U.S. District Court Eastern District of Virginia - (Alexandria) CIVIL DOCKET FOR CASE #: 1:20-cv-00395-LO-JFA

Toure et al v. Hott et al Assigned to: District Judge Liam O'Grady Referred to: Magistrate Judge John F. Anderson Case in other court: 4th Circuit, 20-06695 Cause: 8:1105(a) Aliens: Habeas Corpus to Release INS Detainee

Date Filed: 04/09/2020 Date Terminated: 10/14/2020 Jury Demand: None Nature of Suit: 463 Habeas Corpus Alien Detainee Jurisdiction: U.S. Government Defendant

Petitioner Francois Toure

represented by Granville Clayton Warner Legal Aid Justice Center (Falls Church) 6066 Leesburg Pike Suite 520 Falls Chruch, VA 22041 703-778-3450 Fax: 703-778-3454 Email: cwarner@justice4all.org ATTORNEY TO BE NOTICED

Kristin Fisher Donovan Legal Aid Justice Center (Falls Church) 6066 Leesburg Pike Suite 520 Falls Chruch, VA 22041 703-778-3450 Fax: 703-778-3454 Email: kristin@justice4all.org ATTORNEY TO BE NOTICED

Simon Yehuda SandovalMoshenberg Simon Sandoval Moshenburg Legal Aid Justice Center 6066 Leesburg Pike Suite 520 Fall Church, VA 22041 703-778-3450 Fax: 703-778-3454

Petitioner Sisira Kumara Kumaragamage Don
Petitioner Ronaldo Lopez Cristales TERMINATED: 04/21/2020

Email: simon@justice4all.org ATTORNEY TO BE NOTICED
Adina Bassin Appelbaum Capital Area Immigrants' Rights Coalition 1612 K Street NW Suite 204 Washington, DC 20006 202-889-1412 Fax: 202-331-3341 Email: adina@caircoalition.org ATTORNEY TO BE NOTICED
represented by Granville Clayton Warner (See above for address) ATTORNEY TO BE NOTICED
Kristin Fisher Donovan (See above for address) ATTORNEY TO BE NOTICED
Simon Yehuda SandovalMoshenberg (See above for address) ATTORNEY TO BE NOTICED
Adina Bassin Appelbaum (See above for address) ATTORNEY TO BE NOTICED
represented by Granville Clayton Warner (See above for address) ATTORNEY TO BE NOTICED
Kristin Fisher Donovan (See above for address) ATTORNEY TO BE NOTICED
Simon Yehuda SandovalMoshenberg (See above for address) ATTORNEY TO BE NOTICED

Petitioner Venacio Escobar Andasol TERMINATED: 07/24/2020
Petitioner Franklin (Rechelle) Alberto Hernandez TERMINATED: 04/28/2020
Petitioner Miguel Angel Chavez Ramos TERMINATED: 04/21/2020

Adina Bassin Appelbaum (See above for address) ATTORNEY TO BE NOTICED
represented by Granville Clayton Warner (See above for address) ATTORNEY TO BE NOTICED
Kristin Fisher Donovan (See above for address) ATTORNEY TO BE NOTICED
Simon Yehuda SandovalMoshenberg (See above for address) ATTORNEY TO BE NOTICED
Adina Bassin Appelbaum (See above for address) ATTORNEY TO BE NOTICED
represented by Granville Clayton Warner (See above for address) ATTORNEY TO BE NOTICED
Kristin Fisher Donovan (See above for address) ATTORNEY TO BE NOTICED
Simon Yehuda SandovalMoshenberg (See above for address) ATTORNEY TO BE NOTICED
Adina Bassin Appelbaum (See above for address) ATTORNEY TO BE NOTICED
represented by Granville Clayton Warner (See above for address) ATTORNEY TO BE NOTICED

Petitioner Melvin Castro TERMINATED: 07/24/2020
Petitioner Ummy Mohamed

Kristin Fisher Donovan (See above for address) ATTORNEY TO BE NOTICED
Simon Yehuda SandovalMoshenberg (See above for address) ATTORNEY TO BE NOTICED
Adina Bassin Appelbaum (See above for address) ATTORNEY TO BE NOTICED
represented by Adina Bassin Appelbaum (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Granville Clayton Warner (See above for address) ATTORNEY TO BE NOTICED
Kristin Fisher Donovan (See above for address) ATTORNEY TO BE NOTICED
Simon Yehuda SandovalMoshenberg (See above for address) ATTORNEY TO BE NOTICED
represented by Granville Clayton Warner (See above for address) ATTORNEY TO BE NOTICED
Kristin Fisher Donovan (See above for address) ATTORNEY TO BE NOTICED
Simon Yehuda SandovalMoshenberg (See above for address)

Petitioner
Faustino Romero Aguilon TERMINATED: 05/12/2020

ATTORNEY TO BE NOTICED
Adina Bassin Appelbaum (See above for address) ATTORNEY TO BE NOTICED
represented by Adina Bassin Appelbaum (See above for address) TERMINATED: 05/12/2020
Granville Clayton Warner (See above for address) TERMINATED: 05/12/2020
Kristin Fisher Donovan (See above for address) TERMINATED: 05/12/2020
Simon Yehuda SandovalMoshenberg (See above for address) TERMINATED: 05/12/2020

V.
Respondent
Field Office Dir. Russell Hott in his official capacity as Washington Field Office Director, of Immigration and Customs Enforcement

represented by Matthew J. Mezger US Attorney's Office (AlexandriaNA) 2100 Jamieson Avenue Alexandria, VA 22314 NA 703-299-3700 Email: matthew.mezger@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dennis Carl Barghaan , Jr. United States Attorney's Office 2100 Jamieson Ave Alexandria, VA 22314 (703)299-3700 Email: dennis.barghaan@usdoj.gov ATTORNEY TO BE NOTICED

Respondent Jeffery Crawford in his official capacity as Warden, Farmville Detention Center, Immigration Centers of America
Respondent Colonel Paul Perry in his official capacity as Superintendent, Caroline Detention Facility Respondent Matthew T. Albence in his official capacity as Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement
Respondent U.S. Immigration and Customs Enforcement

represented by John Michael Erbach Spotts Fain PC 411 E Franklin St Suite 600 Richmond, VA 23219 804-697-2044 Fax: 804-697-2144 Email: jerbach@spottsfain.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kasey Leigh Hoare Spotts Fain PC 411 E Franklin St Suite 600 Richmond, VA 23219 804-697-2015 Fax: 804-697-2150 Email: khoare@spottsfain.com ATTORNEY TO BE NOTICED
represented by Matthew J. Mezger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dennis Carl Barghaan , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Matthew J. Mezger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dennis Carl Barghaan , Jr. (See above for address) ATTORNEY TO BE NOTICED

Date Filed 04/09/2020 04/09/2020 04/09/2020
04/09/2020
04/10/2020 04/10/2020

# Docket Text
1 PETITION for Writ of Habeas Corpus ( Filing fee $ 5 receipt number 0422-7154160.), filed by Sisira Kumara Kumaragamage Don, Ronaldo Lopez Cristales, Franklin (Rechelle) Alberto Hernandez, Ummy Mohamed, Venacio Escobar Andasol, Miguel Angel Chavez Ramos, Faustino Romero Aguilon, Francois Toure. (Attachments: # 1 Civil Cover Sheet)(Appelbaum, Adina) (Entered: 04/09/2020)
2 Proposed Summons re 1 Petition for Writ of Habeas Corpus (2241), by Franklin (Rechelle) Alberto Hernandez, Melvin Castro, Miguel Angel Chavez Ramos, Venacio Escobar Andasol, Sisira Kumara Kumaragamage Don, Ronaldo Lopez Cristales, Ummy Mohamed, Faustino Romero Aguilon, Francois Toure. (Appelbaum, Adina) (Entered: 04/09/2020)
3 Motion to appear Pro Hac Vice by Amber Qureshi and Certification of Local Counsel Adina Appelbaum Filing fee $ 75, receipt number 04227154419. by Franklin (Rechelle) Alberto Hernandez, Melvin Castro, Miguel Angel Chavez Ramos, Venacio Escobar Andasol, Sisira Kumara Kumaragamage Don, Ronaldo Lopez Cristales, Ummy Mohamed, Faustino Romero Aguilon, Francois Toure. (Appelbaum, Adina) (Entered: 04/09/2020)
4 Motion to appear Pro Hac Vice by Sirine Shebaya and Certification of Local Counsel Adina Appelbaum Filing fee $ 75, receipt number 04227154422. by Franklin (Rechelle) Alberto Hernandez, Melvin Castro, Miguel Angel Chavez Ramos, Venacio Escobar Andasol, Sisira Kumara Kumaragamage Don, Ronaldo Lopez Cristales, Ummy Mohamed, Faustino Romero Aguilon, Francois Toure. (Appelbaum, Adina) (Entered: 04/09/2020)
5 NOTICE of Appearance by Granville Clayton Warner on behalf of Franklin (Rechelle) Alberto Hernandez, Melvin Castro, Miguel Angel Chavez Ramos, Venacio Escobar Andasol, Sisira Kumara Kumaragamage Don, Ronaldo Lopez Cristales, Ummy Mohamed, Faustino Romero Aguilon, Francois Toure (Warner, Granville) (Entered: 04/10/2020)
6 NOTICE of Appearance by Kristin Fisher Donovan on behalf of Franklin (Rechelle) Alberto Hernandez, Melvin Castro, Miguel Angel

Chavez Ramos, Venacio Escobar Andasol, Sisira Kumara Kumaragamage Don, Ronaldo Lopez Cristales, Ummy Mohamed, Faustino Romero Aguilon, Francois Toure (Donovan, Kristin) (Entered: 04/10/2020)

04/10/2020

Initial Case Assignment to District Judge Liam O'Grady and Magistrate Judge John F. Anderson. (aott, ) (Entered: 04/10/2020)

04/13/2020

7 MOTION for Temporary Restraining Order , MOTION for Preliminary Injunction by Franklin (Rechelle) Alberto Hernandez, Melvin Castro, Miguel Angel Chavez Ramos, Venacio Escobar Andasol, Sisira Kumara Kumaragamage Don, Ronaldo Lopez Cristales, Ummy Mohamed, Faustino Romero Aguilon, Francois Toure. (Attachments: # 1 Proposed Order, # 2 Exhibit Declaration of Amber Qureshi, # 3 Exhibit Declaration of Amina ElGammal, # 4 Exhibit Declaration of Prabha Ranjanee Kumaragame, # 5 Exhibit Declaration of Elizabeth Schmelzel, # 6 Exhibit Declaration of Ana Dionne-Lanier, # 7 Exhibit Declaration of Karla Perez Chacon, # 8 Exhibit Declaration of Lorna Julien, # 9 Exhibit Declaration of Elizabeth Schmelzel, # 10 Exhibit Declaration of Lindsay Wardlaw, # 11 Exhibit Declaration of Faustino Romero Aguilon, # 12 Exhibit Declaration of Ashley I. Warmerling, # 13 Exhibit Declaration of Robert B. Greifinger, MD, # 14 Exhibit Declaration of Jhumka Gupta, ScD, MPH)(Appelbaum, Adina) (Entered: 04/13/2020)

04/13/2020

8 Memorandum in Support re 7 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by Franklin (Rechelle) Alberto Hernandez, Melvin Castro, Miguel Angel Chavez Ramos, Venacio Escobar Andasol, Sisira Kumara Kumaragamage Don, Ronaldo Lopez Cristales, Ummy Mohamed, Faustino Romero Aguilon, Francois Toure. (Appelbaum, Adina) (Entered: 04/13/2020)

04/16/2020

9 MOTION for Hearing re 7 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction , 8 Memorandum in Support, , MOTION to Approve Consent Judgment by Franklin (Rechelle) Alberto Hernandez, Melvin Castro, Miguel Angel Chavez Ramos, Venacio Escobar Andasol, Sisira Kumara Kumaragamage Don, Ronaldo Lopez Cristales, Ummy Mohamed, Faustino Romero Aguilon, Francois Toure. (Attachments: # 1 Proposed Order)(Appelbaum, Adina) (Entered: 04/16/2020)

04/16/2020

10 Notice of Hearing Date set for 4/24/2020 re 7 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction , 9 MOTION for Hearing re 7 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction , 8 Memorandum in Support, MOTION to Approve Consent Judgment , 8 Memorandum in Support, (Appelbaum, Adina) (Entered: 04/16/2020)

04/17/2020

Set Deadlines as to 9 MOTION for Hearing re 7 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction , 8 Memorandum in Support, MOTION to Approve Consent Judgment , 7 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction . Motion Hearing set for 4/24/2020 at 10:00 AM in Alexandria Courtroom 1000 before District Judge Liam O'Grady. (clar, ) (Entered: 04/17/2020)

04/17/2020

Notice of Correction re 4 Motion to appear Pro Hac Vice by Sirine Shebaya and Certification of Local Counsel Adina Appelbaum Filing fee $ 75, receipt number 0422-7154422. . The filing user has been notified that document 4 is an incorrectly saved PDF fillable form and has been removed. Also, an incomplete, illegible, or incorrect document was filed. The filing user was directed to refile the document. (acha, ) (Entered: 04/17/2020)

04/17/2020

11 NOTICE of Appearance by Matthew J. Mezger on behalf of Matthew T. Albence, Russell Hott, U.S. Immigration and Customs Enforcement (Mezger, Matthew) (Entered: 04/17/2020)

04/17/2020 12 NOTICE of Appearance by John Michael Erbach on behalf of Jeffery Crawford (Erbach, John) (Entered: 04/17/2020)

04/17/2020

13 Amended Motion to appear Pro Hac Vice by Sirine Shebaya and Certification of Local Counsel Adina Appelbaum Filing fee $ 75, receipt number 0422-7165771. by Franklin (Rechelle) Alberto Hernandez, Melvin Castro, Miguel Angel Chavez Ramos, Venacio Escobar Andasol, Sisira Kumara Kumaragamage Don, Ronaldo Lopez Cristales, Ummy Mohamed, Faustino Romero Aguilon, Francois Toure. (Appelbaum, Adina) (Entered: 04/17/2020)

04/17/2020 14 NOTICE of Appearance by Kasey Leigh Hoare on behalf of Jeffery Crawford (Hoare, Kasey) (Entered: 04/17/2020)

04/21/2020

15 NOTICE by Franklin (Rechelle) Alberto Hernandez, Melvin Castro, Miguel Angel Chavez Ramos, Venacio Escobar Andasol, Sisira Kumara Kumaragamage Don, Ronaldo Lopez Cristales, Ummy Mohamed, Faustino Romero Aguilon, Francois Toure of Transfer of PetitionerPlaintiff Venacio Escobar Andasol (Appelbaum, Adina) (Entered: 04/21/2020)

04/21/2020

16 NOTICE by Franklin (Rechelle) Alberto Hernandez, Melvin Castro, Miguel Angel Chavez Ramos, Venacio Escobar Andasol, Sisira Kumara Kumaragamage Don, Ronaldo Lopez Cristales, Ummy Mohamed, Faustino Romero Aguilon, Francois Toure re 7 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction , 1 Petition for Writ of Habeas Corpus (2241), of Dismissal of Petitioners-Plaintiffs

Miguel Angel Chavez Ramos and Ronaldo Lopez Cristales (Appelbaum, Adina) (Entered: 04/21/2020)

04/21/2020

17 Memorandum in Opposition re 7 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by Jeffery Crawford. (Attachments: # 1 Crawford Declaration, # 2 Moore Declaration)(Erbach, John) (Entered: 04/21/2020)

04/21/2020

18 ORDER granting 3 Motion for Pro hac vice for Amber Qureshi. Signed by District Judge Liam O'Grady on 4/21/2020. (acha, ) (Entered: 04/22/2020)

04/21/2020 19 ORDER granting 13 Motion for Pro hac vice for Sirine Shebaya. Signed by District Judge Liam O'Grady on 4/21/2020. (acha, ) (Entered: 04/22/2020)

04/21/2020

20 So Ordered re 16 NOTICE, filed by Miguel Angel Chavez Ramos, Melvin Castro, Sisira Kumara Kumaragamage Don, Francois Toure, Ronaldo Lopez Cristales, Venacio Escobar Andasol, Franklin (Rechelle) Alberto Hernandez, Faustino Romero Aguilon, Ummy Mohamed, Miguel Angel Chavez Ramos and Ronaldo Lopez Cristales terminated. Signed by District Judge Liam O'Grady on 4/21/2020. (See order for further details). (acha, ) (Entered: 04/22/2020)

04/22/2020

21 Memorandum in Opposition re 7 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by Matthew T. Albence, Russell Hott, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Exhibit REX 1, # 2 Exhibit REX 2, # 3 Exhibit REX 3, # 4 Exhibit REX 4, # 5 Exhibit REX 5, # 6 Exhibit REX 6, # 7 Exhibit REX 7)(Mezger, Matthew) (Entered: 04/22/2020)

04/23/2020

Per LO chambers motions set for 4/24/2020 will be heard telephonically (clar, ) (Entered: 04/23/2020)

04/23/2020

22 REPLY to Response to Motion re 7 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by Franklin (Rechelle) Alberto Hernandez, Melvin Castro, Miguel Angel Chavez Ramos, Venacio Escobar Andasol, Sisira Kumara Kumaragamage Don, Ronaldo Lopez Cristales, Ummy Mohamed, Faustino Romero Aguilon, Francois Toure. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit)(Appelbaum, Adina) (Entered: 04/23/2020)

04/23/2020

23 NOTICE of Appearance by Simon Yehuda Sandoval-Moshenberg on behalf of Franklin (Rechelle) Alberto Hernandez, Melvin Castro, Miguel Angel Chavez Ramos, Venacio Escobar Andasol, Sisira Kumara Kumaragamage Don, Ronaldo Lopez Cristales, Ummy Mohamed, Faustino Romero Aguilon, Francois Toure (Sandoval-Moshenberg, Simon) (Entered: 04/23/2020)

04/24/2020

24 NOTICE by Franklin (Rechelle) Alberto Hernandez, Melvin Castro, Venacio Escobar Andasol, Sisira Kumara Kumaragamage Don, Ummy Mohamed, Faustino Romero Aguilon, Francois Toure of Supplemental Authority (Attachments: # 1 Exhibit 1)(Donovan, Kristin) (Entered: 04/24/2020)

04/24/2020

25 NOTICE of Appearance by Dennis Carl Barghaan, Jr on behalf of Matthew T. Albence, Russell Hott, U.S. Immigration and Customs Enforcement (Barghaan, Dennis) (Entered: 04/24/2020)

04/24/2020

26 Minute Entry for proceedings held before District Judge Liam O'Grady:Motion Hearing held on 4/24/2020 re 7 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by Miguel Angel Chavez Ramos, Melvin Castro, Sisira Kumara Kumaragamage Don, Francois Toure, Ronaldo Lopez Cristales, Venacio Escobar Andasol, Franklin (Rechelle) Alberto Hernandez, Faustino Romero Aguilon, Ummy Mohamed, 9 MOTION for Hearing re 7 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction , 8 Memorandum in Support, MOTION to Approve Consent Judgment filed by Miguel Angel Chavez Ramos, Melvin Castro, Sisira Kumara Kumaragamage Don, Francois Toure, Ronaldo Lopez Cristales, Franklin (Rechelle) Alberto Hernandez, Venacio Escobar Andasol, Faustino Romero Aguilon, Ummy Mohamed. Counsel enter their appearances and present arguments. Court takes matters under advisement. (Court Reporter S. Wallace.)(awac, ) (Entered: 04/24/2020)

04/27/2020

27 NOTICE by Franklin (Rechelle) Alberto Hernandez, Melvin Castro, Miguel Angel Chavez Ramos, Venacio Escobar Andasol, Sisira Kumara Kumaragamage Don, Ronaldo Lopez Cristales, Ummy Mohamed, Faustino Romero Aguilon, Francois Toure re 7 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction , 22 Reply to Response to Motion,, 26 Motion Hearing,,,, 1 Petition for Writ of Habeas Corpus (2241), 8 Memorandum in Support, of Supplemental Evidence (Attachments: # 1 Exhibit Modeling COVID-19 and impacts on U.S. Immigration and Enforcement (ICE) detention facilities, 2020)(Appelbaum, Adina) (Entered: 04/27/2020)

04/27/2020

28 NOTICE by Franklin (Rechelle) Alberto Hernandez, Melvin Castro, Miguel Angel Chavez Ramos, Venacio Escobar Andasol, Sisira Kumara Kumaragamage Don, Ronaldo Lopez Cristales, Ummy Mohamed, Faustino Romero Aguilon, Francois Toure re 7 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction , 1 Petition for Writ of Habeas Corpus (2241), of Dismissal of Petitioner Franklin (Rechelle) Alberto Hernandez (Appelbaum, Adina) (Entered: 04/27/2020)

04/27/2020

29 TRANSCRIPT of proceedings held on 4-24-20, before Judge Liam O'Grady, Court Reporter/Transcriber Scott Wallace, Telephone number 703. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have thirty(30) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vaed.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the court reporter/transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 5/27/2020. Redacted Transcript Deadline set for 6/29/2020. Release of Transcript Restriction set for 7/27/2020.(wallace, scott) (Entered: 04/27/2020)

04/27/2020

30 Response to 27 NOTICE,, filed by Matthew T. Albence, Russell Hott, U.S. Immigration and Customs Enforcement. (Mezger, Matthew) (Entered: 04/27/2020)

04/28/2020 31 Response to 27 NOTICE,, filed by Jeffery Crawford. (Erbach, John) (Entered: 04/28/2020)

04/28/2020

32 So Ordered re 28 NOTICE of Dismissal filed by Miguel Angel Chavez Ramos, Melvin Castro, Sisira Kumara Kumaragamage Don, Francois Toure, Ronaldo Lopez Cristales, Venacio Escobar Andasol, Franklin (Rechelle) Alberto Hernandez, Faustino Romero Aguilon, Ummy Mohamed. Signed by District Judge Liam O'Grady on 4/28/2020. (See order for further details). (acha, ) (Entered: 04/28/2020)

04/29/2020

33 MEMORANDUM OPINION AND ORDER denying 7 Motion for TRO; denying 7 Motion for Preliminary Injunction. Signed by District Judge Liam O'Grady on 4/29/2020. (awac, ) (Entered: 04/29/2020)

05/08/2020

34 NOTICE by Franklin (Rechelle) Alberto Hernandez, Melvin Castro, Miguel Angel Chavez Ramos, Venacio Escobar Andasol, Sisira Kumara Kumaragamage Don, Ronaldo Lopez Cristales, Ummy Mohamed, Faustino Romero Aguilon, Francois Toure re 33 Order on Motion for TRO, Order on Motion for Preliminary Injunction, 1 Petition for Writ of

Habeas Corpus (2241), 8 Memorandum in Support, of Dismissal of Petitioner Faustino Romero Aguilon (Appelbaum, Adina) (Entered: 05/08/2020)

05/08/2020

35 NOTICE OF INTERLOCUTORY APPEAL as to 33 Order on Motion for TRO, Order on Motion for Preliminary Injunction by Franklin (Rechelle) Alberto Hernandez, Melvin Castro, Miguel Angel Chavez Ramos, Venacio Escobar Andasol, Sisira Kumara Kumaragamage Don, Ronaldo Lopez Cristales, Ummy Mohamed, Faustino Romero Aguilon, Francois Toure. Filing fee $505, receipt number 0422-7197246. (Appelbaum, Adina) (Entered: 05/08/2020)

05/11/2020

36 Transmission of Notice of Appeal to US Court of Appeals re 35 Notice of Interlocutory Appeal, (All case opening forms, plus the transcript guidelines, may be obtained from the Fourth Circuit's website at www.ca4.uscourts.gov) (acha, ) (Entered: 05/11/2020)

05/12/2020

37 So Ordered re 34 NOTICE of Dismissal, filed by Miguel Angel Chavez Ramos, Melvin Castro, Sisira Kumara Kumaragamage Don, Francois Toure, Ronaldo Lopez Cristales, Venacio Escobar Andasol, Franklin (Rechelle) Alberto Hernandez, Faustino Romero Aguilon, Ummy Mohamed. Signed by District Judge Liam O'Grady on 5/12/2020. (See order for further details). (acha, ) (Entered: 05/12/2020)

05/13/2020

38 USCA Case Number 20-6695 4th Circuit, A. Walker, Case Manager, for 35 Notice of Interlocutory Appeal, filed by Miguel Angel Chavez Ramos, Melvin Castro, Sisira Kumara Kumaragamage Don, Francois Toure, Ronaldo Lopez Cristales, Venacio Escobar Andasol, Franklin (Rechelle) Alberto Hernandez, Faustino Romero Aguilon, Ummy Mohamed. (acha, ) (Entered: 05/13/2020)

07/22/2020

39 NOTICE by Franklin (Rechelle) Alberto Hernandez, Melvin Castro, Miguel Angel Chavez Ramos, Venacio Escobar Andasol, Sisira Kumara Kumaragamage Don, Ronaldo Lopez Cristales, Ummy Mohamed, Faustino Romero Aguilon, Francois Toure re 1 Petition for Writ of Habeas Corpus (2241), 8 Memorandum in Support, of Dismissal of Petitioners Melvin Castro and Venacio Escobar Andasol (Appelbaum, Adina) (Entered: 07/22/2020)

07/24/2020

40 So Ordered re 34 NOTICE. This matter comes before the Court on Plaintiff's Notice of Dismissal. 34 . Pursuant to Fed. R. Civ. P. 41(a)(l)(A)(i), Plaintiff-Petitioners Melvin Castro and Venacio Escobar Andasol are hereby DISMISSED. Signed by District Judge Liam O'Grady on 07/24/2020. (dvanm, ) (Entered: 07/27/2020)

10/06/2020 41 ORDER of USCA as to 35 Notice of Interlocutory Appeal, filed by Miguel Angel Chavez Ramos, Melvin Castro, Sisira Kumara

Kumaragamage Don, Francois Toure, Ronaldo Lopez Cristales, Venacio Escobar Andasol, Franklin (Rechelle) Alberto Hernandez, Faustino Romero Aguilon, Ummy Mohamed. Upon consideration of the motion to dismiss this appeal pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure, and there appearing no opposition, the court grants the motion. Entered at the direction of Judge Wilkinson with the concurrence of Judge Motz and Judge Agee (dvanm, ) (Entered: 10/06/2020)

10/06/2020

42 USCA Mandate re 35 Notice of Interlocutory Appeal. This court's order dismissing this appeal pursuant to Local Rule 42(b) takes effect today.This constitutes the formal mandate of this court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure. (dvanm, ) (Entered: 10/06/2020)

10/08/2020

43 NOTICE of Voluntary Dismissal by Franklin (Rechelle) Alberto Hernandez, Melvin Castro, Miguel Angel Chavez Ramos, Venacio Escobar Andasol, Sisira Kumara Kumaragamage Don, Ronaldo Lopez Cristales, Ummy Mohamed, Faustino Romero Aguilon, Francois Toure (Appelbaum, Adina) (Entered: 10/08/2020)

10/14/2020

44 So Ordered re 43 Notice of Voluntary Dismissal, filed by Miguel Angel Chavez Ramos, Melvin Castro, Sisira Kumara Kumaragamage Don, Francois Toure, Ronaldo Lopez Cristales, Venacio Escobar Andasol, Franklin (Rechelle) Alberto Hernandez, Faustino Romero Aguilon, Ummy Mohamed. Signed by District Judge Liam O'Grady on 10/14/2020. (dvanm, ) (Entered: 10/14/2020)

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1:20-cv00395-LOJFA
1.10

 
 Case 1:20-cv-00395 Document 1 Filed 04/09/20 Page 1 of 47 PageID# 1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

FRANCOIS TOURE; SISIRA KUMARA KUMARAGAMAGE DON; RONALDO LOPEZ CRISTALES; VENACIO ESCOBAR ANDASOL; FRANKLIN (RECHELLE) ALBERTO HERNANDEZ; MIGUEL ANGEL CHAVEZ RAMOS; MELVIN CASTRO; UMMY MOHAMED; and FAUSTINO ROMERO AGUILON,
Petitioners-Plaintiffs,
v.
RUSSELL HOTT, in his official capacity as Washington Field Office Director, of Immigration and Customs Enforcement; JEFFERY CRAWFORD, in his official capacity as Warden, Farmville Detention Center, Immigration Centers of America, Farmville; COLONEL PAUL PERRY, in his official capacity as Superintendent, Caroline Detention Facility; 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. IMMIGRATION AND CUSTOMS ENFORCEMENT.
Respondents-Defendants.

PETITION FOR A WRIT OF HABEAS CORPUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
Civil Action No. 1:20-cv-395

Adina Appelbaum, Virginia Bar No. 88974 adina@caircoalition.org CAPITAL AREA IMMIGRANTS’ RIGHTS COALITION 1612 K Street NW Suite 204 Washington, DC 20006 (202) 899-1412

Sirine Shebaya* sirine@nipnlg.org Amber Qureshi* amber@nipnlg.org NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Ave NW, Suite 200 Washington, DC 20007 (202) 656-4788

Case 1:20-cv-00395 Document 1 Filed 04/09/20 Page 2 of 47 PageID# 2
Kristin Donovan, Va. Bar No. 92207 kristin@justice4all.org Granville Warner, Va. Bar. No. 24957 cwarner@justice4all.org LEGAL AID JUSTICE CENTER 6066 Leesburg Pike, Suite 520 Falls Church, VA 22041 (703) 778-3450
Attorneys for Petitioners-Plaintiffs
* pro hac vice applications forthcoming

Case 1:20-cv-00395 Document 1 Filed 04/09/20 Page 3 of 47 PageID# 3
PETITION FOR A WRIT OF HABEAS CORPUS AND COMPLAINT FOR INJUNCTIVE RELIEF INTRODUCTION
1. This case presents a request for immediate relief on behalf of nine Petitioners-Plaintiffs (“Plaintiffs”), who are highly vulnerable to serious injury and death if they contract COVID-19, a lethal disease that is sweeping the globe. RespondentDefendants (“Defendants”) are holding Plaintiffs in civil immigration detention in detention facilities in Virginia. The coronavirus feeds on precisely the unsafe, congregate conditions in which Plaintiffs are being held, putting Plaintiffs at imminent risk of contracting the lethal COVID-19 disease.
2. The COVID-19 global pandemic, caused by the novel coronavirus, has been characterized as the worst the world has seen since 1918. States and countries around the world—including the State of Virginia—have declared a State of Emergency and have shut down nonessential businesses, restricted public gatherings, and have imposed “stay-athome” orders in an attempt to control the spread of the disease. To date, over 1.3 million people worldwide have been diagnosed with COVID-19, with over 360,000 of them inside the United States.1 Many more are likely infected, especially in the United States where testing for the virus has been extremely limited. Nearly 80,000 individuals worldwide have died as a result of COVID-19, including more than 10,000 in the United States.2
1 Coronavirus disease 2019 (COVID-19) Situation Report – 79, 1, 6, 9, World Health Organization (Apr. 8, 2020), available at https://www.who.int/docs/default-source/coronaviruse/situationreports/20200408-sitrep-79-covid-19.pdf?sfvrsn=4796b143_6.
2 Id.
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3. Virginia has seen a significant COVID-19 outbreak. The Governor has declared a State of Emergency, issued a stay-at-home order, and put in place widespread social distancing measures, including shutting down nonessential businesses and all public gatherings.3 As of the filing date of this case, there are over 3,600 confirmed cases and 75 deaths in the state, and the numbers are rising exponentially.4
4. 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 vulnerable individuals is social distancing and improved hygiene. Such distancing and hygiene measures are impossible to achieve in crowded detention centers. For this reason, more than 3,000 medical health professionals have urgently requested that Immigration and Customs Enforcement (“ICE”) immediately release those detained in their custody, and two doctors who are medical experts for the Department of Homeland Security (“DHS”) sent a warning to the agency in February that keeping people detained poses “an imminent risk to the health and safety of immigration detainees” and to the general public.5
3 Commonwealth of Virginia Office of the Governor, Executive Order No. Fifty-Five (2020), Temporary Stay At Home Order Due to Novel Coronavirus (COVID-19) (Mar. 30, 2020), available at https://www.governor.virginia.gov/media/governorvirginiagov/executive-actions/EO-55-Temporary-Stayat-Home-Order-Due-to-Novel-Coronavirus-(COVID-19).pdf.
4 Virginia Department of Health, COVID-19 Cases in Virginia (accessed Apr. 8, 2020), available at http://www.vdh.virginia.gov/coronavirus/.
5 Letter from Dr. Scott Allen and Dr. Josiah Rich, Medical Experts for DHS, to House Comm. on Homeland Sec. (Mar. 19, 2020), available at https://www.documentcloud.org/documents/6816336-032020Letter-From-Drs-Allen-Rich-to-Congress-Re.html#document/p4/a557238; Catherine E. Shoichet, Doctors Warn of 'Tinderbox Scenario' if Coronavirus Spreads in ICE Detention, CNN (Mar. 20, 2020), available at https://www.cnn.com/2020/03/20/health/doctors-ice-detention-coronavirus/index.html.
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5. Confirmed cases have begun to appear in several detention centers across the country,6 and it is likely that many more detention centers have unconfirmed COVID19 cases.7 It is impossible for people confined in prisons, jails, and detention centers to engage in the necessary social distancing and hygiene because 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 at those facilities.8 Even with the measures ICE has purported to take to prevent the spread of COVID-19 in its facilities, immigration detention centers are a hotbed for spread of the virus.
6. Both Farmville Detention Facility and Caroline Detention Facility remain woefully unprepared and incapable of taking necessary precautions to protect people in their custody against this life-threatening illness. Yet, despite widespread warnings from public health experts, on any given day Defendants continue to hold in detention nearly a thousand individuals in Virginia and tens of thousands of individuals nationwide, including those at severe risk of serious illness or death if they were to contract COVID-19, despite the ready availability of community-based alternatives to detention such as release on conditions or on bond.
6 U.S. Immigration and Customs Enforcement, ICE Guidance on COVID-19 (accessed Apr. 8, 2020), https://www.ice.gov/coronavirus.
7 Coreas v. Bounds, 8:20-cv-00780-TDC, Dkt. No. 56 (D. Md. Apr. 3, 2020) (noting that both Maryland ICE Detention Facilities had not tested anyone for COVID-19 and did not have any test kits despite detaining individuals who had exhibited symptoms).
8 Keri Blakinger and Beth Schwartzapfel, When Purell is Contraband, How Do You Contain Coronavirus?, the Marshall Project (Mar. 6, 2020), available at https://www.themarshallproject.org/2020/03/06/when-purell-is-contraband-how-do-you-containcoronavirus.
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7. Plaintiffs fear for their lives because they are especially vulnerable to serious illness or death if infected by COVID-19 due to their medical conditions or their age. And for good reason: they are trapped in facilities which can only be described as breeding grounds for disease. Despite warnings and pleas for release from public health experts and advocates, Defendants have chosen to continue to confine Plaintiffs in close proximity, without sufficient soap and/or hand sanitizer; to refuse to administer adequate levels of COVID-19 testing or screening; to refuse to implement cleaning and protection procedures adequate to combat COVID-19; and to resist releasing even the most medically vulnerable individuals. The conditions and treatment at these facilities 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.
8. Under these circumstances, release is the only meaningful way to mitigate the spread of the virus among those who are detained. For individuals who are at high risk for serious illness or death from COVID-19, protection from the virus could prove to be a matter of life or death. Recognizing the urgency of this situation, federal courts across the country have ordered releases of detained and incarcerated individuals, including those detained in ICE detention facilities. See paragraphs 141-42, infra, collecting recent decisions.
9. As set forth below, the danger posed by Plaintiffs’ detention during the COVID-19 pandemic is “so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk” and violates their constitutional right to safety in government custody. Helling v. McKinney, 509 U.S. 25, 36 (1993). Their continued detention also violates Section 504 of the Rehabilitation Act, 29 U.S.C. § 701 et seq.,
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because Defendants are failing to provide appropriate accommodations for Plaintiffs’ disabilities.
10. Without this Court’s intervention, Plaintiffs continue to be at imminent risk of severe illness or death.
JURISDICTION AND VENUE 11. This action arises under the Due Process Clauses of the Fifth Amendment to the United States Constitution and the Rehabilitation Act, 29 U.S.C. § 701 et seq. 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 Eastern District of Virginia pursuant to 28 U.S.C. § 2241(d) and pursuant to 28 U.S.C. § 1391(b) and (e).
PARTIES 14. Petitioner-Plaintiff Francois Toure (“Mr. Toure”) is a native of Guinea, who is currently detained by ICE at the Farmville Detention Center, controlled and operated by the company Immigration Center of America in Farmville, Virginia (“ICA-Farmville”). He suffers from asthma, borderline diabetes, and major depressive disorder. He is therefore at high risk of severe illness or death if he contracts COVID-19. If released, he will reside at his brother’s apartment in Columbus, Ohio, where he can socially isolate with his U.S. citizen fiancée Martha and two U.S. citizen children. Mr. Toure’s fiancée Martha will pick him up and drive him to his brother’s apartment in Ohio.
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15. Petitioner-Plaintiff Sisira Kumara Kumaragamage Don (“Mr. Kumaragamage Don”) is a 64-year-old citizen of Australia who is current detained at Farmville Detention Center. Mr. Kumaragamage Don suffers from diabetes and hypertension. He has a weak immune system and gets sick easily, often with serious symptoms. Mr. Kumaragamage Don is critically vulnerable to the coronavirus and to serious illness or death from COVID-19 because of his medical conditions and age. If released, he will reside with his wife Prabha Ranjanee Kumaragamage at their home in Washington, D.C., where he can socially isolate.
16. Petitioner-Plaintiff Venacio Escobar Andasol (“Mr. Escobar Andasol”) is a 65-year-old citizen of El Salvador who is currently detained at the Caroline Detention Facility. Due to his age, he is at high risk of severe illness or death if he contracts COVID19. If released, he will reside at his home in Reston, Virginia, where he has lived with his longtime friend Victor Lopez for over 20 years and he can socially isolate.
17. Petitioner-Plaintiff Franklin (“Rechelle”) Alberto Hernandez is a transgender woman from Honduras who is currently detained at the Caroline Detention Facility. Rechelle suffers from asthma, and takes five prescription medications daily, including Albuterol (an inhalation solution to treat asthma), Hydroyzine Pamoate (an antihistamine to assist with sleep), Estradiol (an estrogen derivative hormone), Spironolactone (a diuretic to treat hypertension and edema), and Aspirin (to reduce pain and inflammation). Rechelle has suffered from asthma her entire life. Rechelle is critically vulnerable to the coronavirus and to serious illness or death from COVID-19 because of her asthma. If released, she will reside with her partner Alvaro Ramos Marquez at their home in Herndon, Virginia, where she can socially isolate.
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18. Petitioner-Plaintiff Ronaldo Lopez Cristales (“Mr. Lopez Cristales”) is a native of Guatemala who is currently detained by ICE at the Caroline Detention Facility in Bowling Green, Virginia. He suffers from severe Type II diabetes and high blood pressure. He is therefore at high risk of severe illness or death if he contracts COVID-19. If released, he will reside with his wife and family members in Winchester, Virginia. If released, he will return to live with his wife and cousins at their home in Winchester, Virginia, where he can socially isolate.
19. Petitioner-Plaintiff Miguel Angel Chavez Ramos (“Mr. Chavez Ramos”) is a citizen of El Salvador who is currently detained at the Caroline Detention Facility. He suffers from severe Type II diabetes, for which he had to be hospitalized in November 2019. Mr. Chavez Ramos receives daily insulin injections and pills, and still often feels ill. Mr. Chavez Ramos is critically vulnerable to the coronavirus and to serious illness or death from COVID-19 because of his diabetes. If released, he would return to live with his wife and three children at their home in Washington, D.C., where he can socially isolate.
20. Petitioner-Plaintiff Melvin Castro (“Mr. Castro”) is a citizen of El Salvador who is currently detained at the Caroline Detention Facility. He suffers from asthma, PostTraumatic Stress Disorder (PTSD), and depression. Mr. Castro uses an inhaler regularly for his asthma and often feels very short of breath. Mr. Chavez Ramos is critically vulnerable to the coronavirus and to serious illness or death from COVID-19 because of his asthma and mental health conditions. If released, he would return to live with his partner and two stepchildren at their home in Washington, D.C., where he can socially isolate.
21. Petitioner-Plaintiff Ummy Ismail Mohamed (“Ms. Mohamed”) is a citizen of Tanzania who is currently detained at the Caroline Detention Facility. She suffers from
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asthma, PTSD, severe depression disorder, and moderate anxiety order. Her asthma has worsened in detention; she now has difficulty breathing on a daily basis. She has been experiencing flu-like symptoms every day for the past two weeks including feeling feverish all the time, body sweats, and exhaustion. Ms. Mohamed is critically vulnerable to the coronavirus and to serious illness or death from COVID-19 because of her asthma. If released, she would return to live at with her close family friend in Washington, D.C., where she can socially isolate.
22. Petitioner-Plaintiff Faustino Romero Aguilon (“Mr. Aguilon”) is a citizen of Guatemala who is currently detained at the Caroline Detention Facility. He suffers from Type II diabetes and hypertension. Mr. Aguilon is critically vulnerable to the coronavirus and to serious illness or death from COVID-19 because of his medical conditions. If released, he would return to the apartment where he has lived with his brother for many years in Arlington, VA, where he can socially isolate.
23. Respondent-Defendant Jeffery Crawford is the Warden of the Farmville Detention Center, which is owned and operated by ICA-Farmville. As Warden, he is responsible for overseeing the administration and management of the Farmville Detention Center, where Plaintiffs Mr. Toure and Mr. Kumaragamage Don are detained. Defendant Crawford is a legal custodian of Plaintiffs. He is sued in his official capacity.
24. Respondent-Defendant Colonel Paul Perry is the Superintendent of the Caroline Detention Facility. As Superintendent, he is responsible for overseeing the administration and management of the Caroline Detention Facility, where Plaintiffs Mr. Lopez Cristales, Mr. Escobar Andasol, Ms. Rechelle Alberto Hernandez, Mr. Chavez
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Ramos, Mr. Castro, Mr. Aguilon, and Ms. Mohamed are detained. Defendant Perry is a legal custodian of Plaintiffs. He is sued in his official capacity.
25. Respondent-Defendant Russell Hott is the ICE Washington Field Office Director. The Washington Field Office is responsible for carrying out ICE’s immigration detention operations at all Virginia detention centers that house immigration detainees, including Farmville Detention Center and Caroline Detention Facility. Defendant Hott is a legal custodian of plaintiffs. He is sued in his official capacity.
26. Respondent-Defendant Matthew T. Albence is the Deputy Director and Senior Official Performing the Duties of the Director of ICE. Defendant Albence is responsible for ICE’s policies, practices, and procedures, including those relating to the detention of immigrants. Defendant Albence is a legal custodian of Plaintiffs. He is sued in his official capacity.
27. Respondent-Defendant ICE is a federal law enforcement agency within DHS. ICE is responsible for the criminal and civil enforcement of immigration laws, including the detention and removal of immigrants. Enforcement and Removal Operations (“ERO”), a division of ICE, manages and oversees the immigration detention system. Defendant ICE is a legal custodian of Plaintiffs.
FACTS A. COVID-19 Poses Grave Risk of Harm, Including Serious Illness or Death, to
Older Individuals and Those with Certain Underlying Medical Conditions. 28. COVID-19 is a coronavirus that has reached pandemic status. As of April 8, 2020, over 1.3 million individuals worldwide have confirmed diagnoses, including more
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than 360,000, in the United States.9 Nearly 80,000 individuals worldwide have died as a result of COVID-19, including at least 10,000 in the United States.10 Those numbers are growing exponentially, with more than 73,000 new cases worldwide in the past day alone.11
29. Nationally, CDC projections indicate that over 200 million individuals in the United States could be infected with COVID-19 over the course of the epidemic without effective public health intervention, with as many as 1.7 million deaths in the worst projections.12
30. 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, and in some cases when one is within 27 feet.13 Its symptoms include fever, cough, and shortness of breath.14
31. People can also spread COVID-19 but be asymptomatic,15 making testing or seclusion of only those who are exhibiting symptoms an ineffective solution.
9 Coronavirus disease 2019 (COVID-19) Situation Report – 79, 1, 6, 9, World Health Organization (Apr. 8, 2020), available at https://www.who.int/docs/default-source/coronaviruse/situationreports/20200408-sitrep-79-covid-19.pdf?sfvrsn=4796b143_6.
10 Id. 11 Id. 12 James Glanz, et al., Coronavirus Could Overwhelm U.S. without Urgent Action, Estimates Say, New York Times (Mar. 20, 2020), available at https://www.nytimes.com/interactive/2020/03/20/us/coronavirusmodel-us-outbreak.html; Sheri Fink, Worst-Case Estimates for U.S. Coronavirus Deaths, N.Y. Times, Mar. 13, 2020, available at https://www.nytimes.com/2020/03/13/us/coronavirus-deaths-estimate.html. 13 Bourouiba, Lydia, Journal of the American Medical Association, Turbulent Gas Clouds and Respiratory Pathogen Emissions: Potential Implications for Reducing Transmission of COVID-19 (Mar. 26, 2020), availalble at https://jamanetwork.com/journals/jama/fullarticle/2763852?appId=scweb 14 Centers for Disease Control & Prevention, Coronavirus Disease 2019 (COVID-19), available at https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html. 15 A study in Iceland, where COVID-19 testing is widespread, found that about half those who tested positive have no symptoms. Jason Gale, Coronavirus Cases Without Symptoms Spur Call for Wider Tests,
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32. COVID-19 can result in respiratory failure, kidney failure, and death. Infected individuals who do not die from the disease can face serious damage to the lungs, heart, liver, or other organs, resulting in prolonged recovery periods, including extensive rehabilitation from neurological damage and loss of respiratory capacity.
33. COVID-19 can also severely damage lung tissue, affect cardiac functions, and cause widespread damage to other organs. These complications can manifest at an alarming pace. Patients can show the first symptoms of infection in as little as two days after exposure, and their condition can seriously deteriorate in as little as five days or sooner.
34. Older individuals and those with certain medical conditions face greater chances of serious illness or death from COVID-19. Certain underlying medical conditions increase the risk of serious COVID-19 disease for individuals of any age, including lung disease, chronic liver or kidney disease, diabetes, epilepsy, hypertension, compromised immune systems, blood disorders, inherited metabolic disorders, stroke, and pregnancy.
35. Even some younger and healthier individuals who contract COVID-19 may require supportive care. And those who develop serious complications will need advanced support, including highly specialized equipment that is in 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. This level of support is especially difficult to provide to detained individuals.
Bloomberg (Mar. 22, 2020), available at https://www.bloomberg.com/news/articles/2020-03-22/one-thirdof-coronavirus-cases-mayshow-no-symptom-scmp-reports.
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36. The need for care, including intensive care, and the likelihood of death, is much higher from COVID-19 infection than from influenza. According to recent estimates, the fatality of people infected with the coronavirus is about ten times higher than a severe seasonal influenza, even in advanced countries with highly effective health care systems.
37. Patients in high-risk categories who do not die from COVID-19 should expect a prolonged recovery, including the need for extensive rehabilitation.
38. There is no vaccine against COVID-19, nor is there any known medication to prevent or cure infection from the virus.
39. 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.
40. These practices are not possible in detention facilities, where large numbers of people are housed in close quarters in congregate settings, with minimal access to sinks, showers, toilets, water, personal hygiene and facility cleaning supplies.
B. Plaintiffs Are Particularly Vulnerable to Serious Illness or Death If Infected by COVID-19 Due to Their Underlying Health Conditions. 41. Older individuals and those with certain medical conditions face
dramatically higher changes of serious illness or death from COVID-19. Individuals detained in immigration detention centers, like Plaintiffs, are also more susceptible to experiencing complications from infectious diseases than the population at large. This is especially true for individuals with underlying conditions such as pregnancy, diabetes, lung disease, kidney disease, or other illness.
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42. Infectious disease outbreaks such as COVID-19 can also exacerbate existing mental health conditions and can contribute to the development of new mental health conditions.
43. Plaintiffs in this case are individuals who are particularly vulnerable to serious illness or death if infected by COVID-19 and who are currently detained at the two Virginia facilities as they await adjudication of their immigration cases.
44. Francois Toure. Mr. Toure is a citizen of Guinea who is currently detained at the Farmville Detention Center. Mr. Toure suffers from asthma, which requires the use of an inhaler; is pre-diabetic; and has a history of hepatitis A. Mr. Toure also has major depressive disorder and has attempted suicide three times in the last three months.
45. As of March 27, 2020, Mr. Toure was feeling sick with symptoms including a cough, headaches, and fatigue. Doctors at the Farmville Detention Center said he was suffering from some kind of virus but did not confirm which virus. His blood test also revealed that his liver was functioning poorly, and doctors are concerned he may have liver disease. He is not aware of having been tested for COVID-19.
46. Mr. Toure is critically vulnerable to the coronavirus and to serious illness or death from COVID-19 because of his physical and mental health conditions.
47. Mr. Toure’s health conditions qualify as a disability under the Rehabilitation Act.
48. Sisira Kumara Kumaragamage Don. Mr. Kumaragamage Don is a 64year-old citizen of Australia who is current detained at Farmville Detention Center. Mr. Kumaragamage Don suffers from diabetes, high blood pressure, and high cholesterol. He has a weak immune system and gets sick easily, often with serious symptoms.
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49. Mr. Kumaragamage Don is critically vulnerable to the coronavirus and to serious illness or death from COVID-19 because of his medical conditions and age.
50. Mr. Kumaragamage Don’s health conditions qualify as a disability under the Rehabilitation Act.
51. Ronaldo Lopez Cristales. Mr. Lopez Cristales is a citizen of Guatemala who is currently detained at the Caroline Detention Facility. He suffers from severe Type II diabetes and high blood pressure. He goes to the clinic at the facility twice a day to receive his prescription medications to treat those conditions.
52. Mr. Lopez Cristales is critically vulnerable to the coronavirus and to serious illness or death from COVID-19 because of his diabetes and high blood pressure.
53. Mr. Lopez Cristales’s diabetes and high blood pressure qualify as disabilities under the Rehabilitation Act.
54. Venacio Escobar Andasol. Mr. Escobar Andasol is a 65-year-old citizen of El Salvador who is currently detained at the Caroline Detention Facility. Due to his age, he is at high risk of severe illness or death if he contracts COVID-19.
55. Franklin (Rechelle) Alberto Hernandez. Rechelle is a transgender woman from Honduras who is currently detained at the Caroline Detention Facility. Rechelle suffers from asthma, and takes five prescription medications daily, including Albuterol (an inhalation solution to treat asthma), Hydroyzine Pamoate (an antihistamine to assist with sleep), Estradiol (an estrogen derivative hormone), Spironolactone (a diuretic to treat hypertension and edema), and Aspirin (to reduce pain and inflammation). Rechelle has suffered from asthma her entire life.
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56. Rechelle is critically vulnerable to the coronavirus and to serious illness or death from COVID-19 because of her asthma.
57. Rechelle’s medical conditions qualify as disabilities under the Rehabilitation Act.
58. Miguel Angel Chavez Ramos. Mr. Chavez Ramos is a citizen of El Salvador who is currently detained at the Caroline Detention Facility. He suffers from severe Type II diabetes, for which he had to be hospitalized in November 2019. Mr. Chavez Ramos receives daily insulin injections and pills, and still often feels ill.
59. Mr. Chavez Ramos is critically vulnerable to the coronavirus and to serious illness or death from COVID-19 because of his diabetes.
60. Mr. Chavez Ramos’s diabetes qualifies as a disability under the Rehabilitation Act.
61. Melvin Castro. Mr. Castro is a citizen of El Salvador who is currently detained at the Caroline Detention Facility. He suffers from asthma, childhood trauma, Posttraumatic Stress Disorder (PTSD), depression, and past drug addiction. Mr. Castro uses an inhaler regularly for his asthma and often feels very short of breath.
62. Mr. Castro is critically vulnerable to the coronavirus and to serious illness or death from COVID-19 because of his asthma and mental health conditions.
63. Mr. Castro’s health conditions qualify as a disability under the Rehabilitation Act.
64. Ummy Ismail Mohamed. Mr. Castro is a citizen of Tanzania who is currently detained at the Caroline Detention Facility. She suffers from asthma.
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65. Ms. Mohamed is critically vulnerable to the coronavirus and to serious illness or death from COVID-19 because of her asthma.
66. Ms. Mohamed’s health condition qualifies as a disability under the Rehabilitation Act.
67. Faustino Romero Aguilon. Mr. Aguilon is a citizen of Guatemala who is currently detained at the Caroline Detention Facility. He suffers from Type II diabetes, high blood pressure, high cholesterol, gastroesophageal reflux disease (GERD), and an abnormality of red blood cells. He takes the following prescribed medications: Metformin (to treat Type 2 diabetes), Glipizide (to treat Type 2 diabetes), Hydrochlorothiazide (to treat high blood pressure), Aspirin (for blood abnormality) Atorvastatin Calcium (to treat high cholesterol), Aluminum-Magnesium-Simethicone (to treat heartburn), and Omeprazole (to treat GERD).
68. Mr. Aguilon is critically vulnerable to the coronavirus and to serious illness or death from COVID-19 because of his medical conditions.
69. Mr. Aguilon’s health conditions qualify as disabilities under the Rehabilitation Act.
C. Detained Immigrants in Virginia Facilities Face an Elevated Risk of Contracting COVID-19. 70. The Farmville Detention Center and Caroline Detention Facility are located
in Virginia, which is experiencing a coronavirus outbreak and has put in place a “stay-athome” order, prohibiting individuals from leaving their home unless the reason for doing so falls under certain exceptions, such as getting food or medical attention.16
16 Commonwealth of Virginia Office of the Governor, Executive Order No. Fifty-Five (2020), Temporary Stay At Home Order Due to Novel Coronavirus (COVID-19) (Mar. 30, 2020), available at
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71. As of April 8, 2020, there were over 3,600 COVID-19 cases in Virginia.17 The number of infected people is rising exponentially. At least 75 people in Virginia have so far died from the disease.18 There is an immediate and impending threat that the coronavirus will spread uncontrollably in the Farmville Detention Center and Caroline Detention Facility.
72. Outbreaks of infectious diseases are extremely common in confined detention centers. Individuals who are imprisoned or detained cannot protect themselves by social distancing as they could in the community. Congregate settings such as jails and prisons allow for rapid spread of infectious diseases that are transmitted person to person, especially those that—like COVID-19—are transmitted by droplets through coughing and sneezing.
73. COVID-19 is spreading quickly in other prisons, jails and immigrant detention centers in the United States. Rikers Island in New York City has seen the number of cases spike from one to nearly 200 in twelve days.19 A federal prison in Oakdale, Louisiana has experienced such a rapid spread of the disease within its walls that it has stopped testing people and are now presuming that anyone showing symptoms inside the
https://www.governor.virginia.gov/media/governorvirginiagov/executive-actions/EO-55-Temporary-Stayat-Home-Order-Due-to-Novel-Coronavirus-(COVID-19).pdf.
17 Virginia Department of Health, COVID-19 Cases in Virginia (accessed Apr. 8, 2020), available at http://www.vdh.virginia.gov/coronavirus/.
18 Id. 19 Miranda Bryant, Coronavirus Spread at Rikers is A ‘Public Health Disaster’, Says Jail’s Top Doctor, The Guardian (Apr. 1, 2020), available at https://www.theguardian.com/us-news/2020/apr/01/rikers-islandjail-coronavirus-public-health-disaster.
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prison is positive of COVID-19.20 The disease has also reached at least two prisons in Virginia.21
74. Although ICE has not reported any confirmed COVID-19 cases in either Virginia facility, both facilities have individuals who are currently showing symptoms of COVID-19. A coronavirus brought into a detention facility can quickly spread among the dense detainee cohort, including individuals, like Plaintiffs, who are at high risk of severe illness or death from COVID-19.
75. Given the shortage of COVID-19 tests in the United States, generally, these detention facilities cannot currently conduct aggressive, widespread testing to identify and track all COVID-19 cases. In at least two Maryland ICE detention facilities, ICE admitted that it did not have any test kits and had not tested anyone in those facilities, despite detaining individuals who had exhibited symptoms of COVID-19.22
76. It is equally impossible for detention facilities to consistently and adequately screen detained individuals and staff for new, asymptomatic infection.
77. In at least sixteen ICE detention facilities outside Virginia, detained individuals or facility employees have contracted COVID-19.23 In the absence of widespread testing, there is no way to be certain that COVID-19 is not already widespread
20 Greg LaRose, Oakdale Federal Prison Stops Testing Inmates With COVID-19 Symptoms, WSDU News (Mar. 31, 2020) available at https://www.wdsu.com/article/oakdale-federal-prison-stops-testing-inmateswith-covid-19-symptoms/31989498 (due to rapid spread of COVID-19 inside Oakdale Federal Correctional Center, officials are presuming anyone who shows symptoms is positive of COVID-19).
21 Kerri O’Brien, Another Inmate At Another State Prison Positive for COVID-19, ABC8 (WRIC TV) News, (Apr. 1, 2020), available at https://www.wric.com/news/virginia-news/new-fears-in-virginia-ascovid-19-is-now-behind-bars/.
22 Coreas v. Bounds, 8:20-cv-00780-TDC, Dkt. No. 56 (D. Md. Apr. 3, 2020). 23 U.S. Immigration and Customs Enforcement, ICE Guidance on COVID-19 (accessed Apr. 8, 2020), https://www.ice.gov/coronavirus.
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in these facilities. Given the rapid spread of COVID-19 throughout the state of Virginia, daily entry of staff and guards from the community, and the continued influx and transfer of new people into detention facilities, it is only a short matter of time before the disease becomes widespread among people detained in Farmville Detention Center and Caroline Detention Facility.
78. According to Dr. Robert B. Greifinger, a physician and an expert in prisons, jails, and detention and other correctional health issues, “ICE has failed to adequately comprehend and respond to the COVID-19 pandemic for those detained in the Farmville Detention Center and Caroline Detention Facility.”
79. The conditions in Farmville Detention Center and Caroline Detention Facility remain woefully inadequate to protect detained people against a life-threatening illness.
i. Farmville Detention Center 80. Conditions in Farmville Detention Center make rapid spread of COVID-19 very likely. Persons detained are housed together in groups, typically 40 to 85 people in each dorm. Because the dormitories house many individuals in close quarters with people sharing bunk beds, maintaining the CDC recommended distance of six feet apart from others is impossible.
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Dorm Room at Farmville Detention Center24 81. There are communal living spaces in the middle of each housing unit, which have essential spaces like areas to use phones and showers.
Communal Telephone Area at Farmville Detention Center25
24 Defense Visual Information Distribution Service, ICE Farmville Detention Center [Image 4 of 12] (Jun. 24, 2010), available at https://www.dvidshub.net/image/526258/ice-farmville-detention-center.
25 Defense Visual Information Distribution Service, ICE Farmville Detention Center [Image 11 of 12] (Jun. 24, 2010), available at https://www.dvidshub.net/image/526268/ice-farmville-detention-center.
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Case 1:20-cv-00395 Document 1 Filed 04/09/20 Page 23 of 47 PageID# 23 82. There are also several shared spaces in Farmville Detention Center,
including sitting areas for meals, hallways, the law library, visitation areas, and medical units.
Sitting Area at Farmville Detention Center26
Library and Reading Area at Farmville Detention Center27
26 Defense Visual Information Distribution Service, ICE Farmville Detention Center [Image 12 of 12] (Jun. 24, 2010), available at https://www.dvidshub.net/image/526269/ice-farmville-detention-center.
27 Defense Visual Information Distribution Service, ICE Farmville Detention Center [Image 10 of 12] (Jun. 24, 2010), available at https://www.dvidshub.net/image/526267/ice-farmville-detention-center.
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83. The hallways are tight, and people in the hallways are constantly in very close proximity to each other. Bathrooms are used by large numbers of people and are not sanitized or disinfected regularly.
84. It is nearly impossible to eliminate all shared spaces in the facility and to ensure that individuals are maintaining adequate social distancing from one another.
85. There is a lack of access to cleaning supplies and protective gear at Farmville Detention Center. Guards are selectively wearing masks at the facility. Detained people are not allowed to wear masks unless they are working. The facility claims that it does not have enough masks to distribute to the detained population. The only thing provided to detained people in the facility is hand sanitizer.
86. Staff arrive and leave on a shift basis, and even asymptomatic staff could carry the infection into the facility. New transfers continue to arrive into the facility and are not adequately screened to ensure that they are not carrying an asymptomatic infection.
87. Farmville Detention Center is also ill-equipped to manage an infectious disease outbreak. It has very limited on-site medical facilities, which include a small number of medical and disciplinary isolation units, which are shared spaces.
88. Last year, Farmville Detention Center had an outbreak of mumps in its facility with at least 24 people infected.28 The facility mismanaged the handling of that outbreak in several respects. Despite mumps being an illness for which there is a vaccine, detained individuals were refused vaccines when they were requested. The entire detention
28 Emma Ockerman, Migrant Detention Centers Are Getting Slammed with Mumps and Chickenpox, Vice News (Jun. 14, 2019), available at https://www.vice.com/en_us/article/mb8k5q/migrant-detentioncenters-are-getting-slammed-with-mumps-and-chicken-pox.
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center was eventually placed under quarantine even though the outbreak was limited to a few dorms.
89. Guards at Farmville Detention Center have stated that there have been five potential cases of COVID-19 in the facility, but they have not received confirmation of test results and it is unclear whether there have been any tests done at all.
90. At least one dorm in the facility is under quarantine.29 Individuals who appear to be symptomatic are not being housed separately from those who are asymptomatic or at risk but who do not have confirmed cases.
91. Plaintiff Mr. Toure has been feeling sick, with symptoms including a cough, headaches, and fatigue. Doctors told him that he had a virus but did not confirm what kind.
ii. Caroline Detention Facility 92. Conditions in the Caroline Detention Facility make rapid spread of COVID19 very likely. Those detained are housed together in groups, with typically four individuals in each cell and many cells in each dormitory. Because the dormitories house many individuals in close quarters, maintaining the CDC recommended distance of six feet apart from others is impossible.
29 Marissa J. Lang, ‘It’s a Time Bomb’: ICE Detainees Seek Release Amid Growing Coronavirus Fears, Washington Post (Apr. 8, 2020), available at https://www.washingtonpost.com/local/ice-coronavirusdetention-centers-release/2020/04/08/f4dcaef8-74ee-11ea-87da-77a8136c1a6d_story.html.
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Cell Housing Four People at Caroline Detention Facility30
Dormitory at Caroline Detention Facility31
30 Defense Visual Information Distribution Service, Caroline Detention Facility [Image 2 of 18] (Aug. 27, 2018), available at https://www.dvidshub.net/image/4695721/caroline-detention-facility.
31 Defense Visual Information Distribution Service, Caroline Detention Facility [Image 4 of 18] (Aug. 27, 2018), available at https://www.dvidshub.net/image/4695726/caroline-detention-facility.
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Case 1:20-cv-00395 Document 1 Filed 04/09/20 Page 27 of 47 PageID# 27 93. There are also several shared spaces in Caroline Detention Facility,
including hallways, the law library, visitation areas, and medical units. Common areas including eating and shower facilities are communal.
Shared Area at Caroline Detention Facility32
Shared Bathroom at Caroline Detention Facility33
32 Defense Visual Information Distribution Service, Caroline Detention Facility [Image 16 of 18] (Aug. 28, 2018), available at https://www.dvidshub.net/image/4695757/caroline-detention-facility.
33 Defense Visual Information Distribution Service, Caroline Detention Facility [Image 5 of 18] (Aug. 27, 2018), available at https://www.dvidshub.net/image/4695727/caroline-detention-facility.
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94. Bathrooms are used by about 70 people and are not sanitized or disinfected regularly or thoroughly. The dorms are not being disinfected or cleaned any differently by the facility.
95. Unless a dorm is placed under quarantine, each dorm goes to the dining area together and eats together during their meal schedule. When a dorm is under quarantine pending COVID-19 test results, detained individuals from other dorms who are working in the kitchen bring the food to the detained people in the quarantined dorm.
96. The medical clinic is accessible to detained individuals from different dorms, so there is frequent contact between individuals from different dorms. Medical facilities are limited to a small number of medical and disciplinary isolation units, which are shared spaces.
97. Given the layout of Caroline Detention Facility, it is impossible to eliminate all shared spaces and nearly impossible to ensure that individuals are maintaining adequate social distancing from one another.
98. There is a lack of access to cleaning supplies and protective gear at Caroline Detention Facility. Detained individuals are not provided hand sanitizer or protective gear. Facility staff and personnel, including kitchen staff, medical staff, and guards, are not wearing protective equipment, such as gloves or masks.
99. Staff arrive and leave on a shift basis, and even asymptomatic staff could carry the infection into the facility. New transfers continue to arrive into the facility and are not adequately screened and tested to ensure that they are not carrying an asymptomatic infection.
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100. An individual at Caroline Detention Facility was sent to the hospital to be tested for COVID-19. He was also placed in isolation. The dorm was placed on quarantine. People in that dorm were told to remain at least six feet apart, which was impossible to do, and were not provided with any cleaning supplies besides soap. They were not provided with any protective gear such as gloves or masks.
101. Putting infected individuals in solitary confinement is an ineffective way to prevent transmission of the disease because such spaces are not negative pressure rooms. Air continues to flow outwards from those rooms to the rest of the facility. This makes containing the illness and caring for those who have become infected virtually impossible.
102. Several people in the dorm reported having headaches, and had their temperatures taken, but no one besides the person sent to the hospital has been tested for COVID-19. Individuals who appear to be symptomatic are not being housed separately from those who are asymptomatic or at risk but who do not have confirmed cases.
103. The facility has not provided any information to those detained or the public about how many people have been tested and what the results of those tests are. The facility is also not providing any information about COVID-19 to those who are detained there.
104. On March 26, 2020, detained individuals at Caroline Detention Center reported that in at least one dorm, the facility was out of soap and shampoo, and had not provided more to people in that dorm. As mentioned above, people are also not being provided hand sanitizer.
105. Plaintiff Ms. Mohamed has been experiencing flu-like symptoms every day for the past two weeks including feeling feverish all the time, body sweats, and exhaustion.
D. ICE’s Response to COVID-19 Is Insufficient to Prevent the Spread of This Life-Threatening Disease.
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106. COVID-19 is almost certain to reach the Farmville Detention Center and Caroline Detention Facility imminently if it has not already. Individuals like Plaintiffs face inherent challenges to protect themselves from COVID-19 infection because they live, sleep, and use the bathroom in close proximity with others, and because “[b]ehind bars, some of the most basic disease prevention measures are against the rules or simply impossible.”34
107. Similarly, it will be impossible for people, including Plaintiffs, to take steps to protect themselves from infection, such as washing or sanitizing their hands regularly or distancing themselves from other individuals.
108. Given the general lack of available testing, it is equally impossible for detention facilities to consistently and adequately screen detainees and staff for new, asymptomatic infection. The Virginia detention centers also do not have negative pressure isolation units, meaning that they do not have any capacity to truly isolate spread of the disease through airborne respiratory droplets.
109. ICE’s official guidance on COVID-19 does not state specifically under what conditions individuals detained would be tested or how many people ICE has tested so far.35
110. The only measure ICE has committed to taking to mitigate any spread in its facilities is to segregate those who meet CDC criteria for epidemiologic risk of exposure
34 Keri Blakinger and Beth Schwartzapfel, When Purell is Contraband, How Do You Contain Coronavirus?, the Marshall Project (Mar. 6, 2020), available at https://www.themarshallproject.org/2020/03/06/when-purell-is-contraband-how-do-you-containcoronavirus (describing, for example, limited access to hand sanitizer and other precautionary measures).
35 U.S. Immigration and Customs Enforcement, ICE Guidance on COVID-19 (accessed Apr. 3, 2020), https://www.ice.gov/coronavirus.
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to the coronavirus.36 Even assuming adequate space, isolation of people who are ill is generally an ineffective way to prevent transmission of COVID-19 because air continues to flow outward from rooms to the rest of the facility.
111. 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 weeks after exposure, “screening people based on observable symptoms is just a game of catch up.” In re. Extradition of Alejandro Toledo Manrique, No. 19-mj71055, 2020 WL 1307109 (N.D. Cal. March 19, 2020) (ordering release on bond in part because government’s management plan did not “say anything about testing” for COVID19).
112. 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 are frequently transported to, from, and between facilities.
113. Neither ICE nor the Virginia facilities 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.
114. 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 detainees in Farmville Detention Center
36 Id.
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against an outbreak of mumps.37 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 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.”38
115. Moreover, ICE has routinely failed to remedy inhumane conditions because, according to the OIG, “ICE does not adequately follow up on identified deficiencies or consistently hold facilities accountable for correcting them, which further diminishes the usefulness of inspections.”39
116. ICE has even publicly acknowledged the need to limit the spread of the virus and the number of people in its detention centers, announcing that it will delay enforcement actions to arrest fewer immigrants and will use alternatives to detention as a response to the COVID-19 outbreak for new people they arrest in the field.40 But the agency
37 Emma Ockerman, Migrant Detention Centers Are Getting Slammed with Mumps and Chickenpox, Vice News (Jun. 14, 2019), available at https://www.vice.com/en_us/article/mb8k5q/migrant-detentioncenters-are-getting-slammed-with-mumps-and-chicken-pox.
38 See Office of Inspector General, ICE Does Not Fully Use Contracting Tools to Hold Detention Facility Contractors Accountable for Failing to Meet Performance Standards, 1 (Jan. 29, 2019), available at https://www.oig.dhs.gov/sites/default/files/assets/2019-02/OIG-19-18-Jan19.pdf. 39 See ICE’s Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or Systemic Improvements, Office of the Inspector General, 1 (June 26, 2018), available at https://www.oig.dhs.gov/sites/default/files/assets/20//18-06/OIG-18-67-Jun18.pdf.
40 See Maria Sacchetti and Arelis R. Hernández, ICE to stop most immigration enforcement inside the U.S., will focus on criminals during coronavirus outbreak, The Washington Post (Mar. 18, 2020), available at https://www.washingtonpost.com/national/ice-halting-most-immigrationenforcement/2020/03/18/d0516228-696c-11ea-abef-020f086a3fab_story.html.
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still has not issued any guidance or plan to release vulnerable individuals who are currently in custody.41
117. 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 Virginia detention centers, Defendants cannot prevent the spread of COVID-19 in those facilities.
E. Individuals Most Vulnerable to COVID-19 Should Immediately Be Released. 118. 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 detainees from custody, especially those with medical conditions that make them more vulnerable to serious illness or death if they contract COVID-19.42
119. As early as February 25, 2020, Dr. Scott Allen and Dr. Josiah Rich, medical experts to DHS, shared concerns about the specific risk to immigrant detainees 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.
41 Noah Lanard, ICE Is Ignoring Recommendations to Release Immigrant Detainees to Slow the Spread of Coronavirus, Mother Jones (Mar. 20, 2020), available at https://www.motherjones.com/politics/2020/03/ice-is-ignoring-recommendations-to-release-immigrantdetainees-to-slow-the-spread-of-coronavirus/.
42 CDC data shows that of persons whose chronic illness was known, 94% of those who have died had an underlying condition and 78% of those who have required admission to an intensive care unit have had an underlying condition. Joel Achenbach and William Wan, New CDC Data Shows Danger of Coronavirus for Those With Diabetes, Heart or Lung Disease, Other Chronic Conditions, Washington Post (Mar. 31, 2020), available at https://www.washingtonpost.com/health/new-cdc-data-on-underlyinghealthconditions-in-coronavirus-patients-who-need-hospitalization-intensivecare/2020/03/31/0217f8d27375-11ea-85cb-8670579b863d_story.html.
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Allen and Dr. Rich recommended that “[m]inimally, DHS should consider releasing all detainees in high risk medical groups such as older people and those with chronic diseases.” They concluded that “acting immediately will save lives not of only those detained, but also detention staff and their families, and the community-at-large.”
120. ICE has the authority to release individuals from custody on medical grounds and has routinely exercised its authority to release particularly vulnerable detainees like Plaintiffs. Yet, ICE refuses to do so, putting more lives at risk.
121. Dr. Greifinger has concluded that “the public health recommendation is to release high-risk people from detention, given the heightened risks to their health and safety, especially given the lack of a viable vaccine for prevention or effective treatment at this stage.
122. Releasing the most vulnerable people, such as Plaintiffs, would also reduce the burden on regional hospitals and health centers. In case of an outbreak at a detention center, 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.
123. Indeed, governments in the United States and worldwide have recognized the threat posed by COVID-19 spread among detained and incarcerated populations and have released detainees for that reason. For example, Iran temporarily released more than 80,000 detained people to curb the spread of the virus.43 In the United States, several jurisdictions have also released detained individuals for the same reasons.44
43 Parisa Hafezi, Iran Temporarily Frees 85,000 From Jail Including Political Prisoners, Reuters (Mar. 17, 2020), available at https://www.reuters.com/article/us-health-coronavirus-iran-prisoners/irantemporarily-frees-85000-from-jail-including-political-prisoners-amid-coronavirus-idUSKBN21410M.
44 See Catherine Kim, Why People Are Being Released From Jails and Prisons During the Pandemic, Vox (Apr. 3, 2020), available at https://www.vox.com/2020/4/3/21200832/jail-prison-early-releasecoronavirus-covid-19-incarcerated (“California announced that it would let out 3,500 nonviolent inmates in
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LEGAL FRAMEWORK A. Plaintiffs Have a Right to be Free from Punitive Conditions of Confinement
in Civil Detention. 124. 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. 125. 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 v. McKinney, 509 U.S. 25, 33 (1993) (“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.”). 126. The Supreme Court has explicitly recognized that the risk of contracting a communicable disease may constitute such an “unsafe, life-threatening condition” that threatens “reasonable safety” even under the higher standard imposed by the Eighth Amendment. Id. 127. Because persons in immigration detention are civilly confined, their constitutional protections are derived from the Fifth Amendment, which provides greater protections than the Eighth Amendment. Under the Fifth Amendment, persons who, like
the next 60 days — the most drastic measure taken by states so far. New York City Mayor Bill de Blasio also announced the city had released 900 people as of March 31.”).
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Plaintiffs, are held in civil detention are entitled to “more considerate treatment and conditions of confinement” than persons who are incarcerated because of a criminal conviction. Youngberg v. Romeo, 457 U.S. 307, 322 (1982). Due process rights of those in civil immigration detention “are at least as great as the Eighth Amendment protections” available to those convicted of a crime. City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983) (emphasis added); see also Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (classifying immigration detention as civil detention).
128. 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.”); Nelson v. Collins, 659 F.2d 420, 425 (4th Cir. 1981).
129. In order to establish that a particular condition of detention constitutes impermissible punishment, a plaintiff 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; Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988). Absent an explicit intention to punish a detained person, a court “must evaluate the evidence and ascertain the relationship between the actions taken against the detainee and the custodian’s supporting rationale.” Williamson v. Stirling, 912 F.3d 154, 178 (4th Cir. 2018). “That inquiry turns on whether the actions taken may validly be attributed to an alternative, nonpunitive rationale, and whether they appear ‘excessive in relation to the alternative purpose assigned.’” Id. (citations omitted).
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B. Defendants May Not Act with Deliberate Indifference to a Substantial Risk of Harm Faced by Plaintiffs. 130. The Fourth Circuit has held that a person held in pretrial detention
necessarily “makes out a due process violation if he shows ‘deliberate indifference to serious medical needs’. . . because no legitimate nonpunitive goal is served by a denial or unreasonable delay in providing medical treatment where the need for such treatment is apparent.” Martin v. Gentile, 849 F.2d 863, 871 (4th Cir. 1988) (citation omitted)).
131. In order to show that defendants acted with deliberate indifference, a plaintiff must show that (1) the plaintiff was exposed to a substantial risk of serious harm, and (2) the defendants knew of or disregarded that substantial risk to the plaintiff’s health or safety. Farmer v. Brennan, 511 U.S. 825, 834, 837–38 (1994); Thompson v. Virginia, 878 F.3d 89, 97-98 (4th Cir. 2017).
132. A plaintiff “must establish a serious deprivation of his rights in the form of a serious or significant physical or emotional injury” or substantial risk of either injury. Danser v. Stansberry, 772 F.3d 340, 346-47 (4th Cir. 2014). Such a claim “may be based on a defendant’s conduct in exposing an inmate to an unreasonable risk of future harm.” Smith v. Carpenter, 316 F.3d 178, 188 (2d Cir. 2003).
133. A plaintiff must also show that the prison or detention official involved had “a sufficiently culpable state of mind” amounting to “deliberate indifference to inmate health or safety.” Farmer, 511 U.S. at 834. Evidence establishing a culpable state of mind requires actual knowledge of an excessive risk to the detainee’s safety, or evidence that detention officials were aware of facts from which an inference could be drawn that a substantial risk of serious harm exists and that the inference was drawn. Id. at 837. A plaintiff may “prove an official’s actual knowledge of a substantial risk ‘in the usual ways,
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including inference from circumstantial evidence’” so that “‘a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.’” Raynor v. Pugh, 817 F.3d 123, 128 (4th Cir. 2016).
C. Plaintiffs Have a Right to Reasonable Accommodations Under the Rehabilitation Act. 134. Section 504 of the Rehabilitation Act requires executive agencies to provide
“reasonable accommodations” to individuals with disabilities so they can fully participate in benefits administered by these agencies. 29 U.S.C. § 794(a).
135. DHS regulations implementing the Rehabilitation Act mandate that “[n]o qualified individual with a disability in the United States, shall, by reason of his or her disability, be excluded from participation in, be denied benefits of, or otherwise be subjected to discrimination under any program or activity conducted by the Department.” 6 C.F.R. § 15.30.
136. To state a claim under the Rehabilitation Act, a plaintiff must establish “(1) that he has a disability; (2) that he is otherwise qualified for the benefit in question; and (3) that he was excluded from the benefit due to discrimination solely on the basis of the disability.” Baird v. Rose, 192 F.3d 462, 467 (4th Cir. 1999).
137. To the extent possible, the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act should be construed to impose similar requirements; therefore, they require a plaintiff to demonstrate the same elements to establish liability. Halpern v. Wake Forest Univ. Health Scis., 699 F.3d 454 (4th Cir. 2012).
138. A qualifying disability is any physical or mental impairment that “substantially limits one or more major life activities.” 42 U.S.C. § 12102; see also 29 U.S.C. § 705; 6 C.F.R. § 15.3(d). A “major life activity” includes “caring for oneself,
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performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working” as well as “the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” 42 U.S.C. § 12102(A)-(B).
139. The ADA mandates that “[t]he definition of disability . . . be construed in favor of broad coverage of individuals . . . to the maximum extent permitted by the terms of [the statute].” 42 U.S.C. § 12102(4)(A).
140. The Fourth Circuit has determined that a temporary impairment may qualify as a disability under the ADA if it is “sufficiently severe” to substantially limit a major life activity. Summers v. Altarum Inst., 740 F.3d 325 (4th Cir. 2014).
D. This Court Has the Authority to Order Plaintiffs’ Release to Protect Their Constitutional and Statutory Rights. 141. “A district court enjoys wide discretionary authority in formulating
remedies for constitutional violations.” Smith v. Bounds, 813 F.2d 1299, 1301 (4th Cir. 1987). Moreover, “[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).
142. Although the Fourth 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).
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143. In light of the severe threats posed by COVID-19, a growing number of courts have also ordered the release of persons detained in immigration detention. See e.g., Xochihua-James v. Barr, No. 18-71460 (9th Cir. Mar. 23, 2020) (unpublished) (sua sponte releasing detainee from immigration detention “in light of the rapidly escalating public health crisis”); Hope v. Doll, 1:20-cv-00562-JEJ, No. 1:20-cv-562, 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); Hernandez v. Wolf, 5:20-cv-00617-TJH-KS, Dkt. No. 17 (C.D. Cal. Apr. 1, 2020); Castillo v. Barr, 20-cv-00605-TJH, Dkt. No. 32 (C.D. Cal. Mar. 27, 2020) (same); Coronel v. Decker, 20-cv-2472-AJN, Dkt. No. 26 (S.D.N.Y. Mar. 27, 2020) (same); Basank v. Decker, 20-cv-2518-AT, Dkt. No. 11 (S.D.N.Y. Mar. 26, 2020) (same); Fraihat v. Wolf, 20-cv-00590-TJH-KSx (C.D. Cal. Mar. 31, 2020) (same); 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); see also Ronal Umana Jovel v. Decker, 12-cv-308-GBD, Dkt. No. 27 (S.D.N.Y. Mar. 26, 2020) (ordering release under Mapp v. Reno, 241 F.3d 221 (2d Cir. 2001)); Jimenez v. Wolf, 18-10225-MLW (D. Mass. Mar. 26, 2020) (same).
144. Courts have similarly released numerous individuals held or incarcerated under the federal criminal system. See e.g., United States v. Meekins, Case No. 1:18-cr222-APM, Dkt. 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. Davis, No. 1:20-cr-9-ELH, Dkt. No. 21 (D. Md. Mar. 30, 2020) (releasing defendant due to the “urgent priority” of decarcerating, to protect both the defendant and the community, and to preserve Sixth
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Amendment rights in this perilous time); United States v. Muniz, Case No. 4:09-cr-199, Dkt. No. 578 (S.D. Tex. Mar. 30, 2020) (releasing defendant serving 188-month sentence for drug conspiracy in light of vulnerability to 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. Hector, Case No. 2:18-cr-3-002, Dkt. No. 748 (W.D. Va. Mar. 27, 2020) (granting release pending sentencing after Fourth Circuit remanded detention decision requiring court to specifically consider extraordinary danger posed by COVID-19 to folks in prison); United States v. Grobman, No. 18-cr20989, Dkt. No. 397 (S.D. Fla. Mar. 29, 2020) (releasing defendant convicted after trial of fraud scheme in light of “extraordinary situation of a medically-compromised 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, Dkt. No. (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 (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.”);
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In re Request to Commute or Suspend County Jail Sentences, Docket No. 084230 (N.J. Mar. 22, 2020) (releasing large class of defendants serving time in county jail “in light of the Public Health Emergency” caused by COVID-19).
145. The unprecedented coronavirus pandemic unquestionably calls for individuals’ release, as multiple health experts have opined, and numerous courts have recognized, that no other measures would be sufficient or appropriate, especially for individuals with special vulnerability to severe illness or death from COVID-19.
146. The Rehabilitation Act provides for “reasonable accommodations” to ensure that individuals are not deprived of access to federally-administered benefits because of their disability. Because there is no reasonable accommodation available to protect vulnerable individuals from contracting COVID-19, and thereby being denied access to removal proceedings due to serious illness or even death, release is the only sufficient accommodation available.
CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF: VIOLATION OF FIFTH AMENDMENT RIGHT TO SUBSTANTIVE DUE PROCESS (UNLAWFUL PUNISHMENT)
147. 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 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.
148. Defendants have subjected Plaintiffs to conditions of confinement that increase their risk of contracting COVID-19, for which there is no known vaccine, treatment, or cure. Plaintiffs’ underlying conditions—of which Defendants are or should
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be aware—render them especially vulnerable to severe illness or even death if they contract COVID-19. Defendants are therefore subjecting Plaintiffs to an unreasonable risk of serious harm and punitive conditions, in violation of their rights under the Due Process Clause.
149. Defendants’ continued detention of Plaintiffs fails to adequately protect Plaintiffs from the risks of contracting COVID-19.
150. Plaintiffs’ ongoing confinement lacks a reasonable relationship to any legitimate governmental purpose or is excessive in relation to its purpose.
151. Defendants continued detention of Plaintiffs is punitive and therefore violates the Due Process Clause.
SECOND CLAIM FOR RELIEF: VIOLATION OF FIFTH AMENDMENT RIGHT TO SUBSTANTIVE DUE PROCESS (DELIBERATE INDIFFERENCE)
152. 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.
153. The government acts with deliberate indifference when it exposes detainees to a substantial risk of serious harm, and when it knows of or disregards that substantial risk to the detainee’s health or safety.
154. Defendants have subjected Plaintiffs to conditions of confinement that increase their risk of contracting COVID-19, for which there is no known vaccine, treatment, or cure. Plaintiffs’ underlying conditions render them especially vulnerable to severe illness or death if they were to contract COVID-19. Defendants are therefore subjecting Plaintiffs to a substantial risk of serious harm.
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155. Defendants have known of or disregarded the substantial risk of harm to Plaintiffs’ health and safety.
156. Defendants have acted with deliberate indifference to Plaintiffs’ health and safety, in violation of the Due Process Clause. THIRD CLAIM FOR RELIEF: VIOLATION OF THE REHABILITATION ACT
(FAILURE TO PROVIDE REASONABLE ACCOMMODATION TO PERSONS WITH DISABILITIES)
157. Section 504 of the Rehabilitation Act requires federal agencies to provide “reasonable accommodations” to individuals with disabilities so they can fully participate in benefits administered by these agencies. 29 U.S.C. § 794(a).
158. DHS regulations implementing the Rehabilitation Act mandate that “[n]o qualified individual with a disability in the United States, shall, by reason of his or her disability, be excluded from participation in, be denied benefits of, or otherwise be subjected to discrimination under any program or activity conducted by the Department.” 6 C.F.R. § 15.30; see also 29 U.S.C. § 794(a). The regulations implementing Section 504 prohibit entities receiving federal financial assistance from utilizing “criteria or methods of administration (i) that have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap, (ii) that have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the recipient’s program or activity with respect to handicapped persons.” 34 C.F.R. § 104.4(b)(4).
159. The removal process, which includes adjudications of applications for relief from removal in immigration court, is a benefit administered by DHS and Plaintiffs are entitled to participate in the removal process. The services, programs, and activities within
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the detention centers where DHS detains Plaintiffs receive substantial federal financial assistance.
160. Plaintiffs’ underlying medical conditions qualify as disabilities for purposes of the Rehabilitation Act. 29 U.S.C. § 705(2)(B); 42 U.S.C. § 12102.
161. By exposing them to a heightened risk of contracting COVID-19 and thereby serious illness and/or death, Defendants are preventing Plaintiffs from participating in the removal process and the services, programs, and activities within the detention centers by reason of their disability.
162. By failing to take account of their special vulnerability to severe illness or death if they were to contract COVID-19, Defendants are preventing Plaintiffs from participating in the removal process and the services, programs, and activities within the detention centers by reason of their disability.
163. By failing to provide Plaintiffs adequate protection from COVID-19 through the only effective means to reduce the risk of severe illness or death, Defendants have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of removal proceedings and the services, programs, and activities within the detention centers with respect to Plaintiffs.
164. The only available “reasonable accommodation” that would mitigate Plaintiffs’ disability is release from detention. Defendants have failed to implement this reasonable accommodation, which would not be unduly burdensome nor require a fundamental alteration in the removal process or the services, programs, and activities of the detention center.
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165. Defendants’ ongoing detention of Plaintiffs constitutes discrimination

because it is either disparate treatment of, or at the very least has a disparate impact on,

people with qualifying disabilities who are at severe risk of serious illness or death if they

were to contract COVID-19.

166. For these reasons, Defendants’ ongoing detention of Plaintiffs violates the

Rehabilitation Act.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs request that this Court:

a. Issue a writ of habeas corpus and order Plaintiffs’ immediate release or

placement in community-based alternatives to detention such as conditional release, with

appropriate precautionary public health measures, on the ground that their continued

detention violates the Due Process Clause and/or the Rehabilitation Act;

b. In the alternative, issue injunctive relief ordering Defendants to

immediately release Plaintiffs or place them in community-based alternatives to detention

such as conditional release, with appropriate precautionary public health measures, on the

ground that their continued detention violates the Due Process Clause and/or the

Rehabilitation Act;

c.

Declare that Defendants’ continued civil detention of individuals at

increased risk for severe illness, including all people over the age of 50 and persons of any

age with underlying medical conditions that increase the risk of serious illness or death

upon contracting COVID-19 violates the Due Process Clause and/or the Rehabilitation Act;

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d. Award Plaintiffs all costs incurred in maintaining this action, including reasonable attorneys’ fees under the Equal Access to Justice Act, as amended, 5 U.S.C. § 504 and 28 U.S.C. § 2412, and on any other basis justified by law; and
e. Grant Plaintiffs any other and further relief this Court deems just and proper.

Dated: April 9, 2020 Washington, D.C.

Respectfully submitted,
/s/ Adina Appelbaum
Adina Appelbaum, Virginia Bar No. 88974 adina@caircoalition.org CAPITAL AREA IMMIGRANTS’ RIGHTS (CAIR) COALITION 1612 K Street NW Suite 204 Washington, DC 20006 (202) 899-1412
Sirine Shebaya* sirine@nipnlg.org Amber Qureshi* amber@nipnlg.org NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Ave NW, Suite 200 Washington, DC 20007 (202) 656-4788
Kristin Donovan, Va. Bar No. 92207 kristin@justice4all.org Granville Warner, Va. Bar. No. 24957 cwarner@justice4all.org LEGAL AID JUSTICE CENTER 6066 Leesburg Pike, Suite 520 Falls Church, VA 22041 (703) 778-3450
Attorneys for Petitioners-Plaintiffs
* pro hac vice applications forthcoming

45

 
 Case 1:20-cv-00395-LO-JFA Document 8 Filed 04/13/20 Page 1 of 32 PageID# 141

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

TOURE, et al., Petitioners-Plaintiffs,
v. HOTT, et al.,
Respondents-Defendants.

Civil Action No.: 1:20-cv-00395 ORAL ARGUMENT REQUESTED

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR A TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION

Adina Appelbaum, Virginia Bar No. 88974 adina@caircoalition.org CAPITAL AREA IMMIGRANTS’ RIGHTS COALITION 1612 K Street NW Suite 204 Washington, DC 20006 (202) 899-1412
Kristin Donovan, Va. Bar No. 92207 kristin@justice4all.org Granville Warner, Va. Bar. No. 24957 cwarner@justice4all.org LEGAL AID JUSTICE CENTER 6066 Leesburg Pike, Suite 520 Falls Church, VA 22041 (703) 778-3450
Attorneys for Petitioners-Plaintiffs
* pro hac vice applications pending

Sirine Shebaya* sirine@nipnlg.org Amber Qureshi* amber@nipnlg.org NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Ave NW, Suite 200 Washington, DC 20007 (202) 656-4788

Case 1:20-cv-00395-LO-JFA Document 8 Filed 04/13/20 Page 2 of 32 PageID# 142
INTRODUCTION Today’s global pandemic of COVID-19 is the worst the world has seen since 1918. To date, nearly 1.7 million individuals worldwide have been diagnosed with COVID-19, and the United States is the worst hit country.1 Many more are likely infected, especially in the United States where testing for the virus has been extremely limited. As of April 10, there are over 5,700 confirmed cases of COVID-19 in Virginia, and 149 deaths.2 In response to this crisis, the State of Virginia has imposed a “shelter-in-place” order in an attempt to control the spread of the disease.3 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 vulnerable individuals is social distancing and vigilant hygiene. Such measures are impossible to achieve in crowded detention centers. For this reason, health care professionals—including two of the Department of Homeland Security’s own medical experts—have urgently called for the release of detained immigrants, particularly elderly or medically vulnerable ones as early as February 2020.4 Yet Respondents-Defendants (“Defendants”) continue to detain thousands of individuals in

1 Coronavirus disease 2019 (COVID-19) Situation Report – 83, World Health Organization (Apr. 12, 2020), available at https://www.who.int/docs/default-source/coronaviruse/situationreports/20200412-sitrep-83-covid-19.pdf?sfvrsn=697ce98d_4.

2 Virginia Department of Health, COVID-19 Cases in Virginia (accessed Apr. 13, 2020), available at http://www.vdh.virginia.gov/coronavirus/.

3 Commonwealth of Virginia Office of the Governor, Executive Order No. Fifty-Five (2020), Temporary Stay At Home Order Due to Novel Coronavirus (COVID-19) (Mar. 30, 2020), available at https://www.governor.virginia.gov/media/governorvirginiagov/executiveactions/EO-55-Temporary-Stay-at-Home-Order-Due-to-Novel-Coronavirus-(COVID-19).pdf.

4 Letter from Dr. Scott Allen and Dr. Josiah Rich, Medical Experts for DHS, to House Comm. on

Homeland

Sec.

(Mar.

19,

2020),

available

at

https://www.documentcloud.org/documents/6816336-032020-Letter-From-Drs-Allen-Rich-to-

Congress-Re.html#document/p4/a557238; Catherine E. Shoichet, Doctors Warn of 'Tinderbox

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facilities in Virginia and across the country, including those at severe risk of serious illness or death if they were to contract COVID-19, despite the ready availability of community-based alternatives to detention such as release on conditions or on bond.
Petitioners-Plaintiffs (“Plaintiffs”) are nine individuals detained in ICE custody at two Virginia facilities, Farmville Detention Center and Caroline Detention Facility (the “Virginia Detention Facilities” or the “Facilities”) who, due to their age and pre-existing medical conditions, are particularly vulnerable to serious illness or death if infected by the coronavirus. While detained, it is impossible for Plaintiffs to engage in the necessary social distancing and hygiene practices to protect against infection because they eat, sleep, and otherwise live in close proximity to others, and because sanitary conditions in these facilities are poor, lacking sufficient, basic supplies such as soap and hand sanitizer.
Immigration detention centers are a hotbed for spread of the virus. Confirmed cases have begun to appear in several ICE detention centers.5 It is quite likely—if not certain— that many more detention centers already have unconfirmed COVID-19 cases.6 For at-risk individuals like Plaintiffs, protection from the virus is a matter of life or death. The danger posed by Plaintiffs’ continued civil detention during the COVID-19 pandemic is “so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk” and violates their
Scenario' if Coronavirus Spreads in ICE Detention, CNN (Mar. 20, 2020), available at https://www.cnn.com/2020/03/20/health/doctors-ice-detention-coronavirus/index.html. 5 U.S. Immigration and Customs Enforcement, ICE Guidance on COVID-19 (accessed Apr. 9, 2020), https://www.ice.gov/coronavirus. 6 Coreas v. Bounds, 8:20-cv-00780-TDC, Dkt. No. 56 (D. Md. Apr. 3, 2020) (noting that two Maryland ICE Detention Facilities had not tested anyone for COVID-19 and did not have any test kits despite detaining individuals who had exhibited symptoms).
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constitutional right to safety in government custody. Helling v. McKinney, 509 U.S. 25, 36 (1993). Without this Court’s intervention, Plaintiffs will continue to face the imminent risk of severe illness or death. Release – which this Court, like many others who have already acted, is fully authorized to order – is the only meaningful way to protect Plaintiffs from grave, irreparable harm.
FACTUAL BACKGROUND I. COVID-19 Poses a Grave Risk of Harm, Including Serious Illness or Death, to
Older Individuals and Those with Certain Underlying Medical Conditions. COVID-19 is a highly contagious disease that is easily transmitted through respiratory droplets, see Ex. 12, Greifinger Dec. ¶ 5, especially when one is within six feet of an infected individual, and in some cases within 27 feet.7 It can result in severe and widespread damage to lungs, heart, liver, or other organs. Id. at ¶ 1. In many cases, COVID-19 results in death. Id. Individuals who do not die from the disease may face prolonged recovery periods. Id. at ¶ 7. A patient’s condition can seriously deteriorate within days.8 People can also spread COVID-19 but be asymptomatic.9 Ex. 12, Greifinger Dec. ¶ 4.
7 Bourouiba, Lydia, Journal of the American Medical Association, Turbulent Gas Clouds and Respiratory Pathogen Emissions: Potential Implications for Reducing Transmission of COVID19 (Mar. 26, 2020), available at https://jamanetwork.com/journals/jama/fullarticle/2763852?appId=scweb. 8 Centers for Disease Control and Prevention, “Clinical Presentation” Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19) (Mar. 31, 2020) available at https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-managementpatients.html. 9 A study in Iceland, where COVID-19 testing is widespread, found that about half those who tested positive have no symptoms. Jason Gale, Coronavirus Cases Without Symptoms Spur Call for Wider Tests, Bloomberg (Mar. 22, 2020), available at https://www.bloomberg.com/news/articles/2020-03-22/one-third-of-coronavirus-casesmayshow-no-symptom-scmp-reports.
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Individuals over 60 years old and those with certain medical conditions face greater chances of serious illness or death from COVID-19.10 Id. at ¶ 6. Certain underlying medical conditions increase the risk of serious COVID-19 disease for individuals of any age, including but not limited to blood disorders, chronic kidney or liver disease, compromised immune system, endocrine disorders, including diabetes, metabolic disorders, heart and lung disease, neurological and neurologic and neurodevelopmental conditions, and current or recent pregnancy. Id. at ¶ 8. Preliminary research suggests that 20% of people in high risk categories who contract COVID-19 have died. Id. at ¶ 6.
Most people in higher risk categories who develop serious disease will need advanced medical support. Id. at ¶ 7. This level of supportive care requires highly specialized equipment that is in limited supply. Id. This level of support is especially difficult to provide for individuals who are in a detained setting. Ex. 12, Greifinger Dec. ¶ 12.
There is no vaccine against COVID-19, nor any known medication to prevent or treat infection from the virus. Ex. 12, Greifinger Dec. ¶ 4. The only effective measure to reduce the risk of severe illness or death to vulnerable individuals is to practice regular social distancing (remaining physically separated from known or potentially infected individuals) and vigilant hygiene, including frequent washing hands with soap and water. Id.
II. Plaintiffs Are Particularly Vulnerable to Serious Illness or Death If Infected by COVID-19 Due to Their Age and Underlying Health Conditions.
10 CDC data shows that of persons whose chronic illness was known, 94% of those who have died had an underlying condition and 78% of those who have required admission to an intensive care unit have had an underlying condition. Joel Achenbach and William Wan, New CDC Data Shows Danger of Coronavirus for Those With Diabetes, Heart or Lung Disease, Other Chronic Conditions, Washington Post (Mar. 31, 2020), available at https://www.washingtonpost.com/health/new-cdc-data-on-underlying-healthconditions-incoronavirus-patients-who-need-hospitalization-intensivecare/2020/03/31/0217f8d2-7375-11ea85cb-8670579b863d_story.html.
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Plaintiffs in this case are nine individuals who are at least 60 years old or have underlying
conditions such as asthma, diabetes, hypertension, or other illnesses that make them particularly
vulnerable to serious illness or death if they contract COVID-19.11 Ex. 12, Greifinger Dec. ¶ 28;
see also Ex. 13, Gupta Decl. ¶ 26-27.
• Francois Toure. Mr. Toure is a citizen of Guinea who is currently detained at the Farmville Detention Center. Ex. 2, ElGammal Dec. ¶ 3. Mr. Toure suffers from asthma, which requires the use of an inhaler, and borderline diabetes. Id. at ¶¶ 8-11. Mr. Toure also has major depressive disorder and has attempted suicide three times in the last three months. Id. at ¶ 13. As of March 27, 2020, Mr. Toure was feeling sick with symptoms including a cough, headaches, and fatigue. Id. at ¶ 14. Doctors at the Farmville Detention Center said he was suffering from some kind of virus but did not confirm which virus. Id. His blood test also revealed that his liver was functioning poorly, and doctors are concerned he may have liver disease. Id. Mr. Toure is critically vulnerable to the coronavirus and to serious illness or death from COVID-19 because of his physical and mental health conditions. Id. at ¶ 10-11; Ex. 12, Greifinger Dec. ¶ 28.a.
• Sisira Kumara Kumaragamage Don. Mr. Kumaragamage Don is a 64-year-old citizen of Australia who is currently detained at Farmville Detention Center. Ex. 3, Kumaragame Dec. ¶ 1. Mr. Kumaragamage Don suffers from diabetes and hypertension. Id. at ¶ 6. He has a weak immune system and gets sick easily, often with serious symptoms. Id. Mr. Kumaragamage Don is critically vulnerable to the coronavirus and to serious illness or death from COVID-19 because of his medical conditions and age. Ex. 12, Greifinger Dec. ¶ 28.b.
• Venacio Escobar Andasol. Mr. Escobar Andasol is a 65-year-old citizen of El Salvador who is currently detained at Caroline Detention Facility. Ex. 4, Schmelzel Dec. ¶¶ 5-6. Due to his age, he is at high risk of severe illness or death if he contracts COVID-19. Id. at ¶ 4; Ex. 12, Greifinger Dec. ¶ 28.c.
• Franklin Alberto (Rechelle) Hernandez. Rechelle is a transgender woman from Honduras who is currently detained at Caroline Detention Facility. Ex. 5, Dionne-Lanier Dec. ¶¶ 2, 4. Rechelle suffers from asthma, and takes five prescription medications daily. Id. at ¶ 7. Rechelle is critically vulnerable to the coronavirus and to serious illness or death from COVID-19 because of her asthma. Id. at ¶ 8; Ex. 12, Greifinger Dec. ¶ 28.d.
• Ronaldo Lopez Cristales. Mr. Lopez Cristales is a citizen of Guatemala who is currently detained at Caroline Detention Facility. Ex. 6, Chacon Dec. ¶¶ 5-6. He suffers from severe Type II diabetes and hypertension. Id. at ¶ 6. He goes to the clinic at the facility twice a day to receive his prescription medications to treat those conditions. Id. Mr. Lopez Cristales
11 Id.
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is critically vulnerable to the coronavirus and to serious illness or death from COVID-19 because of his diabetes and hypertension. Ex. 12, Greifinger Dec. ¶ 28.e.
• Miguel Angel Chavez Ramos. Mr. Chavez Ramos is a citizen of El Salvador who is currently detained at Caroline Detention Facility. Ex. 7, Julien Dec. ¶ 3. He suffers from severe Type II diabetes, for which he had to be hospitalized in November 2019. Id. at ¶¶ 8-9. Mr. Chavez Ramos receives daily insulin injections and pills, and still often feels ill. Id. at ¶ 10. Mr. Chavez Ramos is critically vulnerable to the coronavirus and to serious illness or death from COVID-19 because of his diabetes. Id. at ¶ 8; Ex. 12, Greifinger Dec. ¶ 28.f.
• Melvin Castro. Mr. Castro is a citizen of El Salvador who is currently detained at Caroline Detention Facility. Ex. 8, Schmelzel Dec. ¶ 6. He suffers from asthma. Id. at ¶ 7. Mr. Castro uses an inhaler regularly for his asthma and often feels very short of breath. Id. at ¶¶ 8-10. Mr. Castro is critically vulnerable to the coronavirus and to serious illness or death from COVID-19 because of his asthma and mental health conditions. Id. at ¶ 7; Ex. 12, Greifinger Dec. ¶ 28.g.
• Ummy Ismail Mohamed. Ms. Mohamed is a citizen of Tanzania who is currently detained at Caroline Detention Facility. Ex. 9, Wardlaw Dec. ¶ 3. She suffers from asthma, PTSD, severe depression disorder, and moderate anxiety order. Id. at ¶¶ 9, 16. Her asthma has worsened in detention; she now has difficulty breathing on a daily basis. Id. at ¶ 13. She has been experiencing flu-like symptoms every day for the past two weeks including feeling feverish all the time, body sweats, and exhaustion. Id. at ¶ 15. Ms. Mohamed is critically vulnerable to the coronavirus and to serious illness or death from COVID-19 because of her asthma and mental health conditions. Id. at ¶¶ 9, 16; Ex. 12, Greifinger Dec. ¶ 28.h.
• Faustino Romero Aguilon. Mr. Aguilon is a citizen of Guatemala who is currently detained at Caroline Detention Facility. Ex. 10, Aguilon Dec. ¶ 2. He suffers from Type II diabetes and hypertension and takes multiple medications to treat his conditions. Id. at ¶¶ 4, 6. Mr. Aguilon is critically vulnerable to the coronavirus and to serious illness or death from COVID-19 because of his health conditions. Id. at ¶ 15; Ex. 12, Greifinger Dec. ¶ 28.i.
III. People Detained at Virginia Detention Facilities Face an Imminent and Substantial Risk of Contracting COVID-19.
The Farmville Detention Center and Caroline Detention Facility are located in the state of
Virginia,12 which is experiencing a coronavirus outbreak and has instituted a “stay-at-home”
12 Detention Facility Locator, U.S. Immigration and Customs Enforcement, available at https://www.ice.gov/detention-facilities.
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order.13 Ex. 13, Gupta Decl. ¶ 10. On March 7, 2020, Virginia confirmed its first case of COVID-
19.14 As of April 13, 2020, there were over 5,700 COVID-19 cases and nearly 150 deaths in the
state, and the numbers are rising dramatically.15 According to some estimates, the COVID-19
epidemic will reach its peak in Virginia in less than two weeks and may result in as many as 2,000
deaths across the state by August 4, 2020. Id. at ¶ 12-13. Virginia is one of 20 states in the country
estimated to experience a shortage of ICU beds during the state’s expected COVID-19 peak. Id. at
¶ 14-15. COVID-19 has spread to prisons, jails and immigrant detention centers across the United
States, including in at least two prisons in Virginia.16 There is an immediate and impending threat
that COVID-19 will become widespread in the Virginia Detention Facilities. Ex. 12, Greifinger
Dec. ¶¶ 10, 15-16, 18-19; Ex. 13, Gupta Decl. ¶ 19, 21, 22.
13 Commonwealth of Virginia Office of the Governor, Executive Order No. Fifty-Five (2020), Temporary Stay At Home Order Due to Novel Coronavirus (COVID-19) (Mar. 30, 2020), available at https://www.governor.virginia.gov/media/governorvirginiagov/executiveactions/EO-55-Temporary-Stay-at-Home-Order-Due-to-Novel-Coronavirus-(COVID-19).pdf.
14 Virginia Department of Health, First Virginia Case of COVID-19 Confirmed at Fort Belvoir (Mar. 7, 2020), available at http://www.vdh.virginia.gov/blog/2020/03/07/first-virginia-case-ofcovid-19-confirmed-at-fort-belvoir/.
15 Virginia Department of Health, COVID-19 Cases in Virginia (accessed Apr. 13, 2020), available at http://www.vdh.virginia.gov/coronavirus/.
16 Kerri O’Brien, Another Inmate At Another State Prison Positive for COVID-19, ABC8 (WRIC TV) News, (Apr. 1, 2020), available at https://www.wric.com/news/virginia-news/new-fears-invirginia-as-covid-19-is-now-behind-bars/ (confirmed cases in two VA prisons). See also Miranda Bryant, Coronavirus Spread at Rikers is A ‘Public Health Disaster’, Says Jail’s Top Doctor, The Guardian (Apr. 1, 2020), available at https://www.theguardian.com/us-news/2020/apr/01/rikersisland-jail-coronavirus-public-health-disaster (Rikers Island in New York City has seen the number of cases spike from one to nearly 200 in twelve days); Greg LaRose, Oakdale Federal Prison Stops Testing Inmates With COVID-19 Symptoms, WSDU News (Mar. 31, 2020) available at https://www.wdsu.com/article/oakdale-federal-prison-stops-testing-inmates-with-covid-19symptoms/31989498 (due to rapid spread of COVID-19 inside Oakdale Federal Correctional Center, officials are presuming anyone who shows symptoms is positive of COVID-19).
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Although ICE has not reported any confirmed COVID-19 cases in either Virginia facility, both facilities are holding individuals who are currently showing symptoms of COVID-19. See Ex. 2, ElGammal Dec. ¶¶ 5-6, 14; Ex. 3, Kumaragame Dec. ¶ 5; Ex. 7, Julien Dec. ¶ 5; Ex. 9, Wardlaw Dec. ¶ 15. One dormitory at Caroline Detention Facility was recently placed under quarantine because a recently detained individual presented symptoms of COVID-19. Ex. 5, Dionne-Lanier Dec. ¶ 6, Ex. 8, Schmelzel Dec. ¶ 3; Ex. 9, Wardlaw Dec. ¶ 8; Ex. 11, Warmeling Dec. ¶ 13. According to guards, there have been five potential cases of COVID-19 at Farmville Detention Center and it is unclear what results of those test are. Ex. 2, ElGammal Dec. ¶ 5. One dormitory at Farmville is also under quarantine.17 Staff arrive and leave on a shift basis, and even asymptomatic staff could carry the infection into the facility. Ex. 2, ElGammal Dec. ¶ 7; Ex. 8, Schmelzel Dec. ¶ 4; Ex. 11, Warmeling Dec. ¶ 12. The facilities have also had recent transfers of new people. Ex. 6, Chacon Dec. ¶ 10; Ex. 7, Julien Dec. ¶ 6; Ex. 11, Warmeling Dec. ¶ 12.
Given the rapid spread of COVID-19 throughout the state of Virginia, daily entry of staff and guards from the community, and the continued influx and transfer of new people into detention facilities, it is only a short matter of time before the disease becomes widespread among people detained in the Virginia Detention Facilities. Ex. 12, Greifinger Dec. ¶¶ 13, 15. In fact, in the absence of widespread testing, there is no way to be certain that outbreaks are not already occurring.18 Ex. 12, Greifinger Dec. ¶ 21.
17 Marissa J. Lang, ‘It’s a Time Bomb’: ICE Detainees Seek Release Amid Growing Coronavirus Fears, Washington Post (Apr. 8, 2020), available at https://www.washingtonpost.com/local/icecoronavirus-detention-centers-release/2020/04/08/f4dcaef8-74ee-11ea-87da77a8136c1a6d_story.html. 18 Coreas v. Bounds, 8:20-cv-00780-TDC, Dkt. No. 56 (D. Md. Apr. 3, 2020) (noting concerns that two Maryland ICE Detention Facilities had not tested anyone for COVID-19 and did not have any test kits despite detaining individuals who had exhibited symptoms).
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Neither Facility is equipped to enforce social distancing and improved hygiene in order to reduce the risk of severe illness or death for vulnerable individuals. Ex. 12, Greifinger Dec. ¶ 18. In both Facilities, groups of detained individuals are housed together and use common spaces together, sharing tables, telephones, and bathrooms. Ex. 3, Kumaragame Dec. ¶ 5; Ex. 4, Schmelzel Dec. ¶ 3; Ex. 5, Dionne-Lanier Dec. ¶ 5; Ex. 6, Chacon Dec. ¶ 4; Ex. 7, Julien Dec. ¶¶ 5-7; Ex. 8, Schmelzel Dec. ¶ 8; Ex. 9, Wardlaw Dec. ¶ 5; Ex. 10, Aguilon Dec. ¶ 3; Ex. 11, Warmeling Dec. ¶¶ 4-6. The dormitories in both detention centers house many individuals in close quarters, well under six feet apart. Individuals detained at Farmville share bunk beds in a large open dormitory typically housing 40 to 85 people. Ex. 11, Warmeling Dec. ¶ 4-5. At Caroline, individuals are housed together in groups, with typically four individuals in each cell and many cells in each dormitory. Id. at ¶ 5. In both detention facilities, it is impossible to eliminate all shared spaces and nearly impossible to ensure that individuals are maintaining adequate social distancing from one another. Id. at ¶ 6; Ex. 12, Greifinger Dec. ¶¶ 11, 18, 20; Ex. 13, Gupta Decl. ¶ 23.
Detained people are also unable to take vigilant hygiene measures to prevent infection. In both Facilities, communal areas, including bathrooms, are limited in number, shared by large numbers of people, and not sanitized or disinfected regularly. Ex. 2, ElGammal Dec. ¶ 6; Ex. 5, Dionne-Lanier Dec. ¶ 5; Ex. 6, Chacon Dec. ¶ 4; Ex. 8, Schmelzel Dec. ¶ 3; Ex. 10, Aguilon Dec. ¶ 9; Ex. 11, Warmeling Dec. ¶ 5. While some detained individuals are provided protective gear such as masks and gloves (for example when doing cleaning work), in general people have not been provided any protective gear upon request. Ex. 2, ElGammal Dec. ¶ 7; Ex. 5, Dionne-Lanier Dec. ¶ 6; Ex. 6, Chacon Dec. ¶ 8; Ex. 8, Schmelzel Dec. ¶ 4; Ex. 9, Wardlaw Dec. ¶ 6; Ex. 10, Aguilon Dec. ¶ 9; Ex. 11, Warmeling Dec. ¶¶ 10-13. At Caroline Detention Facility, alcohol-based sanitizers are not provided to people who are detained. Ex. 10, Aguilon Dec. ¶ 9. On March 26,
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2020, Caroline was out of soap and shampoo in at least one dormitory and failed to provide more supplies to detained individuals in that dorm. Ex. 11, Warmeling Dec. ¶ 14.
Further, the Facilities are ill-equipped to manage an infectious disease outbreak. Each facility has a limited number of medical and disciplinary isolation units, which are shared spaces. Ex. 2, ElGammal Dec. ¶ 15 Ex. 4, Schmelzel Dec. ¶ 7; Ex. 5, Dionne-Lanier Dec. ¶ 13; Ex. 6, Chacon Dec. ¶ 4; Ex. 7, Julien Dec. ¶ 12; Ex. 8, Schmelzel Dec. ¶ 11; Ex. 9, Wardlaw Dec. ¶¶ 1415, 17. This makes both containing the illness and caring for those who have become infected much more difficult. The Virginia Facilities “simply cannot handle the volume of patients that would need [the] level of monitoring” required to respond to COVID-19. Ex. 12, Greifinger Dec. ¶ 25.
At present, there are individuals in both Facilities who are exhibiting symptoms of COVID19 and many of them have not been tested. Ex. 2, ElGammal Dec. ¶¶ 5-6, 14; Ex. 3, Kumaragame Dec. ¶ 5; Ex. 7, Julien Dec. ¶ 5; Ex. 9, Wardlaw Dec. ¶ 15. The facilities have also provided little to no useful information about COVID-19 to those who are detained there. Ex. 6, Chacon Dec. ¶ 7; Ex. 8, Schmelzel Dec. ¶ 5; Ex. 9, Wardlaw Dec. ¶ 7; Ex. 10, Aguilon Dec. ¶ 9; Ex. 11, Warmeling Dec. ¶ 15. Because of these conditions, detained people in Farmville are engaged in a hunger strike, protesting their continued detention in the midst of the COVID-19 pandemic. Kumaragamage Dec. ¶ 5; Ex. 11, Warmeling Dec. ¶ 17.
Despite widespread warnings from public health officials, ICE and the Virginia Detention Facilities remain woefully unprepared and incapable of taking necessary precautions to protect people in their custody against a life-threatening illness. Ex. 12, Greifinger Dec. ¶ 17-18.
IV. ICE’s Plan for COVID-19 is Insufficient to Prevent the Spread and Management of COVID-19 in Detention Facilities.
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Once one person in a detention facility contracts the virus, it spreads quickly because
detained individuals live, sleep, eat, and use the bathroom in close proximity with others, and
because “[b]ehind bars, some of the most basic disease prevention measures are against the rules
or simply impossible.”19 In the United States and in Virginia, the most concentrated instance of
death from the virus occurred in a confined institutional setting.20 Ex. 13, Gupta Decl. ¶ 21. Similar
to those settings, the Virginia Detention Facilities are fundamentally ill-equipped to handle large
numbers of cases once people begin getting sick. The only way to mitigate the risk of spread is
release of high-risk individuals like Plaintiffs from detention.21 Ex. 12, Greifinger Dec. ¶ 29.
19 Keri Blakinger and Beth Schwartzapfel, When Purell is Contraband, How Do You Contain Coronavirus?, the Marshall Project (Mar. 6, 2020), available at https://www.themarshallproject.org/2020/03/06/when-purell-is-contraband-how-do-you-containcoronavirus.
20 Maria Sacchetti & Jay Greene, As Coronavirus Quietly Spread, A Nondescript Nursing Home Became The Deadliest Hot Spot in the U.S., The Washington Post (Mar. 7, 2020), available at https://www.washingtonpost.com/national/as-coronavirus-quietly-spread-a-nondescript-nursinghome-became-the-deadliest-hot-spot-in-the-us/2020/03/06/5d788a26-5f47-11ea-90555fa12981bbbf_story.html.
21 ICE’s official guidance states that the agency is purportedly “evaluat[ing] its detained population based upon the CDC’s guidance for people who might be at higher risk for severe illness as a result of COVID-19 to determine whether continued detention was appropriate.” See U.S. Immigration and Customs Enforcement, ICE Guidance on COVID-19 (accessed Apr. 9, 2020), https://www.ice.gov/coronavirus. On April 4, 2020, ICE issued a guidance to its Field Offices which additionally requires ICE Field Offices to review medically vulnerable individuals, including those over age 60 and those with “chronic diseases which would make them immune-compromised” and consider releasing those individuals. See COVID19 Detained Docket Review from Peter B. Berg, Assistant Director, Field Operations to ICE Field Office Directors and Deputy Field Office Directors (Apr. 4, 2020), available at https://www.yumpu.com/en/document/read/63213517/ecf-14-1-decl. But Plaintiffs have no indication that this “review” of medically-vulnerable individuals is having any effect at all. Indeed, all of the Plaintiffs have conditions that require review under this policy, but none has been released.
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Furthermore, ICE’s COVID-19 protocol is clearly insufficient to prevent infection and a subsequent outbreak.22 Id. at ¶ 17. As described in more detail below, the measures ICE is taking in response to COVID-19 are inadequate to prevent the spread of the virus in the Virginia Detention Facilities. Without taking the “extraordinary measures” that public health officials have recommended to ensure social distancing and hand hygiene in these facilities, Plaintiffs will continue to remain at risk of severe illness or death. Id. at ¶ 9.
Although ICE has temporarily suspended social visitation in all detention facilities, staff, contractors, and vendors continue to arrive and leave the detention centers.23 Id. at ¶ 22. Detained individuals are also frequently transported to, from, and between facilities. There have been new transfers at least as recently as Tuesday, March 24th in the Virginia Detention Facilities. Ex. 11, Warmeling Dec. ¶ 12. Given the general lack of available testing, it is impossible for detention facilities to consistently and adequately screen detained individuals and staff for new, asymptomatic infection. Ex. 12, Greifinger Dec. ¶ 21. As mentioned above, detained individuals, including some Plaintiffs, in the Virginia Detention Facilities are showing symptoms but have not been tested. Id.
Instead of adequate testing, one measure ICE is seemingly taking is to segregate those who meet CDC criteria for epidemiologic risk of exposure to COVID-19.24 This is inadequate to prevent the detection and spread of COVID-19. Id. at ¶ 25. Since some COVID-19 carriers can be
22 See U.S. Immigration and Customs Enforcement, ICE Guidance on COVID-19 (accessed Apr. 9, 2020), https://www.ice.gov/coronavirus. 23 Id. 24 Id. (“Detainees who meet CDC criteria for epidemiologic risk of exposure to COVID-19 are housed separately from the general population.”).
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asymptomatic or not show symptoms for weeks after exposure, “screening people based on observable symptoms is just a game of catch up.” In re Extradition of Alejandro Toledo-Manrique, No. 19-mj-71055, 2020 WL 1307109 (N.D. Cal. March 19, 2020) (ordering release on bond in part because government’s COVID-19 management plan did not “say anything about testing”). Even putting that aside, the Virginia Detention Facilities are not equipped to isolate individuals who contract COVID-19. Even assuming ICE has adequate space in their detention facilities to segregate such individuals, isolating people in this manner is an ineffective way to prevent transmission because, except in specialized negative pressure rooms, air continues to flow outward from rooms to the rest of the facility. Id. at ¶ 26.
According to Dr. Greifinger, a physician who has worked in health care for incarcerated and detained persons for over 30 years and served as an independent consultant for several government agencies, including DHS, in order “[t]o protect high-risk individuals, ICE would need to include an improved intake process, cohorted housing areas for individuals in various risk categories, increased infection control measures, and increased medical surveillance, including daily checks for signs and symptoms.” Id. ¶ 23. By failing to take these steps, “[t]he Virginia Facilities are not following relevant CDC guidance.” Id.
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
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deficient conditions, seeking to exempt them from complying with certain standards,” and “does not adequately share information about ICE detention contracts with key officials.”25
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. Last year, Farmville Detention Center had an outbreak of mumps in its facility with at least 24 people infected.26 The facility mismanaged the handling of that outbreak in several respects. Despite mumps being an illness for which there is a vaccine, detained individuals were not provided vaccines. The entire detention center was eventually placed under quarantine even though the outbreak was limited to a few dorms. Some individuals in the dorm engaged in a hunger strike in response to these conditions.27 Therefore, ICE and the Virginia Detention Facilities have a history of insufficient responses to viral outbreaks, even ones with a readily-available vaccine or cure.
Given the rapid community spread of COVID-19, variability in symptoms and the likelihood of it being spread before a patient is symptomatic, lack of available testing, and ICE’s past and present failure to meet adequate standards for containment and treatment of infectious diseases, Defendants cannot reliably prevent the spread of the virus in their detention facilities.
V. People Most Vulnerable to COVID-19 Should Be Released from ICE Detention.

25 See Office of Inspector General, ICE Does Not Fully Use Contracting Tools to Hold Detention Facility Contractors Accountable for Failing to Meet Performance Standards, 1 (Jan. 29, 2019), available at https://www.oig.dhs.gov/sites/default/files/assets/2019-02/OIG-19-18-Jan19.pdf.

26 Emma Ockerman, Migrant Detention Centers Are Getting Slammed with Mumps and

Chickenpox,

Vice

News

(Jun.

14,

2019),

available

at

https://www.vice.com/en_us/article/mb8k5q/migrant-detention-centers-are-getting-slammed-

with-mumps-and-chicken-pox.

27 Id.

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The only viable public health strategy currently available in the United States is risk mitigation, and therefore those in immigration detention most vulnerable to serious injury should they contract COVID-19 must be released.
Public health experts with experience in immigration detention and correctional settings have recommended the release of vulnerable people from custody. Two medical experts for DHS sent a warning to the agency in February that keeping people detained poses “an imminent risk to the health and safety of immigration detainees” and to the general public.28 Dr. Greifinger has concluded that “only viable public health strategy available is risk mitigation” of which “release of high-risk individuals is a key part.” Ex. 12, Greifinger Dec. ¶ 29; see also id. at ¶ 16. Releasing the most vulnerable people, such as Plaintiffs, would also reduce the burden on the Virginia Facilities’ limited health care infrastructure as well as regional hospitals and health centers. Id. at ¶ 30. In case of an outbreak at a detention center, those institutions would bear the brunt of having to treat infected individuals from detention centers and would have fewer medical resources available for the general population. Id. Despite these warnings, ICE has not released vulnerable individuals like Plaintiffs from its detention facilities.
Where prison or detention officials have been slow to act, other decisionmakers have intervened to protect the health and safety vulnerable individuals. Governments worldwide have recognized the threat posed by the spread of COVID-19 among detained and incarcerated populations and have released people for that reason. For example, Iran temporarily released more

28 Letter from Dr. Scott Allen and Dr. Josiah Rich, Medical Experts for DHS, to House Comm. on

Homeland

Sec.

(Mar.

19,

2020),

available

at

https://www.documentcloud.org/documents/6816336-032020-Letter-From-Drs-Allen-Rich-to-

Congress-Re.html#document/p4/a557238; Catherine Shoichet, Doctors Warn of “Tinderbox

Scenario” If Coronavirus Spreads in ICE Detention, CNN.com, (Mar. 20, 2020), available at

https://www.cnn.com/2020/03/20/health/doctors-ice-detention-coronavirus/index.html.

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than 80,000 detained individuals to curb the spread of the virus.29 In the United States, several
jurisdictions have also released detained individuals for the same reasons.30
Furthermore, numerous courts across the country have recognized the heightened risk to
individuals in immigration detention—even in facilities without any confirmed COVID-19
cases—and have ordered their release.31 Courts have similarly ordered release for many
individuals held or incarcerated under the federal criminal system. See ECF 1 ¶ 144.
LEGAL STANDARD
Motions for temporary restraining orders and preliminary injunctions are governed by the
same four-factor test: Courts consider whether plaintiffs have shown: (1) a likelihood of success
29 Parisa Hafezi, Iran Temporarily Frees 85,000 From Jail Including Political Prisoners, Reuters (Mar. 17, 2020), available at https://www.reuters.com/article/us-health-coronavirus-iranprisoners/iran-temporarily-frees-85000-from-jail-including-political-prisoners-amid-coronavirusidUSKBN21410M.
30 See Catherine Kim, Why People Are Being Released From Jails and Prisons During the Pandemic, Vox (Apr. 3, 2020), available at https://www.vox.com/2020/4/3/21200832/jail-prisonearly-release-coronavirus-covid-19-incarcerated (“California announced that it would let out 3,500 nonviolent inmates in the next 60 days — the most drastic measure taken by states so far. New York City Mayor Bill de Blasio also announced the city had released 900 people as of March 31.”).
31 See, e.g., Xochihua-James v. Barr, No. 18-71460 (9th Cir. Mar. 23, 2020) (unpublished) (sua sponte releasing individual from immigration detention “in light of the rapidly escalating public health crisis”); Hernandez v. Wolf, 5:20-cv-00617-TJH-KS, Dkt. No. 17 (C.D. Cal. Apr. 1, 2020) (granting TRO releasing high-risk individuals in immigration detention due to the dangers of COVID-19); Arriaga Reyes v. Decker, 2:20-cv-03600, Dkt. No. 27 (D.N.J. Apr. 13, 2020) (same); Hope v. Doll, 1:20-cv-00562-JEJ, Dkt. No. 11 (M.D. Pa. Apr. 7, 2020); Ortoño v. Jennings, 3:20cv-02064-MMC, Dkt. No. 38 (C.D. Cal. Apr. 8, 2020); Castillo v. Barr, 20-cv-00605-TJH, Dkt. No. 32 (C.D. Cal. Mar. 27, 2020) (same); Coronel v. Decker, 20-cv-2472-AJN, Dkt. No. 26 (S.D.N.Y. Mar. 27, 2020) (same); Basank v. Decker, 20-cv-2518-AT, Dkt. No. 11 (S.D.N.Y. Mar. 26, 2020) (same); Fraihat v. Wolf, 20-cv-00590-TJH-KSx (C.D. Cal. Mar. 31, 2020) (same); Malam v. Adducci, 2:20-cv-10829-JEL-APP, Dkt. No. 23 (E.D. Mich. Apr. 6, 2020) (same); Thakker v. Doll, 1:20-cv-00480-JEJ, Dkt No. 47 (E.D. Pa. Mar. 31, 2020) (ordering releases from two facilities in Pennsylvania lacking confirmed cases); see also Ronal Umana Jovel v. Decker, 12-cv-308-GBD, Dkt. No. 27 (S.D.N.Y. Mar. 26, 2020) (ordering release under Mapp v. Reno, 241 F.3d 221 (2d Cir. 2001)); Jimenez v. Wolf, 18-10225-MLW (D. Mass. Mar. 26, 2020) (same).
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on the merits; (2) that they are likely to suffer irreparable harm in the absence of such relief; (3) that the balance of equities tips in plaintiffs’ favor; and (4) that an injunction is in the public interest. Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008); see also Centro Tepeyac v. Montgomery Cty., 722 F.3d 184, 188-89 (4th Cir. 2013) (en banc) (outlining Winter standard). To show a likelihood of success on the merits, plaintiffs “need not show a certainty of success.” Pashby v. Delia, 709 F.3d 307, 321 (4th Cir. 2013).
ARGUMENT I. Plaintiffs Are Likely to Succeed on the Merits.
a. Plaintiffs’ Continued Detention Constitutes Impermissible Punishment. i. Plaintiffs, Who Are Civilly Detained Pending Adjudication of their Removal Proceedings, Are Afforded Heightened Due Process Protections.
Persons in immigration detention, even those with prior criminal convictions, are detained pursuant to civil immigration laws. Zadvydas v. Davis, 533 U.S. 678, 690 (2001). Their constitutional protections while in custody are thus derived from the Fifth Amendment, which provides protection greater than the Eighth Amendment. Persons who, like Plaintiffs, are held in civil detention are entitled to “more considerate treatment and conditions of confinement” than persons who are incarcerated because of a criminal conviction. Heyer v. United States Bureau of Prisons, 849 F.3d 202, 209 n.5 (4th Cir. 2017) (quoting Youngberg v. Romeo, 457 U.S. 307, 322 (1982)); see Brown v. Harris, 240 F.3d 383, 388 (4th Cir. 2001) (“[T]he 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.” (quoting Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977))). Courts have consistently held that persons in immigration detention must be afforded at least the same conditions as those held in other forms of civil detention. See e.g., Unknown Parties v. Johnson, No. CV-15-00250-TUC-DCB, 2016 WL 8188563 (D. Ariz.
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Nov. 18, 2016), aff’d sub nom. Doe v. Kelly, 878 F.3d 710 (9th Cir. 2017); Charles v. Orange Cty., 925 F.3d 73 (2d Cir. 2019).32
ii. Plaintiffs, Who Are Civilly Detained, May Not Be Punished. As explained above, individuals in civil detention who challenge their confinement are protected by the Due Process Clauses of the Fifth and Fourteenth Amendments. See Youngberg v. Romeo, 457 U.S. 307, 315 (1982). 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, 536-37 n.16 (1979) (holding that persons in pretrial detention may be held in custody “so long as those conditions and restrictions [of confinement] do not amount to punishment”); Nelson v. Collins, 659 F.2d 420, 425 (4th Cir. 1981). To establish that a particular condition or restriction of detention constitutes impermissible punishment under the Due Process Clause, a petitioner must show either (1) an expressed intent to punish; or (2) 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; Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988). Absent an explicit intention to punish, a court “must evaluate the evidence and ascertain the relationship between the actions taken against the detainee and the custodian’s
32 Courts have disagreed on whether persons in civil detention are entitled to greater protections than individuals in criminal pre-trial detention. Compare E.D. v. Sharkey, 928 F.3d 299, 306-07 (3d Cir. 2019) (noting that the legal rights of those in immigration detention are analogous to those in pretrial detention), with King v. Cty. of Los Angeles, 885 F.3d 548, 552 (9th Cir. 2018) (finding unconstitutional treatment where conditions in civil detention are similar to pre-trial criminal detention). The Fourth Circuit has not yet addressed this issue. Because Plaintiffs are detained civilly while awaiting adjudication of their removal proceedings, they are entitled to a more lenient standard. See Unknown Parties, 2016 WL 8188563, at *5. Plaintiffs also, at a minimum, succeed under the pretrial detention standard recognized by the Fourth Circuit as sufficient to establish a due process violation. Thus, under either standard, Plaintiffs have established a likelihood of success on the merits of their due process claim.
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supporting rationale.” Williamson v. Stirling, 912 F.3d 154, 178 (4th Cir. 2018). “That inquiry turns on whether the actions taken may validly be attributed to an alternative, nonpunitive rationale, and whether they appear ‘excessive in relation to the alternative purpose assigned.’” Id. (citations omitted).
iii. Plaintiffs’ Confinement Constitutes Punishment Because It Is Not Reasonably Related to a Legitimate Government Purpose.
Plaintiffs’ detention is clearly excessive of any legitimate interest Defendants have in their imprisonment. Although Defendants have an interest in preventing flight and protecting public safety, see Zadvydas v. Davis, 533 U.S. 678, 690 (2001), “unsanitary conditions, which include overcrowding and a high risk of COVID-19 transmission, are [not] rationally related to that legitimate government objective.” Thakker v. Doll, 1:20-cv-00480 (JEJ), Dkt No. 47, at 21 (E.D. Pa. Mar. 31, 2020). As set forth previously, each of the Plaintiffs suffers from underlying health conditions or old age that make them especially susceptible to severe illness or death if they contract COVID-19. The Virginia Detention Facilities are not equipped to take adequate measures that would prevent them from contracting COVID-19.
By holding Plaintiffs in conditions where they are unable to take the necessary precautions against infection, Defendants’ actions dramatically increase the likelihood that Plaintiffs will contract COVID-19. Detention ceases to be reasonably related to its objective when it also threatens imminent illness and death. In Zadvydas, the Supreme Court explained that this meant that “[t]here is no sufficiently strong special justification . . . for indefinite civil detention.” Zadvydas, 533 U.S. at 690. Similar principles apply here. If the government’s interest cannot justify indefinite detention, it also cannot justify the similarly “potentially permanent” medical harm and death that Plaintiffs could well face. See id. at 690-91.
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Under these circumstances, the government’s decision to keep Plaintiffs detained in conditions where they are extremely vulnerable to severe illness and death from COVID-19 is clearly excessive in relation to any interest they may have in Plaintiffs’ continued detention.
b. Plaintiffs’ Continued Detention Violates Their Constitutional Right to Reasonable Safety. i. Defendants May Not Act with Deliberate Indifference to a Substantial Risk of Harm.
The government has an affirmative duty to provide conditions of reasonable health and safety to the people it holds in its custody regardless of whether that individual is held civilly or criminally. As the Supreme Court has made clear,
[W]hen 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 . . . . The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety—it transgresses the substantive limits on state action set by the Eighth Amendment . . . . DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189, 199-200 (1989). Therefore, an individual can establish a due process violation by demonstrating that the challenged conditions or conduct violate the Eighth Amendment’s prohibition on cruel and unusual punishment. See Youngberg, 457 U.S. at 321-22. In order to establish a violation of the Eighth Amendment, convicted persons must show “deliberate indifference” on the part of prison officials. Farmer v. Brennan, 511 U.S. 825, 828 (1994). The Fourth Circuit has held that a person in pretrial detention necessarily “makes out a due process violation if he shows ‘deliberate indifference to serious medical needs’ . . . because no legitimate nonpunitive goal is served by a denial or unreasonable delay in providing medical treatment where the need for such treatment is apparent.” Martin v. Gentile, 849 F.2d 863, 871 (4th Cir. 1988) (citation omitted). In order to show that defendants acted with deliberate
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indifference to a serious harm, a plaintiff must show that (1) the plaintiff was exposed to a substantial risk of serious harm, and (2) the defendants knew of or disregarded that substantial risk to the plaintiff’s health or safety. Farmer v. Brennan, 511 U.S. 825, 834, 837–38 (1994); Thompson v. Virginia, 878 F.3d 89, 97-98 (4th Cir. 2017).
ii. Plaintiffs Are Exposed to a Substantial Risk of Serious Harm. For the first prong, a plaintiff “must establish a serious deprivation of his rights in the form of a serious or significant physical or emotional injury” or substantial risk of injury. Danser v. Stansberry, 772 F.3d 340, 346-47 (4th Cir. 2014). Such a claim “may be based on a defendant’s conduct in exposing an inmate to an unreasonable risk of future harm.” Smith v. Carpenter, 316 F.3d 178, 188 (2d Cir. 2003). Therefore, conditions that pose an unreasonable risk of future harm violate the Eighth Amendment’s prohibition against cruel and unusual punishment, and thus a fortiori the Fifth Amendment’s prohibition against any form of punishment, even if that harm has not yet come to pass. In Helling v. McKinney, 509 U.S. 25 (1993), the Supreme Court held that correctional officials may not ignore conditions that are “very likely to cause serious illness and needless suffering” in the future, and that such prospective harm may form the basis of an Eighth Amendment claim, even where the prisoner has “no serious current symptoms.” Id. at 33. The Court in Helling specifically recognized that the risk of contracting a communicable disease could constitute such an “unsafe, life-threatening condition.” Id. at 33; see also id. at 34 (citing with approval Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974), which held that prisoners were entitled to relief under the Eighth Amendment when they showed, inter alia, “the mingling of inmates with serious contagious diseases with other prison inmates”). In this case, Plaintiffs face a substantial risk of severe illness or death from an outbreak of COVID-19 in the Virginia Detention Facilities. First, COVID-19 is unlike any other contagious or communicable disease to which detained persons may be exposed in that it is spreading at alarming
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rates and there is no vaccine.33 Ex. 12, Greifinger Dec. ¶¶ 4-5. Second, Plaintiffs, due to their age or underlying medical conditions, are especially vulnerable to serious illness or death if they contract COVID-19. Id. at ¶ 28. Third, based on COVID-19 outbreaks in other countries and in other detention centers in the United States, it is only a matter of time until the disease spreads into detention facilities that are not yet aware of an outbreak in their facilities.34 Id. at ¶ 10. In fact, COVID-19 has already begun to spread rapidly in prisons, jails, and detention centers in the United States.35 Fourth, there are currently individuals in both facilities who are showing symptoms of COVID-19 but have not been tested. Ex. 2, ElGammal Dec. ¶¶ 5-6, 14; Ex. 3, Kumaragame Dec. ¶ 5; Ex. 7, Julien Dec. ¶ 5; Ex. 9, Wardlaw Dec. ¶ 15. Finally, ICE’s response to COVID-19 has been inadequate. Ex. 12, Greifinger Dec. ¶ 17. ICE is not conducting the screening and testing of detained individuals, staff, officials, contractors, vendors and other care and service providers that is needed to contain an outbreak. Id. at ¶¶ 21-22. Given the general lack of available testing, it would be impossible for detention facilities to consistently screen and test everyone for new, asymptomatic infection. Even if testing was available, it would not be sufficient to control the outbreak due to the high rates of false negative test results and the multi-day delay in getting test results. ICE’s plan to segregate individuals who meet the CDC’s criteria for epidemiologic risk of

33 Letter from Dr. Scott Allen and Dr. Josiah Rich, Medical Experts for DHS, to House Comm. on

Homeland

Sec.

(Mar.

19,

2020),

available

at

https://www.documentcloud.org/documents/6816336-032020-Letter-From-Drs-Allen-Rich-to-

Congress-Re.html#document/p4/a557238.

34 See Hannah Summers, 'Everyone Will Be Contaminated': Prisons Face Strict Coronavirus Controls, The Guardian (Mar. 23, 2020), available at https://www.theguardian.com/globaldevelopment/2020/mar/23/everyone-will-be-contaminated-prisons-face-strict-coronaviruscontrols.

35 See O’Brien, supra note 16; Bryant, supra note 16; LaRose, supra note 16.

22

Case 1:20-cv-00395-LO-JFA Document 8 Filed 04/13/20 Page 24 of 32 PageID# 164
exposure to COVID-19 is inadequate to contain an outbreak. Id. at ¶ 25. There are not enough necessary negative pressure isolation rooms in the Virginia Detention Facilities, which are the only way to control the spread of COVID-19 through air pathways. Id. at ¶ 26. As the Northern District of California has recognized, “screening people based on observable symptoms is just a game of catch up” because some COVID-19 carriers can be asymptomatic or not show symptoms for weeks after exposure. In re. Extradition of Alejandro Toledo-Manrique, No. 19-mj-71055, 2020 WL 1307109 (N.D. Cal. March 19, 2020) (ordering release on bond in part because government’s COVID-19 management plan did not “say anything about testing” for COVID-19). In fact, ICE’s preparedness plan for contagious diseases was determined to be insufficient in 2019 by DHS’s own Inspector General,36 and Farmville Detention Center has recently experienced an outbreak of mumps, which – unlike COVID-19 – has a readily accessible vaccine.37
By the time ICE recognizes that there is a coronavirus outbreak in the detention facilities in which Plaintiffs are held, it will be too late for Plaintiffs. Therefore, Plaintiffs are exposed to a substantial risk of serious harm while detained in the Virginia Detention Facilities.
iii. Defendants Have Disregarded a Substantial Risk of Serious Harm to Plaintiffs.
The second prong of the Eighth Amendment standard requires the plaintiff to establish that the prison or detention official involved had “a sufficiently culpable state of mind” amounting to “deliberate indifference to inmate health or safety.” Farmer, 511 U.S. at 834. Evidence
36 See Office of Inspector General, ICE Does Not Fully Use Contracting Tools to Hold Detention Facility Contractors Accountable for Failing to Meet Performance Standards, 1 (Jan. 29, 2019), available at https://www.oig.dhs.gov/sites/default/files/assets/2019-02/OIG-19-18-Jan19.pdf. 37 Emma Ockerman, Migrant Detention Centers Are Getting Slammed with Mumps and Chickenpox, Vice News (Jun. 14, 2019), available at https://www.vice.com/en_us/article/mb8k5q/migrant-detention-centers-are-getting-slammedwith-mumps-and-chicken-pox.
23

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establishing a culpable state of mind requires actual knowledge of an excessive risk to the detained person’s safety, or evidence that detention officials were aware of facts from which an inference could be drawn that a substantial risk of serious harm exists and that the inference was drawn. Id. at 837. A plaintiff may “prove an official’s actual knowledge of a substantial risk ‘in the usual ways, including inference from circumstantial evidence’” so that “‘a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.’” Raynor v. Pugh, 817 F.3d 123, 128 (4th Cir. 2016).
It is clear that ICE has actual knowledge of the excessive risk that the coronavirus presents to the safety of those in ICE custody. ICE has created policy guidance outlining its response to the virus.38 The agency has also announced it will delay enforcement actions to arrest fewer immigrants and use alternatives to detention as a response to the COVID-19 outbreak.39 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 those in immigration detention as a result of COVID-19 with the agency. These experts warned of the danger of rapid spread of COVID-19 in immigration detention facilities and recommended release of most people held in ICE custody.40 Over the last month, ICE has received numerous letters from advocates, medical
38 U.S. Immigration and Customs Enforcement, ICE Guidance on COVID-19 (accessed Apr. 9, 2020), https://www.ice.gov/coronavirus; COVID-19 Detained Docket Review from Peter B. Berg, Assistant Director, Field Operations to ICE Field Office Directors and Deputy Field Office Directors (Apr. 4, 2020), available at https://www.yumpu.com/en/document/read/63213517/ecf14-1-decl. 39 See Maria Sacchetti and Arelis R. Hernández, ICE to Stop Most Immigration Enforcement Inside the U.S., Will Focus on Criminals During Coronavirus Outbreak, The Washington Post (Mar. 18, 2020), available at https://www.washingtonpost.com/national/ice-halting-most-immigrationenforcement/2020/03/18/d0516228-696c-11ea-abef-020f086a3fab_story.html. 40 See, e.g., Letter from Dr. Scott Allen and Dr. Josiah Rich, Medical Experts for DHS, to House Comm. on Homeland Sec. (Mar. 19, 2020), available at
24

Case 1:20-cv-00395-LO-JFA Document 8 Filed 04/13/20 Page 26 of 32 PageID# 166
professionals, and Members of Congress emphasizing the increased risk faced by vulnerable populations in ICE detention facilities.41
There have also been many news articles highlighting the risk of coronavirus outbreaks in ICE facilities.42 The federal government itself has issued warnings about the particular risk of COVID-19 for those who are elderly or who have certain medical conditions, including those from which Plaintiffs suffer.43 Despite the fact that ICE is aware of the substantial risk faced by Plaintiffs, all of whom have underlying medical conditions that increase their risk of serious illness or death if they contract COVID-19, ICE continues to detain Plaintiffs in conditions where there is a heightened public health risk for the spread of the virus. The measures ICE has implemented thus far are clearly inadequate; Plaintiffs have reported that they have received little to no useful

https://www.documentcloud.org/documents/6816336-032020-Letter-From-Drs-Allen-Rich-toCongress-Re.html#document/p4/a557238.

41 Letter from 763 non-governmental organizations to Matthew T. Albence, Acting Director of

ICE

(Mar.

19,

2020),

available

at

https://www.detentionwatchnetwork.org/sites/default/files/ICE%20Response%20to%20Coronavi

rus%20for%20People%20Detained%20-%20Organizational%20Sign%20on%20Letter%20-

%20Final.pdf; Catherine E. Shoichet, Doctors Warn of 'Tinderbox Scenario' if Coronavirus

Spreads in ICE Detention, CNN (Mar. 20, 2020), available at

https://www.cnn.com/2020/03/20/health/doctors-ice-detention-coronavirus/index.html; Letter

from Rep. Carolyn Maloney and Rep. Jamie Raskin to Acting Secretary of DHS Chad Wolf (Mar.

11,

2020),

available

at

https://oversight.house.gov/sites/democrats.oversight.house.gov/files/2020-03-

11.CBM%20and%20JR%20to%20Wolf-DHS%20re%20COVID-19.pdf

42 See, e.g., Abigail Hauslohner, Nick Miroff & Matt Zapotosky, Coronavirus Could Pose Serious Concern in ICE Jails, Immigration Courts, The Washington Post (Mar. 12, 2020), available at https://www.washingtonpost.com/immigration/coronavirus-immigrationjails/2020/03/12/44b5e56a-646a-11ea-845d-e35b0234b136_story.html.

43 Are You at Higher Risk for Severe Illness?, Centers for Disease Control and Prevention (accessed Apr. 9, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/highrisk-complications.html.

25

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guidance about COVID-19 and they continue to live and interact in close quarters despite the risk of infection. Ex. 6, Chacon Dec. ¶ 7; Ex. 8, Schmelzel Dec. ¶ 5; Ex. 9, Wardlaw Dec. ¶ 7; Ex. 10, Aguilon Dec. ¶ 9; Ex. 11, Warmeling Dec. ¶ 15.
Thus, as the Court recognized in Helling, the Constitution “require[s] a remedy” that ensures protection of Plaintiffs’ safety. Helling, 509 U.S. at 33.
c. The Court Has Authority to Order Plaintiffs’ Release as the Sole Effective Remedy for the Constitutional Violation.
This Court has authority to release Plaintiffs in two forms: a writ of habeas corpus or an order granting injunctive relief. Habeas corpus is available if a person is “in custody in violation of the Constitution or laws or treaties of the United States . . . .” 28 U.S.C. § 2241(c)(3). Plaintiffs here meet the two jurisdictional requirements: They are in custody and they claim their continued confinement violates the Constitution. “Habeas is at its core a remedy for unlawful executive detention.” Munaf v. Geren, 553 U.S. 674, 693 (2008). Plaintiffs claim that their continued confinement is unconstitutional and that they are entitled to immediate release: a claim that lies “within the core of habeas corpus.” Preiser v. Rodriguez, 411 U.S. 475, 487 (1973). The District of Maryland has also recently noted that a claim by persons in immigration detention “seeking release because of unconstitutional conditions or treatment is cognizable under § 2241.” Coreas v. Bounds, No. 8:20-cv-00780-TDC, Dkt. No. 56 (D. Md. Apr. 3, 2020). Indeed, courts all over the country have invoked their authority under habeas to order the immediate release of individuals in immigration detention centers. See e.g., Malam v. Adducci, 2:20-cv-10829-JEL-APP, Dkt. No. 23 (E.D. Mich. Apr. 6, 2020) (holding that “where a petitioner claims no set of conditions would be sufficient to protect her constitutional rights, her claim should be construed as challenging the fact, not conditions, of her confinement and is therefore cognizable in habeas.”); Hernandez v. Wolf, 5:20-cv-00617 (TJH) (KS), Dkt. No. 17 (C.D. Cal. Apr. 1, 2020) (noting that habeas relief is not
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barred in case of detained immigrant seeking release due to threat from COVID-19 because INA “does not restrict habeas jurisdiction for petitions that raise constitutional claims).
In this case, Plaintiffs seek release from detention. Release is the only effective remedy for the constitutional violation they face. Preventive measures, such as social distancing, may be effective in the community, but are impossible to implement in the detention setting, especially so in the Virginia Detention Facilities. Ex. 12, Greifinger Dec. ¶¶ 11, 16, 18, 20. Plaintiffs continue to live and undertake activities with other people held in close quarters, and are unable to maintain the necessary hygiene and social distancing measures that could protect them from the disease. Therefore, Plaintiffs have a cognizable claim under 28 U.S.C. § 2241.
Regardless of whether habeas is the appropriate vehicle, Plaintiffs have also filed the instant case as a civil action, and this Court can and should order release as a form of injunctive relief. Courts clearly have authority to order release to redress unconstitutional conditions of confinement. “A district court enjoys wide discretionary authority in formulating remedies for constitutional violations.” Smith v. Bounds, 813 F.2d 1299, 1301 (4th Cir. 1987). Moreover, “[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).
This principle is well-established. For example, in cases involving prisons and jails, federal courts have repeatedly ordered the release of detained persons when necessary to remedy constitutional violations caused by overcrowding. 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 individuals on low-bond pretrial detention as necessary to reach a population cap); Mobile Cty. Jail Inmates v. Purvis, 581 F. Supp. 222, 224-25 (S.D. Ala. 1984) (concluding that district court properly exercised remedial powers to order a prison’s population
27

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reduced to alleviate unconstitutional conditions and noting other cases); Inmates of the Allegheny Cty. Jail v. Wecht, 565 F. Supp. 1278, 1297 (W.D. Pa. 1983) (order to reduce overcrowding “is within our power to correct the constitutional violations”); Brenneman v. Madigan, 343 F. Supp. 128, 139 (N.D. Cal. 1972) (“If the state cannot obtain the resources to detain persons . . . in accordance with minimum constitutional standards, then the state simply will not be permitted to detain such persons.”).
For the foregoing reasons, Plaintiffs are likely to succeed on the merits of their claim that their continued detention violates their Fifth Amendment due process right to reasonable safety in government custody.
II. The Remaining Factors Weigh Heavily in Favor of Granting a Temporary Restraining Order and/or Preliminary Injunction. a. Plaintiffs Will Suffer Irreparable Harm Absent Preliminary Relief.
The Fourth Circuit has held that “the denial of a constitutional right” itself “constitutes irreparable harm for purposes of equitable jurisdiction.” Ross v. Meese, 818 F.2d 1132, 1135 (4th Cir. 1987). Accordingly, Plaintiffs – whose Fifth Amendment rights are being violated – are suffering irreparable harm.
Plaintiffs are also suffering irreparable harm because they have underlying medical conditions that increase their likelihood of severe illness or death if they contract COVID-19. Public health experts have concluded that people with these characteristics in institutional settings such as immigration detention centers are at grave risk of severe illness and death. Ex. 12, Greifinger Dec. ¶¶ 10-16. Accordingly, more than 3,000 medical health professionals have urgently requested that ICE immediately release detained immigrants in their custody, and two doctors who are medical experts for the Department of Homeland Security have sent a warning to
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Congress that keeping people in immigration detention poses “an imminent risk to the health and safety of immigration detainees” and to the general public.44
Moreover, the harm is “neither remote nor speculative, but actual and imminent.” Direx Israel, Ltd. v. Breakthrough Medical Group, 952 F.2d 802, 812 (4th Cir. 1991) (citation omitted). The Eastern District of Pennsylvania emphasized the imminent nature of the threat in ordering immediate release for a group of individuals held in ICE detention facilities:
The Petitioners’ claim is rooted in imminent, irreparable harm. Petitioners face the inexorable progression of a global pandemic creeping across our nation—a pandemic to which they are particularly vulnerable due to age and underlying medical conditions. At this point, it is not a matter of if COVID-19 will enter Pennsylvania prisons, but when it is finally detected therein. Thakker v. Doll, 1:20-cv-00480 (JEJ), Dkt No. 47 (E.D. Pa. Mar. 31, 2020). Once ICE confirms that COVID-19 has reached the Virginia Detention Facilities, it “may be too late,” ToledoManrique, 2020 WL 1307109, at *1, especially considering the lack of available testing. Furthermore, the Virginia Detention Facilities have patently failed to provide conditions of basic health and safety, making it all the more likely that the harm is imminent.
b. The Public Interest and Balance of Equities Weigh Heavily in Plaintiffs’ Favor.
The final two factors generally “merge when the Government is the opposing party.” Nken v. Holder, 556 U.S. 418, 435 (2009); see Kravitz v. U.S. Dep’t of Commerce, 366 F. Supp. 3d 681, 755 (D. Md. 2019). The balance of harms and public interest weigh strongly in favor of granting preliminary relief. See Winter, 555 U.S. at 24. In contrast to the irreparable injury facing plaintiffs, the government will not be injured by an injunction. As the Fourth Circuit has recognized, a
44 Catherine E. Shoichet, Doctors Warn of 'Tinderbox Scenario' if Coronavirus Spreads in ICE Detention, CNN (Mar. 20, 2020), available at https://www.cnn.com/2020/03/20/health/doctorsice-detention-coronavirus/index.html.
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governmental entity “is in no way harmed by issuance of a preliminary injunction which prevents it from enforcing a regulation, which . . . is likely to be found unconstitutional. . . . Surely, upholding constitutional rights serves the public interest.” Newsom ex rel. Newsom v. Albemarle Cty. Sch. Bd., 354 F.3d 249, 261 (4th Cir. 2003); Legend Night Club v. Miller, 637 F.3d 291, 30203 (4th Cir. 2011) (“[T]he State . . . is in no way harmed by issuance of an injunction that prevents the state from enforcing [unlawful] restrictions.”). Because Plaintiffs’ continued detention is unconstitutional and unlawful, both the balance of the equities and the public interest weigh in favor of emergency relief.
III. The Court Should Not Require Plaintiffs to Provide Security Prior to Issuing a Temporary Restraining Order and/or Preliminary Injunction.
Federal Rule of Civil Procedure 65(c) provides that “The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” However, “the district court retains the discretion to . . . waive the security requirement.” Pashby v. Delia, 709 F.3d 307, 332 (4th Cir. 2013) (citation omitted). District courts routinely exercise this discretion to require no security in cases brought by indigent and/or incarcerated people. See, e.g., Beck v. Hurwitz, 380 F. Supp. 3d 479, 485 (M.D. N.C. 2019) (federal prisoner); Toussaint v. Rushen, 553 F. Supp. 1365, 1383 (N.D. Cal. 1983) (state prisoners); Orantes–Hernandez v. Smith, 541 F. Supp. 351, 385 n. 42 (C.D. Cal. 1982) (detained immigrants). This Court should do the same here.
CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that this Court grant the motion for a temporary restraining order and/or preliminary injunction and order their immediate release from custody.
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Dated: April 13, 2020

Respectfully submitted,

/s/ Adina Appelbaum Adina Appelbaum, Virginia Bar No. 88974 adina@caircoalition.org Capital Area Immigrants’ Rights (CAIR) Coalition 1612 K Street NW Suite 204 Washington, DC 20006 (202) 899-1412
Kristin Donovan, Va. Bar No. 92207 kristin@justice4all.org Granville Warner, Va. Bar. No. 24957 cwarner@justice4all.org Legal Aid Justice Center 6066 Leesburg Pike, Suite 520 Falls Church, VA 22041 (703) 778-3450

Sirine Shebaya* sirine@nipnlg.org Amber Qureshi* amber@nipnlg.org National Immigration Project of the National Lawyers Guild 2201 Wisconsin Ave NW, Suite 200 Washington, DC 20007 (202) 656-4788

Attorneys for Petitioners-Plaintiffs * pro hac vice applications pending

31

 
 Case 1:20-cv-00395-LO-JFA Document 33 Filed 04/29/20 Page 1 of 30 PageID# 569

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

Toure,et al.,
V.
Hott,et al.,

Plaintiffs, Defendants.

Civil Action No. l:20-cv-395
Hon. Liam O'Grady

MEMORANDUM OPINION & ORDER
This matter is before the Court upon the motion ofPlaintiff-Petitioners for a temporary restraining order or preliminary injunction. Dkt. 7. They seek immediate release from two immigration detention centers,either upon their own recognizance or,alternatively,for placement into community-based alternatives to detention. Dkt. 7. The matter was fully briefed, and the Court heard oral argument by telephone on April 24,2020.
I. Background
Plaintiff-Petitioners("Plaintiffs")brought this action styled as both a petition for a writ of habeas corpus and a civil complaint. They are individuals in the custody of U.S. Immigration and Customs Enforcement("ICE"),currently detained in one oftwo different Virginia facilities: Farmville Detention Center("Farmville")and Caroline Detention Facility("Caroline"). They are detained under various statutory provisions,and each has a unique administrative history.'

'In a footnote,the Government contested the propriety ofthis as a single action based on the number ofPlaintiffs and the differences in their individual circumstances. While Plaintiffs have slightly varying circumstances, each is similarly situated in that each: has an underlying medical condition which may increase vulnerability to COVID-19, is a civil immigration detainee,and is detained in one oftwo detention centers in Virginia. They have asserted a right to reliefarising out ofthe same series oftransactions or occurrences,and the Court finds questions oflaw and offact are common to all Plaintiffs. Accordingly, Plaintiffs may proceed in one action. See Fed. R. Civ. P.20.
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 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

Toure,et al..
V.
Hott,et al..

Plaintiffs, Defendants.

Case No. l:20-cv-395
Hon.Liam O'Grady

ORDER
This matter comes before the Court on the Plaintiffs' Notice of Voluntary Dismissal. Dkt. 43. Pursuant to Rule41(a)(l)(A)(i)ofthe Federal Rules ofCivil Procedure, Plaintiffs voluntarily dismiss their claims without prejudice.
Accordingly, the above-captioned action is hereby DISMISSED WITHOUT
PREJUDICE and the matter is concluded. The clerk of this Court is directed to remove the
Action from the active docket. Each party shall bear its own costs and attorney's fees.
It is SO ORDERED.

October

2020

Alexandria, Virginia

\
Liam O'Grany United States District Judge