JD1,MJ CIV PP,TERMED
U.S. District Court - District of Colorado District of Colorado (Denver)
CIVIL DOCKET FOR CASE #: 1:20-cv-01050-PAB

Leaford Codner et al v. Choate et al Assigned to: Chief Judge Philip A. Brimmer Case in other court: U.S. Court of Appeals, 10th Cir.,
20-01265 Cause: 28:2241in - Habeas Corpus: INS

Date Filed: 04/14/2020 Date Terminated: 05/28/2020 Jury Demand: None Nature of Suit: 463 Habeas Corpus Alien Detainee Jurisdiction: U.S. Government Defendant

Petitioner Jennifer (Gary) Leaford Codner

represented by Adrienne Darrow Boyd Arnold & Porter Kaye Scholer LLPDenver 1144 Fifteenth Street Suite 3100 Denver, CO 80202-2569 303-863-2393 Email: Adrienne.boyd@arnoldporter.com ATTORNEY TO BE NOTICED

Amber Nasir Qureshi National Immigration Project of the National Lawyers Guild 2201 Wisconsin Avenue NW Suite 200 Washington, DC 20007 202-470-2082 Fax: 617-227-5495 Email: amber@nipnlg.org ATTORNEY TO BE NOTICED

Laura Patricia Lunn Rocky Mountain Immigrant Advocacy Network 7301 Federal Boulevard Suite 300 Westminster, CO 80030 720-370-9100

Petitioner NDI Wilfred Temah

Fax: 303-433-2823 Email: llunn@rmian.org ATTORNEY TO BE NOTICED
Sirine Shebaya National Immigration Project of the National Lawyers Guild 2201 Wisconsin Ave NW Suite 200 Washington, DC 20007 202-656-4788 Fax: 617-227-5495 Email: sirine@nipnlg.org ATTORNEY TO BE NOTICED
Timothy R. Macdonald Arnold & Porter Kaye Scholer LLPDenver 1144 Fifteenth Street Suite 3100 Denver, CO 80202-2569 303-863-1000 Fax: 303-832-0428 Email: Timothy.Macdonald@arnoldporter.com ATTORNEY TO BE NOTICED
represented by Adrienne Darrow Boyd (See above for address) ATTORNEY TO BE NOTICED
Amber Nasir Qureshi (See above for address) ATTORNEY TO BE NOTICED
Laura Patricia Lunn (See above for address) ATTORNEY TO BE NOTICED
Sirine Shebaya (See above for address) ATTORNEY TO BE NOTICED
Timothy R. Macdonald

Petitioner Madeline (Flavio) Tatis Belliard
Petitioner Sanela Hamzic

(See above for address) ATTORNEY TO BE NOTICED
represented by Khaled Alrabe National Immigration Project of the National Lawyers Guild 2201 Wisconsin Avenue NW Suite 200 Washington, DC 20007 510-679-3994 Email: khaled@nipnlg.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adrienne Darrow Boyd (See above for address) ATTORNEY TO BE NOTICED
Amber Nasir Qureshi (See above for address) ATTORNEY TO BE NOTICED
Laura Patricia Lunn (See above for address) ATTORNEY TO BE NOTICED
Sirine Shebaya (See above for address) ATTORNEY TO BE NOTICED
Timothy R. Macdonald (See above for address) ATTORNEY TO BE NOTICED
represented by Adrienne Darrow Boyd (See above for address) ATTORNEY TO BE NOTICED
Amber Nasir Qureshi (See above for address) ATTORNEY TO BE NOTICED
Laura Patricia Lunn (See above for address) ATTORNEY TO BE NOTICED

Petitioner Rafael Soria Mora also known as Benigno Velasquez Arenas
Petitioner Naomi Lesther Rafael Hernandez Morales

Sirine Shebaya (See above for address) ATTORNEY TO BE NOTICED
Timothy R. Macdonald (See above for address) ATTORNEY TO BE NOTICED
represented by Adrienne Darrow Boyd (See above for address) ATTORNEY TO BE NOTICED
Amber Nasir Qureshi (See above for address) ATTORNEY TO BE NOTICED
Laura Patricia Lunn (See above for address) ATTORNEY TO BE NOTICED
Sirine Shebaya (See above for address) ATTORNEY TO BE NOTICED
Timothy R. Macdonald (See above for address) ATTORNEY TO BE NOTICED
represented by Adrienne Darrow Boyd (See above for address) ATTORNEY TO BE NOTICED
Amber Nasir Qureshi (See above for address) ATTORNEY TO BE NOTICED
Laura Patricia Lunn (See above for address) ATTORNEY TO BE NOTICED
Sirine Shebaya (See above for address) ATTORNEY TO BE NOTICED

Petitioner Heidi Nicole (Nilson Salmon) Hidalgo Mendoza
Petitioner Violet (Adan) Paz Alvarez
Petitioner

Timothy R. Macdonald (See above for address) ATTORNEY TO BE NOTICED
represented by Adrienne Darrow Boyd (See above for address) ATTORNEY TO BE NOTICED
Amber Nasir Qureshi (See above for address) ATTORNEY TO BE NOTICED
Laura Patricia Lunn (See above for address) ATTORNEY TO BE NOTICED
Sirine Shebaya (See above for address) ATTORNEY TO BE NOTICED
Timothy R. Macdonald (See above for address) ATTORNEY TO BE NOTICED
represented by Adrienne Darrow Boyd (See above for address) ATTORNEY TO BE NOTICED
Amber Nasir Qureshi (See above for address) ATTORNEY TO BE NOTICED
Laura Patricia Lunn (See above for address) ATTORNEY TO BE NOTICED
Sirine Shebaya (See above for address) ATTORNEY TO BE NOTICED
Timothy R. Macdonald (See above for address) ATTORNEY TO BE NOTICED

Alexa (Alexander) Marroquin Gonzalez
Petitioner Alison (Melvin) Mendoza Mendoza
Petitioner Iviian (Jose Angel) Montes Hernandez

represented by Adrienne Darrow Boyd (See above for address) ATTORNEY TO BE NOTICED
Amber Nasir Qureshi (See above for address) ATTORNEY TO BE NOTICED
Laura Patricia Lunn (See above for address) ATTORNEY TO BE NOTICED
Sirine Shebaya (See above for address) ATTORNEY TO BE NOTICED
Timothy R. Macdonald (See above for address) ATTORNEY TO BE NOTICED
represented by Adrienne Darrow Boyd (See above for address) ATTORNEY TO BE NOTICED
Amber Nasir Qureshi (See above for address) ATTORNEY TO BE NOTICED
Laura Patricia Lunn (See above for address) ATTORNEY TO BE NOTICED
Sirine Shebaya (See above for address) ATTORNEY TO BE NOTICED
Timothy R. Macdonald (See above for address) ATTORNEY TO BE NOTICED
represented by Adrienne Darrow Boyd (See above for address) ATTORNEY TO BE NOTICED
Amber Nasir Qureshi

Petitioner Monserrat (Rony Moises) Ramos Sierra
Petitioner Alexandra (Benjamin Eliseo) Osorio Linares

(See above for address) ATTORNEY TO BE NOTICED
Laura Patricia Lunn (See above for address) ATTORNEY TO BE NOTICED
Sirine Shebaya (See above for address) ATTORNEY TO BE NOTICED
Timothy R. Macdonald (See above for address) ATTORNEY TO BE NOTICED
represented by Adrienne Darrow Boyd (See above for address) ATTORNEY TO BE NOTICED
Amber Nasir Qureshi (See above for address) ATTORNEY TO BE NOTICED
Laura Patricia Lunn (See above for address) ATTORNEY TO BE NOTICED
Sirine Shebaya (See above for address) ATTORNEY TO BE NOTICED
Timothy R. Macdonald (See above for address) ATTORNEY TO BE NOTICED
represented by Adrienne Darrow Boyd (See above for address) ATTORNEY TO BE NOTICED
Amber Nasir Qureshi (See above for address) ATTORNEY TO BE NOTICED
Laura Patricia Lunn (See above for address)

Petitioner
Britany (Jose Antonio) Riviera Calero

ATTORNEY TO BE NOTICED
Sirine Shebaya (See above for address) ATTORNEY TO BE NOTICED
Timothy R. Macdonald (See above for address) ATTORNEY TO BE NOTICED
represented by Adrienne Darrow Boyd (See above for address) ATTORNEY TO BE NOTICED
Amber Nasir Qureshi (See above for address) ATTORNEY TO BE NOTICED
Laura Patricia Lunn (See above for address) ATTORNEY TO BE NOTICED
Sirine Shebaya (See above for address) ATTORNEY TO BE NOTICED
Timothy R. Macdonald (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Johnny Choate in his official capacity as Warden, in his official capacity as Warden of the Aurora Contract Detention Facility owned and operated by GEO Group, Inc.

represented by Ian J. Kellogg U.S. Attorney's Office-Denver 1801 California Street Suite 1600 Denver, CO 80202 303-454-0100 Email: ian.kellogg@usdoj.gov ATTORNEY TO BE NOTICED

Laura J. Ellis U.S. Attorney's Office-Denver 1801 California Street

Defendant John Fabbricatore in his official capacity as Denver ICE ERO Acting Field Office Director
Defendant 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
Defendant Immigration and Customs Enforcement

Suite 1600 Denver, CO 80202 303-454-0284 Email: laura.ellis@usdoj.gov ATTORNEY TO BE NOTICED
represented by Ian J. Kellogg (See above for address) ATTORNEY TO BE NOTICED
Laura J. Ellis (See above for address) ATTORNEY TO BE NOTICED
represented by Ian J. Kellogg (See above for address) ATTORNEY TO BE NOTICED
Laura J. Ellis (See above for address) ATTORNEY TO BE NOTICED
represented by Ian J. Kellogg (See above for address) ATTORNEY TO BE NOTICED

Laura J. Ellis (See above for address) ATTORNEY TO BE NOTICED

Date Filed 04/14/2020

# Docket Text
1 APPLICATION for Writ of Habeas Corpus Pursuant to 28 USC 2241 and Complaint for Injunctive and Declaratory Relief (Filing fee $ 5, Receipt Number 1082-7250098)Attorney Timothy Robert Macdonald added to party Sanela Hamzic(pty:pet), Attorney Timothy Robert Macdonald added to party Naomi Hernandez Morales(pty:pet), Attorney Timothy Robert Macdonald added to party Heidi Nicole Hidalgo Mendoza(pty:pet), Attorney Timothy Robert Macdonald added to party Jennifer Leaford Codner(pty:pet), Attorney Timothy Robert Macdonald added to party Alexa Marroquin Gonzalez(pty:pet), Attorney Timothy Robert Macdonald added to party Alison Mendoza Mendoza(pty:pet), Attorney Timothy Robert Macdonald added to party Iviian Montes Hernandez(pty:pet), Attorney Timothy Robert Macdonald added to party Alexandra Osorio

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Linares(pty:pet), Attorney Timothy Robert Macdonald added to party Violet Paz Alvarez(pty:pet), Attorney Timothy Robert Macdonald added to party Monserrat Ramos Sierra(pty:pet), Attorney Timothy Robert Macdonald added to party Britany Riviera Calero(pty:pet), Attorney Timothy Robert Macdonald added to party Rafael Soria Mora(pty:pet), Attorney Timothy Robert Macdonald added to party Madeline Tatis(pty:pet), Attorney Timothy Robert Macdonald added to party NDI Wilfred Temah(pty:pet), filed by Heidi Nicole Hidalgo Mendoza, Monserrat Ramos Sierra, Rafael Soria Mora, Alison Mendoza Mendoza, Jennifer Leaford Codner, Violet Paz Alvarez, Alexandra Osorio Linares, Sanela Hamzic, Britany Riviera Calero, NDI Wilfred Temah, Naomi Hernandez Morales, Alexa Marroquin Gonzalez, Madeline Tatis, Iviian Montes Hernandez. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons)(Macdonald, Timothy) (Entered: 04/14/2020)
2 MOTION for Temporary Restraining Order by Petitioners Sanela Hamzic, Naomi Hernandez Morales, Heidi Nicole Hidalgo Mendoza, Jennifer Leaford Codner, Alexa Marroquin Gonzalez, Alison Mendoza Mendoza, Iviian Montes Hernandez, Alexandra Osorio Linares, Violet Paz Alvarez, Monserrat Ramos Sierra, Britany Riviera Calero, Rafael Soria Mora, Madeline Tatis, NDI Wilfred Temah. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit R-1, # 20 Exhibit R-2, # 21 Exhibit R-3, # 22 Exhibit R-4, # 23 Exhibit R-5, # 24 Exhibit S, # 25 Exhibit T, # 26 Proposed Order (PDF Only))(Macdonald, Timothy) (Entered: 04/14/2020)
3 Case assigned to Magistrate Judge Kristen L. Mix. Text Only Entry. (alave, ) (Entered: 04/14/2020)
4 Magistrate Judge consent form issued pursuant to D.C.COLO.LCivR 40.1, direct assignment of civil actions to full time magistrate judges. NO SUMMONS ISSUED. The summons submitted is incomplete and not issued. Please file completed summons for issuance using the event Summons Request. (alave, ) (Entered: 04/14/2020)
5 SUMMONS REQUEST as to Defendant Johnny Choate by Petitioners Madeline (Flavio) Tatis Belliard, Sanela Hamzic, Naomi Lesther Rafael Hernandez Morales, Heidi Nicole (Nilson Salmon) Hidalgo Mendoza, Jennifer (Gary) Leaford Codner, Alexa (Alexander) Marroquin Gonzalez, Alison (Melvin) Mendoza Mendoza, Iviian (Jose Angel) Montes Hernandez, Alexandra (Benjamin Eliseo) Osorio Linares, Violet (Adan) Paz Alvarez, Monserrat (Rony Moises) Ramos Sierra, Britany (Jose Antonio) Riviera Calero, Rafael Soria Mora, NDI Wilfred Temah. (Macdonald, Timothy) (Entered: 04/14/2020)

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6 SUMMONS REQUEST as to Defendant U.S. Attorney Jason Dunn by Petitioners Madeline (Flavio) Tatis Belliard, Sanela Hamzic, Naomi Lesther Rafael Hernandez Morales, Heidi Nicole (Nilson Salmon) Hidalgo Mendoza, Jennifer (Gary) Leaford Codner, Alexa (Alexander) Marroquin Gonzalez, Alison (Melvin) Mendoza Mendoza, Iviian (Jose Angel) Montes Hernandez, Alexandra (Benjamin Eliseo) Osorio Linares, Violet (Adan) Paz Alvarez, Monserrat (Rony Moises) Ramos Sierra, Britany (Jose Antonio) Riviera Calero, Rafael Soria Mora, NDI Wilfred Temah. (Macdonald, Timothy) (Entered: 04/14/2020)
7 SUMMONS REQUEST as to Defendant William Barr, Attorney General of the United States by Petitioners Madeline (Flavio) Tatis Belliard, Sanela Hamzic, Naomi Lesther Rafael Hernandez Morales, Heidi Nicole (Nilson Salmon) Hidalgo Mendoza, Jennifer (Gary) Leaford Codner, Alexa (Alexander) Marroquin Gonzalez, Alison (Melvin) Mendoza Mendoza, Iviian (Jose Angel) Montes Hernandez, Alexandra (Benjamin Eliseo) Osorio Linares, Violet (Adan) Paz Alvarez, Monserrat (Rony Moises) Ramos Sierra, Britany (Jose Antonio) Riviera Calero, Rafael Soria Mora, NDI Wilfred Temah. (Macdonald, Timothy) (Entered: 04/14/2020)
8 SUMMONS REQUEST as to Defendants John Fabbricatore, Matthew Albence and Immigration and Customs Enforcement by Petitioners Madeline (Flavio) Tatis Belliard, Sanela Hamzic, Naomi Lesther Rafael Hernandez Morales, Heidi Nicole (Nilson Salmon) Hidalgo Mendoza, Jennifer (Gary) Leaford Codner, Alexa (Alexander) Marroquin Gonzalez, Alison (Melvin) Mendoza Mendoza, Iviian (Jose Angel) Montes Hernandez, Alexandra (Benjamin Eliseo) Osorio Linares, Violet (Adan) Paz Alvarez, Monserrat (Rony Moises) Ramos Sierra, Britany (Jose Antonio) Riviera Calero, Rafael Soria Mora, NDI Wilfred Temah. (Macdonald, Timothy) (Entered: 04/14/2020)
9 NOTICE of Entry of Appearance by Sirine Shebaya on behalf of All Plaintiffs (Shebaya, Sirine) (Entered: 04/14/2020)
10 NOTICE of Entry of Appearance by Amber Nasir Qureshi on behalf of Madeline (Flavio) Tatis Belliard, Sanela Hamzic, Naomi Lesther Rafael Hernandez Morales, Heidi Nicole (Nilson Salmon) Hidalgo Mendoza, Jennifer (Gary) Leaford Codner, Alexa (Alexander) Marroquin Gonzalez, Alison (Melvin) Mendoza Mendoza, Iviian (Jose Angel) Montes Hernandez, Alexandra (Benjamin Eliseo) Osorio Linares, Violet (Adan) Paz Alvarez, Monserrat (Rony Moises) Ramos Sierra, Britany (Jose Antonio) Riviera Calero, Rafael Soria Mora, NDI Wilfred TemahAttorney Amber Nasir Qureshi added to party Madeline (Flavio) Tatis Belliard(pty:pet), Attorney Amber Nasir Qureshi added to party Sanela Hamzic(pty:pet), Attorney Amber Nasir Qureshi added to party Naomi Lesther Rafael Hernandez Morales (pty:pet), Attorney Amber Nasir Qureshi added to party Heidi Nicole (Nilson Salmon) Hidalgo Mendoza(pty:pet), Attorney Amber Nasir Qureshi added to party Jennifer

04/15/2020 04/15/2020 04/15/2020 04/15/2020
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(Gary) Leaford Codner(pty:pet), Attorney Amber Nasir Qureshi added to party Alexa (Alexander) Marroquin Gonzalez(pty:pet), Attorney Amber Nasir Qureshi added to party Alison (Melvin) Mendoza Mendoza(pty:pet), Attorney Amber Nasir Qureshi added to party Iviian (Jose Angel) Montes Hernandez(pty:pet), Attorney Amber Nasir Qureshi added to party Alexandra (Benjamin Eliseo) Osorio Linares(pty:pet), Attorney Amber Nasir Qureshi added to party Violet (Adan) Paz Alvarez(pty:pet), Attorney Amber Nasir Qureshi added to party Monserrat (Rony Moises) Ramos Sierra(pty:pet), Attorney Amber Nasir Qureshi added to party Britany (Jose Antonio) Riviera Calero(pty:pet), Attorney Amber Nasir Qureshi added to party Rafael Soria Mora(pty:pet), Attorney Amber Nasir Qureshi added to party NDI Wilfred Temah(pty:pet) (Qureshi, Amber) (Entered: 04/14/2020)
11 SUMMONSES issued by Clerk. (Attachments: # 1 Magistrate Judge Consent Form) (nmarb, ) (Entered: 04/15/2020)
12 NOTICE of Entry of Appearance of Counsel by Laura J. Ellis on behalf of Matthew T. Albence, Johnny Choate, John Fabbricatore, Immigration and Customs EnforcementAttorney Laura J. Ellis added to party Matthew T. Albence(pty:dft), Attorney Laura J. Ellis added to party Johnny Choate(pty:dft), Attorney Laura J. Ellis added to party John Fabbricatore(pty:dft), Attorney Laura J. Ellis added to party Immigration and Customs Enforcement(pty:dft) (Ellis, Laura) (Entered: 04/15/2020)
13 NOTICE of Entry of Appearance of Counsel by Ian J. Kellogg on behalf of All Defendants Attorney Ian J. Kellogg added to party Matthew T. Albence(pty:dft), Attorney Ian J. Kellogg added to party Johnny Choate(pty:dft), Attorney Ian J. Kellogg added to party John Fabbricatore(pty:dft), Attorney Ian J. Kellogg added to party Immigration and Customs Enforcement(pty:dft) (Kellogg, Ian) (Entered: 04/15/2020)
14 MINUTE ORDER by Magistrate Judge Kristen L. Mix on 4/15/20 pursuant to 2 MOTION for Temporary Restraining Order filed by Jennifer (Gary) Leaford Codner, Benigno Velasquez Arenas, NDI Wilfred Temah, Madeline (Flavio) Tatis Belliard, Sanela Hamzic, Heidi Nicole (Nilson Salmon) Hidalgo Mendoza, Alexa (Alexander) Marroquin Gonzalez, Britany (Jose Antonio) Riviera Calero, Naomi Lesther Rafael Hernandez Morales, Monserrat (Rony Moises) Ramos Sierra, Alison (Melvin) Mendoza Mendoza, Alexandra (Benjamin Eliseo) Osorio Linares, Violet (Adan) Paz Alvarez, Iviian (Jose Angel) Montes Hernandez. IT IS HEREBY ORDERED that this case shall be assigned to a District Judge under D.C.COLO.LCivR 40.1(c)(8) and D.C.COLO.LCivR 40.1(a). (nmarb, ) (Entered: 04/15/2020)
15 CASE REASSIGNED pursuant to 14 Minute Order. This case is randomly reassigned to Chief Judge Philip A. Brimmer. All future pleadings should be designated as 20-cv-01050-PAB. (Text Only Entry) (nmarb, ) (Entered: 04/15/2020)

04/16/2020 04/16/2020

16 NOTICE of Entry of Appearance by Sirine Shebaya on behalf of Madeline (Flavio) Tatis Belliard, Sanela Hamzic, Naomi Lesther Rafael Hernandez Morales, Heidi Nicole (Nilson Salmon) Hidalgo Mendoza, Jennifer (Gary) Leaford Codner, Alexa (Alexander) Marroquin Gonzalez, Alison (Melvin) Mendoza Mendoza, Iviian (Jose Angel) Montes Hernandez, Alexandra (Benjamin Eliseo) Osorio Linares, Violet (Adan) Paz Alvarez, Monserrat (Rony Moises) Ramos Sierra, Britany (Jose Antonio) Riviera Calero, Rafael Soria Mora, NDI Wilfred TemahAttorney Sirine Shebaya added to party Madeline (Flavio) Tatis Belliard(pty:pet), Attorney Sirine Shebaya added to party Sanela Hamzic(pty:pet), Attorney Sirine Shebaya added to party Naomi Lesther Rafael Hernandez Morales (pty:pet), Attorney Sirine Shebaya added to party Heidi Nicole (Nilson Salmon) Hidalgo Mendoza(pty:pet), Attorney Sirine Shebaya added to party Jennifer (Gary) Leaford Codner(pty:pet), Attorney Sirine Shebaya added to party Alexa (Alexander) Marroquin Gonzalez(pty:pet), Attorney Sirine Shebaya added to party Alison (Melvin) Mendoza Mendoza(pty:pet), Attorney Sirine Shebaya added to party Iviian (Jose Angel) Montes Hernandez(pty:pet), Attorney Sirine Shebaya added to party Alexandra (Benjamin Eliseo) Osorio Linares(pty:pet), Attorney Sirine Shebaya added to party Violet (Adan) Paz Alvarez(pty:pet), Attorney Sirine Shebaya added to party Monserrat (Rony Moises) Ramos Sierra(pty:pet), Attorney Sirine Shebaya added to party Britany (Jose Antonio) Riviera Calero(pty:pet), Attorney Sirine Shebaya added to party Rafael Soria Mora(pty:pet), Attorney Sirine Shebaya added to party NDI Wilfred Temah(pty:pet) (Shebaya, Sirine) (Entered: 04/16/2020)
17 NOTICE of Entry of Appearance by Adrienne Darrow Boyd on behalf of Madeline (Flavio) Tatis Belliard, Sanela Hamzic, Naomi Lesther Rafael Hernandez Morales, Heidi Nicole (Nilson Salmon) Hidalgo Mendoza, Jennifer (Gary) Leaford Codner, Alexa (Alexander) Marroquin Gonzalez, Alison (Melvin) Mendoza Mendoza, Iviian (Jose Angel) Montes Hernandez, Alexandra (Benjamin Eliseo) Osorio Linares, Violet (Adan) Paz Alvarez, Monserrat (Rony Moises) Ramos Sierra, Britany (Jose Antonio) Riviera Calero, Rafael Soria Mora, NDI Wilfred TemahAttorney Adrienne Darrow Boyd added to party Madeline (Flavio) Tatis Belliard(pty:pet), Attorney Adrienne Darrow Boyd added to party Sanela Hamzic(pty:pet), Attorney Adrienne Darrow Boyd added to party Naomi Lesther Rafael Hernandez Morales (pty:pet), Attorney Adrienne Darrow Boyd added to party Heidi Nicole (Nilson Salmon) Hidalgo Mendoza(pty:pet), Attorney Adrienne Darrow Boyd added to party Jennifer (Gary) Leaford Codner(pty:pet), Attorney Adrienne Darrow Boyd added to party Alexa (Alexander) Marroquin Gonzalez(pty:pet), Attorney Adrienne Darrow Boyd added to party Alison (Melvin) Mendoza Mendoza(pty:pet), Attorney Adrienne Darrow Boyd added to party Iviian (Jose Angel) Montes Hernandez(pty:pet), Attorney Adrienne Darrow Boyd added to party Alexandra (Benjamin Eliseo) Osorio Linares(pty:pet), Attorney Adrienne Darrow Boyd added to party Violet (Adan) Paz Alvarez(pty:pet), Attorney

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Adrienne Darrow Boyd added to party Monserrat (Rony Moises) Ramos Sierra(pty:pet), Attorney Adrienne Darrow Boyd added to party Britany (Jose Antonio) Riviera Calero(pty:pet), Attorney Adrienne Darrow Boyd added to party Rafael Soria Mora(pty:pet), Attorney Adrienne Darrow Boyd added to party NDI Wilfred Temah(pty:pet) (Boyd, Adrienne) (Entered: 04/16/2020)
18 MINUTE ORDER by Chief Judge Philip A. Brimmer on 4/16/2020. Respondents shall respond to the motion for temporary restraining order on or before April 21, 2020. Petitioners may file a reply on or before April 23, 2020. Text Only Entry (pabsec2) (Entered: 04/16/2020)
19 MINUTE ORDER by Chief Judge Philip A. Brimmer on 4/16/2020. Respondents shall show cause within twenty-one days from the date of this Order why the Writ for Habeas Corpus [Docket No. 1] should not be granted. Text Only Entry (pabsec2) (Entered: 04/16/2020)
20 NOTICE of Entry of Appearance by Laura Patricia Lunn on behalf of Madeline (Flavio) Tatis Belliard, Sanela Hamzic, Naomi Lesther Rafael Hernandez Morales, Heidi Nicole (Nilson Salmon) Hidalgo Mendoza, Jennifer (Gary) Leaford Codner, Alexa (Alexander) Marroquin Gonzalez, Alison (Melvin) Mendoza Mendoza, Iviian (Jose Angel) Montes Hernandez, Alexandra (Benjamin Eliseo) Osorio Linares, Violet (Adan) Paz Alvarez, Monserrat (Rony Moises) Ramos Sierra, Britany (Jose Antonio) Riviera Calero, Rafael Soria Mora, NDI Wilfred TemahAttorney Laura Patricia Lunn added to party Madeline (Flavio) Tatis Belliard(pty:pet), Attorney Laura Patricia Lunn added to party Sanela Hamzic(pty:pet), Attorney Laura Patricia Lunn added to party Naomi Lesther Rafael Hernandez Morales (pty:pet), Attorney Laura Patricia Lunn added to party Heidi Nicole (Nilson Salmon) Hidalgo Mendoza(pty:pet), Attorney Laura Patricia Lunn added to party Jennifer (Gary) Leaford Codner(pty:pet), Attorney Laura Patricia Lunn added to party Alexa (Alexander) Marroquin Gonzalez(pty:pet), Attorney Laura Patricia Lunn added to party Alison (Melvin) Mendoza Mendoza(pty:pet), Attorney Laura Patricia Lunn added to party Iviian (Jose Angel) Montes Hernandez(pty:pet), Attorney Laura Patricia Lunn added to party Alexandra (Benjamin Eliseo) Osorio Linares(pty:pet), Attorney Laura Patricia Lunn added to party Violet (Adan) Paz Alvarez(pty:pet), Attorney Laura Patricia Lunn added to party Monserrat (Rony Moises) Ramos Sierra(pty:pet), Attorney Laura Patricia Lunn added to party Britany (Jose Antonio) Riviera Calero(pty:pet), Attorney Laura Patricia Lunn added to party Rafael Soria Mora(pty:pet), Attorney Laura Patricia Lunn added to party NDI Wilfred Temah(pty:pet) (Lunn, Laura) (Entered: 04/17/2020)
21 NOTICE of Entry of Appearance by Khaled Alrabe on behalf of All Petitioners' (Alrabe, Khaled) Modified on 4/23/2020 to edit text. (sphil, ). (Entered: 04/21/2020)

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22 RESPONSE to 2 MOTION for Temporary Restraining Order filed by Defendants Matthew T. Albence, Johnny Choate, John Fabbricatore, Immigration and Customs Enforcement. (Attachments: # 1 Exhibit 1 (Jones Decl.), # 2 Exhibit 2 (DO Decl. Re Codner), # 3 Exhibit 3 (DO Decl. Re Temah), # 4 Exhibit 4 (DO Decl. Re Belliard), # 5 Exhibit 5 (DO Decl. Re Hamzic), # 6 Exhibit 6 (DO Decl. Re Mora), # 7 Exhibit 7 (DO Decl. Re Mendoza), # 8 Exhibit 8 (Davies Decl.), # 9 Exhibit 9 (Ceja Decl.), # 10 Exhibit 9-A, # 11 Exhibit 9-B)(Ellis, Laura) (Entered: 04/21/2020)
23 ERRATA to Response to Motion For Temporary Restraining Order by Defendants Matthew T. Albence, Johnny Choate, John Fabbricatore, Immigration and Customs Enforcement. (Attachments: # 1 Exhibit 1 (Suppl. Davies Decl.))(Ellis, Laura) (Entered: 04/23/2020)
24 REPLY to Response to 2 MOTION for Temporary Restraining Order filed by Petitioners Madeline (Flavio) Tatis Belliard, Sanela Hamzic, Naomi Lesther Rafael Hernandez Morales, Heidi Nicole (Nilson Salmon) Hidalgo Mendoza, Jennifer (Gary) Leaford Codner, Alexa (Alexander) Marroquin Gonzalez, Alison (Melvin) Mendoza Mendoza, Iviian (Jose Angel) Montes Hernandez, Alexandra (Benjamin Eliseo) Osorio Linares, Violet (Adan) Paz Alvarez, Monserrat (Rony Moises) Ramos Sierra, Britany (Jose Antonio) Riviera Calero, Rafael Soria Mora, NDI Wilfred Temah. (Attachments: # 1 Exhibit ECF 24-1 Declar. Dr. Franco-Paredes, # 2 Exhibit ECF 24-2 Suppl Declar Hamzic, # 3 Exhibit ECF 24-3 Suppl Declar. Tatis Belliard, # 4 Exhibit ECF 24-4 Suppl Declar. Codner, # 5 Exhibit ECF 24-5 Suppl Declar. Schlosser_Codner, # 6 Exhibit ECF 24-6 Suppl Declar. Mora, # 7 Exhibit ECF 24-7 Suppl Declar. Mendoza, # 8 Exhibit ECF 24-8 Suppl Declar. Valentin_Mendoza, # 9 Exhibit ECF 24-9 Suppl Declar. Temah, # 10 Exhibit ECF 24-10 Fraihat Opp to Plfs' Motion for Class Certification, # 11 Exhibit ECF 24-11 Email from P. Berg re updated Guidance)(Macdonald, Timothy) (Entered: 04/23/2020)
25 NOTICE of Supplemental Authorities (Evidence) In Support of Motion for Temporary Restraining Order re: 24 Reply to Response to Motion,,,, 2 MOTION for Temporary Restraining Order by Petitioners Madeline (Flavio) Tatis Belliard, Sanela Hamzic, Naomi Lesther Rafael Hernandez Morales, Heidi Nicole (Nilson Salmon) Hidalgo Mendoza, Jennifer (Gary) Leaford Codner, Alexa (Alexander) Marroquin Gonzalez, Alison (Melvin) Mendoza Mendoza, Iviian (Jose Angel) Montes Hernandez, Alexandra (Benjamin Eliseo) Osorio Linares, Violet (Adan) Paz Alvarez, Monserrat (Rony Moises) Ramos Sierra, Britany (Jose Antonio) Riviera Calero, Rafael Soria Mora, NDI Wilfred Temah (Attachments: # 1 Exhibit ECF 25-1 - Suppl Declar. of Temah)(Macdonald, Timothy) (Entered: 04/28/2020)
26 RESPONSE to 19 Minute Order to Show Cause by Defendants Matthew T. Albence, Johnny Choate, John Fabbricatore, Immigration and Customs Enforcement. (Attachments: # 1 Exhibit 1 (Suppl. Jones Decl.), # 2 Exhibit

05/21/2020 05/21/2020
05/26/2020 05/27/2020
05/27/2020 05/28/2020 07/21/2020

2 (Suppl. Ceja Decl.), # 3 Exhibit 3 (2d Suppl. Davies Decl.))(Ellis, Laura) (Entered: 05/07/2020)
27 STATUS REPORT by Defendants Matthew T. Albence, Johnny Choate, John Fabbricatore, Immigration and Customs Enforcement. (Attachments: # 1 Exhibit 1 - Supplemental Davies Declaration)(Kellogg, Ian) (Entered: 05/21/2020)
28 RESPONSE to 27 Status Report Regarding Confirmed COVID-19 Cases in the Aurora Contract Detention Facility by Petitioners Madeline (Flavio) Tatis Belliard, Sanela Hamzic, Naomi Lesther Rafael Hernandez Morales, Heidi Nicole (Nilson Salmon) Hidalgo Mendoza, Jennifer (Gary) Leaford Codner, Alexa (Alexander) Marroquin Gonzalez, Alison (Melvin) Mendoza Mendoza, Iviian (Jose Angel) Montes Hernandez, Alexandra (Benjamin Eliseo) Osorio Linares, Violet (Adan) Paz Alvarez, Monserrat (Rony Moises) Ramos Sierra, Britany (Jose Antonio) Riviera Calero, Rafael Soria Mora, NDI Wilfred Temah. (Macdonald, Timothy) (Entered: 05/21/2020)
29 STATUS REPORT by Defendants Matthew T. Albence, Johnny Choate, John Fabbricatore, Immigration and Customs Enforcement. (Attachments: # 1 Exhibit 1 (2d Suppl. Ceja Decl.))(Ellis, Laura) (Entered: 05/26/2020)
30 RESPONSE to 29 Status Report Regarding Another Confirmed COVID-19 Case in the Aurora Contract Detention Facility by Petitioners Madeline (Flavio) Tatis Belliard, Sanela Hamzic, Naomi Lesther Rafael Hernandez Morales, Heidi Nicole (Nilson Salmon) Hidalgo Mendoza, Jennifer (Gary) Leaford Codner, Alexa (Alexander) Marroquin Gonzalez, Alison (Melvin) Mendoza Mendoza, Iviian (Jose Angel) Montes Hernandez, Alexandra (Benjamin Eliseo) Osorio Linares, Violet (Adan) Paz Alvarez, Monserrat (Rony Moises) Ramos Sierra, Britany (Jose Antonio) Riviera Calero, Rafael Soria Mora, NDI Wilfred Temah. (Macdonald, Timothy) (Entered: 05/27/2020)
31 ORDER. Petitioners' Motion for Temporary Restraining Order 2 is DENIED. Petitioners' Petition for Writ of Habeas Corpus 1 is DISMISSED. This case is closed, by Chief Judge Philip A. Brimmer on 5/27/20. (sgrim) (Entered: 05/28/2020)
32 FINAL JUDGMENT re: 31 Order, by Clerk on 5/28/20. (sgrim) (Entered: 05/28/2020)
33 NOTICE OF APPEAL as to 31 Order on Motion for TRO, 32 Clerk's Judgment by Petitioners Madeline (Flavio) Tatis Belliard, Sanela Hamzic, Naomi Lesther Rafael Hernandez Morales, Heidi Nicole (Nilson Salmon) Hidalgo Mendoza, Jennifer (Gary) Leaford Codner, Alexa (Alexander) Marroquin Gonzalez, Alison (Melvin) Mendoza Mendoza, Iviian (Jose Angel) Montes Hernandez, Alexandra (Benjamin Eliseo) Osorio Linares, Violet (Adan) Paz Alvarez, Monserrat (Rony Moises) Ramos Sierra, Britany (Jose Antonio) Riviera Calero, Rafael Soria Mora, NDI Wilfred

07/22/2020
07/22/2020 08/05/2020 08/07/2020 11/17/2020
11/17/2020

Temah (Filing fee $ 505, Receipt Number 1082-7397723) (Macdonald, Timothy) (Entered: 07/21/2020)
34 LETTER Transmitting Notice of Appeal to all counsel advising of the transmittal of the 33 Notice of Appeal,, filed by Jennifer (Gary) Leaford Codner, Rafael Soria Mora, NDI Wilfred Temah, Madeline (Flavio) Tatis Belliard, Sanela Hamzic, Heidi Nicole (Nilson Salmon) Hidalgo Mendoza, Alexa (Alexander) Marroquin Gonzalez, Britany (Jose Antonio) Riviera Calero, Naomi Lesther Rafael Hernandez Morales, Monserrat (Rony Moises) Ramos Sierra, Alison (Melvin) Mendoza Mendoza, Alexandra (Benjamin Eliseo) Osorio Linares, Violet (Adan) Paz Alvarez, Iviian (Jose Angel) Montes Hernandez to the U.S. Court of Appeals. ( Retained Counsel, Fee paid,) (Attachments: # 1 Preliminary Record, # 2 Docket Sheet). (sphil, ) (Entered: 07/22/2020)
35 USCA Case Number 20-1265 for 33 Notice of Appeal filed by Jennifer (Gary) Leaford Codner, Rafael Soria Mora, NDI Wilfred Temah, Madeline (Flavio) Tatis Belliard, Sanela Hamzic, Heidi Nicole (Nilson Salmon) Hidalgo Mendoza, Alexa (Alexander) Marroquin Gonzalez, Britany (Jose Antonio) Riviera Calero, Naomi Lesther Rafael Hernandez Morales, Monserrat (Rony Moises) Ramos Sierra, Alison (Melvin) Mendoza Mendoza, Alexandra (Benjamin Eliseo) Osorio Linares, Violet (Adan) Paz Alvarez, Iviian (Jose Angel) Montes Hernandez. (sphil, ) (Entered: 07/23/2020)
36 TRANSCRIPT ORDER FORM re 33 Notice of Appeal,, (Transcript not necessary for this appeal) by Petitioners Madeline (Flavio) Tatis Belliard, Sanela Hamzic, Jennifer (Gary) Leaford Codner, NDI Wilfred Temah (Macdonald, Timothy) (Entered: 08/05/2020)
37 LETTER TO USCA and all counsel certifying the record is complete as to 33 Notice of Appeal,, filed by Jennifer (Gary) Leaford Codner, et al. A transcript order form was filed stating that a transcript is not necessary. ( Appeal No. 20-1265). Text Only Entry. (sphil, ) (Entered: 08/07/2020)
38 USCA Order as to 33 Notice of Appeal,, filed by Jennifer (Gary) Leaford Codner, Rafael Soria Mora, NDI Wilfred Temah, Madeline (Flavio) Tatis Belliard, Sanela Hamzic, Heidi Nicole (Nilson Salmon) Hidalgo Mendoza, Alexa (Alexander) Marroquin Gonzalez, Britany (Jose Antonio) Riviera Calero, Naomi Lesther Rafael Hernandez Morales, Monserrat (Rony Moises) Ramos Sierra, Alison (Melvin) Mendoza Mendoza, Alexandra (Benjamin Eliseo) Osorio Linares, Violet (Adan) Paz Alvarez, Iviian (Jose Angel) Montes Hernandez : (USCA Case No. 20-1265) (This document is not the Mandate). Appellants motion to dismiss this matter is GRANTED. (sphil, ) (Entered: 11/17/2020)
39 MANDATE of USCA as to 33 Notice of Appeal,, filed by Jennifer (Gary) Leaford Codner, Rafael Soria Mora, NDI Wilfred Temah, Madeline (Flavio) Tatis Belliard, Sanela Hamzic, Heidi Nicole (Nilson Salmon) Hidalgo Mendoza, Alexa (Alexander) Marroquin Gonzalez, Britany (Jose

Antonio) Riviera Calero, Naomi Lesther Rafael Hernandez Morales, Monserrat (Rony Moises) Ramos Sierra, Alison (Melvin) Mendoza Mendoza, Alexandra (Benjamin Eliseo) Osorio Linares, Violet (Adan) Paz Alvarez, Iviian (Jose Angel) Montes Hernandez, 38 USCA Order/Opinion/Judgment : (USCA Case No. 20-1265) (sphil, ) (Entered: 11/17/2020)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 1:20­cv­01050 JENNIFER (GARY) LEAFORD CODNER,
NDI WILFRED TEMAH,
MADELINE (FLAVIO) TATIS BELLIARD, SANELA HAMZIC,
RAFAEL SORIA MORA a/k/a BENIGNO VELASQUEZ ARENAS,
NAOMI (LESTHER RAFAEL) HERNANDEZ MORALES,
HEIDI NICOLE (NILSON SALMON) HIDALGO MENDOZA,
VIOLET (ADAN) PAZ ALVAREZ,
ALEXA (ALEXANDER) MARROQUIN GONZALEZ,
ALISON (MELVIN) MENDOZA MENDOZA,
IVIIAN (JOSE ANGEL) MONTES HERNANDEZ,
MONSERRAT (RONY MOISES) RAMOS SIERRA,
ALEXANDRA (BENJAMIN ELISEO) OSORIO LINARES,
and
BRITANY (JOSE ANTONIO) RIVIERA CALERO,
Petitioners-Plaintiffs,

v. JOHNNY CHOATE, IN HIS OFFICIAL CAPACITY AS WARDEN, , IN HIS OFFICIAL CAPACITY AS WARDEN OF THE AURORA CONTRACT DETENTION FACILITY OWNED AND OPERATED BY GEO GROUP INC.
JOHN FABBRICATORE, IN HIS OFFICIAL CAPACITY AS DENVER ICE ERO ACTING FIELD OFFICE DIRECTOR,
MATTHEW T. ALBENCE, IN HIS OFFICIAL CAPACITY AS DEPUTY DIRECTOR AND SENIOR OFFICIAL PERFORMING THE DUTIES OF THE DIRECTOR OF THE U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, and IMMIGRATION AND CUSTOMS ENFORCEMENT,
Respondents-Defendants.
PETITION FOR A WRIT OF HABEAS CORPUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

I. INTRODUCTION 1. This petition seeks the urgent release of fourteen individuals who are currently
detained by Respondents-Defendants (“Respondents”) at the Aurora Contract Detention Facility
(the “Aurora facility”) and who are at severe risk of serious health complications or death should
they contract COVID-19, a deadly new disease sweeping its way across the globe.
2. The coronavirus has already begun to spread to detention centers across Colorado,
with positive cases in jails, prisons and immigration detention facilities, including the Aurora
facility. The Aurora facility holds people in civil immigration detention when they arrive to the
United States to seek asylum as well as for alleged violations of U.S. immigration laws. At the Aurora facility, there have been multiple quarantines due to COVID-19 exposure.1 At least two
ICE employees that work in the Aurora facility, one of whom had contact with detained
individuals, and three employees of the private prison company GEO Group, which runs the Aurora facility, have tested positive for the virus.2 Moreover, a deputy at the nearby El Paso
facility, where some detained individuals are held for 72 hours before being transferred to the
1 Sam Tabachnik, Ten Detainees at Aurora’s ICE Detention Facility Isolated for Possible Exposure to Coronavirus, Denver Post (Mar. 17, 2020), https://www.denverpost.com/2020/03/17/coronavirus-ice-detention-geo-group-aurora-colorado/; Conor McCormick-Cavanagh, Nearly Eighty ICE Detainees in Aurora Quarantined, Westword (Mar. 27, 2020) https://www.westword.com/news/aurora-immigrant-detention-center-has-tested77-detainees-for-covid-19-11676141; ICE Guidance on COVID-19, U.S. Immigr. & Customs Enforcement (last updated Apr. 10, 2020) https://www.ice.gov/coronavirus (select tab “Confirmed Cases” and scroll to section “ICE EMPLOYEES AT DETENTION CENTERS”); Conor McCormick-Cavanagh, Three More Employees at Aurora ICE Facility Test Positive for COVID-19, Westword (Apr. 8, 2020), https://www.westword.com/news/three-geo-groupstaffers-at-ice-facility-in-aurora-test-positive-for-covid-19-11683722. 2 Id.

Aurora facility, recently died of COVID-19, and two other deputies at the El Paso facility have since tested positive for COVID-19.3
3. Since February, the Department of Homeland Security’s own medical experts have
been warning ICE of the dangers of outbreaks at ICE detention facilities and advising that ICE
needed to release medically vulnerable individuals in order to avoid a public health disaster. More
than 3,000 medical health professionals have urgently requested that Immigration and Customs
Enforcement (“ICE”) immediately release immigration-detained individuals in their custody, and
two Department of Homeland Security medical experts have warned Congress that keeping
immigrants detained poses “an ‘imminent risk to the health and safety of immigrant detainees’ and to the general public.”4
4. Yet today, Respondents continue to hold in detention approximately 527 individuals,5 including Petitioners-Plaintiffs (“Petitioners”) in this action, each of whom is at
severe risk of serious complications or death from COVID-19, despite the ready availability of
community-based alternatives to detention such as release on conditions or on bond.
5. The global COVID-19 pandemic, caused by the novel coronavirus, has been
3 Lance Benzel, 3 Deputies at El Paso County Jail Have Tested Positive for COVID-19; Virus ‘Likely’ to Spread to Inmates, Sheriff’s Office Warns, Gazette (Apr. 10, 2020), https://gazette.com/news/3-deputies-at-el-paso-county-jail-have-tested-positive-for-covid-19virus-likely/article_409db30c-75bf-11ea-a37c-334d20e5bf37.html. 4 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-detentioncoronavirus/index.html. 5 ICE Aurora Contract Detention Center Accountability Report Electronic Request (Apr. 6, 2020), available at https://crow.house.gov/sites/crow.house.gov/files/ICE%20Accountability%20Report%20Electro nic%20Request%204-6%20FINAL%20%281%29.pdf.
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characterized as the worst disease outbreak the world has seen since 1918. To date, almost one
million individuals worldwide have been diagnosed with COVID-19, and the United States is one
of the worst-hit countries. States and countries around the world—including the State of
Colorado—have put in place significant restrictions on public gatherings, and many have imposed
“shelter-in-place” orders in an attempt to control the spread of the disease. Public health experts,
including the Centers for Disease Control and Prevention (“CDC”), have instructed that the only
effective way to reduce the risk of severe illness or death for medically vulnerable individuals is
social distancing and improved hygiene.6 Such distancing and hygiene measures are impossible to
achieve in crowded detention centers.
6. It is impossible for people confined in prisons, jails, and detention centers,
including the Aurora facility, to engage in the necessary social distancing and hygiene the CDC
has instructed are the only effective prevention measures. At the Aurora facility, people eat, sleep
and engage in activities in close proximity to each other, and basic supplies, such as soap and hand
sanitizer, are often in short supply or completely unavailable.7 Even with the measures ICE has
6 See Coronavirus Disease 2019 (COVID-19): How to Protect Yourself & Others, Ctrs. for Disease Control and Prevention (last updated Apr. 8, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html. See also Ctrs. for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities 8 (2020) (“Both good hygiene practices and social distancing are critical in preventing . . . transmission.”), available at https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidance-correctional-detention.pdf. 7 All exhibits cited herein are exhibits to Petitioners’ Motion for Preliminary Injunction, filed concurrently on April 14, 2020. See Decl. of C. Cowgill, Ex. B, ¶¶ 17, 20; Decl. of L. Jordan, Ex. C, ¶¶ 15, 17, 18; Decl. of J. Codner, Ex. D, ¶ 7; Decl. of N. Temah, Ex. E, ¶¶ 8–9; Decl. of S. Hamzic, Ex. G, ¶¶ 7–8; Decl. of R. Mora, Ex. H, ¶¶ 5, 9–10, 12; Decl. of A. Mendoza, Ex. I, ¶ 10; Decl. of N. Morales, Ex. J, ¶8; Decl. of H. Mendoza, Ex. K, ¶ 13; Decl. of V. Alvarez, Ex. L, ¶ 7; Decl. of B. Calero, Ex. M, ¶ 12; Decl. of A. Gonzalez, Ex. N, ¶¶ 7, 8; Decl. of I. Hernandez, Ex. O, ¶¶ 9–11; Decl. of M. Sierra, Ex. P, ¶¶ 6, 8; Decl. of A. Linares, Ex. Q, ¶11.
3

purported to take to prevent the spread of COVID-19 in its facilities, immigration detention centers are a hotbed for spread of the virus.8
7. Under these circumstances, release of individuals at high risk of major health
consequences is the only meaningful way to mitigate the proliferation of the virus among those in
immigration detention. For individuals who are at high risk for serious illness or death from
COVID-19, protection from the virus is a matter of life or death. In Colorado, as of April 13, 2020,
there are 7,691 confirmed cases, 1,493 individuals hospitalized and 308 deaths, and the numbers are rising exponentially.9 In the United States, the most concentrated instances of death from the virus have happened in confined congregated spaces, such as nursing homes and cruise ships.10
8. Petitioners, who are detained in ICE custody at the Aurora facility, are particularly
vulnerable to serious illness or death if infected by COVID-19. Petitioners have medical conditions
that lead to a higher risk of serious COVID-19 infection. Colorado has seen a significant COVID-
19 outbreak. The Governor has declared a State of Emergency and has put in place widespread
social distancing measures, including shutting down nonessential businesses and all public
gatherings. These measures are impossible to implement in a crowded detention center, and ICE
8 Shoichet, supra n.4. 9 Case Data, Colo. Dep’t of Pub. Health & Env’t (Apr. 13, 2020, 7:35 PM), https://covid19.colorado.gov/case-data. 10 See Jon Swaine & Maria Sacchetti, As Washington Nursing Home Assumed It Faced Influenza Outbreak, Opportunities to Control Coronavirus Exposure Passed, Wash. Post (Mar. 16, 2020), https://www.washingtonpost.com/investigations/nursing-home-with-the-biggest-cluster-ofcovid-19-deaths-to-date-in-the-us-thought-it-was-facing-an-influenza-outbreak-a-spokesmansays/2020/03/16/c256b0ee-6460-11ea-845d-e35b0234b136_story.html; Victoria Forster, What Have Scientists Learned About COVID-19 and Coronavirus by Using Cruise Ship Data?, Forbes (Mar. 22, 2020), https://www.forbes.com/sites/victoriaforster/2020/03/22/what-have-scientistslearned-from-using-cruise-ship-data-to-learn-about-covid-19/.
4

has taken no meaningful measures to curb the spread of the virus at the Aurora facility. Petitioners fear for their lives, and for good reason: they are trapped in a facility that can only be described as a breeding ground for the disease. The conditions and treatment at the facility have created a dangerous situation that threatens their lives, as well as the well-being of staff, others in the surrounding community and the general public.
9. There is no known treatment for or vaccine against COVID-19, and there is no known cure.11 The only known effective measures to reduce the risk of COVID-19 are to prevent infection through social distancing and vigilant hygiene.12 Yet “social distancing” is a meaningless term in the Aurora facility, where those who are detained are in constant close contact with each other and with facility staff. Increased and vigilant hygiene is similarly unavailable under the conditions at the facility.
10. As set forth below, the danger posed by Petitioners’ detention during the COVID19 pandemic is “so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk” and violates their constitutional right to safety in government custody. Helling v. McKinney, 509 U.S. 25, 36 (1993). Without this Court’s intervention, the Petitioners continue to be at imminent risk of severe illness or death.
II. JURISDICTION AND VENUE 11. This action arises under the Due Process Clause of the Fifth Amendment to the
11 Decl. of Dr. Franco-Paredes, Ex. A, ¶ 16. 12 See Ctrs. for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities 8 (2020) (“Both good hygiene practices and social distancing are critical in preventing . . . transmission.”), available at https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidance-correctionaldetention.pdf.
5

United States Constitution. 12. This Court has subject-matter jurisdiction pursuant to 28 U.S.C. § 2241 (habeas
corpus), 28 U.S.C. § 1331 (federal question), 5 U.S.C. § 702 (waiver of sovereign immunity), 28 U.S.C. § 1346 (original jurisdiction), and Article I, Section 9, clause 2 of the United States Constitution (the Suspension Clause).
13. Venue is proper in the District of Colorado pursuant to 28 U.S.C. § 2241(d) and pursuant to 28 U.S.C. §§ 1391(b) and (e).
III. PARTIES 14. Petitioners are 14 individuals currently detained at the Aurora facility, each of whom faces significant risk from COVID-19 due to age and/or underlying medical conditions. 15. Petitioner Jennifer Leaford Codner (“Ms. Codner”) (her legal first name is Gary) is a 54-year-old transgender woman from Jamaica who is currently detained in the Aurora facility and has been detained for approximately two years. Ms. Codner is applying for asylum, withholding of removal or protection under the Convention Against Torture. She was previously detained periodically in other facilities starting in September 2012. Ms. Codner has lived in the United States since 1997 and has two children who are U.S. citizens. Before her first detention in 2012, Ms. Codner was a hairdresser and owned her own hair salon. Detention has ruined her financially, and as a result, she could no longer support the four employees who worked for her at the salon. Ms. Codner suffers from hypertension and allergies. Since being detained at the Aurora facility, she has suffered from boils on her skin. Individuals between the ages of 50–59, like Ms. Codner, have a case fatality ratio of 1.25 percent, compared to a case fatality ratio of less than 0.3
6

percent among those under 50.13 Irrespective of age, early reports estimate that the mortality rate from COVID-19 for people with hypertension, like Ms. Codner, is 8.4 percent.14 Ms. Codner’s age and medical history, therefore, place her at high risk of complications or death from COVID-19. A declaration from Ms. Codner is found at Exhibit D.
16. Petitioner Ndi Temah (“Mr. Temah”) is a 23-year-old asylum seeker from Cameroon. He has been detained since his arrival in the United States on November 19, 2018. Mr. Temah suffers from several serious medical conditions, including hypertension, Mobitz Type I (also known as second-degree atrioventricular block, or Wenckebach, a disease of the electrical conduction system of the heart), post-traumatic stress disorder, depression and a severe anxiety disorder. Early reports estimate that, irrespective of age, the mortality rate from COVID-19 for someone like Mr. Temah with cardiovascular disease is 13.2 percent and for someone with hypertension is 8.4 percent.15 These conditions, therefore, place Mr. Temah at high risk for complications or death from COVID-19. A declaration from Mr. Temah is found at Exhibit E.
17. Petitioner Madeline Tatis Belliard (“Ms. Belliard”) (her legal first name is Flavio) is a 40-year-old transgender woman who immigrated from the Dominican Republic with her mother in 1991 when she was only twelve years old to escape the physical assaults and verbal abuse she was subjected to due to her gender identity. In 1993, through a family-based immigration
13 Robert Verity et al., Estimates of the Severity of Coronavirus Disease 2019: A Model-Based Analysis 5 tbl.1, Lancet (Mar. 30, 2020), https://www.thelancet.com/pdfs/journals/laninf/PIIS1473-3099(20)30243-7.pdf. 14 World Health Org., Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), at 12 (2020), available at https://www.who.int/docs/defaultsource/coronaviruse/who-china-joint-mission-on-covid-19-final-report.pdf. 15 Id.
7

petition, she became a U.S. permanent resident and maintained that status for 26 years. She intends on submitting an application for asylum and withholding of removal. Prior to being detained, she lived near her mother in New York City. Ms. Belliard has been diagnosed with multiple physical and mental health disorders, including HIV, asthma, schizoaffective disorder (depressive type), gender identity disorder and dysthymic disorder. Ms. Belliard’s HIV diagnosis makes her very vulnerable to illnesses, and she requires consistent monitoring and treatment. Her asthma affects her ability to breathe properly. While she is currently isolated from the general population of other detained persons at the Aurora facility, she interacts with the officers multiple times per day. Reports estimate that the mortality rate from COVID-19 for someone like Ms. Belliard who suffers from asthma is 8.0 percent.16 Ms. Belliard’s medical conditions, including but not limited to her HIV diagnosis and asthma, therefore put her at high risk for complications or death from COVID19. A declaration from Ms. Belliard is found at Exhibit F.
18. Petitioner Sanela Hamzic (“Ms. Hamzic”) is 52 years old. She has applied for asylum and cancellation of removal for lawful permanent residents. Ms. Hamzic has two sons, one of whom is a U.S. citizen. Her mother, sister and two grandchildren are also U.S. citizens. Prior to detention, Ms. Hamzic worked at home helping to care for her mother, son and two grandchildren. She also assisted in supporting her son and grandchildren financially. Ms. Hamzic has several diagnosed chronic conditions, including diabetes, high blood pressure, asthma, attention deficit disorder, depression and PTSD. Ms. Hamzic was also previously diagnosed with cancer in her lungs and ovaries, resulting in the removal of one of her lungs and a hysterectomy. She also
16 Id.
8

recently received a mammogram, which detected lumps in her breast. Following the mammogram, a biopsy was performed, and it was recommended that Ms. Hamzic undergo surgery. Ms. Hamzic decided against the treatment because she was scared to undergo another surgery in detention. Reports estimate that the mortality rate from COVID-19 is 9.2 percent for someone with diabetes, 8.4 percent for someone with hypertension, 8.0 percent for someone with chronic respiratory disease, and 7.6 percent for someone with cancer.17 Moreover, individuals between the ages of 50–59, like Ms. Hamzic, have a case fatality ratio of 1.25 percent, compared to a case fatality ratio of less than 0.3 percent among those under 50.18 Ms. Hamzic’s age and ongoing chronic medical conditions therefore put her at high risk for complications or death from COVID-19. A declaration from Ms. Hamzic is found at Exhibit G.
19. Petitioner Rafael Soria Mora a.k.a Benigno Velasquez Arenas (“Mr. Soria Mora”) is a 47-year-old immigrant from Mexico. He is applying for cancellation of removal. He has lived in the United States since 1995, and his wife is a lawful permanent resident of the United States. He also has five stepchildren whom he has cared for since they were very young. Prior to detention, Mr. Soria Mora worked three jobs to support himself and his family. Mr. Soria Mora’ wife struggles with severe medical and mental health conditions, including high blood pressure, osteoporosis and past trauma from emotional and physical abuse she experienced in a prior marriage. Mr. Soria Mora also financially supports his two youngest sons, who are 21 and 18 years old and U.S. citizens. His 21-year-old son is apprenticing to be a plumber and electrician, and his
17 Id. 18 Robert Verity et al., Estimates of the Severity of Coronavirus Disease 2019: A Model-Based Analysis 5 tbl.1, Lancet (Mar. 30, 2020), https://www.thelancet.com/pdfs/journals/laninf/PIIS1473-3099(20)30243-7.pdf.
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18-year-old son has received scholarships to attend university next year and aspires to be a doctor. Finally, Mr. Soria Mora supports his mother who has an injured back and lives in Mexico. Mr. Soria Mora has chronic asthma, for which he uses an inhaler approximately 10–11 times a day. He was prescribed a nasal spray that assists with his respiratory problems, but the Aurora facility has recently been out of his prescribed medication, and the replacement medication the facility provides to him does not manage his symptoms as well as his prior medication. Additionally, Mr. Soria Mora suffers from hypertension and sleep apnea. As noted above, reports indicate that conditions like asthma and hypertension have mortality rates from COVID-19 of 8.0 percent and 8.4 percent, respectively.19 Due to Mr. Soria Mora’ chronic conditions and the Aurora facility’s inability to properly treat his asthma, Mr. Soria Mora is therefore at high risk for complications or death from COVID-19. A declaration from Mr. Soria Mora is found at Exhibit H.
20. Petitioner Alison Mendoza (“Ms. Mendoza Mendoza”) (her legal first name is Melvin) is a 35-year-old transgender woman from El Salvador. Prior to detention, she cared for great-grandmother until her death in May 2018. She fled El Salvador following threats of violence and death from a gang, and is applying for asylum, withholding of removal or protection under the Convention Against Torture. Ms. Mendoza Mendoza has diabetes, high triglycerides, and high cholesterol for which she requires constant monitoring and treatment. As noted above, reports estimate that the mortality rate from COVID-19 is 9.2 percent for someone with diabetes.20 She also suffers from depression, for which she is not receiving therapy or treatment. Ms. Mendoza
19 World Health Org., Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), at 12 (2020), available at https://www.who.int/docs/defaultsource/coronaviruse/who-china-joint-mission-on-covid-19-final-report.pdf. 20 Id.
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Mendoza’s serious medical conditions put her at high risk for complications or death from COVID-19. A declaration from Ms. Mendoza Mendoza is found at Exhibit I.
21. Petitioner Naomi Hernandez Morales (“Ms. Hernandez Morales”) (her legal first name is Lesther Rafael) is a 36-year-old transgender woman from El Salvador. She is applying for asylum, withholding of removal or protection under the Convention Against Torture because she fears torture or persecution due to her transgender identity if she returns to El Salvador. Ms. Hernandez Morales learned that she was HIV-positive in 2008 and has been taking HIV medication for two years. Ms. Hernandez Morales’ HIV diagnosis put her at high risk for complications or death from COVID-19. A declaration from Ms. Hernandez Morales is found at Exhibit J.
22. Petitioner Heidi Nicole Hidalgo Mendoza (“Ms. Hidalgo Mendoza”) (her legal first name is Nilson Salmon) is a 22-year-old transgender woman from El Salvador. She is applying for asylum, withholding of removal or protection under the Convention Against Torture because she fears torture or persecution due to her transgender identity if she returns to El Salvador. Ms. Hidalgo Mendoza tested positive for HIV on April 2, 2020. She has received antiretrovirals on a daily basis since diagnosis, but not at a consistent time. She experiences nausea, vomiting, and dizziness associated with the antiretrovirals, and has lost significant weight while detained. Ms. Hidalgo Mendoza’s HIV diagnosis put her at high risk for complications or death from COVID19. A declaration from Ms. Hidalgo Mendoza is found at Exhibit K.
23. Petitioner Violet Paz Alvarez (“Ms. Paz Alvarez”) (her legal first name is Adan) is a 50-year-old transgender woman from Honduras. She is applying for asylum, withholding of removal or protection under the Convention Against Torture because she fears torture or
11

persecution due to her transgender identity if she returns to Honduras, where she was a human rights defender and activist for HIV-positive people. Ms. Paz Alvarez has been HIV-positive for many years. She regularly takes antiretrovirals for her condition, but was unable to do so at two processing and detention centers prior to her transfer to Colorado. Upon Ms. Paz Alvarez’s arrival at the Aurora facility, she did not receive antiretroviral treatment for approximately a week. She is now receiving daily treatment, but not at a consistent time. Ms. Paz Alvarez is fearful of contracting COVID-19 because her immune defenses are depressed due to the break in her HIV treatment. She has also been diagnosed with high triglyceride levels. A declaration from Ms. Paz Alvarez is found at Exhibit L.
24. Petitioner Brittany Riviera Calero (“Ms. Riviera Calero”) (her legal first name is Jose Antonio) is a 22-year-old transgender woman from Honduras. She is applying for asylum, withholding of removal or protection under the Convention Against Torture because she fears torture or persecution due to her transgender identity if she returns to Honduras. Ms. Riviera Calero is HIV-positive, for which she requires a daily antiretroviral. Recently, the medical staff at the Aurora facility accidentally gave her a different medicine than her normal antiretroviral, which made her feel very sick for the entire day. Ms. Riviera Calero is fearful of contracting COVID-19 because her immune defenses are depressed due to her HIV diagnosis. A declaration from Ms. Riviera Calero is found at Exhibit M.
25. Petitioner Alexa Marroquin Gonzalez (“Ms. Marroquin Gonzalez”) (her legal first name is Alexander) is a 30-year-old transgender woman from El Salvador. She was abused and discriminated against in El Salvador, and fled the country to save her life. Prior to detention, Ms. Marroquin Gonzalez worked in a blouse factory to financially support her mother. She is applying
12

for asylum, withholding of removal or protection under the Convention Against Torture. Ms. Marroquin Gonzalez is HIV-positive. She receives antiretrovirals on a daily basis at the Aurora facility, but not at a consistent time. A declaration from Ms. Marroquin Gonzalez is found at Exhibit N.
26. Petitioner Iviian Montes Hernandez (“Ms. Montes Hernandez”) (her legal first name is Jose Angel) is a 27-year-old transgender woman from El Salvador. Ms. Montes Hernandez is applying for asylum, withholding of removal or protection under the Convention Against Torture because she fears torture or persecution due to her transgender identity if she returns to El Salvador. Ms. Montes Hernandez is HIV-positive. She receives antiretrovirals on a daily basis at the Aurora facility, but not at a consistent time. Due to Ms. Montes Hernandez’s HIV diagnosis, she is at high risk for complications or death from COVID-19. A declaration from Ms. Montes Hernandez is found at Exhibit O.
27. Petitioner Monserrat Ramos Sierra (“Ms. Ramos Sierra”) (her legal first name is Rony Moises) a 31-year-old transgender woman from Honduras. Prior to detention in March 2020, Ms. Ramos Sierra studied accounting and also to be a chef. Ms. Ramos Sierra is HIV-positive, for which she requires consistent monitoring and treatment. She requires a daily antiretroviral, which she was not consistently receiving while detained prior to arriving at Aurora. Ms. Ramos Sierra also suffers from severe pain in her lungs, back, and stomach, for which she has received only minimal treatment and has not received a diagnosis. Ms. Ramos Sierra’s medical conditions, including but not limited to her HIV diagnosis, put her at high risk for complications or death from COVID-19. A declaration from Ms. Ramos Sierra is found at Exhibit P.
28. Petitioner Alexandra Osorio Linares (“Ms. Osorio Linares”) (her legal first name is
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Benjamin Eliseo) is a 29-year-old transgender woman from El Salvador. Ms. Osorio Linares is HIV-positive. A declaration from Ms. Ramos Sierra is found at Exhibit Q.
29. Respondent Johnny Choate is the Warden of the Aurora facility, where Petitioners are detained. Defendant Choate is a legal custodian of Petitioners. He is sued in his official capacity.
30. Respondent John Fabbricatore is the ICE Denver Acting Field Office Director. The Denver Field Office is responsible for carrying out ICE’s immigration detention operations at all of Colorado’s detention centers that house immigration-detained individuals. Defendant Fabbricatore is a legal custodian of Petitioners. He is sued in his official capacity.
31. Respondent 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 Petitioners. He is sued in his official capacity.
32. Respondent 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 Petitioners.
IV. FACTS A. COVID-19 Poses Grave Risk of Harm, Including Serious Illness or Death, to
Older Individuals and Those with Certain Underlying Medical Conditions. 33. COVID-19 is a coronavirus that has reached pandemic status. As of April 12, 2020, over 1.6 million individuals worldwide have confirmed diagnoses, including nearly 500,000 in the
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United States.21 More than 100,000 individuals worldwide have died as a result of COVID-19, including more than 18,000 in the United States.22 Those numbers are growing exponentially, with over 85,000 new cases worldwide from the prior day alone.23 By the time the Court reads this complaint, there will be more diagnoses, and more death, with no end in sight.
34. 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.24 It can be transmitted even when the person carrying the disease is not showing symptoms.25
35. COVID-19 can result in respiratory failure, multiorgan dysfunction, and death.26 Infected individuals who do not die from the disease can face serious damage to the lungs, heart, other organs, resulting in prolonged recovery periods, including extensive rehabilitation from neurological damage and loss of respiratory capacity.27
36. People who are considered at high risk of severe illness and death should they be infected with the coronavirus include the following:
• People age 50 or older; • People with a history of smoking; and • Anyone diagnosed with cancer, autoimmune disease (including lupus,
21 World Health Org., Coronavirus Disease 2019 (COVID-19): Situation Report – 83, at 1, 4 (Apr. 12, 2020), available at https://www.who.int/docs/default-source/coronaviruse/situationreports/20200412-sitrep-83-covid-19.pdf?sfvrsn=697ce98d_4. 22 Id. 23 Id. at 1. 24 Decl. of Dr. Franco-Paredes, Ex. A, ¶ 15. 25 Id. ¶¶ 8, 23. 26 Id. ¶ 10. 27 Id. ¶¶ 10, 12.
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rheumatoid arthritis, psoriasis, Sjögren’s, Crohn’s), chronic lung disease (including asthma, COPD, bronchiectasis, idiopathic pulmonary fibrosis), history of cardiovascular disease, chronic arthritis (rheumatoid, psoriatic), chronic liver or kidney disease, diabetes, hypertension, heart failure, blood disorders, inherited metabolic disorders, HIV/AIDS, or those who take steroids to treat chronic conditions; and obesity. 28 37. Complications from COVID-19 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.29 38. Even some younger and healthier individuals who contract COVID-19 may require supportive care.30 And those who develop serious complications will need advanced support, including highly specialized equipment that is in limited supply and an entire team of care providers, including 1:1 or 1:2 nurse-to-patient ratios, respiratory therapists and intensive care physicians.31 39. The need for care, including intensive care, and the likelihood of death are much higher with respect to COVID-19 infection than influenza.32 According to recent estimates, the fatality of people infected with the coronavirus is about ten times higher than for a severe seasonal influenza, even in advanced countries with highly effective health care systems.33 40. Patients in high-risk categories who do not die from COVID-19 should expect a
28 Id. ¶ 13. 29 Id. ¶ 10. 30 Id. ¶ 14. 31 Id. 32 Id. ¶ 9. 33 Id.
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prolonged recovery, including extensive rehabilitation.34 41. There is no vaccine against COVID-19, nor is there any known medication to
prevent or cure infection from the virus.35 42. The only known effective measure to reduce the risk of severe illness or death to
vulnerable individuals is to prevent them from being infected with the coronavirus. Social distancing, or remaining physically separated from known or potentially infected individuals, and vigilant hygiene, including washing hands with soap and water, are the only known effective measures to prevent infection.36
B. The Aurora Facility Cannot Prevent Widespread Infections. 43. The Aurora facility is located in Colorado, which is currently experiencing a serious coronavirus outbreak. As of April 13, 2020, there were 7,691 confirmed cases of COVID-19 in Colorado.37 The number of infected people is rising exponentially. In Colorado, more than 1,400 individuals have been hospitalized, and 308 have died.38 The Aurora facility is located in Arapahoe County, which currently has over 1,000 confirmed cases of COVID-19 and 39 deaths from the disease.39
34 Id. ¶ 12. 35 Id. ¶ 16. 36 See Coronavirus Disease 2019 (COVID-19): How to Protect Yourself & Others, Ctrs. for Disease Control and Prevention (last updated Apr. 8, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html. 37 Case Data, Colo. Dep’t of Pub. Health & Env’t, (Apr. 14, 2020, 12:19 AM), https://covid19.colorado.gov/case-data. 38 Id. 39 Id.
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44. Since the COVID-19 pandemic began, there have been multiple quarantines at the
Aurora facility—indeed, there is currently an ongoing quarantine of 77 detained persons.40 Given
the shortage of COVID-19 tests, the Aurora facility cannot and has not conducted aggressive,
widespread testing. Instead, it has tested only two detained individuals for COVID-19, both of
whom tested negative.41 There are no testing practices guiding isolation and quarantine within the
Aurora facility.42 This is particularly alarming given that the Aurora facility has undisputedly
already been exposed to COVID-19—two ICE employees and three GEO Group employees who
work in the Aurora facility, at least one of whom had direct contact with detained individuals, have
tested positive for the virus.43 Therefore, without widespread testing, there is an immediate and
impending threat that the coronavirus could uncontrollably spread throughout the Aurora facility.44
45. Given the rapid spread of COVID-19 throughout Colorado, the conditions in the
40 U.S. Congress, ICE Aurora Contract Detention Center Accountability Report Electronic Request (Apr. 6, 2020), available at https://crow.house.gov/sites/crow.house.gov/files/ICE%20Accountability%20Report%20Electro nic%20Request%204-6%20FINAL%20%281%29.pdf. 41 Id. 42 Decl. of Dr. Franco-Paredes, Ex. A, ¶ 50. 43 Sam Tabachnik, Ten Detainees at Aurora’s ICE Detention Facility Isolated for Possible Exposure to Coronavirus, Denv. Post (Mar. 17, 2020), https://www.denverpost.com/2020/03/17/coronavirus-ice-detention-geo-group-aurora-colorado/; Conor McCormick-Cavanagh, Nearly Eighty ICE Detainees in Aurora Quarantined, Westword (Mar. 27, 2020), https://www.westword.com/news/aurora-immigrant-detention-center-hastested-77-detainees-for-covid-19-11676141; ICE Guidance on COVID-19, U.S. Immigr. & Customs Enforcement (last updated Apr. 10, 2020), https://www.ice.gov/coronavirus (select tab “Confirmed Cases” and scroll to section “ICE EMPLOYEES AT DETENTION CENTERS”); Conor McCormick-Cavanagh, Three More Employees at Aurora ICE Facility Test Positive for COVID-19, Westword (Apr. 8, 2020), https://www.westword.com/news/three-geo-groupstaffers-at-ice-facility-in-aurora-test-positive-for-covid-19-11683722. 44 Decl. of Dr. Franco-Paredes, Ex. A, ¶¶ 37, 50.
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Aurora facility and the fact that the Aurora facility has already been exposed to COVID-19, it is only a matter of time before the disease becomes widespread among the population of detained individuals.
46. The Aurora facility does not adequately provide the mitigation measures that public health experts and the CDC recommend, which makes the rapid spread of COVID-19 at the Aurora facility very likely. For example, it is impossible for individuals at the Aurora facility to comply with CDC’s recommendation to remain six feet apart at all times.45 Immigrants detained at this facility are housed together in groups. The dormitories house many individuals in close quarters, well under the distance of six feet apart that the CDC recommends.46 Indeed, many detained persons report that they are being instructed to maintain three feet of distance from others because there is not enough room to maintain six feet of distance.47 Detained persons use common spaces together, sharing tables, telephones and bathrooms.48
47. The Aurora facility also has not changed its cleanliness procedures in response to the COVID-19 pandemic.49 Bathrooms are used by large numbers of people and are not sanitized
45 Decl. of C. Cowgill, Ex. B, ¶¶ 17, 20; Decl. of Dr. Franco-Paredes, Ex. A, ¶¶ 22, 47, 51. 46 Decl. of C. Cowgill, Ex. B, ¶¶ 17, 20. 47 Id. ¶ 20. 48 Decl. of C. Cowgill, Ex. B, ¶ 17; Decl. of L. Jordan, Ex. C, ¶¶ 15, 17; Decl. of J. Codner, Ex. D, ¶ 7; Decl. of N. Temah, Ex. E, ¶¶ 8–9; Decl. of S. Hamzic, Ex. G, ¶¶ 7–8; Decl. of R. Mora, Ex. H, ¶¶ 9–10; Decl. of H. Mendoza, Ex. K, ¶ 13; Decl. of V. Alvarez, Ex. L, ¶ 7; Decl. of B. Calero, Ex. M, ¶ 12; Decl. of A. Gonzalez, Ex. N, ¶¶ 7, 8; Decl. of I. Hernandez, Ex. O, ¶¶ 9, 11; Decl. of M. Sierra, Ex. P, ¶¶ 6, 8; Decl. of A. Linares, Ex. Q, ¶11. 49 Decl. of L. Jordan, Ex. C, ¶ 12; Decl. of J. Codner, Ex. D, ¶ 5; Decl. of M. Belliard, Ex. F, ¶ 5; Decl. of S. Hamzic, Ex. G, ¶ 6; Decl. of R. Mora, Ex. H, ¶ 7.
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or disinfected after each use.50 One detained person has recounted that he is sharing a single
Kleenex among four people to try and sanitize their space.51 Another has reported that there is no
hand soap and that he has been using shampoo to wash his hands.52 Detained persons are not being
provided full personal protective equipment, such as masks and gloves.53 Only some GEO and
ICE staff wear masks and gloves, and others, including staff who have direct contact with the
detained population, do not wear any protective equipment.54
48. Moreover, staff arrive and leave on a shift basis, and even asymptomatic staff could
carry the infection into the facility.55 The risk of transmission from staff to detained persons is
extremely high at the Aurora facility—there are already five positive cases of COVID-19 among
the Aurora facility staff.56 This is particularly concerning in light of a recent CDC report that found
any one person who carries COVID-19 typically infects more than five other people.57 Because
50 Decl. of A. Mendoza, Ex. I, ¶ 10. 51 Decl. of C. Cowgill, Ex. B, ¶ 19. 52 Decl. of C. Cowgill, Ex. B, ¶ 19; see also Decl. of J. Codner, Ex. D, ¶ 5; Decl. of R. Mora, Ex. H, ¶ 10; Decl. of A. Mendoza, Ex. I, ¶ 10; Decl. of H. Mendoza, Ex. K, ¶ 14; Decl. of I. Hernandez, Ex. O, ¶ 10. 53 Decl. of C. Cowgill, Ex. B, ¶ 19; Decl. of L. Jordan, Ex. C, ¶¶ 12, 14, 15, 18; Decl. of J. Codner, Ex. D, ¶ 5; Decl. of N. Temah, Ex. E, ¶¶ 8–9; Decl. of A. Mendoza, Ex. I, ¶ 9; Decl. of N. Morales, Ex. J, ¶8; Decl. of H. Mendoza, Ex. K, ¶ 14; Decl. of V. Alvarez, Ex. L, ¶¶ 6, 8; Decl. of B. Calero, Ex. M, ¶ 13; Decl. of A. Gonzalez, Ex. N, ¶ 9; Decl. of M. Sierra, Ex. P, ¶ 7; Decl. of A. Linares, Ex. Q, ¶10. 54 Decl. of C. Cowgill, Ex. B, ¶¶ 21, 23; Decl. of L. Jordan, Ex. C, ¶¶ 12, 14, 15, 18; Decl. of J. Codner, Ex. D, ¶ 5; Decl. of A. Mendoza, Ex. I, ¶ 8; Decl. of H. Mendoza, Ex. K, ¶ 14; Decl. of V. Alvarez, Ex. L, ¶ 8; Decl. of B. Calero, Ex. M, ¶¶ 10, 14; Decl. of A. Gonzalez, Ex. N, ¶ 9; Decl. of I. Hernandez, Ex. O, ¶ 11; Decl. of M. Sierra, Ex. P, ¶¶ 5, 8; Decl. of A. Linares, Ex. Q, ¶13. 55 See Decl. of Dr. Franco-Paredes, Ex. A, ¶¶ 8, 23. 56 Conor McCormick-Cavanagh, supra n.1. 57 See Steven Sanche et al., High Contagiousness and Rapid Spread of Severe Acute Respiratory
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individuals at the Aurora facility cannot remain six feet apart or implement other CDC recommendations, as described above, the coronavirus can quickly spread among the dense detained-person cohort, including among individuals like Petitioners, who are at high risk of severe illness or death from COVID-19.
49. The Aurora facility is also continuing to allow transfers of newly detained persons who have been living in other areas where COVID-19 is raging without screening for COVID19.58 For example, several people have been transferred from California, Louisiana and Texas to Aurora.59 This further increases the risk that vulnerable detained individuals will be exposed to the virus.60
50. Not only is the Aurora facility failing to take proper precautions to prevent the spread of COVID-19, it is also ill equipped to manage an infectious disease outbreak. The facility has limited high-level medical care and on-site medical facilities. For example, the facility has only one doctor on staff to serve the over 500 detained individuals currently residing there.61 As a result, individuals at the facility are most frequently treated by nurses, who have a history of providing insufficient medical care.62 Moreover, for individuals housed in the “Annex” or “Aurora
Syndrome Coronavirus 2, 26 Emerging Infectious Diseases (July 2020), available at https://doi.org/10.3201/eid2607.200282. 58 Decl. of L. Jordan, Ex. C, ¶¶ 11, 12, 16. 59 Decl. of R. Mora, Ex. H, ¶ 9; see also Decl. of L. Jordan, Ex. C, ¶ 12. 60 Decl. of Dr. Franco-Paredes, Ex. A, ¶ 23. 61 Decl. of L. Jordan, Ex. C, ¶ 6 (citing U.S. Congress, ICE Aurora Contract Detention Center Accountability Report Electronic Request (2020), available at https://crow.house.gov/sites/crow.house.gov/files/ICE%20Accountability %20Report%20Electronic%20Request%204-6%20FINAL%20%281%29.pdf). 62 Decl. of L. Jordan, Ex. C, ¶ 7; Decl. of C. Cowgill, Ex. B, ¶¶ 11, 16.
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South,” there is no higher-level medical care available—there is only a nurses’ station.63 Upon information and belief, there are no isolation cells or dedicated medical areas with proper infrastructure or equipment in Aurora South.64
51. The Aurora facility therefore remains unprepared and incapable of taking necessary precautions to protect people in custody against a life-threatening illness.65
52. That COVID-19 is likely to spread at the Aurora facility is further supported by the fact that COVID-19 has already spread quickly in Colorado’s jails and prisons. There have been positive COVID-19 cases among incarcerated persons and staff in Weld County, Jefferson County, El Paso County and downtown Denver jails.66 Members of the Department of Corrections, public defenders and prosecutors have all also tested positive for the disease.67 One deputy in charge of intake and release at the El Paso jail— where some detained individuals are held for 72 hours — has died of the disease, and now two other deputies at the El Paso jail have tested positive for COVID-19.68
53. The Governor of Colorado has recognized that the detained population is at an
63 Decl. of L. Jordan, Ex. C, ¶ 9. 64 Id. 65 See Decl. of Dr. Franco-Paredes, Ex. A, ¶¶ 30-31. 66 Elise Schmelzer, Colorado Defense Attorneys Petition State to Release Some Inmates as Coronavirus Spreads in Jails, Denv. Post (Apr. 3, 2020), https://www.denverpost.com/2020/04/03/colorado-coronavirus-jails-inmate-release-petition/. 67 Id. 68 Lance Benzel, 3 Deputies at El Paso County Jail Have Tested Positive for COVID-19; Virus ‘Likely’ to Spread to Inmates, Sheriff’s Office Warns, Gazette, last updated Apr. 10, 2020, https://gazette.com/news/3-deputies-at-el-paso-county-jail-have-tested-positive-for-covid-19virus-likely/article_409db30c-75bf-11ea-a37c-334d20e5bf37.html.
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increased risk during the pandemic. He accordingly issued guidance encouraging state law
enforcement to issue citations and summons rather than arrests when possible to reduce the risk of outbreak in the state jail population.69 Similarly, Congressman Jason Crow, the representative for
the district in which the Aurora facility is located, along with several other congressional
representatives, has recognized this same threat at detention facilities such as the Aurora facility.
Congressman Crow requested that ICE “immediately grant humanitarian parole to all vulnerable
individuals with pending immigration-related, non-violent charges or convictions in detention
facilities operated or contracted with [ICE], evaluate all non-violent detainees for humanitarian
parole—or other forms of parole they may be eligible for—who do not pose a public safety risk, and inform all detainees of their right to seek humanitarian release.”70
C. ICE’s Response to COVID-19 is Insufficient to Prevent the Spread of this Life-Threatening Disease.
54. COVID-19 has already reached the Aurora facility. Petitioners and others who are
detained at the facility face inherent challenges to protect themselves from COVID-19 infection
because they live, sleep, and use the bathroom in close proximity with others, and because “[b]ehind
bars, some of the most basic disease prevention measures are against the rules or simply impossible.”71
69 John Herrick, Gov. Jared Polis Calls on Law Enforcement to Reduce Arrests During Pandemic, Colorado Independent (Mar. 25, 2020), https://www.coloradoindependent.com/2020/03/25/polis-arrests-jail-covid-19/. 70 Letter to Matthew Albence, Acting Director of U.S. Immigration and Customs Enforcement (Mar. 27, 2020), https://crow.house.gov/sites/crow.house.gov/files/Letter%20to%20Acting%20Director%20Albe nce%20Regarding%20Humanitarian%20Parole%20Due%20to%20COVID-19.pdf. 71 Keri Blakinger and Beth Schwartzapfel, When Purell is Contraband, How Do You Contain Coronavirus?, The Marshall Project (Mar. 6, 2020),
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55. Similarly, it is impossible for people, including Petitioners, to take steps to protect themselves from infection, such as washing their hands with soap or distancing themselves from other individuals.
56. Given the general lack of available testing, it is equally impossible for detention facilities to consistently and adequately screen detained persons and staff for new, asymptomatic infection. The Aurora facility also does not have the capacity to truly isolate spread of the disease through airborne respiratory droplets.
57. ICE’s official guidance on COVID-19 does not state under what conditions detainees would be tested. Instead, the only measure ICE has committed to taking is to isolate detained persons with fever and/or respiratory symptoms who meet CDC criteria for epidemiologic risk of exposure to the coronavirus for an unspecified amount of time.
58. ICE’s official guidance also does not offer an effective way to determine who even has the virus. Since some COVID-19 carriers can be asymptomatic or not show symptoms for up to two weeks after exposure, “screening people based on observable symptoms is just a game of catch up.” In re. Extradition of Toledo Manrique, No. 19-mj- 71055, 2020 WL 1307109, at *1 (N.D. Cal. Mar. 19, 2020) (ordering release on bail in part because government’s management plan did not “say anything about testing”).
59. Although ICE has temporarily suspended social visitation in all detention facilities, staff, contractors, and vendors continue to arrive and leave the detention centers. In addition, people
https://www.themarshallproject.org/2020/03/06/when-purell-is-contraband-how-do-you-containcoronavirus (describing, for example, limited access to hand sanitizer and other precautionary measures).
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are frequently transported to, from, and between facilities. 60. Neither ICE nor the Aurora facility have the resources necessary to engage in
aggressive screening and testing of all detainees, staff, officials and other care and service providers who enter the facility, especially considering the shortage in available tests.
61. Immigration detention facilities have faced outbreaks of other infectious diseases in recent years due to overcrowding, poor hygiene measures, medical negligence, and poor access to resources and medical care. As recently as last year, ICE mishandled and failed to take adequate measures to protect detained immigrants against outbreaks of chicken pox and mumps.72 And ICE has a long history of mishandling infectious and communicable diseases, struggling to contain them, and failing to follow nationally accepted standards. The Office of the Inspector General (“OIG”) of the Department of Homeland Security (“DHS”) even concluded in a 2019 report that ICE “does not adequately hold detention facility contractors accountable for not meeting performance standards,” “issued waivers to facilities with deficient conditions, seeking to exempt them from complying with certain standards,” and “does not adequately share information about ICE detention contracts with key officials.”73
62. 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
72 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/migrantdetention- centers-are-getting-slammed-with-mumps-and-chicken-pox. 73 See Office of Inspector General, ICE Does Not Fully Use Contracting Tools to Hold Detention Facility Contractors Accountable for Failing to Meet Performance Standards (Jan. 29, 2019) at 1, available at https://www.oig.dhs.gov/sites/default/files/assets/2019-02/OIG-19-18-Jan19.pdf.
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inspections.”74
63. ICE has even publicly acknowledged the need to limit the spread of the virus and
the number of people in its detention centers, announcing that it will delay enforcement actions to
arrest fewer immigrants and will use alternatives to detention as a response to the COVID-19 outbreak for people who are not already detained.75 However, since the first quarantine began at the Aurora facility on March 12, 2020, ICE has detained at least 276 new people.76 But the agency
has failed to release many vulnerable individuals, including Petitioners who are still currently in custody.77
64. Given the rapid spread of COVID-19, the likelihood of spread before a person
infected with the virus is symptomatic, highly limited availability of testing, ICE’s repeated failure
to meet adequate standards for controlling infectious disease outbreaks in its facilities, and current
conditions at the facility, Defendants cannot prevent the spread of COVID-19 at the Aurora
facility.
74 See Office of the Inspector General, ICE’s Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or Systemic Improvements (June 26, 2018) at 1, available at https://www.oig.dhs.gov/sites/default/files/assets/2018-06/OIG-18-67-Jun18.pdf. 75 See Maria Sacchetti and Arelis R. Hernández, ICE to Stop Most Immigration Enforcement Inside U.S., Will Focus on Criminals During Coronavirus Outbreak, Wash. Post (Mar. 18, 2020), https://www.washingtonpost.com/national/ice-halting-most-immigrationenforcement/2020/03/18/d0516228-696c-11ea-abef-020f086a3fab_story.html. 76 ICE Aurora Contract Detention Center Accountability Report Electronic Requests (Mar. 25, Mar. 30, & Apr. 6, 2020), available at https://crow.house.gov/about/ice-accountability-report. 77 See 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-ignoring-recommendations-to-releaseimmigrant-detainees-to-slow-the-spread-of-coronavirus/.
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D. Individuals Most Vulnerable to COVID-19 Should Immediately Be Released. 65. The only viable public health strategy currently available in the United States is risk mitigation. For this reason, public health experts with experience in immigration detention and correctional settings have recommended the release of vulnerable detained individuals from custody. 66. As early as February 25, 2020, Dr. Scott Allen and Dr. Josiah Rich, medical experts to the Department of Homeland Security, shared concerns about the specific risk to immigrant detained persons as a result of COVID-19 with the agency. These experts warned of the danger of rapid spread of the coronavirus in immigration detention facilities. In a whistleblower letter to Congress, Dr. Allen and Dr. Rich recommended that “[m]inimally, DHS should consider releasing all detainees in high risk medical groups such as older people and those with chronic diseases.”78 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.”79 67. According to Dr. Carlos Franco-Paredes, an Associate Professor of Medicine at the University of Colorado in the Department of Medicine, Division of Infectious Diseases and the Infectious Diseases Fellowship Program Director, reducing the number of detained individuals at the Aurora facility is necessary for effective infection control. He specifically recommends “releasing those in the high risk age groups and those with underlying medical conditions” in order to “lessen the impact of an outbreak of COVID-19 because these groups, should they fall ill, carry
78 Letter from Dr. Scott Allen & Dr. Josiah Rich to House Comm. on Homeland Sec. at 6 (Mar. 19, 2020), available at https://assets.documentcloud.org/documents/6816336/032020-LetterFrom-Drs-Allen-Rich-to-Congress-Re.pdf. 79 Id.
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the highest concentration of virus in their respiratory secretions and act as human incubators of the virus.”80
68. ICE has the authority to release individuals from custody on medical grounds and
has routinely exercised its authority to release particularly vulnerable detained persons like
Petitioners. 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.”81 In fact, ICE has released some individuals from the Aurora facility,82 but Petitioners, who all have serious medical conditions that
render them especially susceptible to serious complications or death from COVID-19, continue to
be detained.
69. Releasing the most vulnerable people, such as Petitioners, would also reduce the
burden on regional hospitals and health centers. In case of an outbreak at a detention center, those
institutions would bear the brunt of having to treat infected individuals from detention centers and
have fewer medical resources available for the general population. To ensure that the release of
Petitioners does not increase the spread of COVID-19, each of the Petitioners has post-release plans to take preventative measures and comply with CDC guidelines.83
80 Decl. of Dr. Franco-Paredes, Ex. A, ¶52. 81 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/releaseice-detainees/608536/; see also 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/. 82Kevin Beaty, Immigrants Released from the Aurora Prison After COVID Case Confirmed, Denverite (Mar. 27, 020), https://denverite.com/2020/03/27/immigrants-released-from-theaurora-prison-after-covid-case-confirmed/. 83 See generally Exs. R-R5 (post-release plans created by social workers employed with the
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70. Governments in the United States and worldwide have recognized the threat posed by COVID-19 spread among detained and incarcerated populations and have released detained individuals for that reason. For example, Iran temporarily released more than 80,000 people to curb the spread of the virus.84 In the United States, several jurisdictions including New York, Los Angeles, Chicago, and Massachusetts have released detained individuals for the same reasons.85
E. Petitioners Are Particularly Vulnerable to Serious Illness or Death if Infected by COVID-19 and Should Be Released from Custody.
71. Petitioners 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 the Aurora facility as they await adjudication of their immigration cases.
72. As described above, people at risk of serious illness or death from COVID-19 include: (a) people over age 50; (b) anyone diagnosed with cancer, autoimmune disease (including lupus, rheumatoid arthritis, psoriasis, Sjogren’s, Crohn’s), chronic lung disease (including asthma, COPD, bronchiectasis, idiopathic pulmonary fibrosis), history of cardiovascular disease, chronic arthritis (rheumatoid, psoriatic), chronic liver or kidney disease, diabetes, hypertension, heart failure, HIV, chronic steroids to treat chronic conditions; and (c) people with a history of
Rocky Mountain Immigrant Advocacy Network). 84 Parisa Hafezi, Iran Temporarily Frees 85,000 From Jail Including Political Prisoners, Reuters (Mar.17, 2020), https://www.reuters.com/article/us-health-coronavirus-iran-prisoners/irantemporarily-frees-85000-from-jail-including-political-prisoners-amid-coronavirusidUSKBN21410M. 85 See Catherine Kim, Why People Are Being Released From Jails and Prisons During the Pandemic, Vox (Apr. 3, 2020), https://www.vox.com/2020/4/3/21200832/jail-prison-earlyrelease-coronavirus-covid-19-incarcerated.
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smoking.86 73. Each of the Petitioners have one or more of these risk factors, and are thus more
susceptible to experiencing complications from infectious diseases than the population at large: (a) Ms. Codner is over the age of 50 and suffers from hypertension and allergies; (b) Mr. Temah suffers from several serious medical conditions, including hypertension, Mobitz Type 1 (also known as Second Degree Atrioventricular Block or Wenkebach, a disease of the electrical conduction system of the heart), Post-Traumatic Stress Disorder, depression, and severe anxiety disorder; (c) Ms. Belliard has been diagnosed with multiple physical and mental health disorders, including HIV, asthma, schizoaffective disorder (depressive type), gender identity disorder, and dysthymic disorder; (d) Ms. Hamzic is over age 50, was previously diagnosed with cancer in her lungs and ovaries, resulting in the removal of one lung and a hysterectomy, and may currently be suffering from breast cancer, in addition to several other diagnosed chronic conditions, including diabetes, high blood pressure, asthma, attention deficit disorder, depression, and PTSD; (e) Mr. Soria Mora has chronic asthma, high blood pressure, hypertension, and sleep apnea, for which he takes prescribed medication; (f) Ms. Mendoza Mendoza has diabetes, high triglycerides, and high cholesterol; and (g) Ms. Hidalgo Mendoza, Ms. Riviera Calero, Ms. Marroquin Gonzalez, Ms. Montes Hernandez, Ms. Ramos Sierra, Ms. Osorio Linares, and Ms. Paz Alvarez (who is age 50) are all HIV-positive with compromised immune systems.87
74. Infectious disease outbreaks such as COVID-19 can also exacerbate existing mental health conditions, from which several of the Petitioners suffer, and can contribute to the
86 Decl. of Dr. Franco-Paredes, Ex. A, ¶13. 87 See Decls. at Exs. D-Q.
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development of new mental health conditions. These conditions leave the Petitioners at high risk for complications or death from COVID-19.
V. LEGAL FRAMEWORK A. Petitioners Have a Constitutional Right to Reasonable Safety in Detention. 75. The government has a duty to provide conditions of reasonable health and safety to individuals in their custody. As the Supreme Court has explained, “when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.” DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189, 199–200 (1989). As a result, the government must provide those in its custody with “food, clothing, shelter, medical care, and reasonable safety.” Id. at 200. Failure to provide for those human needs “transgresses the substantive limits on state action” set by the Due Process Clause and Eighth Amendment. Id.; accord Schwartz v. Booker, 702 F.3d 573, 579-80 (10th Cir. 2012). 76. Because persons in immigration detention are not criminally detained, their constitutional protections are derived from the Fifth Amendment, which provides greater protections than the Eighth Amendment. Zadvydas v. Davis, 533 U.S. 678, 693 (2001). The due process clause of the Fifth Amendment forbids the government from depriving a person of life, liberty, or property without due process of law. Mathews v. Eldridge, 424 U.S. 319, 332 (1976). “Eighth Amendment scrutiny is appropriate only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions. . . . the State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law.” Ingraham v. Wright,
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430 U.S. 651, 671 n.40 (1977). 77. While the Eighth Amendment allows punishment as long as it is not cruel and
unusual, the Fifth Amendment’s due process protections do not allow punishment at all. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979) (“Due process requires that a pretrial detainee not be punished.”); Peoples v. CCA Det. Ctrs., 422 F.3d 1090, 1106 (10th Cir. 2005). Therefore, persons in civil immigration detention 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).
78. In order to establish that a particular condition of detention constitutes impermissible punishment, a detained person must show either an expressed intent to punish, or a lack of a reasonable relationship to a legitimate governmental purpose, from which an intent to punish may be inferred. See Wolfish, 441 U.S. at 538-39; CCA Det. Ctrs., 422 F.3d at 1106.
79. An individual in civil detention can establish a due process violation by providing “‘evidence that the challenged governmental action is not rationally related to a legitimate governmental objective or that it is excessive in relation to that purpose.’” Colbruno v. Kessler, 928 F.3d 1155, 1163 (10th Cir. 2019) (citing Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473–74 (2015)); see also Wolfish 441 U.S. at 539 (holding that, if a condition of civil detention “is not reasonably related to a legitimate goal” or if it is “excessive” in relation to a legitimate goal, “a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees.”).
80. Even if government interests are nonpunitive and reasonably related to a legitimate goal, they can nevertheless be deemed excessive, particularly if viable alternatives exist. Wolfish, 441
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U.S. at 539 n.20. 81. The due process rights of those in civil detention such as immigration detention
“are at least as great as the Eighth Amendment protections available to a convicted prisoner.” City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983) (emphasis added); see also Zadvydas, 533 U.S. at 690.
82. Conditions that pose an unreasonable risk of future harm violate the Eighth Amendment’s prohibition against cruel and unusual punishment, even if that harm has not yet come to pass. See Helling, 509 U.S. at 33 (“It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them.”).
83. The Tenth Circuit has held that an individual in pretrial detention can establish a due process violation if he can “show deliberate indifference to his serious medical needs.” McCowan v. Morales, 945 F.3d 1276, 1290 (10th Cir. 2019) (citations omitted).
84. In order to show that defendants acted with deliberate indifference, first a plaintiff must show that the conditions were “sufficiently serious so as to deprive [detainees] of the minimal civilized measure of life’s necessities” or in the alternative that “a condition must be sufficiently serious so as [to] constitute a substantial risk of serious harm.” Shannon v. Graves, 257 F.3d 1164, 1168 (10th Cir. 2001) (citations omitted). Second, a plaintiff must establish that defendants knew of and disregarded that substantial risk to the plaintiff’s health or safety. Farmer v. Brennan, 511 U.S. 825, 837–38 (1994); Burke v. Regalado, 935 F.3d 960, 992 (10th Cir. 2019).
85. The Supreme Court has held that the government violates the Eighth Amendment when it crowds incarcerated people into cells with others who have “infectious maladies,” “even
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though the possible infection might not affect all of those exposed.”. Helling, 509 U.S. at 33 (citing Hutto v. Finney, 437 U.S. 678, 682 (1978)).
86. The Tenth Circuit has held that a risk of contracting “infectious diseases such as Hepatitis A, shigella, and others” can satisfy the substantial risk of serious harm prong and “[t]here is no requirement that an inmate suffer serious medical problems before the condition is actionable.” Shannon, 257 F.3d at 1168. Where a risk is obvious, such as during a contagious disease outbreak, it is fair for a factfinder to assume that the government official was aware of the risk. See, e.g., Farmer, 511 U.S. at 842.
B. This Court Has the Authority to Order Petitioners’ Release to Protect Their Constitutional Rights.
87. A district court’s equitable powers to remedy constitutional violations is broad. See Hutto v. Finney, 437 U.S. 678, 687 n.9 (1978); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971).
88. Although the Tenth Circuit has not had occasion to address this issue, courts in other circuits have exercised the authority to order release as a remedy for constitutional violations. See, e.g., Duran v. Elrod, 713 F.2d 292, 297–98 (7th Cir. 1983), cert. denied, 465 U.S. 1108 (1984) (concluding that court did not exceed its authority in directing release of low-bond pretrial detainees as necessary to reach a population cap); Inmates of Allegheny Cty. Jail v. Wecht, 573 F. Supp. 454, 457 (W.D. Pa. 1983) (finding “no doubt of the inherent power of this Court to” order release of prisoners given unconstitutional conditions related to overcrowding).
89. The Supreme Court has also recognized that “[w]hen necessary to ensure compliance with a constitutional mandate, courts may enter orders placing limits on a prison’s population.” Brown v. Plata, 563 U.S. 493, 511 (2011).
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90. In light of the severe threats posed by COVID-19, a growing number of courts have ordered the release of persons detained in immigration detention. See e.g., Hope v. Doll, 1:20-cv00562-JEJ, Dkt. No. 11 (M.D. Pa. Apr. 7, 2020) (granting TRO releasing high-risk individuals in immigration detention due to the dangers of COVID-19); Thakker v. Doll, 1:20-cv-00480-JEJ, Dkt No. 47 (M.D. Pa. Mar. 31, 2020) (ordering releases from two facilities in Pennsylvania lacking confirmed cases); Coronel v. Decker, 20-cv-2472-AJN, Dkt. No. 26 (S.D.N.Y. Mar. 27, 2020) (granting TRO releasing high-risk individuals); Castillo v. Barr, 20-cv-00605-TJH-AFM, Dkt. No. 32 (C.D. Cal. Mar. 27, 2020) (same); Basank v. Decker, 20-cv-2518-AT, Dkt. No. 11 (S.D.N.Y. Mar. 26, 2020) (same) (collectively, Ex. S).
91. Courts have similarly released numerous individuals held or incarcerated under the federal criminal system. See e.g., United States v. Meekins, No. 1:18-cr-222-APM, ECF No. 75 (D.D.C. Mar. 31, 2020) (post-plea, pre-sentence release order releasing defendant with three pending assault charges due to extraordinary danger COVID-19 poses to people in detention); United States v. Muniz, No. 4:09-cr-199, ECF No. 578, slip op. at 2 (S.D. Tex. Mar. 30, 2020) (releasing defendant serving 188-month sentence for drug conspiracy in light of vulnerability to COVID-19: “[W]hile 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.”); United States v. Grobman, No. 18-cr20989, ECF No. 397, slip op. at 2 (S.D. Fla. Mar. 29, 2020) (releasing defendant convicted after trial of fraud scheme in light of “extraordinary situation of a medically-compromised detainee being housed at a detention center where it is difficult, if not impossible, for [the defendant] and
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others to practice the social distancing measures which government, public health and medical officials all advocate”); United States v. Mclean, No. 19-cr-380, ECF. No. 21, slip op. at 1 (D.D.C. Mar. 28, 2020) (“As counsel for the Defendant candidly concedes, the facts and evidence that the Court previously weighed in concluding that Defendant posed a danger to the community have not changed - with one exception. That one exception - COVID-19 - however, not only rebuts the statutory presumption of dangerousness, see 18 U.S.C. § 3142(e), but tilts the balance in favor of release.”); United States v. Harris, No. 19-cr-356, ECF No. 35, slip op. at 1 (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.”) (collectively, Ex. T); see also In re Request to Commute or Suspend County Jail Sentences, Docket No. 084230 (N.J. Mar. 22, 2020) (available at https://www.njcourts.gov/notices/2020/n200323a.pdf ) (releasing large class of defendants serving time in county jail “in light of the Public Health Emergency” caused by COVID-19).
92. The unprecedented coronavirus pandemic unquestionably calls for individuals’ release, as multiple health experts have opined that no other measures would be sufficient or appropriate, especially for individuals with special vulnerability to severe illness or death from COVID-19.
VI. CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF: VIOLATION OF FIFTH AMENDMENT RIGHT TO SUBSTANTIVE DUE PROCESS (UNLAWFUL PUNISHMENT) 93. Petitioners incorporate by reference the allegations of the preceding paragraphs. 94. The Fifth Amendment to the U.S. Constitution guarantees those in civil detention, including immigration detention, the right to be free from punitive conditions of confinement. The
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government violates this guarantee when conditions of confinement lack a reasonable relationship to any legitimate governmental purpose, i.e. when a custodian’s actions are excessive in relation to their purpose.
95. Respondents have subjected Petitioners to conditions of confinement that increase their risk of contracting COVID-19, for which there is no known vaccine, treatment, or cure. Petitioners’ underlying conditions—of which Respondents are or should be aware—render them especially vulnerable to severe illness or death if they contract COVID-19. Respondents are therefore subjecting Petitioners to an unreasonable risk of serious harm and punitive conditions, in violation of their rights under the Due Process Clause.
96. Respondents’ continued detention of Petitioners fails to adequately protect Petitioners from the risks of contracting COVID-19.
97. Petitioners’ ongoing confinement lacks a reasonable relationship to any legitimate governmental purpose and is excessive in relation to their purpose.
98. Respondents’ continued detention of Petitioners is punitive and therefore violates the Due Process Clause.
SECOND CLAIM FOR RELIEF: VIOLATION OF FIFTH AMENDMENT RIGHT TO SUBSTANTIVE DUE PROCESS (DELIBERATE INDIFFERENCE)
99. The Fifth Amendment to the U.S. Constitution guarantees civil detainees, including immigration detainees, the right to be free from punitive conditions of confinement. The government violates this guarantee when it acts with deliberate indifference when failing to safeguard the health and safety of those in its custody.
100. The government acts with deliberate indifference when it exposes those who are detained to a substantial risk of serious harm, and when it knows of and disregards that substantial
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risk to the health or safety of a detained person. 101. Defendants have subjected Petitioners to conditions of confinement that increase
their risk of contracting COVID-19, for which there is no known vaccine, treatment, or cure. Petitioners’ underlying conditions render them especially vulnerable to severe illness or death if they were to contract COVID-19. Defendants are therefore subjecting Petitioners to a substantial risk of serious harm.
102. Respondents have known of or disregarded the substantial risk of harm to Petitioners’ health and safety.
103. Respondents have acted with deliberate indifference to Petitioners’ health and safety.
104. Respondents’ continued detention of Petitioners violates the Due Process Clause. VII. PRAYER FOR RELIEF
WHEREFORE, Petitioners request that this Court: a. Issue a writ of habeas corpus and order Petitioners’ 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; b. In the alternative, issue injunctive relief ordering Respondents to immediately release Petitioners 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; c. Declare that Respondents’ continued civil detention of individuals at increased
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risk for severe illness, including all people over the age of 50 and persons of any age with
underlying medical conditions that increase the risk of serious illness or death upon contracting
COVID-19 violates the Due Process Clause;
d. Award Petitioners all costs incurred in maintaining this action, including
reasonable attorneys’ fees under the Equal Access to Justice Act, as amended, 5 U.S.C. § 504
and 28 U.S.C. § 2412, and on any other basis justified by law; and
e. Grant Petitioners any other and further relief this Court deems just and proper.
Respectfully submitted,
/s/ Timothy R. Macdonald Timothy R. Macdonald Adrienne D. Boyd Kathleen K. Custer Sarah Grey ARNOLD & PORTER KAYE SCHOLER LLP 1144 Fifteenth Street Suite 3100 Denver, CO 80202-2569 Phone: (303) 863-1000 Timothy.Macdonald@arnoldporter.com Sarah.Grey@arnoldporter.com Kathleen.Custer@arnoldporter.com Adrienne.Boyd@arnoldporter.com
And
Sirine Shebaya Khaled Alrabe* (admission pending) Amber Qureshi NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Ave NW Suite 200 Washington, DC 20007 Telephone: (617) 227-9727 sirine@nipnlg.org khaled@nipnlg.org
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amber@nipnlg.org And Laura Lunn ROCKY MOUNTAIN IMMIGRANT ADVOCACY NETWORK 7301 Federal Blvd. Suite 300 Westminster, CO 80030 Telephone: (303) 433-2812 llunn@rmian.org
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CERTIFICATE OF SERVICE
I, Timothy R. Macdonald, hereby certify that on April 14, 2020, I filed the foregoing with the Clerk of the Court using the CM/ECF system, and I hereby certify that I have mailed a hard copy of the documents to the individuals identified below pursuant to Fed.R.Civ.P. 4 via certified mail on April 14, 2020.
Jason Dunn United States Attorney U.S. Attorney’s Office District of Colorado 1801 California Street, Ste. 1600 Denver, CO 80202
William Barr Attorney General of the United States U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, D.C. 20530
And to: John Fabbricatore; Matthew Albence, and DHS/ICE, c/o:
Office of the General Counsel U.S. Department of Homeland Security 2707 Martin Luther King Jr. Ave, SE Washington, D.C. 20528-0485
And to:
Johnny Choate GEO Group, Inc. Aurora ICE Processing Center 3130 N. Oakland Street Aurora, CO 80010
/s/ Timothy R. Macdonald Timothy R. Macdonald ARNOLD & PORTER KAYE SCHOLER LLP
Pro Bono Counsel for Petitioners
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 Unstamped Version - Please check back for datestamped filing
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 1:20­cv­01050 JENNIFER (GARY) LEAFORD CODNER,
NDI WILFRED TEMAH,
MADELINE (FLAVIO) TATIS BELLIARD, SANELA HAMZIC,
RAFAEL SORIA MORA a/k/a BENIGNO VELASQUEZ ARENAS,
NAOMI (LESTHER RAFAEL) HERNANDEZ MORALES,
HEIDI NICOLE (NILSON SALMON) HIDALGO MENDOZA,
VIOLET (ADAN) PAZ ALVAREZ,
ALEXA (ALEXANDER) MARROQUIN GONZALEZ,
ALISON (MELVIN) MENDOZA MENDOZA,
IVIIAN (JOSE ANGEL) MONTES HERNANDEZ,
MONSERRAT (RONY MOISES) RAMOS SIERRA,
ALEXANDRA (BENJAMIN ELISEO) OSORIO LINARES,
and
BRITANY (JOSE ANTONIO) RIVIERA CALERO,
Plaintiffs-Petitioners,

v.
JOHNNY CHOATE, IN HIS OFFICIAL CAPACITY AS WARDEN OF THE AURORA CONTRACT DETENTION FACILITY OWNED AND OPERATED BY GEO GROUP INC.
JOHN FABBRICATORE, IN HIS OFFICIAL CAPACITY AS DENVER ICE ERO ACTING FIELD OFFICE DIRECTOR,
MATTHEW T. ALBENCE, IN HIS OFFICIAL CAPACITY AS DEPUTY DIRECTOR AND SENIOR OFFICIAL PERFORMING THE DUTIES OF THE DIRECTOR OF THE U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, and
IMMIGRATION AND CUSTOMS ENFORCEMENT,
Respondents-Defendants.
PETITIONERS’ MOTION FOR TEMPORARY RESTRAINING ORDER

Plaintiff-Petitioners Jennifer (Gary) Leaford Codner, Ndi Wilfred Temah, Madeline (Flavio) Tatis Belliard, Sanela Hamzic, Rafael Soria Mora a.k.a. Benigno Velasquez Arenas, Alison (Melvin) Mendoza Mendoza, Naomi (Lesther Rafael) Hernandez Morales, Heidi Nicole (Nilson Salmon) Hidalgo Mendoza, Violet (Adan) Paz Alvarez, Britany (Jose Antonio) Riviera Calero, Alexa (Alexander) Marroquin Gonzalez, Iviian (Jose Angel) Montes Hernandez, Monserrat (Rony Moises) Ramos Sierra, and Alexandra (Benjamin Eliseo) Osorio Linares (collectively, “Petitioners”) move for a temporary restraining order and preliminary injunctive relief pursuant to Federal Rule of Civil Procedure 65 against Johnny Choate, in his official capacity as Warden of the Aurora Contract Detention Facility (the “Aurora facility”); John Fabbricatore, in his official capacity as Denver ICE ERO Acting Field Office Director; Matthew T. Albence, in his official capacity as Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement; and U.S. Immigrations and Customs Enforcement (“ICE”) (collectively, “Defendants”).
INTRODUCTION Petitioners seek a temporary restraining order directing their immediate release from custody. If not released, Petitioners face a serious and heightened risk of illness or death from COVID-19 because of their pre-existing medical conditions. Petitioners are among the most vulnerable populations at the Aurora facility, and Defendants cannot adequately protect them in the detention center. The only means to protect these at-risk individuals is to release them from custody immediately. Detention centers like the Aurora facility are tinderboxes for highly transmissible infectious diseases such as COVID-19. Indeed, the risk of a widespread outbreak of COVID-19 at
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the Aurora facility is not theoretical—it is undisputed that the facility has already had confirmed cases of COVID-19. Five employees who work at the facility have tested positive for the virus, at least one of whom had direct contact with detained persons.1 Given the high population density at the Aurora facility, the ease of transmission of this viral pathogen and the fact that the facility is not taking sufficient measures to prevent the spread, it is a matter not of if, but of when COVID19 will spread throughout the detained population, if it hasn’t already.
The Aurora facility lacks the proper resources to provide adequate medical care to the detained population if there is an outbreak. Petitioners in this case, whose individual medical histories and circumstances put them at higher risk of severe complications or death from COVID19, cannot wait for the inevitable outbreak to occur. The danger posed by Petitioners’ continued detention is “so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk” and violates their constitutional right to safety in government custody. Helling v. McKinney, 509 U.S. 25, 36 (1993).
Without this Court’s intervention, Petitioners will continue to face the imminent risk of severe illness or death. The Department of Homeland Security (“DHS”)’s own medical experts have recognized the danger of COVID-19 outbreaks at ICE detention facilities and advised that ICE needs
1 Conor McCormick-Cavanaugh, Three More Employees at Aurora ICE Facility Test Positive for COVID-19, Westword (Apr. 8, 2020), https://www.westword.com/news/three-geo-groupstaffers-at-ice-facility-in-aurora-test-positive-for-covid-19-11683722. In addition, there have been multiple quarantines due to COVID-19 exposure. Sam Tabachnik, Ten Detainees at Aurora’s ICE Detention Facility Isolated for Possible Exposure to Coronavirus, Denver Post (Mar. 17, 2020), https://www.denverpost.com/2020/03/17/coronavirus-ice-detention-geo-groupaurora-colorado/.
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to release medically vulnerable individuals in order to avoid a public health disaster.2 Reaching the same conclusion, many courts have already ordered the release of at-risk detained individuals to protect them from grave harm posed by the virus. See, e.g., Hope v. Doll, No. 1:20-cv-00562-JEJ, ECF No. 11 (M.D. Pa. Apr. 7, 2020) (granting TRO releasing high-risk individuals in immigration detention due to the dangers of COVID-19); Thakker v. Doll, No. 1:20-cv-00480-JEJ, ECF No. 47 (M.D. Pa. Mar. 31, 2020) (same); Coronel v. Decker, No. 20-cv-2472-AJN, ECF No. 26 (S.D.N.Y. Mar. 27, 2020) (same); Bravo Castillo v. Barr, No. 5:20-cv-00605-TJH-AFM, ECF No. 32, slip op. at 11 (C.D. Cal. Mar. 27, 2020) (ordering release of petitioners upon concluding “[t]his is an unprecedented time in our nation’s history . . . [b]ut in the time of a crisis, our response to those at particularly high risk must be with compassion and not apathy. The Government cannot act with a callous disregard for the safety of our fellow human beings”); Basank v. Decker, No. 1:20-cv-02518AT, ECF No. 11, slip op. at 10 (S.D.N.Y. Mar. 26, 2020) (granting TRO based on concluding “[t]he risk that Petitioners will face a severe, and quite possibly fatal, infection if they remain in immigration detention constitutes irreparable harm”); see also Xochihua-Jaimes v. Barr, No. 18-71460, ECF No. 53 (9th Cir. Mar. 23, 2020) (“In light of the rapidly escalating public health crisis, which public health authorities predict will especially impact immigration detention centers, the court sua sponte orders that Petitioner be immediately released from detention . . . .”) (collectively, Ex. S).
The standards for Rule 65 injunctive relief are met here. Petitioners will suffer irreparable harm unless an injunction is issued; Petitioners have a substantial likelihood of prevailing on the
2 Catherine 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-detentioncoronavirus/index.html.
3

merits; the balance of harms strongly favors Petitioners; and an injunction serves the public interest. Accordingly, Petitioners seek a temporary restraining order directing their immediate release from custody.
FACTUAL BACKGROUND I. COVID-19 Poses A Rapidly Spreading Public Health Crisis With Grave Risk
Of Serious Illness, Injury Or Death The coronavirus that causes COVID-19 has led to a global pandemic that continues to spread at a swift rate worldwide and across Colorado. On March 11, 2020, the World Health Organization (“WHO”) labeled the outbreak a global “pandemic,” when the organization had identified 118,000 cases in 114 countries.3 The WHO reports (as of April 12, 2020) that there are just under 1,700,000 reported COVID-19 cases throughout the world and more than 105,000 deaths.4 The United States is one of the worst-hit countries, with 577,842 reported cases and 23,232 deaths as of April 13, 2020.5 These numbers mark the highest incidence in any country of COVID-19 cases and virus-related deaths, and they continue to rise. Confirmed cases in the state of Colorado are also rising at an exponential rate. On April 12, 2020, the state reported 7,691 total cases—an increase of 376 cases
3 Tedros A. Ghebreyesus, Dir.-Gen., WHO Director-General’s Opening Remarks at the Media Briefing on COVID-19, World Health Org. (Mar. 11, 2020), https://www.who.int/dg/speeches/ detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19---11-march2020. 4 Coronavirus Disease 2019 (COVID-19) Situation Report – 83, World Health Org. (last visited Apri. 12, 2020), https://www.who.int/docs/default-source/coronaviruse/situationreports/20200412-sitrep-83-covid-19.pdf?sfvrsn=697ce98d_4. 5 COVID-19 Map, Johns Hopkins U. Coronavirus Resource Center (Apr. 13, 2020, 4:34 PM), https://coronavirus.jhu.edu/map.html.
4

since the prior day.6 Dr. Deborah Birx, the White House’s coronavirus response coordinator, has said that Colorado is a “new hot spot” for the virus.7 Dr. Anthony Fauci, the government’s top infectiousdisease doctor, agrees, and has said that he is particularly worried about Colorado, advising that “[n]ow is not the time to pull back . . . [i]t’s the time to intensify” mitigation efforts.8
COVID-19 is a highly contagious disease that is easily transmitted through respiratory droplets, close personal contact and contact with contaminated surfaces and objects. Decl. of Dr. Carlos Franco-Paredes, MD, MPH (“Dr. Franco-Paredes”), Ex. A, ¶ 15. It can severely damage lung tissue, affect cardiac functions, and cause neurological damage, loss of respiratory capacity, and multiorgan dysfunction. Id. ¶ 10. A patient’s condition can seriously deteriorate within days, and COVID-19 may result in long-term injury or death. Id. ¶¶ 10–12. Those who develop serious complications will need advanced support, highly specialized equipment that is in limited supply and an entire team of care providers, including 1:1 or 1:2 nurse to patient ratios, respiratory therapists and intensive care physicians. Id. ¶ 14. This level of support is especially difficult to provide to detained individuals. See id. ¶ 30-31. There is no vaccine against COVID-19, nor any known medication to prevent or treat infection from the virus. Id. ¶ 16. Moreover, it is not known whether people previously infected with COVID-19 can become re-infected. Id.
6 Case Data, Colo. Dep’t of Pub. Health & Env’t (Apr. 13, 2020, 4:37 PM), https://covid19.colorado.gov/case-data. 7 Kat Lonsdorf, Confirmed Cases in the U.S. Top 300,000 As New Hot Spots Emerge, NPR (Apr. 5, 2020), https://www.npr.org/sections/coronavirus-live-updates/2020/04/05/827605603 /confirmed-cases-in-the-u-s-top-300-000-as-new-hot-spots-emerge. 8 Lateshia Beachum et al., U.S. Authorities Believe Rising Coronavirus Death Toll Is Indicator of Past Failures, But Hope Americans Have Learned, Wash. Post (Apr. 8, 2020), https://www .washingtonpost.com/national/coronavirus-us-death-toll-rises/2020/04/08/3c1a9e3a-795c-11eaa130-df573469f094_story.html.
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Jail settings—like the Aurora facility—are hotbeds for outbreaks of COVID-19. Current
outbreaks in jails and prisons around the country provide alarming evidence. Cook County Jail is
reportedly the nation’s largest known source of connected coronavirus infections, with close to 500
confirmed cases.9 At Rikers Island in New York City, the rate of COVID-19 transmission is estimated
to be the highest in the world, at over seven times the rate of infection in New York City generally
and nearly 56 times greater than the rate of spread in the general U.S. population.10 And at the Oakdale
Federal Correctional Center in Louisiana—where four staff members have tested positive and six
incarcerated individuals have died of COVID-19—officials have simply given up on testing
individuals who show symptoms of the virus. The incarcerated population is simply presumed to be
COVID-19 positive due to “sustained transmission.”11 Immigration detention facilities have faced
similar outbreaks of other infectious diseases in recent years. As recently as last year, for example,
9 Timothy Williams & Danielle Ivory, Chicago’s Jail Is Top U.S. Hot Spot As Virus Spreads Behind Bars, N.Y. Times (Apr. 8, 2020), https://www.nytimes.com/2020/04/08/us/coronaviruscook-county-jail-chicago.html;Coronavirus in the U.S.: Latest Map and Case Count, N.Y. Times, available at https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html (last visited Apr. 13, 2020) (reporting that, as of April 13, 2020, at 12:51 AM, 492 confirmed cases were connected to Cook County Jail). 10 These numbers likely underestimate the infection rate on Rikers Island, as they do not include the number of people who contracted COVID-19 on Rikers Island but who have already been released. The rates of infection rely on publicly released data collected by the Legal Aid Society. Analysis of COVID-19 Infection Rate in NYC Jails, Legal Aid Soc’y (Apr. 7, 2020), https:// legalaidnyc.org/wp-content/uploads/2020/04/4_7_Analysis-of-COVID-19-Infection-Rate-inNYC-Jails.pdf. 11 Kimberly Kindy, Inside the Deadliest Federal Prison, the Seeping Coronavirus Creates Fear and Danger, Wash. Post (Apr. 10, 2020), https://www.washingtonpost.com/national/inside-thedeadliest-federal-prison-the-seeping-coronavirus-creates-fear-and-danger/2020/04/09/deeceb6e75b4-11ea-a9bd-9f8b593300d0_story.html; Greg LaRose, Oakdale Federal Prison Stops Testing Inmates with COVID-19 Symptoms, WDSU News (Mar. 31, 2020), https://www.wdsu.com/article/oakdale-federal-prison-stops-testing-inmates-with-covid-19symptoms/31989498.
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ICE failed to take adequate measures to protect detained immigrants against outbreaks of chicken pox and mumps.12
It is simply not possible for jails or detention centers to fully implement critical COVID19 preventive measures set forth by the Centers for Disease Control and Prevention (“CDC”): social distancing (maintaining a distance of at least six feet between oneself and others), preventive hygiene and the medical isolation of confirmed or suspected COVID-19 cases. Decl. of Dr. FrancoParedes, Ex. A, ¶¶ 18–20.13 At the Aurora facility, like at Cook County Jail, Rikers Island and the Oakdale federal prison, people eat, sleep and engage in activities in close proximity to each other, and basic supplies, such as soap and hand sanitizer, are often in short supply or unavailable. See, e.g., Decl. of C. Cowgill, Ex. B, ¶¶ 17, 20; Decl. of L. Jordan, Ex. C, ¶¶ 15, 17, 18; Decl. of J. Codner, Ex. D, ¶ 7; Decl. of N. Temah, Ex. E, ¶¶ 8–9; Decl. of S. Hamzic, Ex. G, ¶¶ 7–8; Decl. of R. Mora, Ex. H, ¶¶ 5, 9–10, 12. Moreover, COVID-19 is able to survive for extended periods of time on materials that are highly prevalent in secure settings, such as metals and other non-porous surfaces. Decl. of Dr. Franco-Paredes, Ex. A, ¶ 28. Sufficiently frequent disinfection and decontamination of all surfaces in the facility is exceedingly difficult given the large number of incarcerated individuals, frequent interactions between incarcerated individuals and staff and regularity with which staff move in and out of various parts of the Aurora facility. Id.
12 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/migrantdetention-centers-are-getting-slammed-with-mumps-and-chicken-pox. 13 See also Coronavirus (COVID-19), Centers for Disease Control & Prevention, https://www .cdc.gov/coronavirus/2019-ncov/index.html (“CDC Guidance”) (discussing social distancing, preventive hygiene and the medical isolation of confirmed or suspected COVID-19 cases as critical prevention methods).
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Outbreaks inside detention facilities pose serious risks to the general public as well. “As
local hospital systems become overwhelmed by the patient flow from detention center outbreaks, precious health resources will be less available for people in the community.”14 For this reason,
healthcare professionals—including two of DHS’s own medical experts—have urgently called for the release of detained immigrants, particularly elderly or medically vulnerable ones.15
II. Petitioners Face Particularly High Threats From COVID-19 Because Of Underlying Health Conditions. Due to their underlying medical conditions and compromised health, Petitioners are at
heightened risk of serious complications if they contract COVID-19. Decl. of Dr. Franco-Paredes,
Ex. A, ¶¶ 13, 39–45. The CDC has identified that people, like Petitioners, with serious medical conditions seem to “be at higher risk for severe illness from COVID-19.”16 And according to the
WHO, “persons with pre-existing medical conditions [like Petitioners] . . . appear to develop serious illness more often than others.”17 Individuals at higher risk for severe illness include those with lung
disease, asthma, serious heart conditions, hypertension, diabetes, obesity and compromised immune systems (such as from HIV or cancer). Decl. of Dr. Franco-Paredes, Ex. A, ¶ 13.18
14 Letter from Dr. Scott Allen & Dr. Josiah Rich to House Comm. on Homeland Sec. at 4 (Mar. 19, 2020), available at https://assets.documentcloud.org/documents/6816336/032020-LetterFrom-Drs-Allen-Rich-to-Congress-Re.pdf (“DHS Expert Letter”); see also Shoichet, supra n.2 (quoting letter). 15 DHS Expert Letter, supra n.14, at 5. 16 See People Who Are at Higher Risk for Severe Illness, Centers for Disease Control & Prevention, last updated Apr. 2, 2020, https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/people-at-higher-risk.html (“CDC Risk Factors”). 17 Q&A on Coronaviruses (COVID-19), World Health Org., Apr. 8, 2020, https://www.who.int /news-room/q-a-detail/q-a-coronaviruses. 18 See also CDC Risk Factors.
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People with diabetes, like Ms. Hamzic and Ms. Mendoza Mendoza, for example, are more
likely to suffer from severe and possibly fatal complications if they contract COVID-19.19 In Italy,
where over 20,000 people have died from the disease,20 diabetes has been determined to be the
“second most common condition among COVID-19 patients who died: 35.5% had the illness.”21
Meanwhile, approximately 76 percent of patients in Italy who died from COVID-19 had
hypertension, like Ms. Hamzic, Mr. Temah, Mr. Soria Mora and Ms. Codner.22 Likewise, “[p]atients
with existing illnesses that cause breathlessness, wheezing or lung problems”—like Ms. Hamzic (who
has only one lung), Ms. Codner, Ms. Belliard and Mr. Soria Mora—“run a higher risk of developing
severe cases of COVID-19 infection.”23 “Patients with shortness of breath [are] 3.7 times more likely
to have severe COVID-19 disease and 6.6 times more likely to need intensive care than those
19 See CDC Risk Factors; see also Fei Zhou et al., Clinical Course and Risk Factors for Mortality of Adult Inpatients with COVID-19 in Wuhan, China: A Retrospective Cohort Study, 395 Lancet 1054 (2020), available at https://www.thelancet.com/journals/lancet/article/PIIS0140 -6736(20)30566-3/fulltext (finding that people with diabetes had much higher rates of serious complications and death than people without diabetes). 20 COVID-19 Map, Johns Hopkins U. Coronavirus Resource Center (Apr. 13, 2020, 10:50 PM), https://coronavirus.jhu.edu/map.html. 21 Anna M. Miller et al., 10 Common Health Conditions that Increase Risk of Death from the Coronavirus, including Diabetes and Heart Disease, Bus. (Mar. 23, 2020), https://www .businessinsider.com/hypertension-diabetes-conditions-that-make-coronavirus-more-deadly2020-3. 22 Id. 23 Kate Kelland, Patients with Breathing, Lung Problems at Highest Risk with COVID-19 Study, Reuters (Mar. 18, 2020), https://www.reuters.com/article/us-health-coronavirus-breathing /patients-with-breathing-lung-problems-at-highest-risk-with-covid-19-study-idUSKBN2153ED (citing Vageesh Jain & Jin-Min Yuan, Systematic Review and Meta-Analysis of Predictive Symptoms and Comorbidities for Severe COVID-19 Infection, medRxiv (Mar. 16, 2020), https:// www.medrxiv.org/content/10.1101/2020.03.15.20035360v1).
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without.”24 Dr. Franco-Paredes confirms that people living with HIV—like nine of the Petitioners—
suffer from compromised immune systems and are therefore at a high risk of adverse clinical
outcomes if infected with COVID-19. Decl. of Dr. Franco-Paredes, Ex. A, ¶¶ 13, 40–41.
Moreover, risks to certain Petitioners—like Ms. Hamzic, Ms. Paz Alvarez and Ms. Codner—
are further exacerbated by their age. A recent study from the Chinese Center for Disease Control and
Prevention showed that the virus more seriously affected older people with preexisting health
problems—patients in their 50s had a death rate that was three times higher than the death rate for
patients in their 40s.25
Each of the Petitioners in this case suffers from an underlying condition that puts them at
increased risk of serious illness or death, should they contract COVID-19.
• Jennifer (Gary) Leaford Codner is a 54-year-old transgender woman from Jamaica. Ms. Codner suffers from hypertension and allergies. Since being detained at the Aurora facility, she has suffered from boils on her skin. Decl. of J. Codner, Ex. D, ¶ 2-3.
• Ndi Temah is a 24-year-old man from Cameroon. Mr. Temah suffers from several serious medical conditions, including hypertension, Mobitz Type 1 (also known as Second Degree Atrioventricular Block, or Wenckebach, a disease of the electrical conduction system of the heart), post-traumatic stress disorder, depression and a severe anxiety disorder. Decl. of N. Temah, Ex. E, ¶¶ 1–2.
• Madeline (Flavio) Tatis Belliard is a 40-year-old transgender woman from the Dominican Republic. Ms. Belliard has been diagnosed with multiple physical and mental health disorders, including HIV, asthma, schizoaffective disorder (depressive type), gender identity disorder and dysthymic disorder. Decl. of M. Belliard, Ex. F, ¶¶ 1, 3.
24 Id. 25 See Aria Bendix, Coronavirus Patients over Age 80 Have a Death Rate of 15%. Here’s the Death Rate for Every Age Bracket, Bus. Insider (Feb. 27, 2020), https://www.businessinsider .com/coronavirus-death-age-older-people-higher-risk-2020-2.
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• Sanela Hamzic is a 52-year-old woman from Bosnia. Ms. Hamzic has several diagnosed chronic conditions, including diabetes, asthma, high blood pressure, attention deficit disorder, depression and post-traumatic-stress disorder. Ms. Hamzic was also previously diagnosed with cancer in her lungs and ovaries, resulting in the removal of one of her lungs and a hysterectomy. She also recently received a mammogram, which detected lumps in her breast. Following the mammogram, a biopsy was performed, and it was recommended that Ms. Hamzic undergo surgery. Ms. Hamzic decided against the treatment because she was scared to undergo another surgery in detention. Decl. of S. Hamzic, Ex. G, ¶¶ 1, 3.
• Rafael Soria Mora a.k.a. Benigno Velasquez Arenas is a 46-year-old man from Mexico. Mr. Soria Mora has chronic asthma, for which he takes prescribed medication. He also suffers from hypertension and sleep apnea. The Aurora facility has recently been out of his prescribed medication, and the replacement medication the facility provides to him does not manage his symptoms as well as his prior medication. Decl. of R. Mora, Ex. H, ¶¶ 1, 5.
• Alison (Melvin) Mendoza Mendoza is a 35-year-old transgender woman from El Salvador. Ms. Mendoza Mendoza has diabetes, high triglycerides and high cholesterol. Decl. of A. Mendoza, Ex. I, ¶¶ 1, 5.
• Naomi (Lesther Rafael) Hernandez Morales is a 36-year-old transgender woman from El Salvador. Ms. Hernandez Morales is HIV-positive. Decl. of N. Morales, Ex. J, ¶¶ 1, 4.
• Heidi Nicole (Nilson Salmon) Hidalgo Mendoza is a 22-year-old transgender woman from El Salvador. Ms. Hidalgo Mendoza tested positive for HIV on April 2, 2020. She has received antiretrovirals on a daily basis since diagnosis but not at consistent times. Decl. of H. Mendoza, Ex. K, ¶¶ 1, 3, 5.
• Violet (Adan) Paz Alvarez is a 50-year-old transgender woman from Honduras. Ms. Paz Alvarez is HIV-positive and has been diagnosed with high triglyceride levels. Upon her arrival at the Aurora facility, she did not receive antiretroviral treatment for approximately a week. She is now receiving daily treatment but not at consistent times. Decl. of V. Alvarez, Ex. L, ¶¶ 1, 3.
• Britany (Jose Antonio) Riviera Calero is a 22-year-old transgender woman from Honduras. Ms. Riviera Calero is HIV-positive. Decl. of B. Calero, Ex. M, ¶¶ 1, 3.
• Alexa (Alexander) Marroquin Gonzalez is a 30-year-old transgender woman from El Salvador. Ms. Marroquin Gonzalez is HIV-positive. She receives antiretrovirals on a daily basis at the Aurora facility but not at consistent times. Decl. of A. Gonzalez, Ex. N, ¶¶ 1, 5.
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• Iviian (Jose Angel) Montes Hernandez is a 27-year-old transgender woman from El Salvador. Ms. Montes Hernandez is HIV-positive. She receives antiretrovirals on a daily basis at the Aurora facility but not at consistent times. Decl. of I. Hernandez, Ex. O, ¶¶ 1, 4.
• Monserrat (Rony Moises) Ramos Sierra is a 31-year-old transgender woman from Honduras. Ms. Ramos Sierra is HIV-positive. Decl. of M. Sierra, Ex. P, ¶¶ 1, 3.
• Alexandra (Benjamin Eliseo) Osorio Linares is a 29-year-old transgender woman from El Salvador. Ms. Osorio Linares is HIV-positive. Decl. of A. Linares, Ex. Q, ¶¶ 1, 4.
III. The Aurora Facility Cannot Ensure Petitioners’ Safety. The Aurora facility does not adequately provide the mitigation measures that public health
experts and the CDC recommend, which makes the rapid spread of COVID-19 at the Aurora facility
very likely. Decl. of Dr. Franco-Paredes, Ex. A, ¶¶ 18–20, 47, 51. For example, several Petitioners
describe conditions in the Aurora facility that render it impossible to practice social distancing.
Detained persons sleep near one another and use common spaces together, such as tables and bathrooms. Decl. of C. Cowgill, Ex. B, ¶ 17; Decl. of L. Jordan, Ex. C, ¶¶ 15, 17.26 Many detained
individuals report that they are being instructed to maintain three feet of distance from other people
because there is not enough room to maintain six feet of distance. Decl. of C. Cowgill, Ex. B, ¶ 20.
To make matters worse, the Aurora facility has not strengthened its cleanliness procedures in
response to the COVID-19 pandemic. Bathrooms are used by large numbers of people and are not
sanitized or disinfected after each use. Decl. of A. Mendoza, Ex. I, ¶ 10. Detained individuals report
that there is not enough soap and sanitizer and that they are not being provided full personal protective
26 See also Decl. of J. Codner, Ex. D, ¶ 7; Decl. of N. Temah, Ex. E, ¶¶ 8–9; Decl. of S. Hamzic, Ex. G, ¶¶ 7–8; Decl. of R. Mora, Ex. H, ¶¶ 9–10; Decl. of N. Morales, Ex. J, ¶¶ 11–12; Decl. of H. Mendoza, Ex. K, ¶ 13; Decl. of V. Alvarez, Ex. L, ¶ 7; Decl. of B. Calero, Ex. M, ¶ 12; Decl. of A. Gonzalez, Ex. N, ¶¶ 7, 8; Decl. of I. Hernandez, Ex. O, ¶¶ 9, 11; Decl. of M. Sierra, Ex. P, ¶¶ 6, 8; Decl. of A. Linares, Ex. Q, ¶ 11.
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equipment, such as masks and gloves. E.g., Decl. of C. Cowgill, Ex. B, ¶ 19; Decl. of L. Jordan, Ex. C, ¶¶ 12, 14, 15, 18; Decl. of J. Codner, Ex. D, ¶ 5; Decl. of N. Temah, Ex. E, ¶¶ 8–9; Decl. of A. Mendoza, Ex. I, ¶ 9.27 Moreover, only some staff wear masks and gloves, and others, including staff who have direct contact with the detained population, do not wear any protective equipment. E.g., Decl. of V. Alvarez, Ex. L, ¶ 8; Decl. of B. Calero, Ex. M, ¶¶ 10, 14; Decl. of A. Gonzalez, Ex. N, ¶ 9; Decl. of I. Hernandez, Ex. O, ¶ 11; Decl. of M. Sierra, Ex. P, ¶¶ 5, 8; Decl. of A. Linares, Ex. Q, ¶ 13.28 Petitioners also describe instances where individuals who are ill—including those presenting symptoms consistent with COVID-19—are not tested or given adequate medical care. Decl. of C. Cowgill, Ex. B, ¶¶ 13, 18. In fact, only two detained individuals at the Aurora facility have been tested for COVID-19.29
The lack of broader testing is particularly alarming here. There is no dispute that the Aurora facility has already been exposed to COVID-19. Five employees who work at the facility have tested positive for COVID-19,30 and at least one of these employees had direct contact with detained individuals. Decl. of Dr. Franco-Paredes, Ex. A, ¶ 24. ICE’s official guidance on COVID-19 does not state under what conditions detained individuals will be tested. Instead, the only measure ICE
27 See also Decl. of N. Morales, Ex. J, ¶¶ 8, 12–13; Decl. of H. Mendoza, Ex. K, ¶ 14; Decl. of V. Alvarez, Ex. L, ¶¶ 6, 8; Decl. of B. Calero, Ex. M, ¶ 13; Decl. of A. Gonzalez, Ex. N, ¶ 9; Decl. of M. Sierra, Ex. P, ¶ 7; Decl. of A. Linares, Ex. Q, ¶¶ 6, 10. 28 See also Decl. of C. Cowgill, Ex. B, ¶¶ 21, 23; Decl. of L. Jordan, Ex. C, ¶¶ 12, 14, 15, 18; Decl. of J. Codner, Ex. D, ¶ 5; Decl. of A. Mendoza, Ex. I, ¶ 8; Decl. of N. Morales, Ex. J, ¶ 13; Decl. of H. Mendoza, Ex. K, ¶ 14. 29 See ICE Aurora Contract Detention Center Accountability Report Electronic Request (Apr. 6, 2020), available at https://crow.house.gov/about/ice-accountability-report. Both detained individuals tested negative. 30 McCormick-Cavanaugh, supra n.1.
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has committed to taking is to isolate detained persons with fever and/or respiratory symptoms who meet CDC criteria for epidemiologic risk of exposure to the coronavirus.31 But some COVID-19
carriers can be asymptomatic. Decl. of Dr. Franco-Paredes, Ex. A, ¶¶ 8, 22. Without aggressive
testing, the spread of infection cannot be prevented. Id. ¶¶ 23, 37, 50. The Aurora facility, however,
is unable and/or unwilling to conduct the widespread screening of detained individuals, staff and others who enter the facility. Id. ¶¶ 37, 50.32
The Aurora facility is also continuing to allow transfers of new detained individuals who have
been living outside the community in areas where COVID-19 is rampant—without any testing for
COVID-19. Decl. of C. Cowgill, Ex. B, ¶ 23; Decl. of E. Jordan, Ex. C, ¶¶ 11–12. Public reports confirm at least 276 individuals have been transferred to the facility since March 20, 2020.33 Given
the daily entry of staff and guards from the community, and the continued influx and transfer of new
people into the detention facility, it is only a matter of time before the disease becomes widespread.
Decl. of Dr. Franco-Paredes, Ex. A, ¶¶ 22–25, 29.
Not only is the Aurora facility failing to take proper precautions to prevent the spread of
COVID-19, it is also ill equipped to manage an infectious disease outbreak and care for people in
31 ICE Guidance on COVID-19: Overview & FAQs, U.S. Immigr. & Customs Enforcement, https://www.ice.gov/coronavirus (last visited Apr. 13, 2020). 32 Governor Jared Polis has extended Colorado’s statewide stay-at-home order through April 26, 2020, in part because the state is without the testing supplies needed for mass testing and effective containment and the only option is to severely limit the number of person-to-person interactions. See Michael Sakas & Alex Scoville, Gov. Polis Extends Colorado Stay At Home Order Through April 26, Encourages Coloradans To Cheer Healthcare Workers, CPR News (Apr. 6, 2020), https://www.cpr.org/2020/04/06/watch-gov-jared-polis-colorado-coronavirusstatewide-address/. 33 ICE Aurora Contract Detention Center Accountability Report Electronic Requests (Mar. 25, Mar. 30, & Apr. 6, 2020), available at https://crow.house.gov/about/ice-accountability-report.
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custody. The facility has very limited higher-level medical care and on-site medical facilities. Decl. of E. Jordan, Ex. C, ¶¶ 6, 9. The facility has only one doctor on staff to serve the over 500 detained individuals currently residing there. Id. ¶ 6. As a result, individuals at the facility are most frequently treated by nurses, who have a history of providing insufficient medical care. Id. ¶ 7; see also Decl. of C. Cowgill, Ex. B, ¶ 16. Upon information and belief, there are no isolation cells or dedicated medical areas with proper infrastructure or equipment in at least some parts of the Aurora facility, such as the housing unit known as “Aurora South.” Decl. of E. Jordan, Ex. C, ¶ 9. The Aurora facility is thus unprepared to protect people in custody against a life-threatening illness. IV. Public Health Experts Have Concluded That People Vulnerable To COVID-
19 Should Be Released From ICE Detention. Because of the severity of the threat posed by COVID-19, and its potential to rapidly spread throughout a detention setting, public health experts have recommended the release of individuals from immigration detention. Dr. Franco-Paredes concludes that “releasing those in the high risk age groups and those with underlying medical conditions will lessen the impact of an outbreak of COVID-19,” primarily because those groups “carry the highest concentration of virus in their respiratory secretions and act as human incubators of the virus.” Decl. of Dr. Franco-Paredes, Ex. A, ¶ 52. Thus, releasing the most vulnerable people, such as Petitioners, is likely to reduce the burden on regional hospitals and health centers. Denver Health, a facility with a capacity of 555 beds, is currently the only hospital that accepts patients from Aurora facility. Id. ¶ 33. Dr. Franco-Paredes has concluded that a large outbreak at the Aurora facility “would put a tremendous strain on the medical system in Colorado at the detriment of all patients” because facilities like Denver Health would bear the brunt of having to
15

treat infected individuals from Aurora and would have fewer medical resources available for the general population. Id.
As stated above, DHS medical experts have also recommended the release of vulnerable people from ICE custody to protect the health of detained individuals and the greater public. In a whistleblower letter to Congress, Drs. Allen and 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 of not only those detained, but also detention staff and their families, and the community-at-large.”34 Government officials around the country have recognized the threat posed by COVID-19 to detained and incarcerated populations and have limited arrests or released individuals for that reason. For example, the Governor of Colorado has recognized that the detained population is at an increased risk during the pandemic. He accordingly issued guidance encouraging state law enforcement to issue citations and summons rather than arrests when possible to reduce the risk of outbreaks in the state jail population.35 Meanwhile, jail administrators in Jefferson County, Colorado;36
34 DHS Expert Letter, supra n.14, at 6. 35 John Herrick, Gov. Jared Polis Calls on Law Enforcement to Reduce Arrests During Pandemic, Colo. Indep. (Mar. 25, 2020), https://www.coloradoindependent.com/2020/03/25 /polis-arrests-jail-covid-19/. 36 Jenna Carroll, Inmates Being Released Early From JeffCo Detention Facility Amid Coronavirus Concerns, KDVR Colo. (Mar. 19, 2020), https://kdvr.com/news/coronavirus/inmates-being-released-early-from-jeffco-detention-facilityamid-coronavirus-concerns/.
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Cuyahoga County, Ohio;37 Los Angeles, California;38 and San Francisco, California,39 among others, have released inmates in an effort to curb the spread of COVID-19. Yet today, Respondents continue to hold over 500 individuals in detention at the Aurora facility, including at-risk Petitioners in this action, despite the ready availability of community-based alternatives. Without this Court’s intervention, the Petitioners continue to be at imminent risk of severe illness or death.
LEGAL STANDARD Under Rule 65 of the Federal Rules of Civil Procedure, a movant is entitled to a temporary restraining order by showing: (i) they will suffer irreparable harm unless the injunction is issued; (ii) they have a substantial likelihood of prevailing on the merits; (iii) the threatened injury outweighs any harm that the preliminary injunction may cause the opposing party; and (iv) the injunction will not adversely affect the public interest. Diné Citizens Against Ruining Our Env’t v. Jewell, 839 F.3d 1276, 1281 (10th Cir. 2016). Where an injunction alters the status quo—here, Petitioners’ release from detention—movants must “make a strong showing both with regard to the likelihood of success on the merits and with regard to the balance of harms.” Free the Nipple-Fort Collins v. City of Fort Collins, Colorado, 237 F. Supp. 3d 1126, 1130 (D. Colo. 2017), aff’d, 916 F.3d 792 (10th Cir. 2019)
37 Scott Noll & Camryn Justice, Cuyahoga County Jail Releases Hundreds of Low-Level Offenders to Prepare for Coronavirus Pandemic, News 5 Cleveland (Mar. 20, 2020), https://www.news5cleveland.com/news/local-news/oh-cuyahoga/cuyahoga-county-jail-releaseshundreds-of-low-level-offenders-to-prepare-for-coronavirus-pandemic. 38 Alene Tchekmedyian, More L.A. County Jail Inmates Released Over Fears of Coronavirus Outbreak, L.A. Times (Mar. 19, 2020), https://www.latimes.com/california/story/2020-03-19/lajails-coronavirus-sheriffs-department. 39 Megan Cassidy, Alameda County Releases 250 Jail Inmates Amid Coronavirus Concerns, SF to Release 26, S.F. Chron. (Mar. 20, 2020), https://www.sfchronicle.com/crime/article/AlamedaCounty-releases-250-jail-inmates-amid-15147332.php.
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(quotation omitted). The Court likewise has independent authority under habeas corpus, 28 U.S.C. § 2241, to order the immediate release of detained persons from unconstitutional confinement.
ARGUMENT I. Petitioners Will Suffer Irreparable Harm In The Absence Of A Temporary
Restraining Order. Petitioners will suffer irreparable harm if they are not immediately released. In the Tenth Circuit, a petitioner-plaintiff satisfies the irreparable harm requirement by “show[ing] that the injury complained of is of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm.” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003). “An injury must be certain, great, actual and not theoretical” in order to constitute irreparable harm. Id. “Irreparable harm, as the name suggests, is harm that cannot be undone, such as by an award of compensatory damages or otherwise.” Salt Lake Tribune Publ’g Co., LLC v. AT & T Corp., 320 F.3d 1081, 1105 (10th Cir. 2003). Without emergency relief from this Court, Petitioners face an imminent threat of substantial harm caused by COVID-19. Because of their medical conditions, Petitioners are at much higher risk of serious illness or death due to COVID-19 than the general population. Decl. of Dr. FrancoParedes, Ex. A, ¶¶ 39–45.40 Ms. Hamzic, for example, is over 50 and suffers from several diagnosed chronic conditions, including diabetes, asthma and high blood pressure, and she only has one lung. Decl. of S. Hamzic, Ex. G, ¶¶ 1,3. She faces imminent risk of serious illness or death, a harm no court can possibly undo. See, e.g., Harris v. Bd. of Supervisors, 366 F.3d 754, 766 (9th Cir. 2004) (holding that “pain, infection, amputation, medical complications, and death due to delayed
40 See also CDC Risk Factors.
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treatment” constitute irreparable harm); Williams v. Chrans, 50 F.3d 1363, 1364 (7th Cir. 1995) (per curiam) (“In this case, as in all death cases, there is no question of irreparable injury.”); Harrison ex rel. Harrison v. Phillips, 395 F. Supp. 3d 800, 814 (N.D. Tex. 2019) (“Harrison’s doctors unanimously state that Harrison is at risk of death . . . and it goes without saying that Harrison’s death would be irreparable.”).
Short of death, Petitioners are at risk of lifelong ailments should they contract COVID-19 and survive, including neurologic damage and the loss of respiratory capacity that may require extensive rehabilitation. Decl. of Dr. Franco-Paredes, Ex. A, ¶¶ 10, 12. The imminent threat of potentially lifelong medical complications also satisfies the irreparable harm requirement. See, e.g., Edmisten v. Werholtz, 287 F. App’x 728, 734 (10th Cir. 2008) (holding evidence demonstrated plaintiff’s health would deteriorate irreparably absent urgent medical intervention); Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 332 (2d Cir. 1995) (upholding finding of irreparable injury “premised . . . upon [the district court’s] finding that [petitioner] was subject to risk of injury, infection, and humiliation”); see also Unknown Parties v. Johnson, No. CV-15-00250-TUC-DBC, 2016 WL 8188563, at *15 (D. Ariz. Nov. 18, 2016), aff’d sub nom Doe v. Kelly, 878 F.3d 710 (9th Cir. 2017) (finding irreparable harm where evidence demonstrated “medical risks associated with . . . being exposed to communicable diseases”).
Petitioners further satisfy the requirement to demonstrate irreparable harm because Defendants have violated their constitutional rights. Free the Nipple, 237 F. Supp. 3d at 1134 (“[A]ny infringement of one’s constitutional rights inflicts an irreparable injury.”); Bravo Castillo v. Barr, No. 5:20-cv-00605-TJH-AFM, ECF No. 32, slip op. at 6 (C.D. Cal. Mar. 27, 2020) (concluding that “[a] civil detainee’s constitutional rights are violated if a condition of his confinement places him at
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substantial risk of suffering serious harm, such as the harm caused by a pandemic”). Defendants have deprived Petitioners of their right to due process by continuing to detain them, despite being ill equipped to adequately protect them from COVID-19. See infra Section II.
Petitioners’ continued detention at the Aurora facility threatens them with both serious, irreparable bodily injury and the ongoing violation of their constitutional rights. This grave harm can only be prevented if the Court orders Petitioners be immediately released from the Aurora facility.
II. Petitioners Have A Substantial Likelihood Of Prevailing On Their Due Process Claims. Petitioners are likely to succeed on their claims that Defendants’ refusal to provide them
adequate protection from COVID-19 or to release them from custody violates their constitutional due process rights under the Fifth Amendment.
A. Petitioners’ Continued Detention Violates Their Due Process Right To Protection From Harm Because It Constitutes Impermissible Punishment.
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). Failure to provide for those human needs “transgresses the substantive limits on state action” set by the Due Process Clause and Eighth Amendment. Id.; accord Schwartz v. Booker, 702 F.3d 573, 579–80 (10th Cir. 2012).
The Due Process Clause of the Fifth Amendment forbids the government from depriving a person of life, liberty or property without due process of law. Mathews v. Eldridge, 424 U.S. 319, 332 (1976). Persons in immigration detention are not criminally detained, so their constitutional protections are derived from the Fifth Amendment. Zadvydas v. Davis, 533 U.S. 678, 693 (2001).
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“Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects.” Id. at 690.
The Eighth Amendment, which applies to persons convicted of criminal offenses, allows punishment as long as it is not cruel and unusual, but the Fifth Amendment’s due process protections do not allow punishment at all. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979) (“Due process requires that a pretrial detainee not be punished.”); Colbruno v. Kessler, 928 F.3d 1155, 1162 (10th Cir. 2019). Therefore, persons in civil immigration detention 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).
A detained person can establish a due process violation by providing “‘evidence that the challenged governmental action is not rationally related to a legitimate governmental objective or that it is excessive in relation to that purpose.’” Colbruno, 928 F.3d at 1163 (citing Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473–74 (2015)); see also Bell v. Wolfish, 441 U.S. 520, 539 (2015) (holding that, if a condition of civil detention “is not reasonably related to a legitimate goal” or if it is “excessive” in relation to a legitimate goal, “a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees”). Even if government interests are nonpunitive and reasonably related to a legitimate goal, they can nevertheless be deemed excessive, particularly if viable alternatives exist. Bell, 441 U.S. at 539 n.20. Here, the conditions at the Aurora facility fail to provide adequate protections against COVID-19 and serve no legitimate government purpose.
Despite the Aurora facility’s known exposure to COVID-19, the Aurora facility does not provide necessary screening and testing practices. Decl. of Dr. Franco-Paredes, Ex. A, ¶ 50.
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Petitioners cannot engage in the six feet of physical distancing recommended by the CDC. Id. ¶¶ 18, 47, 51. In fact, many detained individuals report that they are being instructed to maintain three feet of distance from other people because there is not enough room to maintain six feet of distance. Decl. of C. Cowgill, Ex. B, ¶ 20. Petitioners are also detained in unhygienic conditions. They have limited or no access to hand sanitizer, masks or gloves. E.g., Decl. of C. Cowgill, Ex. B, ¶ 19; Decl. of L. Jordan, Ex. C, ¶¶ 12, 14, 15, 18; Decl. of J. Codner, Ex. D, ¶ 5; Decl. of N. Temah, Ex. E, ¶¶ 8–9; Decl. of A. Mendoza, Ex. I, ¶ 9; Decl. of N. Morales, Ex. J, ¶8; Decl. of H. Mendoza, Ex. K, ¶ 14; Decl. of V. Alvarez, Ex. L, ¶¶ 6, 8; Decl. of B. Calero, Ex. M, ¶ 13; Decl. of A. Gonzalez, Ex. N, ¶ 9; Decl. of M. Sierra, Ex. P, ¶ 7; Decl. of A. Linares, Ex. Q, ¶10. And, despite the documented presence of COVID-19 in the Aurora facility, many staff, including staff who have direct contact with detained individuals, do not wear any protective equipment, exacerbating the risk to Petitioners. Decl. of C. Cowgill, Ex. B, ¶¶ 21, 23; Decl. of L. Jordan, Ex. C, ¶¶ 12, 14, 15, 18; Decl. of J. Codner, Ex. D, ¶ 5; Decl. of A. Mendoza, Ex. I, ¶ 8; Decl. of H. Mendoza, Ex. K, ¶ 14; Decl. of V. Alvarez, Ex. L, ¶ 8; Decl. of B. Calero, Ex. M, ¶¶ 10, 14; Decl. of A. Gonzalez, Ex. N, ¶ 9; Decl. of I. Hernandez, Ex. O, ¶ 11; Decl. of M. Sierra, Ex. P, ¶¶ 5, 8; Decl. of A. Linares, Ex. Q, ¶13. Petitioners cannot protect themselves given the conditions at the Aurora facility.
These unhygienic conditions serve no legitimate government objective. Enforcement of the nation’s immigration laws does not require subjecting immigrants to detention under unsafe and unhygienic conditions that contravene public health officials’ requirements, guidelines and standards. Ample medical evidence demonstrates that physical distancing is the only way to avoid COVID-19. Decl. of Dr. Franco-Paredes, Ex. A, ¶¶ 18, 49. Keeping at-risk Petitioners detained in such close proximity to one another and without testing or screening or the sanitation necessary to combat
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the spread of the virus is “not rationally related to a legitimate governmental objective,” Colbruno, 928 F.3d at 1163, and thus constitutes illegitimate punishment in violation of Petitioners’ due process rights.
Even if detention under these circumstances could plausibly be considered to be related to ICE’s interest in enforcing immigration laws—and, as explained below, it cannot—it would clearly be excessive in relation to that purpose. Once Petitioners are exposed to the virus, they are all vulnerable to severe illness or death because of their underlying medical conditions, including: asthma, HIV, heart conditions, hypertension and diabetes. Continued detention of Petitioners is an imminent threat to their lives that is excessive in relation to any purported government goal and therefore amounts to punishment.
ICE has a number of tools available beyond physical detention to meet its enforcement goals, including supervised or conditional release.41 Indeed, ICE routinely exercises its authority to release particularly vulnerable detained persons from the Aurora facility and other immigration detention facilities.42 Similarly, federal district courts throughout the United States have also ordered the release of detained individuals in federal custody in the wake of the COVID-19 crisis. See, e.g., Thakker v. Doll, No. 1:20-cv-00480-JEJ, ECF No. 47, slip op. at 24 (M.D. Pa. Mar. 31, 2020) (ordering release of people from three immigration detention facilities in Pennsylvania that were
41 See, e.g., U.S. Gov’t Accountability Office, Immigration: Progress and Challenges in the Management of Immigration Courts and Alternatives to Detention Program (2018), available at https://www.gao.gov/products/GAO18-701T; U.S. Gov’t Accountability Office, Alternatives To Detention: Improved Data Collection and Analyses Needed to Better Assess Program Effectiveness (2014), available at https://www.gao.gov/products/GAO-15-26. 42 See Kevin Beaty, Immigrants Released from the Aurora Prison After COVID Case Confirmed, Denverite (Mar. 27, 2020), https://denverite.com/2020/03/27/immigrants-released-from-theaurora-prison-after-covid-case-confirmed/.
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“plainly not equipped to protect [p]etitioners from a potentially fatal exposure to COVID-19”); Basank v. Decker, No. 1:20-cv-02518-AT, ECF No. 11, slip op. at 13 (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)).43 ICE’s objectives with regard to immigration law enforcement “could be accomplished in so many alternative and less harsh methods” than physical detention under conditions such as those presented here. See Bell, 441 U.S. at 539 n.20.
Accordingly, Petitioners have a substantial likelihood of prevailing on their claim that continued detention at the Aurora facility constitutes unconstitutional punishment.
B. Continued Detention Constitutes Deliberate Indifference To A Substantial Risk Of Serious Harm To Petitioners.
Petitioners are also likely to succeed in demonstrating that Defendants’ deliberate indifference to their health and safety needs violates the Eighth Amendment’s prohibition on cruel and unusual punishment in contravention of their due process rights.
The due process rights of those in civil detention such as immigration detention “are at least as great as the Eighth Amendment protections available to a convicted prisoner.” City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983) (emphasis added). Thus, any condition or treatment that violates the Eighth Amendment rights of individuals who are in prison
43 See also orders provided at Ex. S.
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necessarily amounts to a violation of the constitutional due process rights of civilly detained individuals, such as Petitioners.
Individuals subject to civil detention can establish a due process violation by demonstrating that the official has acted with “deliberate indifference to [a detained person’s] serious medical needs.” McCowan v. Morales, 945 F.3d 1276, 1290 (10th Cir. 2019) (citation omitted). Courts find deliberate indifference when a detained person can show that (1) the conditions were “sufficiently serious so as to deprive [him] of the minimal civilized measure of life’s necessities,” or in the alternative that “a condition [is] sufficiently serious so as [to] constitute a substantial risk of serious harm,” Shannon v. Graves, 257 F.3d 1164, 1167 (10th Cir. 2001) (quotation omitted); and (2) defendants knew of and disregarded that substantial risk to plaintiff’s health or safety. Farmer v. Brennan, 511 U.S. 825, 834, 837-38 (1994); Burke v. Regalado, 935 F.3d 960, 992 (10th Cir. 2019).
Leaving those in custody in the path of infectious disease violates the Eighth Amendment. The Supreme Court has recognized that the government violates the Eighth Amendment when it crowds incarcerated people into cells with others who have “infectious maladies,” “even though the possible infection might not affect all of those exposed.” Helling v. McKinney, 509 U.S. 25, 33 (1993) (citing Hutto v. Finney, 437 U.S. 678, 682 (1978)). Likewise, the Tenth Circuit has held that a risk of contracting “infectious diseases such as Hepatitis A, shigella, and others” can satisfy the substantial risk of serious harm prong and that “[t]here is no requirement that an inmate suffer serious medical problems before the condition is actionable.” Shannon, 257 F.3d at 1168. Where a risk is obvious, such as during a contagious disease outbreak, it is fair for a factfinder to assume
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that the government official was aware of the risk. See, e.g., Farmer v. Brennan, 511 U.S. 825, 842 (1994).
Here, there is no question that the risk posed by COVID-19 is “serious” and that Defendants are being deliberately indifferent to that risk. While the risks posed by COVID-19 under the circumstances are fairly obvious given publicly available sources, Petitioners have submitted expert evidence demonstrating the seriousness of the risk COVID-19 poses to Petitioners if they remain in the Aurora facility. See Decl. of Dr. Franco-Paredes, Ex. A, ¶¶ 39–45, 52. COVID-19 is highly contagious and can cause severe health problems and death, especially in vulnerable persons. See Id. ¶¶ 9, 15. Moreover, there are already five reported COVID-19 cases among employees who work at the Aurora facility.44 Petitioners in this case are at specific and heightened risk because of their age and/or underlying health conditions. See supra Factual Background, Section II.
Defendants are also aware of the serious risks that COVID-19 poses in detention settings, especially for persons over 50 and/or with underlying medical conditions. Attorneys for immigrants detained at the Aurora facility and advocacy groups have notified Defendants about the threat posed by COVID-19 in the Aurora facility.45 Medical experts for DHS have specifically identified the risk of COVID-19 spreading to ICE detention centers.46 Courts around the country
44 McCormick-Cavanaugh, supra n.1. 45 See, e.g., Beaty, supra n.41. 46 See generally DHS Expert Letter, supra n.14.
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are already releasing non-violent individuals detained for immigration and/or criminal purposes
from detention centers, jails and prisons because the risk of contagion is overwhelming.47
In short, the evidence shows that COVID-19 poses a serious risk and that Defendants are
aware of the risk both from direct notice and from circumstantial evidence that the risk is entirely
obvious. Defendants’ failure to release detained individuals from these conditions is deliberate
indifference to that risk, in violation of Petitioners’ constitutional rights. Petitioners are likely to
succeed on the merits of their due process claims.
III. The Balance Of Harms And The Public Interest Weigh In Petitioners’ Favor.
Where, as here, the Government is a party to a case, the third and fourth injunction
47 See supra n.35–28; Ex. S; see also United States v. Meekins, No. 1:18-cr-222-APM, ECF No. 75 (D.D.C. Mar. 31, 2020) (post-plea, pre-sentence release order releasing defendant with three pending assault charges due to extraordinary danger COVID-19 poses to people in detention); United States v. Muniz, No. 4:09-cr-199, ECF No. 578, slip op. at 2 (S.D. Tex. Mar. 30, 2020) (releasing defendant serving 188-month sentence for drug conspiracy in light of vulnerability to COVID-19: “[W]hile 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.”); United States v. Grobman, No. 18-cr20989, ECF No. 397, slip op. at 2 (S.D. Fla. Mar. 29, 2020) (releasing defendant convicted after trial of fraud scheme in light of “extraordinary situation of a medically-compromised detainee being housed at a detention center where it is difficult, if not impossible, for [the defendant] and others to practice the social distancing measures which government, public health and medical officials all advocate”); United States v. Mclean, No. 19-cr-380, ECF. No. 21, slip op. at 1 (D.D.C. Mar. 28, 2020) (“As counsel for the Defendant candidly concedes, the facts and evidence that the Court previously weighed in concluding that Defendant posed a danger to the community have not changed - with one exception. That one exception - COVID-19 - however, not only rebuts the statutory presumption of dangerousness, see 18 U.S.C. § 3142(e), but tilts the balance in favor of release.”); United States v. Harris, No. 19-cr-356, ECF No. 35, slip op. at 1 (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.”) (collectively, Ex. T).
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factors—the balance of the equities and the public interest—merge. Nken v. Holder, 556 U.S. 418, 435 (2009); Bd. of Cty. Commissioners of Boulder Cty. v. Suncor Energy (U.S.A.) Inc., No. 18-CV01672-WJM-SKC, 2019 WL 4926764, at *7 (D. Colo. Oct. 7, 2019).
The balance of harms and public interest both tilt strongly in Petitioners’ favor. As the Tenth Circuit has recognized, “[w]hen a constitutional right hangs in the balance,” it “usually trumps any harm to the defendant.” Free the Nipple, 916 F.3d at 806; cf. Awad v. Ziriax, 670 F.3d 1111, 1131 (10th Cir. 2012) (“[W]hen the law that voters wish to enact is likely unconstitutional, their interests do not outweigh [a Petitioner’s interest] in having his constitutional rights protected.”). Petitioners seek to avoid the irreparable harm that they will suffer if they continue to be detained in violation of their constitutional rights, in a jail-like environment where they face an elevated risk of suffering and death from COVID-19. The harm to the government if Petitioners are released, when it can readily impose alternative conditions, is purely administrative.
The potential harm to the government is minimal. There are community-based alternatives to detention, such as release on conditions or on bond, that are readily available to the government. Petitioners understand that the only way for them to remain in the United States is to appear at all their court hearings and comply with any additional release requirements imposed by the government. See, e.g., Decl. of J. Codner, Ex. D, ¶ 4; Decl. of N. Temah, Ex. E, ¶ 12; Decl. of M. Belliard, Ex. F, ¶ 4; Decl. of S. Hamzic, Ex. G, ¶ 5.48 Petitioners are also working directly with the Social Service Project at the Rocky Mountain Immigrant Advocacy Network (RMIAN) to
48 See also Decl. of R. Mora, Ex. H, ¶ 6; Decl. of A. Mendoza, Ex. I, ¶ 6; Decl. of N. Morales, Ex. J, ¶ 2; Decl. of H. Mendoza, Ex. K, ¶ 8; Decl. of V. Alvarez, Ex. L, ¶ 4; Decl. of B. Calero, Ex. M, ¶ 6; Decl. of A. Gonzalez, Ex. N, ¶ 6; Decl. of I. Hernandez, Ex. O, ¶ 5; Decl. of M. Sierra, Ex. P, ¶ 2; Decl. of A. Linares, Ex. Q, ¶ 3.
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ensure that, following release from detention, they have access to safe housing and needed services and support with compliance at immigration court appearances. See generally Decls. of M. Hope, C. Schlosser, and K. Valentin, Exs. R–R5. Thus, the harm to Petitioners “trumps” any harm to the government. Free the Nipple, 916 F.3d at 806.
Similarly, the public interest weighs in favor of granting Petitioners’ relief. It is “always in the public interest to prevent the violation of a party’s constitutional rights.” Free the Nipple, 237 F. Supp. 3d at 1134 (quoting Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998); Strawser v. Strange, 44 F.Supp.3d 1206, 1210 (S.D. Ala. 2015)). See also Adams ex rel. Adams v. Baker, 919 F. Supp. 1496, 1505 (D. Kan. 1996) (“The public interest would best be served by enjoining the defendants from infringing on the plaintiff’s right to equal protection.”). In addition, an injunction would protect public health and safety, considerations that weigh heavily in favor of an injunction. See United States v. Power Eng’g Co., 10 F. Supp. 2d 1145, 1165 (D. Colo. 1998), aff’d, 191 F.3d 1224 (10th Cir. 1999) (finding injunction served the public interest where groundwater contamination was a “threat” to the public). See also Planned Parenthood of Gulf Coast, Inc. v. Gee, 862 F.3d 445, 472 (5th Cir. 2017) (recognizing public interest in safeguarding access to health care); Pashby v. Delia, 709 F.3d 307, 331 (4th Cir. 2013) (“the public interest in this case lies with safeguarding public health”).
Petitioners’ release will serve public health goals. Reducing the detained population will protect “local hospital systems [from] becom[ing] overwhelmed by the patient flow from detention center outbreaks,” thereby saving precious health resources for the broader community.49 And upon
49 Shoichet, supra n.2.
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release, Petitioners intend, and will be readily able, to adhere to recommended prevention guidelines regarding COVID-19 transmission. See, e.g., Decl. of M. Hope, Ex. R (M. Belliard plan) , ¶ 11; Decl. of M. Hope, Ex. R1 (R. Mora plan), ¶ 4; Decl. of C. Schlosser, Ex. R3 (Temah plan), ¶ 5; Decl. of K. Valentin, Ex. R4 (S. Hamzic plan), ¶ 5 (describing post-release plans for specific Petitioners).
There being no countervailing government or public interest in Petitioners’ continued detention in unsafe conditions, Petitioners make a strong showing that both the balance of harms and the public interest weigh in their favor. IV. Immediate Release Is The Only Effective Remedy For Petitioners’ Unlawful Detention.
This Court has authority under 28 U.S.C. § 2241 and Rule 65 to issue the release of Petitioners from detention. Habeas authorizes remedies for unlawful placement or conditions of detention. See Wilwording v. Swenson, 404 U.S. 249, 251 (1971) (finding that habeas challenging “living conditions and disciplinary measures” is “cognizable in federal habeas corpus”); Aamer v. Obama, 742 F.3d 1023, 1031–38 (D.C. Cir. 2014) (surveying Supreme Court and appellate case law to conclude that “habeas corpus tests not only the fact but also the form of detention”). Habeas also grants 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). That authority includes an order of release, Boumediene v. Bush, 553 U.S. 723, 779 (2008), so as “to insure that miscarriages of justice . . . are surfaced and corrected.” Harris, 394 U.S. at 291. Separately, under Rule 65 and a court’s inherent equitable authority to remedy unconstitutional government conduct, courts may issue “orders placing limits on a prison’s population.” Brown v. Plata, 563 U.S. 493, 511 (2011).
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In the midst of this unprecedented public health crisis, numerous other courts considering the plight of detained individuals have ordered release. See cases cited supra Introduction at 4.
As described in detail above, the Aurora facility is ill equipped to protect Petitioners from contracting COVID-19 and the numerous health complications that could arise if they were to become infected. The Aurora facility is not adhering to CDC recommendations to prevent the spread of the virus, nor is it capable of doing so. Under these circumstances, Petitioners’ immediate release is warranted.
V. The Court Should Not Require Petitioners To Provide Security Prior To Issuing A Temporary Restraining Order. Federal Rule of Civil Procedure 65(c) provides that “[t]he court may issue a preliminary
injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” However, Rule 65(c) invests the district court with discretion as to the amount of security required, if any. Winnebago Tribe of Nebraska v. Stovall, 341 F.3d 1202, 1206 (10th Cir. 2003) (“[W]e have previously held that a trial court has ‘wide discretion’ under Rule 65(c) in determining whether to require security.” (quoting Cont’l Oil Co. v. Frontier Ref. Co., 338 F.2d 780, 782 (10th Cir. 1964))).
District courts routinely exercise this discretion to require no security in cases brought by indigent and/or incarcerated people. See, e.g., Brown v. Callahan, 979 F. Supp. 1357, 1363 (D. Kan. 1997) (granting motion to waive security requirement for preliminary injunction because “court presumes that [petitioner] would be unable to provide security” as he is proceeding in forma pauperis in the action); Henton v. Albuquerque Hous. Auth., No. CIV 13-133 JP/KBM, 2013 WL 8115422, at *1 (D.N.M. Mar. 7, 2013) (“Because it is undisputed that [petitioner] is indigent,
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good cause exists for waiving posting of bond or security.”); see also Barahona-Gomez v. Reno,

167 F.3d 1228, 1237 (9th Cir. 1999) (upholding district court’s requirement that Petitioners post only

a nominal bond because “while they had not made a showing of indigency, the vast majority of aliens

were very poor”). Because Petitioners are currently civilly detained at the Aurora facility and are

represented by pro bono counsel, good cause exists to waive Rule 65’s security requirement.

CONCLUSION

For the foregoing reasons, Petitioners respectfully request that this Court grant the motion

for a temporary restraining order and order their immediate release from custody.

Dated : April 14, 2020.

Respectfully submitted,

/s/ Timothy R. Macdonald Timothy R. Macdonald Adrienne D. Boyd Kathleen K. Custer Sarah Grey ARNOLD & PORTER KAYE SCHOLER LLP 1144 Fifteenth Street Suite 3100 Denver, CO 80202-2569 Phone: (303) 863-1000 Timothy.Macdonald@arnoldporter.com Sarah.Grey@arnoldporter.com Kathleen.Custer@arnoldporter.com Adrienne.Boyd@arnoldporter.com

And

Sirine Shebaya Khaled Alrabe* (admission pending) Amber Qureshi NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Ave NW Suite 200 Washington, DC 20007 Telephone: (617) 227-9727

32

sirine@nipnlg.org khaled@nipnlg.org amber@nipnlg.org And Laura Lunn ROCKY MOUNTAIN IMMIGRANT ADVOCACY NETWORK 7301 Federal Blvd. Suite 300 Westminster, CO 80030 Telephone: (303) 433-2812 llunn@rmian.org
33

CERTIFICATION OF LOCAL CIVIL RULE 65.1 Counsel for Petitioners certify that they have served a copy of this Motion and all accompanying exhibits by certified mail to the individuals provided on the Certificate of Service. Counsel for Petitioners further certify that all documents in this action have been filed via CM/ECF. This Motion is therefore made with notice.
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CERTIFICATE OF SERVICE
I, Timothy R. Macdonald, hereby certify that on April 14, 2020, I filed the foregoing with the Clerk of the Court using the CM/ECF system, and I hereby certify that I have mailed a hard copy of the documents to the individuals identified below pursuant to Fed.R.Civ.P. 4 via certified mail on April 14, 2020.
Jason Dunn United States Attorney U.S. Attorney’s Office District of Colorado 1801 California Street, Ste. 1600 Denver, CO 80202
William Barr Attorney General of the United States U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, D.C. 20530
And to: John Fabbricatore; Matthew Albence, and DHS/ICE, c/o:
Office of the General Counsel U.S. Department of Homeland Security 2707 Martin Luther King Jr. Ave, SE Washington, D.C. 20528-0485
And to:
Johnny Choate GEO Group, Inc. Aurora ICE Processing Center 3130 N. Oakland Street Aurora, CO 80010
/s/ Timothy R. Macdonald Timothy R. Macdonald ARNOLD & PORTER KAYE SCHOLER LLP
Pro Bono Counsel for Petitioners
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 Case 1:20-cv-01050-PAB Document 31 Filed 05/27/20 USDC Colorado Page 1 of 16
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Chief Judge Philip A. Brimmer
Civil Action No. 20-cv-01050-PAB JENNIFER (GARY) LEAFORD CODNER et al.,
Petitioners, v. JOHNNY CHOATE, in his official capacity as warden of the Aurora Contract Detention Facility owned and operated by Geo Group Inc. et al.,
Respondents.
ORDER
This matter is before the Court on petitioners’ Petition for Writ of Habeas Corpus [Docket No. 1] and Petitioners’ Motion for Temporary Restraining Order [Docket No. 2].1 The Court has jurisdiction pursuant to 28 U.S.C. § 2241. Respondents have responded to both. See Docket No. 22; Docket No. 26. I. BACKGROUND
Petitioners are immigration detainees being held at the Aurora Contract
1 Fourteen individuals filed the petition for writ of habeas corpus. Id. at 1. However, since filing, Immigration and Customs Enforcement (“ICE”) has released nine petitioners. See Docket No. 22-1 at 2-3, ¶¶ 5-6; Docket No. 27-1 at 3, ¶ 4. Respondents suggest, and petitioners agree, that the writ and motion for temporary restraining order (“TRO”) are moot as to these nine individuals. See Docket No. 22 at 18; Docket No. 24 at 5 n.3. Because these nine petitioners have already been released, the writ and motion for TRO are moot as to them. See, e.g., RodriguezHeredia v. Holder, 639 F.3d 1264, 1267 (10th Cir. 2011); Ferry v. Gonzales, 457 F.3d 1117, 1132 (10th Cir. 2006). As a result, the Court limits its discussion and analysis to the remaining petitioners currently detained at the Facility.

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Detention Facility in Aurora, Colorado (“the Facility”), an ICE-contracted detention
facility. Docket No. 1 at 3, ¶ 1. Petitioners are in varying stages of the deportation
process, with some seeking asylum or withholding from removal. See generally id. at 8-
16. Each petitioner claims to have an underlying health issue that may make him or her
more susceptible to serious complications from COVID-19. See generally id. Jennifer Codner is a fifty-four-year-old woman from Jamaica.2 Docket No. 2-4 at
2-3, ¶¶ 1-2. She suffers from hypertension and allergies.3 Id. at 3, ¶ 3. Ms. Codner is
currently housed by herself; she does not share the pod she is in with any other
detainee. Docket No. 2-4 at 4, ¶ 7; Docket No. 22-2 at 6, ¶ 41. She does not recreate
with other detainees. Docket No. 22-2 at 6, ¶ 41. Ms. Codner does have access to
some commonly used spaces such as the law library. Id. Ms. Codner is provided a new
face mask on Mondays, Wednesdays, and Fridays each week. Id.
Ndi Temah is a twenty-four-year-old man from Cameroon. Docket No. 2-5 at 2,
2 Ms. Codner’s legal first name is Gary. Docket No. 2-4 at 2, ¶ 1. Ms. Codner is transgender and her preferred name is Jennifer. Id. Many of the other petitioners have preferred names and pronouns. See generally Docket No. 1 at 8-16 ¶¶ 15-28. The Court uses petitioners’ preferred names and pronouns throughout this Order.
3 According to the Centers for Disease Control and Prevention (“CDC”), a serious heart condition like pulmonary hypertension is a high-risk factor for severe illness from COVID-19. See Groups at Higher Risk for Severe Illness, Ctrs. for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups -at-higher-risk.html. Allergies are not a risk factor. Id. Additionally, those whose sole underlying medical condition is hypertension, rather than pulmonary hypertension, are not at high risk. See Patients with Hypertension, Ctrs. for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/hcp/faq.html#Patients-withHypertension. As a result, Ms. Codner is not in a high-risk group for severe illness from COVID-19.
2

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¶ 1. Mr. Temah suffers from hypertension, Mobitz Type 1, post-traumatic stress disorder (“PTSD”), depression, and severe anxiety.4 Id., ¶ 2. Mr. Temah was recently transferred to C4 Pod, a pod that was previously under quarantine. Docket No. 23-1 at 2, ¶ 6; Docket No. 25-1 at 2. He shares a cell with four other detainees in a pod with a total of forty-five other people. Docket No. 25-1 at 2, ¶ 2-4. Mr. Temah is housed in the upstairs unit of the pod with twenty-three other people. Id., ¶ 4. Mr. Temah is provided a new facemask on Mondays, Wednesdays, and Fridays each week. Docket No. 22-3 at 3, ¶ 19.
Madeline Tatis Belliard is a forty-year-old woman from the Dominican Republic. Docket No. 2-6 at 2, ¶ 1. Ms. Belliard has HIV, asthma, schizoaffective disorder, gender identity disorder, and dysthemic disorder.5 Id. at 2-3, ¶ 3. She is housed in her own private pod and does not recreate with other detainees. Docket No. 22-4 at 5, ¶ 16. Ms. Belliard is provided a new face mask on Mondays, Wednesdays, and Fridays each week. Id.
Sanela Hamzic is a fifty-two-year-old woman from Bosnia and Herzegovina.
4 Mr. Temah’s heart condition, Mobitz Type 1, may put him at risk of severe complications from COVID-19. See Groups at Higher Risk for Severe Illness, Ctrs. for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/needextra-precautions/groups-at-higher-risk.html.
5 Moderate to severe asthma is a high-risk factor for complications from COVID19. See Groups at Higher Risk for Severe Illness, Ctrs. for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions /groups-at-higher-risk.html. Additionally, those with HIV who are not on HIV treatment or who have a low CD4 cell count are at higher risk from COVID-19. Id. Ms. Belliard is on treatment for HIV and does not inform the Court of the seriousness of her asthma. Docket No. 2-6 at 2-3, ¶ 3. Ms. Belliard has failed to present sufficient evidence for the Court to conclude that she is at higher risk should she contract COVID-19.
3

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Docket No. 2-7 at 2, ¶ 1. She has diabetes, asthma, high blood pressure, attention deficit disorder, depression, and PTSD.6 Id. at 2-3, ¶ 3. She also previously had cancer
in her lungs and ovaries, which resulted in the removal of one of her lungs and a
hysterectomy. Id. She is housed in a dormitory with nine other people. Docket No. 22-
5 at 5, ¶ 22. Ms. Hamzic has shared recreation time with a maximum of nine other
detainees. Id. She recreates with the same detainees each day. Id. Ms. Hamzic is
provided a new face mask on Mondays, Wednesdays, and Fridays each week. Id.
Rafael Soria Mora is a forty-six-year-old man from Mexico. Docket No. 2-8 at 2, ¶ 1. Mr. Mora has chronic asthma, hypertension, and sleep apnea.7 Id. at 3, ¶ 5. He
shares a cell with one other detainee in a dormitory with forty-three other people.
Docket No. 2-8 at 5, ¶ 9. Mr. Mora recreates with the same detainees every day.
Docket No. 22-6 at 4-5, ¶ 21. Mr. Mora is provided a new face mask on Mondays,
Wednesdays, and Fridays each week. Id.
6 Ms. Hamzic’s diabetes puts her in a high-risk group for COVID-19. See Groups at Higher Risk for Severe Illness, Ctrs. for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-ri sk.html.
7 Mr. Mora states that he uses an inhaler ten to eleven times each day because he is out of breath and cannot speak. Id. at 3, ¶ 5. He says that he “cannot capture air and [] feel[s] like [he] is drowning.” Id. In his declaration, Doctor Franco-Paredes states that Mr. Mora is at high-risk due to his history of respiratory illness. Docket No. 2-1 at 15, ¶ 44. Moderate to severe asthma in combination with hypertension could put Mr. Mora at high-risk for severe complications from COVID-19. See Groups at Higher Risk for Severe Illness, Ctrs. for Disease Control and Prevention, https://www.cdc.gov/ coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html; Patients with Hypertension, Ctrs. for Disease Control and Prevention, https://www.cdc.gov/ coronavirus/2019-ncov/hcp/faq.html#Patients-with-Hypertension. Therefore, the Court assumes that Mr. Mora is in a high-risk group.
4

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To combat the risks of COVID-19, respondents are taking the following measures. First, in regard to the Facility as a whole, the Facility is operating at less than half capacity, allowing more physical distancing than would be available were the Facility operating at a higher capacity. Docket No. 22-8 at 6, ¶ 16. Additionally, visits are generally prohibited. Professional visits are noncontact and social visits and facilities tours are suspended. Id. at 7, ¶ 20.
Second, regarding detainees, respondents have done the following. Anyone with symptoms consistent with COVID-19 is placed in isolation. Id. at 3-4, ¶ 9. If a detainee has known exposure to COVID-19 and is asymptomatic, that person is placed in a cohort of other detainees with known exposure for fourteen days. Id. at 4-5, ¶ 12. If there are no new cases for fourteen days, cohorting ends. Id. New detainees are separated from current detainees for fourteen days before being allowed to interact with current detainees. Docket No. 22-9 at 4, ¶ 11.
In pod style housing, most cells have been limited to no more than two detainees per cell. Id., ¶ 12. Detainees have access to “dayrooms and recreation facilities on a rotating basis.” Docket No. 22-8 at 7-8, ¶ 24. At least a subset of detainees are recreating with the same detainees each day. See, e.g., Docket No. 22-5 at 5, ¶ 22. Respondents have “decreased the number of individuals allowed in a dayroom at any given time.” Docket No. 22-8 at 7-8, ¶ 24. For example, in “common areas with television and game access,” there may be no more than twenty detainees at a time, “depending on the housing unit.” Docket No. 22-9 at 4-5, ¶ 12. Detainees are required to maintain six feet apart in dayrooms and recreation facilities. Docket No. 22-8 at 7-8,
5

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¶ 24. Dayrooms are disinfected after each group. Id. Third, as to staff and employees, respondents have taken several steps. Staff
have been given personal protective equipment (“PPE”) and must have their temperature taken before entering the Facility. Docket No. 22-8 at 6-7, ¶ 19f; Docket No. 22-9 at 3-4, ¶ 10. Anyone entering the Facility must answer a screening questionnaire which assesses potential exposure to COVID-19 and whether that person is exhibiting any symptoms of COVID-19. Docket No. 22-9 at 3-4, ¶ 10. If someone trying to enter the Facility has a fever, he or she will be prohibited from entering. Id. Staff who are sick are not permitted to enter. Id.8
Petitioners filed a petition for writ of habeas corpus on April 14, 2020. See Docket No. 1. Given their underlying health issues, petitioners request release from detention at the Facility. Id. at 40. Specifically, petitioners argue that their detention violates the Fifth Amendment and Eighth Amendment and, as a result, they should be released pursuant to 28 U.S.C. § 2241. See generally Docket No. 2. II. LEGAL STANDARD
The standard for a TRO is the same as that for a preliminary injunction. See Wiechmann v. Ritter, 44 F. App’x 346, 347 (10th Cir. 2002). To succeed on a motion for a preliminary injunction, the moving party must show (1) a likelihood of success on the
8 Since petitioners filed their motion, two detainees at the Facility have tested positive for COVID-19. Docket No. 27-1 at 2, ¶ 3. The first detainee was placed in isolation upon arrival and had contact with one other detainee who is also in isolation. Id., ¶ 3a. The second detainee was placed in an intake dormitory with ten other detainees before being placed in isolation upon receiving a positive test. Id. at 2-3, ¶3b. The ten detainees who had contact with the second detainee remain in a cohort and have not had contact with any other detainees. Id.
6

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merits; (2) a likelihood that the movant will suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in the movant’s favor; and (4) the injunction is in the public interest. Little v. Jones, 607 F.3d 1245, 1251 (10th Cir. 2010); RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208 (10th Cir. 2009) (citing Winter v. Nat. Res. Def. Council, Inc., 555 US. 7, 20 (2008)). “[B]ecause a preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal.” Beltronics USA, Inc. v. Midwest Inventory Distrib., LLC, 562 F.3d 1067, 1070 (10th Cir. 2009) (quotations and citation omitted). Granting such “drastic relief,” United States ex rel. Citizen Band Potawatomi Indian Tribe v. Enter. Mgmt. Consultants, Inc., 883 F.2d 886, 888-89 (10th Cir. 1989), is the “exception rather than the rule.” GTE Corp. v. Williams, 731 F.2d 676, 678 (10th Cir. 1984).
There are three types of preliminary injunctions that are disfavored: (1) injunctions that disturb the status quo, (2) injunctions that are mandatory rather than prohibitory, and (3) injunctions that provide the movant substantially all the relief it could feasibly attain after a full trial on the merits. See Schrier v. Univ. of Colo., 427 F.3d 1253, 1260 (10th Cir. 2005). In seeking a disfavored injunction, “the movant must make a strong showing both with regard to the likelihood of success on the merits and with regard to the balance of harms.” Fish v. Kobach, 840 F.3d 710, 724 (10th Cir. 2016) (quotations and alterations omitted); see also Schrier, 427 F.3d at 1259 (stating that such injunctions “must be more closely scrutinized to assure that the exigencies of the case support the granting of a remedy that is extraordinary even in the normal course” (quotations omitted)).
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Petitioners seek an injunction that alters the status quo. Namely, petitioners seek release from detention. Therefore, petitioners’ motion falls under the heightened standard for preliminary injunctions. See Schrier, 427 F.3d at 1260. III. MOTION FOR TEMPORARY RESTRAINING ORDER
A. Likelihood of Success on the Merits The Court first addresses petitioners’ likelihood of success on the merits. Because petitioners seek a disfavored injunction, they must make a “strong showing” on this factor. Kobach, 840 F.3d at 724.
1. Release Pursuant to § 2241 Petitioners seek immediate release from detention pursuant to 28 U.S.C. § 2241, which codifies one avenue of federal habeas corpus relief.9 Immigration detainees are entitled to habeas relief if they are held “in custody in violation of the Constitution or laws or treaties of the United States.” See 28 U.S.C. § 2241(c)(3); Zadvydas v. Davis, 533 U.S. 678, 687 (2001). Specifically, the writ of habeas corpus is designed to challenge “the fact or duration” of confinement. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); see also Muhammad v. Close, 540 U.S. 749, 750 (2004) (“Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus.”). In other words, habeas corpus, and thus § 2241, offers detainees release from custody when the very fact that they are detained, or detained for a certain length of time, is unlawful. For example, § 2241 may offer relief for persons in
9 The other avenue for those in federal custody, 28 U.S.C. § 2255, is for “prisoner[s] in custody under sentence of a court.” Because petitioners are civil immigration detainees and are not prisoners, only § 2241 is available to them.
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immigration custody who allege that they were unlawfully arrested and then detained. See Pelletier v. United States, 588 F. App’x 784, 791-92 (10th Cir. 2014) (unpublished).
In addition to challenging the underlying basis for detention, detainees can challenge the conditions of their confinement. As a result, even if lawfully detained pursuant to either a constitutional immigration law or court-imposed sentence, an immigration detainee or an inmate can base a legal claim on the conditions under which that detention is effectuated. For example, the Tenth Circuit has recognized a challenge to mental health services available while being detained as a condition of confinement claim. See Blackmon v. Sutton, 734 F.3d 1237, 1239-40 (10th Cir. 2013). These sorts of claims, however, are brought pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), or 42 U.S.C. § 1983.
Here, petitioners argue that § 2241 is the proper vehicle for relief because “their continued confinement is unconstitutional and [] they are entitled to immediate release.” Docket No. 24 at 12. Furthermore, because petitioners request immediate release, they argue that their request “lies ‘within the core of habeas corpus.’” Id. (quoting Preiser, 411 U.S. at 487). Petitioners argue that their claim is not one challenging the conditions of confinement because they do not request that respondents either improve any conditions at the Facility or provide monetary relief. Id. at 13. In essence, petitioners contend that the remedy – here, release – automatically places them within § 2241’s reach. Petitioners cite several court decisions that have provided relief pursuant to § 2241 under similar circumstances. See, e.g., Essien v. Barr, No. 20-cv-1034-WJM,
9

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2020 WL 1974761 (D. Colo. Apr. 24, 2020); Perez v. Wolf, 2020 WL 1865303 (N.D. Cal. Apr. 14, 2020); Malam v. Adducci, 2020 WL 1672622 (E.D. Mich. Apr. 5, 2020); Coreas v. Bounds, 2020 WL 1663133 (D. Md. Apr. 3, 2020).
In opposing the petition, respondents argue that, at its core, petitioners’ claim is that the conditions at the Facility are unconstitutional and that the precautions taken at the Facility are insufficient to protect petitioners’ constitutional rights. Docket No. 22 at 24. Because petitioners attack the conditions of their confinement, respondents contend that petitioners may not proceed under § 2241, which is reserved for attacking the validity of detention itself. Id. at 23-24.
Resolving this dispute first requires determining whether § 2241 permits relief for conditions of confinement claims in addition to claims challenging the fact or duration of detention. If it does, then the debate over whether petitioners are actually challenging the fact or conditions of confinement is moot.
The Supreme Court has not squarely addressed whether habeas is “available to challenge [] prison conditions.” Preiser, 411 U.S. at 499. That said, the Supreme Court does draw a distinction between habeas on the one hand and ci vil rights actions on the other: “[W]hen a [] prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is . . . immediate release . . . , his sole federal remedy is a writ of habeas corpus.” Id. at 500 (emphasis added). Federal law “opens two main avenues to relief on complaints related to imprisonment.” Close, 540 U.S. at 750. “Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus; requests for relief turning on circumstances
10

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of confinement may be presented in a § 1983 action.” Id. Thus, although the Supreme Court has left open the possibility that habeas may allow some conditions of confinement claims, it still reasons that habeas and conditions of confinement claims are designed with two different goals. Habeas, and therefore § 2241, is designed to challenge the validity of detention – whether there is any lawful authority whatsoever to detain the person in question. Conditions of confinement claims assume the validity of detention, but attack the means, methods, and execution of that detention.
Although the Supreme Court has not addressed the issue of whether a § 2241 claim may be used to challenge prison conditions, the circuit courts have, and are split on the issue. See Wilborn v. Mansukhani, 795 F. App’x 157, 163-64 (4th Cir. 2019) (collecting cases). The Tenth Circuit has stated that “[i]t is well-settled law that prisoners who wish to challenge only the conditions of their confinement, as opposed to its fact or duration, must do so through civil rights lawsuits filed pursuant to 42 U.S.C. § 1983 or Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) – not through federal habeas proceedings.” Standifer v. Ledezma, 653 F.3d 1276, 1280 (10th Cir. 2011). When a detainee’s “challenge is properly construed as a challenge to the conditions of his confinement[,] [it] must be brought pursuant to Bivens.” Palma-Salazar v. Davis, 677 F.3d 1031, 1036 (10th Cir. 2012).10 As a result, the Tenth Circuit seems to
10 Although these statements are unqualified, Standifer and Palma-Salazar both rely on McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997), which specifically limits its holding to the conclusion that § 2241 is not a civil action within the meaning of 28 U.S.C. §§ 1915(a)(2) and (b), even though McIntosh discusses the differences between habeas and conditions of confinement claims. Nevertheless, the Tenth Circuit has repeatedly stated that habeas is not a proper vehicle for conditions of confinement claims – for example, in Standifer and Palma-Salazar – and so while there
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foreclose the type of relief that petitioners request. The distinction between habeas and civil rights actions makes practical sense. If
a detainee’s detention itself is unlawful, the remedy is release, which is why habeas permits release when a detainee challenges “the fact or duration” of confinement. Preiser, 411 U.S. at 500. However, if detention itself is lawful, but the surrounding circumstances are not, release is not the only possible remedy: conditions can be improved to make them constitutional.
Given these considerations, and the weight of Tenth Circuit authority, the Court finds that § 2241 is not the proper vehicle for a conditions of confinement claim and respectfully disagrees with the courts that have concluded otherwise. The Court is not alone in this conclusion. See, e.g., Basri v. Barr, No. 20-cv-00940-DDD, slip op. at 9 (D. Colo. May 11, 2020); Betancourt Barco v. Price, 2020 WL 2099890, at *6 (D.N.M May 1, 2020); Toure v. Hott, 2020 WL 2092639, at *6 (E.D. Va. Apr. 29, 2020).
Next, the Court must determine whether petitioners are attacking the fact of confinement or are simply attacking the conditions of their confinement. Throughout petitioners’ motion, they describe allegedly unconstitutional conditions at the Facility. See Docket No. 2 at 23-24. For example, they allege that the Facility “does not provide necessary screening and testing practices,” that detainees “cannot engage in six feet of physical distancing,” and detainees “have limited or no access to hand sanitizer, masks or gloves.” Id. Petitioners state that “[t]hese unhygienic conditions serve no legitimate
may be some doubt as to whether the Tenth Circuit permits conditions of confinement claims to proceed through habeas, the weight of authority says it would not.
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government objective.” Id. at 24 (emphasis added). If these conditions were to disappear, for instance, were the pandemic to suddenly end with the development of a vaccine, so too would the grounds for petitioners’ challenge to their confinement. See Basri, No. 20-cv-00940-DDD, slip op. at 9 (“[I]t is the conditions, not the fact of his detention, he is challenging when he cites the undoubtedly dangerous condition of the spreading COVID-19 disease.”); Toure, 2020 WL 2092639, at *6 (“[T]heir challenge involves the legality of their confinement only insofar as the conditions of their confinement fail to meet constitutional standards.”). Put another way, were the Court to grant petitioners’ immediate release under some sort of supervision as they request – meaning petitioners would still be in ICE custody, see Pelletier, 588 F. App’x at 791-92 – only the conditions of their confinement (or custody) would change, not the underlying legal basis for keeping petitioners in custody. As a result, the Court finds that petitioners attack the conditions of their confinement and not the fact or duration of their confinement.
Petitioners argue that this conclusion is incorrect because their confinement itself violates “their Fifth Amendment right to be free from serious threats to health and life, given their particular vulnerabilities to the COVID-19 pandemic.” Docket No. 24 at 13. They argue that, because they “seek[] the remedy of immediate release,” their claim automatically falls within § 2241’s reach. Id. (citation omitted). This argument proves too much. If petitioners were correct, then any time a detainee requests immediate release – no matter the basis for that relief – the appropriate vehicle would be § 2241. Such a conclusion would render a § 2241 claim no different than a civil rights or Bivens
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action. The Court therefore finds this argument unpersuasive. Because petitioners attack the conditions and not the fact of their confinement,
§ 2241 is not an appropriate vehicle for their claim. As a result, the Court finds that petitioners do not have a likelihood of success on the merits.
2. Injunctive Relief Petitioners contend that, even if § 2241 is an improper vehicle for the relief they seek, petitioners “filed the instant case as a civil action, and this Court can and should order release as a form of injunctive relief.” Docket No. 24 at 13-14. Specifically, petitioners argue that “under Rule 65 and a court’s inherent equitable authority to remedy unconstitutional government conduct, courts may issue ‘orders placing limits on a prison’s population.’” Docket No. 2 at 32 (citing Brown v. Plata, 563 U.S. 493, 511 (2011)). The Court rejects this argument for two reasons. First, petitioners filed a petition for writ of habeas corpus under § 2241, not a civil rights action. The motion for a TRO seeks relief pursuant to the habeas petition. Second, Brown has nothing to do with a court’s inherent equitable powers to release prisoners. Rather, Brown involved years-long litigation to reduce overcrowding in California state prisons. 563 U.S. at 512. The focus of Brown was whether the order of the three-judge panel complied with the Prison Litigation Reform Act (“PLRA”), which contains specific statutory requirements that must be met before a court may issue an order “that has the purpose or effect of reducing or limiting the prison population.” Id. at 511. Thus, Brown is inapposite.
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The Court finds that petitioners have not demonstrated a likelihood of success on their theory of a constitutional right to immediate release.11
B. Remaining TRO Factors Petitioners must make a showing on each factor for a TRO to succeed. Because petitioners have failed to demonstrate a likelihood of success on the merits, the Court does not address the remaining elements of the TRO. See Winter, 555 U.S. at 23-24 (holding that “[a] proper consideration” of the balance of equities and public interest “alone requires denial of the requested injunctive relief” and, therefore, declining to address the likelihood of success on the merits); see also Big O Tires, LLC v. Felix Bros., Inc. 724 F. Supp. 2d 1107, 1121 (D. Colo. 2010) (declining to address every factor because “the resolution of them will have no bearing on the outcome”). IV. PETITION FOR WRIT OF HABEAS CORPUS The petition for writ of habeas corpus seeks petitioners’ immediate release for the same reasons found in the motion for TRO. See Docket No. 1 at 33-38. As stated above, petitioners may not make a conditions of confinement claim through the writ of habeas corpus. As a result, the Court dismisses the petition for writ of habeas corpus. See, e.g., Basri, No. 20-cv-00940-DDD, slip op. at 18 (dismissing petition because petitioner was not entitled to release under § 2241); Rani v. Barr, No. 19-cv-02017-RBJ, 2019 WL 6682834, at *4 (D. Colo. Dec. 6, 2019) (same); Terrell v. Matevousian, No. 18-
11 Because petitioners may not proceed under § 2241, the Court does not need to address petitioners’ arguments under the Fifth and Eighth Amendment. Even if respondents have violated petitioners’ Fifth and Eighth Amendment rights, an argument on which the Court takes no position, the Court could not order petitioners released.
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cv-03014-WJM, 2019 WL 2774222, at *4 (D. Colo. July 2, 2019) (same). V. CONCLUSION
For the foregoing reasons it is ORDERED that Petitioners’ Motion for Temporary Restraining Order [Docket No. 2] is DENIED. It is further ORDERED that petitioners’ Petition for Writ of Habeas Corpus [Docket No. 1] is DISMISSED. It is further ORDERED that this case is closed.

DATED May 27, 2020.

BY THE COURT:

PHILIP A. BRIMMER Chief United States District Judge

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Case 1:20-cv-01050-PAB Document 32 Filed 05/28/20 USDC Colorado Page 1 of 2
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 20-cv-01050-PAB JENNIFER (GARY) LEAFORD CODNER et al.,
Petitioners, v. JOHNNY CHOATE, in his official capacity as warden of the Aurora Contract Detention Facility owned and operated by Geo Group Inc. et al.,
Respondents.
FINAL JUDGMENT
In accordance with the orders filed during the pendency of this case, and pursuant to Fed. R. Civ. P. 58(a), the following Final Judgment is hereby entered.
Pursuant to the Order [Docket No. 31] of Chief United States District Judge Philip A. Brimmer entered on May 27, 2020, it is
ORDERED that Petitioners’ Motion for Temporary Restraining Order [Docket No. 2] is DENIED. It is further
ORDERED that petitioners’ Petition for Writ of Habeas Corpus [Docket No. 1] is DISMISSED. It is further
ORDERED that judgment is entered in favor of respondents and against petitioners. It is further
ORDERED that this case is closed.

Case 1:20-cv-01050-PAB Document 32 Filed 05/28/20 USDC Colorado Page 2 of 2 Dated at Denver, Colorado this 28th day of May, 2020. FOR THE COURT: Jeffrey P. Colwell, Clerk By s/ S. Grimm Deputy Clerk
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