19. Mr. Flores’s medical conditions qualify as a disability under the Rehabilitation Act
66. Ray Fuller is a 54-year-old man who suffers from hypertension and a cardiopulmonary disease. He is therefore at high risk of severe illness or death if he contracts COVID-19. Mr. Fuller’s medical conditions qualify as a disability under the Rehabilitation Act.
67. Jose Antonio Garcia Rivera is a 62-year-old33 man who suffers from asthma. He is therefore at high risk of severe illness or death if he contracts COVID-19. Mr. Garcia Rivera’s medical conditions qualify as a disability under the Rehabilitation Act.
33 Although ICE alleges that Mr. Garcia Rivera is 56 years old, see supra n.21, even assuming this is correct, his age and medical condition still place him at heightened risk of severe illness or death from COVID-19.
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68. Karim Tahir Golding is a 35-year-old man who suffers from asthma. He is therefore at high risk of severe illness or death if he contracts COVID-19. Mr. Golding’s medical condition qualifies as a disability under the Rehabilitation Act.
69. Alex Hernandez is a 49-year-old man who suffers from hypertension and Barrett’s esophagus, a condition that puts him at higher risk for cancer. He is therefore at high risk of severe illness or death if he contracts COVID-19. Mr. Hernandez’s medical conditions qualify as a disability under the Rehabilitation Act.
70. Bakhodir Madjitov is a 38-year-old man who suffers from a chronic heart condition that causes his heart to beat abnormally slow. As a result, he suffers from dizziness and shortness of breath. He is therefore at high risk of severe illness or death if he contracts COVID19. Mr. Madjitov’s medical condition qualifies as a disability under the Rehabilitation Act.
71. Kenneth Manning is a 61-year-old man who suffers from prostate cancer and a chronic heart condition. He is therefore at high risk of severe illness or death if he contracts COVID-19. Mr. Manning’s medical conditions qualify as a disability under the Rehabilitation Act.
72. Landry (Emily) Mbendeke is a 40-year-old transgender woman who suffers from hypertension and is HIV-positive. She is therefore at high risk of severe illness or death from COVID-19. Ms. Mbendeke’s medical condition qualifies as a disability under the Rehabilitation Act.
73. Tesfa Miller is a 38-year-old man who suffers from hypertension, high cholesterol and chronic bronchitis. Mr. Miller is therefore at high risk of severe illness or death if he contracts COVID-19. Mr. Miller’s medical condition qualifies as a disability under the Rehabilitation Act.
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74. Allen Roger Olano Esparza is a 37-year-old man who suffers from hypertension, kidney disease, and an irregular thyroid. He is therefore at high risk of severe illness or death if he contracts COVID-19. Mr. Olano’s medical conditions qualify as a disability under the Rehabilitation Act.
75. Joseph Debonnaire Soho is a 46-year-old man who suffers from hypertension and anemia. He is therefore at high risk of severe illness or death if he contracts COVID-19. Mr. Soho’s medical conditions qualify as a disability under the Rehabilitation Act.
76. Sergio Quito is a 45-year-old man who suffers from hypertension, a seizure disorder, and stomach ulcers. He is therefore at high risk of severe illness or death if he contracts COVID-19. Mr. Quito’s medical conditions qualify as a disability under the Rehabilitation Act.
77. Churvin Webster is a 57-year-old man who suffers from hypertension and asthma. He is therefore at high risk of severe illness or death if he contracts COVID-19. Mr. Webster’s medical conditions qualify as a disability under the Rehabilitation Act.
C. Etowah County Detention Center Does Not and Cannot Meet Public Health Standards to Prevent Widespread Infections Inside the Facility.
78. Alabama is experiencing a coronavirus outbreak and public officials have put in place a number of significant restrictions on public gatherings, including by closing down schools, bars, restaurants, and other public places, limiting the size of public gatherings, and issuing a state-wide ‘shelter in place’ order requiring residents to remain in their homes.34
34 Cheryl Austin, Opinion: The problems with COVID-19 testing. (And it’s not what you think)., AL.COM (Apr. 16, 2020), https://www.al.com/opinion/2020/04/the-problems-with-covid-19-testing-and-its-not-what-you-think.html; Amy Yurkanin, Nursing homes seek alternatives as mask shortage hits Alabama, AL.COM (Apr. 15, 2020), https://www.al.com/news/2020/04/nursing-homes-seek-alternatives-as-mask-shortage-hits-alabama.html; Jack Helean, Alabama Governor issues statewide stay-at-home order, ABC 3340 (Apr. 3, 2020), https://abc3340.com/news/coronavirus/alabama-governor-orders-a-statewide-shelter-in-place
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79. As of today’s date, there are 6,429 COVID-19 cases in Alabama.35 The number of infected people is rising exponentially: 219 people in Alabama have died from the disease.36 These data include 125 cases and eight deaths in Etowah County, Alabama.37 There is an immediate and impending threat that the coronavirus will spread uncontrollably in ECDC.
80. Conditions in ECDC make rapid spread of COVID-19 very likely. Individuals detained in ECDC are housed in close quarters, often in cells with two to four occupants where beds spaced well under the distance of six feet apart that the CDC recommends to maintain social distancing.
81. Since the onset of the COVID-19 pandemic, conditions in ECDC have worsened as jail officials have consolidated two separate units of immigrant detainees into a single unit, Unit 9. This consolidation places more than a hundred people in close proximity to one another, in a small space that is now even more crowded. This runs directly contrary to CDC guidance recommending social distancing and reducing contact with others.
82. Detained individuals in ECDC use common spaces together, sharing dining tables, recreation areas, telephones, and bathrooms. The hallways and walkways along the unit tiers are tight, and detainees and facility staff are constantly in very close proximity to each other. Shared toilets, sinks, and showers are not sanitized or disinfected after each use. Staff arrive and leave on a shift basis, and even asymptomatic staff could carry the infection into the facility. Many correctional officers do not consistently wear masks or gloves, and detained
35 ALABAMA DEP’T OF PUBLIC HEALTH, COVID-19 in Alabama, supra n. 4 36 Id. 37 Id.
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individuals at ECDC were only provided with masks very recently, and were only provided with one each, which they must reuse.
83. In ECDC, detained individuals are often responsible for cleaning their own units without proper protective equipment and with limited cleaning supplies.
84. Additionally, frequent hand-washing is difficult at best given minimal access to soap. There may be signs instructing people to wash hands, but there is no effort to educate detained people about frequency or method, or provide them with adequate supplies to do so.
85. Because of these conditions, outbreaks of infectious diseases are extremely common in confined detention centers such as ECDC and have resulted in the hospitalization or death of some individuals. Detained persons like Plaintiffs face inherent challenges to protect themselves from COVID-19 infection because they live, sleep, eat, and use the bathroom in close proximity with others, and because “[b]ehind bars, some of the most basic disease prevention measures are against the rules or simply impossible.”38 Individuals who are detained cannot protect themselves by social distancing and vigilant hygiene as they could in the community. Congregate settings such as these detention centers allow for rapid spread of infectious diseases that are transmitted person to person, especially those that—like COVID-19—are transmitted by droplets through coughing and sneezing. Recent data suggest that COVID-19 may also be spread through aerosolized fecal matter that is discharged and remains in the air for several hours after a toilet is flushed, especially when the toilet has no lid.
38 Keri Blakinger & Beth Schwartzapfel, When Purell is Contraband, How Do You Contain Coronavirus?, THE MARSHALL PROJECT (Mar. 6, 2020), https://www.themarshallproject.org/2020/03/06/when-purell-is-contrabandhow-do-you-contain-coronavirus (describing, for example, limited access to hand sanitizer and other precautionary measures).
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86. Therefore, a coronavirus brought into a detention facility will quickly spread among the dense group of detained individuals, including individuals, like Plaintiffs, who are at high risk of severe illness or death from COVID-19.
87. It is particularly significant and dangerous that ECDC has continued to allow large numbers of detained people to enter and leave the facility, exposing hundreds within the detention center to close contact with potential new carriers. ICE has continued to transfer people into ECDC, as recently as last week, even after the CDC recommended against such transfer.
88. In addition to ICE’s use of ECDC to detain people, Etowah County also uses the facility as its county jail. The county has continued to book well over one hundred new people into the jail since the national emergency was declared in March. Although those detained by Etowah County and those detained by ICE are in separate units, staff and contractors move between units, and individuals detained in the county jail who have cleaning, commissary, meal delivery and other jobs leave their units and in some cases enter into the ICE units. This creates a dangerous path of transmission from the Etowah County community to ECDC and from unit to unit within ECDC – and then back out to the community, when staff and contractors return home and when individuals are released from the county jail.
89. Given the shortage of COVID-19 tests in the United States, generally, Etowah cannot currently conduct aggressive, widespread testing to identify and track all COVID-19 cases. Alabama currently experiences problems with both testing shortages and inaccuracies.39 Therefore, ECDC is not consistently and adequately testing detained individuals and staff for new, asymptomatic infection.
90. In the absence of adequate testing, there is no way to be certain that COVID-19 is not already present in ECDC. And given the rapid spread of COVID-19 throughout Alabama,
39 Cheryl Austin, The problems with Covid19 testing (And it’s not what you think.), supra n.34
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and daily entry of staff and guards from the community, and the continued influx and transfer of new people into detention facilities on a weekly or even daily basis, it is only a short matter of time before the disease becomes widespread among people detained in close, unsanitary conditions.
91. Moreover, ECDC is also ill-equipped to manage an infectious disease outbreak. ECDC does not have 24-hour medical care with on-site physicians and it has very limited on-site medical facilities. Further, the medical systems in the communities surrounding ECDC are minimal, significantly reducing the capacity to provide emergency and intensive medical care.
92. Putting infected individuals in solitary confinement is an ineffective way to prevent transmission of the disease because air continues to flow outwards from those rooms to the rest of the facility. This makes containing the illness and caring for those who have become infected virtually impossible.
93. The coronavirus has already started to spread inside other prisons and jails throughout the U.S., and experts predict a mass contagion is only a matter of time.40 For example, on March 20, 2020, New York City officials had confirmed just one case at their jail facilities. The next day, they confirmed 19. Two days later, there were 38.41 By March 25, 2020, Rikers Island alone had 52 confirmed cases. As of April 8, 2020, it had over 165 confirmed cases amongst those who are incarcerated, and there are roughly 288 confirmed cases among jailed people, 488 among the correctional staff, and 78 among the jail’s health care workers. As of April 21, 2020, there are at least 365 cases of COVID-19 among detained individuals at Rikers
40 See Hannah Summers, ‘Everyone Will Be Contaminated’: Prisons Face Strict Coronavirus Controls, THE GUARDIAN (Mar. 23, 2020), https://www.theguardian.com/global-development/2020/mar/23/everyone-will-becontaminated-prisons-face-strict-coronavirus-controls. 41 A.P., Coronavirus: 38 Test Positive in New York City Jails, Including Rikers Island, THE GUARDIAN (Mar. 22, 2020), https://www.theguardian.com/us-news/2020/mar/22/coronavirus-outbreak-new-york-city-jails-rikers-island.
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Island.42 Those numbers continue to climb, with hundreds of corrections staff and medical workers now testing positive.43 Three staff members have tested positive at the federal Bureau of Prisons (BOP) facility in Talladega, Alabama,44 and two inmates and two staff have tested positive in the Aliceville BOP facility.45 Seven inmates have died after a widespread outbreak of COVID-19 in the federal prison in Oakdale, Louisiana.46 Ten incarcerated people and nine officers in the Mobile Metro Jail have confirmed cases.47 Alabama state officials anticipate widespread infection and deaths in facilities throughout the state and have ordered hundreds of body bags.48
94. Similarly, at ICE facilities across the nation, COVID-19 is spreading alarmingly fast. As of April 25, 2020, ICE has confirmed 317 cases of COVID-19 among detained people and 35 cases of COVID-19 among ICE employees at detention centers.49 These numbers are certain to be undercounts, given that ICE has tested only a few hundred detained people for COVID-19 and that it does not report confirmed cases among employees of private contractors
42 Alleen Brown, Inside Rikers: An Account of the Virus-Stricken Jail from a Man who Managed to Get Out, THE INTERCEPT (Apr. 21, 2020), https://theintercept.com/2020/04/21/coronavirus-rikers-island-jail-nyc/. 43 See N.Y. DEP’T OF CORR. AND COMMUNITY SUPERVISION, DOCCS COVID-19 Report, https://doccs.ny.gov/doccs-covid-19-report (last accessed Apr. 26, 2020) 44 Chris Norwood, UPDATED: 3rd staff member at Talladega federal prison tests positive for COVID-19, ANNISTON STAR (Apr. 3, 2020), https://www.annistonstar.com/the_daily_home/free/updated-3rd-staff-member-attalladega-federal-prison-tests-positive-for-covid-19/article_356d93da-745c-11ea-a49d-c74156372b96.html. 45 FED. BUREAU OF PRISONS, COVID-19 Cases, https://www.bop.gov/coronavirus/ (last accessed Apr. 26, 2020). 46 Id. 47 Mike Cason, Mobile County sheriff says 10 jail inmates have COVID-19, AL.COM (Apr. 15, 2020), https://www.al.com/news/2020/04/mobile-county-sheriff-says-10-jail-inmates-have-covid-19.html 48 Connor Sheets, Alabama had a ventilator and PPE stockpile, but it was depleted before COVID-19 hit, AL.COM (Apr. 8, 2020), https://www.al.com/news/2020/04/alabama-had-a-ventilator-and-ppe-stockpile-but-it-was-depletedbefore-covid-19-hit.html. 49 ICE Guidance on Covid-19, Confirmed Cases, supra n.7
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and local government employees, who operate the majority of ICE’s detention facilities. Because of ICE’s refusal to halt transfers, it is only a matter of time before the spread reaches ECDC, if it has not already.
95. Despite these widespread warnings, ECDC—like ICE facilities across the country—remains woefully unprepared and incapable of taking necessary precautions to protect people in its custody against a life-threatening illness.
D. ICE’s Response to COVID-19 Is Insufficient to Prevent the Spread of This LifeThreatening Disease and Is Contrary to the CDC Infectious Disease Guidance ICE is Required to Follow.
96. On or about March 23, 2020, the CDC issued guidance for detention facilities “including…federal and state prisons, local jails, and detention centers.”50
97. The CDC guidance states that “[i]ncarcerated/detained persons live, work, eat, study, and recreate within congregate environments, heightening the potential for COVID-19 to spread once introduced” and warns that “[t]here are many opportunities for COVID-19 to be introduced into a correctional or detention facility, including daily staff ingress and egress… and incarcerated/detained persons may have medical conditions that increase their risk of severe disease from COVID-19.”51
98. Further, the CDC guidance mandates that detention facilities “[e]nsure that sufficient stocks of hygiene supplies, cleaning supplies, PPE, and medical supplies… are on hand and available… provide a no-cost supply of soap to incarcerated/detained persons, sufficient to
50 CENTERS FOR DISEASE CONTROL AND PREVENTION, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (Mar. 2020), https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html. 51 Id.
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allow frequent hand washing…” and emphasizes the need for social distancing as a mechanism for preventing the transmission of COVID-19.52
99. The CDC has also warned that individuals who are 65 and older or who have an array of underlying conditions, including individuals with asthma, blood disorders, heart disease, lung conditions, and those with compromised immune systems, are at a higher risk of developing serious complications if they were to contract COVID-19.53 Correctional health experts agree that the age threshold should be lowered to at least 55 for incarcerated individuals, and a recent study in The Lancet suggests that the risk associated with advanced age for the general population may start at 50 years old.54
100. ICE issued an “Interim Reference Sheet on 2019-Novel Coronavirus (COVID19)” and has established a webpage entitled “ICE Guidance on COVID-19.” On April 10, 2020, ICE’s Enforcement and Removal Office (ERO) issued a “COVID-19 Pandemic Response Requirements” outlining recommendations for detention facilities.55 These documents (collectively the “ICE Protocols”) will not protect Plaintiffs. The protocols also do not address imminent shortages of medical supplies and staffing or education of detained people and staff about the virus, amongst other critical issues. Nor do they implement the CDC’s guidelines for the management of the novel coronavirus in correctional and detention settings.
52 Id. 53 CENTERS FOR DISEASE CONTROL AND PREVENTION, Coronavirus Disease 2019 (COVID-19): People who are at higher risk for severe illness (Mar. 26, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/people-at-higherrisk.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fspecificgroups%2Fpeople-at-higher-risk.html. 54 See supra n.32. 55 IMMIG. AND CUSTOMS ENFORCEMENT, ENFORCEMENT AND REMOVAL OPERATIONS, COVID-19 Pandemic Response Requirements (Apr. 10, 2020), https://www.ice.gov/doclib/coronavirus/eroCOVID19responseReqsCleanFacilities.pdf.
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101. For example, ERO’s Pandemic Response Requirements urge that facilities “adhere to CDC recommendations for cleaning and disinfection during the COVID-19 response.”56 But the CDC guidelines for correctional and detention facilities urge that “that “staff and incarcerated/detained people performing cleaning wear PPE.”57 Cleaning staff, typically detained people themselves, are not provided with personal protective equipment (“PPE”) for cleaning at ECDC. ERO further states that “social distancing may not be possible in congregate settings such as detention facilities,” and instead, it recommends a number of alternative measures including directing detained people to “avoid congregating in groups of 10 or more, employing social distancing strategies at all times.”58 This is not possible at ECDC.
102. The ICE Protocols do not even offer an effective way to determine who has the virus. Since some COVID-19 carriers can be asymptomatic or not show symptoms for weeks after exposure, “screening people based on observable symptoms is just a game of catch up.” In re. Extradition of Alejandro Toledo Manrique, No. 19-mj-71055, 2020 WL 1307109 (N.D. Cal. March 19, 2020) (ordering release on bond in part because the government’s management plan did not “say anything about testing”).
103. ICE has temporarily suspended social visitation in all detention facilities. But staff, contractors, and vendors continue to arrive and leave the detention centers. In addition, people are frequently transported to, from, and between facilities.
104. Anything short of aggressive screening and testing of all detained individuals, staff, officials and other care and service providers who enter the facility is insufficient to
56 Id. at 9. 57 CDC, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, supra n.50. 58 ERO Pandemic Response Requirements, supra n.55 at 13.
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prevent infection. Neither ICE nor ECDC has the resources necessary to engage in such measures, especially considering the shortage in available tests. Further, some of the available tests have a high rate of false negatives,59 making social distancing imperative even if ICE engages in more widespread testing.
105. The only measure ICE has committed to taking is to segregate those who meet CDC criteria for epidemiologic risk of exposure to the novel coronavirus. Even assuming adequate space, isolation of people who are ill is generally an ineffective way to prevent transmission of COVID-19 because air continues to flow outward from rooms to the rest of the facility and because asymptomatic people also transmit the disease. ICE’s guidance relies heavily upon the practice of “cohorting,” or grouping together, suspected cases. This practice will all but assure that the virus is spread from COVID-19 carriers to non-carriers in that unit and then throughout ECDC.
106. Further, there is substantial evidence that ICE’s COVID-19 protocols are not being followed in detention centers throughout the country, including in ECDC, and that ICE is otherwise failing to provide an adequate response—which has historically been the case—thus exacerbating the risk of harm to Plaintiffs.
107. ICE has failed to follow the CDC guidelines designed to prevent the spread of COVID-19 in ECDC. There, over 100 detained individuals share one unit. They share dining tables, telephones, microwaves, and bathrooms, with no way to disinfect between uses. Soap is in short supply, and ICE has moved multiple new people into the immigration unit in the past several weeks, not to mention the many more individuals who are moved in and out of the county jail population.
59 Rob Stein, Study Raises Questions About False Negatives from Quick COVID-19 Test, NATIONAL PUBLIC RADIO (Apr. 21, 2020), https://www.npr.org/sections/health-shots/2020/04/21/838794281/study-raises-questions-aboutfalse-negatives-from-quick-covid-19-test.
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108. In ECDC, ICE has large numbers of people sleeping only a few feet apart; has failed to provide enough cleaning materials or frequency of cleaning to prevent spread of illness from surfaces; has not provided detained people with adequate soap or hygiene facilities for hand-washing crucial to prevent the spread of COVID-19; has failed to educate Plaintiffs as to proper COVID-19 safety precautions; has not provided sufficient masks, gloves or protective gear for detained people or most staff; and has booked dozens of new people into ICE and county custody in the jail since the CDC recommended against transfers on March 23, 2020.
109. Importantly, the COVID-19 pandemic—and ICE’s unreasonable response to it— will significantly strain ICE’s already broken medical care system. Long before the COVID-19 outbreak, numerous public reports, including by DHS itself, have identified serious and substantial flaws in ICE’s medical care system. For example, a 2017 DHS Office of Inspector General (OIG) report that assessed care at certain ICE facilities identified “lack of cleanliness and limited hygienic supplies” as well as “long waits for the provision of medical care.”60 Other reports echo these alarming findings about substandard medical care in ICE facilities.61 Even compared with the general substandard medical care in ICE facilities, numerous reports going back nearly a decade document how ECDC has long stood out as providing particularly poor medical care.62
60 DHS OFFICE OF THE INSPECTOR GENERAL, Concerns About ICE Detainee Treatment and Care at Detention Facilities, OIG-18-32 at 7 (Dec. 11, 2017), https://www.oig.dhs.gov/sites/default/files/assets/2017-12/OIG-18-32Dec17.pdf. 61 See, e.g., U.S. GOV’T ACCOUNTABILITY OFF., GAO-16-23: Immigration Detention: Additional Actions Needed to Strengthen Mgmt. and Oversight of Detainee Med. Care (Feb. 2016), https://www.gao.gov/assets/680/675484.pdf; HUMAN RTS. WATCH et al., Code Red: The Fatal Consequences of Dangerously Substandard Med. Care in Immigration Detention, at 15, 19, 25, 46 (Jun. 2018), https://www.hrw.org/sites/default/files/report_pdf/us0618_immigration_web2.pdf; J. David McSwane, ICE Has Repeatedly Failed to Contain Contagious Diseases, Our Analysis Shows. It’s a Danger to the Public, PROPUBLICA (Mar. 20, 2020), https://www.propublica.org/article/ice-has-repeatedly-failed-to-contain-contagiousdiseases-our-analysis-shows-its-a-danger-to-the-public. 62 HUMAN RTS. WATCH & CIVIC, Systemic Indifference: Dangerous & Substandard Medical Care in US
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110. Faced with the current pandemic, ECDC is acting contrary to public health
guidance. Leadership in the Etowah County Sheriff’s Office has stated that they have purchased
a fogger machine that is able to sanitize 6,000 square feet in about ten minutes and that this
device will be used to clean cell units and other areas of the jail. The overwhelming scientific
consensus of the past few decades is that studies show both a lack of microbicidal efficacy from
disinfectant fogging and adverse effects on those in facilities where disinfectant fogging is used. The CDC does not recommend environmental fogging.63
111. Immigration detention facilities have faced outbreaks of other infectious diseases
in recent years due to overcrowding, poor hygiene measures, medical negligence, and poor
access to resources and medical care. As recently as last year, ICE mishandled and failed to take
Immigration Detention (May 8, 2017), https://www.hrw.org/report/2017/05/08/systemic-indifference/dangeroussubstandard-medical-care-us-immigration-detention (featuring data and interviews with individuals detained at ECDC and other detention centers known for inadequate medical care); SOUTHERN POVERTY LAW CENTER et al., Shadow Prisons: Immigrant Detention in the South (Nov. 2016), https://www.nationalimmigrationproject.org/PDFs/2016_21Nov-shad-pris-rpt.pdf (detailing ECDC’s failure to provide adequate medical and mental health care, and failure to maintain basic sanitation, living conditions); U.S. COMM’N ON CIVIL RTS., With Liberty and Justice for All: The State of Civil Rights at Immigration Detention Facilities (Sept. 2015), https://www.usccr.gov/pubs/docs/Statutory_Enforcement_Report2015.pdf (finding that ECDC has “not complied with NDS [National Detention Standards] contractual standards to provide detainees with nutritious food”); Memorandum from Megan Mack, Officer, Office of Civil Rights and Civil Liberties, and David Palmer, Acting Associate General Counsel (Legal Counsel), Office of General Counsel, to Sarah Saldaña, Director, U.S. Immigration and Customs Enforcement, and Gwendolyn Keyes Fleming, Principal Legal Advisor, U.S. Immigration and Customs Enforcement, Recommendations Regarding Ongoing Issues and Open Complaints at the Etowah County Jail (May 28, 2015), http://shutdownetowah.org/wp-content/uploads/2015/07/Adelante-ProductionMay-7-2019.pdf; WOMEN’S REFUGEE COMM’N, Politicized Neglect: A Report from Etowah County Detention Center (Mar. 2012), https://www.womensrefugeecommission.org/research-resources/politicized-neglect-a-reportfrom-etowah-county-detention-center/; Paul Moses, ‘The Worst Place Ever’ is ICE’s Etowah County Detention Center in Alabama, DAILY BEAST (Jun. 8, 2018), https://www.thedailybeast.com/the-worst-place-ever-is-icesetowah-county-detention-center-in-alabama (describing case of ECDC detainee who was paralyzed and died after not receiving adequate medical care for an infection). 63 CENTERS FOR DISEASE CONTROL AND PREVENTION, Updates: Guideline for Disinfection and Sterilization in Healthcare Facilities: Environmental Fogging (Dec. 2009), https://www.cdc.gov/infectioncontrol/guidelines/disinfection/updates.html (last accessed Apr. 23, 2020).
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adequate measures to protect detained individuals in Louisiana against outbreaks of chicken pox and mumps.64
112. And ICE has a long history of mishandling infectious and communicable diseases, struggling to contain them, and failing to follow nationally accepted standards. In a 2019 report, the DHS OIG concluded that ICE “does not adequately hold detention facility contractors accountable for not meeting performance standards,” “issued waivers to facilities with deficient conditions, seeking to exempt them from complying with certain standards,” and “does not adequately share information about ICE detention contracts with key officials.”65
113. Moreover, ICE has routinely failed to remedy inhumane conditions because, according to the OIG, “ICE does not adequately follow up on identified deficiencies or consistently hold facilities accountable for correcting them, which further diminishes the usefulness of inspections. . . . with some deficiencies remaining unaddressed for years.”66
114. ICE has even publicly acknowledged the need to limit the spread of the virus and the number of people in its detention centers, announcing that it will delay enforcement actions to arrest fewer immigrants and will use alternatives to detention as a response to the COVID-19 outbreak for new people they arrest in the field.67 Although ICE has released some individuals at
64 Emma Ockerman, Migrant Detention Centers Are Getting Slammed with Mumps and Chickenpox, VICE NEWS (Jun. 14, 2019), https://www.vice.com/en_us/article/mb8k5q/migrant-detention-centers-are-getting-slammed-withmumps-and-chicken-pox. 65 See DHS OFFICE OF INSPECTOR GENERAL, ICE Does Not Fully Use Contracting Tools to Hold Detention Facility Contractors Accountable for Failing to Meet Performance Standards, OIG-19-18, at 1 (Jan. 29, 2019), https://www.oig.dhs.gov/sites/default/files/assets/2019-02/OIG-19-18-Jan19.pdf. 66 See DHS Office of the Inspector General, ICE’s Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or Systemic Improvements, OIG-18-67, at 1 (Jun. 26, 2018), https://www.oig.dhs.gov/sites/default/files/assets/2018-06/OIG-18-67-Jun18.pdf. 67 See Maria Sacchetti and Arelis R. Hernández, ICE to stop most immigration enforcement inside the U.S., will focus on criminals during coronavirus outbreak, THE WASHINGTON POST (Mar. 18, 2020), https://www.washingtonpost.com/national/ice-halting-most-immigration-enforcement/2020/03/18/d0516228-696c11ea-abef-020f086a3fab_story.html.
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some of its detention centers, it has failed to release high COVID-19 risk individuals at ECDC despite its acknowledgment of the public health and medical reasons to do so,68 and has not stopped bringing new people into ECDC and transferring them among different detention centers.
115. Indeed, in testimony to Congress on April 17, 2020, Acting ICE Director Matthew T. Albence said that ICE would not be releasing any more individuals – not because the COVID-19 health risks have abated, but because releasing medically vulnerable individuals at risk of serious illness or death could give the impression that the Trump Administration is “not enforcing our immigration laws.”69
116. Given the rapid spread of COVID-19, the likelihood of spread before a person infected with the virus is symptomatic, highly limited availability of testing, ICE’s repeated failure to meet adequate standards for controlling infectious disease outbreaks in its facilities, ECDC’s long track record of abysmal medical care, nutrition, and sanitation, and current conditions at ECDC, Defendants cannot prevent the spread of COVID-19 at ECDC.
E. The Consensus of Public Health Experts Is That Individuals Most Vulnerable to COVID-19 Should Immediately Be Released to Protect Them From Serious Illness or Death.
117. The only viable public health strategy currently available in the United States is risk mitigation. For this reason, public health experts with experience in immigration detention and correctional settings have consistently recommended the release of vulnerable detained individuals from custody.
68 Noah Lanard, ICE Is Ignoring Recommendations to Release Immigrant Detainees to Slow the Spread of Coronavirus, MOTHER JONES (Mar. 20, 2020), https://www.motherjones.com/politics/2020/03/ice-is-ignoringrecommendations-to-release-immigrant-detainees-to-slow-the-spread-of-coronavirus/. 69 HOUSE COMM. ON OVERSIGHT AND REFORM, DHS Officials Refuse to Release Asylum Seekers and Other NonViolent Detainees Despite Spread of Coronavirus, (Apr. 17, 2020), https://oversight.house.gov/news/pressreleases/dhs-officials-refuse-to-release-asylum-seekers-and-other-non-violent-detainees.
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118. As early as February 25, 2020, Dr. Scott Allen and Dr. Josiah Rich, medical experts to DHS, shared concerns with the agency about the specific risk to detained immigrants as a result of COVID-19. These experts warned of the danger of rapid spread of the coronavirus in immigration detention facilities. In a whistleblower letter to Congress, Dr. Allen and Dr. Rich recommended that “[m]inimally, DHS should consider releasing all detainees in high risk medical groups such as older people and those with chronic diseases.” They concluded that “acting immediately will save lives not of only those detained, but also detention staff and their families, and the community-at-large.”70
119. Indeed, governments in the United States and worldwide have recognized the threat posed by COVID-19 spread among detained and incarcerated populations and have released detained individuals for that reason. In the United States, several jurisdictions including Los Angeles, New York, and Chicago have also released detained individuals for the same reasons.71 Here in Alabama, the Mobile County Jail has released one third of its incarcerated population.72
120. Releasing the most vulnerable people, such as Plaintiffs, would also reduce the burden on regional hospitals and health centers. In case of an outbreak at a detention center,
70 Letter from Dr. Allen and Dr. Rich to Congressional Committee Chairpersons, supra n.19. 71 Jan Ransom & Alan Feuer, We’re Left for Dead: Fears of Virus Catastrophe at Rikers Jail, NEW YORK TIMES (Mar. 30, 2020), https://www.nytimes.com/2020/03/30/nyregion/coronavirus-rikers-nyc-jail.html ; Maura Dolan, Alene Tchekmedyian & Paige St. John, California releases more jail inmates amid coronavirus crisis, LOS ANGELES TIMES (Mar. 20, 2020), https://www.latimes.com/california/story/2020-03-20/california-releases-morejail-inmates-amid-coronavirus-crisis; David Struett, Cook County Jail releases several detainees ‘highly vulnerable’ to coronavirus, CHICAGO SUN-TIMEs (Mar. 17, 2020), https://chicago.suntimes.com/coronavirus/2020/3/17/21183289/cook-county-jail-coronavirus-vulnerable-detaineesreleased-covid-19. 72 Christopher Harress, Amid COVID-19 pandemic, Mobile Metro Jail releases a third of inmates, AL.COM (Apr.10, 2020), https://www.al.com/news/2020/04/amid-covid-19-pandemic-mobile-metro-jail-releases-a-third-ofinmates.html.
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those institutions would bear the brunt of having to treat infected individuals from detention centers and would have fewer medical resources available for the general population.
121. ICE has the authority to release individuals from custody on medical grounds and has routinely exercised its authority to release particularly vulnerable detained individuals like Plaintiffs. The former Acting Director of ICE, John Sandweg, has stated that “ICE can, and must, reduce the risk [COVID-19] poses to so many people, and the most effective way to do so is to drastically reduce the number of people it is currently holding.”73 It can do so through outright release or through the use of a panoply of alternatives to detention at its disposal.74
LEGAL FRAMEWORK A. Plaintiffs Have a Substantive Due Process Right to Protection from Serious Illness
and Potentially Lethal Harm. 122. Because Plaintiffs are in federal civil immigration detention, their constitutional rights flow from the procedural and substantive guarantees of the Fifth Amendment. Zadvydas v. Davis, 533 U.S. 678, 690 (2001); Moore v. Nielsen, No. 18-cv-01722-LSC-HNJ, 2019 WL 2152582, at *4–5 (N.D. Ala. May 3, 2019) (magistrate’s report and recommendation). 123. When the government holds individuals in its custody, it assumes the affirmative obligation to provide for their basic human needs, including medical care, reasonable safety, and protection from harm. DeShaney v. Winnebago County Dep’t of Social Servs., 489 U.S. 189, 200 (1989); Hamm v. DeKalb County, 774 F.2d 1567, 1573 (11th Cir. 1985); Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cty., 402 F.3d 1092, 1115 (11th Cir. 2005). A government
73 John Sandweg, I Used to Run ICE. We Need to Release the Nonviolent Detainees, THE ATLANTIC MONTHLY (Mar. 22, 2020), https://www.theatlantic.com/ideas/archive/2020/03/release-ice-detainees/608536/; Camilo Montoya-Galvez, “Powder kegs”: Calls grow for ICE to release immigrants to avoid coronavirus outbreak, CBS NEWS (Mar. 19, 2020), https://www.cbsnews.com/news/coronavirus-ice-release-immigrants-detention-outbreak/. 74 For example, ICE can easily achieve its objective without endangering Plaintiffs' lives by placing them in its Intensive Supervisory Appearance Program (ISAP). The Government Accountability Office's most recent report found that ISAP participants appeared for their future hearings. CONG. RESEARCH SERVICE, Immigration: Alternatives to Detention (ATD) Programs (Jul. 8, 2019), https://fas.org/sgp/crs/homesec/R45804.pdf.
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“transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause” when it fails to satisfy its “affirmative duty to protect.” DeShaney, 489 U.S. at 200.
124. “Under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.” Hare, 74 F.3d at 651; see also Foucha v. Louisiana, 504 U.S. 71, 80 (1992). Therefore, persons detained civilly, including in immigration detention like Plaintiffs, are entitled to “more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.” Youngberg v. Romeo, 457 U.S. 307, 322 (1982); see Marsh v. Fla. Dep’t of Corrections, 330 F. App’x 179 (11th Cir. 2009). Unlike convicted criminals, where the state interest in detention is much higher and punishment is unconstitutional only if it is cruel and unusual, for persons in civil and pretrial detention, due process prevents imposition of any punishment. See Lynch v. Baxley, 744 F.2d 1452, 1462-63 (11th Cir. 1984). A person detained civilly has due process rights that are “at least as great as the Eighth Amendment protections available to a convicted prisoner.” Hare, 74 F.3d at 639 (citations omitted).
125. Courts have held that the due process rights of a person in immigration detention should be evaluated at an even higher standard than that of persons detained pretrial. See Jones v. Blanas, 393 F.3d 918, 933 (9th Cir. 2004). But at the very least, the standard applicable in the pretrial criminal detention context applies here.
126. The government violates the due process rights of a person in civil detention when the conditions of her confinement amount to punishment. If “a restriction or condition is not reasonably related to a legitimate goal—if it is arbitrary or purposeless—a court permissibly may infer that the purpose of the governmental action is punishment that may not
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constitutionally be inflicted upon detainees qua detainees.” Bell v. Wolfish, 441 U.S. 520, 539 (1979); Jacoby v. Baldwin County, 835 F.3d 1338, 1345 (11th Cir. 2016).
127. To show that a condition of confinement amounts to punishment, the detained person need not demonstrate that an official subjectively or maliciously intends to punish; instead “intent may be inferred from the decision to expose the detainee to an unconstitutional condition.” Jacoby, 835 F.3d at 1345.
128. In addition, it is cruel and unusual punishment under the Eighth Amendment, and therefore necessarily a violation of the Fifth Amendment’s Due Process Clause, for a federal official to show deliberate indifference to a substantial risk of serious harm to a detained person. Hamm, 774 F.2d at 1574. This occurs, for example, when officials “know[] of and disregard[] an excessive risk to inmate health or safety.” Doe v. Robertson, 751 F.3d 383, 388 (5th Cir. 2014).
129. The government may violate the Eighth (and Fifth) Amendment when it “ignore[s] a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year,” including “exposure of inmates to a serious, communicable disease,” even when “the complaining inmate shows no serious current symptoms.” Helling v. McKinney, 509 U.S. 25, 33 (1993); see also id. at 34 (citing with approval Gates v. Collier, 501 F.2d 1291, 1300 (5th Cir. 1974),75 which held that prisoners were entitled to relief under the Eighth Amendment when they showed, inter alia, the mingling of “inmates with serious contagious diseases” with other prison inmates).
130. Specifically, housing detained persons in crowded conditions where they are at risk of infectious disease is unconstitutional, even when it “is not alleged that the likely harm would occur immediately and even though the possible infection might not affect all of those
75 See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. 1981) (decisions of the former Fifth Circuit handed down prior to September 30, 1981 are binding in the Eleventh Circuit).
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exposed.” Helling v. McKinney, 509 U.S. at 33 (citing Hutto v. Finney, 437 U.S. 678, 682 (1978)). Nor can officials “be deliberately indifferent to the exposure of inmates to a serious, communicable disease on the ground that the complaining inmate shows no serious current symptoms.” Helling, 509 U.S. at 33.
131. Despite their awareness of the rapid spread of COVID-19, the importance of social distancing and sanitary practices for its prevention, the threat that it poses to the lives of those who, like Plaintiffs, have certain underlying medical conditions, and the impossibility of protecting Plaintiffs who are held in ICE detention centers, Defendants continue to detain Plaintiffs. This amounts to a punitive condition of confinement or, at the very least, deliberate indifference to a substantial risk of serious harm to Plaintiffs – either of which suffices to show a due process violation and compels an order of release.
B. ICE Lacks a Constitutionally Sufficient Purpose for Continued Detention of Medically Vulnerable Individuals. 132. Civil confinement “constitutes a significant deprivation of liberty that requires
due process protection,” and, thus, the government “must have ‘a constitutionally adequate purpose for the confinement.’” Jones v. United States, 463 U.S. 354, 361 (1983) (quoting O’Connor v. Donaldson, 422 U.S. 563, 574 (1975)); see also Foucha, 504 U.S. at 80 (“We have always been careful not to ‘minimize the importance and fundamental nature’ of the individual’s right to liberty.”) (quoting United States v. Salerno, 481 U.S. 739, 750 (1987)).
133. Due process requires that the nature and duration of a noncriminal confinement bear “some reasonable relation to the purpose for which the individual is committed.” Jackson v. Indiana, 406 U.S. 715, 738 (1972); J.R. v. Hansen, 803 F.3d 1315, 1321 (11th Cir. 2015).
134. The only legitimate purpose, consistent with due process, for federal civil immigration detention is to prevent flight risk and ensure the detained person’s attendance for a
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legal hearing adjudicating their status or potential removal, or to otherwise ensure the safety of the community. Zadvydas v. Davis, 533 U.S. 678, 699 (2001).
135. The purpose of ensuring attendance at a future hearing or removal is fundamentally eviscerated where detained persons such as Plaintiffs are exposed to the coronavirus, symptomatic, seriously ill, or even dead. Continued detention in such circumstances is arbitrary, purposeless restraint entirely inconsistent with the principle of proportionality at the heart of due process.
136. Once an otherwise valid basis for detention no longer applies, substantive due process requires the state to release the detained person. Foucha, 504 U.S. at 86 (ordering petitioner’s release from commitment to mental institution because there was no longer any evidence of mental illness); Kansas v. Hendricks, 521 U.S. 346, 363-64 (1997) (upholding statute requiring civil confinement for sex offenders in part because it provided for immediate release once an individual no longer posed a threat to others).
137. The government’s only legitimate interest in Plaintiffs’ continued detention – either to minimize flight risk pending removal or to prevent danger to the community, Zadvydas, 533 U.S. at 690 – is no longer applicable. Yet the purportedly legitimate government purposes for detention simply fall away when someone is facing lethal harm. Continued detention despite changed circumstances that render the basis of detention null, is the height of arbitrariness. See Reno v. Flores, 507 U.S. at 343 (“a blanket rule that simply presumes that detention is more appropriate than release to responsible adults is not narrowly focused on serving that interest.).
138. At the same time, there are more “narrowly focused” means to ensure Plaintiffs’ appearance in legal proceedings or for removal, which do not subject them to the dangers of detention, for example, supervised or conditional release would suffice to meet the government’s
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interest without subjecting Plaintiffs to severe danger. For example, one way ICE can easily achieve its objective without endangering Plaintiffs’ lives is by placing them in its Intensive Supervisory Appearance Program (ISAP). The Government Accountability Office’s most recent report found that ISAP participants appeared for their future hearings.76
139. The Government also cannot establish that it has a compelling interest in keeping Plaintiffs detained. Each Plaintiff has a serious medical ailment and is immunocompromised. Given that the only established method to protect oneself from the virus is to self-isolate, the likelihood of a post-release danger to the community from elderly or ill persons is infinitesimal and cannot justify the maximal deprivation of liberty – detention – with a resulting risk of serious illness or death.
C. Plaintiffs’ Prolonged Detention Violates Due Process 140. Plaintiffs’ exceedingly prolonged detention without meaningful review violates
due process. Although the particular circumstances of each Plaintiff’s detention differ in certain respects, they share a common core of essential facts that render their prolonged detention unconstitutional. They have been detained for exceedingly long periods of time, ranging from thirteen months to nine years. Each Plaintiff is either currently presenting a substantial challenge to his or her removal before the federal courts or in agency proceedings, or faces barriers to removal pursuant to an executable removal order, that render removal unlikely in the reasonably foreseeable future. And, as described above, they are all being detained in conditions that present an imminent risk to their lives and wellbeing.
141. “Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty” that the Due Process Clause protects. Zadvydas, 533 U.S. at 690 (citing Foucha v. Louisiana, 504 U.S. 71, 80 (1992)). In the
76 CRS, Immigration: Alternatives to Detention (ATD) Programs, supra n.74
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immigration context, the Supreme Court has recognized only two valid purposes for civil detention—to mitigate the risks of danger to the community and to prevent flight. Id.; Demore v. Kim, 538 U.S. 510, 528 (2003). Because Plaintiffs’ ongoing deprivation of liberty is not sufficiently related to either of these purposes, their detention violates due process. Due process also requires “adequate procedural protections” to ensure that the government’s asserted justification for confinement “outweighs the individual’s constitutionally protected interest in avoiding physical restraint.” Zadvydas, 533 U.S. at 690 (citations and internal quotation marks omitted).
142. Two main provisions of the Immigration and Nationality Act (INA) govern the detention of noncitizens pending removal: 8 U.S.C. §§ 1226 and 1231.77 Section 1226 governs detention of individuals “pending a decision on whether [they are] to be removed from the United States,” 8 U.S.C. § 1226(a), while Section 1231 governs detention of individuals during and, in some cases, after the “removal period,” id. §1231(a)(1)(A), while they are awaiting removal after exhausting the available legal avenues to challenge a final removal order.
143. Detention under § 1226 is generally discretionary. Jennings v. Rodriguez, __ U.S. __, 138 S.Ct. 830, 846 (2018). An individual detained under subsection (a) of that statute is immediately eligible to request release on bond or conditional parole. See 8 U.S.C. § 1226(a); 8 C.F.R. § 1236.1(d). In some cases, Section 1226 mandates detention—namely, subsection (c) provides that the government “shall take into custody” any noncitizen who has committed certain criminal offenses including aggravated felonies that render them deportable or inadmissible, subject to a narrow witness protection exception. See 8 U.S.C. § 1226(c).
144. Section 1231 comes into play once an individual has exhausted the legal avenues
77 Separate statutory provisions, which do not apply here, govern the detention of particular categories of noncitizens. See 8 U.S.C. §§ 1225(b) (individuals classified as “arriving aliens”) and 1226A (suspected terrorists).
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to challenge her removal order and there is no longer any legal impediment to her removal. That section mandates detention only during the initial 90-day “removal period,” 8 U.S.C. § 1231(a)(1)(A)—the time window during which the government typically effectuates the individual’s removal. The removal period “begins on the latest of the following:
(i) The date the order of removal becomes administratively final. (ii) If the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court’s final order. (iii) If the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement. Id. §1231(a)(1)(B). The removal period may be extended beyond 90 days if the individual “fails or refuses to make timely application in good faith for travel or other documents necessary to [his] departure or conspires or acts to prevent [his] removal.” Id. §1231(a)(1)(C). Under these circumstances, the regulations require ICE to serve the individual with a Notice of Failure to Comply, advising her that the removal period has been extended and explaining the steps she must take in order to demonstrate compliance. See 8 C.F.R. §241.4(g)(5)(ii). 145. After the initial 90-day removal period, detention under Section 1231 is no longer mandatory: the government “may” detain beyond the removal period certain “[i]nadmissible or criminal aliens” or individuals determined “to be a risk to the community or unlikely to comply with the order of removal.” Id. §1231(a)(6). The regulations provide for periodic custody reviews, and specify that noncitizens detained beyond the conclusion of the removal period are eligible for release on an order of supervision or bond. See 8 C.F.R. §§ 241.4, 241.5(b). 146. In Zadvydas, the Supreme Court recognized that the Due Process Clause imposes limitations on the government’s discretionary detention authority under the INA. 533 U.S. at 690. The following year, the Supreme Court held in Demore that mandatory pre-removal period detention under Section 1226(c) was not per se unconstitutional. 538 U.S. at 513 (respondent’s
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detention under § 1226(c) “for the brief period necessary for his removal proceedings” did not violate due process). The question of whether the statute permits prolonged detention without a bond hearing—and if so, whether such prolonged, categorical detention violates due process— was not before the Court. Justice Kennedy, who provided the crucial fifth vote in Demore, stressed in his concurrence that greater procedural safeguards, including individualized custody determinations, might be required “if the continued detention became unreasonable or unjustified.” Id. at 532-33 (Kennedy, J., concurring).78
147. In the wake of Demore, every federal appeals court to consider the issue concluded, either as a matter of statutory construction or by reaching the due process question, that mandatory detention without a bond hearing pending removal is impermissible once it exceeds a reasonable time limitation. See Sopo v. U.S. Attorney Gen., 825 F.3d 1199 (11th Cir. 2016); Reid v. Donelan, 819 F.3d 486 (1st Cir. 2016); Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015); Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015); Diop v. ICE/Homeland Sec., 656 F.3d 221 (3d Cir. 2011); Ly v. Hansen, 351 F.3d 263 (6th Cir. 2003). In Sopo, the Eleventh Circuit “readily joined” its sister circuits in holding, “as a matter of constitutional avoidance,” that Section 1226(c) contains an implicit reasonable time limitation, 825 F.3d at 1213-14, to be determined on a case-by-case basis by considering a variety of factors, including the length of detention, the reasons removal proceedings have become protracted, the likelihood of removal, and confinement in prison-like conditions. Id. at 1217-18.
78 As the Eleventh Circuit recently recognized, the average length of removal proceedings has undergone a “dramatic increase” since the Supreme Court decided Demore. Sopo, 825 F.3d at 1213. Moreover, in an exceptional move, the Department of Justice has admitted that the statistics drawn from its brief that were relied on heavily by the majority in Demore—claiming that detention under § 1226(c) lasts an average of “roughly a month and a half in the vast majority of cases in which it is invoked, and about five months in the minority of cases in which the alien chooses to appeal,” Demore at 530—were false, vastly underestimating the length of time that individuals spent in detention while challenging their removal. See Letter from U.S. Dep’t of Justice, Office of the Solicitor General to the Honorable Scott S. Harris, Clerk of the U.S. Supreme Court, regarding Demore v. Kim, S. Ct. No. 01-1491 (Aug. 26, 2016), http://online.wsj.com/public/resources/documents/Demore.pdf.
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148. Recently, the Supreme Court ruled that the Ninth Circuit erred in applying the
canon of constitutional avoidance to interpret the detention statutes to require an individualized
bond hearing for all noncitizens detained for over six months under Sections 1226(c) and
1225(b). Jennings, 138 S.Ct. at 836. The question of whether prolonged detention without a bond
hearing pending removal proceedings violates due process was not before the Court in Jennings.
Id. at 851. The Court remanded to the Ninth Circuit to consider the constitutional question in the
first instance. Id.
149. The Third Circuit has already addressed the question, determining that prolonged
categorical detention of individuals challenging their removal violates due process. See Diop,
656 F.3d at 233; cf. Guerrero-Sanchez v. Warden York Cty. Prison, 905 F.3d 208, 222 (noting
that Diop’s constitutional holding was not abrogated by Jennings and reaffirming the Diop
court’s recognition that “when detention becomes unreasonable, the Due Process Clause
demands a hearing, at which the Government bears the burden of proving that continued
detention is necessary”). The vast majority of district courts—including courts in every circuit in
the nation—have found that prolonged detention during removal proceedings violates due process when it becomes unreasonably prolonged.79 Although Jennings abrogated the statutory
79 See, e.g., Reid v. Donelan, 390 F. Supp. 3d 201, 215 (D. Mass. 2019); Cabral v. Decker, 331 F. Supp. 3d 255, 260-62 (S.D. N.Y. 2018); Kabba v. Barr, 403 F. Supp. 3d 180, 190 (W.D. N.Y. 2019); De Oliveira Viegas v. Green, 370 F. Supp. 3d 443, 449 (D. N.J. 2019); Vega v. Doll, No. 3:17-cv-1440, 2018 WL 3756755, at *4-5 (M.D. Pa. Aug. 8, 2018); Alexis v. Sessions, No. 18-cv-1923-H, 2018 WL 5921017, at *8 (S.D. Tex. Nov. 13, 2018); Hamama v. Adducci, 349 F. Supp. 3d 665, 690 (E.D. Mich. 2018), vacated and remanded, 946 F.3d 875 (6th Cir. 2020) (district court lacked jurisdiction to enter nationwide injunction for class of Iraqi national subject to prolonged detention under §§ 1225(b), 1226(a), 1226(c), and 1231(a)(6)); Baez-Sanchez v. Kolitwenzew, 360 F. Supp. 3d 808, 814 (C.D. Ill. 2018); Vargas v. Beth, 378 F. Supp. 3d 716, 728 (E.D. Wis. 2019), appeal dismissed, No. 19-1965 (7th Cir. July 18, 2019); Muse v. Sessions, 409 F.Supp.3d 707, 718 (D. Minn, 2018); Martinez v. Clark, No. 18-cv1669-RAJ-MAT, 2019 WL 5968089, at *9-11 (W.D. Wash. May 23, 2019), report and recommendation adopted, 2019 WL 5962685 (W.D. Wash. Nov. 13, 2019); Singh v. Choate, No. 19-cv-00909-KLM, 2019 WL 3943960, at *7 (D. Colo. Aug. 21, 2019), appeal filed, No. 19-1416 (10th Cir. Oct. 29, 2019); cf. Lukaj v. McAleenan, No. 3:19-cv241-J-34MCR, 2019 WL 4979745 (M.D. Fla. Oct. 8, 2019) (petitioner’s detention without bond under § 1226(c) for almost 14 months violated due process), order vacated on reconsideration, 2020 WL 248724 (M.D. Fla. Jan. 16, 2020) (decision was predicated on factual error that parties failed to convey to the court; petitioner was actually detained under § 1231(a) by time of court’s decision because he had filed a PFR but was not granted a stay of
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holdings of the First, Second, Third, Sixth, and Eleventh Circuits, those courts’ reasoning remains strong persuasive authority with respect to the due process analysis of the detention statutes. Each of those courts identified “serious constitutional concerns,” Sopo, 825 F.3d at 1213, with a reading of the statutory scheme that would permit prolonged categorical detention without periodic review by a neutral magistrate or other rigorous safeguards—the reading ultimately adopted by the Supreme Court in Jennings. Indeed, many district courts analyzing constitutional challenges to prolonged detention after Jennings have applied the factors enumerated in Sopo and the pre-Jennings statutory decisions of the other circuits. See, e.g., Moore v. Nielsen, No. 4:18-cv-01722-LSC-HNJ, 2019 WL 2152582, at *10-11, 13 (N.D. Ala. May 3, 2019) (holding that petitioner’s prolonged mandatory detention under § 1225(b) violated due process “based upon the persuasive guidance in Sopo”).
150. Plaintiffs’ categorical detention should be presumed unreasonable because it has already far exceeded six months. Categorical civil detention for over six months likely violates due process. See Demore, 538 U.S. at 529-30 (upholding only “brief” detention under Section 1226(c), which lasts an average of “about five months in the minority of cases in which the alien chooses to appeal”); Id. at 532 (Kennedy, J., concurring) (“individualized determination as to his risk of flight and dangerousness” may be warranted “if the continued detention became unreasonable or unjustified”); Zadvydas, 533 U.S. at 701 (“Congress previously doubted the constitutionality of detention for more than six months”); see also McNeil v. Dir., Patuxent Inst., 407 U.S. 245, 249, 250-52 (1972) (recognizing six months as an outer limit for confinement
removal, rendering moot petitioner’s challenge to § 1226(c) detention). Similarly, “[n]early all district courts that have considered the issue agree that” prolonged mandatory detention under Section 1225(b) “will—at some point— violate the right to due process.” Banda v. McAleenan, 385 F. Supp. 3d 1099, 1116–17 (W.D. Wash. 2019) (internal quotation marks and citations omitted) (collecting § 1225(b) cases), appeal dismissed sub nom. Banda v. U.S. Dep't of Homeland Sec., No. 19-35683 (9th Cir. Oct. 9, 2019); see also, e.g., Moore, No. 4:18-cv-01722-LSC-HNJ, 2019 WL 2152582, at *9-10; Jamal A. v. Whitaker, 358 F. Supp. 3d 853, 860 (D. Minn. 2019); Portillo v. Hott, 322 F. Supp. 3d 698, 707-09 (E.D. Va. 2018).
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without individualized inquiry for civil commitment). 151. Even if a bond hearing is not required after six months in every case, due process
requires, at a minimum, a bond hearing after detention has become unreasonably prolonged. See Diop, 656 F.3d at 234. In determining the reasonableness of detention under the INA, courts have looked to whether the noncitizen has raised a “good faith” challenge to removal that is “legitimately raised” and presents “real issues.” Chavez-Alvarez v. Warden York Cty. Prison, 783 F.3d 469, 476 (3d Cir. 2015). Reasonableness is also a “function of the length of the detention,” id. at 477 (detention is presumptively unreasonable if it lasts six months to a year); accord Sopo, 825 F.3d at 1217-18, and the prospect of future detention pending the resolution of challenges to the individual’s removal. Chavez-Alvarez, 783 F.3d at 477-78 (finding detention unreasonable after ninth months of detention, when parties “could have reasonably predicted that ChavezAlvarez’s appeal would take a substantial amount of time, making his already lengthy detention considerably longer”); accord Sopo, 825 F.3d at 1218; Reid, 819 F.3d at 500. The “conditions of confinement” also bear on the reasonableness analysis. Chavez-Alvarez, 783 F.3d at 478; accord Sopo, 825 F.3d at 1218 (“whether the facility for the civil immigration detention is meaningfully different from a penal institution for criminal detention” is factor in reasonableness determination). Accordingly, the factors present in all of Plaintiffs’ cases—the exceedingly prolonged duration of their detention, the likely duration of their future detention absent court intervention, their high risk of severe illness or death should they contract COVID-19, and their confinement in a county jail that is plagued by systemic civil rights concerns and infamously poor conditions during this pandemic80—render their detention unreasonable.
80 Even before the outbreak of COVID-19, the Etowah County Jail has been the subject of repeated complaints, reports, and investigations for corruption and human rights violations, including by DHS itself. See supra n.62 (citing numerous reports on inadequate medical care, sanitation, and nutrition at ECDC); see also, e.g., DHS OFFICE OF CIVIL RTS. AND CIVIL LIBERTIES, Fiscal Year 2015 Report to Congress at 28-29, 35 (Jun. 2016),
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152. In addition to an individualized hearing before a neutral decisionmaker, due process requires the government to provide Plaintiffs with other procedural safeguards to protect against the erroneous deprivation of liberty. First, the government must bear the burden of proof by clear and convincing evidence to demonstrate that each Plaintiff is a danger or flight risk. See Singh v. Holder, 638 F.3d 1196, 1203-05 (9th Cir. 2011); see also United States v. Salerno, 481 U.S. 739, 750, 752 (1987) (upholding pre-trial detention where “full-blown adversary hearing,” requiring “clear and convincing evidence” and “neutral decisionmaker”); Foucha, 504 U.S. at 81-83 (striking down civil detention scheme that placed burden on the detainee); Zadvydas, 533 U.S. at 692 (finding post-final-order custody review procedures deficient because, inter alia, they placed burden on detainee). Additionally, in order to show that an individual’s continued detention is reasonably related to the detention statutes’ primary purpose of ensuring appearance during removal proceedings and effectuating her removal, see Zadvydas at 697, the government must also consider alternatives to detention and an individual’s ability to pay bond. See Hernandez v. Sessions, 872 F.3d 976, 990-91 (9th Cir. 2017); see also id. at 991 (ICE’s ISAP alternatives to detention program has resulted in appearance rates close to 100 percent) and 990 (“[d]etention of an indigent ‘for inability to post money bail’ is impermissible if the individual’s ‘appearance at trial could reasonably be assured by one of the alternate forms of release’”) (quoting Pugh v. Rainwater, 572 F.2d 1053, 1058 (5th Cir. 1978) (en banc)).
153. Finally, the periodic reviews afforded to some Plaintiffs under ICE’s post-order custody review (POCR) process fall far short of due process requirements because they lack
https://www.dhs.gov/sites/default/files/publications/crcl-fy-2015-annual-report.pdf (prior investigations and “numerous complaints” DHS continues to receive from Etowah “raise serious civil rights concerns”; recommending that ICE “cease use of the facility” unless it can implement “comprehensive” reforms); Connor Sheets, Here’s how federal inmates made an Alabama sheriff $1.5 million, AL.COM (Dec. 30, 2018), https://www.al.com/news/2018/12/heres-how-federal-inmates-made-an-alabama-sheriff-15-million.html (Etowah County Sheriff and county government reportedly misappropriated $3 million in funds paid to them under the ICE contract).
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basic procedural safeguards, such as the opportunity to be heard before a neutral decisionmaker, cross-examine witnesses, have counsel appear to present argument on the detainee’s behalf, create a contemporaneous record of proceedings, or appeal an erroneous determination. See 8 C.F.R. §214.4 (setting out procedures and standards for POCRs); Diouf v. Napolitano (“Diouf II”), 634 F.3d 1081, 1092 (9th Cir. 2011) (180-day POCR regulations “raise serious constitutional concerns” because they “do not afford adequate procedural safeguards”; insufficient to address prolonged detention); see also Zadvydas at 690-91 (comparing Kansas, 521 U.S. at 364-69 (upholding involuntary civil commitment for periods of one year at a time, in light of “strict procedural safeguards” such as right to jury trial and the government’s burden of proof beyond a reasonable doubt) and Salerno, 481 U.S. at 750–752 (in upholding pretrial detention, stressing “stringent time limitations,” the fact that detention is reserved for the “most serious of crimes,” the requirement of proof of dangerousness by clear and convincing evidence, and the presence of judicial safeguards), with Foucha, 504 U.S. at 81-83 (striking down insanityrelated detention system that placed burden on detainee to prove non-dangerousness)).
D. Habeas Is a Broad, Flexible Remedy That Authorizes Courts to Order Release from Unlawful Detention as Law and Equity Requires. 154. Plaintiffs seek relief under the federal habeas statute, 28 U.S.C. § 2241, which is
itself infused with long-standing common law equitable principles. See 28 U.S.C. § 2241(c)(3) (the writ extends to those prisoners “in custody in violation of the Constitution or laws or treaties of the United States”). “Habeas is at its core a remedy for unlawful executive detention.” Munaf v. Geren, 553 U.S. 674, 693 (2008).
155. Habeas invests in federal courts broad, equitable authority to “dispose of the matter as law and justice require,” 28 U.S.C. § 2243, as the “very nature of the writ demands that it be administered with the initiative and flexibility.” Harris v. Nelson, 394 U.S. 286, 292 (1969);
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see Boumediene v. Bush, 553 U.S. 723, 780 (2008) (“Habeas is not ‘a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose.’”) (quoting Jones v. Cunningham, 371 U.S. 236, 243 (1963)).
156. Accordingly, the illegality of custody under the “Constitution or laws . . . of the United States” may stem from the fact of detention and the duration of detention – what is often referred to as the “historical core” of habeas – and for unlawful placement or conditions of detention. See Wilwording v. Swenson, 404 U.S. 249, 251 (1971) (habeas challenging “living conditions and disciplinary measures” is “cognizable in federal habeas corpus”); Johnson v. Avery, 393 U.S. 483 (1969) (permitting federal habeas challenge to legality of prison regulation prohibiting provision of legal assistance to other prisoners). See also Aamer v. Obama, 742 F.3d 1023, 1031-38 (D.C. Cir. 2014) (surveying history, purpose and Supreme Court jurisprudence and “the weight of the reasoned precedent in the federal Courts of Appeal” relating to habeas and concluding “habeas corpus tests not only the fact but also the form of detention.”).
157. A court is fully empowered to remediate the particular illegality here – an outbreak of lethal and unavoidable virus that threatens Plaintiffs and violates their constitutional rights to be free from arbitrary and punitive detention – by ordering their release. Habeas corpus is, “above all, an adaptable remedy,” Boumediene, 553 U.S. at 780, and federal courts retain “broad discretion in conditioning a judgment granting habeas relief . . . ‘as law and justice require’.” Hilton v. Braunskill, 481 U.S. 770, 775 (1987) (quoting § 2243). That authority includes an order of release, Boumediene, 553 U.S. at 779, so as “to insure that miscarriages of justice within [the writ’s] reach are surfaced and corrected.” Harris, 395 U.S. at 291.
CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF:
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VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT Unlawful Punishment / Deliberate Indifference
158. Plaintiffs re-allege and incorporate by reference the foregoing paragraphs. 159. The Due Process Clause of the Fifth Amendment guarantees persons in civil immigration detention the right to reasonable safety and to be free from punitive conditions of confinement, and requires that the government have a constitutionally adequate, nonpunitive purpose for continued detention. These requirements are violated when a condition of detention is not reasonably related to a legitimate government objective and when government officials are deliberately indifferent to a substantial risk of harm to the detainee. 160. Defendants continue to detain Plaintiffs, whose underlying health conditions render them particularly vulnerable to contracting COVID-19, spreading it to others, and suffering serious injury or death as a result. 161. The conditions of detention in ECDC increase Plaintiffs’ risk of contracting COVID-19. There have been hundreds of cases and several deaths from COVID-19 reported in the county where the facility is located. Defendants have not, and could not possibly, implement social distancing measures that are required to prevent the rapid spread of COVID-19 in ECDC. Defendants also have not implemented any adequate hygiene practices as recommended by the CDC. 162. Defendants have failed in their obligation to adequately protect Plaintiffs from exposure to COVID-19. This puts Plaintiffs at a substantial risk of serious illness or death. 163. Defendants know about the prevalence of COVID-19 in Alabama, and the risk that it poses to individuals with certain underlying conditions. Under these circumstances, Plaintiffs’ continued detention by Defendants amounts to deliberate indifference to a substantial risk of harm to Plaintiffs.
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164. Defendants’ exposure of Plaintiffs to this substantial risk of serious illness or death amounts to punishment.
165. Plaintiffs’ ongoing confinement lacks a reasonable relationship to any legitimate government purpose. Plaintiffs do not pose a danger or a flight risk that cannot be mitigated by appropriate conditions of release, and these considerations alone are insufficient to countervail the severe risk of severe illness or even death that Plaintiffs face if they are not released.
166. Absent judicial relief in the form of release from detention, Plaintiffs are suffering and will continue to suffer irreparable harm.
SECOND CLAIM FOR RELIEF: VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT
Prolonged Detention 167. Plaintiffs re-allege and incorporate by reference the foregoing paragraphs. 168. Civil immigration detention violates due process if it is not reasonably related to its purpose. See Zadvydas, 533 U.S. at 690 (citing Jackson v. Indiana, 406 U.S. 715, 738 (1972)); Demore, 538 U.S. at 513. As categorical detention becomes increasingly prolonged, a “sufficiently strong special justification” is required to outweigh the significant deprivation of liberty. Zadvydas, 533 U.S. at 690-91. 169. Prolonged civil detention also violates due process unless it is accompanied by strong procedural protections to guard against the erroneous deprivation of liberty. Zadvydas, 533 U.S. at 690-91; Foucha, 504 U.S. at 81-83. To justify Plaintiffs ongoing prolonged detention, due process requires that the government establish, at an individualized hearing before a neutral decisionmaker, that Plaintiffs’ detention is justified by clear and convincing evidence of flight risk or danger, even after consideration of whether alternatives to detention could
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sufficiently mitigate that risk, and taking into account their ability to pay bond. See Salerno, 481 U.S. at 750, 752; Singh, 638 F.3d at 1203; Hernandez, 872 F.3d at 990.
170. Plaintiffs’ prolonged detention, which ranges from more than thirteen months to nine years, is not reasonably related to the statutory purpose of ensuring their appearance during removal proceedings or preventing danger to the community, or of ensuring their presence for imminent removal. See Zadvydas at 690.
171. Nor have Plaintiffs been afforded the necessary procedural safeguards to guarantee against the erroneous deprivation of their liberty, especially as their detention grows increasingly prolonged. ICE’s internal post-order custody review process does not afford Plaintiffs with a constitutionally adequate process to obtain review of their prolonged detention. See Diouf II, 634 F.3d at 1092.
172. The weight of the government’s interests in ensuring a lack of flight risk and preventing danger to the community is severely diminished during the pendency of the COVID19 pandemic. Further, mandating Plaintiffs’ continued detention at risk of serious illness or death during a global pandemic is grossly disproportionate to the government’s interests. Categorical detention under these circumstances is not sufficiently tailored, fails to account for reasonable alternatives, and denies Plaintiffs the right to be meaningfully heard.
173. To ensure adequate procedural protections exist, the extraordinary circumstances alleged justify this Court’s intervention to order Plaintiffs’ outright release during the pendency of the COVID-19 crisis, or at least release until immigrations proceedings regain regularity, at which point it may order bond hearings and requests for parole.
174. Absent judicial relief in the form of release from detention, Plaintiffs are suffering and will continue to suffer irreparable harm.
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THIRD CLAIM FOR RELIEF: VIOLATION OF IMMIGRATION AND NATIONALITY ACT – 8 U.S.C. § 1231
Prolonged Detention 175. Plaintiffs re-allege and incorporate by reference the foregoing paragraphs. 176. In the event that this Court determines that Plaintiffs’ detention is governed by 8 U.S.C. § 1231, they are subject to the discretionary, post-removal period detention provision Section 1231(a)(6). 177. In Zadvydas, the Supreme Court recognized that due process considerations constrain the government’s discretionary detention authority under Section 1231(a)(6). 533 U.S. at 699. When detention under that provision exceeds six months, it is no longer presumptively reasonable, and the government must release the individual unless it can show that his removal is significantly likely in the reasonably foreseeable future. Id. at 701. 178. Plaintiffs have been detained for over six months since their removal orders became administratively final. 179. There is no significant likelihood that the government will remove Plaintiffs in the reasonably foreseeable future. Several Plaintiffs’ removal are stayed pending judicial review of a substantial challenge to their removal—a process that will likely take many more months or even years, and may ultimately result in a finding that Plaintiffs are not removable or merit relief from removal. Meanwhile, for those Plaintiffs subject to a legally final and executable order of removal, Defendants have thus far failed to secure their removal. 180. No sufficiently strong special justification exists to justify Plaintiffs’ continued detention without a bond hearing, especially given the lengthy deprivation of liberty they have already experienced. See Zadvydas at 690-91; Kansas, 521 U.S. at 364-69; Salerno, 481 U.S. at 750–752.
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181. Thus, Plaintiffs are entitled to immediate release from detention or, alternatively, a prompt individualized hearing where the government bears the burden of proving danger or flight risk.
FOURTH CLAIM FOR RELIEF: HABEAS AUTHORITY TO ORDER RELEASE FROM UNLAWFUL DETENTION
182. Plaintiffs re-allege and incorporate by reference the foregoing paragraphs. 183. The Court has broad, equitable authority under the habeas statute, 28 U.S.C. §§ 2241, 2243 and the common law, to dispose of Plaintiffs’ cases as law and justice require, based on the unique facts and circumstances of their cases, in order to remedy Plaintiffs’ unlawful conditions of detention. 184. The Court should exercise this authority to grant Plaintiffs’ habeas corpus petition and to fashion any and all additional relief, necessary to effectuate Plaintiffs’ expeditious release from unlawful detention. In the absence of such relief, Plaintiffs are suffering and will continue to suffer irreparable harm.
FIFTH CLAIM FOR RELIEF: VIOLATION OF THE REHABILITATION ACT Failure to Provide Reasonable Accommodation to Persons with Disabilities 185. Plaintiffs re-allege and incorporate by reference the foregoing paragraphs. 186. Section 504 of the Rehabilitation Act requires federal agencies to provide “reasonable accommodations” to individuals with disabilities so they can fully participate in benefits administered by these agencies. 29 U.S.C. § 794(a). 187. DHS regulations implementing the Rehabilitation Act mandate that “[n]o qualified individual with a disability in the United States, shall, by reason of his or her disability, be excluded from participation in, be denied benefits of, or otherwise be subjected to
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discrimination under any program or activity conducted by the Department.” 6 C.F.R. § 15.30; see also 29 U.S.C. § 794(a). The regulations implementing Section 504 prohibit entities receiving federal financial assistance from utilizing “criteria or methods of administration (i) that have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap, (ii) that have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the recipient’s program or activity with respect to handicapped persons.” 34 C.F.R. § 104.4(b)(4).
188. The removal process is a benefit administered by DHS and Plaintiffs are entitled to participate in the removal process. The services, programs, and activities within the detention centers where DHS detains Plaintiffs receive substantial federal financial assistance.
189. Plaintiffs’ underlying medical conditions qualify as disabilities for purposes of the Rehabilitation Act. 29 U.S.C. § 705(2)(B); 42 U.S.C. § 12102.
190. By exposing them to a heightened risk of contracting COVID-19, Defendants are preventing Plaintiffs from participating in the removal process by reason of their disability.
191. By failing to take account of their special vulnerability to severe illness or death if they were to contract COVID-19, Defendants are preventing Plaintiffs from participating in the removal process by reason of their disability.
192. By failing to provide Plaintiffs adequate protection from COVID-19 through the only effective means to reduce the risk of severe illness or death, Defendants have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of removal proceedings and the services, programs, and activities within the detention centers with respect to Plaintiffs.
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193. The only available “reasonable accommodation” that would mitigate Plaintiffs’ disability is release from detention. Defendants have failed to implement this reasonable accommodation, which would not be unduly burdensome nor require a fundamental alteration in the removal process or the programs and activities of the detention center.
194. Defendants’ ongoing detention of Plaintiffs constitutes discrimination because it is either disparate treatment of, or at the very least has a disparate impact on, people with qualifying disabilities who are at severe risk of serious illness or death if they were to contract COVID-19.
195. For these reasons, Defendants’ ongoing detention of Plaintiffs violates the Rehabilitation Act.
PRAYER FOR RELIEF WHEREFORE, Petitioners-Plaintiffs request that this Court:
1. Issue a writ of habeas corpus and order Plaintiffs’ immediate release or placement in community-based alternatives to detention such as conditional release, with appropriate precautionary public health measures, on the ground that their continued detention violates the Due Process Clause and/or the Rehabilitation Act;
2. In the alternative, issue a temporary restraining order or preliminary and permanent injunctive relief ordering Defendants to immediately release Plaintiffs or place them in community-based alternatives to detention such as conditional release, with appropriate precautionary public health measures, on the ground that their continued detention violates the Due Process Clause and/or the Rehabilitation Act;
3. In the further alternative, order a plan, to be immediately submitted to the Court and overseen by a qualified public health expert pursuant to Fed. R. Evid. 706, which outlines
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the specific mitigation efforts, in line with CDC guidelines, necessary to prevent, to the degree possible, contraction of COVID-19 by Plaintiffs not immediately released; 4. If immediate release is not granted on the basis of this Petition alone, then expedited review of the Petition, including oral argument, via telephonic or videoconference if necessary; 5. Declare that Defendants’ continued civil detention of individuals at increased risk for severe illness, including all people over the age of 55 and persons of any age with underlying medical conditions that increase the risk of serious illness or death upon contracting COVID-19 violates the Due Process Clause and/or the Rehabilitation Act; 6. Award Plaintiffs all costs incurred in maintaining this action, including reasonable attorneys’ fees under the Equal Access to Justice Act, as amended, 5 U.S.C. § 504 and 28 U.S.C. § 2412, and on any other basis justified by law; and 7. Grant Plaintiffs any other and further relief this Court deems just and proper.

Dated: April 27, 2020 Birmingham, Alabama

Respectfully submitted,
/s/ Jessica Myers Vosburgh Jessica Myers Vosburgh jessica@adelantealabama.org ADELANTE ALABAMA WORKER CENTER 2104 Chapel Hill Road Birmingham, AL 35216 205.317.1481
Sirine Shebaya* sirine@nipnlg.org Matthew S. Vogel* matt@nipnlg.org Khaled Alrabe** khaled@nipnlg.org NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD

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2201 Wisconsin Avenue NW, Suite 200 Washington, DC 20007 718.419.5876 Baher Azmy* bazmy@ccrjustice.org Ghita Schwarz* gschwarz@ccrjustice.org Angelo Guisado* aguisado@ccrjustice.org Guadalupe V. Aguirre* laguirre@ccrjustice.org Astha Sharma Pokharel* asharmapokharel@ccrjustice.org Brittany Thomas* bthomas@ccrjustice.org CENTER FOR CONSTITUTIONAL RIGHTSS 666 Broadway, 7th Floor New York, NY 11201 212.614.6427 Jeremy Jong* jermjong@gmail.com 3527 Banks Street New Orleans, LA 70119 504.475.6728 Counsel for Petitioners-Plaintiffs *pro hac vice applications forthcoming **admitted pro hac vice
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CERTIFICATE OF SERVICE I hereby certify that on April 27, 2020, I electronically filed the foregoing Amended Petition for Writ of Habeas Corpus and Complaint for Injunctive and Declaratory Relief with the Clerk of the Court using the CM/ECF system. Notice of this filing will be sent to all parties by operation of the Court’s electronic filing system.

Birmingham, AL Dated: April 27, 2020

/s/ Jessica Myers Vosburgh Jessica Myers Vosburgh

63

 
 Case 4:20-cv-00596-RDP-JHE Document 2 Filed 04/29/20 Page 1 of 4

FILED
2020 Apr-29 PM 06:50 U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION

ARCHILLA, et al., Petitioners-Plaintiffs, v.
WITTE, et al., Respondents-Defendants.

No. 4:20-cv-596-RDP-JHE ORAL ARGUMENT REQUESTED

PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER
Pursuant to Federal Rule of Civil Procedure 65, Petitioners-Plaintiffs (“Plaintiffs”) respectfully request that the Court issue an order requiring Respondents-Defendants (“Defendants”) to immediately release Plaintiffs, who are at a heightened risk of severe illness or death if they contract COVID-19. The grounds for this Motion are set forth in the accompanying Memorandum of Law and supported by the declarations being filed therewith. An emergency hearing is respectfully requested.
As explained in the accompanying Memorandum of Law in Support of Motion for a Temporary Restraining Order, Plaintiffs are likely to succeed on their claims that Defendants, by continuing to detain them in light of the escalating
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COVID-19 pandemic, violate Plaintiffs’ rights under the Fifth Amendment of the U.S. Constitution. Plaintiffs’ continued detention irreparably harms Plaintiffs, and the balance of the equities and the public interest heavily favor relief.
Counsel for Plaintiffs provided notice of Plaintiffs’ intent to file this application to counsel for Defendants at the U.S. Attorney’s Office for the Northern District of Alabama. Parties conferred regarding a briefing schedule and agreed that Defendants would file their opposition by the end of the day on Monday, May 4, 2020. Plaintiffs propose to file their reply by the end of the day on Wednesday, May 6, 2020, and a Hearing should then be scheduled as expeditiously thereafter as the Court may permit.
Plaintiffs accordingly respectfully request the Court enter a scheduling order providing for the following expedited briefing schedule:
1. Defendants shall file a Memorandum of Law in Opposition to Plaintiffs’ Motion for Temporary Restraining Order on Monday, May 4;
2. Plaintiffs shall file a Reply on Wednesday, May 6; and 3. A hearing on Plaintiffs’ Motion for Temporary Restraining Order shall be
set for May 7, 2020, or as soon as possible thereafter, at a time set by the Court, to occur by audio teleconference or video teleconference to be initiated either by the Court or by Plaintiffs.
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For the reasons stated above and in the accompanying documents, Plaintiffs respectfully request that this Court grant the motion for temporary restraining order.

Dated: April 29, 2020
/s/Jessica Myers Vosburgh Jessica Myers Vosburgh jessica@adelantealabama.org ADELANTE ALABAMA WORKER CENTER 2104 Chapel Hill Road Birmingham, AL 35216 205.317.1481
Sirine Shebaya** sirine@nipnlg.org Matthew S. Vogel** matt@nipnlg.org Khaled Alrabe* khaled@nipnlg.org NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Ave NW, Suite 200 Washington, DC 20007 718.419.5876

Baher Azmy* bazmy@ccrjustice.org Ghita Schwarz* gschwarz@ccrjustice.org Angelo Guisado* aguisado@ccrjustice.org Lupe Aguirre* laguirre@ccrjustice.org Astha Sharma Pokharel* asharmapokharel@ccrjustice.org Brittany Thomas* bthomas@ccrjustice.org CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 11201 212.614.6427
Jeremy Jong** jermjong@gmail.com 3527 Banks St, New Orleans, LA 70119 504.475.6728
*pro hac vice application forthcoming ** admitted pro hac vice
Counsel for Petitioners-Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that on April 29, 2020, I electronically filed the foregoing document and accompanying motion, exhibits, and proposed order with the Clerk of the Court using the CM/ECF system. I further certify that I spoke with Assistant U.S. Attorneys Jason Cheek, Sarah Wilson, and Margaret Marshall on the telephone and advised them of this filing on April 24, 2020, and we subsequently conferred via email regarding a proposed briefing schedule. In addition, I have emailed copies of these documents to AUSAs Cheek, Wilson, and Marshall at the following email address at the U.S. Attorney’s Office for the Northern District of Alabama: jason.cheek@usdoj.gov sarah.s.wilson@usdoj.gov margaret.marshall@usdoj.gov

Dated: April 29, 2020

s/ Jessica Vosburgh Jessica Myers Vosburgh

4

 
 Case 4:20-cv-00596-RDP-JHE

Document 11

Filed 05/04/20

Page 1 of 51

FILED
2020 May-04 PM 10:01 U.S. DISTRICT COURT
N.D. OF ALABAMA

THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION

SARAIL MICHAEL ARCHILLA, et al.,
Petitioners, v.
DIANNE WITTE, et al.,
Respondents.

Civil Action Number 4:20-cv-596-RDP-JHE

FEDERAL RESPONDENTS’ OPPOSITION TO PETITIONERS’ MOTION FOR A TEMPORARY RESTRAINING ORDER INTRODUCTION
Petitioners are eighteen individuals1 lawfully subject to immigration detention at the Etowah County Detention Center (ECDC) on account of their significant criminal histories and final orders requiring their removal from the United States. They have filed a motion for a temporary restraining order seeking release on the basis of health conditions they allege place them at risk for a complication from COVID-19. COVID-19 has presented significant and well-known challenges for the

1 Ordinarily, consolidation of eighteen habeas petitions is not appropriate; however, in the interest of efficiency and case management, the government is not objecting to jointly briefing the requests for preliminary relief on the facility-based claims. If, however, preliminary relief is denied, any continued litigation regarding Petitioners’ additional claims should proceed on individual writs.
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Nation. The current pandemic does not, however, give this Court the authority to order Petitioners’ release from custody, or otherwise change the legality of their detention. Accordingly, the motion should be denied.
The Court lacks jurisdiction to enter a temporary restraining order requiring the release of the eighteen Petitioners. The relief sought is not cognizable through a habeas petition brought pursuant to 28 U.S.C. § 2241. Rather, Petitioners’ claims— which challenge “improper practices” or “conditions”—must be litigated as civil rights claims for which the appropriate remedy is not release. See Gomez v. United States, 899 F.2d 1124, 1126 (11th Cir. 1990). In addition, the Court lacks jurisdiction to order Petitioners’ immediate release on a temporary restraining order. Neither of the jurisdictional grounds asserted by Petitioners support entry of a temporary restraining order that changes (rather than preserves) the status quo pending further litigation or that awards Petitioners relief that would be appropriate only after a final determination on the merits of their claims.
Further, Petitioners have not satisfied the high standard for obtaining preliminary relief. First, Petitioners cannot show that they are facing immediate, irreparable harm as many of the Petitioners are members of a certified class actively seeking relief for the same claims in Fraihat v. U.S. Immigration & Customs Enf’t, No. EDCV191546JGBSHKX, 2020 WL 1932393, at *1 (C.D. Cal. Apr. 20, 2020). Second, Petitioners are unlikely to succeed in establishing that their conditions of
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confinement constitute a “punishment” without due process of law. Petitioners are in immigration detention because they have violated the immigration laws of the United States and are subject to detention under those laws. Consistent with the requirements of due process, their confinement is thus “reasonably related” to a legitimate government interest. Bell v. Wolfish, 441 U.S. 535, 538-39 (1979). Moreover, Petitioners cannot establish a substantive-due-process violation based on the government’s purported deliberate indifference to their medical needs. At ECDC, ICE has proactively mobilized to prevent, contain, and treat COVID-19 cases: ICE has implemented CDC guidance, including screening and appropriately quarantining all new and returning detainees for 14 days as well as anyone showing COVID-19 symptoms; suspended social visitation; and increased the scope and frequency of sanitation procedures and the availability of cleaning supplies, soap, and masks. Finally, the public interest is not served by the release of these individuals. The vast majority of Petitioners have serious criminal convictions. These offenses including numerous child sex offenses, drug manufacturing and distribution offenses, and murder. In addition, all but two Petitioners have final orders of removal that the government has expended significant resources to obtain and have a considerable interest in seeking to enforce. Respondents request that the motion be denied.
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FACTUAL BACKGROUND I. CDC and ICE Guidance.
In March 2020, the CDC issued guidance to correctional detention centers regarding the management of COVID-19. See Centers for Disease Control, 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-correctionaldetention.pdf. Because detention centers integrate custody, housing, education, recreation, healthcare, food service, and other aspects of daily living in a single physical setting, the CDC has acknowledged that they present unique challenges for the control of COVID-19. In an effort to prevent or mitigate the introduction and spread of COVID-19 in detention facilities, the CDC recommends that a number of steps be taken at detention facilities. These steps include restricting or suspending the transfers of detained persons and to subject any transfers to medical isolation to evaluate if COVID-19 testing is appropriate; quarantining all new inmates for 14 days before they enter into the general population; cleaning and disinfecting surfaces that are frequently touched multiple times per day, including the use of disinfectants effective against the virus; providing detainees, at no cost, with soap, running water, and hand drying machines or paper towels; implementing social distancing strategies to increase the physical space between each detained person; and medically isolating
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confirmed or suspected COVID-19 cases. The CDC recommends that staff stay home if they are sick and that daily temperature checks be performed on all staff.
ICE has maintained a pandemic workforce protection plan since February 2014, which was last updated in May 2017. Exhibit 1, Facility Response Declaration of Bryan S. Pitman, Supervisory Detention and Deportation Officer, ICE, dated May 4, 2020 (Facility Response Decl.) ¶ 8. This plan provides specific guidance for biological threats such as COVID-19. Id. ICE instituted applicable parts of the plan in January 2020 upon the discovery of the potential threat of COVID-19 in an effort to prevent and mitigate the spread of the novel coronavirus among the detainee population and staff. Id. In January 2020, the U.S. Department of Homeland Security (DHS) Workforce Safety and Health Division provided additional guidance to DHS components to address assumed risks and interim workplace controls. Id. This guidance included the use of N95 masks, available respirators, and additional Personal Protective Equipment (PPE). Id.
In addition, in March 2020, ICE Health Services Corps (IHSC) issued the IHCS Interim Recommendations for Risk Assessment of Persons with Potential 2019-Novel Coronavirus (COVID-19) Exposure in Travel-, Community-, Custody Settings. Id. 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 screening and management of potential
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exposure among detainees.2 Id. ¶ 9. In testing for COVID-19, IHSC is also following

guidance issued by the CDC to safeguard those in ICE custody and care. Id. ¶ 10.

On April 10, 2020, ICE Enforcement and Removal Operations (ERO)

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 U.S. Immigration and Customs Enforcement, ERO COVID-19

Pandemic

Response

Requirements

(Apr.

10,

2020),

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

pdf. The ERO guidance requires non-dedicated ICE detention facilities to comply

with the CDC’s interim guidance. Id. ERO requirements also provide that cloth face

coverings should be worn by detainees and staff. Id. Similar to CDC guidelines,

detention facilities are to provide detainees and staff with no-cost, unlimited access

to supplies for hand cleansing, including liquid soap, running water, hand drying

machines or disposable paper towels, and no-touch trash receptacles. Id. Screening

should take place before staff and new intakes enter the facility (or just inside the

2 ICE closely follows the CDC’s Interim Guidance on Management of Coronavirus 2019 (COVID-19) in Correctional and Detention Facilities, and its general public guidance at https://www.cdc.gov/coronavirus/2019-ncov/index.html.
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facility), including visual and temperature checks. Id. As it relates to social distancing, ERO recommends efforts at reducing facility population to 75% of capacity, housing detainees in individual rooms to the extent possible, staggering access to recreation and mealtimes, avoiding congregating in groups of ten or more, and maintaining a distance of six feet. Id. II. The Etowah County Detention Center (ECDC).
ICE contracts with the Etowah County, Alabama, Sheriff’s Office (ECSO) for the management and operation of the ECDC pursuant to a rider agreement on a U.S. Marshal Service contract. The provision of health care services provided at ECDC are overseen by Field Medical Coordinators (FMCs), who work for the IHSC. Facility Response Decl. ¶¶ 4-6. IHSC comprises a multidisciplinary workforce that consists of U.S. Public Health Service Commissioned Corps officers, federal civil servants, and contract health professionals. Id. ¶ 7. Medical care at the ECDC is provided by medical professionals employed by ECSO, with oversight by the IHSC. Exhibit 2, Detainees’ Status Declaration of Bryan S. Pitman, Supervisory Detention and Deportation Officer, ICE, dated May 5, 2020 (“Detainees’ Status Decl.”) ¶ 5. The ECDC, to include its medical operations, are inspected annually by ICE independent contractors. Id. ¶ 5. Additionally, ICE’s Office of Professional Responsibility (OPR) inspects ECDC twice a year. Id. ECDC routinely achieves an outstanding rating by the independent contractor and OPR, whose inspections are
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posted publicly. Id.; U.S. Immigration and Customs Enforcement, Facility Inspections, https://www.ice.gov/facility-inspections.
ECDC has an ICE detainee population well below its maximum capacity. See Facility Response Decl. ¶¶ 13, 19. ECDC has the capacity to house 320 ICE detainees. Detainees’ Status Dec. ¶ 6. At this time, there are 110 ICE detainees housed at the facility. Id. Once a pandemic was recognized, the entire long-term population was quarantined in a single unit for 14 days in individual cells until the population was confirmed to be asymptomatic. Facility Response Decl. ¶ 13. This allowed ECDC to free up a separate unit apart from the general population for new ICE admissions to be quarantined and screened for COVID-19. Id. The long-term population continues to be housed in this “sterile” unit with no new detainees being introduced prior to being quarantined for a two-week period. Id. Any contact with staff, medical, or other essential individuals is minimized to the highest degree. Id.
At ECDC, detainees are assessed for COVID-19 symptoms and administered tests for COVID-19 as set forth in CDC guidelines. Id. ¶¶ 10, 14. Each detainee is asked to confirm if he or she has had close contact with a person with laboratoryconfirmed COVID-19 in the past 14 days, and whether he or she has traveled from or through area(s) with sustained community transmission in the past two weeks. Id. Out of an abundance of caution, ECDC has taken the position that all incoming detainees may have been in areas with sustained community transmission. Id.
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ICE and ECDC have instituted screening guidance for new arrivals to identify individuals who meet the CDC’s criteria for epidemiological risk of exposure to COVID-19. Id. ¶ 15. Entry into the facility is denied to any incoming detainee who exhibits a fever and/or respiratory symptoms unless that detainee has tested negative for COVID-19. Id. ECDC has established procedures to continue closely monitoring the population’s health and symptoms, including additional temperature checks of detainees where medical circumstances warrant. Id.
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) and are monitored daily for COVID-19 symptoms such as a fever and respiratory illness. Id. ¶ 16. As identified in the PRR, a cohort is a group of persons with a similar condition grouped or housed together for observation over a period of time. Id. Cohorting is an infection-prevention strategy which involves housing detainees together who were exposed to a person with an infectious organism but are asymptomatic. Id.
Given the significant variance in facility attributes and characteristics, cohorting options and capabilities will differ across the various detention facilities housing ICE detainees. Id. At ECDC, cohorting is achieved in the following manner:
1) Detainees exhibiting any COVID-19 symptoms once inside the facility are examined by a medical professional and are sent to be
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housed in Unit 1 in their own single occupancy cell. Unit 1 is separate from other units and the general population.
2) Any ECDC personnel entering Unit 1 must wear PPE (masks, gloves, and a gown if necessary). There are no more than two deputies dedicated to the operation of this unit. Unit 1 is a non-direct supervised unit in that the detainees are observed through video monitors and glass partitions. The deputies monitor these detainees from the secured area without having to enter the unit.
3) Medical personnel check the detainee’s vital signs, such as heart rate, blood pressure, oxygen levels, and temperature, and other symptoms every four hours, starting at 8:00 a.m., and document them in the Unit Log. During this medical screening process, the detainee is not allowed to fully exit their cell and instead must come out only far enough to be reached by the medical personnel. Any changes to the detainee’s medical condition are immediately communicated to medical personnel.
4) The detainees housed in Unit 1 are issued a N95 mask. Any time the detainee leaves their cell for medical appointments, to shower, or other reasons the detainee must put on their mask before their cell door is opened and must wear the mask while moving through the dayroom. Any surfaces and objects the detainee touches while they are outside their cell must be sanitized afterwards. The detainees are not allowed to stop at any other cells.
5) Unit 1 is sanitized twice a day by using a forced air machine that distributes a disinfectant solution into the air and on surfaces in order to disinfect common areas. This process takes place after the detainees have vacated the targeted area.
Id. ¶ 16.
ECDC, which manages male detainees only, provides daily access to sick calls
in a clinical setting, 36 observation beds, and access to specialty services, such as
mental health and dental services. Id. ¶ 17. The facility can admit patients to the local
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hospital for a higher level of care, when necessary. Id.
As of May 4, 2020, ICE has reported that there is one ICE detainee who is
positive for COVID-19 at ECDC. Id. ¶ 18. That detainee is on medical observation
per CDC guidelines. Id. The detainee in question entered ECDC custody on April
21, 2020 and has been quarantined since that date consistent with ECDC procedure
for new transfers. Id. The detainee has had no known contact with any other detainee
at the facility, including the Petitioners. Id. In response and as a precautionary matter,
ECDC has increased medical screenings in the form of daily vital sign checks of all
detainees in order to further mitigate the spread of the virus. There are no other suspected COVID-19 cases among the ICE detainee population at Etowah.3 Id. ¶ 18.
The ECDC has increased sanitation frequency and provides sanitation
supplies as follows:
1) ECDC provides industrial cleaner, soap, hot water, paper towels, and face masks to staff and cleaning crews. CDC-recommended cleaning and disinfection above and beyond normal activity has been implemented. Id. ¶ 20.
2) All common areas in the facility are being disinfected multiple times per day. The common areas included are detainee housing areas, law libraries, medical areas, intake areas, door handles throughout the facility, desk and counter surfaces in high traffic areas, lobby seating areas, restrooms, and any other areas the facility identified as needing such cleaning. Id. ¶ 20.
3) Disinfectant in excess quantities is maintained in the general population area to be accessed by the detainees for cleaning, mopping, and wiping
3 ICE is unable to provide any case information on non-ICE inmates as they are in county custody. However, county inmates and ICE detainees are housed separately.
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down of any areas the detainees would like to clean. Id. ¶ 20.
4) ECDC utilizes daily a forced air machine that distributes a disinfectant solution into the air and on common area surfaces in order to disinfect all areas throughout the facility. This process takes place after the detainees have vacated the targeted area. Id. ¶ 20.
5) Any food trays that are delivered to the individual units are disinfected prior to leaving the kitchen. The trays are covered with a lid by kitchen personnel with gloved hands and served contact-free to the detainees. Id. ¶ 20.
6) Additional cleaning products such as soap for showers and hand soap for sink handwashing have been added to housing areas and are available at no cost to detainees. Detainees have sinks in each individual cell as well as in the general population area for handwashing at any time. Each cell also has a toilet. Detainees can wash their hands as frequently as they want and are encouraged to do so. Detainees are encouraged to communicate with local staff when additional hygiene supplies or products are needed. Id. ¶ 20.
7) Alcohol based disinfectant dispensers have been placed in lobby areas for public and staff use. Internal facility areas have been equipped with disinfectant dispensers as well. ECDC also provides soap and paper towels that are present in bathrooms and work areas within the facilities. Everyday cleaning supplies such as soap dispensers, bars of soap, and paper towels are routinely checked and are available for use. Id. ¶ 20.
8) Each detainee has received a face covering or mask as a precautionary measure to prevent any spread of the virus from an asymptomatic person. Detainees have been instructed to wear the face coverings when they are in common areas. Id. ¶ 20.
9) Detainees have been educated through in-person town halls on best practices to keep from spreading any contagions. For instance, detainees have been advised to keep at least six feet away from others as much as possible. Educational posters with illustrations and instructions in English and Spanish demonstrating good hygiene practices have been placed throughout the facility, including in detainee living areas. Id. ¶ 20.
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10) The administration is encouraging both staff and the detainee population to use these tools often and liberally. Id. ¶ 20.
11) Detainees, inmates, and staff are all provided with a face mask to wear. Id. ¶ 24.
ECDC has also implemented important safeguards for detainees while ensuring that they have access to important amenities. Detainees have access to dayrooms, telephones, and law library computers within specified guidelines. Id. ¶ 22. The detainees are required to wear their masks in these areas and to maintain the appropriate social distancing of six feet separation. Id. Access to dayrooms and telephones has not been impacted by COVID-19. Id.
Additionally, ECDC has limited professional visits to non-contact visits and suspended in-person social visitation and facility tours. Id. ¶ 21. In-person legal visitation remains permitted at ECDC. However, non-contact legal visits (e.g., video conferences) are offered first and strongly encouraged to limit exposure to ICE detainees. Id. However, if the attorney believes the legal visit requires contact, attorneys are able to meet with their clients at ECDC in the attorney visiting rooms while maintaining the appropriate social distancing of six feet separation. Id. For contact attorney visits, detainees must wear surgical masks, which are provided by ECDC. Id. Attorneys must also wear personal protective equipment, masks and gloves, in order to enter the facility. Id. ¶ 23. All attorneys are allowed 24/7 access to contact and non-contact visitation with detainees. Id. ¶ 21.
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All persons seeking entry into ECDC, including attorneys, undergo a comprehensive evaluation before they are permitted inside. Id. ¶ 23. ECDC screens all staff and vendors as they enter the facility, including checking body temperatures. Id. All visitors must also wear personal protective equipment (surgical or N95 mask, and latex gloves or equivalent) in order to enter the facility. Id. The ECDC screens all detainee intakes when they enter the facility, including travel histories, taking medical histories, and checking body temperatures and other symptoms of COVID19. Id. ¶ 24. ECDC has procedures to continue monitoring the populations’ health. Id.
ECDC also 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, requesting to seek medical care if they feel ill, and maintaining at least six feet of separation, when possible. Id. ¶ 25. The facility provides detainees daily access to sick call. Id. At ECDC, all new arrival detainees as well as detainees who are transported to any offsite location (hospitals, medical appointments, interviews) are, upon return, instructed to shower, provided with new uniforms, and housed separate from the general population for 14 days to monitor for the onset of any symptoms related to COVID-19. Id. ¶ 26. This separate housing and monitoring process is in addition to the initial intake screenings and temperature checks described above. Id.
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ICE routinely reviews its “at-risk population” at ECDC to include the elderly, detainees with compromised immune systems, those with chronic care conditions, and those who are “at higher risk for severe illness” as identified by the CDC, to ensure that when detention is mandated or appropriate. Id. ¶ 27; Detainees’ Status Decl. ¶ 26. These reviews are completed on a case-by-case basis and consider the totality of circumstances, including the detainee’s health, public safety that a release could create, flight risk, the requirement to detain certain aliens under law. Id.; see 8 U.S.C. § 1226. ICE adjusts custody conditions when appropriate, to protect the health, safety and well-being of its detainees. Facility Response Decl. ¶ 27. ICE’s reviews of its “at-risk population” are done to ensure that custody is safe, humane, and in an appropriate environment given the circumstances. Detainees’ Status Decl. ¶ 26. ICE will continue to review its “at-risk population” in the days and weeks ahead when deciding whether any detainees should be released from custody. Id. ICE detainees at ECDC fall under the authority of the New Orleans field office which to date has released more than 75 “at-risk” detainees. Id. III. The Petitioners.
The Petitioners are eighteen individuals who, at the time of the filing of the petition, were detained at ECDC. They alleged that they have pre-existing conditions that place them at increased risk of contracting a serious case of COVID-19. As a result of these medical conditions, fifteen of the Petitioners are members of the
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certified class in Fraihat v. U.S. Immigration & Customs Enf’t, No. EDCV191546JGBSHKX, 2020 WL 1932570, at *20 (C.D. Cal. Apr. 20, 2020), seeking revised release procedures to address the same deliberate indifference and Rehab Act claims raised in the Petition here.
ICE has closely reviewed the medical background, as well as the criminal and immigration history of each of the Petitioners to identify whether they are at a higher-risk for serious illness from COVID-19. Detainees’ Status Decl. ¶ 27. ICE undertook these steps in order to determine whether continued detention remains appropriate in light of the COVID-19 pandemic. Id. Given the precautions that ICE and ECDC have taken, the agency has determined that, at this time, detention should continue for each Petitioner except for Joseph Debonnaire Soho. The relevant the person and immigration histories for the remaining seventeen Petitioners are set forth below.
1. Allen Roger Olano-Esparaza Allen Roger Olano-Esparza is a 37-year-old citizen of Peru. Id. ¶ 8. In 1997, Olano-Esparza was admitted to the United States at the Miami Port of Entry as a nonimmigrant. Id. Six years later, Olano-Esparza adjusted his status to that of Lawful Permanent Resident. Id. On November 30, 2016, Olano-Esparza was encountered by ERO-San Diego at the Vista Detention Center in San Diego. Id. Olano-Esparza was issued a Notice to Appear, charging removability under Section
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237(a)(2)(A)(iii) of the Immigration and Nationality Act (the Act). Id. On December 22, 2016, Olano-Esparza entered ICE custody. Id. On April 3, 2018, an immigration judge in San Diego ordered Olano-Esparza removed to Peru. Id. On September 14, 2018, the Board of Immigration Appeals dismissed his appeal. Id. On October 10, 2018, Olano-Esparza filed a Petition for Review in the Ninth Circuit Court of Appeals, resulting in an automatic stay of removal (Case No. 18-72758). Id. This Petition is still pending. Id. On January 7, 2019, Olano-Esparza was transferred to ECDC. Id. Olano-Esparza has the following criminal history: On November 21, 2016, he was convicted in San Diego of Lewd and Lascivious Acts- with the Victim being 14-15 Years Old. Id. He was sentenced to 180 days of confinement. Id.
2. Edson Flores. Edson Flores is a 48-year-old citizen of Honduras. Id. ¶ 9. On January 17, 2008, Flores was encountered by ERO New York at the Rikers Island Prison Complex in New York. Id. Flores was issued a Notice to Appear, charging inadmissibility under Section 212(a)(6)(A)(i) of the Act. On June 10, 2011, Flores entered ICE custody at the Buffalo, New York Service Processing Center. Id. On January 6, 2012, an immigration judge in New York ordered Flores removed to Honduras. Id. On May 22, 2012, the Board of Immigration Appeals dismissed Flores’ appeal. Id. On June 15, 2012, Flores filed a Petition for Review in the Second Circuit Court of Appeals resulting in a forbearance stay of removal. Id. On February
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26, 2015, the Second Circuit Court remanded the case to the Board of Immigration Appeals. Id. On February 3, 2016, the Board of Immigration Appeals remanded the case to the immigration court. Id. On March 23, 2017, an immigration judge in New York again ordered Flores removed to Honduras. Id. On October 17, 2017, the Board of Immigration Appeals dismissed Flores’ second appeal. Id. On October 23, 2017, Flores filed a second Petition for Review in the Second Circuit resulting in a forbearance stay of removal. Id. On November 1, 2017, Flores transferred to ECDC. Id. On October 29, 2019, the Second Circuit Court granted the Petition for Review and remanded the case to the Board of Immigration Appeals. Id. This decision is pending with the Board of Immigration Appeals. Id. Flores has the following criminal history: On January 10, 2008, the Supreme Court in New York County convicted Flores of Act in a Manner to Injure a Child Less than 17 and sentenced him to one year of confinement. Id. On January 10, 2008, the Supreme Court in New York County convicted Flores of Sexual Abuse 1st Degree-Sexual Contact with Individual Less than 11 Years Old and sentenced him to 42 months of confinement. Flores is a registered sex offender. Id.
3. Alex Giovanni Hernandez Alex Giovanni Hernandez is a 48-year-old citizen of Honduras. Id. ¶ 10. On September 29, 2016, Hernandez was encountered by ERO-Fresno, California at the Corcoran, California State Prison. Id. Hernandez was processed as an Administrative
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Removal under Section 238(b) of the Act for having committed an aggravated felony under Section 237(a)(2)(A)(iii) of the Act. Id. On June 19, 2017, an immigration judge in San Francisco granted Hernandez relief from removal. Id. On July 6, 2017, Hernandez and DHS appealed that decision to the Board of Immigration Appeals. Id. On November 24, 2017, the Board of Immigration Appeals dismissed Hernandez’s appeal and sustained the appeal of the DHS, effectively ordering Mr. Hernandez removed to Honduras. Id. On December 14, 2017, Hernandez filed a Petition for Review in the Ninth Circuit Court of Appeals, resulting in an automatic stay of removal. Id. This case is currently pending. Id. On December 20, 2018, Hernandez was transferred to the ECDC. Id. On January 9, 2019, Hernandez filed a Petition for Writ of Habeas Corpus with the United States District Court, Northern District of Alabama. Id. On May 22, 2019, the District Court dismissed that Petition. Id. On January 23, 2020, Hernandez filed a second Petition for Writ of Habeas Corpus with the United States District Court, Northern District of Alabama. Id. The Petition is still pending. Id. Hernandez has the following criminal history: On December 17, 1990, the Superior Court in Los Angeles convicted Hernandez of Robbery in the Second Degree. He was sentenced to two years of confinement. Id. On November 19, 1991, the Superior Court in Los Angeles convicted Hernandez of Felon in Possession of a Firearm. Id. He was sentenced to two years of confinement. Id. On October 28, 1997, the Superior Court in Los Angeles convicted Hernandez
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of Robbery in the Second Degree and Possession of a Firearm by a Felon. Id. He was sentenced to 25 years of confinement. Id. Hernandez is a certified class representative for the Fraihat class. Fraihat, 2020 WL 1932570.
4. Tesfa Miller Tesfa Miller is a 38-year-old citizen of Saint Vincent. Id. ¶ 11. On February 20, 2018, Miller was encountered by ERO-Atlanta at the Georgia Diagnostic and Classification Prison in Jackson, Georgia. Id. Miller was issued a Notice to Appear, charging removability under Section 237(a)(2)(A)(iii) of the Act. Id. On March 12, 2019, an immigration judge in Atlanta ordered Miller removed to Saint Vincent. Id. On August 26, 2019, the Board of Immigration Appeals dismissed Miller’s appeal. Id. On September 23, 2019, Miller filed a Petition for Review in the Eleventh Circuit Court of Appeals. Id. On November 1, 2019, the Eleventh Circuit granted a stay in Miller’s case, and on December 23, 2019, the Eleventh Circuit remanded the case to the Board of Immigration Appeals. Id. This case is currently pending. Id. On May 8, 2019, Miller transferred to the ECDC. Id. Miller has the following criminal history: On November 10, 2016, the Superior Court in Fulton County, Georgia convicted Miller of False Imprisonment. Id. He was sentenced to ten years with the first seven years to be served in confinement and the remainder to be served on probation. Id. On November 10, 2016, the Superior Court in Fulton County, Georgia convicted Miller of Terroristic Threats. Id. He was sentenced to five years to be served on
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probation. Id. On November 10, 2016, the Superior Court in Fulton County, Georgia convicted Miller of Battery. Id. He was sentenced to 12 months to be served on probation. Id. As a result of these convictions, Miller is currently subject to mandatory detention under 8 U.S.C. 1226(c).
5. Karim Golding Karim Golding is a 35-year-old citizen of Jamaica. Id. ¶ 12. On April 10, 2015, Golding was encountered by ERO New York at the Federal Bureau of Prisons’ Metropolitan Detention Center-Brooklyn in Brooklyn, New York. Id. Golding was served with an I-247, Immigration Detainer-Notice of Action. Id. On October 27, 2016, Golding entered ICE custody at the Varick Street Service Processing Center, New York City, and was issued a Notice to Appear, charging inadmissibility under Section 212(a)(6)(A)(i) of the Act. Id. On September 15, 2017, an immigration judge in New York ordered Golding removed to Jamaica. Id. On March 5, 2018, the Board of Immigration Appeals dismissed Golding’s appeal. Id. Fourteen days later, Golding filed a Petition for Review and Motion for Stay of Removal in the Second Circuit Court of Appeals, resulting in a forbearance stay of removal. Id. On April 5, 2019, Golding filed a Petition for Writ of Habeas Corpus with the United States District Court, Northern District of New York. Id. On July 28, 2019, Golding was transferred to the ECDC. Id. December 10, 2019, United States District Court, Northern District of New York, granted the Petition for Writ of Habeas Corpus in
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part and denied it in part, granting Golding a bond hearing within 10 days. Id. On December 17, 2019, an immigration judge denied bond to Golding. Id. On January 16, 2020, Golding filed a Motion to Reopen and appeal of the bond denial with the Board of Immigration Appeals. Id. That motion to reopen and appeal are currently pending. Id. Golding has the following criminal history: On March 23, 2005, Golding was convicted in the Queens County, New York Supreme Court of the offence of Criminal Possession of a Loaded Firearm and was sentenced to one year of confinement. Id. On March 12, 2015, Golding was convicted in the United States District Court for the Eastern District of New York of Conspiracy to Distribute and Possess with the Intent to Distribute Cocaine Base, three counts of Distribution and Possession with Intent to Distribute Cocaine Base, and Attempted Distribution and Possession with Intent to Distribute Cocaine Base. Id.
6. Sarail Archilla Sarail Archilla is a 44-year-old who claims to be a citizen of Canada. Id. ¶ 13. He is detained at the ECDC. Id. On May 4, 2017, Archilla was encountered by EROAtlanta at the D. Ray James Federal Correctional Institution in Folkston, Georgia. Id. Archilla was processed as a final administrative removal order under Section 238(b) of the Act for having committed an aggravated felony under Section 237(a)(2)(A)(iii) of the Act. Id. On July 26, 2017, Archilla entered ICE custody at the Stewart Detention Facility in Lumpkin, Georgia. Id. On December 21, 2017,
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Archilla transferred to the ECDC. Id. Archilla has the following criminal history: On July 15, 2010, Archilla was convicted in the United States District Court, District of Massachusetts, for the offense of conspiracy to possess with intent to distribute cocaine and possession with intent to distribute cocaine. Id. He was sentenced 144 months of confinement. Id. Archilla is currently in Failure to Comply Status for refusing to cooperate with removal efforts. Id. Archilla claims to be from Canada, but Canada has no records to confirm his citizenship. Id. Archilla is believed to be from Jamaica, due to statements made during his criminal investigation. Id. However, he has not been cooperative with ICE in determining citizenship. Id. ICE is working with the Jamaican government to determine citizenship. Id. Archilla has been in multiple altercations while in ICE custody and has threatened ICE Officers with physical harm during liaison. Id.
7. Randane Junior Williams Randane Junior Williams is a 30-year-old citizen of Jamaica. Id. ¶ 14. On August 20, 2004, Williams was admitted to the United States at Boston as a temporary visitor for pleasure with authorization to remain until February 19, 2005. Id. On October 14, 2008, Williams adjusted status to that of a Lawful Permanent Resident. Id. On February 6, 2018, Williams was released from the Nevada Department of Corrections to ICE custody at the Las Vegas Field Office. Id. Williams was issued a Notice to Appear, charging him with removability under
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section 237 (a)(2)(A) (iii) of the Act. On July 17, 2018, an immigration judge at Las Vegas ordered Williams removed to Jamaica. Id. On December 18, 2018, the Board of Immigration Appeals dismissed his appeal. Id. On September 9, 2018, Williams was transferred to the ECDC. Id. On January 14, 2019, Williams filed a Petition for Review with the Ninth Circuit Court of Appeals, triggering a stay of his removal. Id. On July 31, 2019, a request for a stay of removal was granted by the Ninth Circuit. Id. Williams has the following criminal history: On June 23, 2016, Williams was convicted in the District Court of Clark County, Nevada for possession with the intent to sell a controlled substance (trafficking). Id. Williams was sentenced to a term of 12 to 32 months of confinement which was suspended with Williams being placed on supervised probation for a period of three years. Id. Williams subsequently violated the terms of the court’s probation order and his probation was revoked on October 13, 2017. Id.
8. Maxime Peter Blanc Maxime Peter Blanc is a 46-year-old citizen of the Dominican Republic. Id. ¶ 15. On April 16, 1994, Blanc was admitted to the United States at New York as an Immigrant. Id. On March 2, 2018, Blanc was encountered by ICE while in custody of the Federal Bureau of Prisons, D. Ray James Federal Correction Facility in Folkston, Georgia. Id. He was issued a Notice to Appear, charging him with removability under section 237(a)(2)(A) (ii) and (iii) of the Act. Id. On June 26,
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2018, Blanc was transferred to ICE custody and detained without bond due to his criminal convictions. Id. On December 31, 2018, an immigration judge in Lumpkin, Georgia ordered Blanc removed to the Dominican Republic. Id. On March 26, 2019, Blanc was transferred to the ECDC. Id. On June 6, 2019, the Board of Immigration Appeals dismissed Blanc’s appeal. Id. On July 3, 2019, Blanc filed a Petition for Review with the Eleventh Circuit Court of Appeals. Id. On August 16, 2019, a temporary stay of removal was granted by the Eleventh Circuit. Id. Blanc has the following criminal history: On July 12, 2012, Blanc, was convicted in the United States District Court, Southern District of Florida, of Possession of 15 or more Unauthorized Access Devices, that is, Social Security Numbers, with the Intent to Defraud and Aggravated Identity Theft. Id. Blanc was sentenced to 30 months of imprisonment. Id. On January 11, 2016, Blanc was convicted in the United States District Court, Southern District of Florida, of the offense of Possession of 15 or more Unauthorized Access Devices and Aggravated Identity Theft. Id. Blanc was sentenced to 33 months of imprisonment. Id.
9. Churvin Roswill Webster Churvin Roswill Webster is a 57-year-old citizen of Anguilla. Id. ¶ 16. On June 22, 1976, Churvin was admitted to the United States at San Juan, Puerto Rico as an Immigrant. Id. On October 20, 2017, Webster was encountered by ICE near New Brunswick, New Jersey. Id. Webster was issued a Notice to Appear, charging
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him with removability under sections 237 (a)(2)(A)(iii) and (a)(2)(B)(i) of the Act. Id. On November 15, 2018, Webster was ordered removed to Anguilla. Id. On May 17, 2019, the Board of Immigration Appeals dismissed Webster’s appeal. Id. On May 31, 2019, Webster filed a Petition for Review with the Third Circuit Court of Appeals. Id. A temporary stay of removal was granted the same day. Id. On April 7, 2019, Webster was transferred to the ECDC. Id. Webster has the following criminal history: On February 13, 1991, Webster was convicted in the Superior Court of Middlesex County, New Jersey for Possession with the Intent to Distribute a Controlled Substance (cocaine) within 1000 feet of a school zone. Id. Webster was sentenced to three years of confinement. Id. On March 27, 2009, Webster was convicted in the Superior Court of Somerset County, New Jersey for Possession of a Controlled Substance 3rd degree (heroin) and Bail Jumping. Id. Webster was sentenced to three years supervised probation. Id.
10. Bakhodir Sabitovich Madjitov Bakhodir Sabitovich Madjitov is a 38-year-old citizen of Uzbekistan. Id. ¶ 17. On March 12, 2006, Madjitov was admitted to the United States as a nonimmigrant with authorized to remain in the United States not to exceed July 20, 2006. Id. On January 17, 2007, Madjitov was issued a Notice to Appear, charging him with removability under with Section 237(a)(1)(B) of the Act. Id. On August 31, 2011, an immigration judge ordered Madjitov removed to Uzbekistan. Id. On December
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30, 2011, the Board of Immigration Appeals remanded the case to the immigration judge. Id. On May 17, 2013, an immigration judge again ordered Madjitov removed to Uzbekistan. Id. On December 22, 2017, Madjitov was apprehended by Homeland Security Investigations in Windsor, Connecticut and entered ICE custody at the Bristol County, Connecticut Jail. Id. On January 26, 2018, Madjitov was placed into Failure to Comply Status by ERO Boston because he refused to complete travel document information. Id. On February 21, 2018, Madjitov was transferred to the ECDC. Id. On April 29, 2019, the Embassy of Uzbekistan issued a travel document for Madjitov. On June 7, 2019, Madjitov filed a Petition for Review and Motion for Stay of Removal with the Third Circuit Court of Appeals. Id. On June 11, 2019, Madjitov was scheduled for removal to Uzbekistan through John F. Kennedy Airport in New York City, but he refused to board the aircraft. Id. On July 30, 2019, the Third Circuit dismissed the Petition for Review and Stay of Removal. Id. On September 11, 2019, Madjitov filed an Emergency Motion for Temporary Restraining Order in the United States District Court in Connecticut, which was denied. Id. On September 30, 2019, Madjitov filed a Petition for Review and Motion for Stay of Removal with the Eleventh Circuit. Id. On October 29, 2019, the Embassy of Uzbekistan reissued the travel document for Madjitov. Id. On November 25, 2019, the Eleventh Circuit denied the Stay of Removal. Id. The Petition for Review remains pending. Id. On November 26, 2019, Madjitov filed an Emergency
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Stay of Removal with the Second Circuit Court of Appeals, resulting in a forbearance stay of removal. Id. On November 27, 2019, Madjitov filed a Motion for Reconsideration of the Stay of Removal with the Eleventh Circuit. Id. On December 18, 2019, Madjitov filed an I-246, Request for Stay of Removal, with ICE, which was denied by the New Orleans Field Office. Id. On January 21, 2020, the Second Circuit denied the Motion for Stay of Removal. Id. On February 11, 2020, the Eleventh Circuit denied the Motion for Reconsideration of the Stay of Removal. Id. Madjitov has stated that he does not intend to comply with his removal. Id.
11. Ray Fuller Ray Fuller is a 54-year-old citizen of Jamaica. Id. ¶ 18. On November 10, 1999 Fuller, was admitted to the United States at Chicago as a Conditional Immigrant (fiancée of a United States Citizen). Id. On November 29, 2004, his petition to remove conditions of his entry and do become a permanent resident was denied by United States Citizenship and Immigration Services. Id. On August 5, 2014, Fuller was encountered by ICE on his release from the Illinois Department of Corrections and issued a Notice to Appear, charging removability under Section 237(a)(2)(A) (iii) of Act. Id. On May 27, 2015, an immigration judge in Chicago ordered Fuller removed to Jamaica. Id. The Board of Immigration Appeals dismissed his appeal. Id. On October 23, 2017, Fuller filed a Petition for Review with the
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Seventh Circuit Court of Appeals. Id. On March 21, 2018, Fuller was transferred to ECDC. Id. On May 18, 2018, the Seventh Circuit granted a Stay of Removal. Id. On January 23, 2019, the Seventh Circuit remanded the case to the Board of Immigration Appeals. Id. The case is currently pending with the Board of Immigration Appeals. Id. Fuller has the following criminal history: On March 9, 2012, Fuller was convicted in the Circuit Court of the 19th Judicial Circuit of Lake Charles, Illinois for Attempted Criminal Sexual Assault. Id. He was sentenced to a term of four and a half years of confinement. Id.
12. Kenneth Manning Hernandez Kenneth Manning Hernandez is a 61-year-old citizen of Jamaica. Id. ¶ 19. On August 25, 2016, Manning was encountered by ERO-New York at the Otisville Federal Correctional Institution in Otisville, New York. Id. Manning was issued a Notice to Appear, charging him with removability under Section 212(a)(6)(A)(i) of the Act. Id. On February 3, 2017, an immigration judge in New York ordered Manning removed to Jamaica. Id. On June 13, 2017, the Board of Immigration Appeals dismissed Manning’s appeal. Id. On July 14, 2017, Manning filed a Petition for Review and Stay of Removal with the Second Circuit Court of Appeals, resulting in an automatic forbearance stay of removal. Id. On July 5, 2018, the Second Circuit granted Manning a stay of removal. Id. On July 29, 2018, Manning was transferred to the ECDC. Id. On March 31, 2020, the Second Circuit granted the Petition for
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Review and remanded the case to the Board of Immigration Appeals, where it is currently pending. Id. Manning has the following criminal history: On February 14, 1990, Manning was convicted in Kings County Supreme Court, New York for Murder and Distribution of Cocaine. Id. He received a sentence of 20 years to life in prison. Id. Manning has also been involved in an altercation, while in ICE custody, where he became combative toward jail staff and caused significant damage to his dorm room. Id.
13. Sergio Quito Sergio Quito is a 45-year-old citizen of Ecuador. Id. ¶ 20. Quito entered the United States without inspection at an unknown date and location. Id. On March 29, 2007, Quito adjusted status to that of a Lawful Permanent Resident. Id. On June 9, 2016, Quito was issued a Notice to Appear, charging removability under section 237(a)(2)(A)(iii) of the Act. Id. On September 14, 2017, Quito was ordered removed by an immigration judge. Id. On March 19, 2018, the Board of Immigration Appeals dismissed Quito’s appeal. Id. On April 10, 2018, Quito filed a Petition for Review with the Second Circuit Court of Appeals. Id. On May 23, 2018, Quito was transferred to the ECDC. Id. On May 13, 2019, Quito filed a Petition for a Writ of Habeas Corpus with the U.S. District Court, North District of Alabama. Id. On January 29, 2020, the Petition for Habeas Corpus was denied. Id. On January 24, 2020, the Second Circuit denied the Petition for Review. Id. On January 27, 2020, a
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travel document request was sent to the Ecuadorian Consulate. Id. On February 12, 2020, Quito interviewed with the Consulate General of Ecuador and ERO was awaiting a decision on travel document issuance. Id. Quito has the following criminal history: On August 22, 2012, Quito was convicted in the New York County Supreme Court of Attempted Possessing a Sexual Performance by a child less than 16 years of age. Id.
14. Domingo Castillo Domingo Castillo is a 56-year-old citizen of the Dominican Republic. Id. ¶ 21. Castillo entered the United States without inspection at an unknown date and location. Id. On November 11, 2013, Castillo was arrested by ICE following his release from the Lackawanna County Prison, Pennsylvania. Id. He was issued a Notice to Appear, charging him with removability under Section 237(a)(2)(A)(iii) of the Act. Id. Castillo claimed birth in Puerto Rico. Id. That claim was vetted by ICE and determined to not be credible. Id. On April 30, 2014, an immigration judge in York, Pennsylvania ordered Castillo removed to the Dominican Republic. Id. On May 7, 2014, Castillo interviewed with the Consulate of Dominican Republic and again claimed to be a United States citizen. Id. He was subsequently placed in Failure to Comply status. Id. On April 22, 2015, Castillo was transferred to the ECDC. Id. Castillo has the following criminal history: On January 27, 2006, Castillo was convicted in the Lackawanna Common Place Court, Pennsylvania, of Aggravated
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Assault. Id. He was sentenced to five years of incarceration. Id. He has three prior convictions in Pennsylvania for assault. Id.
15. Antonio Melquezideth Antonio Melquezideth Castro is a 34-year-old citizen of Belize. Id. ¶ 22. Castillo entered the United States at Houston on or about November 12, 2000, as a nonimmigrant visitor. Id. On October 16, 2014, Castro adjusted his status to that of a Lawful Permanent Resident. Id. On September 25, 2017, Castro was issued a Notice to Appear, charging him with removability under Sections 237(a)(2)(A)(i) and (a)(2)(E)(i) of the Act. Id. On July 18, 2018, an immigration judge in Elizabeth, New Jersey ordered Castro removed to Belize. Id. On November 28, 2018, he was transferred to the ECDC. Id. On December 13, 2018, the Board of Immigration Appeals dismissed his appeal. Id. On January 9, 2019, Castro filed a Petition for Review with the Third Circuit Court of Appeals and a stay was granted. Id. On July 22, 2019, Castro filed a second Petition for Review with the Third Circuit which was consolidated with the first petition and the stay continued. Id. On September 20, 2019, Castro filed a Petition for Writ of Habeas Corpus with the United States District Court, District of New Jersey. Id. On December 13, 2019, the Third Circuit dismissed the Petition for Review. Id. Castro has the following criminal history: On June 21, 2002, he was convicted of Endangering the Welfare of a Child in the Union County New Jersey Superior Court. Id.
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16. Gerardo Castellano Geovany Gerardo Castellano Geovany is a 60-year-old citizen of Nicaragua. Id. ¶ 23. Geovany entered the United States without inspection by an immigration officer at or near San Ysidro, California at an unknown date. Id. On July 31, 1979, Geovany was issued an Order to Show Cause by the United States Border Patrol, charging him with deportability under Section 241(a)(2) of the Act. Id. On August 2, 1979, Geovany was released on bond. Id. On February 6, 1988, Geovany was arrested by legacy INS and detained. Id. On April 1, 1988, an immigration judge ordered Geovany removed to Nicaragua. Id. On September 27, 1988, Geovany was released on an order of supervision. Id. On January 30, 2016, Castillo was turned over to ICE by another law enforcement agency. Id. On February 19, 2016, Geovany refused to complete a travel document application for Nicaragua, refused to be photographed, and refused to interview with the Consulate of Nicaragua for a travel document. Id. Geovany was subsequently placed in Failure to Comply status. Id. On November 2, 2016, he was transferred to the ECDC. Id. On April 27, 2017, a travel document request was submitted to the Nicaraguan Consulate and Geovany interviewed with the Consulate; however, he would not provide credible information. Id. Geovany has the following criminal history: On August 20, 1982, he was convicted in the Los Angeles Superior Court of Sale of Marijuana. Id. He was sentenced to 60 months, with a suspended sentence and placed on probation. Id. On August 5, 1983, his
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sentence was reinstated and he received 180 days in jail. Id. On April 25, 1986, due to subsequent controlled substance arrests, his sentence was again reinstated and he received 365 days of incarceration. Id. On July 16, 1987, he was convicted in Los Angeles of Narcotic Manufacturing/Sale and sentenced to two years of incarceration. Id. On July 10, 1995, he was convicted of Petty Theft and received three days in jail. Id.
17. Landry Mbendeke Landry Mbendeke is a 39-year-old citizen of Cameroon. Id. ¶ 24. On September 21, 2011, Castillo entered the United States at New York as a resident alien. Id. On November 24, 2017, Castillo was issued a Notice to Appear, and charged with removability under Section 237(a)(2)(A)(i) of the Act. Id. On December 7, 2018, an immigration judge ordered Mbendeke removed to Cameroon. Id. On May 20, 2019, the Board of Immigration Appeals dismissed Mbendeke’s appeal. Id. On July 1, 2019, Mbendeke filed a Petition for Review with the Second Circuit Court of Appeals, resulting in a forbearance stay of removal. Id. That case is still pending. Id. On August 25, 2019, Mbendeke was transferred to the ECDC. Id. Mbendeke has the following criminal conviction: On August 25, 2016, Mbendeke pleaded guilty in the U.S. District Court, Eastern District of Virginia, of Conspiracy to Commit Marriage Fraud and was sentenced to 12 months of imprisonment. Id.
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18. Joseph Debonnaire Soho Joseph Debonnaire Soho is a 46-year-old citizen of Cameroon or the Ivory Coast who was previously detained at the ECDC. Id. ¶ 25. On April 27, 2020, ICE released Soho on an order of supervision. Id. ¶ 25.
STANDARD OF REVIEW For a plaintiff to be entitled to a temporary restraining order, he or she must show “(1) a substantial likelihood of success on the merits; (2) that irreparable injury will be suffered if the relief is not granted; (3) that the threatened injury outweighs the harm the relief would inflict on the [defendants]; and (4) that entry of the relief would serve the public interest.” Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1225-26 (11th Cir. 2005). While all of these elements must be established, no single element is controlling; this Court must instead consider all of these elements and the strength of the showing made as to each of them together, and a strong showing of (for instance) likelihood of success on the merits may compensate for a relatively weak showing of public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 32 (2008); Fla. Med. Ass’n, Inc. v. U.S. Dep’t of Health, Educ., & Welfare, 601 F.2d 199, 203 n.2 (5th Cir. 1979).
ARGUMENT I. The Court does not have jurisdiction to enter a Temporary Restraining
Order.
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A. Petitioners’ claims are not cognizable under Section 2241 and must be brought in a civil rights action for which release is not an appropriate remedy.
Because Petitioners are challenging the conditions of their confinement at ECDC, Petitioners are not entitled to bring their claims under 28 U.S.C. § 2241 and are not entitled to release as a remedy for their claims. The Court therefore lacks jurisdiction to order any relief for their claims as pleaded and, in any event, cannot grant their request for release.
1. Petitioners’ claim is a conditions of confinement claim, not a traditional section 2241 claim.
Petitioners’ constitutional claims are properly characterized as challenges to their conditions of confinement. Petitioners are challenging the adequacy of disease prevention measures within ECDC. ECF No. 1, at 41-45. Petitioners contend that, as individuals at increased risk of serious complications from COVID-19, ICE is failing to address their medical needs, and/or protect them from exposure. See id. This is a classic conditions of confinement claim. Toure v. Hott, --- F. Supp. 3d ---, 2020 WL 2092639, *6 (E.D. Va. Apr. 29, 2020) (“Since protections afforded by and during detention are conditions of detention, a complaint about a lack of COVID-19 protections, or insufficient COVID-19 protections, is a complaint of the conditions of confinement.”). In the motion for a temporary restraining order, Petitioners are not challenging the fact of their detention, the duration of their detention, or the authority under which they are detained, the types of challenges
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considered to be core habeas claims.4 Preiser v. Rodriguez, 411 U.S. 475, 489-506 (1973).
Even though Petitioners are attempting to seek a classic habeas remedy (release), it does not transform their claim into one cognizable under section 2241. Toure, --- F. Supp. 3d ----, 2020 WL 2092639, at *5 (“A challenge to the constitutional sufficiency of their confinement, even when paired with a request for immediate release, is a challenge to the conditions of their confinement.”). There are two parts to any core habeas claim: (1) a challenge to the “fact or duration of[ ] physical imprisonment,” and (2) a request for “a determination that [the petitioner] is entitled to immediate [ ] or a speedier release.” Preiser, 411 U.S. at 500. As noted above, Petitioners’ claims are not claims that go to the heart of habeas. Adding a request for relief that is otherwise not available for the claim does not make it a habeas claim. Otherwise, virtually all claims would be cognizable under section 2241 so long as the petitioner includes a prayer for release. The habeas remedy
4 The Petition also includes several claims on which they are not seeking emergency relief, including claims challenging the length of their confinement. ECF 1, at 4452; 57-68. The prolonged detention claims do not provide a sufficient basis for emergency relief and some already been denied in separate habeas petitions, see, e.g., Archilla v. Hassell, 4:18-cv-00460-MHH-JEO (dismissing petition); Flores v. Hassell, 4:18-cv-01493-ACA-HNJ (same); Hernandez v. Warden, 4:19-cv-00853RDP-JHE (same). Moreover, those claims are not proper for group adjudication, as they turn on individual facts related to their detention and the status of ICE’s removal efforts.
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cannot be stretched that far or read to be coextensive with civil rights actions. See Hutcherson v. Riley, 468 F.3d 750, 754 (11th Cir. 2006) (“These avenues are mutually exclusive: if a claim can be raised in a federal habeas petition, that same claim cannot be raised in a separate § 1983 civil rights action.”).
2. Conditions of confinement claims are not cognizable under section 2241.
Petitioners’ attempts to plead their claims under section 2241 fail. The Supreme Court “left open the question whether [detainees] might be able to challenge their confinement conditions via a petition for a writ of habeas corpus.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1862-63 (2017); see also Bell v. Wolfish, 441 U.S. 520, 526 n.6 (1979) (“[W]e leave to another day the question of the propriety of using a writ of habeas corpus to obtain review of the conditions of confinement.”); Preiser, 411 U.S. at 499 (“When a prisoner is put under additional and unconstitutional restraints during his lawful custody, it is arguable that habeas corpus will lie to remove the restraints making custody illegal.”). The circuits that have squarely addressed the issue are split on how to resolve it, with seven concluding that conditions claims are not cognizable under section 2241. See Wilborn v. Mansukhani, 795 F. App’x 157, 162-64 (4th Cir. 2019) (per curiam) (describing circuit split). Only three have reached a contrary conclusion. Id.
The weight of authority in the Eleventh Circuit supports the majority view. See Gomez, 899 F.2d at 1126 (“If these claims are considered in a habeas corpus
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context, however, this Court has held that even if a prisoner proves an allegation of mistreatment in prison that amounts to cruel and unusual punishment, he is not entitled to release.”); Vaz v. Skinner, 634 F. App’x 778, 780 (11th Cir. 2015) (“Claims challenging the fact or duration of a sentence fall within the ‘core’ of habeas corpus, while claims challenging the conditions of confinement fall outside of habeas corpus law.”); Cook v. Baker, 139 F. App’x 167, 168 (11th Cir. 2005); see also Daker v. Warden, No. 18-cv-14984, 2020 WL 751817, at *2 (11th Cir. Feb. 14, 2020). In addition, other district courts in this circuit have applied this reasoning to deny preliminary relief in similar COVID-19-based challenges. See, e.g., A.S.M. v. Donahue, No. 7:20-CV-62 (CDL), 2020 WL 1847158, at *1 (M.D. Ga. Apr. 10, 2020) (finding that habeas corpus “is not the appropriate mechanism” for the ICE detainee petitioner’s request for release from confinement due to COVID-19); Benavides v. Gartland, No. 5:20-CV-46, 2020 WL 1914916, at *5 (S.D. Ga. Apr. 18, 2020); Gayle v. Mead, No. 1:20-cv-21553-MGC, 2020 U.S. Dist. LEXIS 76040, *17-18 (S.D. Fla. Apr. 30, 2020) (“The appropriate relief from prison conditions that violate the Eighth Amendment is to require the discontinuance of any improper practices, or to require correction of any condition causing cruel and unusual punishment. Requirement of a discontinued practice does not amount to releasing 10 detainees who complain of prison conditions.”).
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3. It is well-settled that the remedy for a conditions of confinement claim is an order curing the defective conditions, not release from custody.
Even if pleaded as a civil rights claim, release from custody is not an available remedy. See Gomez, 899 F.2d at 1126 (“The appropriate Eleventh Circuit relief from prison conditions that violate the Eighth Amendment during legal incarceration is to require the discontinuance of any improper practices, or to require correction of any condition causing cruel and unusual punishment . . . . [R]elief of an Eighth Amendment violation does not include release from confinement.”). The remedy for this type of claim, is modification of the conditions of confinement to eliminate the constitutional violation.
Petitioners argue for an exception to this settled principle where no relief short of release can cure their conditions of confinement challenge. ECF 2-1, at 29. Notwithstanding that there is no precedent to support this exception, Petitioners have not demonstrated that they fall within it. Petitioners would have to establish a likelihood of proving that nothing short of releasing every individual with a preexisting condition will satisfy the deliberate indifference standard. But that assertion is contradicted by these same Petitioners’ claims in the Fraihat litigation where they are seeking nationwide changes to ICE review and release policies as a means of addressing these very same deliberate indifference claims. See Fraihat, 5:19-cv-01546-JGB-SHK (C.D. Cal.), ECF 87-1, Pets. Mot. For Emergency Class
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Certification (seeking certification to challenge “ICE’s failure to take adequate preventative measures to address the COVID-19 pandemic” and seeking injunctive relief to address “system-wide failures”). It is disingenuous for Petitioners— including Petitioner Hernandez who is a certified representative of the Fraihat class—to argue here that the systemic changes the Fraihat class seeks are doomed to fail in order to justify a separate action here. The arguments made by the Fraihat class members demonstrate that there are changes, short of ordering release, available to address their allegations. Therefore, Petitioners cannot establish grounds for applying an exception here.
B. The Court lacks authority to enter a temporary restraining order under either section 2241 or Rule 65.
Section 2241 does not grant jurisdiction to enter anything other than a final judgment in the form of a writ of habeas corpus. 28 U.S.C. § 2241(c)(3). “Section 2241 does not permit preliminary grants of habeas. It prohibits the writ from issuing unless the prisoner ‘is’ being held ‘in custody in violation of the Constitution or laws or treaties of the United States,’ not merely because he likely could make that showing in the future.” Hamama v. Adducci, 946 F.3d 875, 877 (6th Cir. 2020). Thus, section 2241 does not provide authority for the relief requested by Petitioners in their motion.
Similarly, Petitioners are not entitled to the requested relief under Rule 65 of the Federal Rules of Civil Procedure. Under Rule 65(b)(1)(A), a court may issue a
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temporary restraining order only if “specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss or damage will result to the movant before the adverse party can be heard in opposition.” Temporary restraining orders “have the effect of merely preserving the status quo rather than granting most or all of the substantive relief requested” by a plaintiff in a complaint. Fernandez–Roque v. Smith, 671 F.2d 426, 429 (11th Cir. 1982). “This Court must scrupulously honor Rule 65 requirements and thus it would be improper to issue a temporary restraining order absent compliance.” Fla. Democratic Party v. Scott, 215 F. Supp. 3d 1250, 1255 (N.D. Fla. 2016). Here, release would change the status quo, and award the Petitioners substantive relief on their claims. Fernandez–Roque, 671 F.2d at 429. Rule 65(b)(1)(A) therefore does not allow for Petitioners to be ordered released on a temporary restraining order.
C. Soho’s request for a TRO should be dismissed as moot. ICE has released Petitioner Soho. Detainees’ Status Decl. ¶ 25. As a result, his request for a temporary restraining order requiring his release is moot. Ijaoba v. Holder, 2013 WL 1490927, at *1 (N.D. Ala. Mar. 4, 2013). His motion should therefore be denied and his habeas claim dismissed. Nyaga v. Ashcroft, 323 F.3d 906, 913 (11th Cir. 2003). II. Petitioners are not entitled to a temporary restraining order. A. Petitioners have not demonstrated that they will face irreparable
injury absent this Court’s action.
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Petitioners have not demonstrated that they will suffer irreparable injury absent the mandatory injunctive relief they seek. “The injury must be neither remote nor speculative, but actual and imminent.” Ne. Fla. Chapter of the Ass’n of Gen. Contractors of Am. v. City of Jacksonville, 896 F.2d 1283, 1285 (11th Cir. 1990) (internal quotation marks and citation omitted). Merely showing a “possibility” of irreparable harm is insufficient. See Winter, 555 U.S. at 22. “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.
Here, there is no need for further injunctive relief. All but two of the detained Petitioners are members of the certified class in Fraihat and are in the process of litigating their entitlement to release as a part of the compliance litigation in that case. See Fraihat, 2020 WL 1932570. Because Petitioners are not entitled to release as a remedy for their claims, the Fraihat case affords Petitioners the maximum relief available on their claims. The remaining Petitioners—Sergio Quito and Randane Williams—do not have confirmed pre-existing conditions, Detainees’ Status Decl. ¶ 27, and therefore are not at risk of irreparable harm alleged in the Petition.
B. Petitioners are not likely to succeed in showing a substantivedue-process violation based on the government’s purported deliberate indifference to their medical needs.
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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). Certain government conduct that “shocks the conscious” may violate substantive due process. Sacramento v. Lewis, 523 U.S. 833, 853 (1998). Where detention officials have the “luxury” of making unhurried judgments “largely uncomplicated by the pulls of competing obligations,” their “deliberate indifference to inmate welfare” can be “truly shocking” so as to abridge substantive-due-process limitations. Id. To challenge the conditions of confinement, a prisoner must make “an objective showing of a deprivation or injury that is sufficiently serious to constitute a denial of the minimal civilized measure of life’s necessities and a subjective showing that the official had a sufficiently culpable state of mind.” Thomas v. Bryant, 614 F.3d 1288, 1303 (11th Cir. 2010). The plaintiff must show “extreme deprivations” and the deliberate indifference of the defendants. Id. And courts applying the deliberate-indifference standard—which rests on the understanding that “the [government’s] responsibility to attend to the medical needs of prisoners does not ordinarily clash with other equally important governmental responsibilities”—must take due regard for the particular “constraints facing the official.” Wilson v. Seiter, 501 U.S. 294, 302-03 (1991).
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Multiple factors demonstrate that Petitioners have failed to establish any substantive-due-process violations here. ICE has adequately and promptly responded to an unfolding, rapidly changing, public-health emergency. ICE has and continues to dutifully manage its responsibility for detainees’ medical needs in the midst of a pandemic while continuing to manage other important public responsibilities, such as ensuring the continued enforcement of our Nation’s immigration laws within real-world constraints involving existing resources and physical facilities. Even in normal contexts, moreover, neither general allegations of negligence nor a plaintiff’s general disagreement with treatment received is enough to show deliberate indifference. See Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). Rather, that standard can be met “only when the decision by the [medical] professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.” Youngberg v. Romeo, 457 U.S. 307, 323 (1982).
The evidence here defeats any suggestion of deliberate indifference. As explained above, at ECDC, ICE has actively sought to address COVID-19 by implementing CDC guidance to the maximum extent possible. ICE provides personal protective equipment such as masks to each detainee, Facility Response Decl. ¶¶ 16, 20; instructs detainees on hand washing and hygiene, id. ¶ 20; has
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increased the scope and frequency of sanitation procedures, id.; and regularly replenishes cleaning supplies and hand soap for detainees, id. Staff at ECDC continually monitor for COVID-19 symptoms to permit facility staff to act quickly if needed and perform regular welfare checks, id. ¶¶ 15, 15, 18; conduct intake medical screenings for all detainees to detect disabilities, illnesses (including fever and respiratory illness), or other high-risk medical conditions identified in CDC and ICE guidance, id. ¶¶ 12, 14; and quarantine all new and returning detainees for 14 days, as well as anyone showing COVID-19 symptoms, compare Centers for Disease Control, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correction and Detention Facilities, 19 (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidance-correctionaldetention.pdf (CDC Guidelines), with Facility Response Decl. ¶¶ 14, 16. ECDC staff administer temperature checks to personnel entering the facility before they assume their posts. Compare CDC Guidelines 12 with Facility Response Decl. ¶ 23. ICE encourages social distancing in movements, housing, dining, common areas, showering, and throughout the facility, often by reducing occupancy limits in a given area. Facility Response Decl. ¶¶ 20, 22, 25.
Petitioners cannot show that ICE has responded to their medical needs with deliberate indifference, or substantially departed from accepted professional judgment, practice, or standards. Youngberg v. Romeo, 457 U.S. 307, 323 (1982).
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Indeed, such a conclusion is baseless here given the fast-developing pandemic-based challenges that ICE is facing. Given the “constraints facing” ICE at ECDC, Wilson, 501 U.S. at 302, the broader objectives that ICE is charged with furthering at ECDC, id., and the need to make swift judgments in the pandemic context, Lewis, 523 U.S. at 853, ICE has performed soundly and effectively. In these circumstances, ICE’s thorough response plainly cannot be classified as ‘a substantial departure from accepted professional judgment, practice, or standards.’” Youngberg, 457 U.S. at 323.
C. The balance of the harms does not support release. 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) (“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 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). Two of the Petitioners—Tesfa Miller and Edison Flores—are detained under 8 U.S.C. § 1226(c), which mandates detention pending completion of removal
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proceedings. Congress has expressly prohibited release for individuals detained under 8 U.S.C. § 1226(c) as a result of the seriousness of their offenses. Jennings v. Rodriguez, 138 S. Ct. 830, 847 (2018).
The remainder of the Petitioners have final orders of removal. The vast majority of those individuals, also have serious criminal convictions—including convictions for murder, assault, armed robbery, child exploitation, possession of child pornography, and the manufacture and sale of illegal drugs. If Petitioners’ request is granted, numerous individuals who the United States has taken care to detain following their criminal convictions—will be released, and the government’s efforts to protect the public and to remove them will be undermined. See Demore v. Kim, 538 U.S. 510, 518 (2003) (describing mandatory detention as Congress’s solution to “[t]he INS’ near-total inability to remove deportable criminal aliens”).
D. The Court should decline to issue temporary relief as a matter of discretion.
As a practical matter, the temporary restraining order should be denied as an act of discretion. Weinberger v. Romero–Barcelo, 456 U.S. 305, 313 (1982) (“[A] federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of law”). Petitioners face additional risk from their transport and release to places with significantly larger COVID-19 outbreaks than Etowah County. See ECF 1 at 13-18 (requesting release to places including New York, New Jersey, and California). Although Petitioners may believe the short-term
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risk is worthwhile to escape the alleged conditions at ECDC, it makes little sense to order release where there remains a possibility that Petitioners will be returned to custody at the expiration of the temporary restraining order. See Thakker v. Doll, No. 1:20-CV-480, 2020 WL 2025384, at *12 (M.D. Pa. Apr. 27, 2020) (denying motion for preliminary injunction and returning individuals released on temporary restraining order to custody). Thus, the Court should decline to enter any temporary release order and should reserve consideration of release until after a more permanent adjudication of the claims. III. If release is ordered, the release order should be temporally limited and
impose strict limitations. Should the Court order any Petitioner to be released, the United States requests that the Court impose strict limitations. Under Rule 65(b)(2), any temporary restraining order must expire within 14 days. And in the event that a preliminary injunction order is entered, the Court should consider the mailing address of each Petitioner, and require that the injunction expire with the shelter in place order governing that Petitioner’s mailing address provided to ICE upon their release. The United States also requests that, in such an instance, that the Court require the individual to report to ICE within 48 hours of the expiration of that shelter in place order. In addition, Respondents respectfully request that any release order include the following conditions of release:
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1. The released Petitioner is to reside and shelter in place at the address specified in the release order.
2. The Petitioner must obtain approval of the address from his parole officer (if any); and also provide Respondents with the name, date of birth, DHS alien number (if any), and telephone number of the person(s) at the residence who will be responsible for the Petitioner, so that Respondents may conduct their usual vetting process and advise the Court of any objections.
3. The Petitioner shall be transported by a person to be specified in said order from his or her place of detention to the residence where s/he will reside and shelter in place.
4. Pending further order of the Court, the Petitioner shall not leave the residence where he or she will shelter in place, except to obtain medical care, to appear at immigration court proceedings, or to obey any order issued by DHS.
5. The Petitioner shall not violate any federal, state, or local law. 6. If a Petitioner violates the conditions ordered by this Court or DHS, ICE may
re-detain him or her at any time to complete removal proceedings without advance notice to the Court or Petitioner. 7. If a Petitioner’s removal order becomes final and a travel document is obtained, ICE may re-detain him/her to effectuate his removal without advance notice to the Court or petitioner.
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These additional conditions will place a released Petitioner on the same

footing as detainees who obtain discretionary release consistent with Respondents’

statutory and regulatory authority. To the extent any class member is subject to

mandatory statutory detention, any temporary restraining order requiring release

would be based solely on the COVID-19 pandemic. As such, for those individuals,

there is no justification for requiring less supervision and authority over these

individuals than Respondents have over released detainees who demonstrate their

entitlement to release consistent with section 1226(a).

CONCLUSION For the reasons set forth above, the Federal Respondents request that the

motion for a temporary restraining order be denied.

Respectfully Submitted,

JOSEPH HUNT Assistant Attorney General Civil Division

JAY TOWN United States Attorney
/s/ Margaret L. Marshall MARGARET L. MARSHALL JASON R. CHEEK Assistant United States Attorney Northern District of Alabama 1801 Fourth Avenue North Birmingham, Alabama 35203

ERNESTO MOLINA Deputy Director Office of Immigration Litigation Appellate Section
/s/Sarah Wilson SARAH WILSON Senior Litigation Counsel U.S. Department of Justice 1801 Fourth Avenue North Birmingham, Alabama 35203

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Document 11-1

Filed 05/04/20

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FILED

2020 May-04 PM 10:01

U.S. DISTRICT COURT

N.D. OF ALABAMA

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FILED

2020 May-04 PM 10:01

U.S. DISTRICT COURT

N.D. OF ALABAMA

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FILED
2020 May-06 PM 11:59 U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION

ARCHILLA, et al., Petitioners-Plaintiffs, v.
WITTE, et al., Respondents-Defendants.

Case No. 4:20-cv-596-RDP-JHE

REPLY
INTRODUCTION Plaintiff-Petitioners (Petitioners) seek modest relief in light of extraordinary circumstances. These seventeen medically vulnerable Petitioners do not seek any class wide relief nor do they aim to set aside any criminal conviction or to challenge their underlying grounds for removal. As civil immigration detainees, the Fifth Amendment’s Due Process Clause requires that their detention bear a reasonable relationship to a legitimate government interest. And, while Petitioners concede the government has a legitimate interest in preventing flight and ensuring appearances in removal proceedings, Immigration and Custom’s Enforcement’s (ICE) own data show alternatives to detention assure appearances nearly 100% of the time. In light of the potentially lethal danger Petitioners now face and the alternatives to detention, Petitioners’ continued detention during this health crisis has become unreasonable. Reported COVID-19 cases are exploding in ICE detention centers and are necessarily underreported given the near categorical failure to test individuals and facilities in Alabama
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remain particularly vulnerable. The actions that officials of the Etowah County Detention Center
(ECDC) have taken have not been effective in stopping the spread of a this uniquely dangerous
disease. In these unprecedented circumstances, anything short of Petitioners’ release will subject them to irreparable harm. Accordingly, as numerous courts have found,1 this court has authority
via habeas to find a Due Process violation and order their release. Doing so will protect these
seventeen individuals and the public from grave harm.
SUPPLEMENTAL FACTS
I. ICE Detention Centers Have An Alarming And Undercounted Rate of Growth of COVID-19 Cases.
ICE has lost control of the COVID-19 in its detention centers. On April 7, 2020, ICE
reported 19 confirmed cases of COVID-19 among detained people; less than a month later, the number exploded to 705.2 ICE has tested less than five percent of its detained population.3 Of the
over 29,675 immigrants held in ICE detention, only 1,460 ICE detainees nationwide have been tested and nearly half of those tested have tested positive.4 COVID-19 rates are therefore likely to be much more prevalent in ICE detention centers, especially in Alabama.5 Following the
regional and national trend, ICE detention centers under the jurisidciton of the New Orleans
Field Office (which includes Etowah) have an alarming rate of COVID-19 infections, now iwth
1 See, e.g. Dada v. Witte, No. 1:20-CV-00458 at *21 (M.D. La. Apr. 30, 2020) (report and recommendation); Vazquez-Berrera v. Wolf, No. 20-cv-1241, 2020 WL 1904497, at *5 (S.D. Tex. Apr. 17, 2020); Malam v. Adducci, No. 20-10829 (E.D. Mich. Apr. 20, 2020); Coronel v. Decker, No. 1:20-cv-02472-AJN, 2020 U.S. Dist. LEXIS 53954 (S.D.N.Y. Mar. 27, 2020); Calderon Jimenez v. Wolf, No. 18-10225 (MLW), ECF No. 507 (D. Mass. Mar. 26, 2020); Hope v. Doll, No. 1:20-cv-00562-JEJ (M.D. Pa. Apr. 7, 2020); Coreas v. Bounds, No. CV TDC-20-0780, 2020 WL 1663133, at *7 (D. Md. Apr. 3, 2020); Basank. v. Decker, et al., No. 1:20-cv-02518-AT, 2020 U.S. Dist. LEXIS 53191 (S.D.N.Y. Mar. 26, 2020); Hope v. Doll, No. 1:20-cv-5622020, U.S. Dist. LEXIS 63970 (M.D. Pa. Apr. 7, 2020); United States v. Martin, No. 19 Cr. 140-13, 2020 U.S. Dist. LEXIS 46046, at *2 (D. Md. Mar. 17, 2020). 2 ICE COVID-19 Guidance, https://www.ice.gov/coronavirus (last accessed May 6, 2020). 3 Id. 4 Id. 5 Eaton Decl. ¶ 15.
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over one hundred confiremd cases.6 As of May 4, ICE acknowledged one COVID-19 case at Etowah.7
Richwood Correctional Center, which, like ECDC, holds both civil immigration and pretrial criminal detainees, provides a cautionary tale as to the failure of ICE to contain COVID19. There, COVID-19 has already killed two guards as positive cases rose from one to 61 in the span of three weeks.8 Given the hyper-contagious nature of COVID-19 and Respondents’ failures to implement sufficient safeguards at ECDC, an outbreak may have already begun there.
II. Respondents Are Incapable of Containing COVID-19. Respondents have failed to comply with basic CDC guidelines, thereby imperiling
Petitioners: ● Communications Systems: Dr. Homer Venters, a physician, epidemiologist, and former Chief Medical Officer of the New York City jail system with two years experience analyzing medical care in ICE’s detention network, has found that ICE lacks the systems necessary to prevent a COVID-19 outbreak. Ex. 24, Declaration of Dr. Homer Venters ¶¶
6 ICE COVID-19 Guidance, supra n. 2; Huber. Decl. Addendum A. 7 Id. 8 WIFR, 2 guards at ICE jail die after contracting coronavirus (Apr. 29, 2020), https://www.wifr.com/content/news/2-guards-at-ICE-jail-die-after-contracting-coronavirus-570057531.html; There are now 64 confirmed cases at Richwood according to ICE. See ICE COVID-19 Guidance, supra n. 2.
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1-4. For example, ICE’s guidance “creates an unwieldy and unrealistic process for facilities to notify ICE headquarters regarding high risk detainees,” lacks “capacity to provide daily clinical guidance to all of the clinical staff” in light of fast evolving COVID-19 care guidelines, and “fails to establish or mandate a respiratory protection program, a critical guideline of the CDC.” Id. ¶¶ 24, 26, 28. ● Social distancing: ICE’s guidance only requires social distancing “whenever possible,” 9 but a distance of 6 feet from any other people must be maintained at all times. Hassig Decl. ¶ 7; Venters Decl. ¶ 34. Nor do Respondents have any discernible social distancing plan for “showers and bathrooms, medication lines, medical and mental health clinics, hallways, sallyports.” Venters Decl. ¶ 33(e). The CDC recommends that higher-risk individuals “should not be cohorted with other quarantined individuals” and requires that if such cohorting is unavoidable, jailers should make “all possible accommodations to reduce exposure risk for the higher-risk individuals.”10 However, Respondents rely heavily on cohorting as a mitigation strategy, even for asymptomatic detained people who have been in contact with a known COVID-19 case. See ECF No. 11, Resp. at 9. No arrangements have been made to identify and reduce exposure of higher risk individuals like Petitioners. Respondents decided to consolidate over 100 detained people, including all Petitioners, into a single unit. ECF No. 11-1, Declaration of Bryan S. Pitman [“Pitman Facility Decl.”] ¶ 13. While even ICE’s own guidance directs it to reduce density, Respondents have chosen to increase the density as ECDC. Directing detainees to stay 6 feet apart is meaningless if it is impossible to stay 6 feet away from other detained
9 ICE Enforcement and Removal Operations, COVID-19 Pandemic Response Requirements, 13-14 (April 10, 2020), available at https://www.ice.gov/doclib/coronavirus/eroCOVID19responseReqsCleanFacilities.pdf. 10 CDC, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, available at https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidance-correctionaldetention.pdf.
4

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individuals. Hassig Decl. ¶ 11. Additionally, while Respondents attest to measures they have taken to increase social distancing and hygiene within this single ICE unit, they do not provide “any case information on the [non-ICE] inmate population,” even though that population shares a medical unit, hallways, and ECDC staff with Petitioners. Resp. at 11 n.3; Id. ¶ 18. ● Transfers: To limit the spread of COVID-19, the CDC guidance11 provides that all transfers of detained persons should be suspended, and should only occur when “absolutely necessary.”12 Respondents make no representation that they have attempted to limit transfers or new admissions, either for county or for ICE detainees. In fact, Respondents have brought at least 248 new county detainees into ECDC since the CDC promulgated its March 23, 2020 detention facility guidance,13 and continue to admit new ICE detainees. Ex. 25, Supplemental Declaration of Randane Williams ¶ 3; Ex. 26, Supplemental Declaration fo Karim Golding ¶ 3. Respondents purport to deny entry “to any incoming detainee who exhibits a fever and/or respiratory symptoms unless that detainee has tested negative for COVID-19.”14 This is patently untrue. Respondents have transferred visibly ill detainees.15 Inexplicably and in contravention of its own policy, Respondents even chose to bring a COVID-19 positive man into ECDC, repeating the mistake it made at Pine Prairie ICE Processing Center. Pitman Facility Decl. ¶ 18. There, ICE similarly chose to bring a COVID-19 positive man into the detention center, and a
11 Id. 12 Id. 13Etowah County Sheriff's Office, Booked Last 24 Hours, http://etowahcountysheriff.com/mugshots.php (accessed May 5, 2020). 14 Resp. at 9. 15 Kimberly Kindy, Emma Brown and Dalton Bennett, ‘Disaster waiting to happen’: Thousands of inmates released as jails and prisons face coronavirus threat, (March 25, 2020). https://www.washingtonpost.com/national/disasterwaiting-to-happen-thousands-of-inmates-released-as-jails-face-coronavirus-threat/2020/03/24/761c2d84-6b8c-11eab313-df458622c2cc_story.html
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month later, 26 detained people have tested positive.16 Although negative pressure rooms are critical in preventing the airborne spread to neighboring units and staff, Respondents do not purport to house their confirmed COVID-19 positive man in a negative pressure room. Id. ● Hygiene: Per CDC guidelines, hand sanitizer or soap should be available to each detainee before and after meals, toileting, and frequently throughout the day. In reality, conditions for ICE detainees at the Etowah County Detention Center limit access to soap, hand hygiene and require close contact with detainees.17 Further, although the CDC does not recommend using fog-based disinfection because of safety and efficacy issues, Respondents purport to clean Petitioners’ unit with a machine that “distributes a disinfectant solution into the air and on surfaces in order to disinfect common areas.”18 Though the CDC warns against using these fog machines in inhabited spaces, Respondents do not move Petitioners from their unit before fogging.19 Moreover, even if this disinfection method were to work, Respondents fail to describe any cleaning interventions, “which are essential to implement in tandem with disinfection.”20 ● Masks: The CDC also recommends that surgical masks only be used once.21 However, Respondents state only generally that “[d]etainees, inmates, and staff are all provided with a face mask to wear” without specifying that any arrangements have been made to
16 Id. 17 Eaton Decl. ¶16; Williams Suppl. Decl. ¶¶5-6. 18 Eaton Decl. ¶¶ 30-31, R. at 12. 19 Golding Suppl. Decl. ¶ 8. 20 Venters Decl. ¶ 33(d). 21 CDC, Understanding the Difference (surgical masks, N95 FFRs, and Elastomerics) Infographic, available at https://www.cdc.gov/niosh/npptl/pdfs/UnderstandingDifference3-508.pdf
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replace said masks.22 In fact, Petitioners receive only one single-use surgical style mask every 3 weeks.23 ● Testing: Respondents notably do not disclose how many tests have been conducted at
ECDC. The CDC categorizes symptomatic people in “congregate living settings, including prisons” as high risk.24 The White House Coronavirus Task Force has emphasized the need for testing of asymptomatic people in congregated settings.25
However, in lieu of expanding testing capabilities, Respondents “increased medical
screenings in the form of daily vital sign checks of all detainees in order to further mitigate the spread of the virus.”26 This measure does little to mitigate the impact and
reach of COVID-19 because “as many as 30 to 50 percent of individuals with COVID-
19 will have no signs or symptoms of disease despite being infectious (e.g. asymptomatic shedding).”27 Further, this approach is likely to miss staff as they bring in and transmit the virus while asymptomatic.28 Despite the known risks, Respondents mention no plans for widespread testing and contact tracing necessary to control a COVID-19 outbreak.29
Under these circumstances, COVID-19 cases may not be detected until there is already a
full-blown outbreak.
II. Petitioners Are Longtime Residents with Extensive Family and Community Ties in the U.S. and Safe Places to Shelter and Self-Isolate Upon Release.
22 Resp. at 13. 23 Golding Suppl. Decl. ¶ 7; Williams Suppl. Decl. ¶ 7. 24 CDC, Evaluating and Testing Persons for Coronavirus Disease 2019 (COVID-19), available at https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-criteria.html. 25 The White House, Remarks by President Trump, Vice President Pence, and Members of the Coronavirus Task Force in Press Briefing (Apr. 27, 2020), available at https://www.whitehouse.gov/briefings-statements/remarkspresident-trump-vice-president-pence-members-coronavirus-task-force-press-briefing-33/ 26 Resp. at 11. 27 Eaton Decl. ¶ 33. 28 Venters Decl. ¶ 14(A). 29 Id.
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All seventeen Petitioners who remain in detention have deep roots and extensive family
and community ties in the United States. All but one has lived in the U.S. for well over a decade
(the remaining Petitioner, Ms. Mbendeke, has resided in the U.S. for eight and a half years). Many have lived here since they were minor children30 or young adults.31 All Petitioners have
close family members—including spouses, parents, grandparents, and children—who are U.S.
citizens or lawful permanent residents (LPRs). Most Petitioners are represented by immigration counsel on a pending petition for review32 or in agency proceedings on remand.33 Every
Petitioner has a safe place to self-isolate for at least fourteen days if they are released, and to
comply with applicable local orders and public health guidelines thereafter.
Below is a summary of each Petitioner’s length of residence and family ties in the United
States. Unless specifically noted, this information is not disputed by Respondents:
• Sarail Michael Archilla was brought to the U.S. from Canada by his mother in or around 1981, when he was about five or six years old. Archilla Decl. ¶ 9.34 He has two U.S. citizen children, a U.S. citizen girlfriend, and various family members with lawful status in the U.S. Id. ¶¶13, 14.
• Maxime P. Blanc has resided in the U.S. since 1994. Blanc Decl. ¶ 10.35 He later became an LPR. Id. He is represented by counsel in his removal case before the Eleventh Circuit Court of Appeals. Id. ¶ 10. The immigration judge in his case concluded that he has “extensive family ties in the United States, consisting of siblings, cousins, nieces and nephews, and godchildren.” Id. ¶ 14.
• Geovanny Gerardo Castellano has resided in the U.S. since 1979. Castellano Decl. ¶ 9. He has various U.S. citizen and LPR family members in California. Id. ¶ 14.
30 See Archilla Decl. ¶ 9, Garcia Rivera Decl. ¶¶ 1, 7, Golding Decl. ¶ 6, Miller Decl. ¶ 8, Olano Decl. ¶ 8, Webster Decl. ¶ 8, Williams Decl. ¶ 9. 31 See Blanc Decl. ¶ 10, Castellano Decl. ¶ 9, Castro Decl. ¶ 11, Flores Decl. ¶ 9, Quito Decl. ¶ 9. 32 See Blanc Decl. ¶ 10, Golding Decl. ¶ 8, Mbendeke Decl. ¶ 5 (sealed document), Williams Decl. ¶ 10. 33 See Flores Decl. ¶ 12. Additionally, undersigned counsel is currently assisting Mr. Garcia Rivera to identify legal counsel to investigate his claim of U.S. citizenship. 34 ICE claims that Mr. Archilla “is believed to be from Jamaica.” Pitman Detainees Decl. ¶ 13. 35 Respondents incorrectly state that Mr. Blanc is a citizen of the Dominican Republic. Resp. at 24. He is a native and citizen of Dominica. Blanc Decl. ¶ 1.
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• Antonio Melquezideth Castro entered U.S. on a visa in 2000 and later adjusted to LPR status. Castro Decl. ¶ 11. He has three young U.S. citizen children and an LPR cousin who is willing to host him if he is released. Id. ¶¶ 15-16.
• Edson Flores has resided in the U.S. since 1991. Flores Decl. ¶ 9. The Second Circuit recently granted his petition for review and remanded his case to the BIA, and his pro bono counsel has agreed to continue representing him in agency proceedings. Id. ¶ 12. He has various U.S. citizen family members, including his mother. Id. ¶ 17.
• Ray Fuller entered the U.S. on a spousal visa in 1999 and later adjusted to LPR status. Fuller Decl. ¶ 9. His three children and two sisters are U.S. citizens. Id. ¶ 13.
• Jose Antonio Garcia Rivera is a U.S. citizen by birth. Garcia Rivera Decl. ¶ 1.36 He has resided in the U.S. since he was a teenager. Id. ¶ 7. He has a U.S. citizen partner and son. Id. ¶ 10.
• Karim Tahir Golding has resided in the U.S, since 1994, when he was nine years old. Golding Decl. ¶ 6. He is represented by counsel in his removal case before the Second Circuit Court of Appeals. Id. ¶ 8. His mother is a U.S. citizen. Id. ¶ 12.
• Alex Hernandez has resided in the U.S. for over three decades. ECF No. 11-2, Declaration of Bryan S. Pitman [hereinafter “Pitman Detainees Decl.”] ¶ 10. He is represented by counsel in his removal case before the Ninth Circuit Court of Appeals.
• Bakhodir Madjitov has resided in the U.S. since 2006. Pitman Decl., ECF No. 11-2, ¶ 17. His wife and three children are U.S. citizens. See Madjitov Decl. ¶¶ 30-31. He is represented by counsel in his removal case before the Eleventh Circuit Court of Appeals, and in legal proceedings related to his injury during ICE’s attempt to unlawfully deport him. He has no criminal convictions.
• Kenneth Manning has resided in the U.S. since 1985. Manning Decl. ¶ 7. The Second Circuit recently granted his petition for review and remanded his case to the BIA for further review of his claim that he will be tortured if deported to Jamaica because of his cooperation with U.S. law enforcement authorities investigating gang activity in that country. Id. ¶ 9.
• Landry (Emily) Mbendeke has resided in the U.S. since 2011. Pitman Detainees Decl. ¶ 24. She has immediate family members with lawful status. Mbendeke Decl. ¶ 16 (sealed document). She is represented by counsel in her removal case before the Second Circuit Court of Appeals. Id. ¶ 5; Pitman Detainees Decl. ¶ 24.
36 ICE disputes Mr. Garcia Rivera’s identity and biographical information, claiming that his name is Domingo Castillo and that he is a citizen of the Dominican Republic. See Garcia Rivera Decl. ¶ 3; Pitman Detainees Decl. ¶ 21. According to ICE, he entered the U.S. at an unknown date and time. Pitman Detainees Decl. ¶ 21.
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• Tesfa Miller has resided in the U.S. since 1990, when he was about eight years old. Miller Decl. ¶ 8. He obtained LPR status through his mother. Id. He has various U.S. citizen family members, including his mother, grandmother, and daughter. Id. ¶ 15.
• Allen Roger Olano Esparza has resided in the U.S. since 1997, when he was 14 years old. Olano Decl. ¶ 8. He later adjusted to LPR status. Id. His mother and three-year-old daughter are U.S. citizens. Id. ¶ 13.
• Sergio Quito has resided in the U.S. since 1994. Quito Decl. ¶ 9. His daughter and most of his wife’s family are U.S. citizens. Id. ¶ 13.
• Churvin Webster has resided in the U.S. since the 1960s, when he was a small child. Webster Decl. ¶ 8. He obtained LPR status in the 1970s. Id. He has two U.S. citizen sisters and extensive employment, family, and community ties in New Jersey. Id. ¶ 12.
• Randane Williams has resided in the U.S. since 2004, when he was fourteen years old. Williams Decl. ¶ 9. He was granted LPR status as a special immigrant juvenile. Id. He is represented by counsel in his removal case before the Ninth Circuit Court of Appeals. Id. ¶ 10. He has aunts, nephews, niece and cousins who are U.S. citizens and two LPR brothers. Id. ¶ 13.
Publically available data from DHS and the Department of Justice demonstrate that the
overall appearance rate for non-detained individuals in removal proceedings in the U.S. is
approximately 80 percent. See Ex. 27, Declaration of Aaron Reichlin-Melnick ¶ 10. That rate
increases to 88 percent for individuals who have been in the U.S. for over one year, and over 91
percent for individuals—like nearly all Petitioners—who have resided in this country for over
ten years. Id. ¶ 18. Appearance rates for individuals represented by immigration counsel nears
100 percent. Id. ¶ 11. And previously detained individuals released from ICE custody are even
more likely to appear than individuals who have never been detained. Id. ¶ 17.
ARGUMENT
I. THE COURT HAS JURISDICTION OVER THE HABEAS CLAIMS BECAUSE THE ONLY REMEDY SOUGHT IS RELEASE, AND IT INDEPENDENTLY HAS JURISDICTION AND AUTHORITY TO ORDER RELEASE UNDER RULE 65.
Contrary to Respondents’ narrow characterization, Petitioners do not bring their § 2241
habeas claims in order to challenge their conditions of confinement. As an emerging consensus
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of courts confronting similar arguments have held, because the facts and expert testimony show that the only viable remedy for the unconstitutional conditions is release from detention, their claims sit at the core of habeas. And, habeas is a broad, flexible remedy that fully authorizes release. The court independently has federal question jurisdiction pursuant to 42 U.S.C. § 1331 to consider their constitutional claims and to issue a TRO ordering release pursuant to Rule 65 and the court’s inherent equitable authority.
A. Because Plaintiffs Seek Release, Not Alterations of Conditions, Their Claims are at the Core of Habeas.
Respondents correctly note that courts have distinguished between claims brought in habeas that challenge the “fact or duration” of detention and claims brought in habeas that seek to alter unlawful “conditions of confinement,” and correctly observe that the Supreme Court has left open the question of whether habeas provides courts the authority to bring “conditions of confinement” claims. See Resp. Br. at 38. They note that there is a circuit split on the question of whether conditions claims can be brought in habeas, compare, e.g. Aamer v. Obama, 742 F.3d 1023, 1031-38 (D.C. Cir. 2014) (permitting habeas claim challenging allegedly unconstitutional force feeding of prisoners) with Graham v. Broglin, 922 F.2d 379, 381 (7th Cir.1991) (habeas not available to challenge prison’s rules regarding work permission), and posit that the Eleventh Circuit should be counted among the Circuits who would deny conditions claims brought via habeas. But this theoretical question is irrelevant to resolving this case.
Here, contrary to Defendants’ formulaic conception, Plaintiffs do not seek judicial intervention in order to improve their conditions of confinement of the sort of attempted by habeas petitioners in the cases Defendants rely upon, see Resp. Br. 38-39,37 nor could they bring

37

The cases Defendants rely upon that foreclose habeas seek remediation of inadequate conditions; they do

not seek release because of irremediable conditions, as do Plaintiffs. See Gomez v. United States, 899 F.2d 1124,

1125 (11th Cir. 1990) (rejecting habeas where petitioner challenged the “medical treatment” during the course of

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such a civil rights claim. The conditions are what compels release. As the Southern District of Texas stressed in granting a similar TRO under § 2241, “The mere fact that Plaintiffs’ constitutional challenge requires discussion of conditions in immigration detention does not necessarily bar such a challenge in a habeas petition.” Vazquez Barrera v. Wolf, No. 20-cv-1241, 2020 WL 1904497, at *4 (S.D. Tex. Apr. 17, 2020). Indeed, the very premise of the habeas petition – supported by uncontroverted record evidence – is that the conditions producing irreparable harm in these circumstances cannot be remediated by any judicial order, which therefore renders the fact of their continued detention unlawful under due process. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (“a determination that [the petitioner] is entitled to immediate [ ] or a speedier release” is proper habeas claim); see also Dada v. Witte, No. 1:20CV-0458, Dkt. 17 at *9 (W.D. La. Apr. 30, 2020) (Report and Recommendation) (explaining that “the remedy for conditions claims is generally corrective. The remedy for fact claims, however, generally terminates the detention altogether, or alters it such that a new form of custody or control is imposed” and recommending release of 13 petitioners under § 2241); Vazquez Barrera, 2020 WL 1904497, at *4 (“Because Plaintiff’s are challenging the fact of their detention as unconstitutional and seek relief in the form of immediate release, their claims fall squarely in the realm of habeas corpus”).
Respondents’ reliance on A.S.M. v. Donahue, No. 7:20-CV-62 (CDL), 2020 WL 1847158, at *1 (M.D. Ga. Apr. 10, 2020) is curious, as the court there “agrees that the general principle eschewing habeas relief as a means for remedying condition of confinement constitutional violations rests upon the assumption that eliminating the contested confinement
detention.); Vaz v. Skinner, 634 Fed. Appx. 778, 781 (11th Cir. 2015) (rejecting habeas petition seeking better medical treatment.); Cook v. Baker, 139 Fed. Appx. 167, 169 (11th Cir. 2005) (dismissing § 1983 action as frivolous because habeas corpus was the exclusive remedy for petitioner's claim challenging the propriety of his conviction.); Daker v. Warden, No. 18-13800, 2020 WL 751817, at *2 (11th Cir. Feb. 14, 2020) (rejecting habeas petition seeking adequate food and medical care.)
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conditions is possible without releasing the detainee from detention,” and thus accepted the possibility of COVID-19 release claims in habeas, even as it concluded the factually weaker record in that case did not demonstrate release was necessary. Otherwise, Defendants rest their argument almost entirely on one case, Toure v. Hott, No. 1:20-cv-395, 2020 WL 2092639, *6 (E.D. Va. Apr. 29, 2020). The case is contrary to another holding in the same circuit, see Coreas v. Bounds, No. CV TDC-20-0780, 2020 WL 1663133, at *7 (D. Md. Apr. 3, 2020) (“First, and most fundamentally, although the grounds on which they seek release relate to their conditions of confinement, Petitioners seek complete release from confinement, which is ‘the heart of habeas corpus.’”) and runs contrary to an emerging consensus that recognizes such claims sound in habeas.38
Defendants argue that accepting this principle would permit litigants to pull the wool over a judge’s eyes because, “virtually all claims would be cognizable under section 2241 so long as the petitioner includes a prayer for release.” Resp. Br. 37. But habeas is not so manipulable. No judge would accept a habeas claim to seek, say, more recreation or halal meals, as a “fact of detention” claim simply because a petitioner demanded release from such inadequate conditions. The A.S.M. case upon which Defendants rely proves the point: the court recognized that habeas claims could be brought where conditions were so bad that release was

38

See Vazquez Barrera, 2020 WL 1904497, at *8; Essien v. Barr, No. 20-CV-1034-WJM, 2020 WL

1974761, at *3 (D. Colo. Apr. 24, 2020) (“In theory, these causes of action are oil and water: a habeas claim may

lead to an order releasing the prisoner or detainee or nothing at all; whereas a conditions-of- confinement claimant

may only lead to an order requiring the government to improve the conditions of confinement, but not an order

releasing the prisoner or detainee.”); Mays v. Dart, No. 20 C 2134, 2020 WL 1812381, at *6 (N.D. Ill. Apr. 9, 2020)

(“The plaintiffs' claims, as they have framed them, do bear on the duration of their confinement (they contend,

ultimately, that they cannot be held in the Jail consistent with the Constitution's requirements), and they are not the

sort of claims that are, or can be, appropriately addressed via a claim for damages.”); Malam v. Adducci, No. 20-

10829, 2020 WL 1672662, at *3 (E.D. Mich. Apr. 5, 2020), as amended (Apr. 6, 2020) (“Supreme Court and Sixth

Circuit precedent support the conclusion that where a petitioner claims no set of conditions would be sufficient to

protect her constitutional rights, her claim should be construed as challenging the fact, not conditions, of her

confinement and is therefore cognizable in habeas.”); Sheikh v. Gillis, No. 5:19-cv-134 Dkt 19 at 4 (S. D. Miss. Apr.

29, 2020) (Report and Recommendation); Wilson v. Williams, No. 20 cv 794, Dkt. 22 at 10-11 (N.D. Ohio Apr. 22,

2020); Basank v. Decker, No. 20 CIV. 2518, 2020 WL 1481503, at *6 (S.D.N.Y. Mar. 26, 2020).

13

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the required remedy, but found as a matter of fact the limited evidence in the case did not make that showing. 2020 WL 1847158, at *1. Here the overwhelming evidence, from Plaintiffs, from multiple experts, and from Defendants themselves, shows that the only remedy to cure these distinct and unprecedented circumstances is release.39
B. Both Habeas and the Federal Courts Inherent Equitable Authority Fully Authorize the Requested Relief. 1. § 2241 Authorizes Release
“Habeas is at its core a remedy for unlawful executive detention.” Munaf v. Geren, 553 U.S. 674, 693 (2008). It invests in federal courts broad, equitable authority to “dispose of the matter as law and justice require,” 28 U.S.C. § 2243, as the “very nature of the writ demands that it be administered with… initiative and flexibility.” Harris v. Nelson, 394 U.S. 286, 291 (1969); see Boumediene v. Bush, 553 U.S. 723, 780 (2008) (“Habeas is not ‘a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose.’”) (quoting Jones v. Cunningham, 371 U.S. 236, 243 (1963)).
A court is fully empowered to remediate the particular illegality here – an outbreak of lethal and unavoidable virus that threatens petitioners and violates their constitutional rights to be free from arbitrary and punitive detention – by ordering their release. Habeas corpus is, “above all, an adaptable remedy,” Boumediene, 553 U.S. at 780, and federal courts retain “broad discretion in conditioning a judgment granting habeas relief . . . ‘as law and justice require’.” Hilton v. Braunskill, 481 U.S. 770, 775 (1987) (quoting 28 U.S.C. § 2243). That authority

39

The fact that there is a parallel class action, Fraihat v. ICE, 5:19-cv-01546-JGB-SHK (C.D. Cal.), which

requires ICE to make custody redeterminations for individuals, including petitioners in no way forecloses the relief

this Court should provide. Petitioners’ independent habeas claims need be considered independently based on the

particular exigencies of these cases. Critically, despite undertaking a review of Petitioners’ they are choosing to

detain all but Petitioner Soho, Resp. Br. 16. This demonstrates that the Fraihat injunction cannot remedy the

ongoing constitutional violations before the Court in this case. Absent court intervention, these Petitioners face

irreparable, even life-threatening, harm.

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includes an order of release, Boumediene, 553 U.S. at 779, so as “to insure that miscarriages of justice within [the writ’s] reach are surfaced and corrected.” Harris, 394 U.S. at 291.40
2. Rule 65 and the Court’s Inherent Equitable Authority Authorize Release The Court has subject matter jurisdiction under 28 U.S.C. § 1331, and federal courts have enjoyed equitable authority for over a century to fashion injunctive relief to remediate unconstitutional governmental action. See Ex Parte Young, 209 U.S. 123 (1908). That authority includes – independent of habeas – issuing “orders placing limits on a prison’s population” to remediate unconstitutional conditions. Brown v. Plata, 563 U.S. 493, 511 (2011); see also Duran v. Elrod, 713 F.2d 292, 297- 98 (7th Cir. 1983), cert. denied, 465 U.S. 1108 (1984) (affirming order releasing low-bond pretrial detainees as necessary to reach a population cap); Mobile Cty. Jail Inmates v. Purvis, 581 F. Supp. 222, 224-25 (S.D. Ala. 1984) (exercising remedial powers to order a prison’s population reduced to alleviate unconstitutional conditions.) Defendants assert that a TRO is only permitted where a plaintiff seeks to preserve the status quo, but that here “release would change the status quo.” Resp. Br. 42. This is incorrect for two reasons. First, even if, as Defendants assume, the proper baseline status quo to examine is Petitioners’ detention ICE custody, release from physical detention does not necessarily change that status quo. See Rumsfeld v. Padilla, 542 U.S. 426, 437 (2004) (“[O]ur understanding of custody has broadened to include restraints short of physical confinement”); Duran v. Reno, 193 F.3d 82, 84 (2d Cir. 1999) (holding that custody for habeas corpus purposes is not limited to actual, physical confinement). Even if released, and especially if placed on supervisory release, Petitioners are still under ICE’s supervision and obligated to attend removal proceedings. More fundamentally, however, Defendants miss the pressing status quo that must be preserved:

40

Contrary to Defendants’ unexplained assertion, Petitioners are presently being held “in custody in violation

of the Constitution or laws or treaties of the United States,” 28 U.S.C. §2241, and so seek an order now – not based

on a future contingency – ordering release.

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Petitioners’ health and safety. Petitioners seek a TRO in order to ensure they do not fall ill, or die. As detailed below, preserving that status quo is of the highest order in the TRO calculus. II. PETITIONERS ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR
CLAIM THAT THE CONTINUED DETENTION OF MEDICALLY VULNERABLE INDIVIDUALS WHERE THERE ARE READILY AVAILABLE ALTERNATIVES TO DETENTION VIOLATES DUE PROCESS.
Respondents are entirely unclear as to what standard this court should apply when examining Petitioners’– individuals in civil detention – Fifth Amendment claims; they refer only cursorily to the governing reasonable relationship test articulated in Bell v. Wolfish, 441 U.S. 520, 561 (1979), and then conflate the deliberate indifference standard with the professional judgment standard. Defs’ Br. at 3, 45. To be clear: Eleventh Circuit and Supreme Court precedent require, first and foremost, that civil confinement must be “reasonably related to a legitimate governmental objective,” and if the confinement is “excessive” in relation to that purpose then it constitutes impermissible punishment. Bell, 441 U.S. at 561; Jacoby v. Baldwin Cty., 835 F.3d 1338, 1345 (11th Cir. 2016); Magluta v. Samples, 375 F.3d 1269, 1273 (11th Cir. 2004).
It is unquestionably excessive to continue detaining Petitioners at a facility with known COVID-19 infection when Respondents have plenty of alternative methods to effectuate their articulated governmental objective. Respondents miss the mark in arguing that, generally, the government has an interest in detaining individuals so as to effectuate removal. Resp. Br. at 3. That may be true in the ordinary course. However, these are not ordinary circumstances. See Alcantara v. Archambeault, No. 1:20-cv-756 (DMS), at *16 (C.D. Cal. May 1, 2020) (“Although ‘under normal circumstances’ the confinement of ICE detainees pending removal proceedings is rationally related to the legitimate governmental interest of ensuring their appearance for their deportation proceedings and preventing danger to the community, the current circumstances [in
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ICE detention facility with rapid increase of spread of COVID-19 cases]… are anything but normal.”) (citations omitted). Any reason for detention must be forward-looking in order to support a continuing, legitimate purpose and must be based on an individual’s particular circumstances. Foucha v. Louisiana, 504 U.S. 71 (1992). While the government may possess a general legitimate interest in detaining some individuals in removal proceedings and pending removal, that interest dissipates where, as here, continuing detention puts those individuals’ lives at imminent risk.
Thus, the relevant inquiry here is whether it is excessive to continue to detain these medically vulnerable Petitioners in a facility where an unprecedented viral infection with no known treatment is present, and where it is impossible for Petitioners to protect themselves from the risk of death or serious bodily harm. See Vazquez Barrera, 2020 WL 1904497, at *6 (“[r]equiring medically vulnerable individuals to remain in a detention facility where they cannot properly protect themselves from transmission of a highly contagious virus with no known cure is not rationally related to a legitimate government objective...”); Dada, No. 1:20-CV-00458 at *21 (immigrant plaintiffs are likely to succeed in showing that detention during COVID-19 does not reasonably relate to a legitimate governmental objective); Hope v. Doll, No. 1:20-cv-00562JEJ (M.D. Pa. Apr. 7, 2020) (continued detention of immigrant plaintiffs during COVID-19 not reasonably related to governmental objective).
Continued detention is especially excessive because Respondents have alternative methods of ensuring that Plaintiffs attend their check-ins or removal hearings after release, and the chances of Petitioners absconding, particularly given COVID-19-related travel restrictions, are virtually nonexistent. A study of ICE data reveals that non-detained immigrants overall appear at immigration court more than 80% of the time; those released from detention appear at
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higher rates than those who were never detained; those who are represented by attorneys, as the Petitioners have been, appear at every scheduled immigration hearing at a rate of 97%; and longtime residents, like all Petitioners, have overall higher rates of appearance. See Declaration of Aaron Reichlin-Melnick, Reply Exhibit 3, ¶¶ 6, 17. Moreover, the appearance rate for individuals, like all Petitioners, who have put down roots and have resided in the U.S. for over a year is at 84% and the appearance rate for those who have been here for ten years or more reaches 91%. Id. ¶18. As Judge Ellison stressed in Vazquez Barrera, “ICE has many other means besides physical detention to monitor noncitizens and ensure that they are present at removal proceedings and at time of removal,” including routine check ins. 2020 WL 1904497 at *6. Given the availability of alternatives to detention, requiring Plaintiffs to remain in a detention facility with COVID-19 infection present is unquestionably excessive.41
In addition to detaining Petitioners under punitive conditions, Respondents’ choice to not release them from a facility where COVID-19 infection is present demonstrates deliberate indifference to a substantial risk of harm to Petitioners, which is also prohibited under the Fifth Amendment. Hamm v. DeKalb County, 774 F.2d 1567, 1574 (11th Cir. 1985). The risks from COVID-19 are open and notorious, producing guidance from the CDC, nearly nationwide lockdowns, and daily, front-page news. Respondents undoubtedly know that this highly infectious disease spreads rapidly, and in congregative settings such as ECDC, it is simply impossible to implement the measures required to stop its spread. Eaton Decl. ¶ 29. Release is the only constitutional measure to address the risk faced by Petitioners. What measures Respondents claim to have adopted (ECF 11-1), are patently ineffective or entirely lacking, as described supra. See also Venters Decl. ¶¶ 14-29 (detailing insufficiency of nationwide
41 To state the obvious, Defendants can ensure that Plaintiffs are present at removal proceedings and at removal only if Plaintiffs are able to protect themselves from serious illness or death from COVID-19.
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responses of ICE); id. ¶¶ 30-35 (detailing severe insufficiency of measures taken at ECDC specifically). Moreover, contrary to Respondents’ assertions, Petitioners uniformly report unsanitary conditions, inadequate access to cleaning and protective supplies, continued transfers of new detainees into the facility, and lack of medical responsiveness to individuals with symptoms consistent with COVID-19. Compare ECF. No. 11-1 with ECF 2-1 at 8-9, Golding Supp. Decl. ¶¶ 4, 7, 8; Williams Supp. Decl. ¶¶5, 6, 7, 8, 10; Venters Decl. ¶34.
Given the dozens of courts nationwide that have ordered the release of individuals from ICE detention, and ICE’s own review and release of some individuals, it is clear that Respondents are fully aware of the substantial risks of continued detention and the benefits of release. By continuing to detain Petitioners despite this knowledge, Respondents demonstrate deliberate indifference. See Malam v. Adducci, No. 20-10829, 2020 WL 1899570, at *6 (E.D. Mich. Apr. 17, 2020) (“the public health evidence before the Court shows that, even given current precautionary measures, the risk is substantial and unreasonable. Additionally, Respondent… has additional precautionary measures at her disposal: the release of Petitioner... Accordingly, any response short of authorizing release from [immigration detention] for this Petitioner, whose underlying health conditions expose her to a high risk of an adverse outcome if infected by COVID-19, demonstrates deliberate indifference to a substantial risk.”); Gayle v. Meade, No. 20-21553-CIV, 2020 WL 2086482, at *4 (S.D. Fla. Apr. 30, 2020) (S. D. Fla. Apr. 30, 2030) (adopting report and recommendation) (“it is clear that ICE fully understands the benefit of reducing the detainee population. Thus, to the extent that ICE fails to commit to addressing the conditions complained of, ICE has demonstrated deliberate indifference.”); Helling v. McKinney, 509 U.S. 25, 33 (1993) (government acts with deliberate indifference when
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it “ignore[s] a condition of confinement that is sure or very likely to cause serious illness and needless suffering”).
Indeed, ICE chooses to ignore known risks in its detention facilities, in order to, as ICE Director Albence recently admitted, prove that ICE is “enforcing our immigration laws.”42 That ICE would prioritize public relations over the known health risks of a vulnerable population is the height of deliberate indifference and arbitrary detention.
Respondents fail even under the professional judgment standard articulated in Youngberg v. Romeo, which Respondents cite to: they continue to detain Petitioners under circumstances where it is impossible to practice social distancing and ensure adequate hygiene, contrary to the basic, widely accepted public health standards that are imperative to protect from infection. 457 U.S. 307, 323 (1982) (liability may be imposed on government “when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.”); see also In re Kumar, 402 F. Supp. 3d 377, 384 (W.D. Tex. 2019) (applying professional judgment standard to claims brought by an individual in immigration detention). III. ABSENT AN INJUNCTION PETITIONERS WILL SUFFER IRREPARABLE
HARM, AND THE PUBLIC INTEREST IN PUBLIC HEALTH AND BALANCE OF EQUITIES FAVOR RELEASE The Eleventh Circuit requires only a “substantial likelihood” of irreparable injury. Siegel v. LePore, 234 F.3d 1163, 1179 (11th Cir. 2000). Aside from the harm Petitioners demonstrate through a showing that Respondents have violated their constitutional rights, Cunningham v.

42

Press Release, U.S. House of Representatives Committee on Oversight and Reform, DHS Officials Refuse

to Release Asylum Seekers and Other Non-Violent Detainees Despite Spread of Coronavirus (April 17, 2020),

https://oversight.house.gov/news/press-releases/dhs-officials-refuse-to-release-asylum-seekers-and-other-non-

violent-detainees.

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Adams, 808 F.2d 815, 822 (11th Cir. 1987), the imminent risk to Petitioners’ health and their lives suffices to establish irreparable harm.
A court “need not await a tragic event” to afford injunctive relief. Helling v. McKinney, 509 U.S. 25, 33 (1993) (noting, “It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them.). Thakker, et. al. v. Doll, et. al., No 1:20-cv-00480-JEJ *6 (M.D. Pa. Mar. 31, 2020) (plaintiffs need not wait “until the pandemic erupts in our prisons.”); Chambers v. Coventry Health Care of Louisiana, Inc., 318 F. Supp. 2d 382, 389 (E.D. La. 2004) (irreparable harm found where late detection of cancer could lead to death). The totality of the evidence reveals that Petitioners’ continued detention places them at risk of significant and imminent injury—if not death, lasting and severe medical complications. See ECF. Doc. 2-20 ¶ 38. Although Respondents aver that Etowah only has one case of COVID-19, ECF Doc. 11-1 ¶ 18(a), it is impossible to obtain a realistic number because of chronic government undertesting—as of May 6, 2020, ICE had tested only 1,460 people out of the over 30,000 it detains.43 Far from the rigorous testing and contact tracing that has allowed other nations to halt the spread of the virus,44 the most Respondents can muster are “daily vitals and weight checks.” ECF 11-1 ¶ 18(a). Similar palliative deficiencies abound throughout Etowah, Venters Decl. ¶¶ 30-35, and this unfortunate reality is exacerbated by Respondents’ own admission that individuals are still being transferred into the facility, jeopardizing the health of all those within. ECF 11-1 ¶ 24-26.
43 ICE Guidance on COVID-19, Confirmed Cases (last visited May 6, 2020), https://www.ice.gov/coronavirus; Golding Supp. Decl. ¶¶ 3, 5. 44 Max S. Kim, Seoul’s Radical Experiment in Digital Contact Tracing, The New Yorker (Apr. 17, 2020) (last accessed May 5, 2020, 05:24 p.m), https://www.newyorker.com/news/news-desk/seouls-radical-experiment-indigital-contact-tracing
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As described above, at least 248 new county detainees have been transferred into ECDC since the CDC promulgated its March 23, 2020 detention facility guidance.45
Respondents’ argument that some Petitioners are members of the Fraihat class and thus cannot suffer irreparable harm should not persuade this Court. As an initial matter, even if Respondents had provided those Petitioners individualized custody determinations pursuant to the Fraihat order, that still would not afford them the “the maximum relief available on their claims,” ECF Doc. 11 p. 43, because outright release is still possible. See ECF Doc. 2-1 n.35 (citing cases). While Respondents’ brief seems to imply that custody reviews were done pursuant to Fraihat the Pittman declaration only states that ICE conducted an initial search to determine who may be eligible for a Fraihat review. See ECF Doc. 11-2 ¶ 27.46 Setting aside this sleight of hand, even though Fraihat was ordered on April 20, over two-and-a-half weeks ago, only one Petitioner has been released pursuant to any form of ICE review.
In any event, ICE cannot simultaneously argue that its discretionary custody determination is an adequate substitute to a court-ordered release and yet deny relief in nearly every case. This Court still has a role. See Zepeda Rivas v. Jennings, No. 20-cv-02731-VC, 2020 WL 2059848, at *4 (N.D. Cal. Apr. 29, 2020) (“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.”).
An injunction is also in the public interest and the balance of the equities tips in Petitioners’ favor. Respondents’ asserted interest in enforcing U.S. immigration law is an
45 Etowah County Sheriff's Office, Booked Last 24 Hours (accessed May 5, 2020), available at http://etowahcountysheriff.com/mugshots.php 46 Respondents deny that Sergio Quito and Randane Williams are Fraihat class members, but given their comorbidities, they too are at immediate risk of irreparable harm in any event. See Eaton Decl. ¶¶ 38(o), (r).
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insufficient counterweight to the grave public health consequences that continued detention presents. First, Respondents routinely release scores of immigrants—even those with criminal convictions detained under 236(c)—a practice that has not yet brought the system to its knees.47 Both ICE and this Court have authority to order release of individuals detained pursuant to 236(c). See, e.g., Cabral v. Decker, 331 F. Supp. 3d 255, 259 (S.D.N.Y. 2018) (collecting cases). Second, “ICE has a number of alternative tools available to it to ensure enforcement, which it is free to use with Petitioners” including “ICE’s conditional supervision program.” Vazquez Barrera, 2020 WL 1904497 at *7. This alternative supervision program is highly effective, with a 99% attendance rate at all immigration court hearings and a 95% attendance rate at final hearings among supervised individuals.48 Respondents are not bound to detain Petitioners—especially not during a global pandemic—and any assertions to the contrary should be ignored.
Defendants predictable assertion that Petitioners are not entitled to release to avoid potentially lethal illness because of prior criminal convictions is contrary to law. See, e.g., United States v. Muniz, Case No. 4:09-cr-199, Dkt. No. 578 (S.D. Tex. Mar. 30, 2020) (releasing defendant serving 188-month sentence for drug conspiracy in light of vulnerability to COVID19); United States v. Grobman, No. 18-cr- 20989, Dkt. No. 397 (S.D. Fla. Mar. 29, 2020) (releasing defendant convicted after trial of fraud scheme in light of “extraordinary situation of a medically-compromised detained person being housed at a detention center”); United States v. Meekins, Case No. 1:18-cr- 222-APM, Dkt. No. 75 (D.D.C. Mar. 31, 2020) (post-plea, pre-
47 See, e.g, Detainees Leaving ICE Detention from the El Paso Service Processing Center, TRAC https://trac.syr.edu/immigration/detention/201509/EPC/exit/ (“ICE also has discretionary authority to "parole" individuals . . . with serious medical conditions . . . and individuals whose parole is considered by ICE in the ‘public interest.’”); see 8 U.S.C. § 1182(d)(5)(A). 48 U.S. Gov’t Accountability Office, GAO-15-26, Alternatives to Detention: Improved Data Collection and Analyses Needed to Better Assess Program Effectiveness 30 (Nov. 2014), https://www.gao.gov/assets/670/666911.pdf.
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sentence release order releasing defendant with three pending assault charges due to extraordinary danger COVID-19 poses to people in detention).
Releasing Petitioners would also promote public health and safety, considerations that traditionally weigh heavily in the movant’s favor. See Planned Parenthood of Gulf Coast, Inc. v. Gee, 862 F.3d 445, 472 (5th Cir. 2017). Multiple courts have ordered detained individuals released citing the public’s interest in preventing or mitigating outbreaks, which invariably spread to correctional officers and other staff members, their families, and the public. See Dada, No. 1:20-cv-00458-DDD-JPM at *27; Vazquez Barrera, 2020 WL 1904497 at *7 (S.D. Tex. Apr. 17, 2020); United States v. Raihan, No. 20-cr-68-BMC- JO, E.C.F. No. 20, Proc. At 10:1219 (E.D.N.Y. Mar. 12, 2020) E.C.F. No. 20 (“[t]he more people we crowd into that facility, the more we’re increasing the risk to the community”). Defendants suggestion, Resp. Br. 48, that Petitioners would be safer in the tinderbox of ICE detention rather than in the safety of a home – even homes in the Northeast – cannot be taken seriously; Dr. Venters thoroughly discredits such magical thinking. Venters Decl. ¶¶ 8-14. Nor could the end of a shelter-in-place order, Resp. Br. 50, change the realities of the inevitable spread of COVID-19 inside ICE facilities such as ECDC. Venters Decl. ¶¶ 8-14.
Recently, the Western District of Louisiana noted that “public health and safety are served best by rapidly decreasing the number of individuals detained in confined, unsafe conditions.” Dada, No. 1:20-cv-00458-DDD-JPM at *27 (quotations omitted). And, as Judge Ellison explained in Vazquez Barrera, “an outbreak among the . . . detainee population will inevitably spread through the surrounding community, as MPC staff members, who live outside the detention facility, will be exposed to sick detainees . . . [and] will put additional strain on
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hospitals and health care resources in the community.” 2020 WL 1904497, at *7. This too supports a finding that Petitioners’ release would be in the public interest.
CONCLUSION For the foregoing reasons, Plaintiffs Petitioners’ respectfully request that this Court grant the motion for a temporary restraining order and order their immediate release from custody. Dated: May 6, 2020

Respectfully submitted,

/s/ Jessica Vosburgh Jessica Myers Vosburgh jessica@adelantealabama.org ADELANTE ALABAMA WORKER CENTER 2104 Chapel Hill Road Birmingham, AL 35216 205.317.1481
Sirine Shebaya* sirine@nipnlg.org Matthew S. Vogel* matt@nipnlg.org NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Ave NW, Suite 200 Washington, DC 20007 718.419.5876
Jeremy Jong* jermjong@gmail.com 3527 Banks St New Orleans, LA 70119 504.475.6728

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

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

Dated: May 6, 2020

/s/ Jessica Myers Vosburgh Jessica Myers Vosburgh

1

Case 4:20-cv-00596-RDP-JHE

Document 26-1

Filed 05/06/20

Page 1 of 2

FILED

2020 May-06 PM 11:59

U.S. DISTRICT COURT

N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA

ARCHILLA, et al. Petitioners-Plaintiffs,
v. WITTE, et al.
Respondents-Defendants.

DECLARATION IN FURTHER SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER
No. 4:20-cv-596-RDP-JHE

DECLARATION OF JESSICA MYERS VOSBURGH I, Jessica Myers Vosburgh, declare pursuant to 28 U.S.C. § 1746, as follows:

1. I am an attorney with Adelante Alabama Worker Center in Birmingham,
Alabama. I represent Petitioners- Plaintiffs in this case.

2. For the convenience of the Court, I submit this declaration to attach copie s
of certain documents referred to in Petitioners' Reply Memorandum in Support of Motion for a Temporary Restraining Order.
3. The tables below list the exhibits attached to this declaration. Each exhibit is
a true and correct copy of the document described in the second column.

Exhibit No. 23 24 25 26 27

Declarations Declaration of Katrina Huber Declaration of Homer Venters, M.D. Supplemental Declaration of Randane Williams Supplemental Declaration of Karim Tahir Golding Declaration of Aaron Reichlin-Melnick

Case 4:20-cv-00596-RDP-JHE Document 26-1 Filed 05/06/20 Page 2 of 2

Exhibit No. 28

Other Exhibits Alcantara v. Archambeault, No. 1:20-cv-756, Dkt. No. 41 (C.D. Cal. May 1, 2020)
Dada v. Witte, No. 1:20-cv-0458, Dkt. No. 17 (W.D. La. Apr. 30, 2020) (Report and Recommendation)
United States v. Muniz, No. 4:09-cr-199, Dkt. No. 578 (S.D. Tex. Mar. 30, 2020)
United States v. Grobman, No. 18-cr-20989, Dkt. No. 397 (S.D. Fla. Mar. 29, 2020)
United States v. Meekins, No. 1:18-cr-222-APM, Dkt. No. 75 (D.D.C. Mar. 31, 2020)

I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.
Executed this 6th day of May, 2020 in Birmingham, Alabama.

s/ Jessica Vosburgh Jessica Myers Vosburgh ADELANTE ALABAMA WORKER CENTER

2

Case 4:20-cv-00596-RDP-JHE

Document 26-2

Filed 05/06/20

Page 1 of 2

FILED

2020 May-06 PM 11:59

U.S. DISTRICT COURT

N.D. OF ALABAMA

EXHIBIT 23

Case 4:20-cv-00596-RDP-JHE Document 26-2 Filed 05/06/20 Page 2 of 2

Declaration of Katrina Huber
I attest to the below under penalty of perjury:
1. My name is Katrina Huber and I work as a Project Coordinator for the Southern Poverty Law Center’s Southeast Immigrant Freedom Initiative (“SIFI”). SIFI provides pro-bono legal services to immigrants detained in multiple detention centers in Georgia and Louisiana. My job requires me to maintain contact with individuals in detention centers through in-person visits, video calls, or phone calls.
2. I have been tracking the confirmed cases of COVID-19 in ICE detention since ICE first began posting the numbers of confirmed cases at each facility on March 28, 2020. As of May 6, 2020, there were 142 confirmed positive cases at detention centers in the jurisdiction of the New Orleans ICE Field Office- Adams County Correctional Center, Catahoula Correctional Center, Etowah Correctional Center, LaSalle ICE Processing Center, Pine Prairie ICE Processing Center, Richwood Correctional Center, River Correctional Center, and Winn Correctional Center. This number is significant because the Field Office often transfers detained people between detention centers within its jurisdictions.
3. Even during this COVID-19 pandemic, our clients have told me of frequent transfers from to and from most of the detention centers mentioned above. For example, on May 6, 2020, a client detained at River Correctional Center reported to me that he was transferred into River from Catahoula Correctional Center in early April 2020 along with 17 other detained people. Two of these individuals were symptomatic for COVID-19 and later tested positive.
4. The figures I used likely are undercounts of the total extent of COVID-19 at Louisiana facilities because many people with symptoms are not being tested and because ICE does not report positive cases of the private prison company contractors that are almost exclusively responsible for the day to day operation of the detention centers. Graphs displaying the daily growth in confirmed cases are attached to my declaration at Addendum A.

___________________________________________________ Signature

__________________ Date

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Document 26-3

Filed 05/06/20

Page 1 of 28

FILED

2020 May-06 PM 11:59

U.S. DISTRICT COURT

N.D. OF ALABAMA

EXHIBIT 24

Case 4:20-cv-00596-RDP-JHE Document 26-3 Filed 05/06/20 Page 2 of 28

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA

ARCHILLA, et al., Petitioners-Plaintiffs,
v. WITTE, et al.,
Respondents-Defendants.

Civil Action No.: 4:20-cv-596-RDP-JHE

DECLARATION OF HOMER VENTERS, M.D.
I, Homer Venters, declare the following under penalty of perjury pursuant to 28 U.S.C. § 1746 as follows:
1. I am a physician, internist and epidemiologist with over a decade of experience in providing, improving and leading health services for incarcerated people. I make this declaration in order to (i) explain the distinct threat that COVID-19 poses for rapid spread inside Immigration and Customs Enforcement (ICE) detention settings; (ii) the current inability of ICE generally to manage the spread of the COVID-19 in its detention facilities; [iv] the failure of ICE to abide by current guidance mandated by the Centers for Disease Control to prevent and isolate the spread of the virus and to treat and contain once it is present inside a facility; [v] why, given the absence of regularized testing and the possibility of transmission by asymptomatic persons, the already serious infection within the Etowah County Detention Center is grossly underestimated and predictably will accelerate to dangerous levels in the coming weeks.

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QUALIFICATIONS
2. My clinical training includes a residency in internal medicine at Albert Einstein/Montefiore Medical Center (2007) and a fellowship in public health research at the New York University School of Medicine (2009). My experience in correctional health includes two years visiting immigration detention centers and conducting analyses of physical and mental health policies and procedures for persons detained by the U.S. Department of Homeland Security. This work included and resulted in collaboration with ICE on numerous individual cases of medical release, formulation of health-related policies as well as testimony before the U.S. Congress regarding mortality inside ICE detention facilities.
3. After my fellowship training, I became the Deputy Medical Director of the NYC Jail Correctional Health Service. This position included both direct care to persons held in NYC’s 12 jails, as well as oversight of medical policies for their care. This role included oversight of chronic care, sick call, specialty referral and emergency care. I subsequently was promoted to the positions of Medical Director, Assistant Commissioner, and Chief Medical Officer. In the latter two roles, I was responsible for all aspects of health services including physical and mental health, addiction, quality improvement, re-entry and morbidity and mortality reviews as well as all training and oversight of physicians, nursing and pharmacy staff. In these roles I was also responsible for evaluating and making recommendations on the health implications of numerous security policies and practices including use of force and restraints.
a. During this time, I managed multiple communicable disease outbreaks including H1N1 in 2009, which impacted almost a third of housing areas inside the adolescent jail, multiple seasonal influenza outbreaks, a recurrent legionella infection and several other smaller outbreaks.
4. In March 2017, I left Correctional Health Services of NYC to become the Director of Programs for Physicians for Human Rights. In this role, I oversaw all programs of Physicians for Human Rights, including training of physicians, judges and law enforcement staff on forensic evaluation and documentation, analysis of mass graves and mass atrocities, documentation of torture and sexual violence, and analysis of attacks against healthcare workers.
5. Between December 2018 and April 30, 2020, I served as the Senior Health and Justice Fellow and subsequently as the President for Community Oriented Correctional Health Services (COCHS), a nonprofit organization that promotes evidence-based improvements to correctional practices across the U.S. As of May 1, 2020, I left COCHS to focus exclusively on COVID-19 response work as a medical expert. I wrote a book on the health risks of jail (Life and Death in Rikers Island) which was published in early 2019

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by Johns Hopkins University Press. A copy of my curriculum vitae, which includes my publications, a listing of cases in which I have been involved and a statement of my compensation, is attached to this report.
TRANSMISSION OF COVID-19
6. Information and understanding about the transmissibility of the coronavirus disease of 2019 (COVID-19) is rapidly evolving. New information is relevant to the health of ICE detainees and staff.
a. In addition to transmission by aerosolized droplets expelled from the mouth by speaking, coughing, sneezing, and breathing, COVID-19 appears to be transmissible through aerosolized fecal contact. This is relevant because the plume of aerosolized fecal material that occurs when a toilet is flushed is not addressable in many detention centers because ICE detainee toilets generally lack lids. This mode of transmission would pose a threat to anyone sharing a cell with a person who has COVID-19 and could occur before a person becomes symptomatic. This mode of transmission could also extend beyond cellmates, especially in circumstances where common bathrooms exist or where open communication between cells exists.1
b. CDC and state guidance now recommend the use of protective masks for anyone who is in close contact with others, at less than 6 feet distance.2 This recommendation applies to staff and detainees alike.
THE RAPID SPREAD OF COVID-19 IN ICE DETENTION
7. COVID-19 is a viral pandemic. This is a novel virus for which there is no established curative medical treatment and no vaccine.
8. ICE has not been able to stop the spread of COVID-19 in detention centers. ICE reported that, as of April 7, there were 19 detained people in 11 facilities, 11 ICE employees in 6 facilities, and 60 ICE employees not assigned to a facility who had all tested positive for COVID-19. As of April 20, less than two weeks later, ICE reported a jump to 220 detained people in 28 facilities, 30 ICE employees in 9 facilities, and 86 ICE employees not assigned to a facility who had tested positive for COVID-19. On May 4, 2020, ICE reported 606 cases (of 1285 tested) of detained people in 37 facilities, 39 ICE employees in 13 facilities, and 99 employees not assigned to a facility who had tested positive for
1 https://www.medpagetoday.com/infectiousdisease/covid19/85315. 2 https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover.html.

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COVID-19.3 These numbers, which do not include non-ICE staff and contractors at the facilities, are likely just the tip of the iceberg in terms of the number of ICE staff and detainees who are already infected but are unaware due to the lack of testing nationwide, and the fact that people who are infected can be asymptomatic for several days.
9. When COVID-19 impacts a community, it will also impact the detention facilities. In New York, one of the areas of early spread in the U.S., multiple correctional officers and jail and prison inmates have become infected with COVID-19. The medical leadership in the NYC jail system have announced that they will be unable to stop COVID from entering their facilities and have called for release as the primary response to this crisis. Staff are more likely to bring COVID-19 into a facility, based solely on their movement in and out every day.
10. Once COVID-19 is inside a facility, ICE will be unable to stop the spread of the virus throughout the facility given long-existing inadequacies in ICE’s medical care and also in light of how these facilities function. ICE has faced longstanding challenges in maintaining adequate health staffing for many years, and the outbreak of this pandemic will dramatically worsen this problem.
11. I have been inside multiple ICE detention facilities, both county jails that house ICE detainees and dedicated facilities. My experience is that the densely packed housing areas, the structure of health services, food services, recreation, bathroom and shower facilities for detained people, as well as the arrangement of entry points, locker rooms, meal areas, and control rooms for staff, all contribute to many people being in small spaces.
12. Detention facilities are designed to force close contact between people and rely on massive amounts of movement every day from one part of the facility to another, e.g., for programming, access to cafeterias, commissary, and medical, just to name a few. This movement is required of detained people as well as staff. My experience managing smaller outbreaks is that it is impossible to apply hospital-level infection control measures on security staff. In a hospital or nursing home, staff may move up and down a single hallway over their shift, and they may interact with one patient at a time. In detention settings, officers move great distances, are asked to shout or yell commands to large numbers of people, routinely apply handcuffs and operate heavy doors/gates, operate large correctional keys and are trained in the use of force. These basic duties cause the personal protective equipment they are given to quickly break and become useless, and even when in good working order, may impede their ability to talk and be understood, in the case of masks. For officers working in or around patients at risk or
3 ICE Guidance on COVID-19, IMMIGRATION & CUSTOMS ENFORCEM ENT (Updated Apr. 20, 2020), h ttp s ://www.ice.g o v /co ro n av iru s .

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with symptoms, there may be an effort to have them wear protective gowns, as one would in any other setting with similar clinical risks. These gowns cover their radios, cut down their ability to use tools and other equipment located on their belts and in my experience working with correctional staff, are basically impossible to use as a correctional officer.
13. Efforts to lock detained people into cells will worsen, not improve this facility- level contribution to infection control. Units that are comprised of locked cells require additional staff to escort people to and from their cells for showers and other encounters, and medical, pharmacy and nursing staff move on and off these units daily to assess the welfare and health needs of these people, creating the same movement of virus from the community into the facilities as if people were housed in normal units.
14. ICE’s detention procedures and practices have manifestly failed to mitigate the rapid spread of the novel coronavirus within their facilities. As of the date of this declaration, there is 1 confirmed case of COVID-19 among the detained people at Etowah County Detention Center (“ECDC”).4 This likely underestimates the number of people infected, as ICE only tests people who meet the CDC’s definition of a person under investigation;5 that is, someone exhibiting symptoms of COVID-19. Many carriers of coronavirus are asymptomatic, and thus would not qualify for testing by ICE. In addition, ECDC is managed by the Etowah County Sheriff’s Department, a private contractor, and ICE does not report on confirmed cases among staff of private contractors.
15. I am on record having detailed the ways in which those protocols are fundamentally deficient in limiting the spread of COVID-19 (through social isolation, sanitation, restricted outside entrances and testing) and in containing and treating cases once they appear. (See, e.g., Fraihat v. Wolf, 5:20-cv-00590 (C.D. Cal. 2020). Here I summarize these analyses and make some particular observations about the general insufficiency of prevention, containment and treatment protocol at ECDC specifically.
A. The April 4, 2020 Docket Review Guidance
16. None of the ICE COVID-19 protocols set forth sufficient policies or protocols addressing release of medically vulnerable detained people in light of the significant risks to those people posed by COVID-19. This must be done immediately and is in contrast to the efforts made in many prison and jail systems across the country.
17. The April 4 list of risk factors for serious illness and death from COVID-19 infection developed by ICE is inconsistent with CDC guidelines and fails to adequately advise
4 https://www.ice.gov/coronavirus. 5 Id.

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facilities on which detainees are at elevated risk. This list is included in a memo to Field Office Directors regarding Docket Review, and fails to include very basic risk factors identified by the CDC, including body mass index over 40 and being a current or former smoker.6 By apparently assigning this process to field directors and their staff, who are not medical professionals, advising security staff to check with medical professionals after the fact, and failing to include CDC-identified risk factors, this docket review process will likely leave many people with true risk factors in detention. This is particularly the case if they’re detained under certain immigration law provisions, where the guidance recommends officers not release them despite risks. Thus, the guidance appears to be just that – guidance, and the risk factors are not determinative. In fact, the guidance appears to not make these risk factors determinative for release—even for people who are not subject to mandatory detention. ICE also identifies people under the age of 60 in this cohort, but the age of 55 is appropriate. Because detained people have consistently been identified as having higher levels of health problems that reflect that they are 10-15 years more progressed than chronological age, numerous organizations and research studies have used the age of 55 to define the lower limit of older detainees.7 ICE also limits the high risk period for women to 2 weeks after child birth, yet one of the most serious increased risk during pregnancy is hypercoagulable state, which increases the risk of blood clots in the large veins of the lower extremities, and sometimes in the lung which can prove fatal. This risk extends to 6 weeks post-partum and also occurs independently with COVID-19 infection.8 Accordingly, ICE should include these definitions in its list of risk factors. ICE should also put in place a mechanism to ensure that risk factors reflect the evolving science and data concerning COVID-19, since it is likely that additional risk factors will emerge as more data is collected.
18. The April 4 promulgation of an incomplete list of risk factors in a memo relating to discretion for release occurs in a complete vacuum of guidance on special protection and clinical management of people with those risk factors while in detention. This Memo describes an overly discretionary decision-making process for release that does not sufficiently favor depopulation as public health requires and that has no urgency to it. Reviews and releases must be undertaken immediately.
19. The April 4 ICE memo to Field Directors on identification and release of detained people with risk factors for serious illness and death from COVID-19 infection is both incomplete and revelatory. ICE has omitted multiple important risk factors identified by the CDC in its own list but has also failed to create any surveillance of the outbreak
6 https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html and https://www.cdc.gov/mmwr/volumes/69/wr/ mm6913e2.ht m. 7 https://nicic.gov/aging-prison and https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3464842/. 8 https://www.acog.org/patient-resources/faqs/womens-health/preventing-deep-vein-thrombosis and h ttp s ://www.med p ag eto d ay .co m/in fectio u s d is eas e/co v id 19/85865.

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across facilities that includes the number of patients experiencing symptoms, confirmed COVID-19 infection or hospitalization by presence or absence of CDC risk factors.
B. The April 10, 2020 ERO Document
20. The ERO document identifies multiple areas of COVID-19 response that all facilities holding ICE detainees must supposedly adhere to. Multiple sections of this document reflect inconsistencies or critical omissions from CDC Detention Guidelines for response to COVID-19. In addition, ICE is unlikely to ensure compliance with the policies laid out in this document due to longstanding lack of information systems, quality assurance and oversight mechanisms that are standard in other carceral or detention settings. These inconsistencies and omissions increase the risk that facilities holding ICE detainees will not follow evidence-based practices in infection control and that ICE detainees will experience higher risks of serious illness and death because of these deficiencies.
21. The ERO document directs that “[u]pon being informed of a detainee who may potentially be at higher risk for serious illness from exposure to COVID-19, ERO will review the case to determine whether continued detention is appropriate.”
22. But the ERO document identifies a list of high-risk conditions that is inconsistent with the guidance given by ERO just days earlier and fails to adhere to CDC guidelines.
a. The new ERO document fails to identify pregnant or post-partum women. The ERO docket review guidelines dated April 4, 2020, failed to identify smoking history or body mass index over 40 as risk factors, both of which are included by the CDC. The new ERO document also fails to specify hypertension as a risk factor.
b. The age for older detainees was indicated as 65 in the new ERO document and 60 in the prior document. The correct age, based on correctional standards, should be 55.
23. The purpose of the ERO document’s identification of high-risk patients is unclear beyond custody review. In fact it fails to establish any higher level of protection from COVID-19 infection for high-risk patients. No guidance is given about how these high-risk patients can be protected from being infected with COVID-19, unless and until they are in a quarantine area or have been identified as symptomatic.
24. The ERO document creates an unwieldy and unrealistic process for facilities to notify ICE headquarters regarding high risk detainees. The process of requiring every facility to send emails about every individual detainee with risk factors is unwieldy and unlikely to be effective. It creates an unreliable and error prone system for finding the most

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vulnerable detainees inside ICE facilities. The net effect to this cumbersome and inefficient process will be that it will move unacceptably slowly in a fast-changing situation, far fewer detainees with risk factors will actually be released than could have occurred based on policies, and more high-risk patients will be at risk of serious illness and death in ICE detention.
25. The ERO document fails to include vital elements of CDC guidelines on preventing the spread of COVID-19 inside detention settings, including social distancing in common areas such as intake pens, medication lines, and bathroom and shower areas, or communication with detained people about social distancing and hygiene. It also fails to include many critical aspects of cleaning and disinfection outlined in CDC guidelines or to recommend against transfer of detainees in ICE custody between facilities, as a means to prevent the regional spread of COVID-19.
26. The ERO document fails to establish or mandate a respiratory protection program, a critical guideline of the CDC, which recommends “a respiratory protection program as appropriate, to ensure that staff and incarcerated/detained persons are fit tested for any respiratory protection they will need within the scope of their responsibilities.” Simply giving out N95 or other masks to staff and detainees and failing to train them and identify the high-risk tasks or scenarios they will encounter serves only to decrease the overall effectiveness of infection control and increase the risk of serious illness and death in ICE facilities. The ERO document gives some details about cloth masks, but there is no mention of any plan to train, record or supervise members of the respiratory protection team, despite the CDC clearly including security personnel in this team.9
C. Critical Issues that ICE Has Failed to Address Absent Direct CDC Guidance
27. ICE does not have any mechanisms to monitor or promote the health of all people in its charge. This failure is documented in many reports about ICE’s inadequate healthcare system, but now poses a grave risk to their survival as ICE struggles to mount a competent response to COVID-19 across more than 150 facilities, on behalf of roughly 30,000 detainees and almost as many direct and contract staff. ICE's failure to properly monitor and oversee medical care at its detention centers has been a chronic concern in the health services provided to ICE detainees prior to this outbreak and has been cited as a core failure of ICE in its obligations to establish quality assurance throughout its detention network.10 There is no indication that ICE can adequately monitor the response across its system to COVID-19. Absent robust and centralized oversight, ICE will not be
9 https://www.cdc.gov/niosh/npptl/hospresptoolkit/programeval.html. CDC definition of healthcare personnel includes “paid and unpaid persons who provide patient care in a healthcare setting or support the delivery of healthcare by providing clerical, dietary, housekeeping, engineering, security, or maintenance services.” 10 https://www.oig.dhs.gov/sites/default/files/assets/2019-02/OIG-19-18-Jan 19.pdf; h ttp s ://www.o ig .d h s .g o v /s ites /defau lt/files /as sets/2019-06/OIG-1 9- 47 -Ju n 1 9.p d f.

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able to provide a coordinated response informed by on-the-ground data from detention centers. This is in stark contrast to many prison systems across the country that are coordinating their efforts, including with health departments.
28. ICE has no plan or even capacity to provide daily clinical guidance to all of the clinical staff it relies on to care for ICE detainees, whether at ICE-operated facilities or contract facilities. The differing levels of oversight and clinical involvement across the various types of ICE facilities means that ICE is unable to promulgate and support a consistent set of clinical practices for all ICE detainees This is a core failure because of the new nature of COVID-19 and constantly changing clinical guidance on how to treat patients. Daily briefings with health administrators and medical and nursing leadership should be held; both are a core aspect of outbreak management and provide a critical avenue for receiving feedback on real-time conditions inside facilities. ICE has not articulated any plan to ensure that this type of basic communication is in place across its network of detention settings. This guidance should also include uniform recommendations on when and how to transport patients to the hospital. Failure to implement this kind of procedure—particularly in light of the other defects described herein—poses a significant risk to the health and lives of ICE detainees.
29. As ICE determines to release people from detention, they should be afforded symptom screening akin to what is done with staff, but the release of detainees to the community will lower their own risks of infection and will also serve to flatten the overall epidemic curve by decreasing the rate of new infections and the demands on local hospital systems. From a medical and epidemiologic standpoint, people are safer from COVID-19 infection when not detained, and the epidemic curve of COVID-19 on the general community is flattened by having fewer people detained.
DEFICIENCIES IN THE COVID-19 RESPONSE OF ETOWAH COUNTY DETENTION CENTER (ECDC)
30. In order to assess the adequacy of the COVID-19 response for ICE detainees held at Etowah County Detention Center (“ECDC”), I have been provided with the following documents for review; • Two Declarations of Bryan Pitman dated 5/4/2020, one that deals with COVID-19 response in general, and one that deals with specific petitioners.
Based on my review of these documents, I have the following concerns about the adequacy of the COVID-19 response inside ECDC;
Lack of COVID-19 Plan in Place for ECDC.

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31. The April 10 ERO Pandemic Response Requirements mandate that every facility holding ICE detainees have a COVID-19 mitigation plan in place. The document specifies:
“Consistent with ICE detention standards, all facilities housing ICE detainees are required to have a COVID-19 mitigation plan that meets the following four objectives:
• To protect employees, contractors, detainees, visitors to the facility, and stakeholders from exposure to the virus;
• To maintain essential functions and services at the facility throughout the pendency of the pandemic;
• To reduce movement and limit interaction of detainees with others outside their assigned housing units, as well as staff and others, and to promote social distancing within housing units; and
• To establish means to monitor, cohort, quarantine, and isolate the sick from the well.” Ex. E.
The declarations provided by Mr. Pitman fail to identify such a plan.
32. The key aspects of the CDC guidance regarding COVID-19 response involve active preparation before the arrival of COVID-19, clear and evidence-based responses once cases are identified. Preparation includes communication with staff and inmates about risks infection control and that reflect an evidence-based emergency COVID-19 plan that is widely disseminated. Once COVID-19 arrives, this plan is updated and may evolve, but the plan itself is a document that every person in the facility understands and is part of, much like a suicide prevention or sexual abuse reporting plan.
33. The policies that are described by Mr. Pitman raise the following concerns; a. First, there is no mention of widespread testing of any detained people or staff, a crucial component of managing the spread of COVID-19. As COVID-19 outbreak starts in a detention facility, there is a pressing need to implement testing of the following groups of people; i. Staff and detainees with symptoms of COVID-19 ii. Staff and detainees with risk factors that make them high-risk for serious illness and death from COVID-19 iii. Persons identified in contact tracing of newly identified COVID-19 cases iv. Consideration of testing for newly admitted detainees. b. There does not appear to be any mention of a process to identify and protect high-risk detained people other than a docket review for potential release. i. The following interventions are critical to identify and protect high- risk detainees from serious illness and death from COVID-19; 1. Utilize medical and pharmacy records to identify people with elevated risk for serious illness or death from COVID-19 based on CDC criteria. 2. Provide COVID-19 testing to these detainees.

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3. Cohort high risk detainees in specialized housing areas that receive twice daily sign and symptoms checks, have increased levels of infection control and staff training.
c. There is no mention as to whether daily sick call requests being reviewed for the presence of COVID-19 symptoms and whether those reviews result in 1) expedited clinical evaluation of anyone reporting a COVID-19 symptoms, and 2) daily gathering of information about COVID-19 symptoms that is aggregated into a tracking that monitors COVID-19 symptoms throughout the facility and over time.
d. There is no mention of heightened levels of cleaning and disinfection regarding response to know or suspected COVID-19 cases, whether among staff or detainees, including who will clean equipment, office spaces, cells, bedrolls, personal effects in these high-risk scenarios and what level of training and PPE they will have. In discussing quarantine units, the declaration of Mr. Pitman makes reference to a disinfection process that involves a forced air machine. This section makes no mention of cleaning (removal of germs on surfaces) interventions, which are essential to implement in tandem with disinfection (killing but not removing germs on surfaces).11
e. There is no mention of how social distancing will be implemented for detainees in critical situations including in housing area showers and bathrooms, medicatio n lines, medical and mental health clinics, hallways, sallyports. In addition, there is no mention at all of social distancing training or policies for staff, who represent the most likely vector for bringing COVID-19 virus into the facility. The practice of having up to four people per cell essentially eliminates any potential of social distancing and increases the speed with which COVID-19 can transmit througho ut the facility. The close quarters created by ECDC leadership in housing all of the ICE detainees in housing area #9 is likely to significantly worsen the pace of this outbreak, particularly because staff appear not to follow basic infection control guidelines (below).
f. There is no mention of how ECDC will conduct contact tracing among staff and detainees who identify close contact with COVID-9 cases, and how staff identified to have close contact with a COVID-19 case in this contact tracing will be instructed to either remain at home for 14 days, or the circumstances and protections under which they may continue to work during that period. This represents a risk to the broader community outside the facility.
g. The cohorting of the original 110 ICE detainees in a ‘sterile unit’ mentioned in the Pitman declaration fails to identify increased levels of staff PPE and infection control will be utilized to protect these detainees from COVID-19.
34. Further, review of the declarations of people currently detained at ECDC housing area #9 reveals the following failures in basic infection control; • Ongoing new transfers of people into the ‘Sterile’ unit #9 • Lack of adequate access to soap • Lack of consistent wearing of mask and gloves by both staff and detainees
11 https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cleaning-disinfection.html

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• Lack of social distancing in housing areas • Lack of adequate access to masks for detainees • Lack of appropriate protecting equipment for cleaning detail workers • Lack of adequate cleaning supplies including paper towels • Lack of screening for COVID-19 among people who report symptoms
including fevers. • Lack of communication to detainees about the status of the outbreak or basic
updates on number of infected people.
Increased risk of serious illness and death for high-risk detainees in ECDC.
35. It has been incorrectly asserted that high risk detainees, such as the plaintiffs, may be somehow safer inside ECDC than in the community. “Petitioners face additional risk from their transport and release to places with significantly larger COVID-19 outbreaks than Etowah County”12 The rates of infection in detention settings overwhelmed by COVI-19 far exceed the rates in even the hardest hit communities, including NYC and Chicago.13 In addition, ECDC’s grossly deficient response to the COVID-19 pandemic, including the failure to take measures to identify and protect detained people at high risk of death or serious illness from COVID-19 creates a heightened risk for this group of people. By herding the ICE detainees into one very crowded unit, hosing area #9, and by failing to implement basic infection control measures inside the unit, and well as among staff who come to work every day in this unit, ICE and ECDC have placed these detainees, especially those with risk factors for serious illness and death from COVID-19 at dramatically higher risk than they would experience in the community. Daily experiences on this unit, including sharing a cell with up to three other people, as well as very close contact with dozens of people in eating, sitting in the day room, receiving medication or health services, and other basic operations results in far more close physical contact than one would experience if home engaging in social distancing.
I declare under penalty of perjury that the statements above are true and correct to the best of my knowledge.
Signed this 6th day of May, 2020 in Port Washington, NY.
12 Resp. at 48. 13 https://www.freep.com/story/news/local/michigan/2020/04/ 16/ infection-rate-mich igan-prison-exceeds-new-yorkchicago-jail-hotspots/2987935001/ and h ttp s ://leg alaid n y c.o rg /co v id -19-in fectio n-trackin g -in -n y c-jails /

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_________________ Homer Venters

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Dr. Homer D. Venters
10 ½ Jefferson St., Port Washington, NY, 11050 hventers@gmail.com, Phone: 646-734-5994

______________________________________________________ __

HEALTH ADMINISTRATOR

PHYSICIAN

EPIDEMIOLOGIST

Professional Profile
• International leader in provision and improvement of health services to patients with
criminal justice involvement. • Innovator in linking care of the incarcerated to Medicaid, health homes, DSRIPs. • Successful implementer of nations’ first electronic health record, performance
dashboards and health information exchange among pre-trial patients. • Award winning epidemiologist focused on the intersection of health, criminal justice
and human rights in the United States and developing nations. • Human rights leader with experience using forensic science, epidemiology and public
health methods to prevent and document human rights abuses.

Professional Experience
Medical/Forensic Expert, 3/2016-present o Review COVID-19 policies and procedures in detention settings. o Conduct analysis of health services and outcomes in detention settings. o Conduct site inspections and evaluations in detention settings. o Produce expert reports, testimony regarding detention settings.
President, Community Oriented Correctional Health Services (COCHS), 1/1/20204/30/20. o Lead COCHS efforts to provide technical assistance, policy guidance and research
regarding correctional health and justice reform. o Oversee operations and programmatic development of COCHS o Serve as primary liaison between COCHS board, funders, staff and partners.
Senior Health and Justice Fellow, Community Oriented Correctional Health Services (COCHS), 12/1/18-12/31/2018 o Lead COCHS efforts to expand Medicaid waivers for funding of care for detained
persons relating to Substance Use and Hepatitis C. o Develop and implement COCHS strategy for promoting non-profit models of
diversion and correctional health care.

Director of Programs, Physicians for Human Rights, 3/16-11/18.
o Lead medical forensic documentation efforts of mass crimes against Rohingya and Yazidi people.
o Initiate vicarious trauma program. o Expand forensic documentation of mass killings and war crimes. o Develop and support sexual violence capacity development with physicians, nurses
and judges.

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o Expand documentation of attacks against health staff and facilities in Syria and Yemen.
Chief Medical Officer/Assistant Vice President, Correctional Health Services, NYC Health and Hospitals Corporation 8/15-3/17.
o Transitioned entire clinical service (1,400 staff) from a for-profit staffing company model to a new division within NYC H + H.
o Developed new models of mental health and substance abuse care that significantly lowered morbidity and other adverse events.
o Connected patients to local health systems, DSRIP and health homes using approximately $5 million in external funding (grants available on request).
o Reduced overall mortality in the nation’s second largest jail system. o Increased operating budget from $140 million to $160 million. o Implemented nation’s first patient experience, provider engagement and racial
disparities programs for correctional health.
Assistant Commissioner, Correctional Health Services, New York Department of Health and Mental Hygiene, 6/11-8/15.
o Implemented nation’s first electronic medical record and health information exchange for 1,400 staff and 75,000 patients in a jail.
o Developed bilateral agreements and programs with local health homes to identify incarcerated patients and coordinate care.
o Increased operating budget of health service from $115 million to $140 million. o Established surveillance systems for injuries, sexual assault and mental health that
drove new program development and received American Public Health Association Paper of the Year 2014. o Personally care for and reported on over 100 patients injured during violent encounters with jail security staff.
Medical Director, Correctional Health Services, New York Department of Health and Mental Hygiene, 1/10-6/11.
o Directed all aspects of medical care for 75,000 patients annually in 12 jails, including specialty, dental, primary care and emergency response.
o Direct all aspects of response to infectious outbreaks of H1N1, Legionella, Clostridium Difficile.
o Developed new protocols to identify and report on injuries and sexual assault among patients.
Deputy Medical Director, Correctional Health Services, New York Department of Health and Mental Hygiene, 11/08-12/09.
o Developed training program with Montefiore Social internal medicine residency program.
o Directed and delivered health services in 2 jails.
Clinical Attending Physician, Bellevue/NYU Clinic for Survivors of Torture, 10/0712/11.

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Clinical Attending Physician, Montefiore Medical Center Bronx NY, Adult Medicine, 1/08-11/09.
Education and Training
Fellow, Public Health Research, New York University 2007-2009. MS 6/2009 Projects: Health care for detained immigrants, Health Status of African immigrants in NYC. Resident, Social Internal Medicine, Montefiore Medical Center/Albert Einstein
University7/2004- 5/2007. M.D., University of Illinois, Urbana, 12/2003. M.S. Biology, University of Illinois, Urbana, 6/03. B.A. International Relations, Tufts University, Medford, MA, 1989.
Academic Appointments, Licensure
Clinical Associate Professor, New York University College of Global Public Health, 5/18-present.
Clinical Instructor, New York University Langone School of Medicine, 2007-2018.
M.D. New York (2007-present).
Media
TV i24 Crossroads re Suicide in U.S. Jails 8/13/19.
i24 Crossroads re re Life and Death in Rikers Island 6/13/19.
Amanpour & Company, NPR/PBS re Life and Death in Rikers Island 4/15/19.
CNN, Christiane Amanpour re Forensic documentation of mass crimes against Rohingya. 7/11/18.
i24 Crossroads with David Shuster re health crisis among refugees in Syria. 7/6/18.
Canadian Broadcasting Corporation TV with Sylvie Fournier (in French) re crowd control weapons. 5/10/18
i24 Crossroads with David Shuster re Cholera outbreak in Yemen. 2/15/18.
China TV re WHO guidelines on HIV medication access 9/22/17.
Radio/Podcast Morning Edition, NPR re Health Risks of Criminal Justice System. 8/9/19.
Fresh Air with Terry Gross, NPR re Life and Death in Rikers Island, 3/6/19.

Case 4:20-cv-00596-RDP-JHE Document 26-3 Filed 05/06/20 Page 18 of 28
Morning Edition, NPR re Life and Death in Rikers Island, 2/22/19.
LeShow with Harry Sherer re forensic documentation of mass crimes in Myanmar, Syria, Iraq. 4/17/18.
Print articles and public testimony Oped: Four ways to protect our jails and prisons from coronavirus. The Hill 2/29/20.
Oped: It’s Time to Eliminate the Drunk Tank. The Hill 1/28/20.
Oped: With Kathy Morse. A Visit with my Incarcerated Mother. The Hill 9/24/19.
Oped: With Five Omar Muallim-Ak. The Truth about Suicide Behind Bars is Knowable. The Hill 8/13/19.
Oped: With Katherine McKenzie. Policymakers, provide adequate health care in prisons and detention centers. CNN Opinion, 7/18/19. Oped: Getting serious about preventable deaths and injuries behind bars. The Hill, 7/5/19.
Testimony: Access to Medication Assisted Treatment in Prisons and Jails, New York State Assembly Committee on Alcoholism and Drug Abuse, Assembly Committee on Health, and Assembly Committee on Correction. NY, NY, 11/14/18.
Oped: Attacks in Syria and Yemen are turning disease into a weapon of war, STAT News, 7/7/17.
Testimony: Connecticut Advisory Committee to the U.S. Commission on Civil Rights: Regarding the use of solitary confinement for prisoners. Hartford CT, 2/3/17.
Testimony: Venters HD, New York Advisory Committee to the U.S. Commission on Civil Rights: Regarding the use of solitary confinement for juveniles in New York. July 10, 2014. NY NY.
Testimony: New York State Assembly Committee on Correction with the Committee on Mental Health: Regarding Mental Illness in Correctional Settings. November 13, 2014. Albany NY. Testimony: New York State Assembly Committee on Correction with the Committee on Mental Health: Regarding Mental Illness in Correctional Settings. November 13, 2014. Albany NY.
Oped: Venters HD and Keller AS, The Health of Immigrant Detainees. Boston Globe, April 11, 2009.
Testimony: U.S. House of Representatives, House Judiciary Committee’s Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law: Hearing on Problems with Immigration Detainee Medical Care, June 4, 2008.

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Peer Reviewed Publications
Parmar PK, Leigh J, Venters H, Nelson T. Violence and mortality in the Northern Rakhine State of Myanmar, 2017: results of a quantitative survey of surviving community leaders in Bangladesh. Lancet Planet Health. 2019 Mar;3(3):e144-e153.
Venters H. Notions from Kavanaugh hearings contradict medical facts. Lancet. 10/5/18.
Taylor GP, Castro I, Rebergen C, Rycroft M, Nuwayhid I, Rubenstein L, Tarakji A, Modirzadeh N, Venters H, Jabbour S. Protecting health care in armed conflict: action towards accountability. Lancet. 4/14/18.
Katyal M, Leibowitz R, Venters H. IGRA-Based Screening for Latent Tuberculosis Infection in Persons Newly Incarcerated in New York City Jails. J Correct Health Care. 2018 4/18.
Harocopos A, Allen B, Glowa-Kollisch S, Venters H, Paone D, Macdonald R. The Rikers Island Hot Spotters: Exploring the Needs of the Most Frequently Incarcerated. J Health Care Poor Underserved. 4/28/17.
MacDonald R, Akiyama MJ, Kopolow A, Rosner Z, McGahee W, Joseph R, Jaffer M, Venters H. Feasibility of Treating Hepatitis C in a Transient Jail Population. Open Forum Infect Dis. 7/7/18.
Siegler A, Kaba F, MacDonald R, Venters H. Head Trauma in Jail and Implications for Chronic Traumatic Encephalopathy. J Health Care Poor and Underserved. In Press (May 2017).
Ford E, Kim S, Venters H. Sexual abuse and injury during incarceration reveal the need for reentry trauma screening. Lancet. 4/8/18.
Alex B, Weiss DB, Kaba F, Rosner Z, Lee D, Lim S, Venters H, MacDonald R. Death After Jail Release. J Correct Health Care. 1/17.
Akiyama MJ, Kaba F, Rosner Z, Alper H, Kopolow A, Litwin AH, Venters H, MacDonald R. Correlates of Hepatitis C Virus Infection in the Targeted Testing Program of the New York City Jail System. Public Health Rep. 1/17.
Kalra R, Kollisch SG, MacDonald R, Dickey N, Rosner Z, Venters H. Staff Satisfaction, Ethical Concerns, and Burnout in the New York City Jail Health System. J Correct Health Care. 2016 Oct;22(4):383-392.
Venters H. A Three-Dimensional Action Plan to Raise the Quality of Care of US Correctional Health and Promote Alternatives to Incarceration. Am J Public Health. April 2016.104.
Glowa-Kollisch S, Kaba F, Waters A, Leung YJ, Ford E, Venters H. From Punishment to Treatment: The “Clinical Alternative to Punitive Segregation” (CAPS) Program in New York City Jails. Int J Env Res Public Health. 2016. 13(2),182.
Jaffer M, Ayad J, Tungol JG, MacDonald R, Dickey N, Venters H. Improving Transgender Healthcare in the New York City Correctional System. LGBT Health. 2016 1/8/16.

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Granski M, Keller A, Venters H. Death Rates among Detained Immigrants in the United States. Int J Env Res Public Health. 2015. 11/10/15.
Michelle Martelle, Benjamin Farber, Richard Stazesky, Nathaniel Dickey, Amanda Parsons, Homer Venters. Meaningful Use of an Electronic Health Record in the NYC Jail System. Am J Public Health. 2015. 8/12/15.
Fatos Kaba, Angela Solimo, Jasmine Graves, Sarah Glowa-Kollisch, Allison Vise, Ross MacDonald, Anthony Waters, Zachary Rosner, Nathaniel Dickey, Sonia Angell, Homer Venters. Disparities in Mental Health Referral and Diagnosis in the NYC Jail Mental Health Service. Am J Public Health. 2015. 8/12/15.
Ross MacDonald, Fatos Kaba, Zachary Rosner, Alison Vise, Michelle Skerker, David Weiss, Michelle Brittner, Nathaniel Dickey, Homer Venters. The Rikers Island Hot Spotters. Am J Public Health. 2015. 9/17/15.
Selling Molly Skerker, Nathaniel Dickey, Dana Schonberg, Ross MacDonald, Homer Venters. Improving Antenatal Care for Incarcerated Women: fulfilling the promise of the Sustainable Development Goals. Bulletin of the World Health Organization.2015.
Jasmine Graves, Jessica Steele, Fatos Kaba, Cassandra Ramdath, Zachary Rosner, Ross MacDonald, Nathanial Dickey, Homer Venters. Traumatic Brain Injury and Structural Violence among Adolescent males in the NYC Jail System J Health Care Poor Underserved. 2015;26(2):345-57.
Glowa-Kollisch S, Graves J, Dickey N, MacDonald R, Rosner Z, Waters A, Venters H. DataDriven Human Rights: Using Dual Loyalty Trainings to Promote the Care of Vulnerable Patients in Jail. Health and Human Rights. Online ahead of print, 3/12/15.
Teixeira PA1, Jordan AO, Zaller N, Shah D, Venters H. Health Outcomes for HIV-Infected Persons Released From the New York City Jail System With a Transitional Care-Coordination Plan. 2014. Am J Public Health. 2014 Dec 18.
Selling D, Lee D, Solimo A, Venters H. A Road Not Taken: Substance Abuse Programming in the New York City Jail System. J Correct Health Care. 2014 Nov 17.
Glowa-Kollisch S, Lim S, Summers C, Cohen L, Selling D, Venters H. Beyond the Bridge: Evaluating a Novel Mental Health Program in the New York City Jail System. Am J Public Health. 2014 Sep 11.
Glowa-Kollisch S, Andrade K, Stazesky R, Teixeira P, Kaba F, MacDonald R, Rosner Z, Selling D, Parsons A, Venters H. Data-Driven Human Rights: Using the Electronic Health Record to Promote Human Rights in Jail. Health and Human Rights. 2014. Vol 16 (1): 157-165.
MacDonald R, Rosner Z, Venters H. Case series of exercise-induced rhabdomyolysis in the New York City Jail System. Am J Emerg Med. 2014. Vol 32(5): 446-7.
Bechelli M, Caudy M, Gardner T, Huber A, Mancuso D, Samuels P, Shah T, Venters H. Case Studies from Three States: Breaking Down Silos Between Health Care and Criminal Justice. Health Affairs. 2014. Vol. 3. 33(3):474-81.

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Selling D, Solimo A, Lee D, Horne K, Panove E, Venters H. Surveillance of suicidal and nonsuicidal self-injury in the new York city jail system. J Correct Health Care. 2014. Apr:20(2).
Kaba F, Diamond P, Haque A, MacDonald R, Venters H. Traumatic Brain Injury Among Newly Admitted Adolescents in the New York City Jail System. J Adolesc Health. 2014. Vol 54(5): 6157.
Monga P, Keller A, Venters H. Prevention and Punishment: Barriers to accessing health services for undocumented immigrants in the United States. LAWS. 2014. 3(1).
Kaba F, Lewsi A, Glowa-Kollisch S, Hadler J, Lee D, Alper H, Selling D, MacDonald R, Solimo A, Parsons A, Venters H. Solitary Confinement and Risk of Self-Harm Among Jail Inmates. Amer J Public Health. 2014. Vol 104(3):442-7.
MacDonald R, Parsons A, Venters H. The Triple Aims of Correctional Health: Patient safety, Population Health and Human Rights. Journal of Health Care for the Poor and Underserved. 2013. 24(3).
Parvez FM, Katyal M, Alper H, Leibowitz R, Venters H. Female sex workers incarcerated in New York City jails: prevalence of sexually transmitted infections and associated risk behaviors. Sexually Transmitted Infections. 89:280-284. 2013.
Brittain J, Axelrod G, Venters H. Deaths in New York City Jails: 2001 – 2009. Am J Public Health. 2013 103:4.
Jordan AO, Cohen LR, Harriman G, Teixeira PA, Cruzado-Quinones J, Venters H. Transitional Care Coordination in New York City Jails: Facilitating Linkages to Care for People with HIV Returning Home from Rikers Island. AIDS Behav. Nov. 2012.
Jaffer M, Kimura C, Venters H. Improving medical care for patients with HIV in New York City jails. J Correct Health Care. 2012 Jul;18(3):246-50.
Ludwig A, Parsons, A, Cohen, L, Venters H. Injury Surveillance in the NYC Jail System, Am J Public Health 2012 Jun;102(6).
Venters H, Keller, AS. Psychiatric Services. (2012) Diversion of Mentally Ill Patients from Court-ordered care to Immigration Detention. Epub. 4/2012.
Venters H, Gany, F. Journal of Immigrant and Minority Health (2011) Mental Health Concerns Among African Immigrants. 13(4): 795-7.
Venters H, Foote M, Keller AS. Journal of Immigrant and Minority Health. (2010) Medical Advocacy on Behalf of Detained Immigrants. 13(3): 625-8.
Venters H, McNeely J, Keller AS. Health and Human Rights. (2010) HIV Screening and Care for Immigration Detainees. 11(2) 91-102.
Venters H, Keller AS. Journal of Health Care for the Poor and Underserved. (2009) The Immigration Detention Health Plan: An Acute Care Model for a Chronic Care Population. 20:951-957.

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Venters H, Gany, F. Journal of Immigrant and Minority Health (2009) African Immigrant Health. 4/4/09.
Venters H, Dasch-Goldberg D, Rasmussen A, Keller AS, Human Rights Quarterly (2009) Into the Abyss: Mortality and Morbidity among Detained Immigrant. 31 (2) 474-491.
Venters H, The Lancet (2008) Who is Jack Bauer? 372 (9653).
Venters H, Lainer-Vos J, Razvi A, Crawford J, Shaf’on Venable P, Drucker EM, Am J Public Health (2008) Bringing Health Care Advocacy to a Public Defender’s Office. 98 (11).
Venters H, Razvi AM, Tobia MS, Drucker E. Harm Reduct J. (2006) The case of Scott Ortiz: a clash between criminal justice and public health. Harm Reduct J. 3:21
Cloez-Tayarani I, Petit-Bertron AF, Venters HD, Cavaillon JM (2003) Internat. Immunol. Differential effect of serotonin on cytokine production in lipopolysaccharide-stimulated human peripheral blood mononuclear cells.15,1-8.
Strle K, Zhou JH, Broussard SR, Venters HD, Johnson RW, Freund GG, Dantzer R, Kelley KW, (2002) J. Neuroimmunol. IL-10 promotes survival of microglia without activating Akt. 122, 9-19.
Venters HD, Broussard SR, Zhou JH, Bluthe RM, Freund GG, Johnson RW, Dantzer R, Kelley KW, (2001) J. Neuroimmunol. Tumor necrosis factor(alpha) and insulin-like growth factor-I in the brain: is the whole greater than the sum of its parts? 119, 151-65.
Venters HD, Dantzer R, Kelley KW, (2000) Ann. N. Y. Acad. Sci. Tumor necrosis factor-alpha induces neuronal death by silencing survival signals generated by the type I insulin-like growth factor receptor. 917, 210-20.
Venters HD, Dantzer R, Kelley KW, (2000) Trends. Neurosci. A new concept in neurodegeneration: TNFalpha is a silencer of survival signals. 23, 175-80.
Venters HD, Tang Q, Liu Q, VanHoy RW, Dantzer R, Kelley KW, (1999) Proc. Natl. Acad. Sci. USA. A new mechanism of neurodegeneration: A proinflammatory cytokine inhibits receptor signaling by a survival peptide, 96, 9879-9884.
Venters HD, Ala TA, Frey WH 2nd , (1998) Inhibition of antagonist binding to human brain muscarinic receptor by vanadium compounds. Recept. Signal. Transduct. 7, 137-142.
Venters HD, Tang Q, Liu Q, VanHoy RW, Dantzer R, Kelley KW, (1999) Proc. Natl. Acad. Sci. USA. A new mechanism of neurodegeneration: A proinflammatory cytokine inhibits receptor signaling by a survival peptide, 96, 9879-9884.
Venters HD, Ala TA, Frey WH 2nd , (1998) Inhibition of antagonist binding to human brain muscarinic receptor by vanadium compounds. Recept. Signal. Transduct. 7, 137-142.
Venters HD, Bonilla LE, Jensen T, Garner HP, Bordayo EZ, Najarian MM, Ala TA, Mason RP, Frey WH 2nd, (1997) Heme from Alzheimer's brain inhibits muscarinic receptor binding via thiyl radical generation. Brain. Res. 764, 93-100.

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Kjome JR, Swenson KA, Johnson MN, Bordayo EZ, Anderson LE, Klevan LC, Fraticelli AI, Aldrich SL, Fawcett JR, Venters HD, Ala TA, Frey WH 2nd (1997) Inhibition of antagonist and agonist binding to the human brain muscarinic receptor by arachidonic acid. J. Mol. Neurosci. 10, 209-217.
Honors and Presentations (past 10 years)
Keynote Address, Academic Correctional Health Conference, April 2020, Chapel Hill, North Carolina.
TedMed Presentation, Correctional Health, Boston MA, March 2020.
Finalist, Prose Award for Literature, Social Sciences category for Life and Death in Rikers Island, February, 2020.
Keynote Address, John Howard Association Annual Benefit, November 2019, Chicago IL.
Keynote Address, Kentucky Data Forum, Foundation for a Healthy Kentucky, November 2019, Cincinnati Ohio.
Oral Presentation, Dual loyalty and other human rights concerns for physicians in jails an prisons. Association of Correctional Physicians, Annual meeting. 10/16, Las Vegas.
Oral Presentation, Clinical Alternatives to Punitive Segregation: Reducing self-harm for incarcerated patients with mental illness. American Public Health Association Annual Meeting, November 2015, Chicago IL.
Oral Presentation, Analysis of Deaths in ICE Custody over 10 Years . American Public Health Association Annual Meeting, November 2015, Chicago IL.
Oral Presentation, Medication Assisted Therapies for Opioid Dependence in the New York City Jail System. American Public Health Association Annual Meeting, November 2015, Chicago IL.
Oral Presentation, Pathologizing Normal Human Behavior: Violence and Solitary Confinement in an Urban Jail. American Public Health Association Annual Meeting, November 2014, New Orleans, LA.
Training, International Committee of the Red Cross and Red Crescent, Medical Director meeting 10/15, Presentation on Human Rights and dual loyalty in correctional health.
Paper of the Year, American Public Health Association. 2014. (Kaba F, Lewis A, GlowaKollisch S, Hadler J, Lee D, Alper H, Selling D, MacDonald R, Solimo A, Parsons A, Venters H. Solitary Confinement and Risk of Self-Harm Among Jail Inmates. Amer J Public Health. 2014. Vol 104(3):442-7.)
Oral Presentation, Pathologizing Normal Human Behavior: Violence and Solitary Confinement in an Urban Jail. American Public Health Association Annual Meeting, New Orleans LA, 2014.
Oral Presentation, Human rights at Rikers: Dual loyalty among jail health staff. American Public Health Association Annual Meeting, New Orleans LA, 2014.
Poster Presentation, Mental Health Training for Immigration Judges. American Public Health

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Association Annual Meeting, New Orleans LA, 2014.
Distinguished Service Award; Managerial Excellence. Division of Health Care Access and Improvement, NYC DOHMH. 2013.
Oral Presentation, Solitary confinement in the ICE detention system. American Public Health Association Annual Meeting, Boston MA, 2013.
Oral Presentation, Self-harm and solitary confinement in the NYC jail system. American Public Health Association Annual Meeting, Boston MA, 2013.
Oral Presentation, Implementing a human rights practice of medicine inside New York City jails. American Public Health Association Annual Meeting, Boston MA, 2013.
Poster Presentation, Human Rights on Rikers: integrating a human rights-based framework for healthcare into NYC’s jail system. American Public Health Association Annual Meeting, Boston MA, 2013.
Poster Presentation, Improving correctional health care: health information exchange and the affordable care act. American Public Health Association Annual Meeting, Boston MA, 2013.
Oral Presentation, Management of Infectious Disease Outbreaks in a Large Jail System. American Public Health Association Annual Meeting, Washington DC, 2011.
Oral Presentation, Diversion of Patients from Court Ordered Mental Health Treatment to Immigration Detention. American Public Health Association Annual Meeting, Washington DC, 2011.
Oral Presentation, Initiation of Antiretroviral Therapy for Newly Diagnosed HIV Patients in the NYC Jail System. American Public Health Association Annual Meeting, Washington DC, 2011.
Oral Presentation, Medical Case Management in Jail Mental Health Units. American Public Health Association Annual Meeting, Washington DC, 2011.
Oral Presentation, Injury Surveillance in New York City Jails. American Public Health Association Annual Meeting, Washington DC, 2011.
Oral Presentation, Ensuring Adequate Medical Care for Detained Immigrants. Venters H, Keller A, American Public Health Association Annual Meeting, Denver, CO, 2010.
Oral Presentation, HIV Testing in NYC Correctional Facilities. Venters H and Jaffer M, American Public Health Association, Annual Meeting, Denver, CO, 2010.
Oral Presentation, Medical Concerns for Detained Immigrants. Venters H, Keller A, American Public Health Association Annual Meeting, Philadelphia, PA, November 2009.
Oral Presentation, Growth of Immigration Detention Around the Globe. Venters H, Keller A, American Public Health Association Annual Meeting, Philadelphia, PA, November 2009.
Oral Presentation, Role of Hospital Ethics Boards in the Care of Immigration Detainees. Venters H, Keller A, American Public Health Association Annual Meeting, Philadelphia, PA,

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November 2009.
Oral Presentation, Health Law and Immigration Detainees. Venters H, Keller A, American Public Health Association Annual Meeting, Philadelphia, PA, November 2009.
Bro Bono Advocacy Award, Advocacy on behalf of detained immigrants. Legal Aid Society of New York, October 2009.
Oral Presentation, Deaths of immigrants detained by Immigration and Customs Enforcement. Venters H, Rasmussen A, Keller A, American Public Health Association Annual Meeting, San Diego CA, October 2008.
Poster Presentation, Death of a detained immigrant with AIDS after withholding of prophylactic Dapsone. Venters H, Rasmussen A, Keller A, Society of General Internal Medicine Annual Meeting, Pittsburgh PA, April 2008.
Poster Presentation, Tuberculosis screening among immigrants in New York City reveals higher rates of positive tuberculosis tests and less health insurance among African immigrants. Society of General Internal Medicine Annual Meeting, Pittsburgh PA, April 2008.
Daniel Leicht Award for Achievement in Social Medicine, Montefiore Medical Center, Department of Family and Social Medicine, 2007.
Poster Presentation, Case Findings of Recent Arestees. Venters H, Deluca J, Drucker E. Society of General Internal Medicine Annual Meeting, Toronto Canada, April 2007.
Poster Presentation, Bringing Primary Care to Legal Aid in the Bronx. Venters H, Deluca J, Drucker E. Society of General Internal Medicine Annual Meeting, Los Angeles CA, April 2006.
Poster Presentation, A Missed Opportunity, Diagnosing Multiple Myeloma in the Elderly Hospital Patient. Venters H, Green E., Society of General Internal Medicine Annual Meeting, New Orleans LA, April 2005.
Grants: Program
San Diego County: Review of jail best practices (COCHS), 1/2020, $90,000.
Ryan White Part A - Prison Release Services (PRS). From HHS/HRSA to Correctional Health Services (NYC DOHMH), 3/1/16-2/28/17 (Renewed since 2007). Annual budget $ 2.7 million.
Ryan White Part A - Early Intervention Services- Priority Population Testing. From HHS/HRSA to Correctional Health Services (NYC DOHMH), 3/1/16-2/28/18 (Renewed since 2013). Annual budget $250,000.
Comprehensive HIV Prevention. From HHS to Correctional Health Services (NYC DOHMH), 1/1/1612/31/16. Annual budget $500,000.
HIV/AIDS Initiative for Minority Men. From HHS Office of Minority Health to Correctional Health Services (NYC DOHMH), 9/30/14-8/31/17. Annual budget $375,000.

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12
SPNS Workforce Initiative, From HRSA SPNS to Correctional Health Services (NYC DOHMH), 8/1/147/31/18. Annual budget $280,000.
SPNS Culturally Appropriate Interventions. From HRSA SPNS to Correctional Health Services (NYC DOHMH), 9/1/13-8/31/18. Annual budget $290,000.
Residential substance abuse treatment. From New York State Division of Criminal Justice Services to Correctional Health Services (NYC DOHMH), 1/1/11-12/31/17. Annual budget $175,000.
Community Action for Pre-Natal Care (CAPC). From NY State Department of Health AIDS Institute to Correctional Health Services (NYC DOHMH), 1/1/05-12/31/10. Annual budget $290,000.
Point of Service Testing. From MAC/AIDS, Elton John and Robin Hood Foundations to Correctional Health Services (NYC DOHMH), 11/1/09-10/31/12. Annual budget $100,000.
Mental Health Collaboration Grant. From USDOJ to Correctional Health Services (NYC DOHMH), 1/1/11-9/30/13. Annual budget $250,000.
Teaching
Instructor, Health in Prisons Course, Bloomberg School of Public Health, Johns Hopkins University, June 2015, June 2014, April 2019.
Instructor, Albert Einstein College of Medicine/Montefiore Social Medicine Program Yearly lectures on Data-driven human rights, 2007-present.
Other Health & Human Rights Activities
DIGNITY Danish Institute Against Torture, Symposium with Egyptian correctional health staff regarding dual loyalty and data-driven human rights. Cairo Egypt, September 20-23, 2014.
Doctors of the World, Physician evaluating survivors of torture, writing affidavits for asylum hearings, with testimony as needed, 7/05-11/18.
United States Peace Corps, Guinea Worm Educator, Togo West Africa, June 1990- December 1991.
-Primary Project; Draconculiasis Eradication. Activities included assessing levels of infection in 8 rural villages and giving prevention presentations to mothers in Ewe and French -Secondary Project; Malaria Prevention.
Books
Venters H. Life and Death in Rikers Island. Johns Hopkins University Press. 2/19.
Chapters in Books
Venters H. Mythbusting Solitary Confinement in Jail. In Solitary Confinement Effects, Practices, and Pathways toward Reform. Oxford University Press, 2020.

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13
MacDonald R. and Venters H. Correctional Health and Decarceration. In Decarceration. Ernest Drucker, New Press, 2017.

Membership in Professional Organizations
American Public Health Association

French Ewe

Proficient Conversant

Foreign Language Proficiency

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14
Prior Testimony and Deposition
Benjamin v. Horn, 75 Civ. 3073 (HB) (S.D.N.Y.) as expert for defendants, 2015 Rodgers v. Martin 2:16-cv-00216 (U.S.D.C. N.D.Tx) as expert for plaintiffs, 10/19/17 Fikes v. Abernathy, 2017 7:16-cv-00843-LSC (U.S.D.C. N.D.AL) as expert for plaintiffs 10/30/17. Fernandez v. City of New York, 17-CV-02431 (GHW)(SN) (S.D.NY) as defendant in role as City Employee 4/10/18. Charleston v. Corizon Health INC, 17-3039 (U.S.D.C. E.D. PA) as expert for plaintiffs 4/20/18. Gambler v. Santa Fe County, 1:17-cv-00617 (WJ/KK) as expert for plaintiffs 7/23/18. Hammonds v. Dekalb County AL, CASE NO.: 4:16-cv-01558-KOB as expert for plaintiffs 11/30/2018. Mathiason v. Rio Arriba County NM, No. D-117-CV-2007-00054, as expert for plaintiff 2/7/19. Hutchinson v. Bates et. al. AL, No. 2:17-CV-00185-WKW- GMB, as expert for plaintiff 3/27/19. Lewis v. East Baton Rouge Parish Prison LA, No. 3:16-CV-352-JWD-RLB, as expert for plaintiff 6/24/19. Belcher v. Lopinto, No. 2:2018cv07368 - Document 36 (E.D. La. 2019) as expert for plaintiffs 12/5/2019. Imoerati v. Semple, U.S. District Court, CT. No 3:18cv01847 (RNC), on behalf of plaintiffs, 3/11/20.
Fee Schedule
Case review, reports, testimony $500/hour. Site visits and other travel, $2,500 per day (not including travel costs).

Case 4:20-cv-00596-RDP-JHE

Document 26-4

Filed 05/06/20

Page 1 of 3

FILED

2020 May-06 PM 11:59

U.S. DISTRICT COURT

N.D. OF ALABAMA

EXHIBIT 25

Case 4:20-cv-00596-RDP-JHE Document 26-4 Filed 05/06/20 Page 2 of 3
SUPPLEMENTAL DECLARATION OF RANDANE WILLIAMS
I, Randane Williams, hereby declare under penalty of perjury that the following is true and correct to the best of my knowledge:
1. I recently learned that someone in a different unit has COVID-19 and I am worried.
2. Around March, they moved everybody from unit 10 – where I was – to unit 9. It was a lot of us. The whole unit was full. We have four-man cells and two-man cells. Right now, all the four-man cells are packed. I have been housed in the same two-man cell since being moved.
3. People are still being transferred to our unit. Since moving to unit 9, I have seen at least four inmates move to our unit. Just last week, one inmate was moved into our unit.
4. In terms of the staff, they have shifts of different people every day. It’s common for me to see completely new staff members I have not seen before. Yesterday they had someone completely new. Staff members only have masks on, they do not wear gloves and they do not have hand sanitizer in the unit.
5. They give us each six small bars of soap every Thursday and I have stopped getting shampoo. If I run out of soap, they won’t give you more. I have run out of soap and have asked for more but they told me I had to wait till Thursday. They do not provide disinfectant or hand sanitizer.
6. To use the restroom, I usually have to use the toilet in my cell. Otherwise, there is one toilet outside of my cell for the whole unit. We do not get any supplies to clean the toilet. The only people who get cleaning supplies are the cleaning workers in the unit. They only clean the showers and that one communal toilet. I have been using shampoo that I bought in the commissary to clean my own toilet. The shower area is like a communal place with thirteen shower heads. Inmate workers clean the bathroom and showers only once every other day.
7. Two days ago, they provided us with one new mask each after having had the same mask for about three or four weeks. It’s the same type of mask. They did not provide information on when they will give us new masks. They did not tell us about whether we need to clean the masks or how to clean it. After you put them on for hours they get sweaty and you can’t really put them back on your face.
8. They do not regularly clean the common areas and things like phones, the seats we sit on and the commissary area. Maybe every 12 hours. The phone I’m using right now, I don’t know if they have cleaned it.
9. We get food in a hard tray with four different spots for food. The tray is not covered in plastic. I don’t know if it’s disinfected or cleaned. They don’t tell us and I don’t work in the kitchen.

Case 4:20-cv-00596-RDP-JHE Document 26-4 Filed 05/06/20 Page 3 of 3
10. All the information I get from COVID-19 is from the news. They have not come here to speak with us about it and made no announcement about COVID-19. I asked a CO about COVID-19 a few weeks back and was told it’s not in Alabama. We heard rumors that the unit downstairs has one COVID-19 positive case. Someone asked the staff and they confirmed.
11. This declaration was read to me in English, and I swear it is true. I have authorized Khaled Alrabe, National Immigration Project of the National Lawyers Guild, to sign for me.
Executed this 6th day of May 2020.
s/Khaled Alrabe Randane Williams

Case 4:20-cv-00596-RDP-JHE

Document 26-5

Filed 05/06/20

Page 1 of 3

FILED

2020 May-06 PM 11:59

U.S. DISTRICT COURT

N.D. OF ALABAMA

EXHIBIT 26

Case 4:20-cv-00596-RDP-JHE Document 26-5 Filed 05/06/20 Page 2 of 3
Supplemental Declaration of Karim Golding
1. I have reviewed the declarations Supervisory Deportation Officer Pttman submitted in this case.
2. As of April the 3rd, 2020 ICE detainees in Unit 10 were merged with detainees in Unit 9. There are now 99 detainees crammed into Unit 9. Some of us are in four man cells and while others are in two man cells. The entire unit was never quarantined in a single unit for 14 days with detainees in an individual cell. It is not physically possible to house 100 detainees in a unit whose capacity is 128 and for each detainee to have an individual cell.
3. There was no test issued when the two units merged. When detainees asked to get tested for the virus they were discouraged by the medical staffing team. We were not moved to any other “sterile” unit. Since the units merged, there have been at least more than three detainees that have been introduced into the community. This is quite contrary to the statement made by officer Pitman in paragraph 13 of his affidavit. We are in constant contact with staff and correction officers. Detainees are still being brought to and fro to medical.
4. There were at least four detainees that came into contact with other detainees who were in contact with multiple confirmed cases of COVID-19. These detainees were transferred from Baltimore after Howard detention center was closed down because of the pandemic. They came into contact with detainees from New York detention centers. These detainees were then moved to the LaSalle ICE center but were barred from entering the dormitory as other detainees rioted against their intake into the dorm. They were then brought to ECDC and have since been on the unit without any test or quarantine measures. This is in direct opposition to the statement made by Officer Pitman in paragraph 14.
5. Detainees have been told that there are no tests at ECDC, which is the reason why we were unable to get tested. Dr. Page, a doctor here, told us that they have screening, but no testing. On March 23, 2020, I went the medical unit with a headache, shortness of breath, throat drip, and diarrhea. The medical staff told me that COVID-19 test was painfil and unnecessary and just gave me tylenol and allergy medications.
6. Detainees have not been informed of any confirmed case in ECDC, medical personnel do not perform medical screenings in the form of daily vital sign checks of all the detainees in order to mitigate the spread of the virus in opposition. Officer’s Pitman’s statements in paragraph 18, section b are untrue.

Case 4:20-cv-00596-RDP-JHE Document 26-5 Filed 05/06/20 Page 3 of 3
7. In direct opposition to paragraph 20 ofOfficer Pitman’s statement, ECDC does not provide industrial cleaner, frequent soap, paper towels or effective face masks. They issue only 1 mask designed to be used for only 8 hours. I have received 1 mask in 3 weeks.
8. In direct opposition to paragraph 20 of Officer Pitman’s statement, our access to disinfectant is limited. Disinfectant is only issued once a week and we are advised by the staff to stretch it. The daily forced air machine only distributes disinfectant solutions for less than 2 minutes. We are not removed from our unit when the forced machine air is used. We are not given the extra supply of hand soap for the shower or the sink as described. They are limited even to the amount of toilet paper and bath soap needed. There are no disinfectant dispensers with the unit or paper towels. Everyday supplies are not routinely checked or available.
9. Given the ongoing COVID-19 crisis, I have authorized my attorney Jeremy Jong to sign for me. I can provide my original signature upon request.
I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. I understood and verified its contents in full.
Executed on May 5, 2020 in Etowah County Detention Center.
________________________________________ Jeremy Jong signing on behalf of Karim Golding

Case 4:20-cv-00596-RDP-JHE

Document 26-6

Filed 05/06/20

Page 1 of 10

FILED

2020 May-06 PM 11:59

U.S. DISTRICT COURT

N.D. OF ALABAMA

EXHIBIT 27

Case 4:20-cv-00596-RDP-JHE Document 26-6 Filed 05/06/20 Page 2 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA

ARCHILLA, et al., Petitioners-Plaintiffs,
v. WITTE, et al.,
Respondents-Defendants.

Civil Action No.: 4:20-cv-596-RDP-JHE

DECLARATION OF AARON REICHLIN-MELNICK I, Aaron Reichlin-Melnick, make the following declaration based on my personal knowledge and declare under the penalty of perjury pursuant to 28 U.S.C. § 1746, that the following is true and correct. 1. I am a Policy Counsel at the American Immigration Council (“Immigration Council”), a nonprofit and non-partisan organization whose mission includes the use of facts to educate the public on the important and enduring contributions that immigrants make to America. 2. I make this Declaration in order to show that, based on comprehensive available data, the vast majority of noncitizens who are in removal proceedings, but who are not detained, nevertheless appear for scheduled removal hearings. Individuals who have been in the United States for at least one year appear for removal hearings 88% of the time, rising to 91% for those who have been in the United States for more than ten years. For those noncitizens who have
1

Case 4:20-cv-00596-RDP-JHE Document 26-6 Filed 05/06/20 Page 3 of 10
counsel, the appearance rate approaches 100%. As every plaintiff in this case is a long-time resident of the United States, this data demonstrates, in my opinion, that the asserted governmental interest in ensuring appearance at court hearings and preventing flight risk does not justify declining to release noncitizens who are at risk of contracting COVID-19.
Basis for Opinion 3. At the Immigration Council, I track and analyze immigration-related statistics produced by the Department of Homeland Security (“DHS”) and the Executive Office for Immigration Review (“EOIR”), including trends in the appearance rate of asylum seekers and other noncitizens placed into detention. In my role as Policy Counsel, I have previously submitted declarations analyzing government-produced immigration statistics.1 4. I am familiar with the universe of relevant public statistics published by DHS and EOIR. One of the key statistics that I study in my role as Policy Counsel is the appearance rate of noncitizens who are placed into removal proceedings. I am the principal author of a July 2019 Immigration Council publication on the rate that noncitizens appear in removal proceedings.2 I am also the author of an op-ed for the Wall Street Journal explaining the fundamental flaws in EOIR’s current methodology for reporting the rate at which noncitizens appear in court.3 5. In preparation for this declaration I have extensively reviewed all public material produced by EOIR on the appearance rates of noncitizens in court, as well as data on removal hearings from Fiscal Year (“FY”) 2001 through March 2020 that is made public through
1 Innovation Law Lab v. Wolf, 3:19-cv-00807-RS (N.D. Cal. filed Feb. 14, 2019), Padilla v. ICE, No. 2:18-cv00928-MJP (W.D. Wash. filed June 25, 2018), East Bay Sanctuary Coalition II v. Wolf, 3:19-cv-04073-JST (N.D. Cal filed July 16, 2019). 2 American Immigration Council, Immigrants and Families Appear in Court: Setting the Record Straight (2019), available at https://www.americanimmigrationcouncil.org/research/immigrants-and-families-appear-court. 3 Aaron Reichlin-Melnick, Trump’s Bad Immigration Math: In absentia’ rates grossly overstate asylum-seekers’ propensity to skip court., W.S.J., July 30, 2019, https://www.wsj.com/articles/trumps-bad-immigration-math11564526852.
2

Case 4:20-cv-00596-RDP-JHE Document 26-6 Filed 05/06/20 Page 4 of 10
Syracuse University’s Transactional Records Access Clearinghouse Center (“TRAC”), a nonpartisan academic center which obtains EOIR data through the Freedom of Information Act.
6. Analysis of this data reveals that most noncitizens placed in removal proceedings appear in court. Over the past decade, more than 80% of all noncitizens placed in removal proceedings inside the United States4 appeared for every scheduled removal proceeding. Those represented by counsel were overwhelmingly likely to appear for every scheduled hearing, at a rate of 97%. Furthermore, since Fiscal Year 2014, noncitizens released from detention were more likely to appear in court than those who had never been detained in the first place.
Background of Removal and Appearance Process 7. When a respondent in immigration court fails to appear, an immigration judge will generally order the respondent removed for failure to appear.5 Importantly, the issuance of a removal order for failure to appear does not mean that the respondent absconded. Many people fail to appear through no fault of their own, either because they were not properly served with a hearing notice or because an extraordinary circumstance prevented their appearance. In many of those situations, individuals may file a motion to reopen. See 8 C.F.R. § 1003.23(b)(4)(ii). 8. Many respondents successfully overturn an order of removal for failure to appear. Accounting for cases in which a removal order for failure to appear is overturned “significantly impacts and reduces the [failure to appear] rates.” See TRAC, What Happens When Individuals
4 Throughout this declaration, I have excluded all cases of noncitizens placed into the Migrant Protection Protocols (“MPP”), a DHS program in which asylum seekers are not permitted to enter the United States but are instead placed into removal proceedings and sent to Mexico, where they must periodically return to a port of entry to access their scheduled removal proceedings. Because MPP cases are categorically different than those that occur inside the United States, they have been excluded. 5 8 C.F.R. 1003.26(c) provides that when a respondent “fails to appear, the Immigration Judge shall order the alien removed in absentia if” the government proves by clear and convincing evidence that the respondent is removable and that the respondent received notice of the hearing and of the consequences of failing to appear.
3

Case 4:20-cv-00596-RDP-JHE Document 26-6 Filed 05/06/20 Page 5 of 10
Are Released On Bond in Immigration Court Proceedings?, at n. 7 (Sept. 14, 2016), available at https://trac.syr.edu/immigration/reports/438/.
9. Qualitative research into “in absentia” orders of removal suggests that filing errors at either DHS or EOIR are the underlying cause of many failures to appear. CLINIC & Urban Justice Ctr., Denied a Day in Court: The Government’s Use of In Absentia Removal Orders Against Families Seeking Asylum (Mar. 2019), available at https://cliniclegal.org/resources/removal-proceedings/denied-day-court-governments-useabsentia-removal-orders-against. One example of this kind of bureaucratic mistake included in the report is an asylum seeker who received two letters in the mail on the same day, one telling her to appear in court the week prior, and another telling her she had been ordered removed for missing that hearing. Id. at 19. She successfully reopened her case. Id. As part of the report, attorneys successful overturned 34 out of 36 orders of removal for failure to appear.
Data Analysis Demonstrating that a Significant Majority of Noncitizens Appear for Every Removal Proceedings
10. From FY 2009 through March 2020, a total of 1,948,699 cases have been filed in which at least one scheduled hearing for a person who was not detained (“nondetained hearing”) has occurred. Out of these nearly two million cases, the noncitizen has appeared for every scheduled nondetained hearing in 1,571,923 cases—80.7% of the time. This roughly 80% appearance rate for all noncitizens placed in nondetained removal proceedings has been largely consistent since about FY 2007 (see Figure 1).
4

Case 4:20-cv-00596-RDP-JHE Document 26-6 Filed 05/06/20 Page 6 of 10
Fig. 1: Percent of Nondetained Respondents That Appeared at Every Hearing by fiscal year that a case was begun
100.00% 90.00% 80.00% 70.00% 60.00% 50.00% 40.00% 30.00% 20.00% 10.00%
0.00%
Fiscal Year Case Begun Source: TRAC, State and County Details on Deportation Proceedings in Immigration Court,
https://trac.syr.edu/phptools/immigration/nta/ * MPP cases excluded from FY2019 and FY2020
11. Those noncitizens who are represented by counsel are even more likely to appear. From FY 2009 through March 2020, a total of 1,364,641 cases were filed in which the respondent was represented by counsel and at least one scheduled nondetained hearing has occurred. Out of these cases, the noncitizen has appeared for every scheduled nondetained hearing in 1,326,274 cases—97.2%.
12. This extremely high appearance rate for respondents who are represented by counsel has been consistent for decades (see Figure 2). This is one of the reasons why representation by counsel may be the most significant factor in the outcome of removal proceedings. See American Immigration Council, Access to Counsel in Immigration Court (Sept. 2016) (noting that “Represented immigrants who were never detained were nearly five times more likely than their unrepresented counterparts to obtain relief if they sought it.”).
5

Case 4:20-cv-00596-RDP-JHE Document 26-6 Filed 05/06/20 Page 7 of 10
Fig. 2: Percent of Represented Nondetained Respondents That Appeared at Every Hearing by fiscal year that a case was begun
100.00% 90.00% 80.00% 70.00% 60.00% 50.00% 40.00% 30.00% 20.00% 10.00% 0.00%
Source: TRAC, State and County Details on Deportation Proceedings in Immigration Court, https://trac.syr.edu/phptools/immigration/nta/
* MPP cases excluded from FY2019 and FY2020
13. Appearance rates vary among different groups placed into removal proceedings. Three groups in particular have a higher appearance rate than the average: asylum seekers who have been found to have a credible fear of persecution, individuals released from ICE detention, and individuals who have been present in the United States for significant periods of time and have put down roots—that is, made a home here.
14. Over the last decade, an order of removal for failure to appear was issued in an estimated 12.6% of cases originating with a credible fear claim. From FY 2008 through FY 2018, a total of 345,356 cases were referred to the immigration courts following a credible fear claim (see Fig. 2). See EOIR, Rates of Asylum Filings in Cases Originating with a Credible Fear Claim (Nov. 2, 2018), available at https://www.justice.gov/eoir/page/file/1062971/download. Over the same time period, immigration judges issued 43,476 orders of removal in absentia for failure to appear in cases originating with a credible fear claim (see Fig. 1). See EOIR, In
6

Case 4:20-cv-00596-RDP-JHE Document 26-6 Filed 05/06/20 Page 8 of 10
Absentia Removal Orders in Cases Originating with a Credible Fear Claim (Oct. 23, 2019), available at https://www.justice.gov/eoir/page/file/1116666/download. Thus, over the past decade, evidence suggests that at least 87.4% of asylum seekers who went through the credible fear process appeared in immigration court for their scheduled removal proceedings, although some of those noncitizens may have been detained during proceedings.6
Figure 3: Orders of Removal For Failure to Appear in Credible Fear Cases FY 2008 to FY 2018
400,000 350,000 300,000 250,000 200,000 150,000 100,000 50,000
0 Cases Referred to Immigration Court In Absentia Removal Orders in Cases Following a Credible Fear Claim Originating with a Credible Fear Claim
15. This high appearance rate for asylum seekers is supported by an Immigration Council report analyzing EOIR data from 2001-2016, which found that 86 percent of all families released from immigration detention had a perfect court attendance rate. Ingrid Eagly, Steven Shafer, & Jana Whalley, Detaining Families: A Study of Asylum Adjudication in Family
6 EOIR data does not distinguish between proceedings that occurred inside detention with proceedings which occurred outside of detention. Therefore, this 87.4% appearance rate cannot be viewed as the appearance rate for all non-detained noncitizens who passed a credible fear interview. However, that asylum seekers would have a higher appearance rate than average is supported by the American Immigration Council study, infra.
7

Case 4:20-cv-00596-RDP-JHE Document 26-6 Filed 05/06/20 Page 9 of 10
Detention (2018), available at https://www.americanimmigrationcouncil.org/research/detaining-
families-a-study-of-asylum-adjudication-in-family-detention. For families who managed to
obtain counsel, the attendance rate rose to 96 percent. Id. at 23.
16. As with asylum seekers, those noncitizens who have been released from detention
are also more likely to appear in court than the average rate of around 80%. From FY 2009 to
March 2020, noncitizens who had been released from detention appeared in court 84.2% of the
time, compared to just 79.5% of the time for noncitizens who had never been detained.
17. In every year since FY 2014, individuals released from ICE detention have
appeared in court at higher rates than those never been detained in the first place (see Figure 4).
Fig. 4: Percent of Nondetained Respondents That Appeared at Every Hearing by custody status and fiscal year that a case was begun
100.00% 90.00% 80.00% 70.00% 60.00% 50.00% 40.00% 30.00% 20.00% 10.00% 0.00%
2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019* 2020* Fiscal Year Case Begun
Never-detained Inititally detained, then released
Source: TRAC, State and County Details on Deportation Proceedings in Immigration Court, https://trac.syr.edu/phptools/immigration/nta/
* MPP cases excluded from FY2019 and FY2020
18. Individuals who have been present in the United States for years—long enough to
put down roots—are also more likely to appear in court than those who are recent arrivals at the
border. For those respondents who have been present for at least one year, the appearance rate
8

Case 4:20-cv-00596-RDP-JHE Document 26-6 Filed 05/06/20 Page 10 of 10
never falls below 84% (see Figure 5). Noncitizens who have been present in the United States for ten or more years are overwhelmingly likely to appear. From FY 2009 through March 2020, a total of 117,894 cases were filed in which 1) at least one nondetained hearing occurred and 2) EOIR data indicates that the respondent had been present for at least ten years. Of these cases, the respondent appeared at every nondetained hearing in 107,507 cases—91.2%.
Fig. 5: Percent of Nondetained Respondents That Appeared at Every Hearing by time in the United States at initiation of removal proceedings, FY 2009 to March 2020
100.00% 90.00% 80.00% 70.00% 60.00% 50.00% 40.00% 30.00% 20.00% 10.00% 0.00%
Source: TRAC, State and County Details on Deportation Proceedings in Immigration Court, https://trac.syr.edu/phptools/immigration/nta/ * Excludes MPP cases
EXECUTED this 6th day of May, 2020.
_____________________________ AARON REICHLIN-MELNICK
9

Case 4:20-cv-00596-RDP-JHE Document 26-7 Filed 05/06/20 Page 1 of 95

FILED
2020 May-06PM 1:59 U.S. DISTRICT COURT
N.D. OFALBAMA

EXHIBIT 28

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1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10 ADRIAN RODRIGUEZ ALCANTARA;

11

YASMANI OSORIO REYNA; MARIA FLOR CALDERON LOPEZ; MARY

12 DOE; on behalf of themselves and all

13 others similarly situated,

Plaintiffs-Petitioners, 14

v. 15

16

GREGORY ARCHAMBEAULT, San Diego Field Office Director, Immigration

17 and Customs Enforcement; et al.,

18

Defendants-Respondents.

Case No.: 20cv0756 DMS (AHG)
ORDER (1) GRANTING IN PART PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND (2) GRANTING PLAINTIFFS’ MOTION FOR SUBCLASS-WIDE EMERGENCY TEMPORARY RESTRAINING ORDER

19

20

This case is one of many that have been filed throughout the country concerning the

21 detention of immigration detainees during the COVID-19 pandemic. The facilities at issue

22 in this case are Otay Mesa Detention Center (“Otay Mesa” or “OMDC”) and Imperial

23 Regional Detention Facility. Currently there are no COVID-19 cases at Imperial.

24 However, Otay Mesa is “home to the largest confirmed COVID-19 outbreak in any federal

25 immigration detention facility in the entire country[.]” (Compl. ¶4.) As of April 30, 2020,

26 ninety-eight (98) Immigration and Customs Enforcement (“ICE”) detainees at Otay Mesa

27 had tested positive for COVID-19. Over the course of the pandemic, six ICE detainees

28

1 20cv0756 DMS (AHG)

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1 from Otay Mesa have been hospitalized, four have been discharged, two remain

2 hospitalized, and one, an individual with diabetes, has recently been placed on a ventilator.

3

One of the Plaintiffs in this case is Adrian Rodriguez Alcantara, a 31-year-old

4 asylum seeker from Cuba with HIV. In February 2020, he passed his credible fear

5 interview, and he is currently awaiting a merits hearing on his asylum claim. (Id. ¶33.)

6 When the present case was filed, Mr. Rodriguez Alcantara was detained at Otay Mesa.

7 Since that time, he has been granted parole subject to the posting of a $4,000 bond and

8 final medical clearance, (Fed. Defs.’ Opp’n to Mot. at 6), but as of April 28, 2020, he was

9 still in custody. In the present case, Mr. Rodriguez Alcantara seeks to represent “All civil

10 immigration detainees incarcerated at the Otay Mesa Detention Center who are age 45

11 years or older or who have medical conditions that place them at heightened risk of severe

12 illness or death from COVID-19” (“the Otay Mesa Medically Vulnerable Subclass”).

13 (Compl. ¶155.) Mr. Rodriguez Alcantara alleges Defendants are violating Plaintiffs’ Fifth

14 Amendment rights to substantive due process by subjecting Plaintiffs “to punishment or

15 unreasonable heightened risk of contracting COVID-19” for no legitimate reason or

16 justification. (Id. ¶167.) He also alleges Defendants’ practices, “including but not limited

17 to maintaining population levels too high for social distancing to be possible,” subjects

18 Plaintiffs “to an unreasonable risk of serious harm, including severe illness and death, in

19 violation of their due process rights.” (Id.)

20

In the present motions, Plaintiffs request that the Court provisionally certify the Otay

21 Mesa Medically Vulnerable Subclass and issue an emergency temporary restraining order,

22 preliminary injunction and writ of habeas corpus securing the immediate release of all

23 members of that Subclass. The Federal Defendants and Defendant Christopher LaRose,

24 the Warden of Otay Mesa, each filed an opposition to the motion, and Plaintiffs filed a

25 reply. The motions came on for hearing on April 28, 2020. After the hearing, Warden

26 LaRose filed a supplemental brief indicating that the number of high risk ICE detainees at

27 Otay Mesa was not the 8 represented in his brief and at oral argument, but was in the range

28 of 51-69. Plaintiffs filed a response to that brief, and the Court thereafter held a status

2 20cv0756 DMS (AHG)

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1 conference with counsel to discuss the newly discovered facts. During that conference,

2 counsel for Warden LaRose represented to the Court that he received the updated numbers

3 from the Federal Defendants as part of their compliance with a preliminary injunction

4 issued in another class action case, Fraihat v. U.S. Immigration and Customs Enforcement,

5 ___ F.Supp.3d ___, No. EDCV 19-1546 JGB (SHKx), 2020 WL 1932570 (C.D. Cal. Apr.

6 20, 2020). At the conclusion of that conference, the Court issued an oral ruling granting in

7 part Plaintiffs’ motion to certify the Otay Mesa Medically Vulnerable Subclass and

8 granting the emergency motion for a TRO. In that oral ruling and in the order that followed,

9 (ECF No. 38), the Court stated it would set out its reasoning for those decisions in a more

10 detailed order to follow. This order sets out that reasoning.

11

I.

12

BACKGROUND

13

Otay Mesa Detention Center houses both ICE detainees and United States Marshals

14 Service detainees. (Decl. of Warden C. LaRose in Supp. of Opp’n to Mot. (“LaRose

15 Decl.”) ¶7.) It has a design capacity of 1,970 detainees, (id. ¶8), but as of April 26, 2020,

16 was operating at 50% capacity, with 987 detainees. (Id. ¶12.) Six hundred sixty-two of

17 those detainees are ICE detainees, 649 of which are in the general population and 13 of

18 which are assigned to Restricted Housing Units (“RHUs”). (Id.)

19

OMDC has instituted a number of new policies and practices to address the spread

20 of COVID-19 in the facility, including (1) the suspension of new detainee admissions,

21 social visits, volunteer entry and regularly scheduled facility audits, (2) health screening of

22 all persons entering the facility, (3) posting educational materials throughout the facility,

23 (4) increased sanitation, (5) provisions of masks to detainees, and (6) requiring employees

24 to use personal protective equipment.

25

OMDC has also instituted the practice of protective cohorting and medical

26 quarantine/isolation strategies. (Id. ¶28.) “Protective cohorts are considered ‘protective

27 areas,’ the opposite of a containment area, the objective being to keep the space free of the

28 COVID-19 virus.” (Id. ¶36.)

3 20cv0756 DMS (AHG)

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1

The purpose of establishing protective cohorts is to limit contact between the

2

identified vulnerable detainees and the general population and thus eliminate or decrease COVID-19 exposure and infection to those deemed high-risk.

3

General population detainees who are at heightened risk of infection from

4

COVID-19 due to age (currently 60 or over), heart disease, diabetes, lung disease, etc., but have not been exposed to the virus are moved into housing

5

pods, separate from the lower risk population.

6 (Id. ¶35.) According to Warden LaRose,

7

[c]ohort housing/quarantine is not a punitive measure, nor [ ] does it mean that

detainees are subjected to conditions of confinement in line with heightened

8

restrictions placed on RHU detainees. Rather, detainees are provided with the

9

same activities and opportunities as their normal general population status,

including access to recreation, dayroom time, programming, commissary,

10

legal visitation (including virtual visits when possible,), video court

11

appearances, telephone calls, detainee mail operations, legal research via

housing pod kiosks, library access via request/delivery from the librarian, and

12

legal copy requests via the facility librarian, subject to COVID-19 restricted

13

movement protocols that now bring services to the pod versus detainees

moving throughout the facility for the same. 14

15 (Id. ¶42.) During the April 30 status conference, counsel for Warden LaRose

16 acknowledged that OMDC instituted the practice of protective cohorting even though

17 ICE’s Health Service Corps (“IHSC”), which provides healthcare service to ICE detainees

18 at Otay Mesa, (id. ¶8), does not do so.

19

Consistent with this practice of protective cohorting, on or about March 23, 2020,

20 IHSC produced “a list of 15 ICE OMDC detainees … identified as having heightened

21 COVID-19 risk-factors.” (Id. ¶37.) OMDC staff thereafter “moved the identified

22 vulnerable ICE detainees into previously empty units to establish protective cohorts,

23 separated from the rest of the detainee population.” (Id. ¶38.) Those detainees are 24 currently housed in R Pod. (Id. ¶39.) R Pod has capacity for 128 detainees,1 but as of

25

26

27 1 In his Declaration, Warden LaRose initially represented that R Pod had capacity for 64 detainees, but during the April 30 status conference, his counsel clarified that R Pod is
28 actually a 128-bed unit.

4 20cv0756 DMS (AHG)

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1 April 26, 2020, was housing only 20 ICE detainees, all male.2 (Id.) As of April 28, 2020,

2 the number of high-risk detainees in R Pod had decreased to eight. “Detainees in R Pod

3 have not had any positive COVID-19 tests.” (Id.)

4

This practice of protective cohorting, however, does not appear to be working as

5 planned. As mentioned above, there are somewhere between 43 and 61 additional

6 detainees in Otay Mesa who IHSC has recently identified as being at high risk for severe

7 complications from COVID-19. As of April 30, 2020, Warden LaRose did not know where

8 those detainees were being housed, i.e., whether they were in a protective cohort or in one

9 of the other ten available housing units,3 all of which, save one (J Pod), had at least one

10 confirmed case of COVID-19.

11

As for the J Pod, Warden LaRose states it has capacity for 128 detainees, although

12 as of April 26, 2020, it was housing only 102 detainees. Warden LaRose explains that J

13 Pod is an open sleeping bay unit, which is apparent in the photographs attached to his

14 Declaration. (LaRose Decl., Attach. 12.) In addition to the open sleeping bays, J Pod has

15 a dayroom area where detainees are allowed to congregate. Although OMDC promotes

16 social distancing in these areas, it does not require social distancing between detainees, and

17 claims there is no way for it to enforce that practice. Indeed, OMDC admits that detainees

18 are not social distancing from each other, which is confirmed in the photos of J Pod. (Id.)

19 / / /

20 / / /

21 / / /

22 / / /

23 / / /

24

25 2 According to Warden LaRose, female detainees “identified as having heightened
26 COVID-19 risk factors have left OMDC.” (Id.)
27 3 It appears there are fifteen housing units at OMDC. (Id. ¶102.) One (R Pod) is currently being used as a protective cohort for high risk detainees. Four others (Pods E, H, K and L)
28 are currently being used as Medical Unit Housing overflow. (Id. ¶52.)

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1

II.

2

MOTION FOR CLASS CERTIFICATION4

3

“The class action is ‘an exception to the usual rule that litigation is conducted by and

4 on behalf of the individual named parties only.’” Wal-Mart Stores, Inc. v. Dukes, 564 U.S.

5 338, 348 (2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979)). To qualify

6 for the exception to individual litigation, the party seeking class certification must provide

7 facts sufficient to satisfy the requirements of Federal Rule of Civil Procedure 23(a) and (b).

8 Doninger v. Pacific Northwest Bell, Inc., 564 F.2d 1304, 1308-09 (9th Cir. 1977). “The

9 Rule ‘does not set forth a mere pleading standard.’” Comcast Corp. v. Behrend, 569 U.S.

10 27, 33 (2013) (quoting Dukes, 564 U.S. at 350). “Rather, a party must not only ‘be prepared

11 to provide that there are in fact sufficiently numerous parties, common questions of law or

12 fact,’ typicality of claims of defenses, and adequacy of representation, as required by Rule

13 23(a). The party must also satisfy through evidentiary proof at least one of the provisions

14 of Rule 23(b)[.]” Id. (quoting Dukes, 564 U.S. at 350) (internal citation omitted).

15

Federal Rule of Civil Procedure 23(a) sets out four requirements for class

16 certification—numerosity, commonality, typicality, and adequacy of representation. A

17 showing that these requirements are met, however, does not warrant class certification.

18 The plaintiff also must show that one of the requirements of Rule 23(b) is met. Here,

19 Plaintiffs assert they meet the requirements of Rule 23(b)(2).

20

Rule 23(b)(2) allows class treatment when “the party opposing the class has acted or

21 refused to act on grounds that apply generally to the class, so that final injunctive relief or

22 corresponding declaratory relief is appropriate respecting the class as a whole[.]” Fed. R.

23 Civ. P. 23(b)(2). Because the relief requested in a (b)(2) class is prophylactic, enures to

24 the benefit of each class member, and is based on accused conduct that applies uniformly

25

26

27 4 In accordance with the Court’s April 24, 2020 Order Setting Hearing and Providing Guidance on Further Briefing, the discussion that follows relates only to the Otay Mesa
28 Medically Vulnerable Subclass.

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1 to the class, notice to absent class members and an opportunity to opt out of the class is not

2 required. See Dukes, 564 U.S. at 361-62 (noting relief sought in a (b)(2) class “perforce

3 affect[s] the entire class at once” and thus, the class is “mandatory” with no opportunity to

4 opt out).

5

The district court must conduct a rigorous analysis to determine whether the

6 prerequisites of Rule 23 have been met. Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982).

7 It is a well-recognized precept that “the class determination generally involves

8 considerations that are ‘enmeshed in the factual and legal issues comprising the plaintiff’s

9 cause of action.”’ Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 (1978) (quoting

10 Mercantile Nat’l Bank v. Langdeau, 371 U.S. 555, 558 (1963)). However, “[a]lthough

11 some inquiry into the substance of a case may be necessary to ascertain satisfaction of the

12 commonality and typicality requirements of Rule 23(a), it is improper to advance a decision

13 on the merits to the class certification stage.” Moore v. Hughes Helicopters, Inc., 708 F.2d

14 475, 480 (9th Cir. 1983) (citation omitted); see also Nelson v. United States Steel Corp.,

15 709 F.2d 675, 680 (11th Cir. 1983) (plaintiff’s burden “entails more than the simple

16 assertion of [commonality and typicality] but less than a prima facie showing of liability”)

17 (citation omitted). Rather, the court’s review of the merits should be limited to those

18 aspects relevant to making the certification decision on an informed basis. See Fed. R. Civ.

19 P. 23 advisory committee notes. If a court is not fully satisfied that the requirements of

20 Rule 23(a) and (b) have been met, certification should be refused. Falcon, 457 U.S. at 161.

21 B. Rule 23(a)

22

Rule 23(a) and its prerequisites for class certification—numerosity, commonality,

23 typicality, and adequacy of representation—are addressed in turn.

24

1. Numerosity

25

Rule 23(a)(1) requires the class to be “so numerous that joinder of all members is

26 impracticable.” Fed. R. Civ. P. 23(a)(1); Staton v. Boeing Co., 327 F.3d 938, 953 (9th Cir.

27 2003). The plaintiff need not state the exact number of potential class members; nor is a

28 specific minimum number required. Arnold v. United Artists Theatre Circuit, Inc., 158

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1 F.R.D. 439, 448 (N.D. Cal. 1994). Rather, whether joinder is impracticable depends on

2 the facts and circumstances of each case. Id.

3

Here, Plaintiffs asserted in their motion that there were at least 15 detainees in Otay

4 Mesa who were medically vulnerable to COVID-19. (Mot. for Class Cert. at 13.)

5 Defendants initially asserted there were only 8 high risk ICE detainees in Otay Mesa, and

6 based on that number, Defendants argued the numerosity requirement was not satisfied.

7 (Opp’n to Mot. for Class Cert. at 6 n.6.) However, they have withdrawn that argument in

8 light of the updated numbers set out in Warden LaRose’s supplemental brief. In light of

9 that filing, the Court finds the numerosity requirement is satisfied.

10

2. Commonality

11

The second element of Rule 23(a) requires the existence of “questions of law or fact

12 common to the class[.]” Fed. R. Civ. P. 23(a)(2). This element has “‘been construed

13 permissively,’ and ‘[a]ll questions of fact and law need not be common to satisfy the rule.’”

14 Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011) (quoting Hanlon v.

15 Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998)). “However, it is insufficient to

16 merely allege any common question[.]” Id. Instead, the plaintiff must allege the existence

17 of a “common contention” that is of “such a nature that it is capable of classwide

18 resolution[.]” Dukes, 564 U.S. at 350. As summarized by the Supreme Court:

19

What matters to class certification ... is not the raising of common

20

‘questions’—even in droves—but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the

21

litigation. Dissimilarities within the proposed class are what have the

22

potential to impede the generation of commons answers.

23 Id. (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84

24 N.Y.U. L. Rev. 97, 132 (2009)).

25

In this case, Plaintiffs assert the commonality requirement is met because all

26 subclass members are confined in Otay Mesa, and all are at high risk for severe illness or

27 death from COVID-19. Defendants do not dispute these assertions. Instead, they raise

28 other arguments, none of which is persuasive.

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1

First, Defendants argue that although each subclass member is at high risk, each has

2 a different risk profile. (Opp’n to Mot. for Class Cert. at 9.) This may be true, but it does

3 not detract from the undisputed common feature of the subclass, which is that each member

4 is at high risk.

5

Second, Defendants assert Plaintiffs have failed to present evidence that the subclass

6 members are subject to a common practice at Otay Mesa. However, Plaintiffs’ claim is not

7 based on any specific policy or practice. Rather, Plaintiffs are challenging their continued

8 confinement and the conditions of that confinement in a congregate environment that is in

9 the midst of the worst outbreak of COVID-19 in any ICE detention facility in the country.

10 As so construed, Defendants’ argument does not defeat a finding of commonality.

11

Third, Defendants contend that commonality does not exist here because “the Court

12 must determine whether the facility was aware of each detainee’s vulnerable condition and

13 consider the measures taken to abate their specific risk.” (Id. at 10.) Contrary to

14 Defendants’ argument, however, Plaintiffs’ claim does not require a showing that

15 Defendants were aware of the medical vulnerabilities of each subclass member, nor does

16 it require investigation into the measures taken to protect each one individually. The only

17 test for Plaintiffs’ claim is whether the continued confinement or conditions of confinement

18 of subclass members in Otay Mesa, in light of the spread of COVID-19 throughout the

19 facility, amounts to punishment. Bell v. Wolfish, 441 U.S. 520, 535 (1979). That is a

20 question common to the subclass, and its answer will drive resolution of the case.

21

Defendants’ other arguments about whether each subclass member is suitable for

22 release, and that conditions should be placed on each subclass members’ release, are

23 addressed in the Court’s temporary restraining order, and thus they do not defeat a finding

24 of commonality. On the contrary, the Court finds there are questions of law and fact

25 common to this subclass.

26

3. Typicality

27

The next requirement of Rule 23(a) is typicality, which focuses on the relationship

28 of facts and issues between the class and its representatives. “[R]epresentative claims are

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1 ‘typical’ if they are reasonably co-extensive with those of absent class members; they need

2 not be substantially identical.” Hanlon, 150 F.3d at 1020. “The test of typicality is whether

3 other members have the same or similar injury, whether the action is based on conduct

4 which is not unique to the named plaintiffs, and whether other class members have been

5 injured by the same course of conduct.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508

6 (9th Cir. 1992) (citation and internal quotation marks omitted). The typicality requirement

7 will occasionally merge with the commonality requirement, Parsons, 754 F.3d at 687,

8 because “[b]oth serve as guideposts for determining whether under the particular

9 circumstances maintenance of a class action is economical and whether the named

10 plaintiff’s claim and the class claims are so interrelated that the interests of the class

11 members will be fairly and adequately protected in their absence.” Dukes, 564 U.S. at 349

12 n.5.

13

Here, Plaintiffs rely on the arguments raised on commonality to support a showing

14 of typicality, namely, that Mr. Rodriguez Alcantara is detained in Otay Mesa and is

15 medically vulnerable to COVID-19. Again, Defendants do not dispute these facts, but they

16 argue Mr. Rodriguez Alcantara is nonetheless atypical of the proposed subclass.

17 Specifically, they assert he does not meet the CDC guidelines for medical vulnerability

18 because he has not shown his HIV is “poorly controlled.” (Opp’n to Mot. for Class Cert.

19 at 13.)

20

In support of their argument, Defendants cite to a CDC website, but that link is no

21 longer active. Based on the Court’s review of the CDC website, people who are

22 immunocompromised, including those having “HIV with a low CD4 cell count or not on

23 HIV treatment,” may be at higher risk. https://www.cdc.gov/coronavirus/2019-ncov/need-

24 extra-precautions/groups-at-higher-risk.html. In his Declaration, Mr. Rodriguez Alcantara

25 states OMDC staff have tested his blood, but they have not provided him with the results

26 of those tests, including his CD4 count and viral load. (Decl. of Adrian Rodriguez

27 Alcantara in Supp. of Mot. for Class Cert. ¶5.) Thus, Mr. Alcantara does not know whether

28 he is currently suffering from a low CD4 cell count. Defendants did not provide that

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1 information in their briefing, therefore the Court is also unable to make that determination.

2 Nevertheless, Mr. Rodriguez Alcantara’s HIV status, in itself, appears to place him in the

3 category of “immunocompromised” individuals who may be at higher risk from COVID-

4 19. As such, his claim is typical of the claims of subclass members.

5

4. Adequacy of Representation

6

The final requirement of Rule 23(a) is adequacy. Rule 23(a)(4) requires a showing

7 that “the representative parties will fairly and adequately protect the interests of the class.”

8 Fed. R. Civ. P. 23(a)(4). This requirement is grounded in constitutional due process

9 concerns; “absent class members must be afforded adequate representation before entry of

10 a judgment which binds them.” Hanlon, 150 F.3d at 1020 (citing Hansberry v. Lee, 311

11 U.S. 32, 42-43 (1940)). In reviewing this issue, courts must resolve two questions: “(1) do

12 the named plaintiffs and their counsel have any conflicts of interest with other class

13 members and (2) will the named plaintiffs and their counsel prosecute the action vigorously

14 on behalf of the class?” Id. (citing Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507,

15 512 (9th Cir. 1978)). The named plaintiffs and their counsel must have sufficient “zeal and

16 competence” to protect the interests of the rest of the class. Fendler v. Westgate-California

17 Corp., 527 F.2d 1168, 1170 (9th Cir. 1975).

18

Here, Plaintiffs assert there is no conflict between Mr. Rodriguez Alcantara and his

19 counsel and other subclass members, and that they will vigorously represent the class.

20 Defendants do not dispute that the adequacy requirement is met, and the Court so finds.

21 C. Rule 23(b)

22

Having satisfied the requirements of Rule 23(a), the next issue is whether Plaintiffs

23 have shown that at least one of the requirements of Rule 23(b) is met. Amchem Products,

24 Inc. v. Windsor, 521 U.S. 591, 614-15 (1997). Here, Plaintiffs assert they have met the

25 prerequisites of certification for a class under Rule 23(b)(2).

26

Under Rule 23(b)(2), class certification may be appropriate where a defendant acted

27 or refused to act in a manner applicable to the class generally, rendering injunctive and

28 declaratory relief appropriate to the class as a whole. Fed. R. Civ. P. 23(b)(2).

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1

The key to the (b)(2) class is “the indivisible nature of the injunctive or

2

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

3

none of them.” [citation omitted] In other words, Rule 23(b)(2) applies only

4

when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each

5

individual class member would be entitled to a different injunction or

6

declaratory judgment against the defendant.

7 Dukes, 564 U.S. at 360.

8

Here, Plaintiffs argue the subclass is particularly suited for certification under Rule

9 23(b)(2) because Defendants are acting on grounds generally applicable to the subclass,

10 and the injunctive relief sought is appropriate for the subclass as a whole. Defendants do

11 not address Rule 23(b)(2), but the Court agrees with Plaintiffs that this case meets its

12 requirements.

13

The only other issue on certification is whether the Fraihat decision precludes

14 certification of the subclass in this case. In Fraihat, the court granted provisional class

15 certification to two subclasses that could possibly overlap with the Otay Mesa Medically

16 Vulnerable Subclass proposed here. Those subclasses include detainees in ICE custody

17 who (1) are over 55 years of age and have certain Risk Factors that place them at heightened

18 risk of severe illness and death upon contracting COVID-19 and (2) have certain

19 disabilities that place them at heightened risk of severe illness and death upon contracting

20 COVID-19. Fraihat v. Immigration and Customs Enforcement, No. EDCV 19-1546 JGB

21 (SHKx), 2020 WL 1932393, at *1 (C.D. Cal. Apr. 20, 2020). Plaintiffs here argue the Otay

22 Mesa Medically Vulnerable Subclass is different in that it includes people age 45 and older.

23 They also assert the relief sought in this case is different from that ordered in Fraihat.

24

Although there is some overlap between this case and Fraihat, this Court declines

25 to find that Fraihat precludes certification of the Otay Mesa Medically Vulnerable

26 Subclass. As stated in a recent decision addressing this issue, “It does not appear that Judge

27 Bernal intended, by the general nationwide relief he ordered, to interfere with the ability of

28 facility-specific litigation to proceed. Nor, in any event, does a nationwide class action

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1 covering specific relief at specific facilities seem manageable.” Zepeda Rivas v. Jennings,

2 ___ F.Supp.3d ___, No. 20-cv-02731-VC, 2020 WL 2059848, at *4 (N.D. Cal. Apr. 29,

3 2020). This Court agrees with that reasoning, and thus declines to deny the present motion

4 in light of Fraihat.

5

In light of the above, the Court grants Plaintiffs’ motion for certification of the Otay

6 Mesa Medically Vulnerable Subclass, with one modification: Plaintiffs request

7 certification of a subclass of detainees age 45 years or older on the ground that people in

8 this age group may be at higher risk of severe illness or death from COVID-19. Notably,

9 CDC guidelines do not cover this age group. Rather, they define “older adults” at higher

10 risk from COVID-19 as persons “65 years old and older[,]”

11 https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/older-adults.html,

12 and ICE considers detainees at higher risk if they are age 60 or older. (Decl. of Kelley

13 Beckhelm Assistant Officer in Charge of Immigration and Customs Enforcement

14 Enforcement and Removal Operations Otay Mesa Detention Facility ¶21 n.3.) Given the

15 CDC and ICE guidelines, and the lack of accepted evidence to support a finding that people

16 between the ages of 45 and 59 are at the same heightened risk as those 60 years old and

17 above, the Court declines to include them in the Otay Mesa Medically Vulnerable Subclass.

18 With that modification, the Court provisionally certifies the following subclass under

19 Federal Rule of Civil Procedure 23(b)(2):

20

All civil immigration detainees incarcerated at the Otay Mesa Detention

21

Center who are 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

22

by CDC guidelines.

23 Plaintiff Rodriguez Alcantara is appointed as Subclass Representative, and Counsel from

24 the ACLU Foundation of San Diego and Imperial Counties are appointed as counsel for

25 this Subclass pursuant to Federal Rule of Civil Procedure 23(g).

26 / / /

27 / / /

28 / / /

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1

III.

2

EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER

3

Turning to Plaintiffs’ motion for a TRO, the purpose of a TRO is to preserve the

4 status quo before a preliminary injunction hearing may be held; its provisional remedial

5 nature is designed merely to prevent irreparable loss of rights prior to judgment. Granny

6 Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers, 415 U.S. 423, 439

7 (1974). The standard for issuing a temporary restraining order is identical to the standard

8 for issuing a preliminary injunction. Lockheed Missile & Space Co., Inc. v. Hughes

9 Aircraft Co., 887 F. Supp. 1320, 1323 (N.D. Cal. 1995). Injunctive relief is an

10 “extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is

11 entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008).

12 To meet that showing, Plaintiffs must demonstrate “‘[they are] likely to succeed on the

13 merits, that [they are] likely to suffer irreparable harm in the absence of preliminary relief,

14 that the balance of equities tips in [their] favor, and that an injunction is in the public

15 interest.’” Am. Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009)

16 (quoting Winter, 555 U.S. at 20).5

17

18

19 5 Warden LaRose argues Plaintiffs are requesting a mandatory injunction rather than a
20 prohibitory injunction. The Ninth Circuit applies separate standards for injunctions
21 depending on whether they are prohibitory, i.e. they prevent future conduct, or mandatory, i.e. “they go beyond ‘maintaining the status quo[.]’” Hernandez v. Sessions, 872 F.3d 976,
22 997 (9th Cir. 2017). To the extent Plaintiffs are requesting mandatory relief, that request
23 is “subject to a higher standard than prohibitory injunctions,” namely that relief will issue only “when ‘extreme or very serious damage will result’ that is not capable of
24 compensation in damages,’ and the merits of the case are not ‘doubtful.’” Id. at 999
25 (quoting Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009)). The Ninth Circuit recognizes that application of these different standards
26 “is controversial[,]” and that other Circuits have questioned this approach. Id. at 997-98.
27 This Court need not, and does not, address that discrepancy here. To the extent some portion of Plaintiffs’ requested relief is subject to a standard higher than the traditional
28 standard for injunctive relief, Plaintiffs have met their burden for the reasons set out below.

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1 A. Likelihood of Success6

2

“The first factor under Winter is the most important—likely success on the merits.”

3 Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015). While Plaintiffs carry the

4 burden of demonstrating likelihood of success, they are not required to prove their case in

5 full at this stage but only such portions that enable them to obtain the injunctive relief they

6 seek. See Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981).

7

As stated above, the only claim alleged in this case is that Defendants are violating

8 Plaintiffs’ rights to substantive due process under the Fifth Amendment. To prevail on this

9 claim, Plaintiffs must show their continued confinement or their conditions of confinement

10 amount to punishment. Bell, 441 U.S. at 535. In Bell, the Supreme Court stated that “if a

11 particular condition or restriction of pretrial detention is reasonably related to a legitimate

12 governmental objective, it does not, without more, amount to ‘punishment.’” Id. at 539.

13 “Conversely, if a restriction or condition is not reasonably related to a legitimate goal-if it

14 is arbitrary or purposeless-a court permissibly may infer that the purpose of the

15 governmental action is punishment that may not constitutionally be inflicted upon

16 detainees qua detainees.” Id. The Ninth Circuit, expanding upon Bell, has held that a

17 condition or restriction of confinement “is ‘punitive’ where it is intended to punish, or

18 where it is ‘excessive in relation to [its non-punitive] purpose,’ or is ‘employed to achieve

19 objectives that could be accomplished in so many alternative and less harsh methods[.]’”

20 Jones v. Blanas, 393 F.3d 918, 934 (9th Cir. 2004) (citations omitted).

21

Numerous courts across the country have considered whether, in light of the

22 COVID-19 pandemic, the continued confinement of ICE detainees or conditions of

23 confinement at federal detention facilities amounts to punishment in violation of the Fifth

24

25 6 Defendants argue the Court lacks jurisdiction over Plaintiffs’ habeas petition, therefore
26 Plaintiffs’ do not have a likelihood of success on the merits of their claim. Defendants
27 raised this same argument in Habibi v. Barr, No. 20cv0618 BAS(RBB), 2020 WL 1864642 (S.D. Cal. Apr. 14, 2020). The Habibi court rejected the argument, id. at *2 n.2, and this
28 Court adopts that reasoning and conclusion here.

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1 Amendment’s substantive due process clause. See, e.g., Zepeda Rivas, ___ F.Supp.3d ___,

2 2020 WL 2059848 (N.D. Cal. Apr. 29, 2020); Doe v. Barr, No. 20-CV-02263-RMI, 2020

3 WL 1984266 (N.D. Cal. Apr. 27, 2020); Martinez Franco v. Jennings, No. 20-CV-02474-

4 CRB, 2020 WL 1976423 (N.D. Cal. Apr. 24, 2020); Fraihat, 2020 WL 1932570; Singh v.

5 Barr, No. 20-CV-02346-VKD, 2020 WL 1929366 (N.D. Cal. Apr. 20, 2020); Lopez-

6 Marroquin v. Barr, No. 20cv0682 LAB(MDD), 2020 WL 1905341 (S.D. Cal. Apr. 17,

7 2020); Habibi, 2020 WL 1864642; Perez v. Wolf, No. 5:19-CV-05191-EJD, 2020 WL

8 1865303 (N.D. Cal. Apr. 14, 2020); Bent v. Barr, No. 19-CV-06123-DMR, 2020 WL

9 1812850 (N.D. Cal. Apr. 9, 2020); Ortuño v. Jennings, No. 20-CV-02064-MMC, 2020 WL

10 1701724 (N.D. Cal. Apr. 8, 2020); Dawson v. Asher, No. C20-0409JLR-MAT, 2020 WL

11 1704324 (W.D. Wash. Apr. 8, 2020); Xuyue Zhang v. Barr, ___ F.Supp.3d ___, No. ED

12 CV 20-00331-AB(RAOX), 2020 WL 1502607 (C.D. Cal. Mar. 27, 2020); Castillo v. Barr,

13 ___ F.Supp.3d ___, No. CV 20-00605 TJH (AFMX), 2020 WL 1502864 (C.D. Cal. Mar.

14 27, 2020). In the Ninth Circuit, the majority of district courts that have considered the

15 issue have concluded there is a likelihood plaintiffs will prevail on those claims. See, e.g.,

16 Zepeda Rivas, 2020 WL 2059848; Doe, 2020 WL 1984266; Singh, 2020 WL 1929366;

17 Fraihat, 2020 WL 1932570; Perez, 2020 WL 1865303. This Court agrees with that

18 majority.

19

Although “under normal circumstances” the confinement of ICE detainees “pending

20 removal proceedings is rationally related to the legitimate governmental interest of

21 ensuring their appearance for their deportation proceedings and preventing danger to the

22 community[,]” Lopez-Marroquin, 2020 WL 1905341, at *5, the current circumstances, and

23 in particular, the circumstances at Otay Mesa, are anything but normal. As of April 30,

24 2020, there have been 490 confirmed cases of COVID-19 among those in ICE custody out

25 of 1,030 detainees who have been tested, https://www.ice.gov/coronavirus, which

26 translates to a near fifty-percent infection rate. Otay Mesa currently has the highest number

27 of cases (98) in any ICE detention facility, id., and all but one of its available housing units

28 are currently under quarantine with at least one confirmed case of COVID-19.

16 20cv0756 DMS (AHG)

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1

Under these circumstances, then, the question becomes whether the continued

2 confinement of the Otay Mesa Medically Vulnerable Subclass is excessive in relation to

3 its purpose, namely preventing danger to the community and ensuring appearance at

4 deportation hearings, or if that purpose could be achieved by less severe alternatives. There

5 is no dispute that such alternatives are available. Accordingly, Plaintiffs have

6 demonstrated a likelihood of success on their due process claim.

7 B. Irreparable Injury and Balance of Equities

8

Turning to the next two factors, Plaintiffs must show they are “‘likely to suffer

9 irreparable harm in the absence of preliminary relief[,]’” and demonstrate that “‘the balance

10 of equities tips in [their] favor.’” Hernandez, 872 F.3d at 995 (quoting Winter, 555 U.S. at

11 20). Plaintiffs have met their burden.

12

The subclass at issue here is comprised of individuals who are medically vulnerable

13 to severe illness and death if they contract COVID-19. That these individuals are more

14 susceptible to severe and dire consequences is not reasonably in dispute. Defendants do

15 dispute whether these individuals are at any greater risk of contracting COVID-19 in the

16 first place, but given the circumstances under which these individuals are being held, it is

17 clear they are at high risk. As stated above, Otay Mesa currently has the highest number

18 of confirmed COVID-19 cases among all ICE detention facilities. The number of positive

19 cases has gone from 25 on April 15 to 98 as of April 30, which is nearly a four-fold increase.

20 Furthermore, although Defendants have instituted new policies and procedures in response

21 to the COVID-19 outbreak, it is clear those policies and procedures are insufficient to

22 protect the medically vulnerable population. Indeed, Warden LaRose admitted he did not

23 have an accurate count of the medically vulnerable detainees in Otay Mesa until yesterday,

24 and he was unable to tell the Court where the overwhelming majority of those detainees

25 were currently being housed. Given the significant number of additional medically

26 vulnerable detainees identified yesterday (43-61), the evidence that only two pods are

27 currently free of COVID-19 infection, and one of those pods, the J Pod, is currently at near

28 80% capacity and detainees in that Pod are not practicing social distancing, the Otay Mesa

17 20cv0756 DMS (AHG)

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1 Medically Vulnerable Subclass is at great risk of contracting COVID-19. Thus, there is a

2 likelihood of irreparable harm in the absence of a TRO.

3

The balance of equities also weighs in favor of a TRO. On Plaintiffs’ side, the

4 issuance of a TRO will reduce the likelihood that subclass members will contract COVID-

5 19, and hopefully mitigate the spread of the virus in Otay Mesa. Defendants argue the

6 equities weigh in their favor, as the government has an interest in addressing flight risk and

7 protecting the public from dangerous persons. As stated above, however, flight risk may

8 be addressed through alternatives to detention, and the Court’s TRO preserves Defendants’

9 discretion to maintain custody of individuals who may present a danger to the community.

10 The Court’s TRO also addresses Defendants’ concern about setting appropriate conditions

11 for release. For these reasons, the Court finds the balance of equities weighs in favor of

12 issuance of the TRO.

13 C. Public Interest

14

The final factor for consideration is the public interest. See Hernandez, 872 F.3d at

15 996. To obtain the requested relief, “[p]laintiffs must demonstrate that the public interest

16 favors granting the injunction ‘in light of [its] likely consequences,’ i.e., ‘consequences

17 [that are not] too remote, insubstantial, or speculative and [are] supported by evidence.’”

18 Id. (quoting Stormans, Inc. v. Selecky, 586 F.3d 1109, 1139 (9th Cir. 2009)).

19

As with the balance of equities discussed above, the public interest here also weighs

20 in favor of issuing the TRO. As Plaintiffs point out, the public has an interest in preventing

21 the spread of the coronavirus, both in the general population and elsewhere. It also has an

22 interest in protecting the most vulnerable from the severe repercussions they face if infected

23 with the coronavirus. These interests, combined with Defendants’ continued ability to

24 exercise their discretion to determine who is to be released and under what conditions, are

25 all served by the issuance of the TRO.

26 / / /

27 / / /

28 / / /

18 20cv0756 DMS (AHG)

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1

IV.

2

CONCLUSION

3

For these reasons, and for the reasons set out during the April 30 status conference

4 and the order that followed, the Court grants in part Plaintiffs’ motion for class

5 certification, as set out above. The Court also confirms its issuance of the TRO set out in

6 its April 30, 2020 Order (ECF No. 38).

7

IT IS SO ORDERED.

8 DATED: May 1, 2020 9 10

____________________________________ DANA M. SABRAW United States District Judge

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

19 20cv0756 DMS (AHG)

Case 1C:2a0s-ecv4-:0204-c5v8--0D0D59D6--JRPDMP-JDHoEcumDeonctu1m7enFt i2le6d-704F/3il0e/d2005/P0a6g/2e01 oPfa4g8eP2a1goefID95#: 853

d UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION

TATALU HELEN DADA,ET AL. Petitioners

CIVIL DOCKET NO. 1: -CV-00

VERSUS

JUDGE DRELL

DIANNE WITTE,ET AL. , espondents

MAGISTRATE JUDGE PEREZ-MONTES

REPORT AND RECOMMENDATION Petitioners are civil immigration detainees. All await removal or other immigration proceedings. All attest that they are particularly vulnerable to the novel coronavirus, or “COVID-19.” And all seek immediate release from custody to until they are removed from the United States or their immigration proceedings are resolved. Respondents are the Department of Homeland Security/United States Immigration and Customs Enforcement (“ICE”) and various officials responsible for some aspect of Petitioners’ detention. Respondents oppose Petitioners’ release on jurisdictional and substantive grounds. Both sides advance legitimate positions. And together, they have established a substantial record. The Court must decide whether Petitioners are entitled to release given the risk factors associated with their detention, including their individual vulnerabilities to COVID-19. Petitioners may seek habeas corpus relief under 28 U.S.C. § 2241 and injunctive relief under Fed. R. Civ. P. 65. The Due Process Clause of the Fifth

Case 1C:2a0s-ecv4-:0204-c5v8--0D0D59D6--JRPDMP-JDHoEcumDeonctu1m7enFt i2le6d-704F/3il0e/d2005/P0a6g/2e02 oPfa4g8eP2a2goefID95#: 854
Amendment requires release if, given a particular situation, a Petitioner’s detention is no longer reasonably related to legitimate governmental purposes.
The relevant facts facing Petitioners, ICE, correctional officers, and the public, may also favor release. Under ordinary circumstances, ICE often releases civil detainees who do not pose a risk of flight or danger. Under these extraordinary circumstances, release is an even more viable option. Densely-populated facilities endanger those detained and working inside. That danger spills into surrounding communities. For these reasons, thousands of federal prisoners, state prisoners, and ICE detainees have already been conditionally released from detention facilities.1
In this case, 13 of the 16 Petitioners should also be conditionally released. One remaining Petitioner has tragically tested positive for COVID-19. Another has been released. And another has failed to establish a present right to release. All Petitioners’ immigration proceedings will proceed as normal, and any other detainee’s circumstances remain unchanged. But these Petitioners have established that their detention poses a grave and unconstitutional risk while failing to meaningfully serve ICE’s or the public’s interest. As such, injunctive relief is warranted under the Due Process Clause of the Fifth Amendment.
1 The United States Bureau of Prisons has released 1,805 prisoners to home confinement. COVID-19 Home Confinement Information, https://www.bop.gov/coronavirus/index.jsp (last visited Apr. 30, 2020). And the Chief Justice of the Louisiana Supreme Court has urged Louisiana judges to “minimize the number of people detained in jails where possible.” Letter to the Louisiana District Judges, Apr. 2, 2020, https://www.lasc.org/COVID19/2020-04-02LASC-ChiefLetterReCOVID-19andjailpopulation.pdf.
2

Case 1C:2a0s-ecv4-:0204-c5v8--0D0D59D6--JRPDMP-JDHoEcumDeonctu1m7enFt i2le6d-704F/3il0e/d2005/P0a6g/2e03 oPfa4g8eP2a3goefID95#: 855
I. Background A. Procedural Background Counsel for Petitioners originally filed this lawsuit in the United States
District Court for the Eastern District of Louisiana. Dada v. Witte, No. CV 20-1093, 2020 WL 1674129 (E.D. La. Apr. 6, 2020). But Petitioners are all presently detained in this District. So the Eastern District dismissed the suit without prejudice under the “immediate custodian rule,” which requires Petitioners to seek relief in the district of their confinement. See id. at *3.
Petitioners then refiled before this Court, seeking the same relief, including a TRO. See ECF Nos. 1, 2. Shortly after filing, the undersigned set an expedited briefing schedule and an evidentiary hearing (hereinafter, the “Hearing”). ECF No. 6. The parties submitted briefs and numerous exhibits.
At the Hearing, counsel for both sides argued, but did not offer additional evidence or testimony. All counsel confirmed that the record before the Court was adequate, and that additional briefing and evidence were unnecessary. However, since the Hearing, counsel for Petitioners have submitted notices and supplemental evidence. Tragically, among these submissions was: (1) a Notice that one Petitioner recently tested positive for COVID-19 (ECF No. 15); and (2) a news article indicating that two guards at Richwood Correctional Center have died after exhibiting symptoms consistent with COVID-19 (ECF No. 16-2).
Petitioners’ Motion for TRO (ECF No. 2) remains pending before the Court and ripe for disposition.
3

Case 1C:2a0s-ecv4-:0204-c5v8--0D0D59D6--JRPDMP-JDHoEcumDeonctu1m7enFt i2le6d-704F/3il0e/d2005/P0a6g/2e04 oPfa4g8eP2a4goefID95#: 856
B. Factual Background 1. The COVID-19 pandemic threatens human life and vital institutions, particularly at detention centers.
At this juncture, there is likely no need to describe the COVID-19 pandemic in detail. As to its disruption of daily life, one court stated that “[t]he virus has . . . upended American economic and social life, causing schools and businesses to shutter, and even the nominally unaffected to wear masks and stand six feet apart in public." Adams & Boyle, P.C. v. Slatery, No. 20-5408, 2020 WL 1982210, at *2 (6th Cir. Apr. 24, 2020). As to its devastating toll upon human life, according to the Centers for Disease Control and Prevention (“CDC”), 1,005,147 cases and 57,505 deaths have been reported in the United States.2 In Louisiana, 28,001 cases and 1,862 deaths have been reported.3 And in the Louisiana parishes home to the detention facilities housing Petitioners: (1) Ouachita Parish – 706 cases, 16 deaths; (2) LaSalle Parish – 23 cases; (2) Winn Parish – 32 cases, 2 deaths; (4) Catahoula Parish – 36 cases, 2 deaths; (5) Jackson Parish – 34 cases, 2 deaths; and (6) Evangeline Parish – 49 cases, 1 death.4
Given those tragic realities, the United States Court of Appeals for the Fifth Circuit has stated that “COVID-19 poses risks of harm to all Americans.” Valentine v. Collier, No. 20-20207, 2020 WL 1934431, at *5 (5th Cir. Apr. 22, 2020). At present,
2 Cases in the U.S., https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-inus.html (last visited Apr. 30, 2020). 3 Louisiana Coronavirus (COVID-19) Information, available at http://ldh.la.gov/coronavirus/ (last visited Apr. 30, 2020). 4 Id.
4

Case 1C:2a0s-ecv4-:0204-c5v8--0D0D59D6--JRPDMP-JDHoEcumDeonctu1m7enFt i2le6d-704F/3il0e/d2005/P0a6g/2e05 oPfa4g8eP2a5goefID95#: 857
COVID-19 remains medically “incurable” in the sense that “[t]here are no drugs or other therapeutics . . . approved by the . . . [(FDA)] to prevent or treat COVID-19.”5 COVID-19 appears to be highly infectious and transmissible, particularly where people are in close physical proximity with one another.6 “The best way to prevent illness is to avoid being exposed to this virus,” specifically by avoiding close contact with others, sanitizing, and wearing protective face covers.7
In large part due to these characteristics, COVID-19 has severely impacted detention facilities. This Court and many others have noted particular concern regarding the effect of COVID-19 in prisons. See, e.g., United States of America v. Vacarra Rogers, No. CR 3:15-00058-01, 2020 WL 1987350, at *2 (W.D. La. Apr. 27, 2020). The cause is apparent: “As warned by the CDC, conditions of confinement inherently prevent one’s ability to socially distance, which, until a treatment is discovered, or a vaccine developed, is the best measure to reduce the spread of the disease.” Sallaj v. U.S. Immigration & Customs Enf't ("ICE"), No. CV 20-167-JJMLDA, 2020 WL 1975819, at *3 (D.R.I. Apr. 24, 2020). Thus, “[t]he CDC has acknowledged the particular challenges faced by correctional and detention facilities in controlling the transmission of COVID-19 and has provided some guidance, as
5 CDC Information for Clinicians on Investigational Therapeutics for Patients with COVID1, https://www.cdc.gov/coronavirus/2019-ncov/hcp/therapeutic-options.html (last visited Apr. 29, 2020). 6 See How COVID-19 Spreads, available at https://www.cdc.gov/coronavirus/2019ncov/faq.html#Coronavirus-Disease-2019-Basics (last visited Apr. 29, 2020). 7 See How to Protect Yourself & Others, available at https://www.cdc.gov/coronavirus/2019ncov/prevent-getting-sick/prevention.html (last visited Apr. 29, 2020).
5

Case 1C:2a0s-ecv4-:0204-c5v8--0D0D59D6--JRPDMP-JDHoEcumDeonctu1m7enFt i2le6d-704F/3il0e/d2005/P0a6g/2e06 oPfa4g8eP2a6goefID95#: 858
several courts have recognized.” See United States v. Morris, No. 3:19-CR-573-B, 2020 WL 1694301, at *4 (N.D. Tex. Apr. 6, 2020).
Moreover, “older adults [age 65 and older] and people of any age who have serious underlying medical conditions might be at higher risk for severe illness from COVID-19.”8 Underlying medical conditions may include: (1) chronic lung disease; (2) moderate to severe asthma; (3) serious heart conditions; (4) immunocompromising conditions, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications; (5) severe obesity; (6) diabetes; (7) chronic kidney disease undergoing dialysis; and (8) liver disease.9
2. Petitioners seek relief specific and limited relief. Petitioners do not challenge their underlying immigration or removal proceedings. Petitioners also do not seek corrective relief for the specific conditions of their confinement. Instead, and in relevant part, Petitioners seek immediate release given their individual circumstances. II. Law and Analysis A. Jurisdiction
1. The Court need only address jurisdiction under 28 U.S.C. § 2241. "“Federal courts must resolve questions of jurisdiction before proceeding to the merits.” Ashford v. United States, 463 F. App'x 387, 391-92 (5th Cir. 2012).
8 People Who Are at Higher Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019ncov/need-extra-precautions/people-at-higher-risk.html (last visited Apr. 29, 2020). 9 Id.
6

Case 1C:2a0s-ecv4-:0204-c5v8--0D0D59D6--JRPDMP-JDHoEcumDeonctu1m7enFt i2le6d-704F/3il0e/d2005/P0a6g/2e07 oPfa4g8eP2a7goefID95#: 859
Petitioners assert several potential bases of jurisdiction. Among them is habeas corpus jurisdiction. Under 28 U.S.C. § 2241(c)(3), a district court may grant a writ of habeas corpus where an individual is “in custody in violation of the Constitution or laws or treaties of the United States.”
2. The Court has jurisdiction under § 2241 because Petitioners challenge the “fact and duration” of their detention, not their “conditions of confinement.”
Respondents argue that the Court lacks jurisdiction to consider Petitioners’ claims under 28 U.S.C. § 2241. This argument is based upon the distinction between “conditions of confinement” claims (“conditions claims”) and “fact or duration of confinement” claims (“fact claims”). The parties agree that a petitioner may, and should, assert fact claims under § 2241. See Poree v. Collins, 866 F.3d 235, 243 (5th Cir. 2017). But the parties dispute which type of claim Petitioners assert, and which “procedural vehicle” is appropriate for conditions claims. Because Petitioners assert fact claims, not conditions claims, the question regarding the correct procedural vehicle for conditions claims is not addressed. 10
Like the parties here, courts have long disagreed on these issues. But the United States Supreme Court and the Fifth Circuit have provided meaningful guidance. In Muhammad v. Close, for instance, the Supreme Court upheld a state prisoner’s right to assert a damages claim under 42 U.S.C. § 1983. 540 U.S. 749, 124
10 Many courts have approved ICE detainee conditions claims under § 2241. Respondents correctly point out that decisions in this circuit, while consistently skeptical, have not explicitly approved or prohibited § 2241 conditions claims. See, e.g., Poree, 866 F.3d at 243 (“While ‘fact or duration’ claims must be brought under habeas, the Supreme Court [and some other circuit courts] ha[ve] not foreclosed the use of habeas for other kinds of claims.”).
7

Case 1C:2a0s-ecv4-:0204-c5v8--0D0D59D6--JRPDMP-JDHoEcumDeonctu1m7enFt i2le6d-704F/3il0e/d2005/P0a6g/2e08 oPfa4g8eP2a8goefID95#: 860
S. Ct. 1303, 158 L. Ed. 2d 32 (2004). The prisoner had been convicted of a disciplinary offense and claimed to have suffered damages while detained for that conviction. See id. However, the prisoner did not ultimately challenge his conviction; he sought only damages, not expungement or reversal. See id. at 754.
The Court emphasized the distinction at issue here: Federal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under the Civil Rights Act of 1871, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983. Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus, Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); requests for relief turning on circumstances of confinement may be presented in a § 1983 action. Id. at 750. The Court cited Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), a case which bars § 1983 actions that “would implicitly question the validity of conviction or duration of sentence.” Muhammad, 540 U.S. at 751. The Court then clarified that the Heck prohibition does not apply to “a prisoner's challenge that threatens no consequence for his conviction or the duration of his sentence,” in part because “there is no need to preserve the habeas exhaustion rule and no impediment under Heck in such a case.” Id. at 751-52. Though not directly on point, Muhammad is clearly instructive. Petitioners do not attack their underlying immigration proceedings. Like the prisoner in Muhammad, Petitioners seek relief that would not risk or affect the validity of their underlying immigration cases.
8

Case 1C:2a0s-ecv4-:0204-c5v8--0D0D59D6--JRPDMP-JDHoEcumDeonctu1m7enFt i2le6d-704F/3il0e/d2005/P0a6g/2e09 oPfa4g8eP2a9goefID95#: 861
Still, Respondents argue that claims implicating “conditions” associated with a detention facility must be “conditions claims.” But the cases cited by Respondents reveal why it misses the mark, particularly here.
First, Respondents cite cases addressing conditions claims obviously centered upon the “conditions” themselves. To reconcile these cases, Respondents argue that Petitioners here attack the conditions of their confinement as well, including the physical space, sanitary conditions, and available medical care. But in the cited conditions cases and others, the conditions are the targeted harm. When fact claims are mentioned, however, conditions are indicators of the targeted harm: the confinement itself. See, e.g., Poree, 866 at 242 (holding that a challenge to a judge’s decision denying a prisoner’s transfer to a transitional home and ordering that the prisoner remain in a mental health facility was a fact claim properly asserted as a habeas claim); Schipke v. Van Buren, 239 F. App'x 85 (5th Cir. 2007) (“Schipke raised numerous claims pertaining to perceived injustices regarding her medical treatment and the conditions of her detention.”).
Second, the remedy for conditions claims is generally corrective. The remedy for fact claims, however, generally terminates the detention altogether, or alters it such that a new form of custody or control is imposed. See Poree, 866 F.3d at 244 (“"A request for relief from an initial civil confinement institution to a transitional home is similar [to a request for physical release]. Residence in a transitional home— a condition of Poree’s release from ELMHS—bridges the gap between his total confinement and total freedom.”); Schipke, 239 F. App'x at 85 (holding that “a
9

Case 1C:2a0s-ecv4-0:2004-5c8v-0D0D5D9-6J-PRMDP-DJoHcEumDeonct u1m7 enFtil2e6d-074/3F0ile/2d005P/0a6g/e2010 Poaf g4e8 3P0agoef I9D5#: 862
prisoner cannot avail herself of habeas corpus relief when seeking injunctive relief that, as in this case, is unrelated to the cause of her detention,” where a prisoner “sought an order for injunctive relief modifying the conditions of her detention”); Hernandez v. Garrison, 916 F.2d 291, 293 (5th Cir. 1990) (a prisoner’s Eighth Amendment and discrimination claims, seeking transfer to another facility due to “overcrowding, and denial of medical treatment and access to an adequate law library,” were “not a proper subject for a habeas corpus petition”); Sarres Mendoza v. Barr, No. CV H-18-3012, 2019 WL 1227494, at *3 (S.D. Tex. Mar. 15, 2019) (dismissing a detainee’s damages claims because “compensatory or monetary damages are not available in a habeas corpus proceeding,” but deciding the lawfulness of the detainee’s continued detention).
These cases and others illustrate that Respondents’ arguments must fall short. As a general premise, “the Supreme Court has clearly found jurisdiction under . . . § 2241 in [statutory and constitutional] challenges to post-final-order-of-removal detention.” Ali v. Dep't of Homeland Sec., No. 4:20-CV-0140, 2020 WL 1666074, at *2 (S.D. Tex. Apr. 2, 2020) (citing Clark v. Martinez, 543 U.S. 371, 386–87 (2005);Zadvydas v. Davis, 533 U.S. 678, 688 (2001)). Adopting Respondents’ position here would contravene that general premise.
Returning to the distinction between conditions and fact claims, Respondents seem to use the mere mention of a “condition” as the line of demarcation. But the jurisprudence indicates that two different characteristics actually separate conditions claims from fact claims: (1) the nature of the claim; and (2) the remedy
10

Case 1C:2a0s-ecv4-0:2004-5c8v-0D0D5D9-6J-PRMDP-DJoHcEumDeonct u1m7 enFtil2e6d-074/3F0ile/2d005P/0a6g/e2011 Poaf g4e8 3P1agoef I9D5#: 863
requested. See, e.g., Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S. Ct. 1827, 1841, 36 L. Ed. 2d 439 (1973) (“[W]hen a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.”).
As to the first characteristic, by nature, a fact claim challenges the detention itself. Conversely, by nature, a conditions claim attacks circumstances associated with the detention. As to the second characteristic, if a petitioner seeks immediate release or similar relief, the petitioner must do so through a fact claim. But if a petitioner seeks correction of a circumstance or event associated with detention, the petitioner must do so through a conditions claim. See Coleman v. Dretke, 409 F.3d 665, 669 (5th Cir. 2005) (“[I]t is well established that release from physical confinement in prison constitutes release from custody for habeas purposes, even though the state retains a level of control over the releasee.”).
These characteristics may be “blurry” in some situations. Poree 866 F.3d at 168. But the Fifth Circuit clearly endorses them: “Which statutory vehicle to use depends on the nature of the claim and the type of relief requested. . . . “‘[R]elease from physical confinement . . . constitutes release from custody for habeas purposes, even though the state retains a level of control over the releasee.’” Id. (quoting Coleman v. Dretke, 409 F.3d 665 (5th Cir. 2005), and collecting other Fifth Circuit cases); see also Carson v. Johnson, 112 F.3d 818, 820–21 (5th Cir. 1997) (“If a favorable determination . . . would not automatically entitle [the prisoner] to
11

Case 1C:2a0s-ecv4-0:2004-5c8v-0D0D5D9-6J-PRMDP-DJoHcEumDeonct u1m7 enFtil2e6d-074/3F0ile/2d005P/0a6g/e2012 Poaf g4e8 3P2agoef I9D5#: 864
accelerated release, . . . the proper vehicle is a § 1983 suit.”) (internal citation and quotations omitted). And if Petitioners can neither seek immediate release under § 1983 nor seek immediate release through habeas corpus, alternative remedies would be scarce, if available at all. Sacal-Micha v. Longoria, No. 1:20-CV-37, 2020 WL 1815691, at *8 (S.D. Tex. Apr. 9, 2020) (noting, but dismissing, the same concern, because the petitioner had “not demonstrated an absence of alternative remedies that would warrant recognizing his cause of action directly under the Fifth Amendment”).
Applying the first characteristic, Petitioner’s claims center upon the fact of their detention as the harm to be redressed. Petitioners reference “conditions” associated with their detention only to establish that the fact of detention is no longer “reasonably related to a legitimate government objective” – in other words, to establish that their detention is “punitive” under the circumstances, and therefore, unconstitutional. Applying the second characteristic, Petitioners seek relief available traditionally, if not only, through habeas corpus: release.
Critically, the “conditions” facing Petitioners likely would be implicated by either type of claim. But “[t]he mere fact that Plaintiffs' constitutional challenge requires discussion of conditions in immigration detention does not necessarily bar such a challenge in a habeas petition.” Vazquez Barrera v. Wolf, No. 4:20-CV-1241, 2020 WL 1904497, at *4 (S.D. Tex. Apr. 17, 2020).11
11 Respondents also argue that Petitioners’ claims are not related to the “cause of detention.” The Court disagrees. The Fifth Circuit has stated that the “sole function” of a habeas corpus petition “is to grant relief from unlawful imprisonment or custody.” Pierre v. United States, 525 F.2d 933, 93536 (5th Cir. 1976). The “legality of custody,” or the “cause of detention,” is its only legitimate
12

Case 1C:2a0s-ecv4-0:2004-5c8v-0D0D5D9-6J-PRMDP-DJoHcEumDeonct u1m7 enFtil2e6d-074/3F0ile/2d005P/0a6g/e2013 Poaf g4e8 3P3agoef I9D5#: 865
Finally, Respondents suggest that some of the Petitioners’ detention is
mandatory. But mandatory detention statutes must, and often do, give way to the
dictates of the Constitution, including Petitioners’ rights under the Fifth
Amendment. See Malam v. Adducci, No. 20-10829, 2020 WL 1672662, at *13 (E.D.
Mich. Apr. 5, 2020), as amended (Apr. 6, 2020) (“Petitioner's continued detention is
in violation of the United States Constitution, to which 8 U.S.C. § 1226(c) must give
way.”).12 “[T]he Supreme Court has consistently allowed for habeas challenges to
aim in habeas; “collateral administrative relief” or other unrelated matters are beyond its proper scope. Id. Petitioners argue that the “causes” that justified detention have now shifted. See Vazquez Barrera v. Wolf, No. 4:20-CV-1241, 2020 WL 1904497, at *6 (S.D. Tex. Apr. 17, 2020) The same logic separates the claims and mechanisms available to pretrial detainees and other civil detainees, and those available to convicted prisoners.
12 At the Hearing, Respondents argued that the United States had not waived its sovereign immunity regarding Petitioners’ claims. Respondents conceded that “§ 2241 waives sovereign immunity,” but does not concede to waiver of sovereign immunity for issuance of a TRO. Because Petitioners seek and are entitled to fact claim relief, the appropriate remedy for that relief is a petition for habeas corpus under § 2241. See Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) (If a Plaintiff wishes to challenge “the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.”); see also Poree v. Collins, 866 F.3d 235, 243 (5th Cir. 2017) (“Typically, habeas is used to challenge the fact or duration of confinement, and 42 U.S.C. § 1983 is used to challenge conditions of confinement.”); Anekwu v. Immigration & Customs Enf't, 1:18-CV-1567-P, 2019 WL 2147931, at *1 (W.D. La. Feb. 14, 2019), report and recommendation adopted, 1:18-CV-1567-P, 2019 WL 2134538 (W.D. La. May 15, 2019).
In a factually similar case, the United States District Court for the Eastern District of Michigan found sovereign immunity did not apply in this context, and even if it did, that it had been waived. See Malam v. Adducci, 20-10829, 2020 WL 1672662, at *5 (E.D. Mich. Apr. 5, 2020), as amended (Apr. 6, 2020) (“Sovereign immunity does not apply in this instance, and even if it did, it has been statutorily waived. Federal courts may exercise the traditional powers of equity in cases within their jurisdiction to enjoin violations of constitutional rights by government officials.”). The undersigned agrees entirely with the Malam court’s reasoning.
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detention statutorily mandated by the Immigration and Nationality Act.” See
Vazquez Barrera, 2020 WL 1904497, at *5; see also Basank v. Decker, No. 20 CIV.
2518 (AT), 2020 WL 1481503, at *6 (S.D.N.Y. Mar. 26, 2020) (“[C]ourts have the
authority to order those detained in violation of their due process rights released,
notwithstanding § 1226(c).”).13
Each day, courts across the country are deciding similar cases arising from the
COVID-19 pandemic. Unfortunately, consensus still eludes us. But so far, this Court
has identified the same distinction in a different context, and has not reached a
contrary result.14 Other courts – a growing majority, it seems – have arrived at the
13 At the Hearing, respondents also pointed out that Petitioners have different personal situations and are housed in different facilities. Petitioners have not sought class certification or formally requested permissive joinder, but instead simply filed the action together as Petitioners. Respondents have not filed a motion requesting that Petitioners’ claims be severed or separated into 16 lawsuits. As such, no issue regarding the presence of multiple Petitioners was brought to the Court for decision.
Nevertheless, the Court notes that joinder of Petitioners’ claims here is appropriate. The joint adjudication of habeas corpus claims is neither prohibited nor unprecedented, especially where interests of all litigants and judicial economy would be best served. Hatfield v. Young, No. 5:18-CV-01265, 2019 WL 4196613, at *6 (S.D.W. Va. June 7, 2019), report and recommendation adopted, No. 5:18-CV-01265, 2019 WL 4197117 (S.D.W. Va. Sept. 3, 2019), aff'd, 790 F. App'x 547 (4th Cir. 2020) (“[W]hile the joinder of two or more petitioners in one petition is not a common practice in habeas corpus proceedings, joinder is permitted by Rule 20 of the Federal Rules of Civil Procedure and Rule 12 of the Rules Governing Habeas Corpus Cases. . . . Furthermore, [i]n this case, permissive joinder may be preferable, given that the Petitioners wish to pursue relief together and a single action would aid the goal of judicial economy.”) (internal quotation omitted). And in the COVID-19 context, other courts are routinely granting relief to multiple detainees in different facilities. See, e.g., Thakker v. Doll, No. 1:20-CV-480, 2020 WL 1671563, at *9 (M.D. Pa. Mar. 31, 2020) (ordering that 13 inmates in three facilities be immediately released on their own recognizance).
14 See Riggs v. Louisiana, No. CV 3:20-0495, 2020 WL 1939168, at *1 (W.D. La. Apr. 22, 2020) (“Newton indeed challenges the general prison conditions, but he seeks an accelerated release from prison, which is properly asserted as a habeas action, not as a civil rights action.”); Livas, et al. v. Myers, et al., No. 2:20-CV-00422, 2020 WL 1939583, at *7 (W.D. La. Apr. 22,
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same or similar results as the results reached here.15 And others have reached either
different or contrary results.16
2020) (“[Petitioners] bring this action [for immediate release] under § 2241, which is the proper vehicle for challenging ‘the fact or length of confinement.’”).
15 See, e.g., Vazquez Barrera, 2020 WL 1904497, at *8 (granting in part a motion for TRO as a preliminary injunction and ordering a detainee’s immediate release subject to appropriate conditions); Essien v. Barr, No. 20-CV-1034-WJM, 2020 WL 1974761, at *3 (D. Colo. Apr. 24, 2020) (“In theory, these causes of action are oil and water: a habeas claim may lead to an order releasing the prisoner or detainee or nothing at all; whereas a conditions-ofconfinement claimant may only lead to an order requiring the government to improve the conditions of confinement, but not an order releasing the prisoner or detainee.”); Martinez Franco v. Jennings, No. 20-CV-02474-CRB, 2020 WL 1976423, at *3 (N.D. Cal. Apr. 24, 2020) (“[I]t is “fairly well established” that a federal detainee can challenge the conditions of his confinement in an action brought under 28 U.S.C. § 2241.”); Doe v. Barr, No. 20-CV-02141LB, 2020 WL 1820667, at *8 (N.D. Cal. Apr. 12, 2020) (“[T]he court can address the petitioner’s challenges to the conditions of confinement in a § 2241 petition.”); A.S.M. v. Donahue, No. 7:20-CV-62 (CDL), 2020 WL 1847158, at *2 (M.D. Ga. Apr. 10, 2020) (“The remedy for this type of claim, however, is modification of the conditions of confinement to eliminate the constitutional violation. Release from custody is not a remedy for this type of claim.”); Mays v. Dart, No. 20 C 2134, 2020 WL 1812381, at *6 (N.D. Ill. Apr. 9, 2020) (“The plaintiffs' claims, as they have framed them, do bear on the duration of their confinement (they contend, ultimately, that they cannot be held in the Jail consistent with the Constitution's requirements), and they are not the sort of claims that are, or can be, appropriately addressed via a claim for damages.”); Malam v. Adducci, No. 20-10829, 2020 WL 1672662, at *3 (E.D. Mich. Apr. 5, 2020), as amended (Apr. 6, 2020) (“Supreme Court and Sixth Circuit precedent support the conclusion that where a petitioner claims no set of conditions would be sufficient to protect her constitutional rights, her claim should be construed as challenging the fact, not conditions, of her confinement and is therefore cognizable in habeas.”); Coreas v. Bounds, No. CV TDC-20-0780, 2020 WL 1663133, at *7 (D. Md. Apr. 3, 2020) (“First, and most fundamentally, although the grounds on which they seek release relate to their conditions of confinement, Petitioners seek complete release from confinement, which is “the heart of habeas corpus.”).
16 See, e.g., Jose D. v. Barr, et al., No. CV 20-4031 (KM), 2020 WL 1969893, at *4 (D.N.J. Apr. 24, 2020) (“Here, Petitioner is directly challenging the decision to deny his request for parole, which this Court is not authorized to review. Accordingly, this Court lacks jurisdiction over Petitioner’s first claim for relief.”); Saillant v. Hoover, et al., No. 1:20-CV-00609, 2020 WL 1891854, at *3 (M.D. Pa. Apr. 16, 2020) (holding that immigration detainees stated a conditions claim, but finding the claim cognizable under § 2241 because the circumstances represented an “extreme case”); Sacal-Micha v. Longoria, No. 1:20-CV-37, 2020 WL 1815691, at *4 (S.D. Tex. Apr. 9, 2020) (finding a conditions of confinement claim where an elderly immigration detainee requested immediate release, but repeatedly complained that he was held in inadequate or unsafe “conditions”).
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But the logic of the majority comports with Supreme Court and Fifth Circuit precedent. ICE detainees who are at elevated risk of contracting COVID-19 in a detention facility, and who seek immediate release, may do so through “fact or duration” claims asserted under 28 U.S.C. § 2241.
C. Injunctive Relief Petitioners seeking immediate injunctive relief in the form of release from custody. ECF No. 2. A TRO is a form of equitable injunctive relief that preserves the status quo until there is an opportunity to hold a full hearing on an application for a preliminary injunction. Atakapa Indian de Creole Nation v. Louisiana, CV 18-0190, 2019 WL 660558, at *1 (W.D. La. Jan. 11, 2019) (citing Fed. R. Civ. P. 65(b)). Rule 65(b) of the Federal Rules of Civil Procedure states, in pertinent part: (b)(1) Issuing Without Notice. The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if: (A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss or damage will result to the movant before the adverse party can be heard in opposition; and (B) the movant’s attorney certifies in writing any efforts made to give the notice and the reasons why it should not be required. Here, there has been a full hearing on the application for injunctive relief, and Respondents have been heard. “After an adverse party has been given notice, the court may properly convert a motion for a temporary restraining order into a request for a preliminary injunction.” Confident Care Home Health Servs., Inc. v. Azar, CV H-18-3604, 2019 WL 3318135, at *2 (S.D. Tex. July 24, 2019) (citing Esparza v. Board of Trustees, 182 F.3d 915 (5th Cir. 1999) (“But when the adverse party has notice, the
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protective provisions of rule 65(b) do not control, and the court has discretion to consider granting more lasting relief under a [preliminary injunction].”)).
For a preliminary injunction, a Petitioner must show: (1) a substantial likelihood that he will prevail on the merits, (2) a substantial threat that he will suffer irreparable injury if the injunction is not granted, (3) that his threatened injury outweighs the threatened harm to the party whom he seeks to enjoin, and (4) that granting the preliminary injunction will not disserve the public interest. Bhatia v. Warden, 1:16-CV-1125, 2017 WL 1026054, at *1 (W.D. La. Jan. 24, 2017), report and recommendation adopted, 1:16-CV-1125;, 2017 WL 1017634 (W.D. La. Mar. 15, 2017) (citing Planned Parenthood of Houston & Southeast Texas v. Sanchez, 403 F.3d 324, 329 (5th Cir. 2005)).
A preliminary injunction “is an extraordinary and drastic remedy, not to be granted routinely, but only when the movant, by a clear showing, carries a burden of persuasion.” Black Fire Fighters Ass’n of Dallas v. City of Dallas, Tex., 905 F.2d 63, 65 (5th Cir. 1990). “The denial of a preliminary injunction will be upheld where the movant has failed sufficiently to establish any one of the four criteria.” Black Fire Fighters Ass’n, 905 F.2d at 65; see also Flores, 442 F. App’x at 165.
1. Petitioners may be substantially likely to prevail on the merits. Petitioners are civil detainees. As a result, Petitioners’ detention must remain “nonpunitive in purpose and effect.” Zadvydas v. Davis, 533 U.S. 678, 690, 121 S. Ct. 2491, 2499, 150 L. Ed. 2d 653 (2001). Prior criminal convictions do not affect this
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legal status. See, e.g., Castillo v. Barr, No. CV2000605TJHAFMX, 2020 WL 1502864, at *3 (C.D. Cal. Mar. 27, 2020) ) (citing Zadvydas, 533 U.S.C. at 690).
Civil immigration detainees are specifically entitled to the protections of the Fifth Amendment to the United States Constitution. Its Due Process Clause, in relevant part, forbids the government to “depriv[e]” any “person . . . of . . . liberty . . . without due process of law.” Civil detention thus implicates the Due Process Clause: “Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects.” Zadvydas, 533 U.S. at 690. “[T]he Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” See id. at 693.
The Supreme Court has long held that civil detention must be justified: “[G]overnment detention violates that Clause unless the detention is ordered in a criminal proceeding with adequate procedural protections, or, in certain special and ‘narrow’ nonpunitive ‘circumstances,’ where a special justification, such as harmthreatening mental illness, outweighs the individual's constitutionally protected interest in avoiding physical restraint.” Zadvydas, 533 U.S. at 690 (internal citations and quotations omitted). Civil detention becomes unconstitutional when “punitive” in nature, meaning “not [or no longer] reasonably related to a legitimate, nonpunitive governmental objective.” Scott v. Moore, 114 F.3d 51, 53 (5th Cir. 1997).
Thus, it is well settled that a civil immigration detainee is “the equivalent of a pretrial detainee,” whose “constitutional claims are considered under the due process
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clause instead of the Eighth Amendment.” See Edwards v. Johnson, 209 F.3d 772, 778 (5th Cir. 2000). However, the parties dispute the standard for Petitioners’ claims. Respondents argue that Petitioners must prove ICE officials acted with “subjective deliberate indifference.” Petitioners claim that they may prevail by proving that detention is not “reasonably related to a legitimate governmental objective,” and therefore “punitive.” Bell v. Wolfish, 441 U.S. 520, 539, 99 S. Ct. 1861, 1874, 60 L. Ed. 2d 447 (1979). Petitioners also argue, in the alternative, that they have established “subjective deliberate indifference” in ICE’s response to COVID-19.
Here, yet another two-part distinction must be considered. And to compound the difficulty, on one side of the distinction are challenges to “general conditions of confinement.” The term has different meaning here. On the other side of the distinction are challenges to a “particular act or omission.”
The former category of claims is concerned with "constitutional challenges to conditions, practices, rules, or restrictions.” See Hare v. City of Corinth, Miss., 74 F.3d 633, 644 (5th Cir. 1996). These challenges are subject to the “reasonable relationship” test outlined by the Supreme Court in Wolfish, and restated above. See Scott v. Moore, 114 F.3d 51, 53 (5th Cir. 1997). The latter category concerns “episodic acts or omissions” committed by specific officials. Hare, 74 F.3d at 644. These challenges require a finding of deliberate indifference. See Scott, 114 F.3d at 53.
The Fifth Circuit has described this distinction as well, and in so doing, has clarified that the distinction is separate from “conditions claims” discussed in the habeas corpus context:
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[A] condition may take the form of “a rule,” a “restriction,” “an identifiable intended condition or practice,” or “acts or omissions” by a jail official that are “sufficiently extended or pervasive.” Estate of Henson v. Wichita Cty. Tex., 795 F.3d 456, 468 (5th Cir. 2015) (quoting Duvall v. Dallas Cty., 631 F.3d 203, 207 (5th Cir. 2011)). “In some cases, a condition may reflect an unstated or de facto policy, as evidenced by a pattern of acts or omissions ‘sufficiently extended or pervasive, or otherwise typical of extended or pervasive misconduct by [jail] officials, to prove an intended condition or practice.’” Shepherd v. Dallas Cty., 591 F.3d 445, 452 (5th Cir. 2009) (quoting Hare, 74 F.3d at 645). But “isolated examples of illness, injury, or even death, standing alone, cannot prove that conditions of confinement are constitutionally inadequate.” Id. at 454. To prevail on a claim of unconstitutional conditions of confinement, a plaintiff must show: “(1) ‘a rule or restriction or ... the existence of an identifiable intended condition or practice ... [or] that the jail official’s acts or omissions were sufficiently extended or pervasive’; (2) which was not reasonably related to a legitimate governmental objective; and (3) which caused the violation of [the inmate’s] constitutional rights.” Duvall, 631 F.3d at 207 (quoting Hare, 74 F.3d at 645).
Cadena v. El Paso Cty., 946 F.3d 717, 727 (5th Cir. 2020); see also Shepherd v. Dallas
Cty., 591 F.3d 445, 452 (5th Cir. 2009) (a petitioner challenging general conditions
“is relieved from the burden of demonstrating a municipal entity's or individual jail
official's actual intent to punish”); contra. Sacal-Micha, 2020 WL 1815691, at *6 (S.D.
Tex. Apr. 9, 2020) ("Sacal [an immigration detainee] does not allege that the
conditions under which he is being held amount to punishment.”).
In this case, Petitioners’ claims challenge extended, pervasive circumstances
that they claim are – by act, omission, or plain necessity – prevalent in ICE detention
facilities, including the facilities housing them. Petitioners’ are more similar to, for
instance, a challenge to the “number of bunks in a cell or . . . television or mail
privileges.” See Scott, 114 F.3d at 53. Therefore, Petitioners’ claims are subject to
the reasonable relationship test, not the deliberate indifference standard. See id.; see
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also Vazquez Barrera, 2020 WL 1904497, at *5 (S.D. Tex. Apr. 17, 2020) (applying theWolfish reasonable relationship standard to ICE detainees’ request for immediate release in light of the COVID-19 pandemic); contra Coronel, 2020 WL 1487274, at *10 (applying the deliberate indifference standard to immigration detainees’ substantive due process claims, but ordering detainees’ release).
Under this standard, Petitioners may succeed on their substantive due process claims by establishing that detention does not reasonable relate to a legitimate governmental purpose. They may make this showing, for example, by proving that, due to their age, immune deficiencies, or other comorbidities, they face an elevated risk of contracting the virus, or suffering serious illness from it; that their particular circumstances also heighten these risks; and that preventive measures are difficult or impossible, leaving them unduly exposed to contracting the virus. See Vazquez Barrera, 2020 WL 1904497, at *5 (“Here, the Court finds that detention of Plaintiffs, who are at high risk of serious illness or death if they contract COVID-19, in MPC, where social distancing and proper hygiene are impossible, does not reasonably relate to a legitimate governmental purpose.”).
Importantly, Petitioners’ claims must be distinct in some respect. See Martinez Franco v. Jennings, No. 20-CV-02474-CRB, 2020 WL 1976423, at *3 (N.D. Cal. Apr. 24, 2020) (“Franco does not identify, and the Court has not seen, a case finding that increased likelihood of contracting the virus rendered unconstitutional the detention of a person without underlying medical conditions or some other vulnerability.”). The Fifth Circuit has explained that “[t]he incidence of diseases or
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infections, standing alone,’ do not ‘imply unconstitutional confinement conditions, since any densely populated residence may be subject to outbreaks.’” Valentine v. Collier, No. 20-20207, 2020 WL 1934431, at *3 (5th Cir. Apr. 22, 2020) (quoting Shepherd v. Dallas Cty., 591 F.3d 445, 454 (5th Cir. 2009)). This Court has already concluded the same: “[P]risoners are not entitled to release or transfer based solely on generalized COVID-19 fears and speculation.” Riggs v. Louisiana, No. CV 3:200495, 2020 WL 1939168, at *2 (W.D. La. Apr. 22, 2020).17 Otherwise, the claims of any prisoner or detainee would be equally meritorious – or equally meritless – notwithstanding their individual situations. That result would be untenable.
To separate meritorious claims from generalized risk, some courts have focused upon underlying detainees’ medical conditions, detainees’ criminal histories or tendency toward violance, and the detention facility’s response to the pandemic. See Vazquez Barrera, 2020 WL 1904497, at *6. Another court distilled a “nonexhaustive list of factors” to be considered. Saillant, 2020 WL 1891854, at *4. The best solution in this case may be to reconcile and supplement those salient approaches. In addressing the merits of Petitioners’ requests for habeas relief, the undersigned thus considers the following non-exhaustive list of factors:
(1) whether the petitioner has been diagnosed with COVID-19 or is experiencing symptoms consistent with the disease;
17 And so have many others. See, e.g., United States v. Clark, No. CR 17-85-SDD-RLB, 2020 WL 1557397, at *4 (M.D. La. Apr. 1, 2020) (“Defendant cites no authority for the proposition that the fear of contracting a communicable disease warrants a sentence modification.”); Saillant v. Hoover, et al., No. 1:20-CV-00609, 2020 WL 1891854, at *5 (M.D. Pa. Apr. 16, 2020) (denying habeas relief in part because the petitioner sought habeas corpus relief merely because he was “detained and subjected to a generalized risk of contracting COVID-19”).
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(2) whether the petitioner is among the group of individuals that is at higher risk of contracting COVID-19 as identified by the CDC, due to the petitioner’s age or an underlying health condition;
(3) whether the petitioner has been, or has likely been, directly exposed to COVID-19;
(4) the physical space in which the petitioner is detained, and how that physical space affects his risk of contracting COVID-19;
(5) the efforts that detention facility officials have made to prevent or mitigate the spread of, or harm caused by, COVID-19;
(6) any danger to the community, or to the petitioner’s immigration proceedings, that may be posed by the petitioner’s release; and
(7) any other relevant factors.
See Saillant, 2020 WL 1891854, at *4; Vazquez Barrera, 2020 WL 1904497, at *6.
2. Petitioners may face irreparable harm if not released.
In order to satisfy the “irreparable harm” requirement, Petitioners must
establish that “irreparable injury is likely in the absence of an injunction.” Winter v.
Nat. Res. Def. Council, Inc., 555 U.S. 7, 22, 129 S. Ct. 365, 375, 172 L. Ed. 2d 249
(2008). But a court “need not await a tragic event” to afford injunctive relief. Helling
v. McKinney, 509 U.S. 25, 33, 113 S. Ct. 2475, 2481, 125 L. Ed. 2d 22 (1993). Instead,
the following familiar principles would apply:
Perhaps the single most important prerequisite for the issuance of a preliminary injunction is a demonstration that if it is not granted the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered.” 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2948.1 (3d ed. 2013) [hereinafter Wright & Miller]. The focus of this inquiry is not so much the magnitude but the irreparability of the threatened harm. See Callaway, 489 F.2d at 575. The Fifth Circuit has defined irreparable harm to mean “harm for which there is no adequate remedy at law,” such as monetary damages. Daniels Health Scis., L.L.C. v. Vascular
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Health Scis., L.L.C., 710 F.3d 579, 585 (5th Cir.2013); accord Janvey v. Alguire, 647 F.3d 585, 600 (5th Cir.2011).
Plaintiffs must show that “irreparable injury is likely in the absence of an injunction.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). “[A] preliminary injunction will not be issued simply to prevent the possibility of some remote future injury.” Id. (alteration in original) (quoting Wright & Miller, supra, § 2948.1); Morrell v. City of Shreveport, 536 Fed.Appx. 433, 435 (5th Cir.2013). There must be more than “an unfounded fear on the part of the applicant.” Holland Am. Ins. Co. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir.1985). Accordingly, the party seeking a preliminary injunction must show that the threatened harm is “more than mere speculation.” Janvey, 647 F.3d at 601; see also Connecticut v. Massachusetts, 282 U.S. 660, 674, 51 S.Ct. 286, 75 L.Ed. 602 (1931) (“[An injunction] will not be granted against something merely feared as liable to occur at some indefinite time in the future.”); Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C.Cir.1985) (“[T]he injury must be both certain and great; it must be actual and not theoretical.”). Therefore, “[a] presently existing actual threat must be shown.” Morrell, 536 Fed.Appx. at 435 (alteration in original) (quoting United States v. Emerson, 270 F.3d 203, 262 (5th Cir.2001)).
Monumental Task Comm., Inc. v. Foxx, 157 F. Supp. 3d 573, 582–83 (E.D. La. 2016),
aff'd sub nom. Monumental Task Comm., Inc. v. Chao, 678 F. App'x 250 (5th Cir.
2017).
Here, a Petitioner could establish irreparable harm in two ways. First, “[t]he
alleged violation of a constitutional right is sufficient for a court to find irreparable
harm.” Malam, 2020 WL 1672662, at *10. Second, a Petitioner may prove that
detention constitutes a significant and heightened risk that they will contract
COVID-19. See Coreas v. Bounds, No. CV TDC-20-0780, 2020 WL 1663133, at *13
(D. Md. Apr. 3, 2020) (“Petitioners have introduced uncontroverted evidence that
contracting COVID-19 would put them at serious risk of severe medical complications
and even death.”). It is difficult to dispute that an elevated risk of contracting
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COVID-19 poses a threat of irreparable harm. See, e.g., Thakker, et al. v. Doll, et al.,
No. 1:20-CV-480, 2020 WL 1671563, at *7 (M.D. Pa. Mar. 31, 2020) (collecting data
and cases). A colleague court described the general implications upon immigration
detainees with comorbidities as follows:
The COVID-19 pandemic has reached every state in our nation, and the numbers of infected and dead increase daily. According to the CDC, those with particular medical vulnerabilities, including Plaintiffs, are particularly susceptible to serious illness and death. There is currently no vaccine or cure for COVID-19. Medical experts have also concluded that continued detention in ICE facilities during the current pandemic presents an “imminent risk to the health and safety of immigrant detainees.” Letter from Scott A. Allen, MD, FACP & Josiah Rich, MD, MPH to Committee Chairpersons and Ranking Members of House and Senate Committee on Homeland Security and Committee on Oversight and Reform 3 (Mar. 19, 2020), https://whistleblower.org/wpcontent/uploads/2020/03/Drs.-Allen-and-Rich-3.20.2020-Letter-toCongress.pdf.
Vazquez Barrera, 2020 WL 1904497, at *6; see also Basank v. Decker, No. 20 CIV.
2518 (AT), 2020 WL 1481503, at *4 (S.D.N.Y. Mar. 26, 2020) (“Courts have also
recognized this health risk to be particularly acute—and of constitutional
significance—for inmates who are elderly or have underlying illnesses.”).
Unfortunately, Petitioners already have powerful evidence that the threat to
them could be immediate: one of their number has already contracted COVID-19
during the course of this proceeding.
3. Petitioner’s likely injuries may outweigh any legitimate government interest or injury.
The potential injuries facing Petitioners are of the gravest kind. Those who
contract COVID-19 often suffer physically and mentally. That is especially true of
the elderly or the sick. They endure severe and protracted illness, discomfort, and
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Case 1C:2a0s-ecv4-0:2004-5c8v-0D0D5D9-6J-PRMDP-DJoHcEumDeonct u1m7 enFtil2e6d-074/3F0ile/2d005P/0a6g/e2026 Poaf g4e8 4P6agoef I9D5#: 878
pain. They may suffer permanent injuries or disabilities. They may die. Again, one
Petitioner is already facing these prospects. And to the extent they can prove
particularized risk, the remaining Petitioners could as well.
Respondents have legitimate countervailing interests: to protect the public and
to ensure that Petitioners appear for future immigration proceedings or removal. See
Vazquez Barrera, 2020 WL 1904497, at *7; Engelund v. Doll, No. 4:20-CV-00604,
2020 WL 1974389, at *9 (M.D. Pa. Apr. 24, 2020. The Court acknowledges and values
those interests. But their weight ilimited in several respects:
[D]etention is not necessary to further Defendants' interest in preventing [detainees] from absconding. Rather, ICE has a number of alternative tools available to it to ensure enforcement, which it is free to use with [detainees] 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. (Doc. No. 12-1, at 27). An initial study of ICE's alternatives to detention reported a 99% attendance rate at all immigration court hearings and a 95% attendance rate at final hearings among supervised individuals. U.S. Gov't Accountability Office, GAO-15-26, Alternatives to Detention: Improved Data Collection and Analyses Needed to Better Assess Program Effectiveness 30 (2014).
Vazquez Barrera, 2020 WL 1904497, at *7.
To the contrary, a Petitioner’s extended detention may actually place added
strain on the already overburdened medical system, or delay, if not derail,
immigration proceedings or deportation. Ali v. Dep't of Homeland Sec., No. 4:20-CV-
0140, 2020 WL 1666074, at *5 (S.D. Tex. Apr. 2, 2020) (“If Petitioner endured
significant exposure to those affected by the virus, that alone could further delay
Petitioner’s ultimate deportation.”).
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Case 1C:2a0s-ecv4-0:2004-5c8v-0D0D5D9-6J-PRMDP-DJoHcEumDeonct u1m7 enFtil2e6d-074/3F0ile/2d005P/0a6g/e2027 Poaf g4e8 4P7agoef I9D5#: 879
4. Petitioner’s release may not disserve the public interest. Courts have referenced a detainee’s criminal history and history of violence as public interest factors. Vazquez Barrera, 2020 WL 1904497, at *7. Of course, a detainee’s criminal history cannot be decisive, because civil detention cannot masquerade for continued criminal detention for a prior offense. See Vazquez Barrera, 2020 WL 1904497, at *7. But again, the Court values these interests. However, courts have also noted the public’s interest in preventing or mitigating outbreaks, which invariably spread to correctional officers and other staff members, their families, and the public. See Vazquez Barrera, 2020 WL 1904497, at *7; see also Thakker,, 2020 WL 1671563, at *8 (Physical detention itself will place a burden on community healthcare systems and will needlessly endanger Petitioners, prison employees, and the greater community. We cannot see the rational basis of such a risk.”). And yet again, the public interest may, in some situations, favor release: “In the highly unusual circumstances posed by the COVID-19 crisis, the continued detention of aging or ill civil detainees does not serve the public's interest. . . . . “" To the contrary, public health and safety are served best by rapidly decreasing the number of individuals detained in confined, unsafe conditions." Basank, 2020 WL 1481503, at *6. D. Detention Facilities and Petitioners ICE has promulgated a set of Performance-Based National Detention Standards (the “National Detention Standards”) which govern the conditions and circumstances under which detainees are held in custody and detention facilities are
27

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operated.18 The PBNDS require ICE detention facilities to follow “guidelines for the prevention and control of infectious and communicable diseases.”19
The CDC has issued “Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities.”20 The “Guidance” sets forth operational and medical recommendations to detention facilities facing suspected or actual COVID-19 cases.
Respondents argue that ICE has taken measures, including some steps listed in the Guidance, in the six facilities now housing Petitioners. Again to their credit, Respondents are careful not to overstate the case, and even clarify that ICE’s responsive measures are “are “admittedly not perfect.” ECF No. 8 at 17. Respondents state that ICE will screen all necessary visitors, and will isolate detainees with or suspected of having COVID-19.
Through declarations, Respondents submit that staff and detainees have been educated on COVID-19, and as of April 22, 2020, all facilities have hand sanitizer, disinfection spray, soap, hot water, and gloves “in every housing unit.” ECF No. 8-2 at 5. But no amounts are provided for these materials. Further, ICE is reviewing 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
18 2011 Operations Manual ICE Performance-Based National Detention Standards, https://www.ice.gov/detention-standards/2011 (last visited Apr. 29, 2020). 19 Id. § 4.3 (II)(10). 20 Available at https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctional-detention.html (last visited Apr. 29, 2020).
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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.” ECF No. 8-2 at 5-6. But no time frames were (or reasonably could) be provided for these decisions. See Coronel v. Decker, No. 20-CV-2472 (AJN), 2020 WL 1487274, at *7 (S.D.N.Y. Mar. 27, 2020) (“Petitioners are uniquely vulnerable to COVID-19. The longer they spend in civil detention, the greater their chances of contracting the disease. A hearing weeks from now may be no relief at all, because Petitioners may contract COVID-19 in the interim and face serious health consequences—including death.”).
Overall, despite the best efforts of ICE officials and officers braving to report for work in detention facilities, “individuals housed within detention centers,” especially including these 16 Petitioners, “remain particularly vulnerable to infections.” Ali v. Dep't of Homeland Sec., No. 4:20-CV-0140, 2020 WL 1666074, at *5 (S.D. Tex. Apr. 2, 2020) (and sources cited therein). Unlike other courts, the undersigned cannot find that the corrective measures evidenced by Respondents are, in and of themselves, enough to moot Petitioners’ claims altogether. This is particularly true when considering the declarations and evidence submitted by Petitioners which indicates that the corrective measures are either woefully inadequate to protect them, or not being implemented at all.
Moreover, a number of Petitioners have been convicted of, and served sentences for, criminal offenses. As discsussed above, however, and as decided by numerous other courts, a conviction alone cannot justify an alien’s otherwise punitive
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or unconstitutional detention. The Court will consider, however, criminal convictions to the extent they may indicate violent or dangerous tendencies, especially when likely to be directed at identifiable individuals.
1. The LaSalle Ice Processing Center (“LIPC”) currently houses nine Petitioners: Taluta Helen Dada, Griselda Del Bosque, Suresh Kumar, Nadira Sampath-Grant, Matilde Flores de Saavedra, Pardeep Kumar, Rosabel Carrera, Sonia Lemus-De Jasso, and Helen Saleh.
LIPC is a private detention center run by The GEO Group, Inc. (“GEO”). ECF No. 8-1 at 2. As of April 21, 2020, there were 904 detainees housed at the facility, which has capacity to house 1,170 detainees. ECF No. 8-1 at 2. Also as of April 21, 2020, three detainees had confirmed cases of COVID-19 at LIPC, and there was one suspected case. ECF No. 8-2 at 4. These detainees were isolated from all other detainees. Id. However, according to ICE, seven detainees had confirmed cases of COVID-19 as of April 28, 2020.
Given the known circumstances at LIPC, Petitioners housed there are all at moderate to high risk of exposure.
a. Petitioner Taluta Helen Dada should be released. Dada has neither tested positive nor reported, of record, symptoms of COVID19. And while Dada, at age 40, is younger than the CDC’s risk threshold, Dada suffers from underlying medical issues that place her at elevated risk. ECF No. 8-1 at 3. Dada states that she suffers from Graves’ Disease, which has required hospitalizations, radiation, and immunosuppressants. ECF No. 2-7 at 1. Dada also alleges that she suffers from hypothyroidism, asthma, malnutrition, and is immunocompromised. Id. at 1-2.
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Dada alleges that she is housed in dorm Falcon-D, which is at capacity with 80

detainees. ECF No. 2-7 at 2. Her dorm shares three working toilets, six showers,

and eight telephones. Id. The toilets, showers, and telephones are sprayed by other

detainees in the voluntary work program once a day, but those detainees do not wear

masks. Id. Detainees in her dorm sleep in bunk beds about a yard and a half apart,

and there is no hand sanitizer available. Id.

Dada was convicted in this District Court of conspiracy to defraud the United

States to obtain immigration status, making false statements in connection with

immigration documents, and mail fraud with forfeiture allegations. See id.; United

States v. Dada, 3:18-CR-0086 (W.D. La.). She is currently awaiting a hearing with

the immigration court. ECF No. 8-1 at 3. Therefore, she is not subject to a final order

of removal. Dada alleges that she would live with her sister in Ruston, Louisiana if

released. ECF No. 2-7 at 3.

Respondents did not state whether it considers Dada “at higher risk,” or

whether it has evaluated the appropriateness of her detention, specifically.

Dada’s immigration and related convictions, while significant, do not indicate

particularized risks of harm to the public, and do not outweigh the significant health

risks she faces and the other factors favoring her release.

b.

Petitioner Griselda Del Bosque should be released.

Del Bosque is 57 years-old and reportedly suffers from asthma, which puts her

at elevated risk for COVID-19 complications. Her asthma is only partially controlled

by the inhaler she was provided at LIPC. ECF No. 2-8 at 1. Del Bosque “has had

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numerous asthma attacks and coughing fits while she has been detained.” ECF No. 1 at 13. She also suffers from glaucoma and chronic arm, back, and knee pain. Id. She has neither tested positive nor reported, of record, symptoms of COVID-19.
Del Bosque states that she is housed in dorm Alpha-D with 80 other women whose beds are “less than a foot” apart. ECF No. 2-8 at 1. These 80 detainees also share three toilets, six showers, and eight telephones. Id.
Like Dada, Griselda Del Bosque (Del Bosque) is awaiting a hearing with the immigration court. She has not been ordered removed. ECF No. 8-1 at 4. Del Bosque recently completed a 235-month sentence for conspiracy to possess with intent to distribute a controlled substance, and she has been in ICE custody since January 3, 2020. ECF No. 8-1 at 3-4. Del Bosque maintains that she would reside with her daughter in Dallas, Texas, if released. ECF No. 2-8.
Respondents did not state whether it considers Del Bosque “at higher risk,” or whether it has evaluated the appropriateness of her detention, specifically.
Del Bosque’s narcotics conviction clearly arose from a serious offense. But she served her sentence, and has been in federal custody for a substantial amount of time. The nature of the offense, while significant, does not indicate violent tendencies or a particularized risk of harm. In fact, the length of the associated sentence and subsequent immigration custody mitigates the risk of harm to the public. And Del Bosque’s criminal history does not outweigh the significant health risks she faces and the other factors favoring her release. This is particularly true given her asthmatic condition, which is respiratory in nature.
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c. Petitioner Suresh Kumar should be released. Kumar is only 37 years old, but he is at risk due to severe malnutrition resulting from a hunger strike. ECF No. 1 at 14. Kumar reports being force-fed liquid nutrients through a tube that runs through his nose and into his esophagus. ECF No. 2-13 at 1. S. Kumar alleges that he was diagnosed with Hepatitis C and a chronic liver infection. Id. He has neither tested positive nor reported, of record, symptoms of COVID-19. Kumar reports that he is confined with Pardeep Kumar “in a 10 x 10 small room in the medical unit.” ECF No. 2-13 at 1. S. Kumar alleges that the doctors do not wear masks when force-feeding him. Id. Although Suresh Kumar (“Kumar”) was ordered removed on July 11, 2019, his appeal of that order still is pending with the Board of Immigration Appeals. ECF No. 8-1 at 4. Respondents do not allege that Kumar was ever convicted of a crime in the United States. The Court is also unaware of any criminal history. If released, Kumar will reside with his brother-in-law in Grants Pass, Oregon. ECF No. 2-13 at 2. Respondents did not state whether it considers S. Kumar “at higher risk,” or whether it has evaluated the appropriateness of his detention, specifically. Relevant factors – particularly Kumar’s health conditions and attendant risks of contracting COVID-19, and Kumar’s lack of criminal history – favor his release.
d. Petitioner Pardeep Kumar should be released. Pardeep Kumar (“P. Kumar”) is also at increased risk due to severe malnourishment from a hunger strike. ECF No. 1 at 14. P. Kumar reportedly
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suffered a kidney infection in March 2020. P. Kumar has neither tested positive nor reported, of record, symptoms of COVID-19.
Respondents do not claim that P. Kumar was convicted of a crime in the United States. The Court is also unaware that he has any criminal history. P. Kumar’s appeal of his order of removal is also pending with the Board of Immigration Appeals. ECF No. 8-1 at 5. Although ICE attempted to deport P. Kumar in February, 2020, the pilot refused due to P. Kumar’s emaciated appearance. ECF No. 2-12 at 1. P. Kumar will reside with his uncle in Kent, Washington if released. ECF No. 1-12 at 2.
Respondents do not state whether it considers P. Kumar “at higher risk,” or whether it has evaluated the appropriateness of his detention, specifically.
For the same reasons as stated regarding Petitioner Kumar above, relevant factors favor P. Kumar’s release.
e. Petitioner Nadira Sampath-Grant should be released. Nadira Sampath-Grant (“Sampath-Grant”) is at great risk because she suffers from diabetes and diabetic-related complications such as neuropathy and issues with her kidneys. She relies on oral medication for her diabetic care. ECF No. 1 at 13. Sampath-Grant is 53 years old. ECF No. 2-18 at 1. Sampath-Grant has neither tested positive nor reported, of record, symptoms of COVID-19. Sampath-Grant is also housed in dorm Falcon-D with 80 detainees. As of the date of her declaration, Sampath-Grant reports that masks, gloves, and sanitizer were not available to detainees. ECF No. 2-18 at 1. Sampath-Grant submitted an
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updated declaration dated April 21, 2020, indicating continued soap shortages. ECF No. 9-5 at 1. Sampath-Grant indicates that she has waited days waiting for soap. Id. Sampath-Grant also indicated that a detainee with fever was returned to the dorm after requesting medical care. Id.
ICE states that Sampath-Grant was convicted of conspiracy to dispense and distribute oxycodone in the United States District Court for the Southern District of Florida. After service of her sentence, she was ordered removed. ECF No. 8-1 at 4. ICE is “attempting to obtain travel documents” for her removal. Id. Of course, there is no certain information as to if or when travel documents will be obtained. If released, she would reside with her husband and son in Ft. Lauderdale, Florida. ECF No. 2-18 at 2.
Respondents do not state whether it considers Sampath-Grant “at higher risk,” or whether it has evaluated the appropriateness of her detention, specifically.
For the same reasons stated above as to Petitioner Del Bosque, SampathGrant’s narcotics-related criminal history, while significant, does not outweigh the severe risks posed by her detention.
f. Matilde Flores de Saavedra Factors also weigh in favor of releasing Matilde Flores de Saavedra (“Flores de Saavedra”), who is at increased risk of complications from COVID-19 due to her age and medical conditions. Flores de Saavedra is 78 years old and was recently diagnosed with diabetes, which remains uncontrolled, and hypertension. ECF No. 2-
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10 at 1; No. 1 at 21. Flores de Saavedra has neither tested positive nor reported, of record, symptoms of COVID-19.
Flores de Saavedra is also housed in dorm Falcon-D, with close bunks and oncedaily cleaning by detainees without masks. ECF. No. 2-10 at 1.
Like Dada and Del Bosque, Flores de Saavedra is awaiting a hearing with the immigration court. Last year she completed an eight-month sentence for conspiracy to transport undocumented aliens. ECF No. 8-1 at 4. If released, Flores de Saavedra would reside with her son in Falfurrias, Texas.
Respondents did not state whether it considers Flores de Saavedra “at higher risk,” or whether it has evaluated the appropriateness of her detention, specifically.
For the same reasons stated above, Flores de Saavedra’s immigration and related offenses, while significant, do not outweigh the other factors favoring her release, including her advanced age and the severe health risks she faces if detained.
g. Petitioner Rosabel Carrera should be released. Rosabel Carrera (“Carrera”) is also at a severely heightened risk of complications if she contracts COVID-19. She is a 59-year-old with obesity, diabetes, and hypertension. ECF No. 2-6 at 1. She also has a history of heart attack and stroke. Id. Carrera is also housed in dorm Falcon-D. She, too, reported the 80 women in her dorm sharing three working toilets and six showers, with no access to disinfectants. ECF No. 2-6 at 1. In an updated declaration, Carrera reports that she recently went to the medical unit for a sore throat, “[a]mong other complaints,” and
36

Case 1C:2a0s-ecv4-0:2004-5c8v-0D0D5D9-6J-PRMDP-DJoHcEumDeonct u1m7 enFtil2e6d-074/3F0ile/2d005P/0a6g/e2037 Poaf g4e8 5P7agoef I9D5#: 889
she was not tested for COVID-19. ECF No. 9-8 at 1. Carrera also states that “guards sometimes wear masks, but sometimes they do not.” Id. Detainees are sometimes left without soap and a shortage of cleaning supplies. Id.
An immigration judge terminated removal proceedings against Carrera in 2019, but ICE successfully appealed the decision. Carrera is now awaiting a hearing with the immigration court. ECF No. 8-1 at 5.
Respondents do not state whether it considers Carrera “at higher risk,” or whether it has evaluated the appropriateness of her detention, specifically.
While Carrera reported one generalized symptom consistent with COVID-19, she has not tested positive, she has not reported it was severe, and she has not reported other symptoms or a protracted period of illness. She does, however, face a substantial risk of contracting the virus if detained, and no other factors strongly favor her detention.
h. Petitioner Sonia Lemus Tejada Dejaso should be removed. Sonia Lemus Tejada Dejaso (“Dejaso”) is 53 years old and suffers from health conditions that leave her vulnerable to complications if she contracts COVID-19. Dejaso reportedly has heart disease and hypertension. Dejaso has neither tested positive nor reported, of record, symptoms of COVID-19. After her conviction of harboring an alien for private gain, Dejaso was ordered removed. Her appeal is pending. ECF No. 8-1 at 5. Respondents do not state whether it considers Dejaso “at higher risk,” or whether it has evaluated the appropriateness of her detention, specifically.
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Case 1C:2a0s-ecv4-0:2004-5c8v-0D0D5D9-6J-PRMDP-DJoHcEumDeonct u1m7 enFtil2e6d-074/3F0ile/2d005P/0a6g/e2038 Poaf g4e8 5P8agoef I9D5#: 890
Dejaso’s immigration convictions, while significant, do not indicate particularized risks of harm to the public, and do not outweigh the significant health risks she faces and the other factors favoring her release.
i. Petitioner Hasan Saleh should be released. Factors also weigh in favor of release for Hasan Saleh (“Saleh”). Saleh is 62 years old, and he suffers from diabetes, hypertension, and high cholesterol. ECF No. 1 at 15. Saleh has neither tested positive nor reported, of record, symptoms of COVID-19. Saleh is housed in dorm Eagle-Charlie with about 72 other men. As of the date of his declaration, none of the guards or detainees had masks or gloves. ECF No. 217 at 1. Saleh was ordered removed in February 2020 after service of his sentence for conspiracy to commit food stamp and wire fraud. ECF No. 8-1 at 5-6. Saleh would reside with his wife and five children in Ft. Lauderdale, Florida if he is released. ECF No. 2-17 at 1. Respondents do not state whether it considers Saleh “at higher risk,” or whether it has evaluated the appropriateness of his detention, specifically. Saleh’s financial crimes convictions, while significant, do not indicate particularized risks of harm to the public, and do not outweigh the significant health risks he faces and the other factors favoring his release. In parciular, his advanced age and underlying health conditions place him at elevated risk if detained.
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Case 1C:2a0s-ecv4-0:2004-5c8v-0D0D5D9-6J-PRMDP-DJoHcEumDeonct u1m7 enFtil2e6d-074/3F0ile/2d005P/0a6g/e2039 Poaf g4e8 5P9agoef I9D5#: 891
2. Richwood Detention Center currently houses one Petitioner: Abraham Gebremedhim Gebremichael
According Hartnett’s declaration, Richwood Detention Center (“Richwood”) is a private detention center run by LaSalle Corrections Corporation (“LCC”). ECF No. 8-1 at 2. As of April 21, 2020, there were 306 detainees housed at the facility, which has capacity to house 1,000 detainees. ECF No. 8-1 at 2. The ICE detainees are housed separately from other detainees. ECF No. 8-2 at 3.
As of April 21, 2020, Richwood had 29 detainees with confirmed cases of COVID-19 and five suspected cases. Many of the detainees with COVID-19 were transferred to Richwood from other facilities. ECF No. 8-2 at 4. These detainees “are isolated when possible” and are separated from the other population. Id. According to ICE, 45 detainees at Richwood had confirmed cases of COVID-19 as of April 28, 2020. And according to news reports cited above, two correctional officers have died of symptoms consistent with COVID-19.
Petitioner housed at this detention facility faces an elevated risk of exposure to, and contraction of, COVID-19.
a. Petitioner Abraham Gebremedhim Gebremichael should be released.
Although Abraham Gebremedhim Gebremichael (“Gebremichael”)’s age of 33 does not put him at high risk according to the CDC, he suffers from bradycardia and a slow heartbeat, which leaves his body without sufficient oxygen. ECF No. 2-11 at 1. He also experiences shortness of breath and fatigue as a result of his medical conditions. Id.
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Gebremichael states he is housed in Unit C, with 110 other people. ECF No. 2-11 at 1. Gebremichael states that, as of the date of his declaration, there were insufficient cleaning supplies and soap. ECF No. 2-11 at 2.
In his declaration, Gebremichael alleges that he has a cough, along with six or seven other people in his unit. He says one other detainee had a high fever, but still slept in the Unit C. ECF No. 2-11 at 2.
Gebremichael has been in ICE custody since August 13, 2019. He had a scheduled immigration court hearing on April 29, 2020. ECF No. 8-1 at 6. Respondents do not allege that Gebremichael was ever convicted of a crime.
Respondents do not state whether it considers Gebremichael “at higher risk,” or whether it has evaluated the appropriateness of his detention, specifically. If released, he would reside with his cousin in Houston, Texas. ECF No. 1 at 14.
Gebremichael has experienced one generalized symptom consistent with COVID-19, but he has not tested positive or reported a protracted illness or other symptoms. symptoms consistent with COVID-19. With no criminal history, and a lengthy period of immigration detention, relevant factors, weigh in favor of his release.
3. Catahoula Correctional Center currently houses two Petitioners: Ronaldo Alex Colon and Karthikeyan Ponnusamy.
According Hartnett’s declaration, Catahoula Correctional Center (“CCC”). CCC is a private detention center run by LaSalle Corrections Corporation (“LCC”). ECF No. 8-1 at 2. As of April 21, 2020, there were 529 detainees housed at the facility, which has capacity to house 750 detainees. ECF No. 8-1 at 3.
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Also as of April 21, 2020, CCC had one detainee that had tested positive for COVID-19, but he was transferred to Richwood. There were also three suspected cases who were isolated until their COVID-19 tests came back negative. ECF No. 82 at 4. According to ICE, seven detainees at CCC tested positive for COVID-19 as of April 28, 2020.
With growing reported cases, Petitioners housed in this facility face a moderate to high risk of exposure or contraction.
a. Petitioner Ronaldo Alex Colon should be released. Ronaldo Alex Colon (“Colon”) is a 47-year-old detainee with hypertension and high cholesterol. ECF No. 1 at 15. Colon alleges that he is in Room B with 100 others, sharing three toilets, one urinal, and six showers. ECF No. 2-4 at 1. As of the date of his declaration, Colon alleges that CCC is lacking cleaning supplies, gloves, and masks. Id. He also alleges that several people had flu-like symptoms. Id. Colon submitted an updated declaration on April 22, 2020. ECF NO. 9-7 at 1. Colon states that he was provided a “basic piece of cloth” to cover his mouth, but not a medical mask. Id. Colon says there are “still more than 100 people in the dorms closed in together for 23 hours of the day.” Id. Colon alleges that utensils are rinsed only with hot water, and bathrooms only have small bars of soap. Id. Colon states that new detainees are still arriving daily. Id. Colon also states that CCC guards recently threw tear gas into the dorms. Id. Colon indicates that he recently had flulike symptoms, but does not state that he was tested for COVID-19. Id.
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Case 1C:2a0s-ecv4-0:2004-5c8v-0D0D5D9-6J-PRMDP-DJoHcEumDeonct u1m7 enFtil2e6d-074/3F0ile/2d005P/0a6g/e2042 Poaf g4e8 6P2agoef I9D5#: 894
Colon has been detained for over a year since entering the United States. ECF No. 2-4 at 1; ECF No. 8-1 at 6. He has not been convicted of a crime. Colon’s appeal of his removal order is pending. ECF No. 8-1 at 6.
Respondents do not state whether it considers Colon “at higher risk,” or whether it has evaluated the appropriateness of his detention, specifically. If released, Colon would reside with his sister in New York, New York. ECF No. 2-4 at 1.
For all of the reasons stated regarding Petitioner Gebremichael above, relevant factors favor Petitioner Colon’s release.
b. Petitioner Kathikeyan Ponnusamy should be released. Although Karthikeyan Ponnusamy is only 41, he suffers from a host of medical conditions that put hi at greater risk of complications from COVID-19. Specifically, Ponnusamy has diabetes, hypertension, and Low Lactate Dehydrogenase—a blood thickening disease. ECF No. 2-15 at 1. Ponnusamy also reports suffering from depression, anxiety, and insomnia. Id. Ponnusamy has neither tested positive nor reported, of record, symptoms of COVID-19.
Ponnusamy has been in custody since August 2019, and was ordered removed in January 2020. His appeal of the removal order is pending. ECF No. 8-1 at 6-7. There are no claims that he has ever been convicted of a crime.
Respondents do not state whether it considers Ponnusamy “at higher risk,” or whether it has evaluated the appropriateness of his detention, specifically. If released, he would reside in Austin, Texas. ECF No. 2-15 at 2.
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Relevant factors – including a lack of criminal history and serious underlying health conditions – favor Ponnusamy’s release.
4. Jackson Parish Correctional Center currently houses one Petitioner: Aracelio Rodriguez.
According Hartnett’s declaration, Jackson Parish Correctional Center (“JPCC”) is a private detention center run by LCC. ECF No. 8-1 at 3. As of April 21, 2020, the date of his declaration, there were 502 detainees housed at the facility, which has capacity to house 1,000 detainees. ECF No. 8-1 at 3.
As of the dates of Hartnett’s declaration, JPCC had no suspected or confirmed cases of COVID-19. According to the ICE website, there has been no change.
a. Petitioner Aracelio Rodriguez should not be released. Aracelio Rodriguez is 61 years old and has “severe asthma.” ECF No. 1 at 15. Rodriguez reports that he has “trouble breathing every day.” ECF No. 2-16 at 1. Rodriguez has neither tested positive nor reported, of record, symptoms of COVID19. Rodriguez is housed in “one big dorm of about 100 people and there are only about 3 feet between each bed.” ECF No. 2-16 at 2. As of the date of his declaration, he often lacked soap to wash his hands, and the staff did not wear masks or gloves. Id. Rodriguez has been in ICE custody since applying for entry to the United States in October 2019. He was ordered removed on March 5, 2020, and his removal to Cuba is being arranged. ECF No. 8-1 at 7. ICE does not report any criminal
43

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history. Rodriguez provides that he would reside with his son in West Palm Beach, Florida if he is released. ECF No. 2-16 at 2.
Respondents do not state whether it considers Rodriguez “at higher risk,” or whether it has evaluated the appropriateness of his detention, specifically.
Rodriguez is a high-risk detainee due to his advanced age and underlying medical conditions. But the risk of exposure at JPCC seems to be minimal at this point, with no confirmed or suspected cases having been reported, and minor shortcomings in sanitization having been reported. Accordingly, relevant factors do not presently favor Rodriguez’s release.
5. Pine Prairie ICE Processing Center currently houses one Petitioner: Desmond Nkobenei.
According Hartnett’s declaration, Pine Prairie ICE Processing Center (“PPIPC”) is a private detention center run by GEO. ECF No. 8-1 at 3. As of Hartnett’s declaration, there were 441 detainees housed at the facility, which has capacity to house 730 detainees. ECF No. 8-1 at 3.
Hartnett’s declaration also reports seven detainees with confirmed cases of COVID-19 and one suspected case at PPIC. According to ICE’s website, 19 detainees at PPIC had confirmed cases of COVID-19 as of April 29, 2020.
Petitioners at this facility face a moderate to high risk of exposure or contraction.
a. Petitioner Desmond Nkobenei should be released. Desmond Nkobenei is only 25 years old, but suffers from hypertension. Nkobenei states that his medication has been increased several times. ECF No. 2-14
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at 1. Nkobenei has neither tested positive nor reported, of record, symptoms of COVID-19.
Nkobenei states that he is housed with 70 to 74 people in a small dorm with bunks less than a meter apart. Detainees share two working toilets, and there is no sanitizer or disinfectant. ECF No. 2-14 at 1. Nkobenei submitted an updated declaration on April 21, 2020, indicating that he and other detainees were each provided one single-use surgical mask and instructed to wash after each use. ECF No. 9-6 at 1. Nkobenei alleges that guards first threatened to withhold pay if he did not sign a form stating he had received an N95 mask. Nkobenei also states that his dorm is under quarantine. Id. Nkobenei also reports 17 new detainees were transferred into the facility on April 19, 2020. Id.
Nkobenei has been in custody since August 2019 when he entered the United States. He was ordered removed in February 2020, and his appeal is pending. ECF No. 8-1 at 7. If released, Nkobenei would reside with his cousin in Capitol Heights, Maryland. ECF No. 1 at 16.
Relevant factors – including his lack of criminal history, and his underlying medical conditions, which are among the conditions that place individuals at highest risk – favor Nkobenei’s release.
6. Winn Correctional Center currently houses two Petitioners: Sigous Asgari and Eduardo Devora Espinosa.
According Hartnett’s declaration, Winn Correctional Center (“WCC”) is a private detention center run by LCC. ECF No. 8-1 at 2. As of April 21, 2020, there
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were 795 ICE detainees housed at the facility, which has capacity to house 1,553 detainees. ECF No. 8-1 at 2.
As of April 21, 2020, WCC had three detainees with confirmed cases of COVID19 and one suspected case. ECF No. 8-1 at 2. According to ICE’s website, the numbers have not changed.
Petitioners housed at this facility face moderate to high risk of exposure and contraction.
a. Petitioner Sigous Asgari should not be released. According to updated filings from Petitioners’ counsel, Sigous Asgari (“Asgari”) has tested positive for COVID-19. ECF No. 15. Asgari has also developed a blood clot. Id. Asgari is 59 years old and has a history of Grade 2 Fatty Liver Disease as well as “hypertension and a chronic lung condition which has led to several lung infections and bouts with pneumonia.” Id.; ECF No. 1 at 12. Asgari’s medical conditions put him at great risk of complications from COVID-19. At last reporting, Asgari is reportedly under medical supervision in a negative pressure isolation unit at Winn. ECF No. 15. Although counsel for Asgari claims that ICE’s care is, generally, deficient and dangerous to detainees like Asgari, the record presently contains no other specific information beyond those representations as to Asgari’s actual treatment at Winn. Counsel for Respondents has maintained at least some contact with Winn medical personnel, who reported Asgari remained under medical supervision.
46

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Asgari was scheduled for removal in March and April 2020, but the flights were cancelled due to COVID-19 restrictions. ECF No. 8-1 at 6. Asgari would reportedly live with a daughter in Redwood City, California if released. ECF No. 1 at 12.
Asgari’s circumstances – again, at present and given what little has been reported of record – do not warrant release. Nor is the Court, at present, convinced that Asgari’s release would not endanger the public, and would necessarily improve, his medical condition. Should more information become known, this calculus may change. But given Asgari’s unfortunate circumstances, and the lack of known details or alternatives at present, Asgari should not be released.
b. Petitioner Eduardo Devora Espinosa has already been released. According to Hartnett’s declaration, Eduardo Devora Espinosa (“Espinosa”) was released on parole on April 15, 2020. Therefore, his request for release is moot. III. Conclusion IT IS RECOMMENDED that the Court GRANT IN PART Petitioners’ Motion for Temporary Restraining Order (ECF No. 2) in the form of a PRELIMINARY INJUNCTION requiring the IMMEDIATE RELEASE of the Petitioners identified above pending resolution of their immigration proceedings or removal, and under CONDITIONS to be specified by DHS/ICE but to exclude subsequent arrest and detention, unless an identified Petitioner violates another condition of release, attempts to abscond, or commits any criminal offense. IT IS FURTHER RECOMMENDED that the Court decline to require any Petitioner released to post a bond or other security. See Fed. R. Civ. P. 65(c); A.T.N.
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Case 1C:2a0s-ecv4-0:2004-5c8v-0D0D5D9-6J-PRMDP-DJoHcEumDeonct u1m7 enFtil2e6d-074/3F0ile/2d005P/0a6g/e2048 Poaf g4e8 6P8agoef I9D5#: 900
Indus., Inc. v. Gross , 632 F. App'x 185, 192 (5th Cir. 2015) (“[U]nder Rule 65(c), a court may elect to require no security at all.”) (internal citation and quotation omitted).
IT IS FURTHER RECOMMENDED that the Motion for Temporary Restraining Order (ECF No. 2) be DENIED IN PART in all other respects, and as to all other Petitioners.
IT IS FURTHER ORDERED that, given the urgency of the relief sought and recommended above, the objections periods set forth in 28 U.S.C. § 636(b)(1)(c) and Fed. R. Civ. P. 72(b) be EXPEDITED, and that any party wishing to object to this Report and Recommendation do so on or before Monday, May 4, 2020. The District Judge will consider timely objections before issuing a final ruling. A party’s failure to file written objections to the proposed factual findings, conclusions, and recommendations contained in this Report and Recommendation shall bar that party fro attac ing either the fact al findings or the legal concl sions accepted by the District dge e cept pon gro nds of plain error.
THUS DONE AND SIGNED in Alexandria, Louisiana, on this th day of April 2020.
__________________________________________ JOSEPH H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE
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CCaassee44:2:009-c-cvr--0000519969-RDPoc-JuHmEentD5o7c8umFeinletd26o-n703F/3ile0d/205in/0T6/X2S0D PaPgaege691 ooff 955
United States District Court Southern District of Texas

ENTERED

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS

March 30, 2020
David J. Bradley, Clerk

HOUSTON DIVISION

UNITED STATES OF AMERICA, VS. PEDRO MUNIZ,
Defendant.

§ § § CRIMINAL ACTION NO. 4:09-CR-0199-1 § § § § §

MEMORANDUM AND ORDER Defendant Pedro Muniz pleaded guilty to conspiracy to possess with intent to distribute a controlled substance in violation of Title 21, United States Code, Sections 846, 841(a)(1), (b)(1)(A)(ii), and (b)(1)(A)(viii) in January 2010. Defendant was sentenced to a term of 235 months, but his sentence was reduced to 188 months on May 29, 2015 pursuant to 18 U.S.C. § 3582(c)(2). (Doc. No. 517). Defendant has been in custody since April 20, 2009. Defendant now moves for compassionate release because of concerns about his medical condition and the potential spread of the novel coronavirus at the Federal Medical Center Butner, in Bahama, North Carolina, where he is currently incarcerated. Defendant has exhausted all possible avenues for administrative release, and if released plans to live under the care of his mother in Conroe, Texas. Under 18 U.S.C. § 3582, a court may modify a defendant’s sentence upon motion of the Director of the Bureau of Prisons or “upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden

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of the defendant’s facility, whichever is earlier.” 18 U.S.C. § 3582(c)(1)(A). Upon such a motion, a court may modify a defendant’s sentence after considering the factors set forth in § 3553(a) to the extent applicable if it finds that “extraordinary and compelling reasons warrant such a reduction” and “such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” Id. § 3582(c)(1)(A)(i).
The policy statement regarding compassionate release sets forth three circumstances that are considered “extraordinary and compelling reasons.” U.S. Sentencing Guidelines, § 1B1.13(1)(A) & cmt. n.1. Among these are the “medical condition of the defendant,” including where the defendant is “suffering from a serious physical or medical condition . . . that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover.” Id. § 1B1.13 cmt. 1. The policy statement also requires that the defendant not pose a danger to the safety of the community. Id. § 1B1.13(2).
The Court is persuaded that Defendant presents an extraordinary and compelling reason for compassionate release and that such release is consistent with applicable policy considerations. In so concluding, the Court is grievously aware of the current global health crisis caused by COVID-19. The President has declared a National Emergency due to the spread of the novel coronavirus and states and localities across the nation have implemented measures to stymie its rapid spread. And while the Court is aware of the measures taken by the Federal Bureau of Prisons, news reports of the virus’s spread in detention centers within the United States and beyond our borders in China and Iran demonstrate that individuals housed within our prison systems nonetheless remain particularly vulnerable to infection. See, e.g., Danielle Ivory, “We Are Not a Hospital”: A Prison Braces for the Coronavirus, N.Y. Times (March 17, 2020),
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https://www.nytimes.com/2020/03/17/us/coronavirus-prisons-jails.html (citing densely populated living conditions, dearth of soap, hand sanitizer, and protective gear, and impossibility of maintaining safe distance between inmates and guards as reasons prisoners are at particular risk of infection). The virus’s spread at the Cook County jail in Chicago provides an alarming example: in a single week, the county jail went from two diagnoses to 101 inmates and a dozen employees testing positive for the virus. See Timothy Williams et al., As Coronavirus Spreads Behind Bars, Should Inmates Get Out?, N.Y. Times (March 30, 2020), https://www.nytimes.com/2020/03/30/us/coronavirus-prisons-jails.html.
Indeed, news reports indicate that the virus has already begun infiltrating federal prisons; in one prison in Louisiana, an inmate died after testing positive for the virus and at least 30 other inmates and staff have tested positive. See Kimberly Kindy, An Explosion of Coronavirus Cases Cripples a Federal Prison in Louisiana, Wash. Post (March 29, 2020), https://www.washingtonpost.com/national/an-explosion-of-coronavirus-cases-cripples-a-federalprison-in-louisiana/2020/03/29/75a465c0-71d5-11ea-85cb-8670579b863d_story.html (hereinafter, An Explosion of Coronavirus Cases). To date, at least one inmate and one staff member have tested positive for the virus in FMC Butner, where Defendant is housed. See COVID19, Fed. Bureau of Prisons (March 29, 2020), https://www.bop.gov/coronavirus/.
In this case, Defendant has been diagnosed with serious medical conditions that, according to reports from the Center for Disease Control, make him particularly vulnerable to severe illness from COVID-19. These include, inter alia, end stage renal disease, diabetes, and arterial hypertension. See People Who Are at Higher Risk for Severe Illness, CDC (March 26, 2020) https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html? CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fspecific
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-groups%2Fhigh-risk-complications.html. The Court notes that the inmate in Louisiana who died after testing positive from the virus was only two years older than Defendant and also suffered from long-term, preexisting medical conditions. See Kindy, An Explosion of Coronavirus Cases. Defendant has also undergone amputation of his right foot, which has left him wheelchair-bound and significantly hinders his mobility. This further diminishes his ability to care for himself in a prison environment. While it is true that Defendant’s request for a sentence reduction and subsequent administrative appeal to the Board of Prisons were denied, those requests and denials occurred in March and July of 2019—long before the coronavirus was understood to be such a public health crisis. Because Defendant is at high-risk for severe illness from COVID-19 and because inmates in detention facilities are particularly vulnerable to infection, the Court finds that Defendant has demonstrated an extraordinary and compelling reason for compassionate release.
Moreover, the Court is persuaded that the applicable § 3553(a) factors support Defendant’s request for compassionate release and that Defendant will not pose a threat to the community. While the Court acknowledges the seriousness of Defendant’s offense, Defendant has been in custody since April 2009—over ten years—and has served approximately 80 percent of his reduced sentence. The length of Defendant’s incarceration adequately expresses the seriousness of the offense, deters criminal conduct, and protects the public under § 3553(a). Moreover, the Court notes that Defendant’s offense was not a violent one, and due to Defendant’s serious medical conditions Defendant is confined to a wheelchair and requires medical assistance. If released Defendant will be under the care of his mother in Conroe, Texas. Because of Defendant’s serious medical conditions and the length of time already served, the Court is persuaded that Defendant will not pose a threat to the community.
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CCaassee44:2:009-c-cvr--0000519969-RDPoc-JuHmEentD5o7c8umFeinletd26o-n703F/3ile0d/205in/0T6/X2S0D PaPgaege735 ooff 955 Pursuant to 18 U.S.C. § 3582(c)(1)(A), the Court finds that extraordinary and compelling
reasons warrant a reduction of Defendant’s sentence, that Defendant does not pose a danger to any other person or the community, that the § 3553(a) factors support a reduction, and that the reduction is consistent with currently applicable Sentencing Commission policy statements. The Court therefore GRANTS Defendant’s Motion for Compassionate Release and orders release of Defendant.
IT IS SO ORDERED. SIGNED at Houston, Texas, on this the 30th of March, 2020.
HON. KEITH P. ELLISON UNITED STATES DISTRICT JUDGE
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION CASE NO. 18-CR-20989-[2] ALTMAN/GOODMAN
UNITED STATES OF AMERICA, Plaintiff,
v. JOHNNY GROBMAN, et al.,
Defendant. _______________________________/
ORDER ON DEFENDANT GROBMAN’S AMENDED MOTION FOR RELEASE PENDING SENTENCING A federal jury convicted Defendant Johnny Grobman of all charges arising from a fraud scheme. United States District Judge Roy K. Altman remanded him to the U.S. Marshal’s custody after the verdict, and Mr. Grobman is now in the Federal Detention Center (“FDC”), awaiting sentencing. His sentencing was scheduled for April 23, 2020, but he asked the Court to postpone it. Judge Altman granted [ECF No. 391] that motion and the sentencing is now set for June 17, 2020. Framed by this background, Grobman has filed [ECF No. 387] an “Updated and Amended Motion for Release Pending Sentencing,” which Judge Altman referred to me [ECF No. 383]. The United States filed an opposition response [ECF No. 390] and Grobman filed a reply [ECF No. 393].
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Based on the unique circumstances presented here, the Undersigned grants the motion -- but with additional conditions and restrictions not mentioned in the motion. This order arises from Grobman’s serious health issues, which place him in a high-risk category of dangerous and potentially deadly complications should he contract the rapidly-expanding COVID-19 Coronavirus.
So, the Undersigned is confronted with an extraordinary situation of a medicallycompromised detainee being housed at a detention center where it is difficult, if not impossible, for Grobman and others to practice the social distancing measures which government, public health and medical officials all advocate.
Because this Order arises from one defendant’s individual medical condition, it should not be viewed as a determination that FDC is unable to adequately provide medical screening or treatment to its detainees, that detention at FDC is generally unsafe, or that detention there is generally inappropriate or unduly risky. This Order flows from a detailed and comprehensive bond package, which defense counsel have organized in an effort to demonstrate that Grobman is not a flight risk. Therefore, as noted, this is one ruling about one man involved in one fact-specific scenario. I. Grobman’s Position
By way of summary, Grobman seeks release for five reasons: (1) he was convicted of only a “non-violent offense”; (2) “breaking events surrounding the Coronavirus”; (3) the shutdown of FDC to all visitors, including legal visitors, for at least 30 days; (4) Mr.
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Grobman’s health; and (5) “potential issues for appeal.” [ECF No. 387, pp. 1-2]. Grobman’s motion proposes three separate ten percent bonds totaling $2 million
(one for $1 million, one for $850,000 and one for $150,000 -- with reinstatement of the $15,000 held by the Clerk in connection with the pre-trial bond) and two personal surety bonds totaling $1.5 million. The total bond package would be $3.5 million, and several co-signers, including his wife, would also be on the financial hook.
Concerning his health, Grobman advises that he is in an “at risk” category. [ECF No. 387, p. 2]. He is pre-diabetic and is being treated with metformin. Id. Significantly, he has been diagnosed with Discoid Lupus Erythematosus, an auto-immune deficiency disease which the Centers for Disease Control and Prevention has categorized as mostat-risk for contracting COVID-19. Id. The motion explains that his doctor said that his notes indicate that Grobman was “not suffering a Lupus outbreak at the time of his last visit,” but “could suffer one at any time.” Id. at p. 3.
Moving from his own medical condition to the conditions at FDC, Grobman alleges that confinement “creates the ideal environment for the transmission of contagious disease.” Id. at p. 5. He says that he and other FDC prisoners are confined to their rooms for 22 hours per day. Id. He also alleges that no kosher food is being provided to him. Id. Although not expressly stated, Grobman’s motion implicitly asserts that he keeps kosher for religious or health reasons (or both).
Grobman also notes that other attorneys have reported that “their client’s access 3

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to any medical services has been curtailed.” Id. at p. 6. Grobman’s motion summarizes his health concerns with the following point:
“There is no reason to risk Mr. Grobman’s life for a sentence in a non-violent, first offense, fraud case, in which the loss amount is subject to serious dispute . . .” Id.
In addition to addressing his health concerns, Grobman alleges that his attorney’s ability to review the Pre-Sentence Investigation Report “has been severely compromised.” Id. As noted, Grobman’s sentencing is now scheduled for June 17, 2020, and Grobman will undoubtedly need to have comprehensive discussions with counsel to prepare for the submission of a sentencing memorandum and for the sentencing hearing.
Grobman contends that he is not a flight risk. Id. This conclusion, he explains, is supported by the fact that travel both in and out of the country “is restricted and limited” and that “there is literally no place Grobman could flee to” because he lacks a passport and the country’s borders have been closed. Id.
Not surprisingly, the United States sees things much differently than Grobman portrays them, and it opposes the motion. II. Government’s Position
The United States begins by pointing out that Judge Altman already rejected the Defendant’s request for release before sentencing. [ECF No. 390, p. 1]. It describes the emergence of COVID-19 as the only new factor. Id. The United States argues that the existence of COVID-19 outside of FDC (where Grobman is confined) is not a basis for
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release. Id. Significantly, the United States argues, this once-in-a-century virus does not amount to the clear and convincing evidence needed to overcome the presumption of detention. Id. In other words, the Government focuses on the applicable statute (28 U.S.C. § 3143) and argues that Grobman has not met its requirements for release. III. Factual Background
The United States describes this case as one involving Grobman’s extensive scheme to defraud multiple victim companies of more than one hundred million dollars. Id. On August 23, 2019, the Defendant was charged in a 31-count Superseding Indictment with various crimes, including wire fraud, money laundering, theft of pre-retail medical products, and smuggling. See generally Superseding Indictment [ECF No. 132]. Grobman and two co-conspirators proceeded to trial.
Grobman describes it differently. He denies that the case is about a scheme to steal more than $100 million. To the contrary, he explains that the case is about “gray market sales of diverted products.” [ECF No. 393, p. 2]. He points to the fact that “every company listed as a victim was paid for their products and paid an amount in which they received a profit.” Id. Therefore, Grobman argues, the issue at sentencing will be “whether any company suffered a loss under the guidelines or whether profits of the defendants can be characterized a loss.” Id.
On January 21, 2020, a three-week jury trial began. The United States represents, in its response, that the jury took less than half-a-day of deliberations to convict the
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defendants of all charges. [ECF No. 390, p. 2]. Immediately following the jury’s verdict, Judge Altman remanded Grobman to the custody of the United States Marshals Service. Id. Defendants’ sentencing is currently scheduled for June 17, 2020.
Just before remanding the Defendant, Judge Altman heard argument from Grobman’s counsel, who argued that Grobman should be allowed to remain on bond, contending that his family circumstances and compliance with the previous conditions of bond provided clear and convincing evidence that Grobman did not pose a flight risk. See Feb. 6, 2020 Trial Tr. at 16:17-17:3.1 Judge Altman ordered Grobman be remanded, noting, “[T]hings are different once you get convicted at trial. Because until that point, hope springs eternal in human beings. And now after that point, I think it’s understandable that things may have changed.” Id. at 17:8-11.
The Presentence Investigation Report (“PSI”) was disclosed to the parties. [ECF No. 378]. The PSI established that Grobman’s guideline imprisonment term is life imprisonment. [ECF No. 378, ¶ 109].2
But Grobman argues that this advisory recommendation is substantially and

1

The hearing transcript has not been posted on CM/ECF, so the Undersigned has

not been able to review it. Therefore, I am quoting from the Government’s opposition

memorandum, as I have no reason to believe that the United States would purposefully

miscite comments from a transcript. If Grobman has grounds to challenge the accuracy

of the quotes provided by the United States in its opposition memorandum and used

here, then he may file an appropriate motion.

2

The United States mentioned the life term guideline in its publicly filed

memorandum.

6

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unfairly skewed, and he contends it is based on an over-representation of the actual harm in a gray market/diversion case. [ECF No. 393, p. 2].
To support this argument, Grobman relies on United States v. Javat, 18-cr-20668, a case which Grobman explains the United States has previously compared his case to during pre-trial conversations and hearings. Id. In Javat, United States District Judge Donald Middlebrooks held that the Advisory Sentencing Guidelines over-represented the actual harm and found a downward variance to 10 years, from a level 43 life sentence. Id. In doing so, Judge Middlebrooks explained the following at the sentencing hearing: “I think other guideline enhancements in this case operate together to produce an unreasonable sentence. And I also have some concerns . . . that the way the fraud guidelines have been ratcheted up by a number of events also lead, at least in this case, to an unreasonable sentence.” Id. at pp. 2-3.
Before explaining my ruling, the Undersigned acknowledges the never-before-inour-lifetime health crisis which the entire world is confronting with the COVID-19 pandemic.
So, let’s be realistic about what’s happening. The magnitude and speed of COVID19’s transmission is far greater than other flus or diseases which the world has battled in the last 75 years. As of now, there is no known treatment and a vaccine is, at a minimum, many months away. To say that the health risk is serious is to use an underwhelming adjective.
7

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The Undersigned recognizes that Grobman (and likely many other FDC detainees) is concerned about his health. Anyone would be concerned. Similarly, there is no denying that COVID-19 has turned the world on its head.
Extraordinary times sometimes lead to atypical results. Factors which might be deemed comparatively insignificant in routine scenarios may now take on far-more importance. On the flip side, factors considered particularly relevant in a run-of-the-mill setting might generate only modest influence in an unprecedented time.
In our District, all trials, including criminal trials, have been stopped. All judges have been advised to conduct hearings by telephone or video conference, rather than to have in-person hearings. CDC-generated placards have been placed in many spots in our courthouses, admonishing all to wash their hands and practice social distancing.
The United States Attorney General issued a March 26, 2020 Memorandum, addressed to the Director of the Bureau of Prisons, giving guidance on how to grant home confinement to certain eligible inmates during the “present crisis” arising from “the pandemic currently sweeping across the globe.” [ECF No. 395-1]. The Memorandum suggests that “there are some at-risk inmates who are non-violent and pose minimal likelihood of recidivism and who might be safer serving their sentences in home confinement rather than in BOP facilities.” Id. (emphasis added).
Therefore, the Attorney General’s Memorandum explained, he wants to “ensure that we utilize home confinement, where appropriate, to protect the health and safety of
8

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BOP personnel and the people in our custody.” Id. In fact, several federal judges have focused on the health crisis when issuing orders
releasing Defendants from custody, including those, like Grobman, who are facing sentencing.
For example, in United States v. Stephens, No. 15-cr-95, 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020), the Court discussed that “the unprecedented and extraordinarily dangerous nature of the COVID-19 pandemic has become apparent.” The Court further focused on the reality that “although there is not yet a known outbreak among the jail and prison populations, inmates may be at a heightened risk of contracting COVID-19 should an outbreak develop.” Id. The Stephens Court noted that “though the BOP has admirably put transmission mitigation measures in place,” it then explained that “substantial medical and security challenges would almost certainly arise.” Id.
Similarly, in United States v. Harris, No. 19-356, 2020 WL 1482342, at *1 (D.D.C. Mar. 26, 2020), the District Court judge granted an emergency motion for release filed by a defendant facing sentencing after he pled guilty to distribution of child pornography. In doing so, the judge highlighted the fact that “the risk of the spread of the virus in the jail is palpable, and the risk of overburdening the jail’s healthcare resources, and the healthcare resources of the surrounding community is real.” Id. IV. Applicable Legal Standards and Analysis
It is presumed that a defendant will be remanded into custody following a 9

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criminal conviction. Under Title 18, United States Code, Section 3143, a defendant who has been convicted “shall” be detained pending sentencing “unless the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released[.]” 18 U.S.C. § 3143(a) (emphasis added).
The United States has not advanced the argument that Grobman would be a danger to safety of another or to the community if released, so this Order will not discuss that factor.
The emergence of COVID-19, combined with Grobman’s at-risk medical status, militates in favor of the Defendant’s release.
In addition to Section 3143, there is another federal statute which comes into play here: 18 U.S.C. § 3145(c), which provides that “a person subject to detention pursuant to section 3143(a)(2) or (b)(2), and who meets the conditions of release set forth in section 3143(a)(1) or (b)(1), may be ordered released, under appropriate conditions, by the judicial officer, if it is clearly shown that there are exceptional reasons why such person’s detention would not be appropriate.” (emphasis added). The Harris Court recently relied on Section 3145(c) to enter an Order releasing a defendant pending sentencing. 2020 WL 1482342, at *1.
Courts have generally recognized that “it is a rare case in which health conditions present an ‘exceptional reason’” to allow for release where otherwise detention would be
10

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warranted. United States v. Wages, 271 F. App’x 726, 728 (10th Cir. 2008) (applying 18 U.S.C. § 3145(c); collecting cases). These cases recognize that reasonably necessary treatments are available in prison, and often times a prison setting will provide superior care than a defendant can obtain on the outside. United States v. Rodriguez, 50 F. Supp. 2d 717, 722 (N.D. Ohio 1999).
These cases, however, were not decided in the midst of a global pandemic which has killed thousands in two to three months and which appears to be spreading at an alarming and ever-increasing rate in the United States.
The Government notes that several courts have addressed similar motions for release based upon COVID-19 and still denied the defendant’s release. [ECF No. 390, p. 7]; see, e.g., United States v. Lewis, Case No. 2:19-cr-00034-LMA-MBN, ECF No. 150 (E.D. La. Mar. 19, 2020); United States v. Martin, Case No. 1:19-cr-00140-PWG, ECF No. 209 (D. Md. Mar. 17, 2020); see also United States v. Gileno, Case No. 3:19-cr-00161-VAB, ECF No. 28 (D. Conn. Mar. 19, 2020) (denying wire fraud defendant’s request in light of COVID-19 to serve remaining eight months of his sentence on home confinement); cf. United States v. Stephens, Case No. 15-cr-95-AJN, ECF No. 2798 (S.D.N.Y. Mar. 19, 2020) (granting bail in light of COVID-19 to defendant facing a hearing on supervised release violations, where defendant had not yet been convicted of violating supervised release and the hearing was scheduled for six days later).
The United States also relies on a decision from earlier this week in this district, 11

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when United States District Judge James I. Cohn continued to detain pending sentencing a health care fraud defendant following his conviction at trial. [ECF No. 390, p. 7]; United States v. Sebastian Ahmed, Case No. 19-cr-60200-JIC (S.D. Fla. Mar. 24, 2020).
In Lewis, the Court was not convinced by the defendant’s citation to articles discussing that jails are incubators for infectious diseases like COVID-19. Lewis, Case No. 2:19-cr-00034-LMA-MBN, ECF No. 150 (E.D. La. Mar. 19, 2020). The Court also noted that, if anything, the COVID-19 pandemic has reduced the availability of conditions to mitigate the risk of flight because probation officers will not be as efficient at monitoring. Id.
And in Gileno, the Court rejected the defendant’s request, concluding that there is no showing that the FDC-implemented plan is inadequate to manage the pandemic at the facility in question. Gileno, Case No. 3:19-cr-00161-VAB, ECF No. 28 (D. Conn. Mar. 19, 2020). The judge could not assume that the BOP would be unable to manage the threat. Moreover, the Court reasoned, if the BOP is unable to manage the medical risk, then it would be duty-bound to release all prisoners who expressed vague concern about medical issues. Id.
There is no doubt that those cases undermine Grobman’s position. But other, more-recent decisions, issued as the pandemic continues to worsen, support release under appropriate conditions. Grobman relies on the following cases:
1) United States v. Avenatti, No. 8:19-cr-61 (C.D. Cal. Mar. 25, 2020) (sua sponte inviting Avenatti to reapply for release after denying his motion for the release, stating,
12

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“[i]n light of the evolving nature of the Covid-19 pandemic, particularly in the greater New York City area, the Court invites Avenatti to apply ex parte for reconsideration of the Court’s order” denying release).
2) United States v. Michaels, 8:16-cr-76-JVS (C.D. Cal. Mar. 26, 2020) (finding that COVID-19 is a “compelling reason” for release and that “Michaels has demonstrated that the Covid-19 virus and its effects in California constitute ‘another compelling reason’” justifying temporary release under § 3142(i)).
3) United States v. Harris, No. 19-cr-356 (D.D.C. Mar. 26, 2020) (“The Court is convinced that incarcerating Defendant while the current COVID-19 crisis continues to expand poses a far greater risk to community safety than the risk posed by Defendant’s release to home confinement on . . . strict conditions.”).
4) Xochihua-James v. Barr, No. 18-71460 (9th Cir. Mar. 23, 2020) (sua sponte releasing detainee from immigration detention because “in light of the rapidly escalating public health crisis, which public health authorities predict will especially impact immigration detention centers”).
5) United States v. Jaffee, No. 19-cr-88 (D.D.C. Mar. 26, 2020) (releasing defendant with criminal history in gun and drug case, citing “palpable” risk of spread in jail and “real” risk of “overburdening the jail’s healthcare resources”); (“[T]he Court is . . . convinced that incarcerating the defendant while the current COVID-19 crisis continues to expand poses a greater risk to community safety than posed by Defendant’s
13

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release to home confinement”). 6) United States v. Garlock, No. 18-CR-00418-VC-1, 2020 WL 1439980 (N.D. Cal.
Mar. 25, 2020) (citing “chaos” inside federal prisons in sua sponte order extending time to self-surrender because “[b]y now it almost goes without saying that we should not be adding to the prison population during the COVID-19 pandemic if it can be avoided”).
7) United States v. Perez, No. 19 CR. 297 (PAE), 2020 WL 1329225, at *1 (S.D.N.Y. Mar. 19, 2020) (releasing defendant due to the “heightened risk of dangerous complications should he contract COVID-19”).
8) United States v. Stephens, No. 15-cr-95 (AJN), 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020) (releasing defendant in light of “the unprecedented and extraordinarily dangerous nature of the COVID-19 pandemic”).
9) In re Manrique, No. 19-mj-71055-MAG-1 (TSH), 2020 WL 1307109, at *1 (N.D. Cal. Mar. 19, 2020) (authorizing release of former Peruvian president who is fighting extradition back to Peru to face trial on corruption charges as “[t]he risk that this vulnerable person will contract COVID-19 while in jail is a special circumstance that warrants bail”).3
Moving on from Grobman’s medical concerns to the statutory requirement that he

3

In authorizing release, the magistrate judge noted that the United States’ treaty

obligation to Peru “is to deliver him to Peru alive.” 2020 WL 1307109, at *1 (emphasis

added).

14

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establish by clear and convincing evidence that he is not a flight risk,4 the Undersigned is persuaded by his presentation under the special and exceptional circumstances presented here.
As part of the flight risk analysis, I am persuaded by Magistrate Judge Hixson’s observation in Manrique that the flight risk concerns have “to a certain extent been mitigated by the existing pandemic.” 2020 WL 1307109, at *1.
Grobman argues that he does not pose a flight risk because “he lacks a passport and country borders have been closed.” [ECF No. 387, p. 6]. As noted by Magistrate Judge Hixson, “international travel is hard now.” In re Manrique, 2020 WL 1307109, at *1. For example, “travel bans are in place, and even if Toledo got into another country, he would most likely be quarantined in God-knows-what conditions, which can’t be all that tempting.” Id.
Moreover, to further quote Magistrate Judge Hixson, “international travel would itself pose a risk of infection by likely putting [the defendant who has family and contacts in Peru, where he used to be president] in contact with people in close quarters.” Id.
The United States contends that Grobman has “vast wealth,” which means he would have money to travel by private air or sea travel to escape. [ECF No. 390, p. 8].
But the Undersigned is not convinced by the argument. After all, maybe the risk

4

The Court must find by clear and convincing evidence that Grobman is not a flight

risk under both Section 3143(a) and Section 3145(c).

15

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of contracting COVID-19 is worth it to Grobman if he can escape and get away with it. But, to use a phrase from Manrique, “escape is riskier and more difficult now.” In re Manrique, 2020 WL 1307109, at *1. As a 46-year-old man with Lupus and a pre-diabetic condition, Grobman might be giving himself a medical death sentence if he were to flee to Peru or another country with a less-sophisticated, less-modern and lesscomprehensive health system than the United States and come into contact with a person carrying COVID-19.
The bond package proposed by Grobman, along with additional conditions I am imposing, will be sufficient to support the conclusion that there is clear and convincing evidence to demonstrate that he will not be a flight risk in the midst of a global COVID19 pandemic.
The conditions of the release will be based on the following bonds and other restrictions, as outlined below:
1. A $1 million personal surety bond signed by Grobman and his wife, Noemi. Neither Grobman nor his wife will be able to sell, pledge, mortgage or do anything to affect the title to the marital home which will serve as the collateral for this bond.
2. A $1 million, 10% bond, signed by Abraham Vurnbrand. There will be a Nebbia requirement for the $100,000 which Mr. Vurnbrand will deposit with the Clerk.
3. A $500,000 personal surety bond signed by Edy Gross, who will not be able to sell, pledge, mortgage or do anything to affect any interest she has in any real estate,
16

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including her home at 2040 N.E. 211 Street, North Miami. 4. Alan Grobman will sign an $850,000, 10% bond, with $85,000 to be
deposited with the Clerk. There will be a Nebbia requirement. In addition, Alan Grobman will sign whatever papers are necessary to continue the $150,000 10% bond which he signed at the start of the case. The $15,000 he posted then will remain with the Clerk. Alan Grobman will not be able to sell, pledge, mortgage or do anything to affect the title to any real estate in which he has any interest, anywhere in the world.
5. Grobman, his wife and his children will need to surrender their passports and travel documents to Pretrial Services and may not seek any additional passports or travel documents.
6. Grobman will be on home confinement, supported by electronic monitoring, with the costs to be paid by him and/or his family. He may leave only to attend required court hearings, to visit a hospital emergency room for his own medical emergency, or to meet with his attorney for a scheduled appointment.
7. Grobman may not visit any commercial transportation establishments, including airports, marinas, train stations or bus stations.
8. Grobman must arrange for his racing boat (and all other boats) to be removed from his waterfront home before he arrives there, and he may not get within 500 yards of it.
9. Grobman will need to report to Pretrial Services, as directed. 17

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10. He must undergo substance abuse testing and/or treatment, as may be Required by Pretrial Services.
11. Grobman may not possess any firearm, ammunition or dangerous devices. 12. As a precondition to release, Grobman will submit to screening for COVID19 by the BOP and/or the United States Marshals Service. If he is found to be exhibiting symptoms consistent with COVID-19 or is confirmed to have it, then he shall not be released. 13. If Grobman does not have COVID-19 or symptoms consistent with it at the time of his release, then he shall submit to screening for COVID-19 as directed by Pretrial Services. If he then or thereafter exhibits symptoms consistent with COVID-19, then he shall remain in quarantine or isolation, as directed by Pretrial Services, in a form directed by Pretrial Services, including self-isolation or self-quarantine. 14. During this period of pre-sentencing supervision, Grobman shall comply with all national, state and local public health orders regarding COVID-19. V. Conclusion The Undersigned grants the updated and amended motion, subject to all the terms and conditions listed above. If the United States wishes to appeal this Order to Judge Altman and seek a stay, then it shall file a brief notice of its intent by March 30, 20205 and

5

The notice can be a simple one-notice submission, along the lines of “The United

States is appealing the Order granting Grobman’s post-trial bond motion and seeks a

stay.” At that point, the stay will be in effect. In other worlds, given the limited nature

18

Case 1:1C8a-csre-240:2908-9c-vR-0K0A59D6-oRcDumP-eJnHtE397DoEcunmteerendt 2o6n-7FLSFDileDd o0c5k/0e6t /0230/29P/2a0g2e092Poafg9e519 of 19 then must file its motion/memorandum by April 2, 2020. At that point, Judge Altman can establish a briefing schedule if he deems it appropriate and can determine whether he will have a telephonic hearing or rule on the papers. DONE AND ORDERED in Chambers, Miami, Florida, on March 29, 2020.
Copies furnished to: The Honorable Roy K. Altman All counsel of record
of the Court’s daily operations, the Undersigned is giving an anticipatory ruling to grant a requested stay should the United States seek a stay in connection with an appeal.
19

CaseC4a:2se0-1c:v1-80-0c5r-9060-2R2D2P-A-JPHME DDooccuummeenntt 7256-7FileFdile0d30/351/0/260/20PaPgaeg1eo9f33of 95

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_________________________________________

)

UNITED STATES OF AMERICA,

)

)

v.

)

Case No. 18-cr-00222 (APM)

)

GERALD MEEKINS,

)

)

Defendant.

)

_________________________________________ )

RELEASE ORDER

Before the court is Defendant Gerald Meekins’s Emergency Motion for Release Pending

Sentencing, ECF No. 68. Having considered the parties’ filings, the court finds that “exceptional

reasons” exist to release Defendant from confinement pending sentencing. 18 U.S.C. § 1345(c).

The “exceptional reason” is, of course, the COVID-19 pandemic and its arrival and potential

spread within Department of Corrections’ facilities. Critically, Defendant’s medical condition of

hypertension places him at increased risk for contracting the virus and its adverse health effects.

See Lei Fang et al., Are patients with hypertension and diabetes mellitus at increased risk for

COVID-19 infection?, The Lancet, March 11, 2020 (available at

https://www.thelancet.com/journals/lanres/article/PIIS2213-2600(20)30116-8/fulltext)

(last

visited March 31, 2020).

Furthermore, although a close call, the court finds by clear and convincing evidence that

Defendant is “not likely to flee or pose a danger to the safety of any other person or the community

if released[.]” 18 U.S.C. § 1343(a)(1). Defendant in this case stands convicted of a non-violent

offense: felon in possession of a weapon. Defendant’s conduct was purely possessory in nature;

he did not brandish or otherwise use the weapon. Moreover, Defendant’s last adult conviction is

a decade old, see PSR, ECF No. 57, ¶¶ 29–30, and although he has a prior conviction for

CaseC4a:2se0-1c:v1-80-0c5r-9060-2R2D2P-A-JPHME DDooccuummeenntt 7256-7FileFdile0d30/351/0/260/20PaPgaeg2eo9f43of 95
carjacking, his role in that offense involved no violence and was largely secondary in nature, see id. ¶ 30. The court is concerned about Defendant’s potential for assaultive behavior, given the pendency of three assault charges, each incurred while on release in this case. But that concern is mitigated by the strict conditions of release under which the court intends to place Defendant, which are designed to minimize his exposure to others. In the end, the court has balanced the risk that Defendant poses to the community against the risk posed to his health by continued incarceration, and concludes that release is warranted under § 1345(c) under the following conditions:
1. Defendant shall be placed on electronic monitoring in the High Intensity Supervision Program and abide by all conditions of that Program.
2. Defendant shall be placed on home detention, meaning he may not leave his residence except for medical, mental health, and legal appointments.
3. Defendant shall reside with his father at
4. Defendant shall report immediately upon release to 633 Indiana Ave., N.W., 9th floor for installation of the GPS device and, if released after 4 p.m., the following business day.
5. Defendant shall participate in outpatient treatment and counseling through MBI Health or other appropriate health care provider approved by the Pretrial Services Agency.
6. Defendant shall call the Pretrial Services Agency twice weekly.
2

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Accordingly, for the foregoing reasons, Defendant’s Emergency Motion for Release Pending Sentencing, ECF No. 68, is granted.

Dated: March 31, 2020

Amit P. Mehta United States District Court Judge

3

 
 Case 4:20-cv-00596-RDP-JHE

Document 33

Filed 05/14/20

Page 1 of 2

FILED
2020 May-14 PM 02:43 U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION

SARAIL MICHAEL ARCHILLA, et al., Petitioners,
v. DIANNE WITTE et al.,
Respondents.

} } } } } Case No.: 4:20-cv-00596-RDP-JHE } } } }

ORDER Petitioner Joseph Debonnaire Soho filed a petition (along with seventeen other detainees) for habeas corpus pursuant to 28 U.S.C. § 2241, seeking release from ICE custody due to the COVID-19 pandemic. (Doc. # 1). Contemporaneously, all Petitioners, including Petitioner Soho, filed a Motion for Temporary Restraining Order (“TRO”). (Doc. # 2). On May 4, 2020, Respondents filed their Opposition brief to Petitioners’ Motion for TRO. (Doc. # 11). In their brief, Respondents state that Petitioner Soho was released on an order of supervision on April 27, 2020. Therefore, they contend that his habeas corpus petition is due to be dismissed as moot. The court agrees. After consideration of the record in this action, the court finds that Petitioner’s release on an order of supervised release has rendered his habeas corpus petition and accompanying Motion for TRO moot. See Nyaga v. Ashcroft, 323 F.3d 906, 913 (11th Cir. 2003); Soliman v. United States ex rel. INS, 296 F.3d 1237, 1242 (11th Cir. 2002). Moreover, the court finds that no exceptions to the mootness doctrine apply in this case. See Murphy v. Hunt, 455 U.S. 478, 482 (1982); Carafas v. LaVallee, 391 U.S. 234, 237 (1968).

Case 4:20-cv-00596-RDP-JHE Document 33 Filed 05/14/20 Page 2 of 2 Therefore, it is ORDERED that Petitioner Soho’s habeas corpus petition (Doc. # 1) against Respondents and his Motion for TRO (Doc. # 2) are DISMISSED AS MOOT. This dismissal shall not affect any other right, claim, or cause of action which Petitioners have, or may have, against any remaining Respondent. DONE and ORDERED this May 14, 2020.
_________________________________ R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE
2

 
 Case 4:20-cv-00596-RDP-JHE

Document 34

Filed 05/15/20

Page 1 of 41

FILED
2020 May-15 PM 04:44 U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION

SARAIL MICHAEL ARCHILLA, et al., Petitioners,
v. DIANNE WITTE, et al.,
Respondents.

} } } } } Case No.: 4:20-cv-00596-RDP-JHE } } } }

MEMORANDUM OPINION This case is before the court on Petitioners’ Motion for Temporary Restraining Order (“TRO”) (Doc. # 2), filed on April 29, 2020. Petitioners are currently detained at the Etowah County Detention Center (the “ECDC”). They seek release from the custody of Immigration and Customs Enforcement (“ICE”) due to the COVID-19 outbreak. After careful review, and for the reasons explained below, the court concludes that Petitioners’ Motion (Doc. #2) is due to be denied. I. Procedural History On March 5, 2020, one of the Petitioners in this case, Randane Williams, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. # 1 in 4:20-cv-00304-AKKJHE). Williams’ petition challenged his detention by ICE, arguing it runs contrary to the Supreme Court’s decision in Zadvydas v. Davis, 533 U.S. 678 (2001), as well as constitutional guarantees of substantive and procedural due process. Although the magistrate judge informed Williams that he had the right to file affidavits or other materials in support of his initial section 2241 petition, he did not do so. Instead, on April 27, 2020, Williams filed an “Amended Petition for Writ of Habeas Corpus and Complaint for Injunctive and Declaratory Relief” on behalf of himself and

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seventeen other individuals detained at the ECDC. (Doc. # 10 in 4:20-cv-00304-AKK-JHE). Immediately thereafter, Williams filed a “corrected” version of the petition and complaint. (Doc. # 11 in 4:20-cv-00304-AKK-JHE). The Corrected Amended Petition asserted new grounds for relief, separate from his initial section 2241 Petition. In addition to Williams’ original Zadvydas claim, the Corrected Amended Petition asserted that he and his seventeen co-filers are “high-risk” detainees who should be released from ICE custody because of their increased chance of contracting COVID-19, becoming seriously ill, or dying in custody. (Id.).
On April 29, 2020, saying that the amendment “strikes the court as an attempt to circumvent the [court’s] random assignment [process],” Judge Kallon severed Williams’ Corrected Amended Petition from his original section 2241 Petition. He then directed Petitioners to refile their Corrected Amended Petition (containing only the new grounds for relief) in a newly opened, randomly-assigned case.
The undersigned received the new case assignment on the random re-draw and entered a briefing schedule on Petitioner’s Motion. (Doc. # 5). The court entertained oral argument on May 12, 2020. The Motion (Doc. # 2) is now under submission. II. Factual Background
The court draws the “facts” referenced below from Petitioner’s Corrected Amended Petition and the parties’ submissions, including the declarations and other evidence presented by both sides.
A. ICE Detainees Housed at the Etowah County Detention Center Petitioners have all been lawfully detained by ICE at the ECDC. The ECDC is a county detention center run by the Etowah County Sheriff’s Office (“ECSO”) in Etowah County, Alabama. (Doc. # 30 at 2). The ECDC has contracted with ICE to house up to 320 detainees and
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has the capacity to hold that number. ECSO is a law enforcement agency that provides the facility, management, personnel, and services for the 24-hour supervision of the immigrant detainees in ICE custody at the ECDC. (Id. at 2). As of May 12, 2020 (the date of the hearing), there were 112 ICE detainees at the ECDC. (Doc. # 30 at 3). Most of those (96) are currently housed in a large unit in the ECDC, which has the capacity to hold up to 110 people. (Id.). Ten detainees are held in a separate unit. (Id.). One detainee is separately housed in still another unit. (Id.). Another single detainee (who has tested positive for COVID-19) is medically quarantined in another, separate unit. (Id.). The remaining four detainees are awaiting assignment. (Id.).
The ECDC has contracted with the federal government and is required to separately house all ICE detainees sent there. That is, they are held in a different set of units than the state prisoners at the ECDC. Although there is not much disagreement about the contract and the requirement of separate units, the parties have some disputes about when and how often there may be limited contact between ICE detainees and state prisoners. Petitioners, for example, contend that state prisoner trustees perform certain services for the ICE detainees. It is not clear what those are and whether that practice has continued since the advent of the COVID-19 pandemic.
ICE detainees who enter the ECDC are medically reviewed and screened. In fact, the single detainee who has tested positive for COVID-19 is someone who entered ICE custody on April 21, 2020. Upon entry, as a new admittee, he was quarantined for fourteen days as a matter of practice and policy. (Doc. #11-1 at 5, ¶ 18a). During that mandated quarantine, he tested positive for the virus. (Id.). After testing positive, he was medically quarantined and has remained in that status during his entire stint at the ECDC. (Id.). He has not had any known contact with any other detainee, including Petitioners, during his stay at the ECDC. (Id.).
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Petitioners question the effectiveness of the ECDC ICE staff to quarantine COVID-19
prisoners. They complain that the isolation units are not at a hospital or medical center type
standard (i.e., they are not hermetically-sealed or negative-pressure rooms).
B. The COVID-19 Crisis Generally
Judge Wood of the Southern District of Georgia summarized accurately and succinctly the
background of the COVID-19 pandemic facing our nation. Her description is consistent with the
parties’ submissions.
The first outbreak of the virus causing COVID-19 is believed to have originated in late 2019 in Wuhan, China. Within months, the World Health Organization (“WHO”) declared COVID-19 to be a pandemic. In February 2020, community transmission of Coronavirus was detected in the United States. Since then, the virus has continued to spread rapidly, infecting hundreds of thousands of people in this country as of the writing of this opinion.
To date, there is no known vaccine to protect against COVID-19, nor is there an antiviral treatment for those who are infected. Instead, the most effective approach to minimizing fallout from the disease is to stay clean and to avoid contact with others. Specifically, the CDC recommends, inter alia, frequent handwashing, avoiding close contact with others, using face coverings while in public, and cleaning and disinfecting frequently touched surfaces.
Symptoms from exposure to Coronavirus range from mild cold-like symptoms to severe respiratory distress and even death. Though relatively little is known about the risk factors for COVID-19, preliminary data suggests that older adults and individuals with certain underlying medical conditions are most susceptible to developing serious medical complications from the infection. Conditions that might increase the risk of death or permanent injury from COVID19 include, but are not limited to, chronic lung disease, severe obesity, diabetes, liver disease, serious heart conditions, and other conditions that comprise the immune system, such as HIV or AIDS.
Benavides v. Gartland, 2020 WL 1914916 *1-2 (S.D. Ga. April 18, 2020) (footnotes omitted).
In response to this unprecedented, global pandemic, the federal government has urged, and
some state and local governments have ordered, all citizens to undertake mitigation strategies and
for some citizens to “shelter in place” or “quarantine” at home. These strategies are designed to
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slow the spread of COVID-19 and to protect individuals who have an increased risk, including older adults and those with underlying health conditions. Petitioners claim they are at severe risk of contracting COVID-19 while confined at the ECDC because they fall into these categories and cannot properly isolate themselves from other detainees or maintain proper sanitary measures.
In support of their petition, Petitioners have presented a clump of data and statistics, but not all of it is relevant to the specific circumstances at the ECDC. For example, they have presented national data about COVID-19, as well as data concerning the cases of COVID-19 throughout the state of Alabama, in Etowah County, and in ICE detention centers (not just the ECDC) across the nation. (The court has where possible updated some of that information through of May 12, 2020, the date of the hearing on Petitioners’ Motion.). As of that date, there were 1,390,392 confirmed cases of COVID-19 in the United States.1 Of that number, 10,167 confirmed cases were in the State of Alabama, and 193 confirmed cases were in Etowah County, Alabama.2 According to ICE, out of a nationwide detainee population of 27,908 (as of May 9, 2020), there are currently 9653 confirmed cases of COVID-19.4
C. COVID-19 at the ECDC Specifically Although Petitioners have submitted a substantial amount of information about the COVID-19 pandemic’s effect on the United States, Alabama, Etowah County, and ICE detention
1 Coronavirus, WORLDOMETER (last updated May 12, 2020), https://www.worldometers.info/coronavirus/ country/us.
2 Id. 3 COVID-19 in Alabama, ALA. DEP’T OF PUB. HEALTH, DIVISION OF INFECTIOUS DISEASES & OUTBREAKS (last visited May 15, 2020), https://dph1.adph.state.al.us/covid-19. 4 Detention Management, U.S. IMMIGR. & CUSTOMS ENFORCEMENT (last updated May 7, 2020), https://www.ice.gov/detention-management; ICE Guidance on COVID-19 (Confirmed Cases), U.S. IMMIGR. & CUSTOMS ENFORCEMENT (last updated May 15, 2020), https://www.ice.gov/coronavirus.
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centers around the country, they have not heavily focused on the facility where they are detained. Out of the 965 ICE COVID-19 cases, there is currently only one confirmed case of COVID-19 at the ECDC.5 As noted above, the infected detainee is on medical observation and is separated from the general ICE detainee population at the facility. (Doc. # 11-1 at 5, ¶ 18a). In fact, he has remained quarantined during his entire stint at the ECDC. (Id.).
D. ICE Measures in Response to COVID-19 On March 23, 2020, the U.S. Centers for Disease Control and Prevention (“CDC”) issued its “Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correction and Detention Facilities.”6 In an effort to prevent or mitigate the introduction and spread of COVID-19 in these facilities, the CDC recommends that a number of steps be taken at detention facilities, including but not limited to: (1) restricting or suspending the transfers of detained persons and to subject any transfers to medical isolation to evaluate if COVID-19 testing is appropriate; (2) quarantining all new inmates for 14 days before they enter into the general population; (3) cleaning and disinfecting surfaces that are frequently touched multiple times per day, including the use of disinfectants effective against the virus; (4) providing detainees, at no cost, with soap, running water, and hand drying machines or paper towels; (5) implementing social distancing strategies to increase the physical space between each detained person; and (6) medically isolating confirmed or suspected COVID-19 cases.7 The ECDC states that it has incorporated the CDC’s guidelines and requirements, and it contends that it is in substantial compliance with them. (Doc. # 11-1 at 3-8, ¶¶ 8-27; Doc. # 30 at 4, ¶ 9). Although Petitioners
5 (Doc. # 30 at 4, ¶ 7). 6 Interim Guidance on Mgmt. of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019ncov/downloads/guidance-correctionaldetention.pdf. 7 Id.
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disagree, it does appear that the ECDC reviews its detainees who are at higher risk for severe illness to determine if detention is appropriate, considering health, public safety, mandatory detention requirements, and adjusted custody conditions. (Doc. # 11-1 at 8, ¶ 27). In fact, as discussed in more detail below, they have been ordered to do so by another court.
On April 10, 2020, ICE Enforcement and Removal Operations (ERO) released its ERO COVID-19 Pandemic Response Requirements (PRR) document, which set forth specific mandatory requirements to be adopted by all detention facilities housing ICE detainees.8 The ERO guidance requires non-dedicated ICE detention facilities to comply with the CDC’s interim guidance, and it also mandates that cloth face coverings should be worn by detainees and staff.9 The ECDC contends it has incorporated and is in compliance with all ICE ERO requirements. (Doc. # 11-1 at 3-8, ¶¶ 8-27).
But, under Petitioners’ theory of the case, none of this evidence about ICE’s measures (even if it is conflicting) is relevant, except to support their only requested remedy – release. That is, Petitioners contend that there are absolutely no steps ICE can take to protect them from COVID19. They claim that their underlying health conditions and age render them among the group most vulnerable to contracting the virus (and, as a consequence, they are at high risk for serious illness or death.). (Doc. # 2). They further argue there is absolutely no mitigation effort that the ECDC can possibly undertake that would permit them to be confined in a safe manner.10 Petitioners have
8 See U.S. IMMIGR. AND CUSTOMS ENFORCEMENT, ENFORCEMENT AND REMOVAL OPERATIONS, ERO COVID-19 Pandemic Response Requirements (Apr. 10, 2020), https://www.ice.gov/doclib/coronavirus/eroCOVID19 responseReqsCleanFacilities.pdf.
9 Id. 10 This assertion is somewhat curious in light of matters occurring in Fraihat v. U.S. Immigr. & Customs Enf’t, 2020 WL 1932570 (C.D. Cal. Apr. 20, 2020), where Petitioner Alex Giovanni Hernandez is a representative of one of the certified subclasses. In Fraihat, in connection with claims asserted under Bivens and § 504 of the Rehabilitation Act, the petitioners appear to request (as alternative relief) that ICE should take necessary steps to
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been crystal clear that there is only one adequate remedy here: release them from confinement. (Doc. # 2 at 27-28). As recently as May 11, 2020, Petitioners have argued that expert opinions “mandate that the only reasonable measure to abate that risk is release.” (Doc. # 29 at 6). Of course, even if they are right about that (more on that later), and even if that is a remedy the court can provide (and much more on that later), there are other considerations.
ICE has a process for reviewing which detainees should be released on supervision generally, and also has a process for determining which detainees should be granted release due to the threat of COVID-19. (Doc. # 11-1 at 8, ¶ 27; Doc. #30 at 4, ¶ 9). Petitioner Soho has been released on an order of supervision,11 but that does not appear to be related to any threat to him posed by COVID-19. Three other detainees have also been released during the COVID-19 crisis. (Doc. #30 at 4, ¶ 9). And, a district judge in the Central District of California has ordered ICE to implement certain measures in doing these reviews. Fraihat, 2020 WL 1932570 at *29. Petitioners nevertheless complain ICE’s process is woefully deficient and, in any event, because no process will protect them, they must be released on supervision because of their susceptibility to the virus.
E. The Fraihat Class Action A number of ICE detainees around the country filed a complaint for declaratory and injunctive relief in the Central District of California on August 19, 2019. Fraihat v. U.S. Immigration and Customs Enforcement, 5:19-cv-01546 (C.D. Cal.) (Doc. # 1, August 19, 2019). That filing, which was made before the COVID-19 pandemic hit, broadly challenged the conditions of confinement of ICE detainees held across the nation. The plaintiffs in Fraihat, who
protect them while in custody. Id. at *29. Petitioner Hernandez is a class representative in Fraihat. All but two of the remaining Petitioners are members of a Fraihat subclass. (Doc. # 11-2 at 11, ¶ 27).
11 Soho’s claims have been dismissed from this case because they are now moot. (Doc. # 33).
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include immigration detainees with a range of serious health conditions (and two organizations), asserted Bivens12 claims alleging that the federal defendants had violated their Fifth Amendment rights and asserting a claim under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. No Section 2241 claim was asserted in that case. Id.
On March 25, 2020, the Fraihat plaintiffs filed emergency motions for class certification and for preliminary injunction. Fraihat v. U.S. Immigr. and Customs Enf’t, 2020 WL 1932570, *2 (C.D. Cal. Apr. 20, 2020). They sought emergency relief because of the dangers posed to them and other detainees by COVID-19. The court certified a class and a subclass. Petitioner Hernandez is one of the Rule 23 representatives of a certified subclass. The Fraihat court also entered a preliminary injunction.
The Fraihat court noted the exponential spread of COVID-19 in all areas of our society and the dangers posed to those with certain health conditions. One of the particular things that Hernandez and his co-plaintiffs challenged on behalf of the class was how the federal defendants were going about their assessments of which detainees should be released during the COVID-19 outbreak. Although the Fraihat plaintiffs obviously did not ask for individual release assessments while pursuing class certification,13 they did challenge ICE’s policy for making release determinations during COVID-19. And, this was clearly reflected in the injunctive relief awarded by the Fraihat court.
The Court further GRANTS Plaintiffs’ motion for preliminary injunction as follows:
12 Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). 13 Doing that would make it difficult to achieve class certification, even in the Ninth Circuit, which the Fraihat court noted takes the view that Rule 23(a)(2) should be construed “permissibly.” Id. at *17 (citing Stanton v. Boeing Co., 327 F.3d 938, 953 (9th Cir. 2003)). The court notes that Stanton pre-dates Walmart v. Dukes by nearly a decade. 564 U.S. 338 (2011). That may raise serious questions, particularly for a district judge who for the last decade has taught complex civil litigation classes to 2Ls and 3Ls. But, this is not the occasion for the court to ponder whether, in relying on Stanton, the Fraihat court engaged in a “rigorous analysis” of the Rule 23 factors, as Dukes requires. Id. at 351.
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• Defendants shall provide ICE Field Office Directors with the Risk Factors identified in the Subclass definition;
• 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 Response Requirements and the Performance Standard.
These measures shall remain in place as long as COVID-19 poses a substantial threat of harm to members of the Subclasses. The parties may apply to modify or terminate the injunction.
Fraihat, 2020 WL 1932570, at *29. So, while the Fraihat court did not grant release to Hernandez
or anyone in the subclass he represents, that court is actively supervising ICE as it makes release
decisions about those detainees in its custody. Id.
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Since that interim class-wide relief was granted in Fraihat, Bryan Pitman, the Supervisory
Detention and Deportation Officer for Enforcement and Removal Operations of ICE, has
represented to the court that:
ICE has reviewed its “at risk population” to include the elderly, detainees with compromised immune systems, and those with chronic care conditions, to ensure that when detention is mandated, it is done so in a safe, humane, and appropriate environment given the circumstances. Custody determinations are made on a caseby-case basis given the totality of circumstances to include, among other factors, the public safety risk that such release could create, flight risk, and the requirement to detain certain aliens under law. See Section 236 of Act, 8 U.S.C. § 1226. ICE will continue to review its “at risk population” in the days and weeks ahead when deciding whether any detainees should be released from custody. As of May 13, 2020, ICE has released 3 detainees from the Etowah County Detention Center as a result of individual custody reviews conducted as part of ICE’s COVID-19 response.
(Doc. # 30 at 4, ¶ 9).
F. Petitioners’ Criminal Histories, Immigration Status, and Medical History
The court next reviews Petitioner histories – medical conditions, criminal history, and
immigration status. It begins with an observation. Petitioners have noted (in a footnote) that,
“[a]lthough most [petitioners] have one or more criminal convictions, many of those convictions
are from over a decade ago, some carried no jail time, and every Plaintiff has served their sentence
and is no longer confined in criminal custody (if they ever were in the first place).” (Doc. # 2 at 27
n.46). These circumstances, Petitioners argue, negate “any supposed risk [they] may pose to the
community based on their past convictions.” (Id.). That is, at best, understating the gravity of many
of the Petitioners’ offenses.
Petitioner Allen Roger Olano-Esparza is a 37-year-old citizen of Peru. (Doc. # 11-2 at 3, ¶
8). He was convicted of lewd and lascivious acts with a 14-15-year-old. (Id.). He was sentenced
to 180 days of confinement. (Id.). On December 22, 2016, Petitioner Olano-Esparza entered ICE
custody. (Id.). On April 3, 2018, an immigration judge ordered his removal to Peru. (Id.). On
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September 14, 2018, the Board of Immigration Appeals dismissed his appeal. (Id.). On October 10, 2018, Olano-Esparza filed a Petition for Review in the Ninth Circuit Court of Appeals, resulting in an automatic stay of removal. (Id.). His petition is currently pending. (Id.). On January 7, 2019, Olano-Esparza was transferred to the ECDC. (Id.). Olano-Esparza suffers from hypertension, kidney stones, and has a thyroid issue. (Doc. # 2-3 at 56).
Petitioner Edson Flores is a 48-year-old citizen of Honduras. (Doc. # 11-2 at 3, ¶ 9). He was convicted of acting in a manner to injure a child less than 17. (Id.). He was sentenced to one year of confinement. (Id.). He was also convicted of sexual abuse in the first degree-sexual contact with an individual less than 11 years of age. (Id.). He was sentenced to 42 months of confinement. (Id.). Flores is a registered sex offender. (Id.). On June 10, 2011, Petitioner Flores entered ICE custody. (Id.). On January 6, 2012, an immigration judge ordered Flores’ removal to Honduras. (Id.). On May 22, 2012, the Board of Immigration Appeals dismissed Flores’ appeal. (Id.). On June 15, 2012, Flores filed a Petition for Review in the Second Circuit Court of Appeals resulting in a forbearance stay of removal. (Id.). On February 26, 2015, the Second Circuit Court remanded the case to the Board of Immigration Appeals. (Id.). On February 3, 2016, the Board of Immigration Appeals remanded the case to the immigration court. (Id.). On March 23, 2017, an immigration judge again ordered Flores’ removal to Honduras. (Id.). On October 17, 2017, the Board of Immigration Appeals dismissed Flores’ second appeal. (Id.). On October 23, 2017, Flores filed a second Petition for Review in the Second Circuit resulting in a forbearance stay of removal. (Id.). On November 2, 2017, Flores was transferred to the ECDC. (Id.). On October 29, 2019, the Second Circuit Court granted the Petition for Review and remanded the case to the Board of Immigration Appeals. (Id.). The case is currently pending. (Id.). Flores suffers from diabetes, high blood pressure, high cholesterol, and chronic inflammation. (Doc. # 2-3 at 19).
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Petitioner Alex Giovanni Hernandez is a 48-year-old citizen of Honduras. (Doc. # 11-2 at 4, ¶ 10). He was convicted of robbery in the second degree. (Id.). He was sentenced to two years of confinement. (Id.). He was also convicted of possession of a firearm by a felon. (Id.). He was sentenced to two years of confinement. (Id.). Subsequently, he was convicted of robbery in the second degree and possession of a firearm by a felon. (Id.). He was sentenced to 25 years of confinement. (Id.). On September 29, 2016, Petitioner Hernandez was processed as an Administrative Removal under section 238(b) for having committed an aggravated felony under section 237(a)(2)(A)(iii). (Id.). On June 19, 2017, an immigration judge granted Hernandez relief from removal. (Id.). On July 6, 2017, both Hernandez and DHS appealed that decision to the Board of Immigration Appeals. (Id.). On November 24, 2017, the Board of Immigration Appeals dismissed Hernandez’s appeal and sustained the appeal of the DHS, effectively ordering Mr. Hernandez’s removal to Honduras. (Id.). On December 14, 2017, Hernandez filed a Petition for Review in the Ninth Circuit Court of Appeals, resulting in an automatic stay of removal. (Id.). That case is currently pending. (Id.). On December 20, 2018, Hernandez was transferred to the ECDC. (Id.). On January 9, 2019, Hernandez filed a Petition for Writ of Habeas Corpus in the United States District Court for the Northern District of Alabama. (Id.). On May 22, 2019, the District Court dismissed that Petition. (Id.). On January 23, 2020, Hernandez filed a second Petition for Writ of Habeas Corpus in the Northern District of Alabama. (Id.). That Petition is still pending. (Id.). Hernandez suffers from hypertension. (Doc. # 2-3 at 31).
Petitioner Tesfa Miller is a 38-year-old citizen of St. Vincent and the Grenadines. (Doc. # 11-2 at 4, ¶ 11). He was convicted of false imprisonment. (Id.). He was sentenced to ten years with the first seven years to be served in confinement and the remainder to be served on probation. (Id.). He was also convicted of terroristic threats. (Id.). He was sentenced to five years of probation on
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that conviction. (Id.). He was also convicted of battery. (Id.). He was sentenced to 12 months of probation on that conviction. (Id.). On February 20, 2018, Petitioner Miller was issued a Notice to Appear, charging removability under section 237(a)(2)(A)(iii). (Id.). On March 12, 2019, an immigration judge ordered Miller’s removal to St. Vincent and the Grenadines. (Id.). On May 8, 2019, Miller was transferred to the ECDC. (Id.). On August 26, 2019, the Board of Immigration Appeals dismissed Miller’s appeal. (Id.). On September 23, 2019, Miller filed a Petition for Review in the Eleventh Circuit Court of Appeals. (Id.). On November 1, 2019, the Eleventh Circuit granted a stay of removal, and on December 23, 2019, the Eleventh Circuit remanded the case to the Board of Immigration Appeals. (Id.). That case is currently pending. (Id.). Miller suffers from hypertension, high cholesterol, and chronic bronchitis. (Doc. # 2-3 at 53).
Petitioner Karim Golding is a 35-year-old citizen of Jamaica. (Doc. # 11-2 at 5, ¶ 12). He was convicted of criminal possession of a loaded firearm. (Id.). He was sentenced to one year of confinement. (Id.). He was also convicted of conspiracy to distribute and possess with intent to distribute cocaine base, three counts of distribution and possession with intent to distribute cocaine base, and attempted distribution and possession with intent to distribute cocaine base. (Id.). On April 10, 2015, Petitioner Golding was served with an I-247, Immigration Detainer-Notice of Action. (Id.). On October 27, 2016, Golding was issued a Notice to Appear, charging inadmissibility under section 212(a)(6)(A)(i). (Id.). On September 15, 2017, an immigration judge ordered Golding’s removal to Jamaica. (Id.). On March 5, 2018, the Board of Immigration Appeals dismissed Golding’s appeal. (Id.). Fourteen days later, Golding filed a Petition for Review and Motion for Stay of Removal in the Second Circuit Court of Appeals, resulting in a forbearance stay of removal. (Id.). On April 5, 2019, Golding filed a Petition for Writ of Habeas Corpus in the United States District Court for the Northern District of New York. (Id.). On July 28, 2019,
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Golding was transferred to the ECDC. (Id.). On December 10, 2019, the Northern District of New York granted Golding a bond hearing within ten days. (Id.). On December 17, 2019, an immigration judge denied bond. (Id.). On January 16, 2020, Golding filed a Motion to Reopen and appeal of the bond denial with the Board of Immigration Appeals. (Id.). The motion and appeal are currently pending. (Id.). Golding suffers from asthma. (Doc. # 2-3 at 28).
Petitioner Sarail Archilla is 44 years old. (Doc. # 11-2 at 5, ¶ 13). Archilla claims to be from Canada, but there are no records confirming his citizenship. (Id.). He was convicted of conspiracy to possess with intent to distribute cocaine and possession with intent to distribute cocaine. (Id.). He was sentenced to 144 months of confinement. (Id.). He is also currently in Failure to Comply Status for refusing to cooperate with removal efforts, as he has refused to confirm his citizenship. (Id.). Due to statements made during his criminal investigation, Archilla is believed to be from Jamaica. (Id.). And, he has been in multiple altercations while in ICE custody and has threatened ICE Officers with physical harm during liaison. (Id.). On May 4, 2017, Archilla was processed as a final administrative removal order under section 238(b) for having committed an aggravated felony under section 237(a)(2)(A)(iii). (Id.). On December 21, 2017, Archilla was transferred to the ECDC. (Id.). Archilla has been diagnosed with asthma, allergies, and high blood pressure. (Doc. # 2-3 at 5).
Petitioner Randane Junior Williams is a 30-year-old citizen of Jamaica. (Doc. # 11-2 at 6, ¶ 14). He was convicted of possession with intent to sell a controlled substance (trafficking). (Id.). He was sentenced to a term of 12 to 32 months of confinement, which was suspended, and he was placed on supervised probation for a period of three years. (Id.). He subsequently violated the terms of the court’s probation order and his probation was revoked. (Id.). On August 20, 2004, Petitioner Williams was admitted to the United States as a temporary visitor for pleasure with
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authorization to remain until February 19, 2005. (Id.). On October 14, 2008, Williams’ status was adjusted to that of lawful permanent resident. (Id.). On February 6, 2018, Williams was released from the Nevada Department of Corrections to ICE custody. (Id.). Williams was issued a Notice to Appear, charging him with removability under section 237 (a)(2)(A)(iii). (Id.). On July 17, 2018, an immigration judge ordered Williams’ removal to Jamaica. (Id.). On September 9, 2018, Williams was transferred to the ECDC. (Id.). On December 18, 2018, the Board of Immigration Appeals dismissed his appeal. (Id.). On January 14, 2019, Williams filed a Petition for Review in the Ninth Circuit Court of Appeals, resulting in a stay of removal. (Id.). On July 31, 2019, his request for a stay of removal was granted by the Ninth Circuit. (Id.). Williams has no pre-existing conditions that make him more susceptible to COVID-19.
Petitioner Maxime Peter Blanc is a 46-year-old citizen of the Dominican Republic. (Doc. # 11-2 at 6, ¶ 15). He was convicted of possession of 15 or more unauthorized access devices (i.e., social security numbers) with the intent to defraud and aggravated identity theft. (Id.). He was sentenced to 30 months of imprisonment. (Id.). He was again convicted of possession of 15 or more unauthorized access devices and aggravated identity theft. (Id.). He was sentenced to 33 months of imprisonment. (Id.). On April 16, 1994, Petitioner Blanc was admitted to the United States as an immigrant. (Id.). On March 2, 2018, Blanc was encountered by ICE while in custody of the Federal Bureau of Prisons. (Id.). He was issued a Notice to Appear, charging him with removability under section 237(a)(2)(A)(ii) and (iii). (Id.). On June 26, 2018, Blanc was transferred to ICE custody and detained without bond due to his criminal convictions. (Id.). On December 31, 2018, an immigration judge ordered Blanc’s removal to the Dominican Republic. (Id.). On March 26, 2019, Blanc was transferred to the ECDC. (Id.). On June 6, 2019, the Board of Immigration Appeals dismissed Blanc’s appeal. (Id.). On July 3, 2019, Blanc filed a Petition for
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Review with the Eleventh Circuit Court of Appeals. (Id.). On August 16, 2019, the Eleventh Circuit granted a temporary stay of removal. (Id.). Blanc suffers from the following chronic conditions: pre-diabetes; hyperlipidemia (high cholesterol); hypertension (high blood pressure); sciatica nerve pain; and allergies. (Doc. # 2-3 at 8).
Petitioner Churvin Roswill Webster is a 57-year-old citizen of Anguilla (a British Territory). (Doc. # 11-2 at 6, ¶ 16). He was convicted of possession with intent to distribute a controlled substance (cocaine) within 1000 feet of a school zone. (Id.). He was sentenced to three years of confinement. (Id.). He was also convicted of possession of a controlled substance in the third degree (heroin) and bail jumping. (Id.). He was sentenced to three years supervised probation. (Id.). On June 22, 1976, Petitioner Webster was admitted to the United States as an immigrant. (Id.). On October 20, 2017, Webster was issued a Notice to Appear, charging him with removability under sections 237 (a)(2)(A)(iii) and (a)(2)(B)(i). (Id.). On November 15, 2018, Webster was ordered removed to Anguilla. (Id.). On April 7, 2019, Webster was transferred to the ECDC. (Id.). On May 17, 2019, the Board of Immigration Appeals dismissed Webster’s appeal. (Id.). On May 31, 2019, Webster filed a Petition for Review in the Third Circuit Court of Appeals. (Id.). A temporary stay of removal was granted the same day. (Id.). Webster suffers from asthma and hypertension. (Doc. # 2-3 at 65).
Petitioner Bakhodir Sabitovich Madjitov is a 38-year-old citizen of Uzbekistan. (Doc. # 11-2 at 7, ¶ 17). He is charged with failure to comply with removal order. (Id.). Briefly, on March 12, 2006, Petitioner Madjitov was admitted to the United States as a nonimmigrant with authorization to remain in the United States until July 20, 2006. (Id.). On January 17, 2007, Madjitov was issued a Notice to Appear, charging him with removability under with section 237(a)(1)(B). (Id.). On August 31, 2011, an immigration judge ordered Madjitov removed to
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Uzbekistan. (Id.). On December 22, 2017, Madjitov was apprehended by Homeland Security Investigations and entered ICE custody. (Id.). On January 26, 2018, Madjitov was placed in Failure to Comply Status because he refused to complete travel document information. (Id.). On February 21, 2018, Madjitov was transferred to the ECDC. (Id.). On June 11, 2019, Madjitov was scheduled for removal to Uzbekistan through the John F. Kennedy Airport in New York City, but he refused to board the aircraft. (Id.). On September 30, 2019, Madjitov filed a Petition for Review and Motion for Stay of Removal with the Eleventh Circuit. (Id.). On October 29, 2019, the Embassy of Uzbekistan reissued the travel document for Madjitov. (Id.). On November 25, 2019, the Eleventh Circuit denied the stay of removal. (Id.). The Petition for Review remains pending. (Id.). Madjitov has stated that he does not intend to comply with his removal. (Id.). He suffers from high blood pressure and shortness of breath. (Doc. # 2-3 at 34).
Petitioner Ray Fuller is a 54-year-old citizen of Jamaica. (Doc. # 11-2 at 8, ¶ 18). He was convicted of attempted criminal sexual assault. (Id.). He was sentenced to four and a half years of confinement. (Id.). On November 10, 1999, Petitioner Fuller was admitted to the United States as a conditional immigrant (he was the fiancée of a United States citizen). (Id.). On November 29, 2004, his petition to remove conditions of his entry and become a permanent resident was denied by the United States Citizenship and Immigration Services. (Id.). On August 5, 2014, Fuller was encountered by ICE upon his release from the Illinois Department of Corrections and issued a Notice to Appear, charging removability under section 237(a)(2)(A)(iii). (Id.). On May 27, 2015, an immigration judge ordered Fuller’s removal to Jamaica. (Id.). The Board of Immigration Appeals dismissed his appeal. (Id). On October 23, 2017, Fuller filed a Petition for Review with the Seventh Circuit Court of Appeals. (Id.). On March 21, 2018, Fuller was transferred to the ECDC. (Id.). On May 18, 2018, the Seventh Circuit granted a stay of removal. (Id.). On January
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23, 2019, the Seventh Circuit remanded the case to the Board of Immigration Appeals. (Id.). The case is currently pending with the Board of Immigration Appeals. (Id.). Fuller suffers from hypertension, sleep apnea, a deviated septum, and high cholesterol. (Doc. # 2-3 at 22).
Petitioner Kenneth Manning Hernandez is a 61-year-old citizen of Jamaica. (Doc. # 11-2 at 8, ¶ 19). He was convicted of murder and distribution of cocaine. (Id.). He received a sentence of twenty years to life in prison. (Id.). He was also involved in an altercation while in ICE custody, and became combative toward jail staff causing significant damage to his dorm room. (Id.). On August 25, 2016, Petitioner Manning Hernandez was issued a Notice to Appear, charging him with removability under section 212(a)(6)(A)(i). (Id.). On February 3, 2017, an immigration judge ordered his removal to Jamaica. (Id.). On June 13, 2017, the Board of Immigration Appeals dismissed Manning Hernandez’s appeal. (Id.). On July 14, 2017, Manning Hernandez filed a Petition for Review and Stay of Removal in the Second Circuit Court of Appeals, resulting in an automatic forbearance of the stay of removal. (Id.). On July 5, 2018, the Second Circuit granted a stay of removal. (Id.). On July 29, 2018, he was transferred to the ECDC. (Id.). On March 31, 2020, the Second Circuit granted the Petition for Review and remanded the case to the Board of Immigration Appeals, where it is currently pending. (Id.). Manning Hernandez suffers from hypertension, prostate cancer, and a heart condition. (Doc. # 2-3 at 31, 44).
Petitioner Sergio Quito is a 45-year-old citizen of Ecuador. (Doc. # 11-2 at 8, ¶ 20). He was convicted of attempt to possess a sexual performance by a child. (Id.). Petitioner Quito entered the United States without inspection at an unknown date and location. (Id.). On March 29, 2007, Quito had his status adjusted to that of a lawful permanent resident. (Id.). On June 9, 2016, Quito was issued a Notice to Appear, charging removability under section 237(a)(2)(A)(iii). (Id.). On September 14, 2017, an immigration judge ordered Quito’s removal. (Id.). On March 19, 2018,
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the Board of Immigration Appeals dismissed Quito’s appeal. (Id.). On April 10, 2018, Quito filed a Petition for Review in the Second Circuit Court of Appeals. (Id.). On May 23, 2018, Quito was transferred to the ECDC. (Id.). On May 13, 2019, Quito filed a Petition for a Writ of Habeas Corpus in the United States District Court for the Northern District of Alabama. (Id.). On January 29, 2020, the Petition for Habeas Corpus was denied. (Id.). On January 24, 2020, the Second Circuit denied his Petition for Review. (Id.). On January 27, 2020, a travel document request was sent to the Ecuadorian Consulate. (Id.). On February 12, 2020, Quito interviewed with the Consulate General of Ecuador and ERO was awaiting a decision on travel document issuance. (Id.). Quito suffers from a seizure disorder, stomach ulcers, and has hypertensive. (Doc. # 2-3 at 59).
Petitioner Domingo Castillo is a 56-year-old citizen of the Dominican Republic. (Doc. # 11-2 at 9, ¶ 21). He was convicted of aggravated assault. (Id.). He was sentenced to five years of incarceration. (Id.). He has three prior convictions for assault. (Id.). Petitioner Castillo entered the United States without inspection on an unknown date and at an unknown location. (Id.). On November 11, 2013, Castillo was arrested by ICE following his release from prison. (Id.). He was issued a Notice to Appear, charging him with removability under section 237(a)(2)(A)(iii). (Id.). Castillo claims birth in Puerto Rico. (Id.). That claim was vetted by ICE and determined to not be credible. (Id.). On April 30, 2014, an immigration judge ordered Castillo’s removal to the Dominican Republic. (Id.). On May 7, 2014, Castillo was interviewed by the Consulate of Dominican Republic and again claimed to be a United States citizen. (Id.). He was subsequently placed in Failure to Comply status. (Id.). On April 22, 2015, Castillo was transferred to the ECDC. (Id.). Castillo claims he is actually Jose Garcia Rivera and that he suffers from asthma. (Doc. # 23 at 25).
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Petitioner Antonio Melquezideth Castro is a 34-year-old citizen of Belize. (Doc. # 11-2 at 9, ¶ 22). He was convicted of endangering the welfare of a child. (Id.). On or about November 12, 2000, Petitioner Castro entered the United States as a nonimmigrant visitor. (Id.). On October 16, 2014, Castro adjusted his status to that of a lawful permanent resident. (Id.). On September 25, 2017, Castro was issued a Notice to Appear, charging him with removability under sections 237(a)(2)(A)(i) and (a)(2)(E)(i). (Id.). On July 18, 2018, an immigration judge ordered Castro’s removal to Belize. (Id.). On November 28, 2018, Castro was transferred to the ECDC. (Id.). On December 13, 2018, the Board of Immigration Appeals dismissed his appeal. (Id.). On January 9, 2019, Castro filed a Petition for Review in the Third Circuit and a stay was granted. (Id.). On July 22, 2019, Castro filed a second Petition for Review with the Third Circuit, which was consolidated with the first petition. (Id.). The stay was continued. (Id.). On September 20, 2019, Castro filed a Petition for Writ of Habeas Corpus with the United States District Court for the District of New Jersey. (Id.). On December 13, 2019, the Third Circuit dismissed the Petition for Review. (Id.). Castro suffers from intestinal and stomach issues related to stomach cancer as a child, kidney stones, difficulty breathing during exercise related to bronchitis as a child, and abnormal cholesterol. (Doc. # 2-3 at 15).
Petitioner Gerardo Castellano Geovany is a 60-year-old citizen of Nicaragua. (Doc. # 112 at 9, ¶ 23). He was convicted of selling marijuana. (Id.). He was sentenced to 60 months, with a suspended sentence, and placed on probation. (Id.). But, his sentence was later reinstated, and he received 180 days in jail. (Id.). Subsequently, due to additional controlled substance arrests, his sentence was again reinstated, and he received 365 days of incarceration. (Id.). He was also convicted of selling and manufacturing narcotics. (Id.). He was sentenced to two years of incarceration. (Id.). He was later convicted of petty theft and received three days in jail. (Id.).
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Petitioner Geovany entered the United States without inspection by an immigration officer on an unknown date. (Id.). On July 31, 1979, Geovany was issued an Order to Show Cause by the United States Border Patrol, charging him with deportability under section 241(a)(2). (Id.). On August 2, 1979, Geovany was released on bond. (Id.). On February 6, 1988, Geovany was arrested and detained. (Id.). On April 1, 1988, an immigration judge ordered Geovany’s removal to Nicaragua. (Id.). On September 27, 1988, Geovany was released on an order of supervision. (Id.). On January 30, 2016, Geovany was turned over to ICE by another law enforcement agency. (Id.). On February 19, 2016, Geovany refused to complete a travel document application for Nicaragua, refused to be photographed, and refused to interview with the Consulate of Nicaragua for a travel document. (Id.). Geovany was subsequently placed in Failure to Comply status. (Id.). On November 2, 2016, Geovany was transferred to the ECDC. (Id.). On April 27, 2017, a travel document request was submitted to the Nicaraguan Consulate and Geovany interviewed with the Consulate; however, he would not provide credible information. (Id.). Castellano has high blood pressure, and was diagnosed with an irregular heart rhythm in 2017. (Doc. # 2-3 at 12).
Petitioner Landry Mbendeke is a 39-year-old citizen of Cameroon. (Doc. # 11-2 at 10, ¶ 24). He pled guilty to conspiracy to commit marriage fraud. (Id.). He was sentenced to 12 months of imprisonment. (Id.). On September 21, 2011, Mbendeke entered the United States as a resident alien. (Id.). On November 24, 2017, he was issued a Notice to Appear, and he was charged with removability under section 237(a)(2)(A)(i). (Id.). On December 7, 2018, an immigration judge ordered Mbendeke’s removal to Cameroon. (Id.). On May 20, 2019, the Board of Immigration Appeals dismissed his appeal. (Id.). On July 1, 2019, Mbendeke filed a Petition for Review with the Second Circuit Court of Appeals, resulting in a forbearance stay of removal. (Id.). That case is still pending. (Id.). On August 25, 2019, Mbendeke was transferred to the ECDC. (Id.). Mbendeke
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suffers from hypertension and other health conditions. (Doc. # 1 at 16). Petitioner Joseph Debonnaire Soho is a 46-year-old citizen of Cameroon or the Ivory Coast
who was transferred to the ECDC on September 11, 2019. (Doc. # 11-2 at 10, ¶ 25). He was released from confinement on April 27, 2020 on an order of supervision. (Id.).14
Petitioners have all testified that, were they to be released, they have a place to reside. (Doc. # 2-3 at 1-66). Some are more specific than others about their plans. However, none of them have provided specific information about the COVID-19-related circumstances or conditions in those places. Therefore, the court cannot answer the question of how those “new places” compare, from a COVID-19 perspective, to being at the ECDC with only a single, quarantined case of COVID-19. III. Standard of Review
A temporary restraining order is an “extraordinary and drastic remedy not to be granted unless the movant clearly establishe[s] the ‘burden of persuasion’” as to the following four requisites: (1) the movant has a substantial likelihood of success on the merits, (2) the movant will suffer irreparable injury unless the injunction issues, (3) the injunction would not substantially harm the other litigant, and (4) if issued, the injunction would not be adverse to the public interest. Long v. Sec’y, Dep’t of Corrs., 924 F.3d 1171, 1176 (11th Cir. 2019); McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998). Issuing a temporary restraining order “is the exception rather than the rule.” Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (quoting Texas v. Seatrain Int’l, S.A., 518 F.2d 175, 179 (5th Cir. 1975)). A movant bears “the ‘burden of persuasion’ to clearly establish all four” elements. Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244, 1247 (11th Cir. 2016) (quoting Siegel, 234 F.3d at 1176).
14 Because Petitioner Soho has been released from confinement, the court concluded that the motion for a TRO on his behalf is now moot. (See Doc. # 33).
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IV. Discussion Petitioners claim that they are entitled to a TRO because they are likely to succeed on their
claims that, by continuing to detain them during the COVID-19 pandemic, Defendants are violating their rights under the Fifth Amendment. They claim they will be “irreparably harmed” if they remain detained, and that the balance of equities and the public interest favor release. (Doc. # 2 at 1-2). Respondents argue that (1) the court does not have jurisdiction to issue a TRO because Petitioners’ claims are not cognizable under section 2241, (2) Petitioners have not shown they will face irreparable harm absent judicial action, (3) Petitioners are not likely to succeed in showing a substantive due-process violation based on the government’s purported deliberate indifference to their medical needs, (4) the balance of the harms does not support release, and (5) the court should deny Petitioners’ Motion as a matter of its judicial discretion. (Doc. # 11).
A. Petitioners Have Not Shown a Likelihood of Success on the Merits To show that they are entitled to a TRO, Petitioners must establish that there is a substantial likelihood they will succeed on the merits of their claim. Long, 924 F.3d at 1176.
1. Petitioners’ Claim is Not Cognizable Under 28 U.S.C. § 2241 Petitioners filed their claim as a petition for a writ of habeas corpus under 28 U.S.C. § 2241. Section 2241 is a vehicle to allow prisoners and detainees the opportunity to request relief from unlawful imprisonment or custody. The remedy of habeas corpus does not extend to a prisoner unless he is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). The statutory language addresses the legality of a prisoner’s custody, not the conditions that a prisoner may experience while incarcerated. At its core, a habeas claim has two elements: (1) a challenge to the fact or duration of physical imprisonment, and (2) a request for a determination that the petitioner is entitled to immediate or a speedier release.
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Preiser, 411 U.S. at 500. Thus, “while the petition for writ of habeas corpus is the sole remedy for prisoners challenging the fact or duration of their imprisonment,” whether it is available to contest the conditions of confinement is a question that the Supreme Court has expressly left open. Gomez v. U.S., 899 F.2d 1124, 1126-27 (11th Cir. 1990) (citing Preiser v. Rodriguez, 411 U.S. 475, 504 (1973); Bell v. Wolfish, 441 U.S. 520, 527 n. 6 (1979)).
Despite their protestations otherwise, Petitioners’ section 2241 claim in this case clearly challenges the conditions, not the validity, of their confinement. That is, Petitioners’ constitutional claims, correctly characterized, are challenges to their conditions of confinement. They challenge the adequacy of the disease prevention measures at the ECDC15 and contend that, as individuals who are at increased risk of serious complications from COVID-19, ICE is unwilling or, perhaps more precisely, unable to address their medical needs and/or adopt safety measures to protect them from actual or potential exposure. So, properly understood, Petitioners present a classic conditionsof-confinement claim. Now, to be clear, the remedy they seek (release from custody) sounds in habeas. But tacking a traditional habeas remedy on to a prototypical conditions-of-confinement claim does not convert that classic civil rights claim into a habeas claim. So, the question is whether they can challenge their confinement conditions via a petition for a writ of habeas corpus.
The Supreme Court has “left open the question . . . .” Ziglar v. Abbasi, 137 S. Ct. 1843, 1862-63 (2017); see also Bell, 441 U.S. 526 n.6 (“[W]e leave to another day the question of the propriety of using a writ of habeas corpus to obtain review of the conditions of confinement.”). However, while that is the case, the court does not believe it is much of an open question in the Eleventh Circuit. Admittedly, the Eleventh Circuit has not answered the question in a published
15 Because the majority of their proof relates to COVID-19’s spread in the United States, Alabama, Etowah County, the ECDC’s state prisoner population, and all ICE detention centers across the nation, it may be more accurate to say that Petitioners are challenging the disease prevention measures of ICE, generally.
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decision, so in a technical sense it is “open.”16 But, in an unpublished opinion, a panel of this
Circuit concluded that a petition for a writ of habeas corpus is not the appropriate mechanism for
contesting a prisoner’s conditions of confinement.17 See Vaz v. Skinner, 634 F. Appx. 778, 781
(11th Cir. 2015) (per curiam) (finding section 2241 is “not the appropriate vehicle for ... a claim
challeng[ing] the conditions of confinement”).
In Vaz, a detained alien had been ordered removed (and was not confined under criminal
process). In addition to presenting a Zadvydas18 claim, Vaz also sought release on an alternate
ground. He claimed he was receiving inadequate medical care. The panel squarely held that
“Petitioner’s § 2241 claim is not the appropriate vehicle for raising an inadequate medical care
claim, as such a claim challenges the conditions of confinement, not the fact or duration of that
confinement.” Vaz, 634 F. Appx at 781. The Vaz court specifically cited and relied upon Gomez
in concluding that Vaz’s inadequate medical care claim, arising under the Fifth Amendment, did
16 The other circuits that have squarely addressed the issue are split on how to resolve it. Seven courts have concluded that conditions claims are not cognizable under section 2241. See Wilborn v. Mansukhani, 795 F. Appx. 157, 162-64 (4th Cir. 2019) (per curiam) (describing circuit split). Only three have reached a contrary conclusion. Id. The court is convinced that the Eleventh Circuit would adopt the majority view. A published decision of our circuit has taken steps down that path. See Gomez, 899 F.2d at 1126 (“If these claims are considered in a habeas corpus context, however, this Court has held that even if a prisoner proves an allegation of mistreatment in prison that amounts to cruel and unusual punishment, he is not entitled to release.”). A panel of this circuit has so held. Vaz v. Skinner, 634 F. Appx. 778, 780 (11th Cir. 2015) (“Claims challenging the fact or duration of a sentence fall within the ‘core’ of habeas corpus, while claims challenging the conditions of confinement fall outside of habeas corpus law.”); see also Cook v. Baker, 139 F. Appx. 167, 168 (11th Cir. 2005). And, the district courts in our circuit have consistently reached this same conclusion. See Daker v. Warden, No. 18-cv-14984, 2020 WL 751817, at *2 (11th Cir. Feb. 14, 2020). In addition, other district courts in this circuit have applied this reasoning to deny preliminary relief in similar COVID19-based challenges. See, e.g., A.S.M. v. Donahue, No. 7:20-cv-62 (CDL), 2020 WL 1847158, at *1 (M.D. Ga. Apr. 10, 2020) (finding that habeas corpus “is not the appropriate mechanism” for the ICE detainee petitioner’s request for release from confinement due to COVID-19); Benavides v. Gartland, No. 5:20-cv-46, 2020 WL 1914916, *5 (S.D. Ga. Apr. 18, 2020); Gayle v. Mead, No. 1:20-cv-21553-MGC, 2020 U.S. Dist. LEXIS 76040, *17-18 (S.D. Fla. Apr. 30, 2020) (“The appropriate relief from prison conditions that violate the Eighth Amendment is to require the discontinuance of any improper practices, or to require correction of any condition causing cruel and unusual punishment. Requirement of a discontinued practice does not amount to releasing 10 detainees who complain of prison conditions.”).
17 The very language of section 2241 does not purport to grant jurisdiction to enter anything other than a final judgment in the form of a writ of habeas corpus. 28 U.S.C. § 2241(c)(3).
18 Zadvydas v. Davis, 533 U.S. 678 (2001).
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not entitle him to habeas relief under section 2241. Id. (“[E]ven if petitioner established a
constitutional violation, he would not be entitled to the relief he seeks because release from
imprisonment is not an available remedy for a conditions-of-confinement claim.”).19
Petitioners argue that Vaz is distinguishable because the Vaz detainee sought release
because of the unavailability of adequate medical treatment, whereas here they seek release
because there are no conditions of confinement that can be implemented at the ECDC that would
not cause them (as civil detainees) to be unconstitutionally punished. To the extent there is a
distinction between these two situations, it is a distinction without a difference, at least as it relates
to section 2241.
Petitioners insist they are not complaining about their conditions of confinement. Rather,
they say the COVID-19 threat makes the circumstances of their continued confinement
unconstitutionally punitive. The problem is that their “circumstances” are synonymous with their
“conditions.” Notwithstanding Petitioners’ effort to characterize their claim, at bottom, they are
still complaining that the conditions of their confinement are violative of the Fifth Amendment.20
19 To be sure, at least one circuit has said that “[s]ection 2241 does not purport to permit preliminary grants of habeas. It prohibits the writ from issuing unless the prisoner ‘is’ being held ‘in custody in violation of the Constitution or laws or treaties of the United States,’ not merely because he likely could make that showing in the future.” Hamama v. Adducci, 946 F.3d 875, 877 (6th Cir. 2020).
20 Petitioners contend that they are claiming a violation of the Fifth Amendment, not the Eighth Amendment. The Vaz panel also explained why that is legally correct, but also noted that the standard imposed as to prisoners under criminal process and pretrial detainees is the same.
Prison officials violate the Eighth Amendment’s proscription against cruel and unusual punishment when they are deliberately indifferent to a prisoner’s serious medical needs. McElligott v. Foley, 182 F.3d 1248, 1254-57 (11th Cir. 1999). However, the protections of the Eighth Amendment do not attach until after a person has been convicted and sentenced. Hamm v. DeKalb Cty., 774 F.2d 1567, 1572 (11th Cir. 1985); see also Graham v. Connor, 490 U.S. 386, 392 n. 6 (1989). Instead, a deliberate indifference claim raised by a pretrial detainee is governed by the Due Process Clause of the Fifth Amendment. See Jordan v. Doe, 38 F.3d 1559, 1564 (11th Cir. 1994). Nevertheless, the standard for providing adequate medical care to pretrial detainees under the Due Process Clause is the same standard required for convicted persons under the Eighth Amendment. Hamm, 774 F.2d at 1573-74. We held that release from custody is not an available remedy, even if a prisoner establishes an Eighth Amendment violation. Gomez v. United States, 899 F.2d 1124, 1126 (11th Cir. 1990). Instead, “[t]he appropriate Eleventh Circuit relief from prison conditions that violate the Eighth
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This is a classic conditions-of-confinement claim. And, this is exactly the conclusion Judge Ruiz
reached in Matos:
[T]he Court is unpersuaded by Petitioners’ claim that an exception should be made here regarding the inapplicability of writs of habeas corpus to constitutional confinement claims because release from detention is the only meaningful remedy. As explained herein, the Court does not find that release is appropriate based on the present record. And even if it did, release from custody is not an available remedy for Petitioners’ claims. See Gomez v. United States, 899 F.2d 1124, 1126 (11th Cir. 1990) (“The appropriate Eleventh Circuit relief from prison conditions ... is to require the discontinuation of any improper practices ... [it] does not include release from confinement.”). Therefore, the Court declines to create a “narrow exception to the ‘no habeas for constitutional confinement claims’” in this case. A.S.M., 2020 WL 1847158 at *1. Concluding that a writ of habeas corpus is not the appropriate mechanism for seeking relief, the Court may not exercise jurisdiction under section 2241. Matos v. Lopez Vega, 2020 WL 2298775 at *6 (S.D. Fla. May 6, 2020)
For these same reasons, the court is convinced that the Eleventh Circuit panel’s decision in
Vaz, though unpublished, is the correct one. As our Circuit has indicated:
The appropriate Eleventh Circuit relief from prison conditions that violate the Eighth Amendment during legal incarceration is to require the discontinuance of any improper practices, or to require correction of any condition causing cruel and unusual punishment. Cook, 596 F.2d at 660. Although problems of prisons are complex and not readily susceptible to resolution by decree, Sheley v. Dugger, 824 F.2d 1551, 1559 (11th Cir.1987), relief of an Eighth Amendment violation does not include release from confinement.
Gomez, 899 F.2d at 1126, citing Cook v. Hanberry, 596 F.2d 658, 660 (5th Cir.), cert. denied, 442
U.S. 932 (1979)); see also Vaz, 634 F. Appx. at 780 (“Claims challenging the fact or duration of a
sentence fall within the ‘core’ of habeas corpus, while claims challenging the conditions of
confinement fall outside of habeas corpus law.”) (citing Nelson v. Campbell, 541 U.S. 637, 644
(2004)).
Amendment during legal incarceration is to require the discontinuance of any improper practices, or to require correction of any condition causing cruel and unusual punishment.” Id.
Vaz, 634 F. Appx. at 781 (parallel citations omitted)
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For almost three decades, district courts in this circuit have reached similar conclusions. See e.g., Price v. Bamberg, 845 F. Supp. 825, 827 (M.D. Ala. 1993) (observing that the “law in the Eleventh Circuit appears reasonably settled.... [Section] 2241(c)(3) provides that the writ of habeas corpus shall not extend to a prisoner unless the prisoner is ‘in custody in violation of the Constitution or laws or treatises [sic] of the United States.’ ... The statute plainly refers to the constitutionality or legality of the basis of the prisoner’s custody and not the conditions of that custody which a prisoner may experience while incarcerated.”) (emphasis in original) (citations omitted); see e.g., Matos, 2020 WL 2298775 at *6 (holding that “release from custody is not an available remedy for [the petitioners’ Section 2241] claims”) (citing Gomez v. United States, 899 F.2d 1124, 1126 (11th Cir. 1990)); Gayle v. Meade, 2020 WL 1949737, *25 (S.D. Fla. Apr. 22, 2020) (acknowledging that the Eleventh Circuit “does not permit release from prison as a remedy for an unconstitutional condition of confinement”); Benavides, 2020 WL 1914916 at *5 (noting that “constitutional challenges to [one’s] confinement are ultimately objections to [the] conditions of confinement. Though circuit courts are divided on whether habeas is the appropriate mechanism for challenging conditions of confinement, the weight of authority in the Eleventh Circuit is that it is not.”); A.S.M., 2020 WL 1847158 at *1 (concluding “that a writ of habeas corpus [under Section 2241] is not the appropriate mechanism for seeking the relief” the petitioners request, which was release from confinement); Helbig v. United States, 2019 WL 3976571, *3 (N.D. Fla. July 31, 2019) (recognizing that “Section 2241 . . . does not authorize courts to provide the only relief Petitioner seeks: a reduction in her term of incarceration.”); Seugasala v. Warden, FCC Coleman, USP II, 2019 WL 6311166, *3-4 (M.D. Fla. Nov. 25, 2019) (“The petition for writ of habeas corpus traditionally has been accepted as the specific instrument to obtain release from unlawful confinement. Habeas corpus cannot be used for any other purpose. Disciplinary actions that affect
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only the conditions of confinement are not considered unlawful confinement subject to habeas unless the conditions affect the fact or duration of sentence.”) (internal citations and quotation marks omitted); Beasley v. Unnamed Respondent, 2018 WL 10611667, *2 (N.D. Ga. Dec. 12, 2018) (“A habeas remedy does not extend to matters that do not affect either the fact or duration of confinement.”); Bryant v. Clay, 2017 WL 4678484, *2 (N.D. Ala. Sept. 15, 2017) (“[T]he Eleventh Circuit intimates that the ‘appropriate . . . relief from prison conditions that violate the [Constitution] during legal incarceration is to require the discontinuance of any improper practices, or to require correction of any condition causing cruel and unusual punishment,’ not a release from confinement pursuant to § 2241 habeas relief.”); Sears v. Chatman, 2016 WL 1417818, *23 (N.D. Ga. Apr. 8, 2016) (holding that because the petitioner “assert[ed] only a claim concerning the conditions of his confinement, rather than his sentence of death . . . his claim ‘[fell] outside of habeas corpus law’”) (citation omitted).
Against this backdrop, Petitioners point to language in one of those district court cases that they argue supports their argument. A careful review of that decision shows their argument is not supported. In A.S.M., the district court determined that the Eleventh Circuit would, consistent with the majority rule, adopt the holding in Vaz and conclude that section 2241 cannot be used to challenge conditions of confinement. A.S.M., 2020 WL 1847158 at *1. That was the court’s holding. Petitioners point to dicta in A.S.M. where the court paused and said (as an aside) that, in the event there really was some risk of serious harm or death from unconstitutional conditions that could not be modified to eliminated, it may find the argument (that section 2241 provides relief) more persuasive. Id. Petitioners latch on to this language, but it is not the lifeline they think.
First, let’s be clear about what Judge Land held, and what he said and did not say. He held that the petitioners could not go forward on a section 2241 claim. He rejected their section 2241
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argument. And, he did not say that if release were the only possible appropriate remedy he would
have concluded otherwise. He only said that, under those circumstances, the argument sounds
more persuasive. Second, to the extent the A.S.M. court actually hinted that section 2241 could be
used under those circumstances to secure release, this court disagrees. See Matos, 2020 WL
2298775 * 6 (rejecting that same position). Such a theory may succeed in the context of a Bivens
claim (when federal defendants are sued) or a section 1983 claim (when state or municipal
defendants are sued). But, the point here is that such a theory still challenges conditions of
confinement, and section 2241 does not permit such a challenge. Courts who reach the opposite
conclusion simply ignore the plain language of the statute and centuries of habeas jurisprudence.
Third, it is also clear that Judge Land was speaking hypothetically. He found the evidence in that
case, just like the evidence here, did not establish that “the only way to remedy Petitioners’
[allegations about] constitutional violations is to release them from custody.” Id.21
21 Petitioners point to district court decisions outside this circuit to support their section 2241 argument. (Doc. # 31 at 2-3) (citing among other cases Vazquez Barrera v. Wolf, 2020 WL 1904497 (S.D. Tex. Apr. 17, 2020); Mays v. Dart, 2020 WL 1812381 (N.D. Ill. Apr. 9, 2020)). In Vazquez Barrera, the court engaged in a full session of mental gymnastics to work around the language of Section 2241 and conclude that the same challenge made here is a challenge to the fact of detention under that statute. That court looked at the remedy the petitioner sought, rather than the actual claim. Contrary to the Vazquez Barrera court’s erroneous conclusion, these claims attack the conditions of confinement at ICE facilities.
The Mays case lends no more help to Petitioners. The court did not rule on the section 2241 jurisdictional question that was presented because it found the petitioners had failed to exhaust available state court remedies. Mays, 2020 WL 1812381, at *6. However, “to ensure a more complete record,” the court discussed “the parties[’] dispute [about] whether detainees can even challenge the conditions of their confinement through Section 2241 . . . .” Id. The court stated:
Were the Court required to address this point, it would not consider it to be an absolute bar to plaintiffs’ motion for a temporary restraining order. The plaintiffs’ claims, as they have framed them, do bear on the duration of their confinement (they contend, ultimately, that they cannot be held in the Jail consistent with the Constitution’s requirements), and they are not the sort of claims that are, or can be, appropriately addressed via a claim for damages. The Court need not, however, decide this point definitively at this point.
Id. (emphasis in original). Again, that was not a ruling made by the Mays court. But, the problem with that (hypothetical) approach is this: a plaintiff (or, in this case, a petitioner) is not permitted to pretzel a civil rights claim in such a way as to create habeas jurisdiction where it does not exist. The key is what the claim complains about – not what remedy is sought.
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The court lacks jurisdiction to grant Petitioners’ release under section 2241. 2. Petitioners Cannot Obtain Injunctive Relief On An Unmoored Rule 65 Claim
Petitioners argue that Federal Rule of Civil Procedure 65 allows the court to release them even if section 2241 does not. They contend this court has “jurisdiction” to entertain their injunctive relief claim under 28 U.S.C. § 1331, and they can go forward on that claim even if their section 2241 claim fails. (Doc. 29 at 2 n. 1). That is plainly wrong. The first element a plaintiff must satisfy is to show a likelihood of success on the merits of a claim. The court cannot grant a TRO based on a legal claim that, on its face, cannot succeed. The Eleventh Circuit mandates that “any motion or suit for either a preliminary or permanent injunction [or a TRO] must be based upon a cause of action. . . . There is no such thing as a suit for a traditional injunction in the abstract. For a traditional injunction to be even theoretically available, a plaintiff must be able to articulate a basis for relief that would withstand scrutiny under Fed. R. Civ. P. 12(b)(6).” Alabama v. U.S. Army Corps of Eng’rs, 424 F.3d 1117, 1127 (11th Cir. 2005) (internal citations and quotation marks omitted). Petitioners’ claims are not cognizable under section 2241. Because Rule 65 does not create a private right of action, it cannot itself provide the relief sought. See e.g., Univ. Gardens Apartments Joint Venture v. Johnson, 419 F. Supp. 2d 733, 742 (D. Md. 2006) (“In keeping with its procedural function, Rule 65 does not confer either subject-matter or personal jurisdiction on the court. As is true of civil actions generally, an independent basis for asserting federal question or diversity jurisdiction must be shown . . . . The rule assumes that the district court already has acquired jurisdiction and that venue is proper.”) (citing 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil § 2941 (2nd ed. 1995)); In re Managed Care Litig., 2009 WL 7848517, *7 (S.D. Fla. Mar. 27, 2009) (“‘[I]njunctive relief’ cannot be plead as a separate claim because it is not a cause of action but a form of relief.”). Petitioners cannot rely
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upon Rule 65 in a vacuum to secure their release. “It is well-settled that for Petitioners to be entitled to relief under Rule 65, they must tether their request for relief to a cause of action set forth in their pleading.” Benavides, 2020 WL 1914916 at *4 (citations omitted).
3. Petitioners Have Not Presented Evidence Justifying Their Release Even if Petitioners were entitled to challenge their conditions of confinement under section 2241 (and, to be clear, they are not), they have failed to show there is a factual basis for their release from custody. That is, the evidence before the court falls far short of establishing that release is the only appropriate remedy. See A.S.M., 2020 WL 1847158 at *1 (“But based upon the present record, the Court does not find that the only way to remedy Petitioners’ alleged constitutional violations is to release them from custody.”) First, ICE has a program for determining who should be released during the COVID-19 pandemic. At least three detainees at the ECDC have been placed on an order for supervised release because they were determined to be at risk and suitable candidates. Petitioners were also evaluated, but not released. And, as discussed in more detail below, Respondents are subject to a preliminary injunction entered in a class action in the Central District of California, which imposes upon them mandatory measures related to their review of whether to release detainees with serious health conditions in light of COVID-19. Second, release is a drastic remedy, particularly at this stage of the case (even assuming section 2241 permitted it, which it does not). Petitioners are lawfully detained. In fact, the majority of them are under final orders of removal. Two of the Petitioners—Tesfa Miller and Edison Flores—are detained under 8 U.S.C. § 1226(c), which mandates detention pending completion of removal proceedings. Congress has expressly prohibited release of individuals detained under 8 U.S.C. § 1226(c) due to the seriousness of their offenses. Jennings v. Rodriguez, 138 S. Ct. 830,
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847 (2018). Many of them also have serious criminal convictions—including convictions for murder, assault, armed robbery, child exploitation, possession of child pornography, and the manufacture and sale of illegal drugs.22 If Petitioners’ request is granted, numerous individuals who the United States has detained and removed following their criminal convictions will be released, and the government’s efforts to protect the public and to remove unlawful aliens who have been convicted of crimes in our nation will be undermined. See Demore v. Kim, 538 U.S. 510, 518 (2003) (describing mandatory detention as Congress’s solution to “[t]he INS’ near-total inability to remove deportable criminal aliens”). Petitioners arguments about alternatives to custody do not move the needle.
Third, the court notes that in other cases, and in particular in cases where COVID-19 was even more of a threat to detainees in their particular facilities, courts have almost uniformly denied requests for such a blanket remedy as broad release.
For example, in Swain v. Junior, --- F.3d. ---, 2020 WL 2161317 (11th Cir. May 5, 2020), the plaintiffs filed on behalf of a class of individuals detained at the facility and a subclass of medically vulnerable individuals. Id. at 2-4. The class sought relief under a similar factual theory that the Petitioners pursue here—that the ICE facility was acting in deliberate indifference to a known and excessive risk to health and safety. Id. at 2-4; 8. The District Court for the Southern District of Florida did not grant the plaintiffs’ request for release, despite the fact that (1) there were 163 COVID-19 cases at that facility, and (2) the prisoners brought constitutional claims under § 1983, which is a vehicle that plainly permits a plaintiff to challenge his conditions of confinement. Instead, the district court granted alternative injunctive relief that required Miami-
22 Although Petitioners correctly note that they have all served their sentences for these crimes, the fact of their convictions (and the nature of the crimes they committed) are still valid considerations in ICE’s determination about who to release prior to their removal – and who not to release.
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Dade County to implement a series of safety measures to prevent the spread of COVID-19 within its Metro West Detention Center.
On May 5, 2020, the Eleventh Circuit Court of Appeals (in a published decision) stayed the injunction entered by the district court. The panel’s decision in Swain reiterates that in order to prevail on a deliberate indifference claim, the Petitioners must establish both “an objectively intolerable risk of harm” and that the prison official has “a subjective state of mind” akin to “criminal recklessness” when he “knows of and disregards an excessive risk to inmate health or safety.” Id. at 9-10. The court identified a number of barriers to detainees establishing the subjective component for their deliberate indifference claim based on a facility’s response to COVID-19. First, the court indicated that “where social distancing is impossible and cannot be achieved absent an additional reduction in [the facility’s] population,” “the inability to take positive action likely does not constitute a state of mind more blameworthy than negligence.” Id. at 10. Second, the court suggests that where “it appears” that the facility has “implemented many measures to curb the spread of the virus,” even if they are not “effective[] in all situations at . . . current population levels,” Petitioners still must submit evidence that the Respondents “subjectively believed the measures they were taking were inadequate.” Id. at 11. Finally, the court concluded that where the facility “provid[es] protective equipment, adopt[s] social distancing when possible, quarantine[es] symptomatic inmates, and enhance[es] cleaning procedures, the defendants’ actions likely do not amount to deliberate indifference.” Id. at 12.
Here, Petitioners rely on the same arguments regarding social distancing and population levels that the Swain court indicated are likely insufficient to support a finding of deliberate indifference. Moreover, Petitioners have pointed to the unavailability of mass testing to support their claims. But as the Eleventh Circuit noted, an “inability to take positive action” is not sufficient
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to establish the subjective component of a deliberate indifference claim. See id. at 10. And, while Petitioners in this case are not detained under criminal process, and they have some wider berth to claim their conditions of confinement are punitive, they are still faced with only one quarantined COVID-19 case, not 163. And, that single detainee was immediately quarantined upon his arrival, and has never been in the general ICE population.
Even if release were a legally available remedy under section 2241, Petitioners have not presented evidence establishing that release of Petitioners is appropriate here. The staff at the ECDC, faced with this pandemic, and while continuing to manage other important public responsibilities (such as ensuring the continued enforcement of our Nation’s immigration laws within real-world constraints involving existing resources and physical facilities)23 has only one COVID-19 case.24 Of course, this is not the end of the analysis; but, it is an important factor.
As explained above, ICE contends that, at least at the ECDC facility (the only facility at issue here), it has actively sought to address COVID-19 by implementing CDC guidance to the maximum extent possible. (Doc. # 11-1). It has been providing personal protective equipment such as masks to detainees, instructing detainees on hand washing and hygiene, increasing the scope and frequency of sanitation procedures, and regularly replenishing cleaning supplies and hand soap for detainees. (Doc. # 11-1 ¶ 20). Staff at the ECDC are monitoring for COVID-19 symptoms. They have been conducting intake medical screenings for all new detainees and quarantining all
23 Petitioners are dismissive of the importance of enforcement of our nation’s immigration laws. 24 Petitioners argue that the ECDC is allowing new prisoners to enter the ECDC, even during the pandemic. But, like many of their arguments, this is somewhat of a misfire. The prisoners entering the ECDC are state prisoners (not ICE detainees). Those state prisoners are in a different, segregated part of the ECDC. ICE detainees have no interaction with the state prisoner population, with the exception (or so Petitioners claim) of state prisoner trustees serving some segment of the ICE detention block. (It is not clear if this practice is continuing during the COVID-19 restriction period). They also contend that new detainees are being transferred in from other ICE detention facilities. The evidence does not support that contention. The new detainees have come into the facility after being taken into ICE custody. And importantly, they are quarantined.
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new and returning detainees for fourteen days, as well as anyone showing COVID-19 symptoms. (This is how they detected and isolated the single COVID-19 case at the facility). The ECDC staff are also administering temperature checks to personnel entering the facility before they assume their posts. And, they are encouraging social distancing in movements, housing, dining, common areas, showering, and throughout the facility, often by reducing occupancy limits in a given area. (Id. ¶¶ 20, 22, 25).
Petitioners of course dispute many, if not all, of these points. They contend that ICE is not properly handling the COVID-19 outbreak. But, they also assert that there is nothing ICE can do to protect them short of release. In their most recent filing, Petitioners raise a number of questions about the proper legal framework under which their claim should be analyzed. (Doc. # 29 at 2-5). They contend that, because they are civil detainees, Respondents are entitled to “less deference” here. (Id. at 3). They assert that the deliberate indifference standard does not apply to them, but nevertheless claim that they can easily meet it. The principal problem with this argument is simple: the cases on which Petitioners rely are all conditions-of-confinement cases under § 1983 or Bivens. Here, Petitioners are trying to shoehorn a conditions-of-confinement claim under section 2241.
This case’s posture is significant in two ways. First, for all practical purposes, it renders the parties’ disputes about what is happening at the ECDC moot. If release is the only possible remedy, then Petitioners have brought their claim under the wrong statute. Petitioners cannot use section 2241 to modify their conditions of confinement. Second, the relief they seek – judiciallyordered release – has not been granted by other courts where the risk to detainees posed by COVID-19 is much more prevalent. Not by the Southern District of Florida, which was dealing with 163 COVID-19 cases at Metro West. And, not by the Central District of California, which
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provisionally certified a class and entered a preliminary injunction modifying release protocols at all ICE facilities nationwide, including the ECDC.
B. Petitioners Have Not Demonstrated that They will Face Irreparable Injury Absent the Granting of a TRO
Even if they could pursue a release remedy under section 2241, Petitioners have not demonstrated that they will suffer irreparable injury absent the injunctive relief they seek in this case. To obtain injunctive relief, they must point to an injury that is actual and imminent, not remote or speculative. Ne. Fla. Chapter of the Ass’n of Gen. Contractors of Am. v. City of Jacksonville, 896 F.2d 1283, 1285 (11th Cir. 1990) (internal quotation marks and citation omitted). Merely showing a “possibility” of irreparable harm is insufficient. See Winter, 555 U.S. at 22. “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.” Id.
Although this court has concluded Petitioners are not entitled to release under section 2241, they are not left without an avenue for relief. Detainees are entitled to challenge the conditions of detention using a traditional civil rights claim—a Bivens action if he is held in federal custody or a section 1983 action if he is in the custody of state or municipal officials. Indeed, all but two of the Petitioners are actually doing that now—directly or through their currently certified class representatives. That is so because in Fraihat Hernandez has asserted a civil rights claim challenging the conditions of his confinement,25 and all but two of the remaining seventeen Petitioners in this case are members of the certified class or subclass. At least arguably, the other two should benefit (either directly or indirectly) from the injunctive relief granted in that case. So,
25 The Eleventh Circuit forbids claim splitting. Vanover v. NCO Fin. Servs., Inc., 857 F.3d 833 (11th Cir. 2017). This case (and the existence of the Fraihat class) may provide some insight into why Hernandez and his coPetitioners have pursued his release claim under Section 2241.
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the fact that this court lacks jurisdiction to address their petition under section 2241 does not leave them without a remedy and does not subject them to irreparable harm. They have a clear avenue to secure the relief they seek, whether in Fraihat or by asserting their own Bivens claims.
C. The Public Interest and the Balance of Harms Do Not Support the Release Remedy
The Supreme Court has recognized that “[t]he third and fourth factors, harm to the opposing party and the public interest, merge when the Government is the opposing party.” Nken v. Holder, 556 U.S. 418, 435 (2009). 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) (“The Supreme Court has recognized that the public interest in enforcement of the immigration laws is significant.”) (citing cases); see also Nken, 556 U.S. at 435 (“There is always a public interest in prompt execution of removal orders: The continued presence of an alien lawfully deemed removable undermines the streamlined removal proceedings IIRIRA established, and permits and prolongs a continuing violation of United States law.”) (internal quotation omitted).
Petitioners have pointed to comments attributed to Respondent Albence, including his purported statement that releasing non-violent immigrants in light of COVID-19 could give the impression that the Administration is “not enforcing [the] immigration laws,” which could create a “rush at the borders.”26 But their citation to this comment is, at best, a distraction. Many of the
26 The statement attributed to Albence is in a press release, not a subcommittee transcript. (Doc. # 2-1 at 1) (citing Press Release, House Comm. on Oversight and Reform, DHS Officials Refuse to Release Asylum Seekers and Other Non-Violent Detainees Despite Spread of Coronavirus (Apr. 17, 2020), https://oversight.house.gov/news/pressreleases/dhs-officials-refuse-to-release-asylum-seekers-and-other-non-violent-detainees). In their submissions, Petitioners tried to put a different spin on this purported remark. They asserted that Albence “recently told Congress that it will no longer release individuals – even those at high risk for serious injury or death – because doing so could give the impression that the Trump Administration is ‘not enforcing our immigration laws.’” (Doc. # 2-1 at 2). But, the document they cite contains the quote above in the context above.
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Petitioners have violated our criminal laws in addition to our immigration laws. Most of them are under final orders of removal and have not been granted bond pending removal proceedings.
As Judge Ruiz noted in Matos, “[d]etention comes with its flaws. Even without a highly contagious pandemic, there is always an unfortunate risk that detainees will be exposed to certain communicable diseases, such as the common cold or tuberculosis.” Matos, 2020 WL 2298775, at *10 (S.D. Fla. May 6, 2020). But again, as in Matos, “Respondents have made conscious efforts to create a safe environment for the detainees and [ECDC’s] staff, despite inherent obstacles and the novel COVID-19 virus.” Id.
The court is also cognizant that Congress delegated certain duties to the Attorney General, rather than the judiciary, including “the authority to allow deportable aliens to remain in this country in certain specified circumstances,” such as providing for interim release or relief from removal. See I.N.S. v. Chadha, 462 U.S. 919, 954-55 (1983). Therefore, judicial review of these discretionary decisions “must take appropriate account of the greater immigration-related expertise of the Executive Branch ... and the Nation’s need to ‘speak with one voice’ in immigration matters.” Zadvydas, 533 U.S. at 701. “The judiciary is ill-equipped to determine whether Petitioners in this action are more deserving of release than their detained neighbors. Nor is the judiciary prepared to strip an administrative agency of their discretionary decisions.” Matos, 2020 WL 2298775, at *11. V. CONCLUSION
The court is sympathetic to the plight of Petitioners, but they have not shown that the form of remedy they seek—complete release—is appropriate. An injunction is “not to be granted unless the movant clearly establish[es] the burden of persuasion as to all four elements.” CBS Broad v. Echostar Communs. Corp., 265 F.3d 1193, 1200 (11th Cir. 2001) (internal quotations omitted).
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Case 4:20-cv-00596-RDP-JHE Document 34 Filed 05/15/20 Page 41 of 41 Petitioners have not carried their burden of persuasion on any of the four requisites to establishing an entitlement to temporary injunctive relief. For all of the reasons discussed above, the court concludes that Petitioners’ Motion for a Temporary Restraining Order (Doc. # 2) is due to be denied.
DONE and ORDERED this May 15, 2020. _________________________________ R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE
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 Case 4:20-cv-00596-RDP-JHE

Document 35

Filed 05/15/20

Page 1 of 1

FILED
2020 May-15 PM 04:45 U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION

SARAIL MICHAEL ARCHILLA, et al., Petitioners,
v. DIANNE WITTE, et al.,
Respondents.

} } } } } Case No.: 4:20-cv-00596-RDP-JHE } } } }

ORDER This case is before the court on Petitioners’ Motion for Temporary Restraining Order (Doc. # 2), filed April 29, 2020. The court held a telephone hearing on the Motion on May 12, 2020. After careful review of the briefing and the arguments presented to the court, and for the reasons explained in the contemporaneously filed Memorandum Opinion, Petitioners’ Motion for Temporary Restraining Order (Doc. # 2) is DENIED. DONE and ORDERED this May 15, 2020.

_________________________________ R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE

 
 Case 4:20-cv-00596-RDP-JHE

Document 38

Filed 06/22/20

Page 1 of 1

FILED
2020 Jun-22 PM 12:21 U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION

SARAIL MICHAEL ARCHILLA, et al, Petitioners,
v. DIANNE WITTE, et al.,
Respondents.

} } } } } Case No.: 4:20-cv-00596-RDP-JHE } } } }

ORDER This case is before the court on Petitioners’ Notice of Voluntary Dismissal Pursuant to Rule 41(a)(1)(A)(i), filed on June 19, 2020. (Doc. # 37). Pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i), Petitioners have voluntarily dismissed their habeas petition without prejudice. See Fed. R. Civ. P. 41(a)(1)(A)(i)-(ii) (“[T]he plaintiff may dismiss an action without a court order by filing a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment . . . . Unless the notice . . . states otherwise, the dismissal is without prejudice.”). In this case, neither an answer nor a motion for summary judgment has been filed by any opposing party, so the case may be voluntarily dismissed without a court order under Rule 41. The Clerk of Court is DIRECTED to close this case. Costs are taxed as paid. DONE and ORDERED this June 22, 2020.

_________________________________ R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE

 
 Case 4:20-cv-00596-RDP-JHE

Document 31

Filed 05/13/20

Page 1 of 8

FILED
2020 May-13 PM 02:50 U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION

ARCHILLA, et al., Petitioners-Plaintiffs, v.
WITTE, et al., Respondents-Defendants.

Case No. 4:20-cv-596-RDP-JHE

PETITIONERS’ POST-ARGUMENT SUPPLEMENTAL BRIEF ON THEIR MOTION FOR A TEMPORARY RESTRAINING ORDER
In response to the Court’s invitation during the May 12 argument on Petitioners’ Motion for a Temporary Restraining Order, Petitioners respectfully submit this post-argument supplemental brief seeking to clarify several key points regarding Petitioners’ claims for relief and respond to several factual allegations made by Respondents.
1. Because Petitioner’s Do Not Seek to Remediate Prison Conditions, But Seek Release From Unlawful Detention, Their Claims Sit at the Core of Habeas. Because of the considerable colloquy at oral argument around the question of the Court’s
jurisdiction, Petitioners seek to briefly clarify their central contention: this Court has jurisdiction under 28 U.S.C. § 2241 because Petitioners have presented substantial evidence showing that their continued detention is unconstitutional, and release via a writ of habeas corpus in an available and appropriate remedy under the circumstances—indeed, it is the only adequate remedy to the ongoing constitutional injuries they are suffering.

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First, it is true that the traditional vehicle to contend that a detainee’s or prisoner’s conditions of confinement are unconstitutional is an action under 42 U.S.C. § 1983 raising Fifth or Eighth Amendment claims in the case of state facilities; or, as a direct injunctive claim under the Constitution in the case of federal facilities.1 But Plaintiffs do not – and could not – challenge their conditions of confinement in the way traditional civil rights claims provide because they do not seek to use the writ to impose new or improved conditions in a facility in the manner that courts have said habeas does not permit. See, e.g. Gomez v. United States, 899 F.2d 1124, 1125 (11th Cir. 1990) (rejecting habeas where petitioner challenged the “medical treatment” during the course of detention.); Vaz v. Skinner, 634 Fed. App’x. 778, 781 (11th Cir. 2015) (rejecting habeas petition seeking better medical treatment.); Daker v. Warden, No. 18-13800, 2020 WL 751817, at *2 (11th Cir. Feb. 14, 2020) (rejecting habeas petition seeking adequate food and medical care.); cf. Cook v. Baker, 139 Fed. App’x. 167, 169 (11th Cir. 2005) (dismissing § 1983 action because § 2254 habeas corpus was the exclusive remedy for petitioner's claim challenging his conviction).
Second, Petitioners’ contention – supported by overwhelming record evidence – is that the unprecedented COVID-19 pandemic presents such a risk to the health and life of medically vulnerable individuals like Petitioners, that it renders their detention unlawful under the Fifth Amendment, and the only relief possible is release. That the unprecedented and ultimately unconstitutional pandemic-related situation in the Etowah County Detention Center forms the grounds for relief does not foreclose habeas jurisdiction over their release. Vazquez-Berrera v. Wolf, No. 20-cv-1241, 2020 WL 1904497, at *5 (S.D. Tex. Apr. 17, 2020) (observing that “[t]he

1

A claim under Bivens can only ever be brought for damages for past federal official misconduct; Bivens is

not a vehicle to obtain prospective, injunctive relief. Unlike the more modern implied damages remedy recognized in

1971 in Bivens, courts have long had inherent equitable authority to issue injunctions to remedy constitutional

violations. See Ex Parte Young, 209 U.S. 123 (1908); see also Brown v. Plata, 563 U.S. 493, 511 (2011) (upholding

order reducing prison population under court’s inherent equitable authority); Mobile Cty. Jail Inmates v. Purvis, 581

F. Supp. 222, 224-25 (S.D. Ala. 1984) (exercising remedial powers to order a prison’s population reduced to alleviate

unconstitutional conditions.)

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mere fact that Plaintiffs’ constitutional challenge requires discussion of conditions in immigration detention does not necessarily bar such a challenge in a habeas petition,” and issuing order of release); see also Dada v. Witte, No. 1:20-CV-0458, Dkt. 17 at *9 (W.D. La. Apr. 30, 2020) (Report and Recommendation) (explaining that “the remedy for conditions claims is generally corrective. The remedy for fact claims, however, generally terminates the detention altogether, or alters it such that a new form of custody or control is imposed” and recommending release of 13 petitioners under § 2241.)
As Petitioners’ stressed during the TRO hearing before this Court, the Middle District of Georgia agreed that § 2241 jurisdiction is appropriate where petitioners’ Fifth Amendment claim stems from circumstances than cannot be timely remedied by reforms on detention conditions. A.S.M. v. Donahue, No. 7:20-CV-62 (CDL), 2020 WL 1847158, at *1 (M.D. Ga. Apr. 10, 2020) (“the general principle eschewing habeas relief as a means for remedying condition of confinement constitutional violations rests upon the assumption that eliminating the contested confinement conditions is possible without releasing the detainee from detention.”). A.S.M. reached the merits and denied the requested TRO – over a month ago – at a point in time when COVID-19 was not nearly as widespread and on a factual record far less conclusively establishing the imperative of release than the record in this case. Accordingly, as an emerging consensus of courts have held, 2

2

See e.g. Vazquez Barrera, 2020 WL 1904497, at *8; Essien v. Barr, No. 20-CV-1034-WJM, 2020 WL

1974761, at *3 (D. Colo. Apr. 24, 2020) (“In theory, these causes of action are oil and water: a habeas claim may lead

to an order releasing the prisoner or detainee or nothing at all; whereas a conditions-of- confinement claimant may

only lead to an order requiring the government to improve the conditions of confinement, but not an order releasing

the prisoner or detainee.”); Mays v. Dart, No. 20 C 2134, 2020 WL 1812381, at *6 (N.D. Ill. Apr. 9, 2020) (“The

plaintiffs' claims, as they have framed them, do bear on the duration of their confinement (they contend, ultimately,

that they cannot be held in the Jail consistent with the Constitution's requirements), and they are not the sort of claims

that are, or can be, appropriately addressed via a claim for damages.”); Malam v. Adducci, No. 20-10829, 2020 WL

1672662, at *3 (E.D. Mich. Apr. 5, 2020), as amended (Apr. 6, 2020) (“Supreme Court and Sixth Circuit precedent

support the conclusion that where a petitioner claims no set of conditions would be sufficient to protect her

constitutional rights, her claim should be construed as challenging the fact, not conditions, of her confinement and is

therefore cognizable in habeas.”); Sheikh v. Gillis, No. 5:19-cv-134 Dkt 19 at 4 (S. D. Miss. Apr. 29, 2020) (Report

and Recommendation); Wilson v. Williams, No. 20 cv 794, Dkt. 22 at 10-11 (N.D. Ohio Apr. 22, 2020); Basank v.

Decker, No. 20 CIV. 2518, 2020 WL 1481503, at *6 (S.D.N.Y. Mar. 26, 2020).

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Petitioners’ claim properly sounds in habeas. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (“a determination that [the petitioner] is entitled to immediate [] or a speedier release” is a proper habeas claim).
Third, once the Court is vested with habeas jurisdiction, the habeas statute requires the Court to reach Petitioners’ substantive claim that Petitioners are being held “in violation of the Constitution or laws or treaties of the United States.” 42 U.S.C. §2243. Petitioners contend that their continued detention violates the Fifth Amendment standards governing the treatment of civil immigration detainees. Should the Court find that the evidence demonstrates a constitutional violation – either under the Bell v. Wolfish reasonable-relationship test that Petitioners contend governs these Fifth Amendment claims, or even under the Eighth Amendment deliberate indifference standard – the Court is fully authorized to order Petitioners’ release, Boumediene v. Bush, 553 U.S. 723, 779 (2008), so as “to insure that miscarriages of justice within [the writ’s] reach are surfaced and corrected.” Harris v. Nelson, 394 U.S. 286, 291 (1969).
2. Respondents’ Own Evidence Proves Petitioners’ Point—Their Continued Detention in ECDC Poses an Irremediable Risk to Their Health and Safety The evidence presented by Respondents prior to, during, and after the TRO hearing
regarding ECDC’s safety protocols, unit capacity, “quarantine” practices and the “sterile” ICE unit, and ICE’s custody review process for medically vulnerable individuals like Petitioners demonstrate that: (1) Petitioners’ detention is “excessive in relation to” its asserted purpose, McMillian v. Johnson, 88 F.3d 1554 (11th Cir.), opinion amended on reh'g, 101 F.3d 1363 (11th Cir. 1996) (citing, inter alia, Bell v. Wolfish, 441 U.S. 520, 538 (1979)), and (2) Respondents have acted with deliberate indifference by “failing to respond . . . in an (objectively) reasonable manner” to the known, substantial risk of serious harm faced by Petitioners. See Rodriguez v. Sec'y for Dep't of Corr., 508 F.3d 611, 617-18 (11th Cir. 2007). Officer Pitman acknowledges in his supplemental
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declaration, ECF No. 30, that the main ICE unit, Unit 9 (where all seventeen detained Petitioners are confined) is near its full capacity—with 96 detainees currently occupying a unit with a total capacity of 110. Once the additional ICE detainees currently in booking or other units are moved into Unit 9, unless Respondents release or (ill-advisedly) transfer a number of detainees currently in their custody, that unit will be at or above its (non-pandemic) capacity. The fact that ICE currently has several detainees in the jail’s booking area—an open area with benches surrounded by several group (and, reportedly, individual) cells, and that also serves as the point of intake for all of the hundreds of county detainees coming into the jail on a weekly or daily basis— fundamentally undermines any of Respondents’ subsequent efforts at isolation, “quarantine,” or “cohorting,” which are themselves insufficient and even counterproductive measures to prevent the spread of COVID-19 within the facility. See ECF No. 26-3 (Declaration of Dr. Homer Venters). Finally, the fact that ICE has reportedly only released three detainees of a total population of over 110 in the over eight weeks since a national emergency was declared, and over a month since ICE’s April 4 guidance, as well as ICE’s reliance on the mandatory detention statute, 8 U.S.C. § 1226(c), 3 see ECF No. 30 ¶ 9, to essentially wash its hand of its responsibility to make individualized custody decisions for certain at-risk individuals, show that Respondents—in marked contrast to other correctional authorities in Alabama and across the country—are unwilling to take seriously the grave risk to Petitioners and other at-risk detainees.
3. Ordering Petitioners’ Release from Detention Under Appropriate Conditions— Including ICE’s Highly Effective Alternatives to Detention Program—Will Sufficiently Protect the Government’s Interests While Safeguarding Petitioners’ Basic Health and Safety

3

Respondents, and this Court, have the ability to release individuals subject to §1226(c). See Cabral v. Decker,

331 F. Supp. 3d 255, 259 (S.D.N.Y. 2018) (collecting cases); see also C.F.R. § 212.5(b)(1) and (5) (authorizing DHS

to parole noncitizens “who have serious medical conditions in which continued detention would not be appropriate”

or whose detention is otherwise “not in the public interest”).

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While Petitioners believe that release from custody is justified and appropriate, the core of what Petitioners seek is release from detention, which can be accomplished without an outright release from custody, via ICE’s alternative to detention programs. Indeed, this Court has a narrow and effective way to address both Petitioners’ interests in remaining alive and healthy and Respondents’ legitimate interests of public safety and the prevention of absconding: Respondents’ robust alternative to detention programs. Studies have confirmed that these programs are remarkably effective at ensuring that individuals do not abscond, see ECF No. 26-6 ¶¶ 6, 17-18, U.S. Gov’t Accountability Office, GAO-15-26, Alternatives to Detention: Improved Data Collection and Analyses Needed to Better Assess Program Effectiveness, 30 (Nov. 2014), https://www.gao.gov/assets/670/666911.pdf, and the Court is undoubtedly familiar with similar alternative to detention programs in the criminal context (including check-ins and ankle monitors), which are routinely used to meet the same government objectives.
Notably, these facts are uncontroverted; Respondents have never given the Court any reason to doubt the effectiveness of their alternative to detention programs. Because ICE already uses its alternative to detention programs regularly when it releases people, ordering ICE to release Petitioners on conditions that ICE itself sets would not interject this Court into ICE’s day-to-day operations or cause serious or lasting disruptions to them. Petitioners do not challenge these legitimate objectives. Rather, Petitioners’ continued detention in ECDC during this extraordinary and potentially lethal threat presented by the novel coronavirus cannot be constitutionally justified, particularly when ICE itself has minimally intrusive alternatives to detention at its disposal to ensure Petitioners’ safety and satisfy its own objectives.
Dated: May 13, 2020.
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Respectfully submitted,

/s/ Jessica Vosburgh Jessica Myers Vosburgh jessica@adelantealabama.org ADELANTE ALABAMA WORKER CENTER 2104 Chapel Hill Road Birmingham, AL 35216 205.317.1481
Sirine Shebaya* sirine@nipnlg.org Matthew S. Vogel* matt@nipnlg.org Khaled Alrabe khaled@nipnlg.org* NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Ave NW, Suite 200 Washington, DC 20007 718.419.5876

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

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

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CERTIFICATE OF SERVICE I hereby certify that on today’s date, I electronically filed the foregoing document and accompanying exhibits with the Clerk of the Court using the CM/ECF system. Notice of this filing will be sent to all counsel of record by operation of the Court’s electronic filing system.

Dated: May 13, 2020

/s/ Jessica Myers Vosburgh Jessica Myers Vosburgh

8

 
 Case 4:20-cv-00304-AKK-JHE

Document 11

Filed 04/27/20

Page 1 of 65

FILED
2020 Apr-27 AM 11:42 U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION

RANDANE WILLIAMS SARAIL MICHAEL ARCHILLA MAXIME P. BLANC GEOVANNY GERARDO CASTELLANO ANTONIO MELQUEZIDETH CASTRO EDSON FLORES RAY FULLER JOSE ANTONIO GARCIA RIVERA (a/k/a DOMINGO CASTILLO) KARIM TAHIR GOLDING ALEX HERNANDEZ BAKHODIR MADJITOV KENNETH MANNING LANDRY (EMILY) MBENDEKE TESFA MILLER ALLEN ROGER OLANO ESPARZA SERGIO QUITO JOSEPH DEBONNAIRE SOHO CHURVIN WEBSTER Etowah Detention Center 827 Forrest Avenue Gadsden, AL 35901,
Petitioners-Plaintiffs,
v.
DIANNE WITTE, in her official capacity as Interim New Orleans Field Office Director, U.S. Immigration and Customs Enforcement 1250 Poydras, Suite 325 New Orleans, LA 70113;
MATTHEW T. ALBENCE, in his official capacity as Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement, U.S. Immigration and Customs Enforcement 500 12th St., S.W. Washington, DC 20536;

AMENDED PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
No. 4:20-cv-304-AKK-JHE

Case 4:20-cv-00304-AKK-JHE Document 11 Filed 04/27/20 Page 2 of 65

IMMIGRATION AND CUSTOMS ENFORCEMENT, 500 12th St., S.W. Washington, DC 20536;
JONATHAN HORTON, in his official capacity as Sheriff of Etowah County, KEITH PEEK, in his official capacity as Chief Deputy, Etowah County Detention Center 827 Forrest Avenue Gadsden, AL 35901,
Respondents-Defendants.

Jessica Myers Vosburgh jessica@adelantealabama.org ADELANTE ALABAMA WORKER CENTER 2104 Chapel Hill Road Birmingham, AL 35216 205.317.1481
Sirine Shebaya* sirine@nipnlg.org Matthew S. Vogel* matt@nipnlg.org Khaled Alrabe** khaled@nipnlg.org NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Avenue NW, Suite 200 Washington, DC 20007 718.419.5876
Jeremy Jong* jermjong@gmail.com 3527 Banks Street New Orleans, LA 70119 504.475.6728

Baher Azmy* bazmy@ccrjustice.org Ghita Schwarz* gschwarz@ccrjustice.org Angelo Guisado* aguisado@ccrjustice.org Guadalupe V. Aguirre* laguirre@ccrjustice.org Astha Sharma Pokharel* asharmapokharel@ccrjustice.org Brittany Thomas* bthomas@ccrjustice.org CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 11201 212.614.6427
Counsel for Petitioners-Plaintiffs *pro hac vice applications forthcoming ** admitted pro hac vice
April 27, 2020

Case 4:20-cv-00304-AKK-JHE Document 11 Filed 04/27/20 Page 3 of 65
AMENDED PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Pursuant to Fed. R. Civ. P. 15(a)(1)(B), Petitioners-Plaintiffs hereby file the following amended petition for a writ of habeas corpus and complaint for injunctive and declaratory relief:
INTRODUCTION 1. This case presents a request for immediate relief on behalf of eighteen PetitionersPlaintiffs (“Plaintiffs”), who are especially vulnerable to serious injury or death if they contract COVID-19, the highly contagious and potentially lethal disease that is sweeping the globe. Respondent-Defendants (“Defendants”) are holding Plaintiffs in civil immigration detention in the Etowah County Detention Center (ECDC) in Gadsden, Alabama. The coronavirus feeds on precisely the unsafe, congregate conditions in which Plaintiffs are being held, putting them at imminent risk of contracting COVID-19. 2. The risks and consequences of COVID-19 cannot be overstated. COVID-19 has reached global pandemic status. As of April 26, 2020, more than 2,800,000 individuals worldwide have confirmed diagnoses, including almost 900,000, in the United States.1 The World Health Organization reports that more than 193,000 individuals worldwide have died as a result of COVID-19, including more than 46,000 in the United States.2 Those numbers are growing significantly every day, with more than 84,000 new cases worldwide in the past day alone.3 By the time the Court reads this complaint, there will be more diagnoses, and more deaths, with no end in sight.
1 WORLD HEALTH ORG., Coronavirus Disease 2019 (COVID-19) Situation Report – 97 (Apr. 26, 2020), https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200426-sitrep-97-covid19.pdf?sfvrsn=d1c3e800_6. 2 Id. 3 Id.
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3. As of today’s date, there were 6,429 COVID-19 cases in Alabama.4 The number of infected people is rising exponentially; 219 people in Alabama have already died from the disease.5 These data include 125 cases and eight deaths in Etowah County, Alabama.6 Immediate relief is necessary before the coronavirus ignites within ECDC. As Judge John E. Jones, III, sitting in the Middle District of Pennsylvania, said in terms equally applicable to ECDC, “it is not a matter of if COVID-19 will enter Pennsylvania prisons, but when it is finally detected therein.” Thakker v. Doll, No. 1:20-CV-00480 (M.D. Pa. Mar. 31, 2020) at 8 (emphasis in original).
4. There is no known treatment for or vaccine against COVID-19, and there is no known cure. The only known effective measures to reduce the risk of COVID-19 are to prevent infection through social distancing and vigilant hygiene. Yet “social distancing” is a meaningless term in ECDC, where detainees are in constant close contact with each other and with facility staff. Increased and vigilant hygiene is similarly unavailable under the conditions inside the detention center.
5. ECDC is under the jurisdiction and direction of the regional U.S. Immigration and Customs Enforcement (ICE) Field Office located in New Orleans, which has jurisdiction over detention facilities in Alabama, Arkansas, Louisiana, Mississippi, and Tennessee. As of April 25, 2020, ICE reports that it has 317 confirmed cases of COVID-19 among detained people nationwide, including 81 at seven different facilities within the New Orleans Field Office’s jurisdiction, and fourteen cases of COVID-19 among employees at the Alexandria Staging
4 ALABAMA DEP’T OF PUBLIC HEALTH, DIV. OF INFECTIOUS DISEASES & OUTBREAKS, COVID-19 in Alabama, https://dph1.adph.state.al.us/covid-19/ (last accessed Apr. 27, 2020). 5 Id. 6 Id.
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Facility, also within the New Orleans Field Office’s jurisdiction.7 Because ICE does not engage in regular testing, all of these numbers must be assumed to be far higher. ICE regularly transfers individuals from one of these facilities to another—including frequent transfers between ECDC and LaSalle ICE Processing Center and other Louisiana facilities as recently as last week—and continues to make such transfers and receive transfers from other parts of the United States even since the COVID-19 outbreak.8
6. Plaintiffs fear for their lives because they have medical conditions—including diabetes, hypertension, lung disease, kidney disease, and compromised immune systems—and/or advanced age that place them amongst those sectors of the population that are most vulnerable to serious injury or death should they be infected with COVID-19. And for good reason: they are trapped in a facility that can only be described as a breeding ground for the disease. Despite warnings and pleas for release from public health experts and advocates, Defendants have chosen to continue to confine Plaintiffs in close proximity, without adequate personal protective equipment or hygiene supplies; to admit and transfer individuals to ECDC without COVID-19 testing or sufficient screening; to refuse to implement cleaning and protection procedures adequate to combat COVID-19; and to resist releasing even the most medically vulnerable individuals. The conditions and treatment at ECDC have created a dangerous situation that threatens Plaintiffs’ lives, as well as the wellbeing of staff, others in the surrounding community, and the general public.
7 IMMIG. AND CUSTOMS ENFORCEMENT, ICE Guidance on COVID-19, Confirmed Cases, https://www.ice.gov/coronavirus (last accessed Apr. 25, 2020). 8 See, e.g., Yeganeh Torbati, Dara Lind & Jack Gillum, In a 10-Day Span, ICE Flew This Detainee Across the Country Nine Times, PROPUBLICA (Mar. 27, 2020), https://www.propublica.org/article/coronavirus-ice-flightsdetainee-sirous-asgari (documenting transfer of man through several facilities, including those within jurisdiction of New Orleans Field Office).
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7. Several recent federal court rulings ordering release have explained the health risks—to those who are detained, staff, and the outside community at large—created by large prison and detention populations. See, e.g., Jimenez v. Wolf, No. 18-10225-MLW (D. Mass. Mar. 26, 2020) (ordering release of detained immigrant in the midst of the COVID-19 pandemic and noting that “being in a jail enhances risk” and that in jail “social distancing is difficult or impossible”); Basank v. Decker, No. 1:20-cv-02518-AT (S.D.N.Y. Mar. 26, 2020) (ordering the release of ten people from three immigration detention facilities in New Jersey because “confining vulnerable individuals . . . without enforcement of appropriate social distancing and without specific measures to protect their delicate health ‘pose[s] an unreasonable risk of serious damage to [their] future health’”) (internal citation omitted); Thakker v. Doll, No. 1:20-cv00480-JEJ (M.D. Pa. Mar. 31, 2020) (ordering release of 13 people from three immigration detention facilities in Pennsylvania because “preventative measures” against the “grave risk” of COVID-19 cannot be practiced in “tightly confined, unhygienic spaces”); Fraihat v. Wolf, No. 2:20-CV-590-TJH (C.D. Cal. Mar. 30, 2020) (ordering release of individual from immigration detention facility because COVID-19 “can spread uncontrollably with devastating results in a crowded, closed facility”); United States v. Ramos, No. 18-CR-300009-FDS, 2020 WL 14778307, at *1 (D. Mass. Mar. 25, 2020) (stating that “it is not possible for a medically vulnerable inmate . . . to isolate himself in this institutional setting as recommended by the CDC, and guards and newly arrested individuals must enter the facility on a daily basis”); Coronel v. Decker, No. 20-cv-2472 (AJN), 2020 WL 1487274, at *3 (S.D.NY. Mar. 27, 2020) (noting that “being in immigration detention places petitioners at significantly higher risk of contracting COVID-19”); United States v. Kennedy, No. 18-20315, 2020 U.S. Dist. LEXIS 53359, at * (E.D. Mich. Mar. 27, 2020) (stating that the CDC “acknowledged that correctional detention facilities
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‘present unique challenges for control of COVID-19 transmission among incarcerated/detained persons, staff, and visitors.’”).
8. Recognizing the urgency of this situation, judges, prosecutors and governors across the country have been ordering releases to protect individuals and the public health. On March 26, 2020, Attorney General Barr issued a directive to the federal Bureau of Prisons urging reduction of the prison population through the use of home confinement.9 Likewise, on April 2, 2020, Alabama Governor Kay Ivey issued a supplement to Alabama’s State of Emergency allowing local officials to reduce county jail populations in a way that does not jeopardize public safety.10 By April 10, after multiple inmates and staff contracted COVID-19, Mobile Metro Jail had decreased its population from 1,580 to 1,100 to prevent further exposure of COVID-19 to particularly vulnerable populations. Law enforcement officials in New Orleans, Nashville, Houston, San Antonio, Charlotte, New York City, Chicago, Oakland, New Jersey, Cleveland, and numerous other jurisdictions are releasing thousands of individuals in both civil and criminal detention and incarceration because of the threat COVID-19 poses inside jails, prisons, and detention centers. On March 22 the New Jersey Supreme Court issued a consent order for the presumptive release of approximately 1,000 persons by March 26.11
9. On March 24, the Los Angeles County Sheriff’s Department in California had released approximately 1,700 persons from county jails in response to COVID-19.12 Sentencing
9 Memorandum from Attorney General William Barr to Director of Bureau of Prisons, Prioritization of Home Confinement as Appropriate in Response to COVID-19 Pandemic (Mar. 26, 2020), https://www.politico.com/f/?id=00000171-1826-d4a1-ad77-fda671420000 10 Gov. Kay Ivey, Fifth Supplemental SOE COVID-19 (Apr. 2, 2020), https://governor.alabama.gov/assets/2020/04/2020-04-02-Fifth-Supplemental-SOE_COVID-19.pdf. 11 Tracey Tulley, 1,000 Inmates Will Be Released from N.J. Jails to Curb Coronavirus Risk, N.Y. TIMES (Mar. 23, 2020), https://www.nytimes.com/2020/03/23/nyregion/coronavirus-nj-inmates-release.html.
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judges in Michigan have released over 500 people from county jails in the Detroit area, as of April 1.13 By April 13, 912 persons were released from Allegheny County jail in Pennsylvania upon approval from the district court administrator.14 In Boulder County, Colorado, the District Attorney’s office has released more than 100 persons to reduce jail populations in light of COVID-19 as of April 4.15 On April 13, almost a quarter of the persons previously in pretrial detention in Stanislaus County Jail in California were released due to concerns over COVID19.16
10. Such releases protect the people with the greatest vulnerability to serious illness and death from COVID-19. They also protect all those in custody or working in the prison, jail, or detention center, and reduce the burden on the surrounding region’s healthcare infrastructure, as they lessen the likelihood that an overwhelming number of people will become seriously ill from COVID-19 at the same time. This is particularly significant here, as Etowah County, a predominantly rural community in northeastern Alabama, has very limited healthcare infrastructure.
12 Justin Carissmo, 1,700 inmates released from Los Angeles County in response to coronavirus outbreak, CBS NEWS (Mar. 24, 2020), https://www.cbsnews.com/news/inmates-released-los-angeles-county-coronavirus-response2020-03-24/ 13 Amber Ainsworth, Hundreds of inmates released from Metro Detroit county jails amid coronavirus (COVID-19) outbreak, WDIV (NBC)/CLICKON DETRIOT (Apr. 1, 2020), https://www.clickondetroit.com/news/local/2020/04/02/hundreds-of-inmates-released-from-metro-detroit-countyjails-amid-coronavirus-covid-19-outbreak/. 14 912 inmates released from Allegheny County Jail due to coronavirus concerns, WTAE-ABC (Apr. 13, 2020), https://www.wtae.com/article/inmates-released-from-allegheny-county-jail-due-to-coronavirus-concerns/31953103. 15 Daliah Singer, In Colorado prisons and jails, a piecemeal approach to the threat of coronavirus, THE COLORADO SUN (Apr. 2, 2020), https://coloradosun.com/2020/04/04/colorado-prisons-jails-coronavirus-covid-criminal-justice/ 16 Erin Tracy, COVID-19 concerns will result in release of up to 300 Stanislaus County Jail inmates, THE MODESTO BEE (Apr. 12, 2020), https://www.modbee.com/news/local/crime/article241929456.html.
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11. By contrast, Defendants’ response to the threats this pandemic poses to the immigrants under their custody and care has been abysmal. Following public outcry, on March 17, 2020, ICE issued a statement that it would modify its enforcement efforts in apparent recognition of the need for alternatives to detention to protect public health.17
12. The next day, however, in response to a lawsuit for the release of vulnerable ICE detainees in Washington state, the agency showed a deep failure to appreciate the urgency and threat the COVID-19 pandemic presents, stating that “Plaintiffs’ assertion that detention per se poses an increased risk of health complications or death from COVID-19 is purely speculative.”18 ICE’s head-in-the-sand response to the threats of this pandemic will prove deadly to Plaintiffs and surrounding communities if it is not remedied through this Court’s intervention.
13. On March 19, 2020, two medical experts for the Department of Homeland Security’s Office of Civil Rights and Civil Liberties sent a whistleblower letter to Congress, to highlight “the need to implement immediate social distancing to reduce the likelihood of exposure to detainees, facility personnel, and the general public,” and arguing that ICE detention presents a “tinderbox scenario” and “it is essential to consider releasing all detainees who do not pose an immediate risk to public safety.”19 On multiple occasions since at least February 25, 2020, these experts had sounded the alarm within the agency about the impending risks to the health of those in immigration detention and the public at large unless swift mitigation measures, including releasing persons in immigration detention, are taken.
17 IMMIG. AND CUSTOMS ENFORCEMENT, Press Release: Updated ICE statement on COVID-19 (Mar. 18, 2020), https://www.ice.gov/news/releases/updated-ice-statement-covid-19 18 Respondents-Defendants’ Opposition at 8, Dawson v. Asher, ECF No. 28, Case No. 20-0409 (W.D. Wash. Mar. 18, 2020). 19 Letter from Scott A. Allen, MD and Josiah Rich, MD, MPH to Congressional Committee Chairpersons (Mar. 19, 2020), https://assets.documentcloud.org/documents/6816336/032020-Letter-From-Drs-Allen-Rich-to-CongressRe.pdf (emphasis in original).
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14. Inside ECDC, Defendants are not consistently adhering to the measures ICE claims it is taking. For example, Defendants are bringing new individuals into the jail (both ICE detainees and county inmates) on a weekly or even daily basis without testing or sufficient screening, and continue to transfer individuals between detention centers without such protective measures. The facility has also adopted measures—including crowding the entire ICE population of over one hundred detainees into a single housing unit within the jail, and using a “fogger” machine to spray disinfectant throughout the housing units—that are in direct contravention of public health experts’ recommendations on social distancing and proper hygiene, potentially putting Plaintiffs at even greater risk.
15. This echoes a concern of the two Department of Homeland Security (DHS) medical experts, who say that “the track record of ICE facilities implementing [early screening, testing, isolation and quarantine] protocols historically has been inconsistent.”20 Moreover, even if ICE was consistently taking these precautions, the DHS experts have explained that they will not be enough without rapidly releasing those who do not pose an immediate danger to public safety. Defendants stubbornly refuse to heed the advice of public health experts, including their own.
16. Plaintiffs are also suffering from a unconstitutional deprivation of liberty due to the excessively prolonged nature of their civil detention without review—ranging from thirteen months to nine years. Thus they are entitled to release or a constitutionally adequate bond hearing to assess the legality and necessity of their ongoing detention.
17. Plaintiffs, who are confined in civil, nonpunitive detention, are at risk of serious injury or death because of Defendants’ flawed choices and the conditions in ECDC. Defendants’ failure to follow public health guidance endangers the lives of those they have chosen to detain.
20 Id. at 5.
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The only way to effectively inhibit the spread of COVID-19 and to protect Plaintiffs and others from the risks posed by COVID-19 infection is to immediately release Plaintiffs, so that they can actually adhere to the guidance from public health experts and take the necessary steps to protect themselves and the public.
18. Defendants cannot justify continuing to subject Plaintiffs to extraordinary risk of illness and death with any legitimate government objective, particularly in light of the alternatives available to them to release Plaintiffs under appropriate conditions. The danger posed by Plaintiffs’ detention during the current outbreak of COVID-19 is “so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk” and violates their constitutional right to safety in government custody. Helling v. McKinney, 509 U.S. 25, 36 (1993) (emphasis in original). Plaintiffs bring this action to remedy grave violations of their constitutional rights that imminently threaten them with serious illness and death.
19. Unless this Court intervenes to order the release of the Plaintiffs, they, along with many other detained individuals and entire communities, will face dramatically increased chances of contracting COVID-19, becoming seriously ill, and dying.
JURISDICTION AND VENUE 20. This action arises under the Due Process Clauses of the Fifth Amendment to the United States Constitution, the federal habeas corpus statute, 28 U.S.C. § 2241, and the Rehabilitation Act, 29 U.S.C. § 701 et seq. 21. This Court has subject-matter jurisdiction pursuant to 28 U.S.C. § 2241 (habeas corpus), 28 U.S.C. § 1331 (federal question), 5 U.S.C. § 702 (waiver of sovereign immunity), 28 U.S.C. § 1346 (original jurisdiction), 28 U.S.C. § 1651 (All Writs Act), 28 U.S.C. §1361
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(Mandamus Act), and Article I, Section 9, clause 2 of the United States Constitution (the Suspension Clause).
22. Venue is proper in the Northern District of Alabama pursuant to 28 U.S.C. § 2241(d) and pursuant to 28 U.S.C. § 1391(b) and (e).
PARTIES Petitioners-Plaintiffs
23. Petitioner-Plaintiff Randane Williams is a 30-year-old native and citizen of Jamaica who is currently detained without bond by ICE at ECDC. He has been in ICE custody since February 2018. He has been subject to an administratively final order of removal since December 18, 2018. His removal is stayed pending judicial review of his removal order in the Ninth Circuit Court of Appeals. He suffers from hypertension and a heart murmur. Mr. Williams is therefore at high risk of severe illness or death if he contracts COVID-19. If released, he will reside with his cousin in Atlanta, Georgia.
24. Petitioner-Plaintiff Sarail Michael Archilla is a 44-year-old apparently stateless individual who is currently detained without bond by ICE at ECDC. He was born in Canada to parents of Jamaican descent, but it appears neither country recognizes him as their citizen. He has been in ICE custody since July 2017. He has been subject to an administratively final order of removal since approximately August 18, 2017. ICE has not been able to obtain a travel document for him from Canada, Jamaica, or any other country. Mr. Archilla suffers from hypertension and chronic asthma. He is therefore at high risk of severe illness or death if he contracts COVID-19. If released, he will reside with his girlfriend in St. Paul, Minnesota.
25. Petitioner-Plaintiff Maxime P. Blanc is a 46-year-old native and citizen of Dominica who is currently detained without bond by ICE at ECDC. He has been in ICE custody
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since June 2018. He has been subject to an administratively final order of removal since June 6, 2019. His removal is stayed pending judicial review of his removal order in the Eleventh Circuit Court of Appeals, which has appointed him pro bono counsel. Blanc v. U.S. Atty. Gen., No. 1912503 (11th Cir.). Mr. Blanc suffers from pre-diabetes, high cholesterol, and hypertension. He is therefore at high risk of severe illness or death if he contracts COVID-19. If released, he will reside with his cousin New York, New York.
26. Petitioner-Plaintiff Geovanny Gerardo Castellano is a 60-year-old native and citizen of Nicaragua who is currently detained without bond by ICE at ECDC. He has been in ICE custody since January 2016. He has been subject to an administratively final order of removal since April 1, 1988. Mr. Castellano suffers from hypertension and a heart condition. Because of his age and medical conditions, he is at high risk of severe illness or death if he contracts COVID-19. If released, he will reside with his girlfriend in Chatsworth, California.
27. Petitioner-Plaintiff Antonio Melquezideth Castro is a 38-year-old native and citizen of Belize who is currently detained without bond by ICE at ECDC. He has been in ICE custody since September 2017. He has been subject to an administratively final order of removal since December 13, 2018. On December 13, 2019, the Third Circuit Court of Appeals denied his petition for review of his removal order, but ICE has not yet executed his removal to Belize. Mr. Castro suffers from ongoing kidney disease and lung difficulties. Because of his medical conditions, he is at high risk of severe illness or death if he contracts COVID-19. If released, he will reside with his cousin in Plainfield, New Jersey or Brentwood, New York.
28. Petitioner-Plaintiff Edson Flores is a 48-year-old native and citizen of Honduras who is currently detained without bond by ICE at ECDC. He has been in ICE custody since
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2011. The Second Circuit Court of Appeals recently granted his petition for review of his removal order and remanded his case to the Board of Immigration Appeals (“BIA”). Summary Order, Flores v. Barr, No. 17-3421, ECF No. 144-1 (2d Cir. Oct. 26, 2019). He is currently awaiting the BIA’s decision. Mr. Flores suffers from hypertension, high cholesterol, and diabetes. He required hospitalization in March of 2020, but was told by ECDC staff that they could not take him because of COVID-19 risk. He is at high risk of severe illness or death if he contracts COVID-19. If released, he will reside with his mother in New York, New York.
29. Petitioner-Plaintiff Ray Fuller is a 54-year-old native and citizen of Jamaica who is currently detained without bond by ICE at ECDC. He has been in ICE custody since 2014. The Seventh Circuit Court of Appeals recently granted his petition for review of his removal order and remanded his case to the BIA. Fuller v. Whitaker, 914 F.2d 514 (7th Cir. Jan. 23, 2019). Mr. Fuller suffers from hypertension and a cardiopulmonary disease. He is therefore at high risk of severe illness or death if he contracts COVID-19. If released, he will reside at an interfaith community center in Chicago, Illinois.
30. Petitioner-Plaintiff Jose Antonio Garcia Rivera (a/k/a Domingo Castillo) is a 62-year-old21 man who is currently detained without bond by ICE at ECDC. He has been in ICE custody since 2013. Mr. Garcia suffers from asthma. Because of his medical condition and age, he is at high risk of severe illness or death if he contracts COVID-19. If released, he will reside with his partner in Scranton, Pennsylvania.
31. Petitioner-Plaintiff Karim Tahir Golding is a 35-year-old native and citizen of Jamaica who is currently detained without bond by ICE at ECDC. He has been in ICE custody
21 ICE is detaining and attempting to deport Mr. Garcia based on an allegation that his true identity is Domingo Castillo, a native and citizen of the Dominican Republic born in 1963. Mr. Garcia was in fact born in Puerto Rico in 1958. But even assuming that ICE’s allegations are correct, he would still be at high risk for severe COVID-19 based on his age and medical condition.
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since October 2016. He has been subject to an administratively final order of removal since March 5, 2018. His removal is stayed pending judicial review of his removal order in the Second Circuit Court of Appeals, which has appointed him pro bono counsel. Golding v. Barr, No. 18772 (2d. Cir.). Mr. Golding suffers from asthma. He is therefore at high risk of severe illness or death if he contracts COVID-19. If released, he will reside with his mother in Valley Stream, New York.
32. Petitioner-Plaintiff Alex Hernandez is a 49-year-old native and citizen of Honduras who is currently detained without bond by ICE at ECDC. He has been in ICE custody since October 2016. He has been subject to an administratively final order of removal since July 24, 2017. His removal is stayed pending judicial review of his removal order in the Ninth Circuit Court of Appeals, which has appointed him pro bono counsel. Hernandez v. Barr, No. 17-73332 (9th Cir.). Mr. Hernandez suffers from hypertension and other medical conditions. He is currently recovering from a recent surgery, which has left him in a weakened state and causes pain and inflammation. He is therefore at high risk of severe illness or death if he contracts COVID-19. If released, he will reside with his daughter in Los Angeles, California.
33. Petitioner-Plaintiff Bakhodir Madjitov is a 38-year-old native and citizen of Uzbekistan who is currently detained without bond by ICE at ECDC. He has been in ICE custody since December 2017. He has been subject to an administratively final order of removal since July 24, 2014. He is currently seeking judicial review in the Eleventh Circuit Court of Appeals of the BIA’s denial of his motion to reopen his removal order, but the Eleventh Circuit denied his request for a stay. Mr. Madjitov suffers from hypertension and a chronic heart condition that causes his heart to beat abnormally slow. He is therefore at high risk of severe
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illness or death if he contracts COVID-19. If released, he will reside with his wife and children in Connecticut.
34. Petitioner-Plaintiff Kenneth Manning is a 61-year-old native and citizen of Jamaica who is currently detained without bond by ICE at ECDC. He has been in ICE custody since August 2016. The Second Circuit Court of Appeals recently granted his petition for review of his removal order and remanded his case to the BIA. Manning v. Barr, 954 F.3d 477 (2d Cir. Mar. 31, 2020). Mr. Manning suffers from prostate cancer and a chronic heart condition. Because of his medical conditions and age, he is at high risk of severe illness or death if he contracts COVID-19. If released, he will reside with his daughter in Maryland.
35. Petitioner-Plaintiff Landry (Emily) Mbendeke is a 40-year-old native and citizen of Cameroon who is currently detained without bond by ICE at ECDC. Ms. Mbendeke is a transgender female who was assigned male at birth. She has been in ICE custody since November 2017. She has been subject to an administratively final order of removal since May 20, 2019. Her removal is stayed pending judicial review of her removal order in the Second Circuit Court of Appeals, where she is represented by retained pro bono counsel. Mbendeke v. Barr, No. 19-1766 (2d Cir.). Ms. Mbendeke suffers from hypertension and xxxxxxxxxxxxx. She is therefore at high risk of severe illness or death if she contracts COVID-19, and an outbreak in ECDC would also severely compromise the monitoring and routine care she requires to keep her condition under control. She has a place to live if released.
36. Petitioner-Plaintiff Tesfa Miller is a 38-year-old native and citizen of St. Vincent and the Grenadines who is currently detained without bond by ICE at ECDC. He has been in ICE custody since April 2018. The Eleventh Circuit Court of Appeals recently vacated the BIA’s order in his removal case and remanded his case to the BIA on the government’s motion. See
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Order, Miller v. Barr, No. 19-13738 (11th Cir. Dec. 23, 2019). He is currently awaiting a decision from the BIA. He also has a pending U Visa application based on his status as a victim of attempted murder and his cooperation with law enforcement in the investigation of the crime. Mr. Miller suffers from hypertension, high cholesterol and chronic bronchitis. He is therefore at high risk of severe illness or death if he contracts COVID-19. If released, he will reside with his mother in Riverdale, Georgia.
37. Petitioner-Plaintiff Allen Roger Olano Esparza is a 37-year-old native and citizen of Peru who is currently detained without bond by ICE at ECDC. He has been in ICE custody since December 2016. He has been subject to an administratively final order of removal since September 14, 2018. His removal is stayed pending judicial review of his removal order in the Ninth Circuit Court of Appeals. Olano-Esparza v. Barr, No. 18-72758 (9th Cir.). The Ninth Circuit has held his case in abeyance pending the resolution of another case presenting a similar issue, Menendez v. Whitaker, No. 14-72730 (9th Cir.). See id., ECF No. 10 (Feb. 13, 2019). The Ninth Circuit has since granted the petition for review in Menendez and remanded to the BIA; the government is seeking rehearing. Mr. Olano suffers from hypertension, kidney disease, and an irregular thyroid. Because of his medical conditions, he is at high risk of severe illness or death if he contracts COVID-19. If released, he will reside with his family friend in Escondido, California.
38. Petitioner-Plaintiff Sergio Quito is a 45-year-old native and citizen of Ecuador who is currently detained without bond by ICE at ECDC. He has been in ICE custody since June 2016. He has been subject to an administratively final order of removal since March 19, 2018. The Second Circuit Court of Appeals denied his petition for review of his removal order on January 15, 2020, but ICE has not yet executed his removal to Ecuador. Mr. Quito suffers from
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hypertension and epilepsy. He has had five seizures at ECDC. He is therefore at high risk of severe illness or death if he contracts COVID-19. If released, he will reside with his wife and daughter in New York, New York.
39. Petitioner-Plaintiff Joseph Debonnaire Soho is a 46-year-old native and citizen of Ivory Coast who is currently detained without bond by ICE at ECDC. He has been in ICE custody since March 2019. He has been subject to an administratively final order of removal since August 1, 2019. Despite being subject to a final and executable order of removal, ICE has not been able to obtain a travel document for Mr. Soho and execute his removal to either Ivory Coast or, alternatively, Cameroon, where his father was born. Mr. Soho suffers from hypertension and anemia. He is therefore at high risk of severe illness or death if he contracts COVID-19. If released, he will reside with his wife and children in Atlanta, Georgia.
40. Petitioner-Plaintiff Churvin Webster is a 57-year-old native and citizen of Anguilla who is currently detained without bond by ICE at ECDC. He has been in ICE custody since October 2017. He has been subject to an administratively final order of removal since May 17, 2019. His removal is stayed pending judicial review of his removal order in the Third Circuit Court of Appeals. Webster v. U.S. Atty. Gen., No. 19-2256 (3d Cir.). The Third Circuit held his case in abeyance pending the disposition of another case presenting a similar issue, Rosa v. Att’y Gen., No. 18-1765 (3d Cir.). The Third Circuit recently issued a precedential opinion granting the petition for review in Rosa, see id., Opinion & Judgment (3d Cir. Jan. 29, 2020); the government is seeking rehearing. Mr. Webster suffers from hypertension and asthma. Mr. Webster is therefore at high risk of severe illness or death if he contracts COVID-19. If released, he will reside with his girlfriend in New Brunswick, New Jersey.
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Respondents-Defendants 41. Respondent-Defendant Dianne Witte is the Interim ICE New Orleans Field Office
Director for Enforcement and Removal Operations. The New Orleans Field Office has jurisdiction over Alabama, Arkansas, Mississippi, Louisiana and Tennessee. This office is responsible for carrying out ICE’s immigration detention operations in ECDC, where Plaintiffs are currently detained. Defendant Witte is a legal custodian of Plaintiffs. She is sued in her official capacity.
42. Respondent-Defendant Matthew T. Albence is the Deputy Director and Senior Official Performing the Duties of the Director of ICE. Defendant Albence is responsible for ICE’s policies, practices, and procedures, including those relating to the detention of immigrants. Defendant Albence is a legal custodian of Plaintiffs. He is sued in his official capacity.
43. Respondent-Defendant ICE is a federal law enforcement agency within the Department of Homeland Security. ICE is responsible for the criminal and civil enforcement of immigration laws, including the detention and removal of immigrants. Enforcement and Removal Operations (“ERO”), a division of ICE, manages and oversees the immigration detention system. Defendant ICE is a legal custodian of Plaintiffs.
44. Respondent-Defendant Jonathan Horton is the Sheriff of Etowah County, Alabama. As Sheriff, he is responsible for overseeing the administration and management of the Etowah County Detention Center, where Plaintiffs are detained. Respondent-Defendant Horton is a legal custodian of Plaintiffs. He is sued in his official capacity.
45. Respondent-Defendant Keith Peek is the Chief Deputy of Corrections for the Etowah County Sheriff’s Office. He is responsible for overseeing the administration and
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management of the Etowah County Detention Center, where Plaintiffs are detained. RespondentDefendant Peek is a legal custodian of Plaintiffs. He is sued in his official capacity.
FACTUAL BACKGROUND A. COVID-19 Is an Unprecedented and Lethal Global Pandemic. 46. COVID-19 is a disease caused by a novel coronavirus that has reached global pandemic status. As of April 26, 2020, more than 2,800,000 individuals worldwide have confirmed diagnoses, including almost 900,000, in the United States.22 More than 193,000 individuals worldwide have died as a result of COVID-19, including more than 46,000 in the United States.23 Those numbers are growing significantly every day, with more than 84,000 new cases worldwide in the past day alone.24 47. Nationally, the Centers for Disease Control and Prevention (CDC) projections indicate that over 200 million individuals in the United States could be infected with COVID-19 over the course of the epidemic without effective public health intervention, with as many as 1.7 million deaths in the worst projections.25 48. President Trump has projected, optimistically, that the United States will experience up to 200,000 coronavirus-related deaths.26
22 WORLD HEALTH ORG., COVID-19 Situation Report – 97, supra n.1 23 Id. 24 Id. 25 See James Glanz, et al., Coronavirus Could Overwhelm U.S. without Urgent Action, Estimates Say, N.Y. TIMES (Mar. 20, 2020), https://www.nytimes.com/interactive/2020/03/20/us/coronavirus-model-us-outbreak.html; Sheri Fink, Worst-Case Estimates for U.S. Coronavirus Deaths, N.Y. TIMES (Mar. 13, 2020), https://www.nytimes.com/2020/03/13/us/coronavirus-deaths-estimate.html. 26 See Rebecca Ballhause et al., White House Extends Social-Distancing Guidelines Until End of April, WALL STREET JOURNAL (Mar. 30, 2020), https://www.wsj.com/articles/coronavirus-deaths-top-30-000-as-china-opens-upprovince-where-it-began-11585466594?mod=hp_lead_pos1 (“So, if we can hold that down, as we’re saying to 100,000—it’s a horrible number—maybe even less, but to 100,000 — so we have between 100,000 to 200,000 — we all together have done a very good job,” the president said.”).
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49. COVID-19 is a highly contagious disease that is easily transmitted through respiratory droplets, especially when one is within six feet of an infected individual. Due to this, President Trump issued guidelines recommending that all individuals “avoid nonessential travel, going to work, eating at bars and restaurants, or gathering in groups of more than 10” at least until April 30, 2020 and perhaps until June.27 Its symptoms include fever, cough, shortness of breath, chills, muscle pain, headache, and sore throat.28
50. People can also spread COVID-19 but be asymptomatic or pre-symptomatic,29 making testing or seclusion of only those who are symptomatic an ineffective solution.
51. COVID-19 can result in respiratory failure, kidney failure, and death. Infected individuals who do not die from the disease can face serious damage to the lungs, heart, liver, or other organs, resulting in prolonged recovery periods, including extensive rehabilitation from neurological damage and loss of respiratory capacity.
52. COVID-19 can also severely damage lung tissue, affect cardiac functions, and cause widespread damage to other organs. These complications can manifest at an alarming pace. Patients can show the first symptoms of infection in as little as two days after exposure, and their condition can seriously deteriorate in as little as five days or sooner.
53. Younger and healthy individuals who contract COVID-19 may require supportive care. And those who develop serious complications will need advanced support, including highly specialized equipment that is in very limited supply, and an entire team of care providers giving
27 Michael D. Shear, Trump Extends Social Distancing Guidelines Through End of April, N.Y. TIMES (Mar. 29, 2020), https://www.nytimes.com/2020/03/29/us/politics/trump-coronavirus-guidelines.html. 28 CENTERS FOR DISEASE CONTROL AND PREVENTION, Coronavirus Disease 2019 (COVID-19), https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html (last accessed Apr. 24, 2020) 29 A study in Iceland, where COVID-19 testing is widespread, found that about half those who tested positive have no symptoms. Jason Gale, Coronavirus Cases Without Symptoms Spur Call for Wider Tests, BLOOMBERG (Mar. 22, 2020), https://www.bloomberg.com/news/articles/2020-03-22/one-third-of-coronavirus-cases-may-show-nosymptom-scmp-reports.
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24-hour care, including 1:1 or 1:2 nurse to patient ratios, respiratory therapists, and intensive care physicians. This level of support is especially difficult to provide to detained individuals, particularly at unsafe and under-resourced ICE detention facilities like ECDC.
54. There is no vaccine against COVID-19, nor is there any known medication to prevent or cure infection from the virus.
55. The only known effective measure to reduce the risk of severe illness or death to vulnerable individuals is to prevent them from being infected with the coronavirus. Social distancing, or remaining physically separated from known or potentially infected individuals, and vigilant hygiene, including frequently washing hands with soap and water and disinfecting commonly touched areas, are the only known effective measures to prevent infection. In addition, those who are symptomatic, or who have come into contact with those who have tested positive for the virus, are advised to self-quarantine, removing themselves entirely from physical contact with others to as to prevent spread of the virus for a period of up to fourteen days.
56. None of these practices are possible in detention facilities like ECDC, where large numbers of people are housed in close quarters in congregate settings, with minimal access to sinks, showers, toilets, water, personal hygiene and facility cleaning supplies.
B. COVID-19 is Exceedingly Dangerous for Individuals Like Plaintiffs, Who Have Underlying Health Conditions.
57. Older individuals and those with certain medical conditions face dramatically higher chances of serious illness or death from COVID-19.30 Certain underlying medical conditions increase the risk of serious COVID-19 disease for individuals of any age, including
30 CENTERS FOR DISEASE CONTROL AND PREVENTION, Coronavirus Disease 2019 (COVID-19): People Who Are at Higher Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-athigher-risk.html (last accessed Apr. 26, 2020).
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moderate to severe asthma, chronic lung disease, hypertension and other serious heart conditions, diabetes, severe obesity, chronic liver or kidney disease, and compromised immune systems.31
58. Individuals detained in immigration detention are also more susceptible to experiencing complications from infectious diseases than the population at large. This is especially true for individuals with underlying medical conditions. Moreover, correctional health experts agree that the CDC’s risk factor for age should be lowered from 65 for the general population to 55 years of age for incarcerated individuals, and a recent study in The Lancet suggests that the risk associated with advanced age for the general population may start at 50 years old.32
59. Plaintiffs in this case are individuals who are particularly vulnerable to serious illness or death if infected by COVID-19 and who are currently detained in ICE custody in ECDC:
60. Randane Williams is a 30-year-old man who is currently detained by ICE at ECDC. He suffers from hypertension and a heart murmur. He is therefore at high risk of severe illness or death if he contracts COVID-19. Mr. Williams’ medical condition qualifies as a disability under the Rehabilitation Act.
61. Sarail Michael Archilla is a 44-year-old man who suffers from hypertension and chronic asthma. His asthma combined with the conditions in ECDC has caused him to cough up blood and brown fluid. He therefore at high risk of severe illness or death if he contracts
31 CENTERS FOR DISEASE CONTROL AND PREVENTION, Coronavirus Disease 2019 (COVID-19): Groups at Higher Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higherrisk.html (last accessed Apr. 26, 2020). 32 See Williams, Brie A. et al., Aging in Correctional Custody: Setting a Policy Agenda for Older Prisoner Health Care. AM. J. PUB. HEALTH (2012), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3464842/; Verity, Robert et al., Estimates of the severity of coronavirus disease 2019: a model-based analysis. THE LANCET – INFECTION DISEASES (Mar. 30, 2020). https://doi.org/10.1016/S1473-3099(20)30243-7.
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COVID-19. Mr. Archilla’s medical conditions qualify as a disability under the Rehabilitation Act.
62. Maxime Blanc is a 46-year-old man who suffers from pre-diabetes, high cholesterol, and asthma. He is therefore at high risk of severe illness or death if he contracts COVID-19. Mr. Blanc’s medical conditions qualify as a disability under the Rehabilitation Act.
63. Geovanny Gerardo Castellano is a 60-year-old man who suffers from hypertension and heart disease. He is therefore at high risk of severe illness or death if he contracts COVID-19. Mr. Castellano’s medical conditions qualify as a disability under the Rehabilitation Act.
64. Antonio Melquezideth Castro is a 38-year-old man who suffers from ongoing kidney issues and lung problems. He is therefore at high risk of severe illness or death if he contracts COVID-19. Mr. Castro’s medical conditions qualify as a disability under the Rehabilitation Act.
65. Edson Flores is a 48-year-old man who suffers from hypertension, high cholesterol, and diabetes. He is therefore at high risk of severe illness or death if he contracts COVID-19. Mr. Flores’s medical conditions qualify as a disability under the Rehabilitation Act
66. Ray Fuller is a 54-year-old man who suffers from hypertension and a cardiopulmonary disease. He is therefore at high risk of severe illness or death if he contracts COVID-19. Mr. Fuller’s medical conditions qualify as a disability under the Rehabilitation Act.
67. Jose Antonio Garcia Rivera is a 62-year-old33 man who suffers from asthma. He is therefore at high risk of severe illness or death if he contracts COVID-19. Mr. Garcia Rivera’s medical conditions qualify as a disability under the Rehabilitation Act.
33 Although ICE alleges that Mr. Garcia Rivera is 56 years old, see supra n.21, even assuming this is correct, his age and medical condition still place him at heightened risk of severe illness or death from COVID-19.
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68. Karim Tahir Golding is a 35-year-old man who suffers from asthma. He is therefore at high risk of severe illness or death if he contracts COVID-19. Mr. Golding’s medical condition qualifies as a disability under the Rehabilitation Act.
69. Alex Hernandez is a 49-year-old man who suffers from hypertension and Barrett’s esophagus, a condition that puts him at higher risk for cancer. He is therefore at high risk of severe illness or death if he contracts COVID-19. Mr. Hernandez’s medical conditions qualify as a disability under the Rehabilitation Act.
70. Bakhodir Madjitov is a 38-year-old man who suffers from a chronic heart condition that causes his heart to beat abnormally slow. As a result, he suffers from dizziness and shortness of breath. He is therefore at high risk of severe illness or death if he contracts COVID19. Mr. Madjitov’s medical condition qualifies as a disability under the Rehabilitation Act.
71. Kenneth Manning is a 61-year-old man who suffers from prostate cancer and a chronic heart condition. He is therefore at high risk of severe illness or death if he contracts COVID-19. Mr. Manning’s medical conditions qualify as a disability under the Rehabilitation Act.
72. Landry (Emily) Mbendeke is a 40-year-old transgender woman who suffers from hypertension and is HIV-positive. She is therefore at high risk of severe illness or death from COVID-19. Ms. Mbendeke’s medical condition qualifies as a disability under the Rehabilitation Act.
73. Tesfa Miller is a 38-year-old man who suffers from hypertension, high cholesterol and chronic bronchitis. Mr. Miller is therefore at high risk of severe illness or death if he contracts COVID-19. Mr. Miller’s medical condition qualifies as a disability under the Rehabilitation Act.
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74. Allen Roger Olano Esparza is a 37-year-old man who suffers from hypertension, kidney disease, and an irregular thyroid. He is therefore at high risk of severe illness or death if he contracts COVID-19. Mr. Olano’s medical conditions qualify as a disability under the Rehabilitation Act.
75. Joseph Debonnaire Soho is a 46-year-old man who suffers from hypertension and anemia. He is therefore at high risk of severe illness or death if he contracts COVID-19. Mr. Soho’s medical conditions qualify as a disability under the Rehabilitation Act.
76. Sergio Quito is a 45-year-old man who suffers from hypertension, a seizure disorder, and stomach ulcers. He is therefore at high risk of severe illness or death if he contracts COVID-19. Mr. Quito’s medical conditions qualify as a disability under the Rehabilitation Act.
77. Churvin Webster is a 57-year-old man who suffers from hypertension and asthma. He is therefore at high risk of severe illness or death if he contracts COVID-19. Mr. Webster’s medical conditions qualify as a disability under the Rehabilitation Act.
C. Etowah County Detention Center Does Not and Cannot Meet Public Health Standards to Prevent Widespread Infections Inside the Facility.
78. Alabama is experiencing a coronavirus outbreak and public officials have put in place a number of significant restrictions on public gatherings, including by closing down schools, bars, restaurants, and other public places, limiting the size of public gatherings, and issuing a state-wide ‘shelter in place’ order requiring residents to remain in their homes.34
34 Cheryl Austin, Opinion: The problems with COVID-19 testing. (And it’s not what you think)., AL.COM (Apr. 16, 2020), https://www.al.com/opinion/2020/04/the-problems-with-covid-19-testing-and-its-not-what-you-think.html; Amy Yurkanin, Nursing homes seek alternatives as mask shortage hits Alabama, AL.COM (Apr. 15, 2020), https://www.al.com/news/2020/04/nursing-homes-seek-alternatives-as-mask-shortage-hits-alabama.html; Jack Helean, Alabama Governor issues statewide stay-at-home order, ABC 3340 (Apr. 3, 2020), https://abc3340.com/news/coronavirus/alabama-governor-orders-a-statewide-shelter-in-place
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79. As of today’s date, there are 6,429 COVID-19 cases in Alabama.35 The number of infected people is rising exponentially: 219 people in Alabama have died from the disease.36 These data include 125 cases and eight deaths in Etowah County, Alabama.37 There is an immediate and impending threat that the coronavirus will spread uncontrollably in ECDC.
80. Conditions in ECDC make rapid spread of COVID-19 very likely. Individuals detained in ECDC are housed in close quarters, often in cells with two to four occupants where beds spaced well under the distance of six feet apart that the CDC recommends to maintain social distancing.
81. Since the onset of the COVID-19 pandemic, conditions in ECDC have worsened as jail officials have consolidated two separate units of immigrant detainees into a single unit, Unit 9. This consolidation places more than a hundred people in close proximity to one another, in a small space that is now even more crowded. This runs directly contrary to CDC guidance recommending social distancing and reducing contact with others.
82. Detained individuals in ECDC use common spaces together, sharing dining tables, recreation areas, telephones, and bathrooms. The hallways and walkways along the unit tiers are tight, and detainees and facility staff are constantly in very close proximity to each other. Shared toilets, sinks, and showers are not sanitized or disinfected after each use. Staff arrive and leave on a shift basis, and even asymptomatic staff could carry the infection into the facility. Many correctional officers do not consistently wear masks or gloves, and detained
35 ALABAMA DEP’T OF PUBLIC HEALTH, COVID-19 in Alabama, supra n. 4 36 Id. 37 Id.
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individuals at ECDC were only provided with masks very recently, and were only provided with one each, which they must reuse.
83. In ECDC, detained individuals are often responsible for cleaning their own units without proper protective equipment and with limited cleaning supplies.
84. Additionally, frequent hand-washing is difficult at best given minimal access to soap. There may be signs instructing people to wash hands, but there is no effort to educate detained people about frequency or method, or provide them with adequate supplies to do so.
85. Because of these conditions, outbreaks of infectious diseases are extremely common in confined detention centers such as ECDC and have resulted in the hospitalization or death of some individuals. Detained persons like Plaintiffs face inherent challenges to protect themselves from COVID-19 infection because they live, sleep, eat, and use the bathroom in close proximity with others, and because “[b]ehind bars, some of the most basic disease prevention measures are against the rules or simply impossible.”38 Individuals who are detained cannot protect themselves by social distancing and vigilant hygiene as they could in the community. Congregate settings such as these detention centers allow for rapid spread of infectious diseases that are transmitted person to person, especially those that—like COVID-19—are transmitted by droplets through coughing and sneezing. Recent data suggest that COVID-19 may also be spread through aerosolized fecal matter that is discharged and remains in the air for several hours after a toilet is flushed, especially when the toilet has no lid.
38 Keri Blakinger & Beth Schwartzapfel, When Purell is Contraband, How Do You Contain Coronavirus?, THE MARSHALL PROJECT (Mar. 6, 2020), https://www.themarshallproject.org/2020/03/06/when-purell-is-contrabandhow-do-you-contain-coronavirus (describing, for example, limited access to hand sanitizer and other precautionary measures).
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86. Therefore, a coronavirus brought into a detention facility will quickly spread among the dense group of detained individuals, including individuals, like Plaintiffs, who are at high risk of severe illness or death from COVID-19.
87. It is particularly significant and dangerous that ECDC has continued to allow large numbers of detained people to enter and leave the facility, exposing hundreds within the detention center to close contact with potential new carriers. ICE has continued to transfer people into ECDC, as recently as last week, even after the CDC recommended against such transfer.
88. In addition to ICE’s use of ECDC to detain people, Etowah County also uses the facility as its county jail. The county has continued to book well over one hundred new people into the jail since the national emergency was declared in March. Although those detained by Etowah County and those detained by ICE are in separate units, staff and contractors move between units, and individuals detained in the county jail who have cleaning, commissary, meal delivery and other jobs leave their units and in some cases enter into the ICE units. This creates a dangerous path of transmission from the Etowah County community to ECDC and from unit to unit within ECDC – and then back out to the community, when staff and contractors return home and when individuals are released from the county jail.
89. Given the shortage of COVID-19 tests in the United States, generally, Etowah cannot currently conduct aggressive, widespread testing to identify and track all COVID-19 cases. Alabama currently experiences problems with both testing shortages and inaccuracies.39 Therefore, ECDC is not consistently and adequately testing detained individuals and staff for new, asymptomatic infection.
90. In the absence of adequate testing, there is no way to be certain that COVID-19 is not already present in ECDC. And given the rapid spread of COVID-19 throughout Alabama,
39 Cheryl Austin, The problems with Covid19 testing (And it’s not what you think.), supra n.34
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and daily entry of staff and guards from the community, and the continued influx and transfer of new people into detention facilities on a weekly or even daily basis, it is only a short matter of time before the disease becomes widespread among people detained in close, unsanitary conditions.
91. Moreover, ECDC is also ill-equipped to manage an infectious disease outbreak. ECDC does not have 24-hour medical care with on-site physicians and it has very limited on-site medical facilities. Further, the medical systems in the communities surrounding ECDC are minimal, significantly reducing the capacity to provide emergency and intensive medical care.
92. Putting infected individuals in solitary confinement is an ineffective way to prevent transmission of the disease because air continues to flow outwards from those rooms to the rest of the facility. This makes containing the illness and caring for those who have become infected virtually impossible.
93. The coronavirus has already started to spread inside other prisons and jails throughout the U.S., and experts predict a mass contagion is only a matter of time.40 For example, on March 20, 2020, New York City officials had confirmed just one case at their jail facilities. The next day, they confirmed 19. Two days later, there were 38.41 By March 25, 2020, Rikers Island alone had 52 confirmed cases. As of April 8, 2020, it had over 165 confirmed cases amongst those who are incarcerated, and there are roughly 288 confirmed cases among jailed people, 488 among the correctional staff, and 78 among the jail’s health care workers. As of April 21, 2020, there are at least 365 cases of COVID-19 among detained individuals at Rikers
40 See Hannah Summers, ‘Everyone Will Be Contaminated’: Prisons Face Strict Coronavirus Controls, THE GUARDIAN (Mar. 23, 2020), https://www.theguardian.com/global-development/2020/mar/23/everyone-will-becontaminated-prisons-face-strict-coronavirus-controls. 41 A.P., Coronavirus: 38 Test Positive in New York City Jails, Including Rikers Island, THE GUARDIAN (Mar. 22, 2020), https://www.theguardian.com/us-news/2020/mar/22/coronavirus-outbreak-new-york-city-jails-rikers-island.
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Island.42 Those numbers continue to climb, with hundreds of corrections staff and medical workers now testing positive.43 Three staff members have tested positive at the federal Bureau of Prisons (BOP) facility in Talladega, Alabama,44 and two inmates and two staff have tested positive in the Aliceville BOP facility.45 Seven inmates have died after a widespread outbreak of COVID-19 in the federal prison in Oakdale, Louisiana.46 Ten incarcerated people and nine officers in the Mobile Metro Jail have confirmed cases.47 Alabama state officials anticipate widespread infection and deaths in facilities throughout the state and have ordered hundreds of body bags.48
94. Similarly, at ICE facilities across the nation, COVID-19 is spreading alarmingly fast. As of April 25, 2020, ICE has confirmed 317 cases of COVID-19 among detained people and 35 cases of COVID-19 among ICE employees at detention centers.49 These numbers are certain to be undercounts, given that ICE has tested only a few hundred detained people for COVID-19 and that it does not report confirmed cases among employees of private contractors
42 Alleen Brown, Inside Rikers: An Account of the Virus-Stricken Jail from a Man who Managed to Get Out, THE INTERCEPT (Apr. 21, 2020), https://theintercept.com/2020/04/21/coronavirus-rikers-island-jail-nyc/. 43 See N.Y. DEP’T OF CORR. AND COMMUNITY SUPERVISION, DOCCS COVID-19 Report, https://doccs.ny.gov/doccs-covid-19-report (last accessed Apr. 26, 2020) 44 Chris Norwood, UPDATED: 3rd staff member at Talladega federal prison tests positive for COVID-19, ANNISTON STAR (Apr. 3, 2020), https://www.annistonstar.com/the_daily_home/free/updated-3rd-staff-member-attalladega-federal-prison-tests-positive-for-covid-19/article_356d93da-745c-11ea-a49d-c74156372b96.html. 45 FED. BUREAU OF PRISONS, COVID-19 Cases, https://www.bop.gov/coronavirus/ (last accessed Apr. 26, 2020). 46 Id. 47 Mike Cason, Mobile County sheriff says 10 jail inmates have COVID-19, AL.COM (Apr. 15, 2020), https://www.al.com/news/2020/04/mobile-county-sheriff-says-10-jail-inmates-have-covid-19.html 48 Connor Sheets, Alabama had a ventilator and PPE stockpile, but it was depleted before COVID-19 hit, AL.COM (Apr. 8, 2020), https://www.al.com/news/2020/04/alabama-had-a-ventilator-and-ppe-stockpile-but-it-was-depletedbefore-covid-19-hit.html. 49 ICE Guidance on Covid-19, Confirmed Cases, supra n.7
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and local government employees, who operate the majority of ICE’s detention facilities. Because of ICE’s refusal to halt transfers, it is only a matter of time before the spread reaches ECDC, if it has not already.
95. Despite these widespread warnings, ECDC—like ICE facilities across the country—remains woefully unprepared and incapable of taking necessary precautions to protect people in its custody against a life-threatening illness.
D. ICE’s Response to COVID-19 Is Insufficient to Prevent the Spread of This LifeThreatening Disease and Is Contrary to the CDC Infectious Disease Guidance ICE is Required to Follow.
96. On or about March 23, 2020, the CDC issued guidance for detention facilities “including…federal and state prisons, local jails, and detention centers.”50
97. The CDC guidance states that “[i]ncarcerated/detained persons live, work, eat, study, and recreate within congregate environments, heightening the potential for COVID-19 to spread once introduced” and warns that “[t]here are many opportunities for COVID-19 to be introduced into a correctional or detention facility, including daily staff ingress and egress… and incarcerated/detained persons may have medical conditions that increase their risk of severe disease from COVID-19.”51
98. Further, the CDC guidance mandates that detention facilities “[e]nsure that sufficient stocks of hygiene supplies, cleaning supplies, PPE, and medical supplies… are on hand and available… provide a no-cost supply of soap to incarcerated/detained persons, sufficient to
50 CENTERS FOR DISEASE CONTROL AND PREVENTION, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (Mar. 2020), https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html. 51 Id.
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allow frequent hand washing…” and emphasizes the need for social distancing as a mechanism for preventing the transmission of COVID-19.52
99. The CDC has also warned that individuals who are 65 and older or who have an array of underlying conditions, including individuals with asthma, blood disorders, heart disease, lung conditions, and those with compromised immune systems, are at a higher risk of developing serious complications if they were to contract COVID-19.53 Correctional health experts agree that the age threshold should be lowered to at least 55 for incarcerated individuals, and a recent study in The Lancet suggests that the risk associated with advanced age for the general population may start at 50 years old.54
100. ICE issued an “Interim Reference Sheet on 2019-Novel Coronavirus (COVID19)” and has established a webpage entitled “ICE Guidance on COVID-19.” On April 10, 2020, ICE’s Enforcement and Removal Office (ERO) issued a “COVID-19 Pandemic Response Requirements” outlining recommendations for detention facilities.55 These documents (collectively the “ICE Protocols”) will not protect Plaintiffs. The protocols also do not address imminent shortages of medical supplies and staffing or education of detained people and staff about the virus, amongst other critical issues. Nor do they implement the CDC’s guidelines for the management of the novel coronavirus in correctional and detention settings.
52 Id. 53 CENTERS FOR DISEASE CONTROL AND PREVENTION, Coronavirus Disease 2019 (COVID-19): People who are at higher risk for severe illness (Mar. 26, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/people-at-higherrisk.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fspecificgroups%2Fpeople-at-higher-risk.html. 54 See supra n.32. 55 IMMIG. AND CUSTOMS ENFORCEMENT, ENFORCEMENT AND REMOVAL OPERATIONS, COVID-19 Pandemic Response Requirements (Apr. 10, 2020), https://www.ice.gov/doclib/coronavirus/eroCOVID19responseReqsCleanFacilities.pdf.
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101. For example, ERO’s Pandemic Response Requirements urge that facilities “adhere to CDC recommendations for cleaning and disinfection during the COVID-19 response.”56 But the CDC guidelines for correctional and detention facilities urge that “that “staff and incarcerated/detained people performing cleaning wear PPE.”57 Cleaning staff, typically detained people themselves, are not provided with personal protective equipment (“PPE”) for cleaning at ECDC. ERO further states that “social distancing may not be possible in congregate settings such as detention facilities,” and instead, it recommends a number of alternative measures including directing detained people to “avoid congregating in groups of 10 or more, employing social distancing strategies at all times.”58 This is not possible at ECDC.
102. The ICE Protocols do not even offer an effective way to determine who has the virus. Since some COVID-19 carriers can be asymptomatic or not show symptoms for weeks after exposure, “screening people based on observable symptoms is just a game of catch up.” In re. Extradition of Alejandro Toledo Manrique, No. 19-mj-71055, 2020 WL 1307109 (N.D. Cal. March 19, 2020) (ordering release on bond in part because the government’s management plan did not “say anything about testing”).
103. ICE has temporarily suspended social visitation in all detention facilities. But staff, contractors, and vendors continue to arrive and leave the detention centers. In addition, people are frequently transported to, from, and between facilities.
104. Anything short of aggressive screening and testing of all detained individuals, staff, officials and other care and service providers who enter the facility is insufficient to
56 Id. at 9. 57 CDC, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, supra n.50. 58 ERO Pandemic Response Requirements, supra n.55 at 13.
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prevent infection. Neither ICE nor ECDC has the resources necessary to engage in such measures, especially considering the shortage in available tests. Further, some of the available tests have a high rate of false negatives,59 making social distancing imperative even if ICE engages in more widespread testing.
105. The only measure ICE has committed to taking is to segregate those who meet CDC criteria for epidemiologic risk of exposure to the novel coronavirus. Even assuming adequate space, isolation of people who are ill is generally an ineffective way to prevent transmission of COVID-19 because air continues to flow outward from rooms to the rest of the facility and because asymptomatic people also transmit the disease. ICE’s guidance relies heavily upon the practice of “cohorting,” or grouping together, suspected cases. This practice will all but assure that the virus is spread from COVID-19 carriers to non-carriers in that unit and then throughout ECDC.
106. Further, there is substantial evidence that ICE’s COVID-19 protocols are not being followed in detention centers throughout the country, including in ECDC, and that ICE is otherwise failing to provide an adequate response—which has historically been the case—thus exacerbating the risk of harm to Plaintiffs.
107. ICE has failed to follow the CDC guidelines designed to prevent the spread of COVID-19 in ECDC. There, over 100 detained individuals share one unit. They share dining tables, telephones, microwaves, and bathrooms, with no way to disinfect between uses. Soap is in short supply, and ICE has moved multiple new people into the immigration unit in the past several weeks, not to mention the many more individuals who are moved in and out of the county jail population.
59 Rob Stein, Study Raises Questions About False Negatives from Quick COVID-19 Test, NATIONAL PUBLIC RADIO (Apr. 21, 2020), https://www.npr.org/sections/health-shots/2020/04/21/838794281/study-raises-questions-aboutfalse-negatives-from-quick-covid-19-test.
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108. In ECDC, ICE has large numbers of people sleeping only a few feet apart; has failed to provide enough cleaning materials or frequency of cleaning to prevent spread of illness from surfaces; has not provided detained people with adequate soap or hygiene facilities for hand-washing crucial to prevent the spread of COVID-19; has failed to educate Plaintiffs as to proper COVID-19 safety precautions; has not provided sufficient masks, gloves or protective gear for detained people or most staff; and has booked dozens of new people into ICE and county custody in the jail since the CDC recommended against transfers on March 23, 2020.
109. Importantly, the COVID-19 pandemic—and ICE’s unreasonable response to it— will significantly strain ICE’s already broken medical care system. Long before the COVID-19 outbreak, numerous public reports, including by DHS itself, have identified serious and substantial flaws in ICE’s medical care system. For example, a 2017 DHS Office of Inspector General (OIG) report that assessed care at certain ICE facilities identified “lack of cleanliness and limited hygienic supplies” as well as “long waits for the provision of medical care.”60 Other reports echo these alarming findings about substandard medical care in ICE facilities.61 Even compared with the general substandard medical care in ICE facilities, numerous reports going back nearly a decade document how ECDC has long stood out as providing particularly poor medical care.62
60 DHS OFFICE OF THE INSPECTOR GENERAL, Concerns About ICE Detainee Treatment and Care at Detention Facilities, OIG-18-32 at 7 (Dec. 11, 2017), https://www.oig.dhs.gov/sites/default/files/assets/2017-12/OIG-18-32Dec17.pdf. 61 See, e.g., U.S. GOV’T ACCOUNTABILITY OFF., GAO-16-23: Immigration Detention: Additional Actions Needed to Strengthen Mgmt. and Oversight of Detainee Med. Care (Feb. 2016), https://www.gao.gov/assets/680/675484.pdf; HUMAN RTS. WATCH et al., Code Red: The Fatal Consequences of Dangerously Substandard Med. Care in Immigration Detention, at 15, 19, 25, 46 (Jun. 2018), https://www.hrw.org/sites/default/files/report_pdf/us0618_immigration_web2.pdf; J. David McSwane, ICE Has Repeatedly Failed to Contain Contagious Diseases, Our Analysis Shows. It’s a Danger to the Public, PROPUBLICA (Mar. 20, 2020), https://www.propublica.org/article/ice-has-repeatedly-failed-to-contain-contagiousdiseases-our-analysis-shows-its-a-danger-to-the-public. 62 HUMAN RTS. WATCH & CIVIC, Systemic Indifference: Dangerous & Substandard Medical Care in US
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110. Faced with the current pandemic, ECDC is acting contrary to public health
guidance. Leadership in the Etowah County Sheriff’s Office has stated that they have purchased
a fogger machine that is able to sanitize 6,000 square feet in about ten minutes and that this
device will be used to clean cell units and other areas of the jail. The overwhelming scientific
consensus of the past few decades is that studies show both a lack of microbicidal efficacy from
disinfectant fogging and adverse effects on those in facilities where disinfectant fogging is used. The CDC does not recommend environmental fogging.63
111. Immigration detention facilities have faced outbreaks of other infectious diseases
in recent years due to overcrowding, poor hygiene measures, medical negligence, and poor
access to resources and medical care. As recently as last year, ICE mishandled and failed to take
Immigration Detention (May 8, 2017), https://www.hrw.org/report/2017/05/08/systemic-indifference/dangeroussubstandard-medical-care-us-immigration-detention (featuring data and interviews with individuals detained at ECDC and other detention centers known for inadequate medical care); SOUTHERN POVERTY LAW CENTER et al., Shadow Prisons: Immigrant Detention in the South (Nov. 2016), https://www.nationalimmigrationproject.org/PDFs/2016_21Nov-shad-pris-rpt.pdf (detailing ECDC’s failure to provide adequate medical and mental health care, and failure to maintain basic sanitation, living conditions); U.S. COMM’N ON CIVIL RTS., With Liberty and Justice for All: The State of Civil Rights at Immigration Detention Facilities (Sept. 2015), https://www.usccr.gov/pubs/docs/Statutory_Enforcement_Report2015.pdf (finding that ECDC has “not complied with NDS [National Detention Standards] contractual standards to provide detainees with nutritious food”); Memorandum from Megan Mack, Officer, Office of Civil Rights and Civil Liberties, and David Palmer, Acting Associate General Counsel (Legal Counsel), Office of General Counsel, to Sarah Saldaña, Director, U.S. Immigration and Customs Enforcement, and Gwendolyn Keyes Fleming, Principal Legal Advisor, U.S. Immigration and Customs Enforcement, Recommendations Regarding Ongoing Issues and Open Complaints at the Etowah County Jail (May 28, 2015), http://shutdownetowah.org/wp-content/uploads/2015/07/Adelante-ProductionMay-7-2019.pdf; WOMEN’S REFUGEE COMM’N, Politicized Neglect: A Report from Etowah County Detention Center (Mar. 2012), https://www.womensrefugeecommission.org/research-resources/politicized-neglect-a-reportfrom-etowah-county-detention-center/; Paul Moses, ‘The Worst Place Ever’ is ICE’s Etowah County Detention Center in Alabama, DAILY BEAST (Jun. 8, 2018), https://www.thedailybeast.com/the-worst-place-ever-is-icesetowah-county-detention-center-in-alabama (describing case of ECDC detainee who was paralyzed and died after not receiving adequate medical care for an infection). 63 CENTERS FOR DISEASE CONTROL AND PREVENTION, Updates: Guideline for Disinfection and Sterilization in Healthcare Facilities: Environmental Fogging (Dec. 2009), https://www.cdc.gov/infectioncontrol/guidelines/disinfection/updates.html (last accessed Apr. 23, 2020).
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adequate measures to protect detained individuals in Louisiana against outbreaks of chicken pox and mumps.64
112. And ICE has a long history of mishandling infectious and communicable diseases, struggling to contain them, and failing to follow nationally accepted standards. In a 2019 report, the DHS OIG concluded that ICE “does not adequately hold detention facility contractors accountable for not meeting performance standards,” “issued waivers to facilities with deficient conditions, seeking to exempt them from complying with certain standards,” and “does not adequately share information about ICE detention contracts with key officials.”65
113. Moreover, ICE has routinely failed to remedy inhumane conditions because, according to the OIG, “ICE does not adequately follow up on identified deficiencies or consistently hold facilities accountable for correcting them, which further diminishes the usefulness of inspections. . . . with some deficiencies remaining unaddressed for years.”66
114. ICE has even publicly acknowledged the need to limit the spread of the virus and the number of people in its detention centers, announcing that it will delay enforcement actions to arrest fewer immigrants and will use alternatives to detention as a response to the COVID-19 outbreak for new people they arrest in the field.67 Although ICE has released some individuals at
64 Emma Ockerman, Migrant Detention Centers Are Getting Slammed with Mumps and Chickenpox, VICE NEWS (Jun. 14, 2019), https://www.vice.com/en_us/article/mb8k5q/migrant-detention-centers-are-getting-slammed-withmumps-and-chicken-pox. 65 See DHS OFFICE OF INSPECTOR GENERAL, ICE Does Not Fully Use Contracting Tools to Hold Detention Facility Contractors Accountable for Failing to Meet Performance Standards, OIG-19-18, at 1 (Jan. 29, 2019), https://www.oig.dhs.gov/sites/default/files/assets/2019-02/OIG-19-18-Jan19.pdf. 66 See DHS Office of the Inspector General, ICE’s Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or Systemic Improvements, OIG-18-67, at 1 (Jun. 26, 2018), https://www.oig.dhs.gov/sites/default/files/assets/2018-06/OIG-18-67-Jun18.pdf. 67 See Maria Sacchetti and Arelis R. Hernández, ICE to stop most immigration enforcement inside the U.S., will focus on criminals during coronavirus outbreak, THE WASHINGTON POST (Mar. 18, 2020), https://www.washingtonpost.com/national/ice-halting-most-immigration-enforcement/2020/03/18/d0516228-696c11ea-abef-020f086a3fab_story.html.
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some of its detention centers, it has failed to release high COVID-19 risk individuals at ECDC despite its acknowledgment of the public health and medical reasons to do so,68 and has not stopped bringing new people into ECDC and transferring them among different detention centers.
115. Indeed, in testimony to Congress on April 17, 2020, Acting ICE Director Matthew T. Albence said that ICE would not be releasing any more individuals – not because the COVID-19 health risks have abated, but because releasing medically vulnerable individuals at risk of serious illness or death could give the impression that the Trump Administration is “not enforcing our immigration laws.”69
116. Given the rapid spread of COVID-19, the likelihood of spread before a person infected with the virus is symptomatic, highly limited availability of testing, ICE’s repeated failure to meet adequate standards for controlling infectious disease outbreaks in its facilities, ECDC’s long track record of abysmal medical care, nutrition, and sanitation, and current conditions at ECDC, Defendants cannot prevent the spread of COVID-19 at ECDC.
E. The Consensus of Public Health Experts Is That Individuals Most Vulnerable to COVID-19 Should Immediately Be Released to Protect Them From Serious Illness or Death.
117. The only viable public health strategy currently available in the United States is risk mitigation. For this reason, public health experts with experience in immigration detention and correctional settings have consistently recommended the release of vulnerable detained individuals from custody.
68 Noah Lanard, ICE Is Ignoring Recommendations to Release Immigrant Detainees to Slow the Spread of Coronavirus, MOTHER JONES (Mar. 20, 2020), https://www.motherjones.com/politics/2020/03/ice-is-ignoringrecommendations-to-release-immigrant-detainees-to-slow-the-spread-of-coronavirus/. 69 HOUSE COMM. ON OVERSIGHT AND REFORM, DHS Officials Refuse to Release Asylum Seekers and Other NonViolent Detainees Despite Spread of Coronavirus, (Apr. 17, 2020), https://oversight.house.gov/news/pressreleases/dhs-officials-refuse-to-release-asylum-seekers-and-other-non-violent-detainees.
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118. As early as February 25, 2020, Dr. Scott Allen and Dr. Josiah Rich, medical experts to DHS, shared concerns with the agency about the specific risk to detained immigrants as a result of COVID-19. These experts warned of the danger of rapid spread of the coronavirus in immigration detention facilities. In a whistleblower letter to Congress, Dr. Allen and Dr. Rich recommended that “[m]inimally, DHS should consider releasing all detainees in high risk medical groups such as older people and those with chronic diseases.” They concluded that “acting immediately will save lives not of only those detained, but also detention staff and their families, and the community-at-large.”70
119. Indeed, governments in the United States and worldwide have recognized the threat posed by COVID-19 spread among detained and incarcerated populations and have released detained individuals for that reason. In the United States, several jurisdictions including Los Angeles, New York, and Chicago have also released detained individuals for the same reasons.71 Here in Alabama, the Mobile County Jail has released one third of its incarcerated population.72
120. Releasing the most vulnerable people, such as Plaintiffs, would also reduce the burden on regional hospitals and health centers. In case of an outbreak at a detention center,
70 Letter from Dr. Allen and Dr. Rich to Congressional Committee Chairpersons, supra n.19. 71 Jan Ransom & Alan Feuer, We’re Left for Dead: Fears of Virus Catastrophe at Rikers Jail, NEW YORK TIMES (Mar. 30, 2020), https://www.nytimes.com/2020/03/30/nyregion/coronavirus-rikers-nyc-jail.html ; Maura Dolan, Alene Tchekmedyian & Paige St. John, California releases more jail inmates amid coronavirus crisis, LOS ANGELES TIMES (Mar. 20, 2020), https://www.latimes.com/california/story/2020-03-20/california-releases-morejail-inmates-amid-coronavirus-crisis; David Struett, Cook County Jail releases several detainees ‘highly vulnerable’ to coronavirus, CHICAGO SUN-TIMEs (Mar. 17, 2020), https://chicago.suntimes.com/coronavirus/2020/3/17/21183289/cook-county-jail-coronavirus-vulnerable-detaineesreleased-covid-19. 72 Christopher Harress, Amid COVID-19 pandemic, Mobile Metro Jail releases a third of inmates, AL.COM (Apr.10, 2020), https://www.al.com/news/2020/04/amid-covid-19-pandemic-mobile-metro-jail-releases-a-third-ofinmates.html.
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those institutions would bear the brunt of having to treat infected individuals from detention centers and would have fewer medical resources available for the general population.
121. ICE has the authority to release individuals from custody on medical grounds and has routinely exercised its authority to release particularly vulnerable detained individuals like Plaintiffs. The former Acting Director of ICE, John Sandweg, has stated that “ICE can, and must, reduce the risk [COVID-19] poses to so many people, and the most effective way to do so is to drastically reduce the number of people it is currently holding.”73 It can do so through outright release or through the use of a panoply of alternatives to detention at its disposal.74
LEGAL FRAMEWORK A. Plaintiffs Have a Substantive Due Process Right to Protection from Serious Illness
and Potentially Lethal Harm. 122. Because Plaintiffs are in federal civil immigration detention, their constitutional rights flow from the procedural and substantive guarantees of the Fifth Amendment. Zadvydas v. Davis, 533 U.S. 678, 690 (2001); Moore v. Nielsen, No. 18-cv-01722-LSC-HNJ, 2019 WL 2152582, at *4–5 (N.D. Ala. May 3, 2019) (magistrate’s report and recommendation). 123. When the government holds individuals in its custody, it assumes the affirmative obligation to provide for their basic human needs, including medical care, reasonable safety, and protection from harm. DeShaney v. Winnebago County Dep’t of Social Servs., 489 U.S. 189, 200 (1989); Hamm v. DeKalb County, 774 F.2d 1567, 1573 (11th Cir. 1985); Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cty., 402 F.3d 1092, 1115 (11th Cir. 2005). A government
73 John Sandweg, I Used to Run ICE. We Need to Release the Nonviolent Detainees, THE ATLANTIC MONTHLY (Mar. 22, 2020), https://www.theatlantic.com/ideas/archive/2020/03/release-ice-detainees/608536/; Camilo Montoya-Galvez, “Powder kegs”: Calls grow for ICE to release immigrants to avoid coronavirus outbreak, CBS NEWS (Mar. 19, 2020), https://www.cbsnews.com/news/coronavirus-ice-release-immigrants-detention-outbreak/. 74 For example, ICE can easily achieve its objective without endangering Plaintiffs' lives by placing them in its Intensive Supervisory Appearance Program (ISAP). The Government Accountability Office's most recent report found that ISAP participants appeared for their future hearings. CONG. RESEARCH SERVICE, Immigration: Alternatives to Detention (ATD) Programs (Jul. 8, 2019), https://fas.org/sgp/crs/homesec/R45804.pdf.
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“transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause” when it fails to satisfy its “affirmative duty to protect.” DeShaney, 489 U.S. at 200.
124. “Under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.” Hare, 74 F.3d at 651; see also Foucha v. Louisiana, 504 U.S. 71, 80 (1992). Therefore, persons detained civilly, including in immigration detention like Plaintiffs, are entitled to “more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.” Youngberg v. Romeo, 457 U.S. 307, 322 (1982); see Marsh v. Fla. Dep’t of Corrections, 330 F. App’x 179 (11th Cir. 2009). Unlike convicted criminals, where the state interest in detention is much higher and punishment is unconstitutional only if it is cruel and unusual, for persons in civil and pretrial detention, due process prevents imposition of any punishment. See Lynch v. Baxley, 744 F.2d 1452, 1462-63 (11th Cir. 1984). A person detained civilly has due process rights that are “at least as great as the Eighth Amendment protections available to a convicted prisoner.” Hare, 74 F.3d at 639 (citations omitted).
125. Courts have held that the due process rights of a person in immigration detention should be evaluated at an even higher standard than that of persons detained pretrial. See Jones v. Blanas, 393 F.3d 918, 933 (9th Cir. 2004). But at the very least, the standard applicable in the pretrial criminal detention context applies here.
126. The government violates the due process rights of a person in civil detention when the conditions of her confinement amount to punishment. If “a restriction or condition is not reasonably related to a legitimate goal—if it is arbitrary or purposeless—a court permissibly may infer that the purpose of the governmental action is punishment that may not
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constitutionally be inflicted upon detainees qua detainees.” Bell v. Wolfish, 441 U.S. 520, 539 (1979); Jacoby v. Baldwin County, 835 F.3d 1338, 1345 (11th Cir. 2016).
127. To show that a condition of confinement amounts to punishment, the detained person need not demonstrate that an official subjectively or maliciously intends to punish; instead “intent may be inferred from the decision to expose the detainee to an unconstitutional condition.” Jacoby, 835 F.3d at 1345.
128. In addition, it is cruel and unusual punishment under the Eighth Amendment, and therefore necessarily a violation of the Fifth Amendment’s Due Process Clause, for a federal official to show deliberate indifference to a substantial risk of serious harm to a detained person. Hamm, 774 F.2d at 1574. This occurs, for example, when officials “know[] of and disregard[] an excessive risk to inmate health or safety.” Doe v. Robertson, 751 F.3d 383, 388 (5th Cir. 2014).
129. The government may violate the Eighth (and Fifth) Amendment when it “ignore[s] a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year,” including “exposure of inmates to a serious, communicable disease,” even when “the complaining inmate shows no serious current symptoms.” Helling v. McKinney, 509 U.S. 25, 33 (1993); see also id. at 34 (citing with approval Gates v. Collier, 501 F.2d 1291, 1300 (5th Cir. 1974),75 which held that prisoners were entitled to relief under the Eighth Amendment when they showed, inter alia, the mingling of “inmates with serious contagious diseases” with other prison inmates).
130. Specifically, housing detained persons in crowded conditions where they are at risk of infectious disease is unconstitutional, even when it “is not alleged that the likely harm would occur immediately and even though the possible infection might not affect all of those
75 See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. 1981) (decisions of the former Fifth Circuit handed down prior to September 30, 1981 are binding in the Eleventh Circuit).
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exposed.” Helling v. McKinney, 509 U.S. at 33 (citing Hutto v. Finney, 437 U.S. 678, 682 (1978)). Nor can officials “be deliberately indifferent to the exposure of inmates to a serious, communicable disease on the ground that the complaining inmate shows no serious current symptoms.” Helling, 509 U.S. at 33.
131. Despite their awareness of the rapid spread of COVID-19, the importance of social distancing and sanitary practices for its prevention, the threat that it poses to the lives of those who, like Plaintiffs, have certain underlying medical conditions, and the impossibility of protecting Plaintiffs who are held in ICE detention centers, Defendants continue to detain Plaintiffs. This amounts to a punitive condition of confinement or, at the very least, deliberate indifference to a substantial risk of serious harm to Plaintiffs – either of which suffices to show a due process violation and compels an order of release.
B. ICE Lacks a Constitutionally Sufficient Purpose for Continued Detention of Medically Vulnerable Individuals. 132. Civil confinement “constitutes a significant deprivation of liberty that requires
due process protection,” and, thus, the government “must have ‘a constitutionally adequate purpose for the confinement.’” Jones v. United States, 463 U.S. 354, 361 (1983) (quoting O’Connor v. Donaldson, 422 U.S. 563, 574 (1975)); see also Foucha, 504 U.S. at 80 (“We have always been careful not to ‘minimize the importance and fundamental nature’ of the individual’s right to liberty.”) (quoting United States v. Salerno, 481 U.S. 739, 750 (1987)).
133. Due process requires that the nature and duration of a noncriminal confinement bear “some reasonable relation to the purpose for which the individual is committed.” Jackson v. Indiana, 406 U.S. 715, 738 (1972); J.R. v. Hansen, 803 F.3d 1315, 1321 (11th Cir. 2015).
134. The only legitimate purpose, consistent with due process, for federal civil immigration detention is to prevent flight risk and ensure the detained person’s attendance for a
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legal hearing adjudicating their status or potential removal, or to otherwise ensure the safety of the community. Zadvydas v. Davis, 533 U.S. 678, 699 (2001).
135. The purpose of ensuring attendance at a future hearing or removal is fundamentally eviscerated where detained persons such as Plaintiffs are exposed to the coronavirus, symptomatic, seriously ill, or even dead. Continued detention in such circumstances is arbitrary, purposeless restraint entirely inconsistent with the principle of proportionality at the heart of due process.
136. Once an otherwise valid basis for detention no longer applies, substantive due process requires the state to release the detained person. Foucha, 504 U.S. at 86 (ordering petitioner’s release from commitment to mental institution because there was no longer any evidence of mental illness); Kansas v. Hendricks, 521 U.S. 346, 363-64 (1997) (upholding statute requiring civil confinement for sex offenders in part because it provided for immediate release once an individual no longer posed a threat to others).
137. The government’s only legitimate interest in Plaintiffs’ continued detention – either to minimize flight risk pending removal or to prevent danger to the community, Zadvydas, 533 U.S. at 690 – is no longer applicable. Yet the purportedly legitimate government purposes for detention simply fall away when someone is facing lethal harm. Continued detention despite changed circumstances that render the basis of detention null, is the height of arbitrariness. See Reno v. Flores, 507 U.S. at 343 (“a blanket rule that simply presumes that detention is more appropriate than release to responsible adults is not narrowly focused on serving that interest.).
138. At the same time, there are more “narrowly focused” means to ensure Plaintiffs’ appearance in legal proceedings or for removal, which do not subject them to the dangers of detention, for example, supervised or conditional release would suffice to meet the government’s
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interest without subjecting Plaintiffs to severe danger. For example, one way ICE can easily achieve its objective without endangering Plaintiffs’ lives is by placing them in its Intensive Supervisory Appearance Program (ISAP). The Government Accountability Office’s most recent report found that ISAP participants appeared for their future hearings.76
139. The Government also cannot establish that it has a compelling interest in keeping Plaintiffs detained. Each Plaintiff has a serious medical ailment and is immunocompromised. Given that the only established method to protect oneself from the virus is to self-isolate, the likelihood of a post-release danger to the community from elderly or ill persons is infinitesimal and cannot justify the maximal deprivation of liberty – detention – with a resulting risk of serious illness or death.
C. Plaintiffs’ Prolonged Detention Violates Due Process 140. Plaintiffs’ exceedingly prolonged detention without meaningful review violates
due process. Although the particular circumstances of each Plaintiff’s detention differ in certain respects, they share a common core of essential facts that render their prolonged detention unconstitutional. They have been detained for exceedingly long periods of time, ranging from thirteen months to nine years. Each Plaintiff is either currently presenting a substantial challenge to his or her removal before the federal courts or in agency proceedings, or faces barriers to removal pursuant to an executable removal order, that render removal unlikely in the reasonably foreseeable future. And, as described above, they are all being detained in conditions that present an imminent risk to their lives and wellbeing.
141. “Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty” that the Due Process Clause protects. Zadvydas, 533 U.S. at 690 (citing Foucha v. Louisiana, 504 U.S. 71, 80 (1992)). In the
76 CRS, Immigration: Alternatives to Detention (ATD) Programs, supra n.74
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immigration context, the Supreme Court has recognized only two valid purposes for civil detention—to mitigate the risks of danger to the community and to prevent flight. Id.; Demore v. Kim, 538 U.S. 510, 528 (2003). Because Plaintiffs’ ongoing deprivation of liberty is not sufficiently related to either of these purposes, their detention violates due process. Due process also requires “adequate procedural protections” to ensure that the government’s asserted justification for confinement “outweighs the individual’s constitutionally protected interest in avoiding physical restraint.” Zadvydas, 533 U.S. at 690 (citations and internal quotation marks omitted).
142. Two main provisions of the Immigration and Nationality Act (INA) govern the detention of noncitizens pending removal: 8 U.S.C. §§ 1226 and 1231.77 Section 1226 governs detention of individuals “pending a decision on whether [they are] to be removed from the United States,” 8 U.S.C. § 1226(a), while Section 1231 governs detention of individuals during and, in some cases, after the “removal period,” id. §1231(a)(1)(A), while they are awaiting removal after exhausting the available legal avenues to challenge a final removal order.
143. Detention under § 1226 is generally discretionary. Jennings v. Rodriguez, __ U.S. __, 138 S.Ct. 830, 846 (2018). An individual detained under subsection (a) of that statute is immediately eligible to request release on bond or conditional parole. See 8 U.S.C. § 1226(a); 8 C.F.R. § 1236.1(d). In some cases, Section 1226 mandates detention—namely, subsection (c) provides that the government “shall take into custody” any noncitizen who has committed certain criminal offenses including aggravated felonies that render them deportable or inadmissible, subject to a narrow witness protection exception. See 8 U.S.C. § 1226(c).
144. Section 1231 comes into play once an individual has exhausted the legal avenues
77 Separate statutory provisions, which do not apply here, govern the detention of particular categories of noncitizens. See 8 U.S.C. §§ 1225(b) (individuals classified as “arriving aliens”) and 1226A (suspected terrorists).
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to challenge her removal order and there is no longer any legal impediment to her removal. That section mandates detention only during the initial 90-day “removal period,” 8 U.S.C. § 1231(a)(1)(A)—the time window during which the government typically effectuates the individual’s removal. The removal period “begins on the latest of the following:
(i) The date the order of removal becomes administratively final. (ii) If the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court’s final order. (iii) If the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement. Id. §1231(a)(1)(B). The removal period may be extended beyond 90 days if the individual “fails or refuses to make timely application in good faith for travel or other documents necessary to [his] departure or conspires or acts to prevent [his] removal.” Id. §1231(a)(1)(C). Under these circumstances, the regulations require ICE to serve the individual with a Notice of Failure to Comply, advising her that the removal period has been extended and explaining the steps she must take in order to demonstrate compliance. See 8 C.F.R. §241.4(g)(5)(ii). 145. After the initial 90-day removal period, detention under Section 1231 is no longer mandatory: the government “may” detain beyond the removal period certain “[i]nadmissible or criminal aliens” or individuals determined “to be a risk to the community or unlikely to comply with the order of removal.” Id. §1231(a)(6). The regulations provide for periodic custody reviews, and specify that noncitizens detained beyond the conclusion of the removal period are eligible for release on an order of supervision or bond. See 8 C.F.R. §§ 241.4, 241.5(b). 146. In Zadvydas, the Supreme Court recognized that the Due Process Clause imposes limitations on the government’s discretionary detention authority under the INA. 533 U.S. at 690. The following year, the Supreme Court held in Demore that mandatory pre-removal period detention under Section 1226(c) was not per se unconstitutional. 538 U.S. at 513 (respondent’s
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detention under § 1226(c) “for the brief period necessary for his removal proceedings” did not violate due process). The question of whether the statute permits prolonged detention without a bond hearing—and if so, whether such prolonged, categorical detention violates due process— was not before the Court. Justice Kennedy, who provided the crucial fifth vote in Demore, stressed in his concurrence that greater procedural safeguards, including individualized custody determinations, might be required “if the continued detention became unreasonable or unjustified.” Id. at 532-33 (Kennedy, J., concurring).78
147. In the wake of Demore, every federal appeals court to consider the issue concluded, either as a matter of statutory construction or by reaching the due process question, that mandatory detention without a bond hearing pending removal is impermissible once it exceeds a reasonable time limitation. See Sopo v. U.S. Attorney Gen., 825 F.3d 1199 (11th Cir. 2016); Reid v. Donelan, 819 F.3d 486 (1st Cir. 2016); Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015); Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015); Diop v. ICE/Homeland Sec., 656 F.3d 221 (3d Cir. 2011); Ly v. Hansen, 351 F.3d 263 (6th Cir. 2003). In Sopo, the Eleventh Circuit “readily joined” its sister circuits in holding, “as a matter of constitutional avoidance,” that Section 1226(c) contains an implicit reasonable time limitation, 825 F.3d at 1213-14, to be determined on a case-by-case basis by considering a variety of factors, including the length of detention, the reasons removal proceedings have become protracted, the likelihood of removal, and confinement in prison-like conditions. Id. at 1217-18.
78 As the Eleventh Circuit recently recognized, the average length of removal proceedings has undergone a “dramatic increase” since the Supreme Court decided Demore. Sopo, 825 F.3d at 1213. Moreover, in an exceptional move, the Department of Justice has admitted that the statistics drawn from its brief that were relied on heavily by the majority in Demore—claiming that detention under § 1226(c) lasts an average of “roughly a month and a half in the vast majority of cases in which it is invoked, and about five months in the minority of cases in which the alien chooses to appeal,” Demore at 530—were false, vastly underestimating the length of time that individuals spent in detention while challenging their removal. See Letter from U.S. Dep’t of Justice, Office of the Solicitor General to the Honorable Scott S. Harris, Clerk of the U.S. Supreme Court, regarding Demore v. Kim, S. Ct. No. 01-1491 (Aug. 26, 2016), http://online.wsj.com/public/resources/documents/Demore.pdf.
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148. Recently, the Supreme Court ruled that the Ninth Circuit erred in applying the
canon of constitutional avoidance to interpret the detention statutes to require an individualized
bond hearing for all noncitizens detained for over six months under Sections 1226(c) and
1225(b). Jennings, 138 S.Ct. at 836. The question of whether prolonged detention without a bond
hearing pending removal proceedings violates due process was not before the Court in Jennings.
Id. at 851. The Court remanded to the Ninth Circuit to consider the constitutional question in the
first instance. Id.
149. The Third Circuit has already addressed the question, determining that prolonged
categorical detention of individuals challenging their removal violates due process. See Diop,
656 F.3d at 233; cf. Guerrero-Sanchez v. Warden York Cty. Prison, 905 F.3d 208, 222 (noting
that Diop’s constitutional holding was not abrogated by Jennings and reaffirming the Diop
court’s recognition that “when detention becomes unreasonable, the Due Process Clause
demands a hearing, at which the Government bears the burden of proving that continued
detention is necessary”). The vast majority of district courts—including courts in every circuit in
the nation—have found that prolonged detention during removal proceedings violates due process when it becomes unreasonably prolonged.79 Although Jennings abrogated the statutory
79 See, e.g., Reid v. Donelan, 390 F. Supp. 3d 201, 215 (D. Mass. 2019); Cabral v. Decker, 331 F. Supp. 3d 255, 260-62 (S.D. N.Y. 2018); Kabba v. Barr, 403 F. Supp. 3d 180, 190 (W.D. N.Y. 2019); De Oliveira Viegas v. Green, 370 F. Supp. 3d 443, 449 (D. N.J. 2019); Vega v. Doll, No. 3:17-cv-1440, 2018 WL 3756755, at *4-5 (M.D. Pa. Aug. 8, 2018); Alexis v. Sessions, No. 18-cv-1923-H, 2018 WL 5921017, at *8 (S.D. Tex. Nov. 13, 2018); Hamama v. Adducci, 349 F. Supp. 3d 665, 690 (E.D. Mich. 2018), vacated and remanded, 946 F.3d 875 (6th Cir. 2020) (district court lacked jurisdiction to enter nationwide injunction for class of Iraqi national subject to prolonged detention under §§ 1225(b), 1226(a), 1226(c), and 1231(a)(6)); Baez-Sanchez v. Kolitwenzew, 360 F. Supp. 3d 808, 814 (C.D. Ill. 2018); Vargas v. Beth, 378 F. Supp. 3d 716, 728 (E.D. Wis. 2019), appeal dismissed, No. 19-1965 (7th Cir. July 18, 2019); Muse v. Sessions, 409 F.Supp.3d 707, 718 (D. Minn, 2018); Martinez v. Clark, No. 18-cv1669-RAJ-MAT, 2019 WL 5968089, at *9-11 (W.D. Wash. May 23, 2019), report and recommendation adopted, 2019 WL 5962685 (W.D. Wash. Nov. 13, 2019); Singh v. Choate, No. 19-cv-00909-KLM, 2019 WL 3943960, at *7 (D. Colo. Aug. 21, 2019), appeal filed, No. 19-1416 (10th Cir. Oct. 29, 2019); cf. Lukaj v. McAleenan, No. 3:19-cv241-J-34MCR, 2019 WL 4979745 (M.D. Fla. Oct. 8, 2019) (petitioner’s detention without bond under § 1226(c) for almost 14 months violated due process), order vacated on reconsideration, 2020 WL 248724 (M.D. Fla. Jan. 16, 2020) (decision was predicated on factual error that parties failed to convey to the court; petitioner was actually detained under § 1231(a) by time of court’s decision because he had filed a PFR but was not granted a stay of
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holdings of the First, Second, Third, Sixth, and Eleventh Circuits, those courts’ reasoning remains strong persuasive authority with respect to the due process analysis of the detention statutes. Each of those courts identified “serious constitutional concerns,” Sopo, 825 F.3d at 1213, with a reading of the statutory scheme that would permit prolonged categorical detention without periodic review by a neutral magistrate or other rigorous safeguards—the reading ultimately adopted by the Supreme Court in Jennings. Indeed, many district courts analyzing constitutional challenges to prolonged detention after Jennings have applied the factors enumerated in Sopo and the pre-Jennings statutory decisions of the other circuits. See, e.g., Moore v. Nielsen, No. 4:18-cv-01722-LSC-HNJ, 2019 WL 2152582, at *10-11, 13 (N.D. Ala. May 3, 2019) (holding that petitioner’s prolonged mandatory detention under § 1225(b) violated due process “based upon the persuasive guidance in Sopo”).
150. Plaintiffs’ categorical detention should be presumed unreasonable because it has already far exceeded six months. Categorical civil detention for over six months likely violates due process. See Demore, 538 U.S. at 529-30 (upholding only “brief” detention under Section 1226(c), which lasts an average of “about five months in the minority of cases in which the alien chooses to appeal”); Id. at 532 (Kennedy, J., concurring) (“individualized determination as to his risk of flight and dangerousness” may be warranted “if the continued detention became unreasonable or unjustified”); Zadvydas, 533 U.S. at 701 (“Congress previously doubted the constitutionality of detention for more than six months”); see also McNeil v. Dir., Patuxent Inst., 407 U.S. 245, 249, 250-52 (1972) (recognizing six months as an outer limit for confinement
removal, rendering moot petitioner’s challenge to § 1226(c) detention). Similarly, “[n]early all district courts that have considered the issue agree that” prolonged mandatory detention under Section 1225(b) “will—at some point— violate the right to due process.” Banda v. McAleenan, 385 F. Supp. 3d 1099, 1116–17 (W.D. Wash. 2019) (internal quotation marks and citations omitted) (collecting § 1225(b) cases), appeal dismissed sub nom. Banda v. U.S. Dep't of Homeland Sec., No. 19-35683 (9th Cir. Oct. 9, 2019); see also, e.g., Moore, No. 4:18-cv-01722-LSC-HNJ, 2019 WL 2152582, at *9-10; Jamal A. v. Whitaker, 358 F. Supp. 3d 853, 860 (D. Minn. 2019); Portillo v. Hott, 322 F. Supp. 3d 698, 707-09 (E.D. Va. 2018).
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without individualized inquiry for civil commitment). 151. Even if a bond hearing is not required after six months in every case, due process
requires, at a minimum, a bond hearing after detention has become unreasonably prolonged. See Diop, 656 F.3d at 234. In determining the reasonableness of detention under the INA, courts have looked to whether the noncitizen has raised a “good faith” challenge to removal that is “legitimately raised” and presents “real issues.” Chavez-Alvarez v. Warden York Cty. Prison, 783 F.3d 469, 476 (3d Cir. 2015). Reasonableness is also a “function of the length of the detention,” id. at 477 (detention is presumptively unreasonable if it lasts six months to a year); accord Sopo, 825 F.3d at 1217-18, and the prospect of future detention pending the resolution of challenges to the individual’s removal. Chavez-Alvarez, 783 F.3d at 477-78 (finding detention unreasonable after ninth months of detention, when parties “could have reasonably predicted that ChavezAlvarez’s appeal would take a substantial amount of time, making his already lengthy detention considerably longer”); accord Sopo, 825 F.3d at 1218; Reid, 819 F.3d at 500. The “conditions of confinement” also bear on the reasonableness analysis. Chavez-Alvarez, 783 F.3d at 478; accord Sopo, 825 F.3d at 1218 (“whether the facility for the civil immigration detention is meaningfully different from a penal institution for criminal detention” is factor in reasonableness determination). Accordingly, the factors present in all of Plaintiffs’ cases—the exceedingly prolonged duration of their detention, the likely duration of their future detention absent court intervention, their high risk of severe illness or death should they contract COVID-19, and their confinement in a county jail that is plagued by systemic civil rights concerns and infamously poor conditions during this pandemic80—render their detention unreasonable.
80 Even before the outbreak of COVID-19, the Etowah County Jail has been the subject of repeated complaints, reports, and investigations for corruption and human rights violations, including by DHS itself. See supra n.62 (citing numerous reports on inadequate medical care, sanitation, and nutrition at ECDC); see also, e.g., DHS OFFICE OF CIVIL RTS. AND CIVIL LIBERTIES, Fiscal Year 2015 Report to Congress at 28-29, 35 (Jun. 2016),
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152. In addition to an individualized hearing before a neutral decisionmaker, due process requires the government to provide Plaintiffs with other procedural safeguards to protect against the erroneous deprivation of liberty. First, the government must bear the burden of proof by clear and convincing evidence to demonstrate that each Plaintiff is a danger or flight risk. See Singh v. Holder, 638 F.3d 1196, 1203-05 (9th Cir. 2011); see also United States v. Salerno, 481 U.S. 739, 750, 752 (1987) (upholding pre-trial detention where “full-blown adversary hearing,” requiring “clear and convincing evidence” and “neutral decisionmaker”); Foucha, 504 U.S. at 81-83 (striking down civil detention scheme that placed burden on the detainee); Zadvydas, 533 U.S. at 692 (finding post-final-order custody review procedures deficient because, inter alia, they placed burden on detainee). Additionally, in order to show that an individual’s continued detention is reasonably related to the detention statutes’ primary purpose of ensuring appearance during removal proceedings and effectuating her removal, see Zadvydas at 697, the government must also consider alternatives to detention and an individual’s ability to pay bond. See Hernandez v. Sessions, 872 F.3d 976, 990-91 (9th Cir. 2017); see also id. at 991 (ICE’s ISAP alternatives to detention program has resulted in appearance rates close to 100 percent) and 990 (“[d]etention of an indigent ‘for inability to post money bail’ is impermissible if the individual’s ‘appearance at trial could reasonably be assured by one of the alternate forms of release’”) (quoting Pugh v. Rainwater, 572 F.2d 1053, 1058 (5th Cir. 1978) (en banc)).
153. Finally, the periodic reviews afforded to some Plaintiffs under ICE’s post-order custody review (POCR) process fall far short of due process requirements because they lack
https://www.dhs.gov/sites/default/files/publications/crcl-fy-2015-annual-report.pdf (prior investigations and “numerous complaints” DHS continues to receive from Etowah “raise serious civil rights concerns”; recommending that ICE “cease use of the facility” unless it can implement “comprehensive” reforms); Connor Sheets, Here’s how federal inmates made an Alabama sheriff $1.5 million, AL.COM (Dec. 30, 2018), https://www.al.com/news/2018/12/heres-how-federal-inmates-made-an-alabama-sheriff-15-million.html (Etowah County Sheriff and county government reportedly misappropriated $3 million in funds paid to them under the ICE contract).
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basic procedural safeguards, such as the opportunity to be heard before a neutral decisionmaker, cross-examine witnesses, have counsel appear to present argument on the detainee’s behalf, create a contemporaneous record of proceedings, or appeal an erroneous determination. See 8 C.F.R. §214.4 (setting out procedures and standards for POCRs); Diouf v. Napolitano (“Diouf II”), 634 F.3d 1081, 1092 (9th Cir. 2011) (180-day POCR regulations “raise serious constitutional concerns” because they “do not afford adequate procedural safeguards”; insufficient to address prolonged detention); see also Zadvydas at 690-91 (comparing Kansas, 521 U.S. at 364-69 (upholding involuntary civil commitment for periods of one year at a time, in light of “strict procedural safeguards” such as right to jury trial and the government’s burden of proof beyond a reasonable doubt) and Salerno, 481 U.S. at 750–752 (in upholding pretrial detention, stressing “stringent time limitations,” the fact that detention is reserved for the “most serious of crimes,” the requirement of proof of dangerousness by clear and convincing evidence, and the presence of judicial safeguards), with Foucha, 504 U.S. at 81-83 (striking down insanityrelated detention system that placed burden on detainee to prove non-dangerousness)).
D. Habeas Is a Broad, Flexible Remedy That Authorizes Courts to Order Release from Unlawful Detention as Law and Equity Requires. 154. Plaintiffs seek relief under the federal habeas statute, 28 U.S.C. § 2241, which is
itself infused with long-standing common law equitable principles. See 28 U.S.C. § 2241(c)(3) (the writ extends to those prisoners “in custody in violation of the Constitution or laws or treaties of the United States”). “Habeas is at its core a remedy for unlawful executive detention.” Munaf v. Geren, 553 U.S. 674, 693 (2008).
155. Habeas invests in federal courts broad, equitable authority to “dispose of the matter as law and justice require,” 28 U.S.C. § 2243, as the “very nature of the writ demands that it be administered with the initiative and flexibility.” Harris v. Nelson, 394 U.S. 286, 292 (1969);
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see Boumediene v. Bush, 553 U.S. 723, 780 (2008) (“Habeas is not ‘a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose.’”) (quoting Jones v. Cunningham, 371 U.S. 236, 243 (1963)).
156. Accordingly, the illegality of custody under the “Constitution or laws . . . of the United States” may stem from the fact of detention and the duration of detention – what is often referred to as the “historical core” of habeas – and for unlawful placement or conditions of detention. See Wilwording v. Swenson, 404 U.S. 249, 251 (1971) (habeas challenging “living conditions and disciplinary measures” is “cognizable in federal habeas corpus”); Johnson v. Avery, 393 U.S. 483 (1969) (permitting federal habeas challenge to legality of prison regulation prohibiting provision of legal assistance to other prisoners). See also Aamer v. Obama, 742 F.3d 1023, 1031-38 (D.C. Cir. 2014) (surveying history, purpose and Supreme Court jurisprudence and “the weight of the reasoned precedent in the federal Courts of Appeal” relating to habeas and concluding “habeas corpus tests not only the fact but also the form of detention.”).
157. A court is fully empowered to remediate the particular illegality here – an outbreak of lethal and unavoidable virus that threatens Plaintiffs and violates their constitutional rights to be free from arbitrary and punitive detention – by ordering their release. Habeas corpus is, “above all, an adaptable remedy,” Boumediene, 553 U.S. at 780, and federal courts retain “broad discretion in conditioning a judgment granting habeas relief . . . ‘as law and justice require’.” Hilton v. Braunskill, 481 U.S. 770, 775 (1987) (quoting § 2243). That authority includes an order of release, Boumediene, 553 U.S. at 779, so as “to insure that miscarriages of justice within [the writ’s] reach are surfaced and corrected.” Harris, 395 U.S. at 291.
CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF:
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VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT Unlawful Punishment / Deliberate Indifference
158. Plaintiffs re-allege and incorporate by reference the foregoing paragraphs. 159. The Due Process Clause of the Fifth Amendment guarantees persons in civil immigration detention the right to reasonable safety and to be free from punitive conditions of confinement, and requires that the government have a constitutionally adequate, nonpunitive purpose for continued detention. These requirements are violated when a condition of detention is not reasonably related to a legitimate government objective and when government officials are deliberately indifferent to a substantial risk of harm to the detainee. 160. Defendants continue to detain Plaintiffs, whose underlying health conditions render them particularly vulnerable to contracting COVID-19, spreading it to others, and suffering serious injury or death as a result. 161. The conditions of detention in ECDC increase Plaintiffs’ risk of contracting COVID-19. There have been hundreds of cases and several deaths from COVID-19 reported in the county where the facility is located. Defendants have not, and could not possibly, implement social distancing measures that are required to prevent the rapid spread of COVID-19 in ECDC. Defendants also have not implemented any adequate hygiene practices as recommended by the CDC. 162. Defendants have failed in their obligation to adequately protect Plaintiffs from exposure to COVID-19. This puts Plaintiffs at a substantial risk of serious illness or death. 163. Defendants know about the prevalence of COVID-19 in Alabama, and the risk that it poses to individuals with certain underlying conditions. Under these circumstances, Plaintiffs’ continued detention by Defendants amounts to deliberate indifference to a substantial risk of harm to Plaintiffs.
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164. Defendants’ exposure of Plaintiffs to this substantial risk of serious illness or death amounts to punishment.
165. Plaintiffs’ ongoing confinement lacks a reasonable relationship to any legitimate government purpose. Plaintiffs do not pose a danger or a flight risk that cannot be mitigated by appropriate conditions of release, and these considerations alone are insufficient to countervail the severe risk of severe illness or even death that Plaintiffs face if they are not released.
166. Absent judicial relief in the form of release from detention, Plaintiffs are suffering and will continue to suffer irreparable harm.
SECOND CLAIM FOR RELIEF: VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT
Prolonged Detention 167. Plaintiffs re-allege and incorporate by reference the foregoing paragraphs. 168. Civil immigration detention violates due process if it is not reasonably related to its purpose. See Zadvydas, 533 U.S. at 690 (citing Jackson v. Indiana, 406 U.S. 715, 738 (1972)); Demore, 538 U.S. at 513. As categorical detention becomes increasingly prolonged, a “sufficiently strong special justification” is required to outweigh the significant deprivation of liberty. Zadvydas, 533 U.S. at 690-91. 169. Prolonged civil detention also violates due process unless it is accompanied by strong procedural protections to guard against the erroneous deprivation of liberty. Zadvydas, 533 U.S. at 690-91; Foucha, 504 U.S. at 81-83. To justify Plaintiffs ongoing prolonged detention, due process requires that the government establish, at an individualized hearing before a neutral decisionmaker, that Plaintiffs’ detention is justified by clear and convincing evidence of flight risk or danger, even after consideration of whether alternatives to detention could
55

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sufficiently mitigate that risk, and taking into account their ability to pay bond. See Salerno, 481 U.S. at 750, 752; Singh, 638 F.3d at 1203; Hernandez, 872 F.3d at 990.
170. Plaintiffs’ prolonged detention, which ranges from more than thirteen months to nine years, is not reasonably related to the statutory purpose of ensuring their appearance during removal proceedings or preventing danger to the community, or of ensuring their presence for imminent removal. See Zadvydas at 690.
171. Nor have Plaintiffs been afforded the necessary procedural safeguards to guarantee against the erroneous deprivation of their liberty, especially as their detention grows increasingly prolonged. ICE’s internal post-order custody review process does not afford Plaintiffs with a constitutionally adequate process to obtain review of their prolonged detention. See Diouf II, 634 F.3d at 1092.
172. The weight of the government’s interests in ensuring a lack of flight risk and preventing danger to the community is severely diminished during the pendency of the COVID19 pandemic. Further, mandating Plaintiffs’ continued detention at risk of serious illness or death during a global pandemic is grossly disproportionate to the government’s interests. Categorical detention under these circumstances is not sufficiently tailored, fails to account for reasonable alternatives, and denies Plaintiffs the right to be meaningfully heard.
173. To ensure adequate procedural protections exist, the extraordinary circumstances alleged justify this Court’s intervention to order Plaintiffs’ outright release during the pendency of the COVID-19 crisis, or at least release until immigrations proceedings regain regularity, at which point it may order bond hearings and requests for parole.
174. Absent judicial relief in the form of release from detention, Plaintiffs are suffering and will continue to suffer irreparable harm.
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THIRD CLAIM FOR RELIEF: VIOLATION OF IMMIGRATION AND NATIONALITY ACT – 8 U.S.C. § 1231
Prolonged Detention 175. Plaintiffs re-allege and incorporate by reference the foregoing paragraphs. 176. In the event that this Court determines that Plaintiffs’ detention is governed by 8 U.S.C. § 1231, they are subject to the discretionary, post-removal period detention provision Section 1231(a)(6). 177. In Zadvydas, the Supreme Court recognized that due process considerations constrain the government’s discretionary detention authority under Section 1231(a)(6). 533 U.S. at 699. When detention under that provision exceeds six months, it is no longer presumptively reasonable, and the government must release the individual unless it can show that his removal is significantly likely in the reasonably foreseeable future. Id. at 701. 178. Plaintiffs have been detained for over six months since their removal orders became administratively final. 179. There is no significant likelihood that the government will remove Plaintiffs in the reasonably foreseeable future. Several Plaintiffs’ removal are stayed pending judicial review of a substantial challenge to their removal—a process that will likely take many more months or even years, and may ultimately result in a finding that Plaintiffs are not removable or merit relief from removal. Meanwhile, for those Plaintiffs subject to a legally final and executable order of removal, Defendants have thus far failed to secure their removal. 180. No sufficiently strong special justification exists to justify Plaintiffs’ continued detention without a bond hearing, especially given the lengthy deprivation of liberty they have already experienced. See Zadvydas at 690-91; Kansas, 521 U.S. at 364-69; Salerno, 481 U.S. at 750–752.
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181. Thus, Plaintiffs are entitled to immediate release from detention or, alternatively, a prompt individualized hearing where the government bears the burden of proving danger or flight risk.
FOURTH CLAIM FOR RELIEF: HABEAS AUTHORITY TO ORDER RELEASE FROM UNLAWFUL DETENTION
182. Plaintiffs re-allege and incorporate by reference the foregoing paragraphs. 183. The Court has broad, equitable authority under the habeas statute, 28 U.S.C. §§ 2241, 2243 and the common law, to dispose of Plaintiffs’ cases as law and justice require, based on the unique facts and circumstances of their cases, in order to remedy Plaintiffs’ unlawful conditions of detention. 184. The Court should exercise this authority to grant Plaintiffs’ habeas corpus petition and to fashion any and all additional relief, necessary to effectuate Plaintiffs’ expeditious release from unlawful detention. In the absence of such relief, Plaintiffs are suffering and will continue to suffer irreparable harm.
FIFTH CLAIM FOR RELIEF: VIOLATION OF THE REHABILITATION ACT Failure to Provide Reasonable Accommodation to Persons with Disabilities 185. Plaintiffs re-allege and incorporate by reference the foregoing paragraphs. 186. Section 504 of the Rehabilitation Act requires federal agencies to provide “reasonable accommodations” to individuals with disabilities so they can fully participate in benefits administered by these agencies. 29 U.S.C. § 794(a). 187. DHS regulations implementing the Rehabilitation Act mandate that “[n]o qualified individual with a disability in the United States, shall, by reason of his or her disability, be excluded from participation in, be denied benefits of, or otherwise be subjected to
58

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discrimination under any program or activity conducted by the Department.” 6 C.F.R. § 15.30; see also 29 U.S.C. § 794(a). The regulations implementing Section 504 prohibit entities receiving federal financial assistance from utilizing “criteria or methods of administration (i) that have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap, (ii) that have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the recipient’s program or activity with respect to handicapped persons.” 34 C.F.R. § 104.4(b)(4).
188. The removal process is a benefit administered by DHS and Plaintiffs are entitled to participate in the removal process. The services, programs, and activities within the detention centers where DHS detains Plaintiffs receive substantial federal financial assistance.
189. Plaintiffs’ underlying medical conditions qualify as disabilities for purposes of the Rehabilitation Act. 29 U.S.C. § 705(2)(B); 42 U.S.C. § 12102.
190. By exposing them to a heightened risk of contracting COVID-19, Defendants are preventing Plaintiffs from participating in the removal process by reason of their disability.
191. By failing to take account of their special vulnerability to severe illness or death if they were to contract COVID-19, Defendants are preventing Plaintiffs from participating in the removal process by reason of their disability.
192. By failing to provide Plaintiffs adequate protection from COVID-19 through the only effective means to reduce the risk of severe illness or death, Defendants have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of removal proceedings and the services, programs, and activities within the detention centers with respect to Plaintiffs.
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193. The only available “reasonable accommodation” that would mitigate Plaintiffs’ disability is release from detention. Defendants have failed to implement this reasonable accommodation, which would not be unduly burdensome nor require a fundamental alteration in the removal process or the programs and activities of the detention center.
194. Defendants’ ongoing detention of Plaintiffs constitutes discrimination because it is either disparate treatment of, or at the very least has a disparate impact on, people with qualifying disabilities who are at severe risk of serious illness or death if they were to contract COVID-19.
195. For these reasons, Defendants’ ongoing detention of Plaintiffs violates the Rehabilitation Act.
PRAYER FOR RELIEF WHEREFORE, Petitioners-Plaintiffs request that this Court:
1. Issue a writ of habeas corpus and order Plaintiffs’ immediate release or placement in community-based alternatives to detention such as conditional release, with appropriate precautionary public health measures, on the ground that their continued detention violates the Due Process Clause and/or the Rehabilitation Act;
2. In the alternative, issue a temporary restraining order or preliminary and permanent injunctive relief ordering Defendants to immediately release Plaintiffs or place them in community-based alternatives to detention such as conditional release, with appropriate precautionary public health measures, on the ground that their continued detention violates the Due Process Clause and/or the Rehabilitation Act;
3. In the further alternative, order a plan, to be immediately submitted to the Court and overseen by a qualified public health expert pursuant to Fed. R. Evid. 706, which outlines
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the specific mitigation efforts, in line with CDC guidelines, necessary to prevent, to the degree possible, contraction of COVID-19 by Plaintiffs not immediately released; 4. If immediate release is not granted on the basis of this Petition alone, then expedited review of the Petition, including oral argument, via telephonic or videoconference if necessary; 5. Declare that Defendants’ continued civil detention of individuals at increased risk for severe illness, including all people over the age of 55 and persons of any age with underlying medical conditions that increase the risk of serious illness or death upon contracting COVID-19 violates the Due Process Clause and/or the Rehabilitation Act; 6. Award Plaintiffs all costs incurred in maintaining this action, including reasonable attorneys’ fees under the Equal Access to Justice Act, as amended, 5 U.S.C. § 504 and 28 U.S.C. § 2412, and on any other basis justified by law; and 7. Grant Plaintiffs any other and further relief this Court deems just and proper.

Dated: April 27, 2020 Birmingham, Alabama

Respectfully submitted,
/s/ Jessica Myers Vosburgh Jessica Myers Vosburgh jessica@adelantealabama.org ADELANTE ALABAMA WORKER CENTER 2104 Chapel Hill Road Birmingham, AL 35216 205.317.1481
Sirine Shebaya* sirine@nipnlg.org Matthew S. Vogel* matt@nipnlg.org Khaled Alrabe** khaled@nipnlg.org NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD

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Case 4:20-cv-00304-AKK-JHE Document 11 Filed 04/27/20 Page 64 of 65
2201 Wisconsin Avenue NW, Suite 200 Washington, DC 20007 718.419.5876 Baher Azmy* bazmy@ccrjustice.org Ghita Schwarz* gschwarz@ccrjustice.org Angelo Guisado* aguisado@ccrjustice.org Guadalupe V. Aguirre* laguirre@ccrjustice.org Astha Sharma Pokharel* asharmapokharel@ccrjustice.org Brittany Thomas* bthomas@ccrjustice.org CENTER FOR CONSTITUTIONAL RIGHTSS 666 Broadway, 7th Floor New York, NY 11201 212.614.6427 Jeremy Jong* jermjong@gmail.com 3527 Banks Street New Orleans, LA 70119 504.475.6728 Counsel for Petitioners-Plaintiffs *pro hac vice applications forthcoming **admitted pro hac vice
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CERTIFICATE OF SERVICE I hereby certify that on April 27, 2020, I electronically filed the foregoing Amended Petition for Writ of Habeas Corpus and Complaint for Injunctive and Declaratory Relief with the Clerk of the Court using the CM/ECF system. Notice of this filing will be sent to all parties by operation of the Court’s electronic filing system.

Birmingham, AL Dated: April 27, 2020

/s/ Jessica Myers Vosburgh Jessica Myers Vosburgh

63

 
 Case 4:20-cv-00304-AKK-JHE

Document 16-1

Filed 04/28/20

Page 1 of 33

FILED

2020 Apr-28 PM 08:39

U.S. DISTRICT COURT

N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION

WILLIAMS, et al.,

Petitioners-Plaintiffs, v. HORTON, et al., Respondents-Defendants.

No. 4:20-cv-304-AKK-JHE ORAL ARGUMENT REQUESTED

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

Case 4:20-cv-00304-AKK-JHE Document 16-1 Filed 04/28/20 Page 2 of 33

INTRODUCTION Today’s COVID-19 pandemic is the worst the world has seen since 1918. Public health experts have admonished that the only effective way to reduce the risk of contagion is sustained social distancing and vigilant hygiene. Such measures are impossible to achieve in crowded detention centers. For this reason, health care professionals – including two of the Department of Homeland Security’s own medical experts – have urgently called for the release of detained immigrants, particularly elderly or medically vulnerable ones.1 Yet, RespondentsDefendants (Defendants) continue to confine over one hundred individuals in immigration custody in the Etowah County Detention Center (ECDC), including those at severe risk of severe illness or death, despite the ready availability of release, including on community-based alternatives to detention. Ignoring these warnings, ICE’s Acting Director recently told Congress that it will no longer release individuals – even those at high risk for serious injury or death – because doing so could give the impression that the Trump Administration is “not enforcing our immigration laws.”2

1

Catherine E. Shoichet, Doctors Warn of 'Tinderbox Scenario' if Coronavirus Spreads in

ICE Detention, CNN (Mar. 20, 2020), https://www.cnn.com/2020/03/20/health/doctors-ice-

detention-coronavirus/index.html.

2

HOUSE COMM. ON OVERSIGHT AND REFORM, DHS Officials Refuse to Release Asylum

Seekers and 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-violent-detainees

1

Case 4:20-cv-00304-AKK-JHE Document 16-1 Filed 04/28/20 Page 3 of 33
Petitioners-Plaintiffs (Plaintiffs) are eighteen individuals detained in the custody of U.S. Immigration and Customs Enforcement (ICE) in ECDC who, due to their age and preexisting medical conditions, are particularly vulnerable to serious illness or death if infected by the novel coronavirus that causes COVID-19. While imprisoned, it will be impossible for them to engage in necessary social distancing and personal hygiene practices to protect themselves and others. They are vulnerable to infection as they eat, sleep, and otherwise commingle in tight proximity to others, and because conditions in the jail are notoriously unsanitary, lacking sufficient supplies of soap, hand sanitizer, cleaning materials and personal protective equipment, and access to adequate nutrition and medical care.
Even with the measures Defendants are implementing to limit the spread of COVID-19, immigration detention centers and local jails are a hotbed for spread of the virus, which broadly endangers public health, will strain vulnerable hospital systems, and exposes persons in civil detention such as Plaintiffs to conditions that constitute unlawful punishment in violation of due process. Without this Court’s intervention, these especially vulnerable Plaintiffs will continue to face the imminent risk of severe illness or death. Release under appropriate conditions is the only meaningful way to protect Plaintiffs from grave, irreparable harm, and this Court, like many others who have already acted, is authorized to order it.
2

Case 4:20-cv-00304-AKK-JHE Document 16-1 Filed 04/28/20 Page 4 of 33
FACTUAL BACKGROUND I. COVID-19 Is an Unprecedented and Lethal Pandemic.
COVID-19 is a highly contagious disease that is easily transmitted through respiratory droplets, especially when one is within six feet of an infected individual. Ex. 19, Declaration of Dr. Jaimie Meyer ¶ 20. It can result in severe and widespread damage to lungs, heart, liver, or other organs. In many cases, COVID19 results in death. Id. ¶ 21. A patient’s condition can seriously deteriorate within days.3 Those who develop serious complications will need advanced medical support. Id. ¶ 22. This level of support is especially difficult to provide for detained individuals. See id. ¶¶ 16, 32-33.
There is no vaccine against COVID-19, nor any known medication to prevent or treat infection. Id. ¶ 19. The only currently effective measure to reduce the risk of infection and thus severe illness or death to vulnerable individuals is to enforce regular social distancing (remaining physically separated from known or potentially infected individuals) and vigilant hygiene, including frequently washing hands with soap and water. Id. ¶¶ 9-12.
II. COVID-19 is Exceedingly Dangerous for Individuals Like Plaintiffs, Who Have Underlying Health Concerns.

3

CENTERS FOR DISEASE CONTROL AND PREVENTION, Interim Clinical Guidance for

Management of Patients with Confirmed Coronavirus Disease (COVID-19) (revised Apr. 3,

2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-

patients.html.

3

Case 4:20-cv-00304-AKK-JHE Document 16-1 Filed 04/28/20 Page 5 of 33
Older individuals and those with certain medical conditions face greater chances of serious illness or death from COVID-19. Id. ¶ 21; Ex. 20, Declaration of Dr. Ellen Eaton ¶ 26. These conditions include lung disease (including asthma), liver or kidney disease, diabetes, hypertension, compromised immune systems, blood disorders, and cancer. Meyer Decl. ¶ 21; Eaton Decl. ¶ 11. Individuals detained in immigration detention centers, including those at ECDC, are also more susceptible to experiencing complications from infectious diseases than the population at large. Meyer Decl. ¶ 14.
Dr. Ellen Eaton, an infectious disease specialist at the University of Alabama at Birmingham School of Medicine and Branch Director for Special Populations at Jefferson County’s COVID-19 Unified Command Services, has specifically determined that each Plaintiff faces a substantial risk of severe illness or death from continued detention. Eaton Decl. ¶ 38. If released from detention, each Plaintiff has a place to reside where they can practice self-isolation and proper hygiene, thus dramatically reducing their risk of injury or death from COVID-19 and alleviating the risk posed to the local jail staff, the surrounding community, and the public at large. ● Sarail Michael Archilla suffers from hypertension and chronic asthma, which
puts him at heightened risk of severe illness or death if he contracts COVID-19. Eaton Decl. ¶ 38(a). He has a place to live if released. Ex. 2, Archilla Decl. ¶ 13.
4

Case 4:20-cv-00304-AKK-JHE Document 16-1 Filed 04/28/20 Page 6 of 33
● Maxime P. Blanc suffers from pre-diabetes, high cholesterol, and hypertension, which put him at heightened risk of severe illness or death if he contracts COVID-19. Eaton Decl. ¶ 38(b). He has a place to live if released. Ex. 3, Blanc Decl. ¶ 13.
● Geovanny Gerardo Castellano is 60 years old and suffers from hypertension and heart disease, which put him at heightened risk of severe illness or death if he contracts COVID-19. Eaton Decl. ¶ 38(c). He has a place to live if released. Ex. 4, Castellano Decl. ¶ 13.
● Antonio Melquezideth Castro suffers from a history of chronic kidney disease and lung disease that put him at heightened risk of severe illness or death if he contracts COVID-19. Eaton Decl. ¶ 38(d). He has a place to live if released. Ex. 5, Castro Decl. ¶ 15-16.
● Edson Flores suffers from hypertension, high cholesterol, and diabetes, which put him at heightened risk of severe illness or death if he contracts COVID-19. Eaton Decl. ¶ 38(e). He has a place to live if released. Ex. 6, Flores Decl. ¶ 13.
● Ray Fuller is 54 years old and suffers from hypertension and cardiopulmonary disease, which put him at heightened risk of severe illness or death if he contracts COVID-19. Eaton Decl. ¶38(f). He has a place to live if released. Ex. 7, Fuller Decl. ¶ 12.
● Jose Antonio Garcia Rivera is 62 years old4 and also suffers from asthma, which put him at high risk of severe illness or death if he contracts COVID-19. Eaton Decl. ¶38(g). He has a place to live if released. Ex. 8, Garcia Rivera Decl. ¶10.
● Karim Tahir Golding suffers from asthma, putting him at heightened risk of severe illness or death if he contracts COVID-19. Eaton Decl. ¶38(h). He has a place to live if released. Ex. 9, Golding Decl. ¶ 12.

4

Although ICE alleges that Mr. Garcia Rivera is 56 years old, see Corrected Amended

Petition and Complaint for Injunctive and Declaratory Relief (Doc. 11) at 12 n.22, even

assuming this is correct, his age and medical condition still place him at heightened risk of

severe illness or death from COVID-19.

5

Case 4:20-cv-00304-AKK-JHE Document 16-1 Filed 04/28/20 Page 7 of 33
● Alex Hernandez suffers from hypertension and other medical complications, which puts him at heightened risk of severe illness or death if he contracts COVID-19. Eaton Decl. ¶ 38(i). He has a place to live if released.
● Bakhodir Madjitov suffers from hypertension and a chronic heart condition which causes his heart to beat abnormally slow, as well as other serious but undiagnosed medical conditions, putting him at heightened risk of severe illness or death if he contracts COVID-19. Eaton Decl. ¶ 38(j). He has a place to live if released. Ex. 11, Madjitov Decl. ¶36.
● Kenneth Manning is 61 years old and has a history of prostate cancer and heart disease, putting him at heightened risk of severe illness or death if he contracts COVID-19. Eaton Decl. ¶ 38(k). He has a place to live if released. Ex. 12, Manning Decl. ¶10
● Landry (Emily) Mbendeke suffers from xxxxxxxxxxxxxxxx, putting her at heightened risk of severe illness or death from COVID-19. Eaton Decl. ¶38(l). She has a place to live if released.
● Tesfa Miller suffers from hypertension, high cholesterol and chronic bronchitis, putting him at heightened risk of severe illness or death from COVID-19. Eaton Decl. ¶ 38(m). He has a place to live if released. Ex. 14, Miller Decl. ¶13.
● Allen Roger Olano Esparza suffers from hypertension, kidney disease, and an irregular thyroid, putting him at heightened risk of severe illness or death if he contracts COVID-19. Eaton Decl. ¶ 38(n). He has a place to live if released. Ex. 15, Olano Esparza Decl. ¶ 12.
● Sergio Quito suffers from hypertension and a seizure disorder, putting him at heightened risk of severe illness or death if he contracts COVID-19. Eaton Decl. ¶ 38(o). He has a place to live if released. Ex. 16, Quito Decl. ¶12.
● Joseph Debonnaire Soho suffers from hypertension and anemia, putting him at heightened risk of severe illness or death if he contracts COVID-19. Eaton Decl. ¶ 38(p). He has a place to live if released. Ex. 17, Soho Decl. ¶13.
● Churvin Webster is 57 years old and suffers from hypertension and asthma, putting him at heightened risk of severe illness or death if he contracts COVID-
6

Case 4:20-cv-00304-AKK-JHE Document 16-1 Filed 04/28/20 Page 8 of 33
19. Eaton Decl. ¶ 38(q). He has a place to live if released. Ex. 18, Webster Decl. ¶11. ● Randane Williams suffers from hypertension and a heart murmur, putting him at heightened risk of severe illness or death if he contracts COVID-19. Eaton Decl. ¶38(r). He has a place to live if released. Ex. 1, Williams Decl. ¶14. III. ICE Detention Facilities Like ECDC Are Ticking Time Bombs; They
Do Not, and Cannot, Meet Public Health Standards to Prevent Widespread Infections. Etowah County Detention Center is located in Gadsden, Alabama, and holds both ICE detainees and hundreds of county inmates. As of April 28 2020, there were 6,580 COVID-19 cases in Alabama and 241 deaths.5 Etowah County, where ECDC is located, has reported 125 confirmed cases and eight deaths as of April 26.6 Alabama’s healthcare system is entirely underprepared to respond to this public health crisis. Eaton Decl. ¶¶ 17, 19-22. Detention centers, prisons and jails present a particularly high risk of outbreaks, id. ¶ 29; Meyer Decl. ¶¶ 7-19, as exemplified by the skyrocketing numbers of cases in Mobile County Metro Jail where a third of those detained were already released,7 and in the Oakdale federal prison in Louisiana where seven prisoners have died of the disease and more than

5

ALABAMA DEP’T OF PUBLIC HEALTH, DIV. OF INFECTIOUS DISEASES & OUTBREAKS,

COVID-19 in Alabama, https://dph1.adph.state.al.us/covid-19/ (last accessed Apr. 28, 2020).

6

Id.

7

Mike Cason, Mobile County sheriff says 10 jail inmates have COVID-19, AL.COM (Apr.

15, 2020), https://www.al.com/news/2020/04/mobile-county-sheriff-says-10-jail-inmates-have-

covid-19.html; Christopher Harress, Amid COVID-19 pandemic, Mobile Metro Jail releases a

third of inmates, AL.COM (Apr. 10, 2020), https://www.al.com/news/2020/04/amid-covid-19-

pandemic-mobile-metro-jail-releases-a-third-of-inmates.html.

7

Case 4:20-cv-00304-AKK-JHE Document 16-1 Filed 04/28/20 Page 9 of 33
twenty have tested positive.8 The Alabama Department of Corrections saw its first coronavirus-related death earlier this month.9
According to a recent modeling study conducted by Brown University, between 72 and nearly 100 percent of individuals in ICE detention are expected to be infected with COVID-19 within 90 days of an infection reaching a facility.10 The study additionally found that, among the 132 individuals detained at ECDC, between 46 and 117 people will be infected within 30 days of an infection reaching the facility, between 92 and 126 people within 60 days, and between 104 and 126 people within 90 days.11
The only effective way to prevent infection is to practice proper hygiene and, crucially, social distancing: maintaining a distance of at least six feet between oneself and others. Meyer Decl. ¶¶ 9, 11, 12, 20. But this is impossible at ECDC, Eaton Decl. ¶ 29, and several Plaintiffs describe conditions that render it

8

Matt Sledge and Lea Skene, As death count grows, Louisiana prisons and jails grapple

with coronavirus spread, THE TIMES-PICAYUNE/THE NEW ORLEANS ADVOCATE/NOLA.COM (Apr.

25, 2020), https://www.nola.com/news/coronavirus/article_a261bbb8-8728-11ea-9a1f-

6bc823fbe5db.html.

9

Eddie Burkhalter, Alabama inmate died after testing positive for COVID-19. Two others

test positive, ALABAMA POLITICAL REPORTER (Apr. 17, 2020),

https://www.alreporter.com/2020/04/17/alabama-inmate-dies-from-covid-19-two-others-test-

positive/ 10 Michael Irvine, et al., Modeling COVID-19 and Impacts on U.S. Immigration and

Enforcement (ICE) Detention Facilities, J. OF URBAN HEALTH (forthcoming 2020),

https://whistleblower.org/wp-content/uploads/2020/04/Irvine_JUH_ICE_COVID19_model.pdf.

11

Id.

8

Case 4:20-cv-00304-AKK-JHE Document 16-1 Filed 04/28/20 Page 10 of 33
impossible to practice social distancing.12 They share bathrooms and a common
recreation and dining area. Id. To make matters worse, Defendants have not
adopted adequate mitigation measures: jail staff often do not properly wear masks
or gloves, and Plaintiffs do not have adequate access to soap and hand sanitizer or personal protective equipment (PPE).13 Detained individuals have limited or no access to gloves and only recently received a single mask, to be reused.14 ECDC staff have provided no – or incorrect – information regarding COVID-19 safety.15
Individuals who are ill – including those presenting symptoms consistent with COVID-19 – are not tested or given adequate medical care. Eaton Decl. ¶ 33.16
The absence of systematic testing, the daily entry of staff and contractors
from the community, and the continued influx and transfer of dozens of new people into and out of ECDC on a daily or weekly basis17 make it so that “COVID-
19 cases may not be detected until there is already a full-blown outbreak in the jail
with multiple individuals experiencing serious illness.” Eaton Decl. ¶ 33.
IV. ICE’s Response to COVID-19 Is Insufficient to Prevent the Spread of This Life-Threatening Disease.
12 Ex. 10, Hernandez Decl. ¶¶5, 7; Castellano Decl. ¶5; Flores Decl. ¶¶4-5; Fuller Decl. ¶5; Madjitov Decl. ¶¶ 12-13; Manning Decl. ¶¶4, 6; Castro Decl. ¶5; Golding Decl. ¶10; Williams Decl. ¶4. 13 Golding Decl. ¶11; Hernandez Decl. ¶ 4; Castellano Decl. ¶ 5; Fuller Decl. ¶ 5. 14 Castellano Decl. ¶ 5; Fuller Decl. ¶ 5; Madjitov Decl. ¶ 10; Manning Decl. ¶ 6; Castro Decl. ¶ 5; Golding Decl. ¶ 11; Williams Decl. ¶ 5. 15 Hernandez Decl. ¶ 4; Madjitov Decl. ¶¶ 15, 23, 27; Olano Esparza Decl. ¶ 4 16 Hernandez Decl. ¶ 6; Madjitov Decl. ¶¶ 18, 27, 28. 17 See, e.g., Hernandez Decl. ¶¶ 5-6; Madjitov Decl. ¶ 16.
9

Case 4:20-cv-00304-AKK-JHE Document 16-1 Filed 04/28/20 Page 11 of 33

As these conditions show, Defendants have not and cannot ensure mitigation

of COVID-19 in ECDC or other ICE detention facilities. Eaton Decl. ¶ 29-36; Ex.

22, Decl. of Susan E. Hassig, MPH, DrPH ¶¶ 5, 10. As of April 21, 2020, ICE had

tested only 425 people among the over 32,000 it detains. Of these, 253 tested positive.18 While ICE’s current policy appears to be to “cohort” those who are at

high epidemiologic risk, this is insufficient and even counter-productive: in the

absence of adequate distancing within the cohort, additional infections will occur,

Hassig Decl. ¶ 9; not everyone who contracts the virus is symptomatic, Eaton Decl.

¶ 33; and few detention centers have negative pressure rooms, which are required

to prevent spread of the virus from the isolated individual’s room to others. Eaton

Decl. ¶ 35.

On April 10, 2020, ICE’s Enforcement and Removal Office (ERO) issued a

document entitled “COVID-19 Pandemic Response Requirements” (PRR)

outlining recommendations for detention facilities to contain the spread of the disease.19 For example, the PRR urges that facilities “adhere to CDC recommendations for cleaning and disinfection during the COVID-19 response,”20

which in turn urge that “staff and incarcerated/detained people performing cleaning

18 Associated Press, Scant Testing in US Migration System Risks Spreading Virus, N.Y.

TIMES (Apr. 17, 2020), https://www.nytimes.com/aponline/2020/04/17/world/americas/ap-lt-

virus-outbreak-deportees.html.

19

IMMIG. AND CUSTOMS ENFORCEMENT, ENFORCEMENT AND REMOVAL OPERATIONS,

COVID-19 Pandemic Response Requirements (Apr. 10, 2020),

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

20

Id. at 9.

10

Case 4:20-cv-00304-AKK-JHE Document 16-1 Filed 04/28/20 Page 12 of 33
wear PPE.”21 However, detained people at ECDC are not provided with appropriate cleaning supplies.22 Contradicting the CDC’s guidelines, the PRR does not require social distancing, saying that it “may not be possible in congregate settings such as detention facilities,” so instead recommends alternative measures including directing people to “avoid congregating in groups of 10 or more, employing social distancing strategies at all times.”23 Based on Plaintiffs’ descriptions of crowded conditions, this is not possible at ECDC. Moreover, the PRR fails to recognize the basic fact that social distancing at all times is absolutely required to combat this virus. Hassig Decl. ¶7. Indeed, both at points of entry into ECDC and during periods of detention, the PRR is woefully insufficient to prevent spread of the virus. Hassig Decl.¶¶ 8-12. The PRR’s guidance on screening and nonexistent guidance on testing are also entirely inadequate. Hassig Decl. ¶ 8; 14.
Further, although ICE has temporarily suspended social visitation in all detention facilities, staff, contractors, and vendors continue to arrive and leave the detention centers. Detained individuals are also frequently transported to, from, and between facilities – ICE has not stopped transferring individuals into ECDC,

21

CENTERS 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/community/correction-detention/guidance-

correctional-detention.html.

22 Madjitov Decl. ¶9; Castro Decl. ¶5; Williams Decl. ¶5.

23

Id. at 13.

11

Case 4:20-cv-00304-AKK-JHE Document 16-1 Filed 04/28/20 Page 13 of 33

even after the CDC recommended against transfers on March 23, 2020.24 Additionally, ECDC also detains hundreds of pre-trial and post-sentence county inmates. Although those detained in county custody are in separate units, staff and contractors move between units, and county inmates who have cleaning, commissary, meal delivery and other job duties leave their units and in some cases enter the ICE units. This creates a dangerous path of transmission from the Etowah County community to ECDC and from unit to unit within ECDC – and then back out to the community, when staff and contractors return home. The facility has also adopted measures—including crowding the entire ICE population of over one hundred detainees into a single housing unit within the jail,25 and using a “fogger” machine to spray disinfectant throughout the housing units,26 – that are in direct contravention of public health experts’ recommendations on social

24

CENTERS FOR DISEASE CONTROL AND PREVENTION, Interim Guidance on Management of

Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, at 9 (Mar. 23,

2020), https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidance-correctional-

detention.pdf; see, e.g., Hernandez Decl. ¶ 6 (“This has not stopped ICE from bringing new

people into our unit. ICE transferred five new people into our dorm this weekend.” (dated Mar.

30, 3020)).

25 See, e.g., Blanc Decl. ¶ 5 (“Unit 9 is designed and run like a jail with approximately 110

detainees. Previously, immigration detainees were in two units but we have now all been

crammed into a single unit. Most cells in Unit 9 are shared by at least two detainees.”);

Castellano Decl. ¶ 4; Flores Decl. ¶ 4; Golding Decl. ¶ 10; see also Ryan Devereaux, “Burials

are Cheaper than Deportations”: Virus Unleashes Terror in A Troubled Detention Center, THE

INTERCEPT (Apr. 12, 2020), https://theintercept.com/2020/04/12/coronavirus-ice-detention-jail-

alabama/.

26 Dustin Fox, Commissioners approve emergency funding for Sheriff’s Department,

District Attorney, amid COVID-19, GADSDEN TIMES (Apr. 7, 2020),

https://www.gadsdentimes.com/news/20200407/commissioners-approve-emergency-funding-for-

sheriffs-department-district-attorney-amid-covid-19.

12

Case 4:20-cv-00304-AKK-JHE Document 16-1 Filed 04/28/20 Page 14 of 33

distancing and proper hygiene, see Eaton Decl. ¶ 30, potentially putting Plaintiffs at even greater risk.
Anything short of aggressive screening and testing of detained individuals, staff, and other care and service providers who enter the facility is insufficient to prevent infection. Neither ICE nor ECDC has the resources necessary to engage in such an effort. Meyer Decl. ¶¶ 15, 30; Eaton Decl. ¶ 33. Importantly, the COVID19 pandemic – and ICE’s unsatisfactory response to it – will significantly strain ICE’s already broken medical care system, while the healthcare system in surrounding areas is expected to soon be overloaded, significantly reducing the capacity to provide emergency, life-saving medical care to all. Eaton Decl. ¶¶ 1922. Long before the COVID-19 outbreak, numerous reports (including by DHS itself) have identified serious and substantial flaws in ICE’s medical care system.27

27

DHS OFF. OF THE INSPECTOR GEN., Concerns About ICE Detainee Treatment and Care at

Detention Facilities, OIG-18-32 at 7 (Dec. 11, 2017),

https://www.oig.dhs.gov/sites/default/files/assets/2017-12/OIG-18-32-

Dec17.pdf. See also, e.g., U.S. GOV’T ACCOUNTABILITY OFF., GAO-16-23: Immigration

Detention: Additional Actions Needed to Strengthen Mgmt. and Oversight of Detainee Med.

Care (Feb. 2016), https://www.gao.gov/assets/680/675484.pdf; HUMAN RTS. WATCH et al., Code

Red: The Fatal Consequences of Dangerously Substandard Med. Care in Immigration

Detention, at 15, 19, 25, 46 (Jun. 2018),

https://www.hrw.org/sites/default/files/report_pdf/us0618_immigration_web2.pdf; J. David

McSwane, ICE Has Repeatedly Failed to Contain Contagious Diseases, Our Analysis Shows.

It’s a Danger to the Public, PROPUBLICA (Mar. 20, 2020),

https://www.propublica.org/article/ice-has-repeatedly-failed-to-contain-contagious-diseases-our-

analysis-shows-its-a-danger-to-the-public; HUMAN RTS. WATCH & CIVIC, Systemic Indifference:

Dangerous & Substandard Medical Care in US Immigration Detention (May 8, 2017),

https://www.hrw.org/report/2017/05/08/systemic-indifference/dangerous-substandard-medical-

care-us-immigration-detention (featuring data and interviews with individuals detained at ECDC

and other detention centers known for inadequate medical care).

13

Case 4:20-cv-00304-AKK-JHE Document 16-1 Filed 04/28/20 Page 15 of 33
V. The Consensus of Public Health Experts is That Individuals Most Vulnerable to COVID-19 Should Be Immediately Released to Protect Them From Serious Illness or Death.
Public health experts with experience in immigration detention have
recommended the release of medically vulnerable individuals as the only adequate
measure to protect their lives. Two DHS medical experts sent a letter to Congress
warning of the severe public health risks of keeping individuals detained and
recommending release of most persons in immigration detention, stating that
“acting immediately will save lives not only of those detained, but also detention staff and their families, and the community-at-large.”28 A former Acting Director
of ICE has stated that ICE “can, and must, reduce the risk [COVID-19] poses to so
many people, and the most effective way to do so is to drastically reduce the number of people it is currently holding.”29
Releasing the most vulnerable people, such as Plaintiffs, would also reduce
the burden on regional hospitals and health centers, which will have to respond to
the surge of serious illnesses from the ECDC population and the population at
28 Letter from Dr. Scott Allen and Dr. Josiah Rich, to House Comm. on Homeland Sec. (Mar. 19, 2020), https://www.documentcloud.org/documents/6816336-032020-Letter-From-DrsAllen-Rich-to-Congress-Re.html#document/p4/a557238; Shoichet, Doctors Warn of “Tinderbox Scenario”, supra n. 1. 29 John Sandweg, I Used to Run ICE. We Need to Release the Nonviolent Detainees, THE ATLANTIC MONTHLY (Mar. 22, 2020), https://www.theatlantic.com/ideas/archive/2020/03/release-ice-detainees/608536/; Camilo Montoya-Galvez, “Powder kegs”: Calls grow for ICE to release immigrants to avoid coronavirus outbreak, CBS NEWS (Mar. 19, 2020), https://www.cbsnews.com/news/coronavirusice-release-immigrants-detention-outbreak/.
14

Case 4:20-cv-00304-AKK-JHE Document 16-1 Filed 04/28/20 Page 16 of 33
large.30 Meyer Decl. ¶¶ 16, 35-37; Eaton Decl. ¶¶ 19-22. Jurisdictions across the
United States have recognized the importance of significantly thinning the prison
and jail population. On March 26, Attorney General Barr issued a directive to the
Board of Prisons urging reduction of the prison population through the use of home
confinement.31 Numerous jurisdictions across the United States including Mobile
County, Alabama, New Orleans, Los Angeles, New York, and Chicago have also
released detained individuals for the same reasons.32 On March 22, the New Jersey
Supreme Court issued a consent order for the presumptive release of approximately
1,000 persons by March 26. On April 2, Alabama Governor Kay Ivey issued a
supplement to Alabama’s State of Emergency allowing local officials to reduce the
size of the local detained population.33
ARGUMENT
Under Rule 65 of the Federal Rules of Civil Procedure, a movant is entitled
to a temporary restraining order to preserve the status quo—here, the health and
30 A forthcoming study in the Journal of Urban Health modeling COVID-19 outbreaks in ICE facilities found that outbreaks in ICE detention centers may overwhelm nearby ICU beds. See Irvine, et al., Modeling COVID-19 and Impacts on U.S. Immigration and Enforcement (ICE) detention facilities, supra n.10. 31 See William Barr, Prioritization of Home Confinement as Appropriate in Response to COVID-19 Pandemic (Mar. 26, 2020), https://www.politico.com/f/?id=00000171-1826-d4a1ad77-fda671420000; William Barr, Increasing Use of Home Confinement at Facilities Most Affected by COVID-19 (Apr. 3, 2020), available at https://www.politico.com/f/?id=000001714255-d6b1-a3f1-c6d51b810000. 32 Harress, Amid COVID-19 pandemic, Mobile Metro Jail releases a third of inmates, supra n.6. 33 Gov. Kay Ivey, Fifth Supplemental SOE COVID-19 (Apr. 2, 2020), https://governor.alabama.gov/assets/2020/04/2020-04-02-Fifth-Supplemental-SOE_COVID19.pdf
15

Case 4:20-cv-00304-AKK-JHE Document 16-1 Filed 04/28/20 Page 17 of 33
lives of Plaintiffs—by showing: (1) a substantial likelihood of success on the merits of their claims for relief; (2) a substantial threat of in irreparable injury absent the injunction; (3) that the threatened injury outweighs any damage that injunction may cause the opposing party; and (4) that the injunction will not disserve public interest. Levi Strauss & Co. v. Sunrise Int’l Trading Inc., 51 F.3d 982, 985 (11th Cir. 1995); accord Friedenberg v. Sch. Bd. of Palm Beach Cty., 911 F.3d 1084, 1090 (11th Cir. 2018). “Where, as here, the ‘balance of the equities weighs heavily in favor of granting the [injunction]’ the Plaintiffs need only show a ‘substantial case on the merits.’” Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1289, 1298 (11th Cir. 2005). The Court likewise has wholly independent authority under habeas corpus, 28 U.S.C. § 2241, to order immediate release from unconstitutional confinement.
There is voluminous record evidence showing that Plaintiffs, through likely exposure to the surging COVID-19 pandemic, are particularly vulnerable to severe illness and death, which constitutes the clearest form of irreparable harm that the law recognizes. In contrast, Defendants can identify no sufficiently countervailing interest in continuing to subject those in civil immigration detention to such a grave health risk, particularly in light of the less restrictive alternatives readily available to them. In recent weeks, dozens of courts have ordered detained persons released because such conditions impose unconstitutional punishment on persons in civil
16

Case 4:20-cv-00304-AKK-JHE Document 16-1 Filed 04/28/20 Page 18 of 33
detention or otherwise reflect deliberate indifference to plaintiffs in violation of due process. I. PLAINTIFFS WILL SUFFER IRREPARABLE HARM IN THE
ABSENCE OF A TEMPORARY RESTRAINING ORDER “A showing of irreparable injury is ‘the sine qua non of injunctive relief.’” Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (quoting Ne. Fla. Chapter of Ass'n of Gen. Contractors v. Jacksonville, 896 F.2d 1283, 1285 (11th Cir. 1990)). The Eleventh Circuit requires only a “substantial likelihood” of irreparable injury. Id. at 1179. “An injury is ‘irreparable’ only if it cannot be undone through monetary remedies.” Ne. Fla. Chapter of Ass’n of Gen. Contractors v. Jacksonville, 896 F.2d 1283, 1285 (11th Cir. 1990). Without emergency relief from this Court, Plaintiffs face a substantial threat of imminent illness and injury, including possible death – harms no court can otherwise remedy, which establishes irreparable harm. See, e.g., M.R. v. Dreyfus, 697 F.3d 706, 729 (9th Cir. 2012); see Vazquez-Berrera v. Wolf, No. 20-cv-1241, ECF No. 41 at 14 (S.D. Tex. Apr. 17, 2020) (“Given Plaintiffs’ vulnerabilities to serious illness if infected with the coronavirus and the serious and imminent risk of infection if they remain in immigration detention, Plaintiffs have shown irreparable harm.”). And, short of release, there are no sufficient measures – preventative or palliative – that Defendants can implement to protect Plaintiffs from the crowded, unsanitary conditions in ECDC. Eaton Decl. ¶¶ 29-33. COVID-19 poses
17

Case 4:20-cv-00304-AKK-JHE Document 16-1 Filed 04/28/20 Page 19 of 33
unprecedented threats to the safety of these individuals – and those who come in contact with them, including ICE staff, healthcare providers, and local populations – necessitating their release. Meyer Decl. ¶¶ 35-37; Eaton Decl. ¶¶ 34-36.
Plaintiffs can also demonstrate irreparable harm through a showing, see infra Section II, that Defendants have violated their constitutional rights. See Cunningham v. Adams, 808 F.2d 815, 822 (11th Cir. 1987); Castillo v. Barr, No. CV 20-00605-TJH, ECF No. 32, at 9 (C.D. Cal. Mar. 27, 2020) (exposure to risk of “harm caused by a pandemic,” violates constitutional rights and is irreparable injury). II. PLAINTIFFS ARE LIKELY TO SUCCEED ON THEIR DUE
PROCESS CLAIMS
A. Plaintiffs’ Continued Detention Violates Their Due Process Right To Protection From Harm And To Be Free From Punitive Conditions.
When the government holds individuals in its custody, the Constitution imposes an obligation to provide for their basic human needs, including medical care and reasonable safety. DeShaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 199–200 (1989).
The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety—it transgresses the
18

Case 4:20-cv-00304-AKK-JHE Document 16-1 Filed 04/28/20 Page 20 of 33
substantive limits on state action set by the Eighth Amendment and the Due Process Clause. Id. (citations omitted); accord Hamm v. DeKalb County, 774 F.2d 1567, 1573 (11th Cir. 1985); Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cty., 402 F.3d 1092, 1115 (11th Cir. 2005).
1. Because They Are Confined in Civil Immigration Custody, Plaintiffs Have a Right to be Free From Punitive Confinement.
A person in civil immigration detention has due process rights that are, at a minimum, similar to those of a person detained in pretrial detention prior to an adjudication of guilt. Due process mandates that those in civil detention not be punished. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979); Magluta v. Samples, 375 F.3d 1269, 1273 (11th Cir. 2004). Unlike individuals in prison, where the state interest in detention is much higher and punishment is unconstitutional only if it is cruel and unusual, for persons in civil or pretrial detention, due process prevents imposition of any punishment whatsoever. See Marsh v. Fla. Dep’t of Corrections, 330 F. App’x 179 (11th Cir. 2009); Lynch v. Baxley, 744 F.2d 1452, 1462-63 (11th Cir. 1984); Youngberg v. Romeo, 457 U.S. 307 at 322 (persons in civil detention are entitled to “more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.”).
Detention amounts to impermissible punishment when “it is not reasonably related to a legitimate goal,” if it is “‘excessive’ in relation to a legitimate goal,” or
19

Case 4:20-cv-00304-AKK-JHE Document 16-1 Filed 04/28/20 Page 21 of 33
if it is otherwise “arbitrary or purposeless.” Wolfish, 441 U.S. at 539; Jacoby v. Baldwin County, 835 F.3d 1338, 1345 (11th Cir. 2016). To make this showing, a plaintiff need not demonstrate the defendant has a subjective or malicious intent to punish. Jacoby, 835 F.3d at 1345.
Given the cramped, unsanitary, and irremediably perilous conditions in ICE detention facilities, and at ECDC in particular, Plaintiffs face a substantial risk of contracting COVID-19. And once these at-risk Plaintiffs are exposed, they are vulnerable to severe illness or death. Continued detention of Plaintiffs is an imminent threat to their lives that is clearly excessive in relation to any purported government goal, and therefore amounts to punishment, particularly where ICE possesses less restrictive means to achieve its ends. As the Southern District of Texas recently stressed in finding a substantive due process violation and ordering release of an individual detained by ICE, “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,” including “conditional supervision.” VazquezBerrera v. Wolf, No. 20-cv-1241, ECF No. 41, at 14 (S.D. Tex. Apr. 17, 2020).34
B. Continuing Detention Constitutes Deliberate Indifference to a Substantial Risk of Serious Harm.
34 This alternative supervision program is highly effective, with a 99% attendance rate at all immigration court hearings and a 95% attendance rate at final hearings among supervised individuals. U.S. GOV’T ACCOUNTABILITY OFF., GAO-15-26, Alternatives to Detention: Improved Data Collection and Analyses Needed to Better Assess Program Effectiveness 30 (Nov. 2014), https://www.gao.gov/assets/670/666911.pdf.
20

Case 4:20-cv-00304-AKK-JHE Document 16-1 Filed 04/28/20 Page 22 of 33
In addition to affirmatively imposing punitive conditions of confinement, supra Section II(A), a government official violates the Due Process Clause if he has acted or failed to act with deliberate indifference to the detained person’s needs. See Hamm v. DeKalb County, 774 F.2d 1567, 1574 (11th Cir. 1985). Courts find deliberate indifference when a plaintiff can show: (1) “an objectively serious medical need;” and (2) “that the prison official acted with deliberate indifference to that need.” Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004).
The Eleventh Circuit asks whether the official “knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” Gary v. Modena, 244 F. App’x 997, 999 (11th Cir. 2007) (quoting Farmer v. Brennan, 511 U.S. 825, 847 (1994)). But showing a likelihood of actual serious injury or death is not required. As the Supreme Court has ruled, confining individuals in crowded conditions where they are at risk of infectious disease is unconstitutional even when it “is not alleged that the likely harm would occur immediately and even though the possible infection might not affect all of those exposed,” and prison officials cannot be “deliberately indifferent to the exposure of inmates to a serious, communicable disease on the ground that the complaining inmate shows no serious current symptoms.” Helling v. McKinney, 509 U.S. 25, 33 (1993); see Tittle v. Jefferson Cty. Comm’n, 10 F.3d 1535, 1543 (11th Cir. 1994) (“Nor does it matter that some inmates may not be
21

Case 4:20-cv-00304-AKK-JHE Document 16-1 Filed 04/28/20 Page 23 of 33
affected by the condition, and that the harm is thus, in a sense, only potential harm
. . . ‘and even though the possible infection might not affect all of those exposed.’”
) (quoting Helling, 509 U.S. at 33); see also Gates v. Collier, 501 F.2d 1291, 1300
(5th Cir. 1974) (prison conditions, including the fact that “inmates with serious
contagious diseases are allowed to mingle with the general prison population,”
violate the Eighth Amendment). The Middle District of Louisiana just held that a
prisoner-plaintiff (not a civil detainee) was likely to succeed in Eighth Amendment
deliberate indifference claim simply because of inability of prison to fully comply
with CDC guidelines. See Marlowe v. Leblanc, No. 18-cv-063, ECF No. 115, at 10
(M.D. La. Apr. 23, 2020). Numerous courts across the country have recognized the
heightened risk to individuals in detention and have ordered their release,
compelling a similar result here for these vulnerable Plaintiffs facing an escalating spread of COVID-19 in Alabama and its jails and detention centers.35
35 See, e.g., Fraihat v. ICE, EDCV 19-1546 JGB (SHKx), 2020 WL 1932570 (C.D. Cal. Apr 20, 2020); Malam v. Adducci, No. 20-10829 (E.D. Mich. Apr. 20, 2020) (order granting preliminary injunction mandating release); Fraihat v. Wolf, No. ED CV 20-00590 TJH (KSx) (C.D. Cal. Mar 30, 2020); Coronel, et al. v. Decker, No. 1:20-cv-02472-AJN, 2020 U.S. Dist. LEXIS 53954 (S.D.N.Y. Mar. 27, 2020); Calderon Jimenez v. Wolf, No. 18-10225 (MLW), ECF No. 507 (D. Mass. Mar. 26, 2020); Umana Jovel v. Thomas Decker, et al., No. 1:20-cv-00308GBD-SN, 2020 U.S. Dist. LEXIS 52095 (S.D.N.Y. Mar. 24, 2020); Basank, et. al. v. Decker, et al., No. 1:20-cv-02518-AT, 2020 U.S. Dist. LEXIS 53191 (S.D.N.Y. Mar. 26, 2020); XochihuaJaimes v. Barr, No. 18-cv-71560, 2020 U.S. App. LEXIS 9190 (9th Cir. Mar. 23, 2020); Hope v. Doll, No. 1:20-cv-5622020, U.S. Dist. LEXIS 63970 (M.D. Pa. Apr. 7, 2020); In the Matter of the Request to Commute or Suspend County Jail Sentences, Case No. 84230 (N.J. Mar. 22, 2020); Matter of Extradition of Toledo Manrique, No. 19-mj-71055-MAG-1 (TSH), 2020 U.S. Dist. LEXIS 50017, at *1 (N.D. Cal. Mar. 19, 2020); United States v. Martin, No. 19 Cr. 140-13, 2020 U.S. Dist. LEXIS 46046, at *2 (D. Md. Mar. 17, 2020); Hernandez-Roman v. Wolf, 5:20-
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Case 4:20-cv-00304-AKK-JHE Document 16-1 Filed 04/28/20 Page 24 of 33

Defendants have actual knowledge of this substantial risk and are deliberately indifferent to it. The risk of COVID-19 to the health and lives of medically vulnerable individuals is front-page national and local news on a daily basis and, at this point, utterly obvious. See, e.g., Valderrama v. Rousseau, 780 F.3d 1108, 1116 (11th Cir. 2015) (knowledge of the risk of serious harm may be inferred by the obviousness of the risk) (citing Farmer, 511 U.S. at 842). ICE’s Guidance on COVID-19 recognizes these risks, and ICE’s prohibition on social visitation demonstrates a recognition of the importance of social distancing.36 Medical experts within DHS itself have described the risk of this virus to those in immigration detention.37 ICE has received numerous letters from experts, Members of Congress, and non-governmental organizations alerting it to the risk of COVID19.38 Persons in immigration detention, including in ECDC, have protested against the conditions that render them vulnerable during this pandemic.39 The World

cv-00768-TJH-PVC, 2020 U.S. Dist. LEXIS 72080, at X* (C.D. Cal. Apr. 23, 2020).Those cases

that are not available on electronic databases are attached to this brief as Exhibit 22.

36

IMMIG. AND CUSTOMS ENFORCEMENT, ICE Guidance on COVID-19, Confirmed Cases,

https://www.ice.gov/coronavirus (last accessed Apr. 25, 2020).
37 Shoichet, Doctors Warn of “Tinderbox Scenario”, supra n.1. 38 Letter from 763 non-governmental organizations to Matthew T. Albence, Acting Director

of ICE (Mar. 19, 2020), https://www.detentionwatchnetwork.org/

sites/default/files/ICE%20Response%20to%20Coronavirus%20for%20People%20Detained%20-

%20Organizational%20Sign%20on%20Letter%20-%20Final.pdf; Letter from Rep. Carolyn

Maloney and Rep. Jamie Raskin to Acting Secretary of DHS Chad Wolf (Mar. 11, 2020),

https://oversight.house.gov/sites/democrats.oversight.house.gov/files/2020-03-

11.CBM%20and%20JR%20to%20Wolf-DHS%20re%20COVID-19.pdf. 39 Kimberly Kindy et al., “Disaster waiting to happen”: Thousands of inmates released as

jails and prisons face coronavirus threat, WASHINGTON POST (Mar. 25, 2020),

https://www.washingtonpost.com/national/disaster-waiting-to-happen-thousands-of-inmates-

23

Case 4:20-cv-00304-AKK-JHE Document 16-1 Filed 04/28/20 Page 25 of 33
Health Organization and the CDC have emphasized the risk of this disease, its infectiousness, and its severity in those with underlying medical conditions.40 There are daily news articles about the death toll of COVID-19 and its impact on those with underlying medical conditions, particularly those in detention.41
In Alabama specifically, there is ample information available about the rapid spread of the virus. At 12:00 PM CST on April 21, 2020, 5,114 people had tested positive for COVID-19.42 By 6:45 PM CST the same day, more than 160 new cases were reported across the state.43 As of April 28 2020, there are 6,580 confirmed positive cases of COVID-19. Despite the rapid spread, less than one

released-as-jails-face-coronavirus-threat/2020/03/24/761c2d84-6b8c-11ea-b313-

df458622c2cc_story.html; Ryan Devereaux, “Burials Are Cheaper Than Deportations”: Virus

Unleashes Terror in a Troubled ICE Detention Center, THE INTERCEPT (Apr. 12, 2020), t

https://theintercept.com/2020/04/12/coronavirus-ice-detention-jail-alabama/.

40

CENTERS FOR DISEASE CONTROL AND PREVENTION, Information for Healthcare

Professionals: COVID-19 and Underlying Conditions, https://www.cdc.gov/coronavirus/2019-

ncov/hcp/underlying-conditions.html (last accessed Apr. 27, 2020); WORLD HEALTH ORG.,

Coronavirus Disease 2019 (COVID-19) Situation Report – 97 at 10 (Apr. 26, 2020),

https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200426-sitrep-97-

covid-19.pdf?sfvrsn=d1c3e800_6. 41 See, e.g., Abigail Hauslohner, Nick Miroff & Matt Zapotosky, Coronavirus Could Pose

Serious Concern in ICE Jails, Immigration Courts, WASHINGTON POST (Mar. 12, 2020),

https://www.washingtonpost.com/immigration/coronavirus-immigration-

jails/2020/03/12/44b5e56a-646a-11ea845d-e35b0234b136_story.html; Josiah Rich, Scott Allen

& Mavis Noah, 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-spreadcoronavirus/. 42 Alabama Now at 5,296 cases of COVID-19, 182 Deaths, WRBL (Apr. 21, 2020),

available at https://www.wrbl.com/news/alabama-news/evening-update-alabama-now-at-5296-

cases-of-covid-19-182-deaths/.

43

Id.

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percent of the state has been tested.44 Those incarcerated are at particular risk of harm: Alabama’s first reported COVID-19-related death was an incarcerated individual.45
C. ICE Lacks A Constitutionally Adequate Purpose For Continued Detention.
Civil confinement “constitutes a significant deprivation of liberty that requires due process protection,” and, thus, the government “must have ‘a constitutionally adequate purpose for the confinement.’” Jones v. United States, 463 U.S. 354, 361 (1983) (quoting O’Connor v. Donaldson, 422 U.S. 563, 574 (1975)). Accordingly, courts must ensure that the nature and duration of confinement bear “some reasonable relation to the purpose for which the individual is committed.” Jackson v. Indiana, 406 U.S. 715, 738 (1972); J.R. v. Hansen, 803 F.3d 1315, 1321 (11th Cir. 2015). And the reason for detention must be forwardlooking, in order to support a continuing, legitimate purpose, Foucha v. Louisiana, 504 U.S. 71 (1992), Zadvydas v. Davis, 533 U.S. 678 (2001); it cannot be punitive. Yet, Acting ICE Director Albence, who has jurisdiction over ECDC, effectively admitted that continued detention in these circumstances for these medically individuals is not related to any neutral and legitimate government reason. Rather,
44 Chip Brownlee, Is Alabama Ready to Ease COVID-19? A Look at the Data, ALABAMA POLITICAL REPORTER (Apr. 20, 2020), https://www.alreporter.com/2020/04/20/are-we-findingall-of-alabamas-covid-19-cases-definitely-not/. 45 First COVID-19 Related Death Reported in Alabama Prison, ST. CLAIR NEWS-AEGIS (Apr. 22, 2020), https://www.newsaegis.com/news/first-covid-19-related-death-reported-inalabama-prison/article_61dfaf84-84ba-11ea-9cc6-830719a9dcc4.html.
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it is to convince the public that ICE is “enforcing our immigration laws” – i.e. to publicly project a punitive purpose. Yet, “[r]etribution and deterrence are not legitimate nonpunitive governmental objectives,” particularly where governmental objectives “could be accomplished in so many alternative and less harsh methods.” Bell, 441 U.S. at 539 n. 20.
Once a valid basis for detention no longer exists, substantive due process requires the state to release the person. Foucha, 504 U.S. at 86 (ordering petitioner’s release from commitment to mental institution because there was no longer any evidence of mental illness); accord Kansas v. Hendricks, 521 U.S. 346, 363-64 (1997). Continuing to detain Plaintiffs in conditions that impose a substantial risk of illness or death eviscerates any legitimate purpose for their detention and fully authorizes release or, at a minimum, more narrowly tailored means to achieve any purportedly legitimate purpose of detention. See VazquezBerrera, 20-cv-1241, at 12 (“ICE has many other means besides physical detention to monitor noncitizens and ensure that they are present at removal proceedings and at time of removal,” including routine check-ins). III. THE BALANCE OF THE EQUITIES AND PUBLIC INTEREST
TILTS SHARPLY IN FAVOR OF PLAINTIFFS’ RELEASE Where, as here, the Government is a party to the case, the third and fourth injunction factors – the balance of the equities and the public interest – merge. Nken v. Holder, 556 U.S. 418, 435 (2009). An injunction would protect public
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health and safety, paramount considerations that weigh heavily in favor of an injunction. See, e.g., Grand River Enters. Six Nations, Ltd. v. Pryor, 425 F.3d 158, 169 (2d Cir. 2005) (referring to “public health” as a “significant public interest[]”); see also Dr. Allen and Dr. Rich Letter, supra n. 23 (“[I]t is essential to consider releasing all detainees who do not pose an immediate risk to public safety”).
Because Plaintiffs present minimal risk to community safety, the comparative burden to the government in releasing Plaintiffs is nominal.46 Release not only saves the government time and money, it actually reduces detention center density, decreasing the chances of COVID-19 transmission to detained persons, staff and their families, and the broader Etowah County community, and avoids correspondingly escalating medical costs. Eaton Decl. ¶¶ 19-22; 34-36. As the Vazquez Berrera court explained, “an outbreak among the . . . detainee population will inevitably spread through the surrounding community, as . . . staff members, who live outside the detention facility, will be exposed to sick detainees . . . [and] will put additional strain on hospitals and health care resources in the community.” No. 20-cv-1241, at 15. IV. IMMEDIATE RELEASE IS THE ONLY EFFECTIVE REMEDY FOR
PLAINTIFFS’ UNLAWFUL DETENTION, WHICH THE COURT
46 Although most Plaintiffs have one or more criminal convictions, many of those convictions are from over a decade ago, some carried no jail time, and every Plaintiff has served their sentence and is no longer confined in criminal custody (if they ever were in the first place). Thus, any supposed risk Plaintiffs may pose to the community based on their past convictions is highly speculative, unrelated to their current civil detention, and significantly outweighed by the grave risk facing Plaintiffs and the public at large if they remain in detention.
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HAS AMPLE AUTHORITY TO ORDER UNDER EITHER SECTION 2241 OR RULE 65. The Court has ample authority under 28 U.S.C. § 2241, and independently under Rule 65, to issue the release of detained persons – a remedy that has been ordered by numerous courts across the country in recent days. Habeas invests in federal courts broad, equitable authority to “dispose of the matter as law and justice require,” 28 U.S.C. § 2243, as the “very nature of the writ demands that it be administered with the initiative and flexibility.” Harris v. Nelson, 394 U.S. 286, 292 (1969). While it is clear in that habeas authorizes challenges to the fact or duration of detention, there is more ambiguity about whether habeas – as compared to traditional civil rights remedies against state officials, such as relief pursuant to 42 U.S.C. § 1983 – authorizes challenges to conditions of confinement. See Preiser v. Rodriguez, 411 U.S. 475, 499-500 (1973) (explicitly leaving this question open in the context of a habeas petition by a state prisoner). In this case, however, this is only an academic distinction. This petition does not challenge conditions of confinement in the way this purported distinction imagines. Vazquez-Berrera, No. 20-cv-1241, at 8 (“The mere fact that Plaintiffs’ constitutional challenge requires discussion of conditions in immigration detention does not necessarily bar such a challenge in a habeas petition.”). Plaintiffs are not seeking judicial intervention in order to alleviate harsh conditions; it is precisely
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because there is no judicial or administrative possibility of remediating their unconstitutional confinement that they are challenging the very fact of their confinement. See Malam v. Adducci, et al., No. 2:20-cv-10829-JEL-APP, ECF No. 22 at 8 (E.D. Mich. Apr. 5, 2020) (habeas appropriate for COVID-19 release because petitioner “seeks immediate release from confinement as a result of there being no conditions of confinement sufficient to prevent irreparable constitutional injury under the facts of her case.”).47 As such, they seek “the traditional function of the writ”: “release from illegal custody.” Preiser, 411 U.S. at 484.
Habeas confers “broad discretion in conditioning a judgment granting habeas relief . . . ‘as law and justice require’.” Hilton v. Braunskill, 481 U.S. 770, 775 (1987) (quoting 28 U.S.C. § 2243), including an order of release, Boumediene, 553 U.S. 723, 779 (2008), so as “to insure that miscarriages of justice . . . are surfaced and corrected.” Harris, 395 U.S. at 291.
Independent of the court’s authority under Section 2241, the court maintains under Rule 65 and its inherent equitable authority the power to remedy unconstitutional government conduct, including issuing orders “placing limits on a prison’s population.” Brown v. Plata, 563 U.S. 493, 511 (2011); see also Mobile Cty. Jail Inmates v. Purvis, 581 F. Supp. 222, 224-26 (S.D. Ala. 1984) (exercising
47 Accord Coreas v. Bounds, No. 20-0780, 2020 WL 1663133, at *7 (D. Md. Apr. 3, 2020); Mays v. Dart, No. 20 C 2134, 2020 WL 1812381, at *6 (N.D. Ill. Apr. 9, 2020); A.S.M. v. Donahue, No. 20-CV-62, 2020 WL 1847158, at *1 (M.D. Ga. Apr. 10, 2020); Wilson v. Williams, No. 20 cv 794, ECF No. 22 at 10-11 (N.D. Ohio, Apr. 22, 2020).
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remedial powers to order a prison’s population reduced to alleviate unconstitutional conditions). Accordingly, in the midst of this unprecedented public health crisis, numerous courts considering the plight of detained individuals have ordered release. See supra n. 35 and 47 (collecting sampling of cases). V. THE COURT SHOULD NOT REQUIRE PLAINTIFFS TO PROVIDE
SECURITY PRIOR TO ISSUING A TEMPORARY RESTRAINING ORDER. Courts have discretion to waive the Rule 65(c) requirement that the movant for a temporary restraining order provide security. BellSouth Telecomms., Inc. v. MCImetro Access Transmission Servs., LLC, 425 F.3d 964, 971 (11th Cir. 2005). District courts in this circuit routinely exercise this discretion to require no security in cases brought by indigent or incarcerated people. See, e.g., Schultz v. Alabama, 330 F. Supp. 3d 1344, 1376 (N.D. Ala. 2018) (county prisoners); Campos v. I.N.S., 70 F. Supp. 2d 1296, 1310 (S.D. Fla. 1998) (indigent immigrants). This Court should do the same here.
CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that this Court grant the motion for a temporary restraining order and order their immediate release from custody.
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Dated: April 28, 2020
/s/Jessica Myers Vosburgh Jessica Myers Vosburgh jessica@adelantealabama.org ADELANTE ALABAMA WORKER CENTER 2104 Chapel Hill Road Birmingham, AL 35216 205.317.1481
Sirine Shebaya* sirine@nipnlg.org Matthew S. Vogel** matt@nipnlg.org Khaled Alrabe** khaled@nipnlg.org NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Ave NW, Suite 200 Washington, DC 20007 718.419.5876

Baher Azmy* bazmy@ccrjustice.org Ghita Schwarz* gschwarz@ccrjustice.org Angelo Guisado* aguisado@ccrjustice.org Lupe Aguirre* laguirre@ccrjustice.org Astha Sharma Pokharel* asharmapokharel@ccrjustice.org Brittany Thomas* bthomas@ccrjustice.org CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 11201 212.614.6427
Jeremy Jong* jermjong@gmail.com 3527 Banks St, New Orleans, LA 70119 504.475.6728
*pro hac vice application forthcoming ** admitted pro hac vice
Counsel for Petitioners-Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that the above Plaintiffs’ Memorandum of Law in Support of Their Motion for a Temporary Restraining Order was on this day electronically filed with the Clerk of Court using the Court’s CM/ECF system. Notice of this filing will be sent to all parties by operation of the Court’s electronic filing system.

Dated: April 28, 2020

s/ Jessica Vosburgh Jessica Myers Vosburgh