1/14/2021

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U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:18-cv-00760-CKK-RMM

SOUTHERN POVERTY LAW CENTER v. U.S. DEPARTMENT OF HOMELAND SECURITY et al Assigned to: Judge Colleen Kollar-Kotelly Referred to: Magistrate Judge Robin M. Meriweather Case in other court: USCA, 20-05257 Cause: 28:2201 Constitutionality of State Statute(s)

Date Filed: 04/04/2018 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Plaintiff
SOUTHERN POVERTY LAW CENTER in its individual capacity and on behalf of its clients detained at LaSalle ICE Processing Center, Irwin County Detention Center, and Stewart Detention Center

represented by Veronica Salama SOUTHERN POVERTY LAW CENTER 400 Washington Ave Montgomery, AL 36104 404-807-0475 Email: veronica.salama@splcenter.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christian F. Henel KILPATRICK TOWNSEND & STOCKTON, LLP 607 14th Street, NW Suite 900 Washington, DC 20005 (202) 481-9943 Fax: (202) 379-7726 Email: chenel@kilpatricktownsend.com TERMINATED: 09/04/2019

Conor S. Gaffney SOUTHERN POVERTY LAW CENTER 201 St. Charles Ave Suite 2000 New Orleans, LA 70170 504-421-1892 Email: conor.gaffney@splcenter.org PRO HAC VICE ATTORNEY TO BE NOTICED

Elissa Johnson SOUTHERN POVERTY LAW CENTER 111 E Capitol Street Suite 280

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?845955524813718-L_1_0-1

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District of Columbia live database
Jackson, MS 39201 (601) 948-8882 TERMINATED: 11/04/2019 PRO HAC VICE

Gia L. Cincone KILPATRICK TOWNSEND & STOCKTON, LLP Two Embarcadero Center Suite 1900 San Francisco, CA 94111 (415) 273-7546 PRO HAC VICE ATTORNEY TO BE NOTICED

Gracie Willis SOUTHERN POVERTY LAW CENTER 150 E Ponce de Leon Ave Ste 340 Decatur, GA 30030 404-221-4050 Email: gracie.willis@splcenter.org PRO HAC VICE ATTORNEY TO BE NOTICED

Jamila A. Johnson SOUTHERN POVERTY LAW CENTER 201 St. Charles Avenue Suite 2000 New Orleans, LA 70170 (504) 486-8982 Email: Jamila.johnson@splcenter.org TERMINATED: 09/04/2019 PRO HAC VICE

Jared F. Davidson SOUTHERN POVERTY LAW CENTER 201 St. Charles Avenue Suite 2000 New Orleans, LA 70170 504-239-3987 Fax: 504-486-8947 Email: jared.davidson@splcenter.org TERMINATED: 09/22/2020 PRO HAC VICE

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?845955524813718-L_1_0-1

Jeffrey Fisher KILPATRICK TOWNSEND & STOCKTON, LLP 1100 Peachtree Street, NE Suite 2800 Atlanta, GA 30309 (404) 685-6772 PRO HAC VICE
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District of Columbia live database
ATTORNEY TO BE NOTICED

John Timothy Bergin KILPATRICK TOWNSEND & STOCKTON LLP 607 14th Street Suite 900 Washington, DC 20005 (202) 481-9942 Fax: (202) 204-5622 Email: jbergin@Kilpatricktownsend.com ATTORNEY TO BE NOTICED

Lisa S. Graybill NATIONAL IMMIGRATION LAW CENTER PO Box 40476 Austin, TX 78704 213-493-6503 Email: graybill@nilc.org TERMINATED: 09/24/2020 PRO HAC VICE

Maureen A. Sheehy KILPATRICK TOWNSEND & STOCKTON, LLP Two Embarcadero Center Suite 1900 San Francisco, CA 94111 (415) 273-7571 TERMINATED: 09/05/2018 PRO HAC VICE

Melissa E. Crow SOUTHERN POVERTY LAW CENTER 1101 17th Street N.W. 7th Floor Washington, DC 20036 (202) 355-4471 Fax: (202) 742-5619 Email: Melissa.Crow@splcenter.org TERMINATED: 03/13/2020

Natalie Lyons SOUTHERN POVERTY LAW CENTER 150 E. Ponce de Leon Avenue Suite 340 Decatur, GA 30030 (404) 521-6700 TERMINATED: 04/04/2019 PRO HAC VICE

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?845955524813718-L_1_0-1

Sarah Rich SOUTHERN POVERTY LAW CENTER
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V. Defendant U.S. DEPARTMENT OF HOMELAND SECURITY

District of Columbia live database
150 E. Ponce de Leon Ave. Decatur, GA 30030 404-521-6700 Email: sarah.rich@splcenter.org PRO HAC VICE ATTORNEY TO BE NOTICED
Shalini G. Agarwal 2941 Brandemere Dr 32312 Tallahassee, FL 32312 706-473-6329 Email: shaluram@gmail.com TERMINATED: 09/01/2020 PRO HAC VICE
Susan W. Pangborn KILPATRICK TOWNSEND & STOCKTON LLP 1100 Peachtree Street NE Suite 2800 Atlanta, GA 30309 (404) 815-6305 PRO HAC VICE ATTORNEY TO BE NOTICED
William E. Dorris KILPATRICK STOCKTON LLP 1100 Peachtree Street Suite 2800 Atlanta, GA 30309-4530 (404) 815-6104 Fax: (404) 815-6104 Email: bdorris@kilpatrickstockton.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christopher Thomas Lyerla U.S. DEPARTMENT OF JUSTICE Ofﬁce of Immigration Litigation 450 5th St NW Washington, DC Suitte Lsb 5425 Washington, DC 20530 (202) 598-6499 Fax: (202) 305-7000 Email: christopher.t.lyerla@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?845955524813718-L_1_0-1

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District of Columbia live database
Daniel Patrick Schaefer U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA 555 Fourth Street, NW Washington, DC 20530 (202) 252-2531 Fax: (202) 252-2599 Email: Daniel.Schaefer@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Joseph Walker U.S. DEPARTMENT OF JUSTICE Civil Division P.O. Box 868 Washington, DC 20044 (202) 532-4468 Email: james.walker3@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Ann Mueller U.S. DEPARTMENT OF JUSTICE Ofﬁce of Immigration Litigation 450 5th Street, NW Washington, DC 20001 202-598-2445 Email: ruth.a.mueller@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sheetul Sheth Wall U.S. DEPARTMENT OF JUSTICE Immigration Litigation-District Court Section P.O. Box 868 450 5th Street N.W. Washington, DC 20001 (202) 598-2668 Email: sheetul.s.wall2@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alan Burch U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA 555 Fourth Street, NW Washington, DC 20530 (202) 252-2550 Email: alan.burch@usdoj.gov TERMINATED: 09/20/2020 ATTORNEY TO BE NOTICED

David Byerley

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?845955524813718-L_1_0-1

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Defendant U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT

District of Columbia live database
U.S. DEPARTMENT OF JUSTICE Civil Division P.O. Box 868 Ben Franklin Station Washington, DC 20044 202-532-4523 Email: david.byerley@usdoj.gov ATTORNEY TO BE NOTICED
Yamileth G. Davila UNITED STATES DEPARTMENT OF JUSTICE, CIVIL DIVISION Ofﬁce of Immigration Litigation District Court Section P.O. Box 878 Ben Franklin Station Washington, DC 20044 (202) 305-0137 Email: yamileth.g.davila@usdoj.gov ATTORNEY TO BE NOTICED
represented by Christopher Thomas Lyerla (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Patrick Schaefer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Joseph Walker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ruth Ann Mueller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sheetul Sheth Wall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alan Burch (See above for address) TERMINATED: 09/20/2020 ATTORNEY TO BE NOTICED
David Byerley (See above for address) ATTORNEY TO BE NOTICED

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?845955524813718-L_1_0-1

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Defendant KIRSTJEN M. NIELSEN Secretary of Homeland Security, in ofﬁcial capacity TERMINATED: 08/28/2019
Defendant THOMAS HOMAN Deputy Director and Acting Director, U.S. Immigration and Customs Enforcement, in ofﬁcial capacity TERMINATED: 10/10/2018
Defendant CLAIRE TRICKLER-MCNULTY Acting Director U.S. Immigration and Customs Enforcement, Ofﬁce of Detention Policy and Planning, in ofﬁcial capacity

District of Columbia live database
Yamileth G. Davila (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Patrick Schaefer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ruth Ann Mueller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Byerley (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Patrick Schaefer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ruth Ann Mueller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Byerley (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Thomas Lyerla (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Patrick Schaefer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Joseph Walker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ruth Ann Mueller (See above for address) LEAD ATTORNEY

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?845955524813718-L_1_0-1

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ATTORNEY TO BE NOTICED

Sheetul Sheth Wall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alan Burch (See above for address) TERMINATED: 09/20/2020 ATTORNEY TO BE NOTICED

David Byerley (See above for address) ATTORNEY TO BE NOTICED

Defendant
TAE JOHNSON Assistant Director for Custody Management, Enforcement & Removal Operations, in ofﬁcial capacity

Yamileth G. Davila (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Thomas Lyerla (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Patrick Schaefer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Joseph Walker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Ann Mueller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sheetul Sheth Wall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alan Burch (See above for address) TERMINATED: 09/20/2020 ATTORNEY TO BE NOTICED

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?845955524813718-L_1_0-1

David Byerley (See above for address) ATTORNEY TO BE NOTICED
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Defendant
NATHALIE ASHER Acting Assistant Director, Field Operations for Enforcement and Removal Operations, in ofﬁcial capacity

Yamileth G. Davila (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Thomas Lyerla (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Patrick Schaefer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Joseph Walker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Ann Mueller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sheetul Sheth Wall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alan Burch (See above for address) TERMINATED: 09/20/2020 ATTORNEY TO BE NOTICED

David Byerley (See above for address) ATTORNEY TO BE NOTICED

Yamileth G. Davila (See above for address) ATTORNEY TO BE NOTICED

Defendant

DAVID RIVERA Field Ofﬁce Director, U.S. Immigration and Customs Enforcement, New Orleans Field Ofﬁce, in ofﬁcial capacity TERMINATED: 08/28/2019

represented by Daniel Patrick Schaefer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ruth Ann Mueller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?845955524813718-L_1_0-1

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District of Columbia live database

Defendant
SEAN GALLAGHER Field Ofﬁce Director, U.S. Immigration and Customs Enforcement, Atlanta Field Ofﬁce, in ofﬁcial capacity

David Byerley (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Thomas Lyerla (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Patrick Schaefer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Joseph Walker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Ann Mueller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sheetul Sheth Wall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alan Burch (See above for address) TERMINATED: 09/20/2020 ATTORNEY TO BE NOTICED

David Byerley (See above for address) ATTORNEY TO BE NOTICED

Defendant
MATTHEW T. ALBENCE Executive Associate Director, Enforcement & Removal Operations, in ofﬁcial capacity

Yamileth G. Davila (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Thomas Lyerla (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?845955524813718-L_1_0-1

Daniel Patrick Schaefer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
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District of Columbia live database

James Joseph Walker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Ann Mueller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sheetul Sheth Wall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alan Burch (See above for address) TERMINATED: 09/20/2020 ATTORNEY TO BE NOTICED

David Byerley (See above for address) ATTORNEY TO BE NOTICED

Defendant
RONALD D. VITIELLO TERMINATED: 08/28/2019

Yamileth G. Davila (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Patrick Schaefer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Ann Mueller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Byerley (See above for address) ATTORNEY TO BE NOTICED

Defendant

DAVID JENNINGS Field Ofﬁce Director, U.S. Immigration and Customs Enforcement, New Orleans Field Ofﬁce, in ofﬁcial capacity TERMINATED: 08/28/2019

represented by Daniel Patrick Schaefer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ruth Ann Mueller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?845955524813718-L_1_0-1

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District of Columbia live database

Defendant
KEVIN K. MCALEENAN Acting Secretary of Homeland Security, in ofﬁcial capacity

David Byerley (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Thomas Lyerla (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Patrick Schaefer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Joseph Walker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Ann Mueller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sheetul Sheth Wall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alan Burch (See above for address) TERMINATED: 09/20/2020 ATTORNEY TO BE NOTICED

David Byerley (See above for address) ATTORNEY TO BE NOTICED

Defendant
DEREK N. BENNER Acting Deputy Director, U.S. Immigration and Customs Enforcement, in ofﬁcial capacity

Yamileth G. Davila (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Thomas Lyerla (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?845955524813718-L_1_0-1

Daniel Patrick Schaefer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
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District of Columbia live database

James Joseph Walker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Ann Mueller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sheetul Sheth Wall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alan Burch (See above for address) TERMINATED: 09/20/2020 ATTORNEY TO BE NOTICED

David Byerley (See above for address) ATTORNEY TO BE NOTICED

Defendant
ENRIQUE LUCERO Assistant Director, Field Operations, Enforcement and Removal Operations, in ofﬁcial capacity

Yamileth G. Davila (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Thomas Lyerla (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Patrick Schaefer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Joseph Walker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Ann Mueller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?845955524813718-L_1_0-1

Sheetul Sheth Wall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
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Defendant TREY LUND Acting Field Ofﬁce Director, U.S. Immigration and Customs Enforcement

District of Columbia live database
Alan Burch (See above for address) TERMINATED: 09/20/2020 ATTORNEY TO BE NOTICED
David Byerley (See above for address) ATTORNEY TO BE NOTICED
Yamileth G. Davila (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Thomas Lyerla (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Patrick Schaefer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Joseph Walker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ruth Ann Mueller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sheetul Sheth Wall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alan Burch (See above for address) TERMINATED: 09/20/2020 ATTORNEY TO BE NOTICED
David Byerley (See above for address) ATTORNEY TO BE NOTICED
Yamileth G. Davila (See above for address) ATTORNEY TO BE NOTICED

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Date Filed 04/04/2018
04/04/2018 04/04/2018 04/04/2018
04/04/2018
04/04/2018
04/04/2018
04/04/2018
04/04/2018

# Docket Text

District of Columbia live database

1 COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0090-5403950) ﬁled by SOUTHERN POVERTY LAW CENTER. (Attachments: # 1 Civil Cover Sheet SPLC Civil Cover Sheet, # 2 Summons US Attorney General Summons, # 3 Summons US Attorney DC Summons, # 4 Summons DHS Summons, # 5 Summons ICE Summons, # 6 Summons Albence Summons, # 7 Summons Asher Summons, # 8 Summons Gallagher Summons, # 9 Summons Homan Summons, # 10 Summons Johnson Summons, # 11 Summons Nielsen Summons, # 12 Summons Rivera Summons, # 13 Summons Tickler-McNulty Summons)(Henel, Christian) (Entered: 04/04/2018)

2 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Afﬁliations and Financial Interests by SOUTHERN POVERTY LAW CENTER (Henel, Christian) (Entered: 04/04/2018)

3 NOTICE of Appearance by John Timothy Bergin on behalf of SOUTHERN POVERTY LAW CENTER (Bergin, John) (Entered: 04/04/2018)

4 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Jeffrey Fisher, :FirmKilpatrick Townsend & Stockton LLP, :Address- 1100 Peachtree Street, NE, Suite 2800, Atlanta, GA 30309. Phone No. - (404) 685-6772. Fax No. - (404) 541-4685 Filing fee $ 100, receipt number 0090-5404424. Fee Status: Fee Paid. by SOUTHERN POVERTY LAW CENTER (Attachments: # 1 Declaration Declaration of Jeffrey Fisher, # 2 Text of Proposed Order Proposed Order)(Henel, Christian) (Entered: 04/04/2018)

5 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Jamila A. Johnson, :FirmSouthern Poverty Law Center, :Address- 201 St. Charles Ave., Suite 2000, New Orleans, LA 70170. Phone No. - (504) 486-8982. Filing fee $ 100, receipt number 0090-5404518. Fee Status: Fee Paid. by SOUTHERN POVERTY LAW CENTER (Attachments: # 1 Declaration Declaration of Jamila A. Johnson, # 2 Text of Proposed Order Proposed Order)(Henel, Christian) (Entered: 04/04/2018)

6 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Natalie Lyons, :FirmSouthern Poverty Law Center, :Address- 150 E. Ponce de Leon Ave., Ste. 340, Decatur, GA 30030. Phone No. - (404) 521-6700. Filing fee $ 100, receipt number 0090-5404548. Fee Status: Fee Paid. by SOUTHERN POVERTY LAW CENTER (Attachments: # 1 Declaration Declaration of Natalie Lyons, # 2 Text of Proposed Order Proposed Order) (Henel, Christian) (Entered: 04/04/2018)

7 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Maureen A. Sheehy, :Firm- Kilpatrick Townsend & Stockton LLP, :Address- Two Embarcadero Center, Suite 1900, San Francisco, CA 94111. Phone No. - (415) 273-7571. Filing fee $ 100, receipt number 0090-5404614. Fee Status: Fee Paid. by SOUTHERN POVERTY LAW CENTER (Attachments: # 1 Declaration Declaration of Maureen Sheehy, # 2 Text of Proposed Order Proposed Order)(Henel, Christian) (Entered: 04/04/2018)

8 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- William E. Dorris, :FirmKilpatrick Townsend & Stockton LLP, :Address- 1100 Peachtree Street NE, Suite 2800, Atlanta, GA 30309. Phone No. - (404) 815-6104. Filing fee $ 100, receipt number 00905404663. Fee Status: Fee Paid. by SOUTHERN POVERTY LAW CENTER (Attachments: # 1 Declaration Declaration of William Dorris, # 2 Text of Proposed Order Proposed Order)(Henel, Christian) (Entered: 04/04/2018)

9 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Gia L. Cincone, :FirmKilpatrick Townsend & Stockton LLP, :Address- Two Embarcadero Center, Suite 1900, San Francisco, CA 94111. Phone No. - (415) 273-7546. Filing fee $ 100, receipt number 0090-5404823. Fee Status: Fee Paid. by SOUTHERN POVERTY LAW CENTER

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District of Columbia live database
(Attachments: # 1 Declaration Declaration of Gia Cincone, # 2 Text of Proposed Order Proposed Order)(Henel, Christian) (Entered: 04/04/2018)

04/04/2018

10 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Susan W. Pangborn, :FirmKilpatrick Townsend & Stockton LLP, :Address- 1100 Peachtree Street NE, Suite 2800, Atlanta, GA 30309. Phone No. - (404) 815-6305. Filing fee $ 100, receipt number 00905404852. Fee Status: Fee Paid. by SOUTHERN POVERTY LAW CENTER (Attachments: # 1 Declaration Declaration of Susan Pangborn, # 2 Text of Proposed Order Proposed Order)(Henel, Christian) (Entered: 04/04/2018)

04/04/2018

11 NOTICE of Appearance by Melissa E. Crow on behalf of SOUTHERN POVERTY LAW CENTER (Crow, Melissa) (Entered: 04/04/2018)

04/04/2018

12 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Jared F. Davidson, :FirmSouthern Poverty Law Center, :Address- 201 St. Charles Avenue, Suite 200, New Orleans, LA 70170. Phone No. - (504) 486-8982. Filing fee $ 100, receipt number 00905404989. Fee Status: Fee Paid. by SOUTHERN POVERTY LAW CENTER (Attachments: # 1 Declaration Declaration of Jared Davidson, # 2 Text of Proposed Order Proposed Order)(Henel, Christian) (Entered: 04/04/2018)

04/04/2018

13 NOTICE of Appearance by Christian F. Henel on behalf of SOUTHERN POVERTY LAW CENTER (Henel, Christian) (Entered: 04/04/2018)

04/04/2018

Case Assigned to Judge Colleen Kollar-Kotelly. (zsb) (Entered: 04/04/2018)

04/04/2018

14 SUMMONS (12) Issued Electronically as to All Defendants, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Notice and Consent)(zsb) (Entered: 04/04/2018)

04/06/2018

15 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Lisa S. Graybill, :FirmSouthern Poverty Law Center, :Address- 201 St. Charles Avenue, Suite 200, New Orleans, LA 70170. Phone No. - (504) 486-8982. Filing fee $ 100, receipt number 00905408211. Fee Status: Fee Paid. by SOUTHERN POVERTY LAW CENTER (Attachments: # 1 Declaration Declaration of Lisa Graybill, # 2 Text of Proposed Order Proposed Order)(Henel, Christian) (Entered: 04/06/2018)

04/10/2018

MINUTE ORDER: The Court has received Plaintiff Southern Poverty Law Center's Motions for Admission of Attorney Pro Hac Vice with respect to the following individuals: 4 Jeffrey Fisher, 5 Jamila A. Johnson, 6 Natalie Lyons, 7 Maureen A. Sheehy, 8 William E. Dorris, 9 Gia L. Cincone, 10 Susan W. Pangborn, 12 Jared F. Davidson, and 15 Lisa S. Graybill. Those motions are GRANTED CONTINGENT upon submission by each of the aforementioned attorneys of a declaration by APRIL 17, 2018, stating that he or she has reviewed and is familiar with the Local Rules of this Court. Signed by Judge Colleen Kollar-Kotelly on April 10, 2018. (lcckk1) (Entered: 04/10/2018)

04/11/2018

16 AFFIDAVIT re Order on Motion for Leave to Appear Pro Hac Vice,,,,,,,,,,,,,,,,,,,,,,,,,, Declaration of Jeffrey Fisher In Further Support of Motion for Admission Pro Hac Vice by SOUTHERN POVERTY LAW CENTER. (Henel, Christian) (Entered: 04/11/2018)

04/11/2018

17 AFFIDAVIT re Order on Motion for Leave to Appear Pro Hac Vice,,,,,,,,,,,,,,,,,,,,,,,,,, Declaration of Maureen A. Sheehy In Further Support of Motion for Admission Pro Hac Vice by SOUTHERN POVERTY LAW CENTER. (Henel, Christian) (Entered: 04/11/2018)

04/11/2018

18 AFFIDAVIT re Order on Motion for Leave to Appear Pro Hac Vice,,,,,,,,,,,,,,,,,,,,,,,,,, Declaration of Natalie Lyons In Further Support of Motion for Admission Pro Hac Vice by SOUTHERN POVERTY LAW CENTER. (Henel, Christian) (Entered: 04/11/2018)

04/11/2018

19 AFFIDAVIT re Order on Motion for Leave to Appear Pro Hac Vice,,,,,,,,,,,,,,,,,,,,,,,,,, Declaration of Jamila A. Johnson In Further Support of Motion for Admission Pro Hac

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Vice by SOUTHERN POVERTY LAW CENTER. (Henel, Christian) (Entered: 04/11/2018)

04/11/2018

20 AFFIDAVIT re Order on Motion for Leave to Appear Pro Hac Vice,,,,,,,,,,,,,,,,,,,,,,,,,, Declaration of Jared F. Davidson In Further Support of Motion for Admission Pro Hac Vice by SOUTHERN POVERTY LAW CENTER. (Henel, Christian) (Entered: 04/11/2018)

04/11/2018

21 AFFIDAVIT re Order on Motion for Leave to Appear Pro Hac Vice,,,,,,,,,,,,,,,,,,,,,,,,,, Declaration of Lisa Graybill In Further Support of Motion for Admission Pro Hac Vice by SOUTHERN POVERTY LAW CENTER. (Henel, Christian) (Entered: 04/11/2018)

04/12/2018

22 AFFIDAVIT re Order on Motion for Leave to Appear Pro Hac Vice,,,,,,,,,,,,,,,,,,,,,,,,,, Declaration of William E. Dorris In Further Support of Motion for Admission Pro Hac Vice by SOUTHERN POVERTY LAW CENTER. (Henel, Christian) (Entered: 04/12/2018)

04/12/2018

23 AFFIDAVIT re Order on Motion for Leave to Appear Pro Hac Vice,,,,,,,,,,,,,,,,,,,,,,,,,, Declaration of Gia L. Cincone In Further Support of Motion for Admission Pro Hac Vice by SOUTHERN POVERTY LAW CENTER. (Henel, Christian) (Entered: 04/12/2018)

04/13/2018 04/16/2018 04/19/2018

24 AFFIDAVIT re Order on Motion for Leave to Appear Pro Hac Vice,,,,,,,,,,,,,,,,,,,,,,,,,, Declaration of Susan W. Pangborn In Further Support of Motion for Admission Pro Hac Vice by SOUTHERN POVERTY LAW CENTER. (Henel, Christian) (Entered: 04/13/2018)
25 ORDER ESTABLISHING PROCEDURES FOR CASES ASSIGNED TO JUDGE COLLEEN KOLLAR-KOTELLY. Signed by Judge Colleen Kollar-Kotelly on 04/16/2018. (DM) (Entered: 04/16/2018)
26 ENTERED IN ERROR. . . . .RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 4/9/2018. ( Answer due for ALL FEDERAL DEFENDANTS by 6/8/2018.), RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 04/09/2018. (Henel, Christian) Modiﬁed on 4/20/2018 (td). (Entered: 04/19/2018)

04/19/2018

27 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. TAE JOHNSON served on 4/9/2018 (Henel, Christian) (Entered: 04/19/2018)

04/19/2018

28 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. MATTHEW T. ALBENCE served on 4/9/2018 (Henel, Christian) (Entered: 04/19/2018)

04/19/2018 04/19/2018 04/20/2018

29 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. NATHALIE ASHER served on 4/9/2018 (Henel, Christian) (Entered: 04/19/2018)
30 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 4/9/18. (td) (Entered: 04/20/2018)
NOTICE OF CORRECTED DOCKET ENTRY: re 26 Summons Returned Executed as to US Attorney,, Summons Returned Executed as to U.S. Attorney General, was entered in error and said pleading reﬁled using the correct event for U.S.Attorney General. (td) (Entered: 04/20/2018)

04/20/2018

NOTICE OF ERROR re 26 Summons Returned Executed as to US Attorney; emailed to chenel@kilpatricktownsend.com, cc'd 5 associated attorneys -- The PDF ﬁle you docketed contained errors: 1. Please ﬁle document(s) for service upon the U.S. Attorney. (ztd, ) (Entered: 04/20/2018)

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31 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 4/9/2018. Answer due for ALL FEDERAL DEFENDANTS by 6/8/2018. (Henel, Christian) (Entered: 04/23/2018)
32 WITHDRAWN PURSUANT TO NOTICE FILED 9/5/2018..... MOTION for Preliminary Injunction by SOUTHERN POVERTY LAW CENTER (Attachments: # 1 Memorandum in Support Plaintiff's Memorandum ISO Motion for Preliminary Injunction, # 2 Text of Proposed Order Proposed Order, # 3 Declaration Declaration of Melissa Crow, # 4 Declaration Declaration of Michael Berg, # 5 Declaration Declaration of Abigail Moyer, # 6 Declaration Declaration of Ajani Husbands, # 7 Declaration Declaration of Daniel Werner, # 8 Declaration Declaration of David Washington, # 9 Declaration Declaration of Debbie Cruz, # 10 Declaration Declaration of Emanuel Frydland, # 11 Declaration Declaration of Ira Kurzban, # 12 Declaration Declaration of Jenna Finkle, # 13 Declaration Declaration of Jeremy Jong, # 14 Declaration Declaration of Jhon Sanchez, # 15 Declaration Declaration of Luis Bautista Martinez, # 16 Declaration Declaration of Marlon Torres, # 17 Declaration Declaration of Melissa Fridlin Murrell, # 18 Declaration Declaration of Meredith Soniat du Fossat, # 19 Declaration Declaration of Tomas Sanchez, # 20 Certiﬁcate of Service Certiﬁcate of Service)(Henel, Christian) Modiﬁed on 9/7/2018 (ztd). (Entered: 05/04/2018)
33 CERTIFICATE OF SERVICE by SOUTHERN POVERTY LAW CENTER re 32 MOTION for Preliminary Injunction (Amended Certiﬁcate of Service). (Henel, Christian) (Entered: 05/04/2018)
MINUTE ORDER: The Court has received Plaintiff's 32 Motion for a Preliminary Injunction. The Court has arranged a teleconference on the record with the parties on MAY 7, 2018, at 3:00 PM, to discuss a brieﬁng schedule. The Court asks the parties to call Chambers, preferably on the same telephone line. By MAY 7, 2018, at 1:00 PM, the parties shall each ﬁle a notice with the Court identifying which of their respective counsel shall participate in the teleconference. Signed by Judge Colleen Kollar-Kotelly on May 4, 2018. (lcckk1) (Entered: 05/04/2018)
Set/Reset Hearings: Telephone Conference on the record set for 5/7/2018 at 3:00 PM in Chambers before Judge Colleen Kollar-Kotelly. (dot) (Entered: 05/07/2018)
34 NOTICE of Appearance by Daniel Patrick Schaefer on behalf of All Defendants (Schaefer, Daniel) (Entered: 05/07/2018)
MINUTE ORDER: The Court held a teleconference on the record with the parties on May 7, 2018, regarding Plaintiff's 32 Motion for a Preliminary Injunction. Certain of Plaintiff's detainee clients held in the detention center at issue in this motion have rapidly approaching asylum or immigration hearings. The parties agreed to negotiate regarding a solution for a speciﬁc one or more of those detainee clients and potentially a solution to the broader preliminary injunction motion.
With the consent of the parties, the Court has scheduled a further teleconference on the record for MAY 9, 2018, at 1:00 PM. If the parties have not negotiated a solution in full to Plaintiff's 32 Motion for a Preliminary Injunction, then they should submit a Joint Status Report by MAY 9, 2018, at 10:00 AM, proposing a brieﬁng schedule for such portion of the 32 Motion as remains to be decided.
Signed by Judge Colleen Kollar-Kotelly on May 7, 2018. (lcckk1) (Entered: 05/07/2018)
Minute Entry for proceedings held before Judge Colleen Kollar-Kotelly: Telephone Conference held on 5/7/2018. Further Telephone Conference set for 5/9/2018 at 1:00 PM

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in Chambers before Judge Colleen Kollar-Kotelly. (Court Reporter Lisa Edwards.) (dot) (Entered: 05/07/2018)
35 Joint STATUS REPORT by MATTHEW T. ALBENCE, NATHALIE ASHER, SEAN GALLAGHER, THOMAS HOMAN, TAE JOHNSON, KIRSTJEN M. NIELSEN, DAVID RIVERA, CLAIRE TRICKLER-MCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Schaefer, Daniel) (Entered: 05/09/2018)
Minute Entry for proceedings held before Judge Colleen Kollar-Kotelly: Telephone Conference on the record held on 5/9/2018. (Court Reporter Lisa Edwards.) (dot) (Entered: 05/14/2018)
Set/Reset Deadlines: Motion for a Preliminary Injunction due by 5/25/2018. Plaintiff's Reply due by 6/1/2018. (dot) (Entered: 05/14/2018)
MINUTE ORDER: The Court held a further teleconference on the record with the parties on May 9, 2018, regarding the parties' efforts to negotiate a solution to Plaintiff's 32 Motion for a Preliminary Injunction. The parties have reached an agreement as to protocol governing Plaintiff's Nigerian client with a May 17, 2018, asylum hearing. They are still discussing a protocol to govern Plaintiff's other clients held in the detention center at issue. The parties shall notify the Court with a Joint Status Report if and when they reach agreement as to these other clients.
If they have not already reached agreement, Defendants shall ﬁle their response to Plaintiff's 32 Motion for a Preliminary Injunction by MAY 25, 2018, and Plaintiff shall ﬁle a reply by JUNE 1, 2018.
Signed by Judge Colleen Kollar-Kotelly on May 10, 2018. (lcckk1) (Entered: 05/10/2018)
36 TRANSCRIPT OF PROCEEDINGS before Judge Colleen Kollar-Kotelly held on May 9, 2018; Page Numbers: 1-21. Date of Issuance: May 16, 2018. Court Reporter/Transcriber Lisa Edwards, Telephone number (202) 354-3269. Transcripts may be ordered by submitting the Transcript Order Form
For the ﬁrst 90 days after this ﬁling date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter refe renced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to ﬁle with the court and the court reporter any request to redact personal identiﬁers from this transcript. If no such requests are ﬁled, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the ﬁve personal identiﬁers speciﬁcally covered, is located on our website at www.dcd.uscourts.gov.
Redaction Request due 6/6/2018. Redacted Transcript Deadline set for 6/16/2018. Release of Transcript Restriction set for 8/14/2018.(Edwards, Lisa) (Entered: 05/16/2018)
37 Joint MOTION for Mediation Referral, Joint MOTION for Extension of Time to File Response/Reply as to 32 MOTION for Preliminary Injunction by MATTHEW T. ALBENCE, NATHALIE ASHER, SEAN GALLAGHER, THOMAS HOMAN, TAE JOHNSON, KIRSTJEN M. NIELSEN, DAVID RIVERA, CLAIRE TRICKLERMCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION

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AND CUSTOMS ENFORCEMENT (Attachments: # 1 Text of Proposed Order) (Schaefer, Daniel) (Entered: 05/24/2018)
MINUTE ORDER: The Court has received the parties' 37 Joint Motion to Refer the Case to Mediation and for Enlargement of the Brieﬁng Schedule. The parties indicate that they have made "substantial progress" in negotiating a solution to Plaintiff's 32 Motion for a Preliminary Injunction pending resolution of Plaintiff's claims on the merits. The parties nevertheless seek referral to Chief Circuit Mediator Carolyn Lerner for assistance in resolving two issues, namely 1) Plaintiff's request for additional attorney-client meeting space in the facility at issue, and 2) Plaintiff's request for accommodations to facilitate remote interpretation services during in-person attorney-client meetings in the facility at issue. The parties seek to postpone brieﬁng of Plaintiff's 32 Motion for a Preliminary Injunction until after completion of this mediation.

For good cause shown, the Court shall GRANT-IN-PART and DENY-IN-PART the parties' 37 Joint Motion. The Court shall issue a separate order referring the resolution of the above-described two issues to mediation as the parties have requested. The parties had proposed extending the deadlines for Defendants' opposition and Plaintiff's reply. The Court is of the view that establishing extended deadlines for further pleadings as to Plaintiff's 32 Motion for a Preliminary Injunction is premature based on the potential for mediation to resolve that motion. Accordingly, the Court shall HOLD IN ABEYANCE Plaintiff's 32 Motion for a Preliminary Injunction pending resolution of mediation. The parties shall ﬁle a Joint Status Report by no later than JULY 18, 2018, indicating the results of mediation and proposing a schedule for further proceedings in this matter.

In light of mediation that may substantially affect proceedings in this case, the Court shall sua sponte STAY Defendants' obligation to answer or otherwise respond to Plaintiff's 1 Complaint until further order of the Court.

Signed by Judge Colleen Kollar-Kotelly on May 30, 2018. (lcckk1) (Entered: 05/30/2018)

05/30/2018

38 ORDER REFERRING certain issues raised by Plaintiff's 32 Motion for a Preliminary Injunction and speciﬁcally identiﬁed in the parties' 37 motion to Chief Circuit Mediator Carolyn Lerner for mediation to commence on JUNE 6, 2018, and to conclude no later than JULY 13, 2018. See Order for details. Signed by Judge Colleen Kollar-Kotelly on May 30, 2018. (lcckk1) (Entered: 05/30/2018)

05/30/2018

Set/Reset Deadlines: Mediation to commence on 6/6/2018, and to conclude by 7/13/2018 before Chief Circuit Mediator Carolyn Lerner. (dot) (Entered: 05/31/2018)

05/30/2018

Set/Reset Deadlines: Joint Status Report due by 7/18/2018. (dot) (Entered: 05/31/2018)

07/18/2018

39 Joint MOTION for Extension of Time to File Joint Status Report by MATTHEW T. ALBENCE, NATHALIE ASHER, SEAN GALLAGHER, THOMAS HOMAN, TAE JOHNSON, KIRSTJEN M. NIELSEN, DAVID RIVERA, CLAIRE TRICKLERMCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (Attachments: # 1 Text of Proposed Order) (Schaefer, Daniel) (Entered: 07/18/2018)

07/18/2018

MINUTE ORDER: The Court has received the parties' 39 Joint Motion Requesting Extension of Time to File Joint Status Report. The parties indicate that they have been working with the mediators and are close to achieving a ﬁnal resolution of Plaintiff's 32 Motion for a Preliminary Injunction. They seek additional time to submit their Joint Status Report currently due July 18, 2018, in order to achieve such resolution beforehand. Accordingly, notwithstanding the tardiness of this motion pursuant to Paragraph 7 of the Court's 25 Order Establishing Procedures for Cases Assigned to Judge Colleen KollarKotelly, the Court shall GRANT the parties' 39 Joint Motion, for good cause shown. The

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parties shall submit a Joint Status Report by JULY 26, 2018, indicating the results of mediation and proposing a schedule for any further proceedings in this matter. In order to facilitate continued work with the mediator, the Court shall continue the referral of this case to the Chief Circuit Mediator pursuant to the Court's 38 Order until JULY 26, 2018. Signed by Judge Colleen Kollar-Kotelly on July 18, 2018. (lcckk1) (Entered: 07/18/2018)
Set/Reset Deadlines: Joint Status Report due by 7/26/2018. (dot) (Entered: 07/19/2018)
40 Joint STATUS REPORT by MATTHEW T. ALBENCE, NATHALIE ASHER, SEAN GALLAGHER, THOMAS HOMAN, TAE JOHNSON, KIRSTJEN M. NIELSEN, DAVID RIVERA, CLAIRE TRICKLER-MCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT. (Attachments: # 1 Exhibit 1 - Term Sheet, # 2 Text of Proposed Order)(Schaefer, Daniel) (Entered: 07/26/2018)
MINUTE ORDER: The Court has received the parties' 40 Joint Status Report, which indicates that "[t]he parties successfully negotiated a full resolution of Plaintiff's Motion for Preliminary Injunction in accordance with the terms on the attached Term Sheet."
As they have proposed, the parties are directed to ﬁle their ﬁnal Settlement Agreement resolving Plaintiff's 32 Motion on or before AUGUST 27, 2018. They have represented that Plaintiff will withdraw its 32 Motion on the same day that the parties ﬁle their ﬁnal Settlement Agreement.
The parties shall also ﬁle by AUGUST 27, 2018, a further Joint Status Report indicating the results of their discussion as to whether to extend mediation to the merits of claims against the LaSalle facility and to the claims against the Irwin and Stewart facilities. This Joint Status Report shall also propose a schedule for any further proceedings in this matter.
In order to facilitate continued work with the mediator, the Court shall continue the referral of this case to the Chief Circuit Mediator pursuant to the Court's 38 Order until AUGUST 30, 2018.
Signed by Judge Colleen Kollar-Kotelly on July 26, 2018. (lcckk1) (Entered: 07/26/2018)
41 Unopposed MOTION for Extension of Time to File Settlement Agreement by MATTHEW T. ALBENCE, NATHALIE ASHER, SEAN GALLAGHER, THOMAS HOMAN, TAE JOHNSON, KIRSTJEN M. NIELSEN, DAVID RIVERA, CLAIRE TRICKLER-MCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (Attachments: # 1 Text of Proposed Order)(Schaefer, Daniel) (Entered: 08/23/2018)
MINUTE ORDER: The Court has received Defendants' 41 Unopposed Motion for Extension of Time to File Final Settlement Agreement. Plaintiff indicates that it does not oppose this motion provided that no other dates in the parties' Term Sheet are changed. Defendants have accepted these conditions. For good cause shown, notwithstanding the acknowledged tardiness of the motion, and contingent on no other dates in the parties' Term Sheet being changed, the Court shall GRANT Defendants' 41 Unopposed Motion. The parties are directed to ﬁle their ﬁnal Settlement Agreement resolving Plaintiff's 32 Motion for a Preliminary Injunction on or before SEPTEMBER 5, 2018.
Although Defendants do not seek an extension of the deadline for the next Joint Status Report, the Court ﬁnds that it would be more efﬁcient to align the submission of that Joint Status Report with the conclusion of settlement as to the preliminary injunction. Accordingly, the Court shall sua sponte continue the deadline for ﬁling of the parties'

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further Joint Status Report until SEPTEMBER 5, 2018. As set forth in the Court's Minute Order of July 26, 2018, this Joint Status Report shall indicate the results of the parties' discussion as to whether to extend mediation to the merits of claims against the LaSalle facility and to the claims against the Irwin and Stewart facilities. This Joint Status Report shall also propose a schedule for any further proceedings in this matter.

08/24/2018 09/05/2018 09/05/2018
09/05/2018 09/05/2018 09/05/2018 09/13/2018

Signed by Judge Colleen Kollar-Kotelly on August 24, 2018. (lcckk1) (Entered: 08/24/2018)
Set/Reset Deadlines: Parties ﬁnal settlement agreement due by 9/5/2018. Joint Status Report due by 9/5/2018. (dot) (Entered: 08/24/2018)
42 NOTICE of Settlement - Settlement Agreement on Plaintiff's Motion for Preliminary Injunction Regarding the LaSalle Processing Center by All Defendants (Schaefer, Daniel) (Entered: 09/05/2018)
43 Joint STATUS REPORT by MATTHEW T. ALBENCE, NATHALIE ASHER, SEAN GALLAGHER, THOMAS HOMAN, TAE JOHNSON, KIRSTJEN M. NIELSEN, DAVID RIVERA, CLAIRE TRICKLER-MCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT. (Schaefer, Daniel) (Entered: 09/05/2018)
44 NOTICE OF WITHDRAWAL OF MOTION by SOUTHERN POVERTY LAW CENTER re 32 MOTION for Preliminary Injunction (Bergin, John) (Entered: 09/05/2018)
45 NOTICE of Change of Address by John Timothy Bergin (Bergin, John) (Entered: 09/05/2018)
46 NOTICE OF WITHDRAWAL OF APPEARANCE as to SOUTHERN POVERTY LAW CENTER. Attorney Maureen A. Sheehy terminated. (Bergin, John) (Entered: 09/05/2018)
MINUTE ORDER: The Court has received the parties' 42 Settlement Agreement on Plaintiff's Motion for Preliminary Injunction Regarding the LaSalle ICE Processing Center, as well as their 43 Joint Status Report. The Court also observes that Plaintiff withdrew its 32 Motion for a Preliminary Injunction by operation of its 44 Notice of Withdrawal.

In their 43 Joint Status Report, the parties disagree as to the appropriate brieﬁng schedule for several potential motions concerning the remainder of this case, which consists of 1) the merits of claims against the LaSalle ICE Processing Center, and 2) the claims against the Irwin and Stewart detention facilities. Notwithstanding Plaintiff's request to lift the stay on Defendant's obligation to answer or otherwise respond to the 1 Complaint, in the interest of judicial economy the Court shall ﬁrst entertain brieﬁng of and decide Defendant's proposed motions to transfer and to sever. See Min. Order of May 30, 2018 (staying Defendants' obligation to respond). If, upon resolution of those motions, this matter remains pending in this Court, then the Court shall set a brieﬁng schedule for any dispositive motion that Defendants may then request to ﬁle.

The Court shall adopt the brieﬁng schedule proposed by Defendants. Defendants shall ﬁle their motions to transfer and to sever by SEPTEMBER 26, 2018. Plaintiff's responses shall be due by OCTOBER 10, 2018. Defendants' replies, if any, shall be due by OCTOBER 17, 2018.

Signed by Judge Colleen Kollar-Kotelly on September 13, 2018. (lcckk1) (Entered: 09/13/2018)

09/13/2018

Set/Reset Deadlines: Defendants' Motions to sever and transfer due by 9/26/2018.

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Responses due by 10/10/2018. Replies due by 10/17/2018. (dot) (Entered: 09/13/2018)
47 MOTION to Transfer Case , MOTION to Sever by MATTHEW T. ALBENCE, NATHALIE ASHER, SEAN GALLAGHER, THOMAS HOMAN, TAE JOHNSON, KIRSTJEN M. NIELSEN, DAVID RIVERA, CLAIRE TRICKLER-MCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1, # 3 Text of Proposed Order)(Schaefer, Daniel) (Entered: 09/26/2018)
48 ENTERED IN ERROR. . . . .AMENDED COMPLAINT FIRST against MATTHEW T. ALBENCE, NATHALIE ASHER, SEAN GALLAGHER, TAE JOHNSON, KIRSTJEN M. NIELSEN, DAVID RIVERA, CLAIRE TRICKLER-MCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, RONALD D. VITIELLO ﬁled by SOUTHERN POVERTY LAW CENTER.(Bergin, John) Modiﬁed on 10/11/2018 (ztd). (Entered: 10/10/2018)
49 WITHDRAWN IN PART PURSUANT TO MINUTE ORDER FILED 10/31/2018.....MOTION for Leave to File to Amend Complaint and to Deny Defendants' Motion to Sever and Transfer Venue as Moot by SOUTHERN POVERTY LAW CENTER (Attachments: # 1 Memorandum in Support Memo ISO Motion to Amend, # 2 Appendix First Amended Complaint, # 3 Text of Proposed Order Proposed Order) (Bergin, John) Modiﬁed on 11/2/2018 (ztd). Modiﬁed on (Entered: 10/10/2018)
50 RESPONSE re 47 MOTION to Transfer Case MOTION to Sever ﬁled by SOUTHERN POVERTY LAW CENTER. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E)(Bergin, John) (Entered: 10/10/2018)
NOTICE OF CORRECTED DOCKET ENTRY: re 48 Amended Complaint, was entered in error and counsel has reﬁled said pleading at docket entry 49 . (ztd) (Entered: 10/11/2018)
51 MOTION for Extension of Time to File Response/Reply as to 47 MOTION to Transfer Case MOTION to Sever by MATTHEW T. ALBENCE, NATHALIE ASHER, SEAN GALLAGHER, THOMAS HOMAN, TAE JOHNSON, KIRSTJEN M. NIELSEN, DAVID RIVERA, CLAIRE TRICKLER-MCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, RONALD D. VITIELLO (Attachments: # 1 Text of Proposed Order)(Schaefer, Daniel) (Entered: 10/11/2018)
52 NOTICE of Supplemental Local Civil Rule 7(m) Statement by MATTHEW T. ALBENCE, NATHALIE ASHER, SEAN GALLAGHER, TAE JOHNSON, KIRSTJEN M. NIELSEN, DAVID RIVERA, CLAIRE TRICKLER-MCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, RONALD D. VITIELLO re 51 MOTION for Extension of Time to File Response/Reply as to 47 MOTION to Transfer Case MOTION to Sever (Schaefer, Daniel) (Entered: 10/12/2018)
MINUTE ORDER: The Court has received Defendants' 51 Motion for Extension of Time and Defendants' 52 Notice of Supplemental Local Civil Rule 7(m) Statement. Defendants seek an extension of the deadline for their reply in support of their 47 Motion to Sever and to Transfer Venue. Defendants ask to align that extension with the deadline for their response to Plaintiff's 49 Motion for Leave to File Amended Complaint and to Deny Defendants' Motion to Sever and Transfer Venue as Moot.

With Plaintiff's consent, the Court shall GRANT Defendants' 51 Motion for Extension of Time, for good cause shown. By OCTOBER 24, 2018, Defendants shall ﬁle both their

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reply in support of their 47 Motion to Sever and to Transfer Venue, and their response to Plaintiff's 49 Motion for Leave to File Amended Complaint and to Deny Defendants' Motion to Sever and Transfer Venue as Moot.
By OCTOBER 31, 2018, Plaintiff shall ﬁle its reply, if any, in support of its 49 Motion for Leave to File Amended Complaint and to Deny Defendants' Motion to Sever and Transfer Venue as Moot.
Signed by Judge Colleen Kollar-Kotelly on October 12, 2018. (lcckk1) (Entered: 10/12/2018)
Set/Reset Deadlines: Defendants' Response to 49 due by 10/24/2018. Defendants' Reply to 47 due by 10/24/2018. Plaintiff's Reply to 49 due by 10/31/2018. (dot) (Entered: 10/17/2018)
53 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Elissa Johnson, :FirmSouthern Poverty Law Center, :Address- 111 E. Capitol Street Ste. 280, Jackson, MS 39201. Phone No. - 601-948-8882. Filing fee $ 100, receipt number 0090-5752068. Fee Status: Fee Paid. by SOUTHERN POVERTY LAW CENTER (Attachments: # 1 Declaration Declaration ISO Motion for PHV, # 2 Text of Proposed Order Proposed Order)(Bergin, John) (Entered: 10/22/2018)
54 REPLY to opposition to motion re 47 MOTION to Transfer Case MOTION to Sever ﬁled by MATTHEW T. ALBENCE, NATHALIE ASHER, SEAN GALLAGHER, THOMAS HOMAN, TAE JOHNSON, KIRSTJEN M. NIELSEN, DAVID RIVERA, CLAIRE TRICKLER-MCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, RONALD D. VITIELLO. (Schaefer, Daniel) (Entered: 10/24/2018)
55 RESPONSE re 49 MOTION for Leave to File to Amend Complaint and to Deny Defendants' Motion to Sever and Transfer Venue as Moot ﬁled by MATTHEW T. ALBENCE, NATHALIE ASHER, SEAN GALLAGHER, THOMAS HOMAN, TAE JOHNSON, KIRSTJEN M. NIELSEN, DAVID RIVERA, CLAIRE TRICKLERMCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, RONALD D. VITIELLO. (Schaefer, Daniel) (Entered: 10/24/2018)
MINUTE ORDER: The Court has received Plaintiff's 53 Motion for Admission of Attorney Elissa Johnson Pro Hac Vice. That motion is GRANTED. The Court assumes that with the admission of this attorney, Plaintiff will be adequately represented in this matter. Signed by Judge Colleen Kollar-Kotelly on October 25, 2018. (lcckk1) (Entered: 10/25/2018)
56 Joint MOTION to Amend/Correct 1 Complaint by SOUTHERN POVERTY LAW CENTER (Attachments: # 1 Text of Proposed Order Proposed Order)(Bergin, John). Added MOTION to Withdraw, MOTION for Leave to File on 10/29/2018 (ztd). Modiﬁed event title on 10/30/2018 (znmw). (Entered: 10/26/2018)
MINUTE ORDER: The Court has received the parties' 56 Joint Motion, in which the parties agree to the entry of Plaintiff's [49-2] First Amended Complaint, to the withdrawal of Plaintiff's Motion to Deny Defendants' Motion to Sever and Transfer Venue as Moot, see ECF No. 49 , and to Plaintiff's request for the Court's leave to ﬁle a sur-reply by October 31, 2018, to Defendants' Reply to Defendants' Motion to Sever and Transfer Venue, see ECF No. 54 . In light of the parties' consent, the Court shall GRANT the 56 Joint Motion.

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The Clerk of Court shall ﬁle the [49-2] First Amended Complaint on the docket as of this date.
Plaintiff's Motion to Deny Defendants' Motion to Sever and Transfer Venue as Moot, embedded within Plaintiff's 49 ﬁling, shall be WITHDRAWN.
The Court shall permit Plaintiff to ﬁle a sur-reply to Defendants' Reply to Defendants' Motion to Sever and Transfer Venue by no later than NOVEMBER 2, 2018.
Signed by Judge Colleen Kollar-Kotelly on October 31, 2018. (lcckk1) (Entered: 10/31/2018)
Set/Reset Deadlines: Plaintiff's Sur-Reply 47 due by 11/2/2018. (dot) (Entered: 11/01/2018)
57 AMENDED COMPLAINT against MATTHEW T. ALBENCE, NATHALIE ASHER, SEAN GALLAGHER, DAVID JENNINGS, TAE JOHNSON, KIRSTJEN M. NIELSEN, DAVID RIVERA, CLAIRE TRICKLER-MCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, RONALD D. VITIELLO ﬁled by SOUTHERN POVERTY LAW CENTER.(ztd) (Entered: 11/02/2018)
58 SURREPLY to re 47 MOTION to Transfer Case MOTION to Sever ﬁled by SOUTHERN POVERTY LAW CENTER. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D)(Bergin, John) (Entered: 11/02/2018)
59 NOTICE of Change of Address by Melissa Crow. (Bergin, John) Modiﬁed attorney name on 3/13/2019 (znmw). (Entered: 03/12/2019)
60 NOTICE OF WITHDRAWAL OF APPEARANCE as to SOUTHERN POVERTY LAW CENTER. Attorney Natalie Lyons terminated. (Bergin, John) (Entered: 04/04/2019)
61 ORDER. Defendants' 47 Motion to Sever and Transfer Venue is DENIED. By no later than MAY 24, 2019, the parties shall submit a Joint Status Report proposing a schedule for further proceedings in this matter, including Defendants' answer or other response, and/or such other proceedings as they see ﬁt to occur. See Order for further details. Signed by Judge Colleen Kollar-Kotelly on May 10, 2019. (lcckk1) (Entered: 05/10/2019)
62 MEMORANDUM OPINION. Signed by Judge Colleen Kollar-Kotelly on May 10, 2019. (lcckk1) (Entered: 05/10/2019)
Set/Reset Deadlines: Joint Status Report due by 5/24/2019. (dot) (Entered: 05/10/2019)
63 Joint STATUS REPORT by MATTHEW T. ALBENCE, NATHALIE ASHER, SEAN GALLAGHER, DAVID JENNINGS, TAE JOHNSON, KIRSTJEN M. NIELSEN, DAVID RIVERA, CLAIRE TRICKLER-MCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, RONALD D. VITIELLO. (Attachments: # 1 Text of Proposed Order)(Schaefer, Daniel) (Entered: 05/24/2019)
MINUTE ORDER: The Court has received the parties' 63 Joint Status Report. With the parties in agreement, the Court adopts the proposed deadline of JUNE 24, 2019, for Defendants' answer to Plaintiff's First Amended Complaint. Upon receipt of that answer, the Court shall schedule an Initial Scheduling Conference. It is premature at this time to issue an order setting the date for such Conference. Signed by Judge Colleen KollarKotelly on May 29, 2019. (lcckk1) (Entered: 05/29/2019)
Set/Reset Deadlines: Answer to 57 due by 6/24/2019. (dot) (Entered: 05/30/2019)

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64 MOTION for Extension of Time to File Answer re 57 Amended Complaint, by MATTHEW T. ALBENCE, NATHALIE ASHER, SEAN GALLAGHER, THOMAS HOMAN, DAVID JENNINGS, TAE JOHNSON, KIRSTJEN M. NIELSEN, DAVID RIVERA, CLAIRE TRICKLER-MCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, RONALD D. VITIELLO (Attachments: # 1 Text of Proposed Order)(Schaefer, Daniel) (Entered: 06/21/2019)
MINUTE ORDER: The Court has received Defendants' 64 Motion for Extension of Time. Due to difﬁculties obtaining information from some of the entities implicated in Plaintiff's 57 First Amended Complaint, Defendants request an extension of the June 24, 2019, deadline for their answer to that pleading. They acknowledge the tardiness of their motion. See Order Establishing Procedures for Cases Assigned to Judge Colleen KollarKotelly, ECF No. 25 , ¶ 7(A). Defendants had not received Plaintiff's view by the time they ﬁled this motion. Nevertheless, despite its tardiness, the Court shall GRANT Defendants' 64 Motion for Extension of Time, for good cause shown. Defendants shall ﬁle their answer to Plaintiff's 57 First Amended Complaint by no later than JULY 24, 2019. Signed by Judge Colleen Kollar-Kotelly on June 21, 2019. (lcckk1) (Entered: 06/21/2019)
Set/Reset Deadlines: Answer to the Amended Complaint due by 6/24/2019. (dot) (Entered: 06/24/2019)
65 ANSWER to 57 Amended Complaint, by MATTHEW T. ALBENCE, NATHALIE ASHER, SEAN GALLAGHER, THOMAS HOMAN, DAVID JENNINGS, TAE JOHNSON, KIRSTJEN M. NIELSEN, DAVID RIVERA, CLAIRE TRICKLERMCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, RONALD D. VITIELLO.(Schaefer, Daniel) (Entered: 07/24/2019)
66 ORDER. An Initial Scheduling Conference is set for AUGUST 28, 2019, at 11:00 AM, in Courtroom 28A. Signed by Judge Colleen Kollar-Kotelly on July 29, 2019. (lcckk1) (Entered: 07/29/2019)
Set/Reset Hearings: Initial Scheduling Conference set for 8/28/2019 at 11:00 AM in Courtroom 28A before Judge Colleen Kollar-Kotelly. (dot) (Entered: 07/30/2019)
67 MEET AND CONFER STATEMENT. (Schaefer, Daniel) (Entered: 08/21/2019)
68 MOTION for Leave to File Second Amended Complaint by SOUTHERN POVERTY LAW CENTER (Attachments: # 1 Text of Proposed Order, # 2 Memorandum in Support, # 3 Exhibit A - Second Amended Complaint, # 4 Exhibit B - Graybill Declaration) (Bergin, John) (Entered: 08/26/2019)
MINUTE ORDER: The Court has received Plaintiff's 68 Motion for Leave to File Second Amended Complaint. In the parties' joint 67 Meet and Confer Report and at the August 28, 2019, Initial Scheduling Conference, Defendant opposed Plaintiff's request on the basis that it would expand the scope of discovery beyond what was contemplated when this Court denied Defendant's 47 Motion to Sever and Transfer Venue. Overruling that objection and ﬁnding that justice so requires, this Court shall GRANT Plaintiff's 68 Motion for Leave to File Second Amended Complaint.

The Clerk of Court shall ﬁle the [68-3] Second Amended Complaint on the docket as of this date.

Signed by Judge Colleen Kollar-Kotelly on August 28, 2019. (lcckk1) (Entered: 08/28/2019)

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69 SCHEDULING AND PROCEDURES ORDER. Signed by Judge Colleen Kollar-Kotelly on August 28, 2019. (lcckk1) (Entered: 08/28/2019)
Minute Entry for proceedings held before Judge Colleen Kollar-Kotelly: Initial Scheduling Conference held on 8/28/2019. Joint Protective Order due 9/23/2019. Discovery due by 6/5/2020. Joint Discovery Plan due by 9/6/2019. Initial Disclosure regarding the First Amended complaint due by 10/7/2019. Supplemental Initial Disclosures regarding the Second Amended Complaint due by 10/29/2019. Proponent's Identiﬁcation and Scope of Experts due 1/16/2020. Proponent's Rule 26(a)(2)(B)&(C) Disclosures due by 3/2/2020; Opponent's Rule 26(a)(2)(B)&(C) Disclosures due by 4/6/2020; with Replies, if any, due by 4/27/2020. Status Conference set for 6/5/2020 at 10:00 AM in Courtroom 28A before Judge Colleen Kollar-Kotelly. (Court Reporter Lisa Edwards.) (dot) (Entered: 08/29/2019)
70 AMENDED COMPLAINT against MATTHEW T. ALBENCE, NATHALIE ASHER, SEAN GALLAGHER, TAE JOHNSON, CLAIRE TRICKLER-MCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, KEVIN MCALEENAN, DEREK N. BENNER, ENRIQUE LUCERO, TREY LUND ﬁled by SOUTHERN POVERTY LAW CENTER.(ztd) (Entered: 08/30/2019)
71 NOTICE OF WITHDRAWAL OF APPEARANCE as to SOUTHERN POVERTY LAW CENTER. Attorney Christian F. Henel and Jamila A. Johnson terminated. (Bergin, John) (Entered: 09/04/2019)
72 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Conor S. Gaffney, :FirmSouthern Poverty Law Center, :Address- 201 St. Charles Avenue, Suite 2000, New Orleans, Louisiana 70170. Phone No. - 504-486-8982. Fax No. - 504-486-8947 Filing fee $ 100, receipt number 0090-6355736. Fee Status: Fee Paid. by SOUTHERN POVERTY LAW CENTER (Attachments: # 1 Declaration Declaration of Conor Gaffney ISO Motion for PHV, # 2 Text of Proposed Order Proposed Order)(Bergin, John) (Entered: 09/04/2019)
MINUTE ORDER: The Court has received the 72 Motion for Admission of Attorney Conor S. Gaffney Pro Hac Vice. That Motion is GRANTED, CONTINGENT upon Mr. Gaffney's submission of a declaration by SEPTEMBER 13, 2019, stating that he has reviewed and is familiar with the Local Rules of this Court. Signed by Judge Colleen Kollar-Kotelly on September 5, 2019. (lcckk1) (Entered: 09/05/2019)
Set/Reset Deadlines: Conor S. Gaffney's declaration due by 9/13/2019. (kt) (Entered: 09/06/2019)
73 Joint STATUS REPORT Joint Discovery Plan by MATTHEW T. ALBENCE, NATHALIE ASHER, DEREK N. BENNER, SEAN GALLAGHER, TAE JOHNSON, ENRIQUE LUCERO, TREY LUND, KEVIN K. MCALEENAN, CLAIRE TRICKLERMCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT. (Schaefer, Daniel) (Entered: 09/06/2019)
74 AFFIDAVIT re Set/Reset Deadlines, Order on Motion for Leave to Appear Pro Hac Vice, Supplemental Declaration of Conor S. Gaffney In Support of Motion for Admission Pro Hac Vice by SOUTHERN POVERTY LAW CENTER. (Bergin, John) (Entered: 09/09/2019)
75 Joint MOTION for Protective Order by MATTHEW T. ALBENCE, NATHALIE ASHER, DEREK N. BENNER, SEAN GALLAGHER, THOMAS HOMAN, DAVID JENNINGS, TAE JOHNSON, ENRIQUE LUCERO, TREY LUND, KEVIN K. MCALEENAN, KIRSTJEN M. NIELSEN, DAVID RIVERA, CLAIRE TRICKLER-MCNULTY, U.S.

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DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, RONALD D. VITIELLO (Attachments: # 1 Text of Proposed Order) (Schaefer, Daniel) (Entered: 09/23/2019)
76 ORDER granting 75 Motion for Stipulated Protective Order for Litigation Involving Conﬁdential Information. See Order for details. Signed by Judge Colleen Kollar-Kotelly on September 23, 2019. (lcckk1) (Entered: 09/23/2019)
77 TRANSCRIPT OF INITIAL SCHEDULING CONFERENCE before Judge Colleen Kollar-Kotelly held on August 28, 2019; Page Numbers: 1-44. Date of Issuance: September 25, 2019. Court Reporter/Transcriber Lisa Edwards. Telephone number (202) 354-3269. Transcripts may be ordered by submitting the Transcript Order Form
For the ﬁrst 90 days after this ﬁling date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to ﬁle with the court and the court reporter any request to redact personal identiﬁers from this transcript. If no such requests are ﬁled, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the ﬁve personal identiﬁers speciﬁcally covered, is located on our website at www.dcd.uscourts.gov.
Redaction Request due 10/16/2019. Redacted Transcript Deadline set for 10/26/2019. Release of Transcript Restriction set for 12/24/2019.(Edwards, Lisa) (Entered: 09/25/2019)
78 NOTICE of Appearance by Sheetul Sheth Wall on behalf of MATTHEW T. ALBENCE, NATHALIE ASHER, DEREK N. BENNER, SEAN GALLAGHER, TAE JOHNSON, ENRIQUE LUCERO, TREY LUND, KEVIN K. MCALEENAN, CLAIRE TRICKLERMCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (Wall, Sheetul) (Entered: 10/01/2019)
79 NOTICE of Appearance by Alan Burch on behalf of All Defendants (Burch, Alan) (Entered: 10/04/2019)
80 ANSWER to 70 Amended Complaint, by MATTHEW T. ALBENCE, NATHALIE ASHER, DEREK N. BENNER, SEAN GALLAGHER, THOMAS HOMAN, DAVID JENNINGS, TAE JOHNSON, ENRIQUE LUCERO, TREY LUND, KEVIN K. MCALEENAN, KIRSTJEN M. NIELSEN, DAVID RIVERA, CLAIRE TRICKLERMCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, RONALD D. VITIELLO.(Schaefer, Daniel) (Entered: 10/16/2019)
81 NOTICE of Appearance by James Joseph Walker on behalf of All Defendants (Walker, James) (Entered: 10/22/2019)
82 NOTICE of Appearance by Ruth Ann Mueller on behalf of All Defendants (Mueller, Ruth) (Entered: 10/23/2019)
83 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Daniel Werner, Filing fee $ 100, receipt number ADCDC-6494084. Fee Status: Fee Paid. by SOUTHERN POVERTY LAW CENTER (Attachments: # 1 Declaration Declaration of Daniel Werner ISO Motion for Admission PHV, # 2 Text of Proposed Order Proposed Order)(Bergin, John) (Entered: 10/31/2019)

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MINUTE ORDER: The Court has received the 83 Motion for Admission of Attorney Daniel Werner Pro Hac Vice, which contains the information required by Local Civil Rule 83.2(d) and indicates that he has reviewed and is familiar with the local rules of this Court. Accordingly, that Motion is GRANTED.

Counsel should register for e-ﬁling via PACER and ﬁle a notice of appearance pursuant to LCvR 83.6(a). Click for instr uctions

11/04/2019 11/06/2019
11/06/2019
11/08/2019 12/18/2019 12/19/2019

Signed by Judge Colleen Kollar-Kotelly on November 1, 2019. (lccck1) (Entered: 11/01/2019)
84 NOTICE OF WITHDRAWAL OF APPEARANCE as to SOUTHERN POVERTY LAW CENTER. Attorney Elissa Johnson terminated. (Bergin, John) (Entered: 11/04/2019)
85 STIPULATION Clawback Agreement and Federal Rule of Evidence 502(d) Order by MATTHEW T. ALBENCE, NATHALIE ASHER, DEREK N. BENNER, SEAN GALLAGHER, TAE JOHNSON, ENRIQUE LUCERO, TREY LUND, KEVIN K. MCALEENAN, CLAIRE TRICKLER-MCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT. (Wall, Sheetul) Modiﬁed event title on 11/13/2019 (znmw). (Entered: 11/06/2019)
86 NOTICE of Proposed Order Proposed Electronic Discovery Plan by MATTHEW T. ALBENCE, NATHALIE ASHER, DEREK N. BENNER, SEAN GALLAGHER, TAE JOHNSON, ENRIQUE LUCERO, TREY LUND, KEVIN K. MCALEENAN, CLAIRE TRICKLER-MCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT. (Attachments: # 1 Exhibit A Speciﬁcations for Stipulated Proposed Electronic Discovery Plan)(Wall, Sheetul) Modiﬁed event title on 11/13/2019 (znmw). (Entered: 11/06/2019)
87 ORDER RE: CLAWBACK AGREEMENT AND FEDERAL RULE OF EVIDENCE 502(d). See Order for details. Signed by Judge Colleen Kollar-Kotelly on November 8, 2019. (lccck1) (Entered: 11/08/2019)
88 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Shalini Goel Agarwal, Filing fee $ 100, receipt number ADCDC-6657629. Fee Status: Fee Paid. by SOUTHERN POVERTY LAW CENTER (Attachments: # 1 Declaration Declaration of Shalini Goel Agarwal ISO Motion PHV, # 2 Text of Proposed Order Proposed Order) (Bergin, John) (Entered: 12/18/2019)
MINUTE ORDER: The Court has received the 88 Motion for Admission of Attorney Shalini Goel Agarwal Pro Hac Vice, which contains the information required by Local Civil Rule 83.2(d) and indicates that counsel has reviewed and is familiar with the local rules of this Court. Accordingly, that Motion is GRANTED.

Counsel should register for e-ﬁling via PACER and ﬁle a notice of appearance pursuant to LCvR 83.6(a). Click for instructions

Signed by Judge Colleen Kollar-Kotelly on December 19, 2019. (lccck1) (Entered: 12/19/2019)

01/15/2020

89 NOTICE of Appearance by David Byerley on behalf of All Defendants (Byerley, David) (Entered: 01/15/2020)

02/06/2020

90 NOTICE of Appearance by Shalini G. Agarwal on behalf of SOUTHERN POVERTY LAW CENTER (Agarwal, Shalini) (Entered: 02/06/2020)

02/20/2020

91 Joint MOTION for Extension of Time to Complete Discovery by MATTHEW T. ALBENCE, NATHALIE ASHER, DEREK N. BENNER, SEAN GALLAGHER,

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THOMAS HOMAN, DAVID JENNINGS, TAE JOHNSON, ENRIQUE LUCERO, TREY LUND, KEVIN K. MCALEENAN, KIRSTJEN M. NIELSEN, DAVID RIVERA, CLAIRE TRICKLER-MCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, RONALD D. VITIELLO (Attachments: # 1 Text of Proposed Order)(Mueller, Ruth) (Entered: 02/20/2020)
92 ORDER granting in part and denying in part 91 Motion for Extension of Time to Complete Discovery. The Court shall STAY discovery through MAY 22, 2020. Moreover, the Court REFERS the discovery disputes about which the parties have contacted the Court to Magistrate Judge Robin M. Meriweather for resolution. By either ten days after resolution of the discovery disputes referred to Magistrate Judge Meriweather, or by no later than JUNE 1, 2020, whichever is sooner, the parties shall ﬁle a Joint Status Report with the Court. See Order for details. Signed by Judge Colleen Kollar-Kotelly on February 21, 2020. (lccck1) (Entered: 02/21/2020)
93 ORDER REFERRING CASE for Resolution of the Discovery Disputes to Magistrate Judge Meriweather. Signed by Judge Colleen Kollar-Kotelly on 2/21/2020. (dot) (Entered: 02/24/2020)
Set/Reset Deadlines: Joint Status Report due by 6/1/2020. (dot) (Entered: 02/24/2020)
CASE DIRECTLY REFERRED to Magistrate Judge Robin M. Meriweather for Resolution of the Discovery Disputes. (zmc) (Entered: 02/24/2020)
94 NOTICE OF WITHDRAWAL OF APPEARANCE as to SOUTHERN POVERTY LAW CENTER. Attorney Melissa E. Crow terminated. (Crow, Melissa) (Entered: 03/13/2020)
95 MOTION for Mediation by MATTHEW T. ALBENCE, NATHALIE ASHER, DEREK N. BENNER, SEAN GALLAGHER, THOMAS HOMAN, DAVID JENNINGS, TAE JOHNSON, ENRIQUE LUCERO, TREY LUND, KEVIN K. MCALEENAN, KIRSTJEN M. NIELSEN, DAVID RIVERA, CLAIRE TRICKLER-MCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, RONALD D. VITIELLO (Attachments: # 1 Text of Proposed Order) (Mueller, Ruth). Added MOTION to Stay on 3/18/2020 (ztd). (Entered: 03/18/2020)
MINUTE ORDER: The Court has received 95 Defendants' Motion to Refer the Case to Mediation and Stay Discovery Pending Mediation. Defendants indicate that Plaintiff does not object to referral to mediation, but objects to a stay of discovery. See ECF No. 95 at 2 n.1. The Court shall hereby separately post an order referring the case to mediation.
Moreover, Plaintiff shall ﬁle its response to Defendants' Motion by no later than APRIL 1, 2020. Defendants shall ﬁle their reply, if any, by no later than APRIL 8, 2020. Signed by Judge Colleen Kollar-Kotelly on March 19, 2020. (lccck1) (Entered: 03/19/2020)
96 ORDER REFERRING CASE TO MEDIATION. Signed by Judge Colleen Kollar-Kotelly on March 19, 2020. (lccck1) (Entered: 03/19/2020)
Set/Reset Deadlines: Plaintiff's Response to 95 due by 4/1/2020. Defendants' Reply, if any, due by 4/8/2020. (dot) (Entered: 03/22/2020)
97 RESPONSE re 95 MOTION for Mediation MOTION to Stay Discovery ﬁled by SOUTHERN POVERTY LAW CENTER. (Attachments: # 1 Text of Proposed Order) (Dorris, William) (Entered: 03/20/2020)
98 REPLY to opposition to motion re 95 MOTION for Mediation MOTION to Stay ﬁled by MATTHEW T. ALBENCE, NATHALIE ASHER, DEREK N. BENNER, SEAN GALLAGHER, THOMAS HOMAN, DAVID JENNINGS, TAE JOHNSON, ENRIQUE LUCERO, TREY LUND, KEVIN K. MCALEENAN, KIRSTJEN M. NIELSEN, DAVID

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RIVERA, CLAIRE TRICKLER-MCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, RONALD D. VITIELLO. (Mueller, Ruth) (Entered: 03/31/2020)
99 MOTION for Leave to File A Sur-Reply to Defendants' Reply to Plaintiff's Response to Defendants' Motion to Refer the Case to Mediation and Stay Discovery Pending Mediation by SOUTHERN POVERTY LAW CENTER (Attachments: # 1 Exhibit A Plaintiff's Sur-Reply, # 2 Text of Proposed Order)(Dorris, William) (Entered: 04/02/2020)
100 RESPONSE re 99 MOTION for Leave to File A Sur-Reply to Defendants' Reply to Plaintiff's Response to Defendants' Motion to Refer the Case to Mediation and Stay Discovery Pending Mediation ﬁled by MATTHEW T. ALBENCE, NATHALIE ASHER, DEREK N. BENNER, SEAN GALLAGHER, THOMAS HOMAN, DAVID JENNINGS, TAE JOHNSON, ENRIQUE LUCERO, TREY LUND, KEVIN K. MCALEENAN, KIRSTJEN M. NIELSEN, DAVID RIVERA, CLAIRE TRICKLER-MCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, RONALD D. VITIELLO. (Mueller, Ruth) (Entered: 04/03/2020)
101 ORDER denying in part 95 Motion to Refer the Case to Mediation and Stay Discovery Pending Mediation; denying Plaintiff's request in its opposition for certain discovery prior to mediation; granting Plaintiff's 99 Motion for Leave to File a Sur-Reply to Defendants' Reply to Plaintiff's Response to Defendants' Motion to Refer the Case to Mediation and Stay Discovery Pending Mediation, although the Court will only consider the Sur-Reply insofar as it relates to the discovery that Plaintiff requests; and requiring the parties ﬁle a Joint Status Report with the Court by no later than MAY 1, 2020. See Order for details. Signed by Judge Colleen Kollar-Kotelly on April 7, 2020. (lccck1) (Entered: 04/07/2020)
102 ORDER referring all discovery disputes between the parties to Magistrate Judge Meriweather for resolution. See Order for details. Signed by Judge Colleen KollarKotelly on April 7, 2020. (lccck1) (Entered: 04/07/2020)
Set/Reset Deadlines: Joint Status Report due by 5/1/2020, informing the Court of the current status of mediation and the discovery disputes. (dot) (Entered: 04/07/2020)
103 SURREPLY to re 95 MOTION for Mediation MOTION to Stay Discovery Pending Mediation ﬁled by SOUTHERN POVERTY LAW CENTER. (Dorris, William) (Entered: 04/07/2020)
CASE DIRECTLY REFERRED to Magistrate Judge Robin M. Meriweather for resolution of discovery disputes. (zmc) (Entered: 04/10/2020)
104 Joint STATUS REPORT by MATTHEW T. ALBENCE, NATHALIE ASHER, DEREK N. BENNER, SEAN GALLAGHER, TAE JOHNSON, ENRIQUE LUCERO, TREY LUND, KEVIN K. MCALEENAN, CLAIRE TRICKLER-MCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT. (Mueller, Ruth) (Entered: 05/01/2020)
MINUTE ORDER: The Court has received the parties' 104 Joint Status Report. Both parties indicate that mediation appears to be off until the discovery disputes have been resolved, which has not yet occurred. Moreover, Defendants note that they are preparing to produce documents to Plaintiff. Plaintiff notes that it has concerns regarding certain methodologies used by Defendants to identify those documents. In light of Plaintiff's objections, the Court REFERS all discovery disputes in this case to Magistrate Judge Meriweather so that they may all be decided together. See Apr. 7, 2020 Order, ECF No. 102 (referring certain discovery disputes to Magistrate Judge Meriweather). Moreover, upon review of the Joint Status Report, the Court ORDERS that the parties shall a further Joint Status Report by no later than JUNE 1, 2020 updating the Court on the status of

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discovery and the referred discovery disputes. Signed by Judge Colleen Kollar-Kotelly on May 6, 2020. (lccck1) (Entered: 05/06/2020)

05/06/2020

Set/Reset Deadlines: Joint Status Report due by 6/1/2020, updating the Court on the status of discovery and the referred discovery disputes. (dot) (Entered: 05/06/2020)

05/07/2020

105 MOTION for Temporary Restraining Order by SOUTHERN POVERTY LAW CENTER (Attachments: # 1 Memorandum in Support, # 2 Declaration of Aristoteles SanchezMartinez, # 3 Declaration of Benjamin Osorio, # 4 Declaration of Dora Schriro, # 5 Declaration of Homer Venters, # 6 Declaration of Homero Lopez, # 7 Declaration of Laura Rivera, # 8 Declaration of Lorilei Williams, # 9 Declaration of Shalini Goel Agarwal, # 10 Certiﬁcate of Counsel Required by LR 65.1(a), # 11 Text of Proposed Order)(Dorris, William) (Entered: 05/07/2020)

05/07/2020

106 ORDER: Upon consideration of the parties' 104 Joint Status Report, a teleconference regarding discovery disputes is set for May 13, 2020 at 2:00 p.m. See Order for details. Signed by Magistrate Judge Robin M. Meriweather on 05/07/2020. (lcrm1) (Entered: 05/07/2020)

05/11/2020

NOTICE of Hearing: Telephone Conference on the record set for 5/12/2020 at 2:00 PM before Judge Colleen Kollar-Kotelly. (dot) (Entered: 05/11/2020)

05/11/2020

107 NOTICE of Appearance by Yamileth G. Davila on behalf of All Defendants (Davila, Yamileth) (Entered: 05/11/2020)

05/12/2020

MINUTE ORDER: A teleconference to discuss a brieﬁng schedule and other issues related to Plaintiff's 105 Motion for Temporary Restraining Order is set for May 12, 2020 at 2:00 PM. Information regarding how to access the teleconference shall be emailed to counsel. Signed by Judge Colleen Kollar-Kotelly on May 11, 2020. (lccck1) (Entered: 05/12/2020)

05/12/2020

108 NOTICE of Supplementation to Plaintiff's Motion for a Temporary Restraining Order by SOUTHERN POVERTY LAW CENTER re 105 MOTION for Temporary Restraining Order (Attachments: # 1 Declaration of Agarwal (Supplemental), # 2 Declaration of Rivera (Supplemental), # 3 Certiﬁcate of Counsel Required by Local Rule 65.1, # 4 Text of Proposed Order)(Dorris, William) (Entered: 05/12/2020)

05/12/2020

Minute Entry for proceedings held before Judge Colleen Kollar-Kotelly: Telephone Conference on the record held on 5/12/2020. (Court Reporter Lisa Edwards.) (dot) (Entered: 05/12/2020)

05/13/2020

Minute Entry for Discovery Teleconference held before Magistrate Judge Robin M. Meriweather on 5/13/2020 : Plaintiff's Motion to Compel to be ﬁled by 5/26/2020; Defendants' Response to Plaintiff's Motion to Compel and Defendants' Cross-Motion for Protective Order due by 6/9/2020; Plaintiff's Reply in Support of Plaintiff's Motion to Compel and Plaintiff's Response to Defendants' Cross-Motion for Protective Order due 6/16/2020; Defendants' Reply in Support of Defendants' Cross-Motion for Protective Order due by 6/23/2020. Plaintiff's Counsel: Shalini Goel Agarwal and Jared Davidson; Defendants' Counsel: Ruth Ann Mueller and James Walker. (Court Reporter: Jan Dickman) (kk) (Entered: 05/13/2020)

05/14/2020

MINUTE ORDER: The Court held an on-the-record teleconference in this matter on May 12, 2020 to discuss the pending 105 Motion for Temporary Restraining Order. During the teleconference, the Court set the following schedule: Defendants shall post on the docket what in Plaintiff's 105 Motion they are disputing on or before MAY 15, 2020. Plaintiff shall ﬁle any reply on or before MAY 18, 2020. After receipt of these submissions, the Court will determine a schedule for further proceedings. Signed by Judge Colleen KollarKotelly on May 13, 2020. (lccck1) (Entered: 05/14/2020)

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109 TRANSCRIPT OF PROCEEDINGS before Judge Colleen Kollar-Kotelly held on May 12, 2020; Page Numbers: 1-34. Date of Issuance: May 14, 2020. Court Reporter/Transcriber Lisa Edwards. Telephone number (202) 354-3269. Transcripts may be ordered by submitting the Transcript Order Form

For the ﬁrst 90 days after this ﬁling date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter ref erenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

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

05/16/2020 05/16/2020 05/17/2020

Redaction Request due 6/4/2020. Redacted Transcript Deadline set for 6/14/2020. Release of Transcript Restriction set for 8/12/2020.(Edwards, Lisa) (Entered: 05/14/2020)
110 RESPONSE re 105 MOTION for Temporary Restraining Order ﬁled by MATTHEW T. ALBENCE, NATHALIE ASHER, DEREK N. BENNER, SEAN GALLAGHER, THOMAS HOMAN, DAVID JENNINGS, TAE JOHNSON, ENRIQUE LUCERO, TREY LUND, KEVIN K. MCALEENAN, KIRSTJEN M. NIELSEN, DAVID RIVERA, CLAIRE TRICKLER-MCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, RONALD D. VITIELLO. (Attachments: # 1 PBNDS Preface, # 2 PBNDS 5.1 Correspondence, # 3 PBNDS 5.6 Telephones, # 4 PBNDS 5.7 Visitation, # 5 CDC Interim Guidance, # 6 Bretz Decl., # 7 Chambarlain Decl., # 8 Moten Decl., # 9 First Musante Decl., # 10 Second Musante Decl., # 11 First Paulk Decl., # 12 Second Paulk Decl., # 13 Reaves DEcl., # 14 Rice Decl., # 15 Staiger Decl., # 16 First Washburn DEcl., # 17 Second Washburn Decl, # 18 Third Washburn Decl., # 19 Fourth Washburn Decl.)(Byerley, David) (Entered: 05/16/2020)
111 Unopposed MOTION for Leave to File Defendants' Response [Dkt. 110] to Plaintiff's Mot. for Temporary Restraining Order [Dkt. 105] Out of Time by MATTHEW T. ALBENCE, NATHALIE ASHER, DEREK N. BENNER, SEAN GALLAGHER, THOMAS HOMAN, DAVID JENNINGS, TAE JOHNSON, ENRIQUE LUCERO, TREY LUND, KEVIN K. MCALEENAN, KIRSTJEN M. NIELSEN, DAVID RIVERA, CLAIRE TRICKLER-MCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, RONALD D. VITIELLO (Attachments: # 1 Text of Proposed Order)(Byerley, David) (Entered: 05/16/2020)
112 RESPONSE re 105 MOTION for Temporary Restraining Order CORRECTED ﬁled by MATTHEW T. ALBENCE, NATHALIE ASHER, DEREK N. BENNER, SEAN GALLAGHER, THOMAS HOMAN, DAVID JENNINGS, TAE JOHNSON, ENRIQUE LUCERO, TREY LUND, KEVIN K. MCALEENAN, KIRSTJEN M. NIELSEN, DAVID RIVERA, CLAIRE TRICKLER-MCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, RONALD D. VITIELLO. (Attachments: # 1 Exhibit PBNDS Preface, # 2 Exhibit PBNDS 5.1 Correspondence, # 3 Exhibit PBNDS 5.6 Telephones, # 4 Exhibit PBNDS 5.7 Visitation, # 5 Exhibit CDC Interim COVID-19 Guidance For Correctional Facilities, # 6 Exhibit ICE ERO COVID-19 Pandemic Response Requirements, # 7 Exhibit Bretz Decl., # 8 Exhibit Chambarlain Decl., # 9 Exhibit Hott Decl., # 10 Exhibit Moten Decl., # 11 Exhibit First Musante Decl., # 12 Exhibit Second Musante Decl., # 13 Exhibit First Paulk

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Decl., # 14 Exhibit Second Paulk Decl., # 15 Exhibit Reaves Decl., # 16 Exhibit Rice Decl., # 17 Exhibit Staiger Decl., # 18 Exhibit First Washburn Decl., # 19 Exhibit Second Washburn Decl., # 20 Exhibit Third Washburn Decl., # 21 Exhibit Fourth Washburn Decl.)(Byerley, David) (Entered: 05/17/2020)
113 REPLY re 105 MOTION for Temporary Restraining Order ﬁled by SOUTHERN POVERTY LAW CENTER. (Attachments: # 1 Declaration of Laura G. Rivera (Second Supp))(Dorris, William) (Entered: 05/18/2020)
114 MOTION for Extension of Time to File Motion to Compel by SOUTHERN POVERTY LAW CENTER (Attachments: # 1 Text of Proposed Order)(Dorris, William) (Entered: 05/19/2020)
MINUTE ORDER: In light of Plaintiff, SOUTHERN POVERTY LAW CENTER's unopposed 114 Motion for an Extension to File Motion to Compel, and for the reasons stated therein, the Court ﬁnds good cause to GRANT the Motion. Accordingly, it is hereby ORDERED that the brieﬁng schedule established by the Court's 05/13/2020 Minute Entry shall be AMENDED as follows: Plaintiff's Motion to Compel shall be ﬁled by 06/02/2020; Defendants' Response to Plaintiff's Motion to Compel and Defendants' Cross-Motion for Protective Order shall be ﬁled by 06/16/2020; Plaintiff's Reply in Support of Plaintiff's Motion to Compel and Plaintiff's Response to Defendants' CrossMotion for Protective Order shall be ﬁled by 06/23/2020; Defendants' Reply in Support of Defendants' Cross-Motion for Protective Order shall be ﬁled by 06/30/2020. Signed by Magistrate Judge Robin M. Meriweather on 05/21/2020. (lcrm1) (Entered: 05/21/2020)
Set/Reset Deadlines: Defendants' Response to Plaintiff's Motion to Compel due by 6/16/2020; Plaintiff's Reply in Support of Plaintiff's Motion to Compel due by 6/23/2020. (kk) (Entered: 05/21/2020)
115 Joint STATUS REPORT by MATTHEW T. ALBENCE, NATHALIE ASHER, DEREK N. BENNER, SEAN GALLAGHER, TAE JOHNSON, ENRIQUE LUCERO, TREY LUND, KEVIN K. MCALEENAN, CLAIRE TRICKLER-MCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT. (Walker, James) (Entered: 06/01/2020)
116 MOTION to Compel Discovery Responses by SOUTHERN POVERTY LAW CENTER (Attachments: # 1 Memorandum in Support, # 2 Declaration of Shalini Goel Agarwal, # 3 Declaration of Peter L. Markowitz, # 4 Text of Proposed Order)(Dorris, William) (Entered: 06/02/2020)
117 Partial MOTION to Dismiss for Lack of Jurisdiction by MATTHEW T. ALBENCE, NATHALIE ASHER, DEREK N. BENNER, SEAN GALLAGHER, THOMAS HOMAN, DAVID JENNINGS, TAE JOHNSON, ENRIQUE LUCERO, TREY LUND, KEVIN K. MCALEENAN, KIRSTJEN M. NIELSEN, DAVID RIVERA, CLAIRE TRICKLER-MCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, RONALD D. VITIELLO (Attachments: # 1 Exhibit Exhibit A, # 2 Text of Proposed Order Proposed Order) (Mueller, Ruth) (Entered: 06/02/2020)
MINUTE ORDER: The parties' 115 Joint Status Report regarding the discovery disputes referred to Magistrate Judge Meriweather indicates that the parties are still brieﬁng those issues. Accordingly, as the discovery disputes have not yet been resolved, the Court VACATES the status hearing scheduled for JUNE 5, 2020 at 10:00 AM. Moreover, upon review of the 115 Joint Status Report, the Court ORDERS that the parties shall ﬁle a further Joint Status Report by no later than AUGUST 1, 2020 updating the Court on the status of discovery and the referred discovery disputes, or within ten days of resolution of

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the discovery disputes, whichever is sooner. Signed by Judge Colleen Kollar-Kotelly on June 4, 2020. (lccck1) (Entered: 06/04/2020)

06/09/2020

118 MOTION for Leave to File Excess Pages by MATTHEW T. ALBENCE, NATHALIE ASHER, DEREK N. BENNER, SEAN GALLAGHER, THOMAS HOMAN, DAVID JENNINGS, TAE JOHNSON, ENRIQUE LUCERO, TREY LUND, KEVIN K. MCALEENAN, KIRSTJEN M. NIELSEN, DAVID RIVERA, CLAIRE TRICKLERMCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, RONALD D. VITIELLO (Attachments: # 1 Text of Proposed Order)(Byerley, David) (Entered: 06/09/2020)

06/11/2020

MINUTE ORDER: The Court has received Defendants' 117 Motion to Partially Dismiss the Second Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(h)(3) for Lack of Subject-Matter Jurisdiction. The Court is currently considering the pending 105 Motion for a Temporary Restraining Order. Defendants' 112 Corrected Opposition to that Motion appears to raise some of the same issues as its 117 Motion to Dismiss. Accordingly, the Court will hold off in setting a brieﬁng schedule on the 117 Motion to Dismiss until it has issued an Order and Memorandum Opinion regarding the 105 Motion for a Temporary Restraining Order. Signed by Judge Colleen Kollar-Kotelly on June 11, 2020. (lccck1) (Entered: 06/11/2020)

06/11/2020

119 NOTICE OF SUPPLEMENTAL AUTHORITY by SOUTHERN POVERTY LAW CENTER (Bergin, John) (Entered: 06/11/2020)

06/16/2020

120 NOTICE OF SUPPLEMENTAL AUTHORITY by SOUTHERN POVERTY LAW CENTER (Attachments: # 1 Exhibit Ex. A Declaration of Shalini Goel Agarwal with DEF-00004449-57, # 2 Exhibit Ex. B Third Supplemental Declaration of Laura Rivera) (Bergin, John) (Entered: 06/16/2020)

06/16/2020

121 RESPONSE re 116 MOTION to Compel Discovery Responses and Cross-MOTION for Entry of Fed. R. Civ. P. 26(c) Protective Order ﬁled by MATTHEW T. ALBENCE, NATHALIE ASHER, DEREK N. BENNER, SEAN GALLAGHER, THOMAS HOMAN, DAVID JENNINGS, TAE JOHNSON, ENRIQUE LUCERO, TREY LUND, KEVIN K. MCALEENAN, KIRSTJEN M. NIELSEN, DAVID RIVERA, CLAIRE TRICKLER-MCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, RONALD D. VITIELLO. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Plaintiff's First Set of Requests for Production, # 3 Exhibit Plaintiff's First Set of Interrogatories, # 4 Exhibit Defendants' Initial Response to Plaintiff's Requests for Production, # 5 Exhibit Defendants' First Supplemental Response to Plaintiff's First Set of Requests for Production, # 6 Exhibit Defendants' Response to Plaintiff's First Set of Interrogatories, # 7 Exhibit Plaintiff's January 14, 2020 Letter re: Defendants' Discovery Responses, # 8 Exhibit Defendants' January 22, 2020 Reply to Plaintiff's January 14 Letter, # 9 Exhibit Defendants' Second Supplemental Response to Plaintiff's First Set of Requests for Production, # 10 Exhibit Defendants' Active Learning Protocol and Exhibits, # 11 Exhibit Plaintiff's Letter re: Defendants' Active Learning Protocol, # 12 Exhibit Plaintiff's Email Seeking Meet & Confer, # 13 Exhibit Defendants' February 14, 2020 Response to Plaintiff's Letter re: Active Learning, # 14 Exhibit Parties' Correspondence re: Meet & Confer, # 15 Exhibit Plaintiff's Internal Chart re: Defendants' Objections, # 16 Exhibit Akinsulure-Smith Request for Inspection, # 17 Exhibit Markowitz & Stave Request for Inspection, # 18 Exhibit Schriro Request for Inspection, # 19 Exhibit DaFoe Request for Inspection, # 20 Exhibit Defendants' Response to Akinsulure-Smith Request for Inspection, # 21 Exhibit Defendants' Response to Markowitz & Stave Request for Inspection, # 22 Exhibit Defendants' Response to Schriro Request for Inspection, # 23 Exhibit Plaintiff's Deﬁciency Letter re: Defendants' Responses to Requests for Inspection, # 24 Exhibit Defendants' Response to DaFoe Request for Inspection, # 25 Exhibit Defendants'

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Response to Deﬁciency Letter re: Requests for Inspection, # 26 Exhibit Search Term Report for Plaintiff and Defendants Combined Search Terms)(Byerley, David) (Entered: 06/16/2020)
122 MOTION for Protective Order by NATHALIE ASHER, DEREK N. BENNER, SEAN GALLAGHER, TAE JOHNSON, ENRIQUE LUCERO, TREY LUND, KEVIN K. MCALEENAN, CLAIRE TRICKLER-MCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (ztd); (See docket entry no. 121 to view.) (Entered: 06/17/2020)
MINUTE ORDER: The Court is in receipt of Defendants' 111 Motion for Leave to File Defendants' Response to Plaintiff's Motion for a Temporary Restraining Order Out of Time, in which Defendants seek, nunc pro tunc, for leave to ﬁle their response approximately ﬁfteen minutes late. Defendants note that Plaintiff did not oppose the request. For good cause shown and with Plaintiff's consent, the Court GRANTS the Motion, nunc pro tunc. Signed by Judge Colleen Kollar-Kotelly on June 17, 2020. (lccck1) (Entered: 06/17/2020)
123 ORDER granting in part and denying in part 105 Plaintiff's Motion for a Temporary Restraining Order. See Order for details. Signed by Judge Colleen Kollar-Kotelly on June 17, 2020. (lccck1) (Entered: 06/17/2020)
124 MEMORANDUM OPINION accompanying 123 ORDER. Signed by Judge Colleen Kollar-Kotelly on June 17, 2020. (lccck1) (Entered: 06/17/2020)
MINUTE ORDER: In its Minute Order dated June 11, 2020, the Court explained that it would not set a brieﬁng schedule on Defendants' 117 Motion to Partially Dismiss the Second Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(h)(3) for Lack of Subject-Matter Jurisdiction because it appeared to raise some of the same issues as the pending 105 Motion for a Temporary Restraining Order. As of the date of this Minute Order, the Court has ruled on Plaintiff's Motion for a Temporary Restraining Order, see ECF Nos. 123 124 , granting it in part and denying it in part. As the Court's discussion in its 124 Memorandum Opinion addresses issues raised in Defendants' 117 Motion, the Court DENIES WITHOUT PREJUDICE Defendants' Motion at this juncture. Signed by Judge Colleen Kollar-Kotelly on June 17, 2020. (lccck1) (Entered: 06/17/2020)
125 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Veronica Salama, Filing fee $ 100, receipt number ADCDC-7243632. Fee Status: Fee Paid. by SOUTHERN POVERTY LAW CENTER (Attachments: # 1 Declaration Declaration of Veronica Salama ISO Motion PHV, # 2 Text of Proposed Order Proposed Order)(Bergin, John) (Entered: 06/18/2020)
MINUTE ORDER: In its 123 Order, the Court required Defendants to ﬁle a notice with the Court with either a Certiﬁcate of Compliance certifying under oath that the Defendant Facilities are in compliance with the Court's 123 Order or a detailed notice explaining steps taken so far and the current state of compliance with the Courts Order at each Facility. The Court clariﬁes in this Minute Order that Defendants shall ﬁle the aforementioned document on or before JUNE 30, 2020. Signed by Judge Colleen KollarKotelly on June 18, 2020. (lccck1) (Entered: 06/18/2020)
Set/Reset Deadlines: Defendants shall ﬁle the aforementioned document by 6/30/2020. (dot) (Entered: 06/18/2020)
126 MOTION for Extension of Time to File Response/Reply as to 116 MOTION to Compel Discovery Responses, 122 MOTION for Protective Order Plaintiff's Motion for an Extension of Time to File Reply in Support of Its Motion to Compel and Response to Defendants' Cross-Motion for Protective Order by SOUTHERN POVERTY LAW

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CENTER (Attachments: # 1 Text of Proposed Order)(Dorris, William) (Entered: 06/18/2020)
MINUTE ORDER: The Court has received the 125 Motion for Admission of Attorney Veronica Salama Pro Hac Vice, which contains the information required by Local Civil Rule 83.2(d) and indicates that counsel has reviewed and is familiar with the local rules of this Court. Accordingly, that Motion is GRANTED.

Counsel should register for e-ﬁling via PACER and ﬁle a notice of appearance pursuant to LCvR 83.6(a). Click f or instructions. Signed by Judge Colleen KollarKotelly on June 19, 2020. (lccck1) (Entered: 06/19/2020)

06/19/2020

MINUTE ORDER: In light of Plaintiff, SOUTHERN POVERTY LAW CENTER's unopposed 126 Motion for an Extension to File its Reply in Support of Plaintiff's Motion to Compel and Plaintiff's Response to Defendants' Cross-Motion for Protective Order, and for the reasons stated therein, the Court ﬁnds good cause to GRANT the Motion. Accordingly, it is hereby ORDERED that the brieﬁng schedule established by the Court's 05/21/2020 Minute Entry shall be AMENDED as follows: Plaintiff's Reply in Support of Plaintiff's Motion to Compel and Plaintiff's Response to Defendants' Cross-Motion for Protective Order shall be ﬁled by 06/30/2020; Defendants' Reply in Support of Defendants' Cross-Motion for Protective Order shall be ﬁled by 07/07/2020. Signed by Magistrate Judge Robin M. Meriweather on 06/19/2020. (lcrm1) (Entered: 06/19/2020)

06/19/2020

Set/Reset Deadlines: Plaintiff's Reply in Support of Plaintiff's Motion to Compel and Plaintiff's Response to Defendants' Cross-Motion for Protective Order due 6/30/2020; Defendants' Reply in Support of Defendants' Cross-Motion for Protective Order due by 7/7/2020. (kk) (Entered: 06/19/2020)

06/22/2020 127 NOTICE of Appearance by Christopher Thomas Lyerla on behalf of All Defendants (Lyerla, Christopher) (Entered: 06/22/2020)

06/22/2020

128 MOTION for Extension of Time to File Response/Reply in Support of Defendants' Motion for a Protective Order by MATTHEW T. ALBENCE, NATHALIE ASHER, DEREK N. BENNER, SEAN GALLAGHER, THOMAS HOMAN, DAVID JENNINGS, TAE JOHNSON, ENRIQUE LUCERO, TREY LUND, KEVIN K. MCALEENAN, KIRSTJEN M. NIELSEN, DAVID RIVERA, CLAIRE TRICKLER-MCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, RONALD D. VITIELLO (Attachments: # 1 Text of Proposed Order) (Byerley, David) (Entered: 06/22/2020)

06/24/2020

MINUTE ORDER: In light of Defendant, U.S. DEPARTMENT OF HOMELAND SECURITY et al's unopposed 128 Motion for an Extension to File its Reply in Support of Defendants' Cross-Motion for Protective Order, and for the reasons stated therein, the Court ﬁnds good cause to GRANT the Motion. Accordingly, it is hereby ORDERED that Defendants' Reply in Support of Defendants' Cross-Motion for Protective Order shall be ﬁled on or by 07/14/2020. Signed by Magistrate Judge Robin M. Meriweather on 06/24/2020. (lcrm1) (Entered: 06/24/2020)

06/24/2020

Set/Reset Deadlines: Defendants' Reply in Support of Defendants' Cross Motion for Protective Order due by 7/14/2020. (kk) (Entered: 07/03/2020)

06/30/2020

129 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL ﬁled by SOUTHERN POVERTY LAW CENTER (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Reply in Support of Motion to Compel and Response to Defs' Cross-Motion for Protective Order, # 2 Declaration of Shalini Goel Argarwal (Supp), # 3 Text of Proposed Order)(Dorris, William) (Entered: 06/30/2020)

06/30/2020 130 REPLY to opposition to motion re 116 MOTION to Compel Discovery Responses

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(Redacted Version) ﬁled by SOUTHERN POVERTY LAW CENTER. (Attachments: # 1 Declaration of Shalini Goel Agarwal (Supp))(Dorris, William) (Entered: 06/30/2020)

06/30/2020

131 NOTICE in Response to the Court's June 17, 2020 Order by MATTHEW T. ALBENCE, NATHALIE ASHER, DEREK N. BENNER, SEAN GALLAGHER, TAE JOHNSON, ENRIQUE LUCERO, TREY LUND, KEVIN K. MCALEENAN, CLAIRE TRICKLERMCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (Attachments: # 1 Exhibit Declaration of David Paulk with Exhibits, # 2 Exhibit Declaration of Shad Rice with Exhibits, # 3 Exhibit Declaration of Russell Washburn with Attachments, # 4 Exhibit Declaration of Eric Staiger with Exhibits)(Byerley, David) (Entered: 06/30/2020)

06/30/2020 132 RESPONSE re 122 MOTION for Protective Order ﬁled by SOUTHERN POVERTY LAW CENTER. (ztd); (See docket entry no. 130 to view.) (Entered: 07/01/2020)

07/14/2020

MINUTE ORDER: Upon consideration of Defendant U.S. DEPARTMENT OF HOMELAND SECURITY ET AL's unopposed 118 Motion for Leave to File Excess Pages and for the reasons stated therein, the Court ﬁnds good cause to GRANT the motion, nunc pro tunc to 06/10/2020. It is hereby ORDERED that Defendants may ﬁle an opposition to Plaintiff's motion to compel and cross-motion for a protective order that is 63 pages in length. Although Defendants sought leave to ﬁle a 55 page brief, but then exceeded the requested 10 page extension by ﬁling a 63 page brief, the Court will allow the full 63 pages. The Court reminds Defendants that the request in their motion should accurately reﬂect the number of pages in their ﬁling. See Local Rule 7(e). Signed by Magistrate Judge Robin M. Meriweather on 07/14/2020. (lcrm1) (Entered: 07/14/2020)

07/14/2020

133 MOTION to Dismiss for Lack of Jurisdiction by MATTHEW T. ALBENCE, NATHALIE ASHER, DEREK N. BENNER, SEAN GALLAGHER, THOMAS HOMAN, DAVID JENNINGS, TAE JOHNSON, ENRIQUE LUCERO, TREY LUND, KEVIN K. MCALEENAN, KIRSTJEN M. NIELSEN, DAVID RIVERA, CLAIRE TRICKLERMCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, RONALD D. VITIELLO (Attachments: # 1 Exhibit Exhibit A, # 2 Text of Proposed Order)(Mueller, Ruth) (Entered: 07/14/2020)

07/14/2020

134 Unopposed MOTION for Leave to File Excess Pages as to Defendants' Reply in Support of Defendants' Cross-Motion for a Protective Order by MATTHEW T. ALBENCE, NATHALIE ASHER, DEREK N. BENNER, SEAN GALLAGHER, THOMAS HOMAN, DAVID JENNINGS, TAE JOHNSON, ENRIQUE LUCERO, TREY LUND, KEVIN K. MCALEENAN, KIRSTJEN M. NIELSEN, DAVID RIVERA, CLAIRE TRICKLER-MCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, RONALD D. VITIELLO (Attachments: # 1 Text of Proposed Order)(Byerley, David) (Entered: 07/14/2020)

07/14/2020

135 REPLY to opposition to motion re 122 MOTION for Protective Order ﬁled by MATTHEW T. ALBENCE, NATHALIE ASHER, DEREK N. BENNER, SEAN GALLAGHER, THOMAS HOMAN, DAVID JENNINGS, TAE JOHNSON, ENRIQUE LUCERO, TREY LUND, KEVIN K. MCALEENAN, KIRSTJEN M. NIELSEN, DAVID RIVERA, CLAIRE TRICKLER-MCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, RONALD D. VITIELLO. (Byerley, David) (Entered: 07/14/2020)

07/15/2020

MINUTE ORDER: The Court has received 133 Defendants' Renewed Motion to Partially Dismiss the Second Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(h)(3) for Lack of Subject-Matter Jurisdiction. Plaintiff shall ﬁle any opposition to the 133 Motion by no later than JULY 28, 2020 and Defendants shall ﬁle any reply by no later than AUGUST 4, 2020. Signed by Judge Colleen Kollar-Kotelly on July 15, 2020. (lccck1) (Entered: 07/15/2020)

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Set/Reset Deadlines: Plaintiff's Response to 133 due by 7/28/2020. Defendants' Reply 133 due by 8/4/2020. (dot) (Entered: 07/16/2020)
136 RESPONSE re 133 MOTION to Dismiss for Lack of Jurisdiction ﬁled by SOUTHERN POVERTY LAW CENTER. (Dorris, William) (Entered: 07/28/2020)
137 STATUS REPORT by MATTHEW T. ALBENCE, NATHALIE ASHER, DEREK N. BENNER, SEAN GALLAGHER, TAE JOHNSON, ENRIQUE LUCERO, TREY LUND, KEVIN K. MCALEENAN, CLAIRE TRICKLER-MCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT. (Lyerla, Christopher) (Entered: 07/31/2020)
MINUTE ORDER: The Court has received the parties' 137 Joint Status Report, which indicates that the parties' referred discovery disputes are still before Magistrate Judge Meriweather. Accordingly, as the parties are continuing to meet and confer regarding certain disputes and as other referred disputes are not yet resolved, the Court ORDERS that the parties shall ﬁle a further Joint Status Report by no later than SEPTEMBER 1, 2020 updating the Court on the status of discovery and the referred discovery disputes, or within ten days of resolution of the discovery disputes, whichever is sooner. Signed by Judge Colleen Kollar-Kotelly on August 4, 2020. (lcckk1) (Entered: 08/04/2020)
Set/Reset Deadlines: Joint Status Report due by 9/1/2020, updating the Court on the status of discovery and the referred discovery disputes, or within ten days of resolution of the discovery disputes, whichever is sooner. (dot) (Entered: 08/04/2020)
138 REPLY to opposition to motion re 133 MOTION to Dismiss for Lack of Jurisdiction ﬁled by MATTHEW T. ALBENCE, NATHALIE ASHER, DEREK N. BENNER, SEAN GALLAGHER, THOMAS HOMAN, DAVID JENNINGS, TAE JOHNSON, ENRIQUE LUCERO, TREY LUND, KEVIN K. MCALEENAN, KIRSTJEN M. NIELSEN, DAVID RIVERA, CLAIRE TRICKLER-MCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, RONALD D. VITIELLO. (Mueller, Ruth) (Entered: 08/04/2020)
139 MOTION to Enforce Court's June 17, 2020 Order by SOUTHERN POVERTY LAW CENTER (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Declaration Agarwal, # 4 Declaration Rivera, # 5 Declaration Schriro)(Dorris, William) (Entered: 08/07/2020)
MINUTE ORDER: The Court has received Plaintiff's 139 Motion to Enforce Court's June 17, 2020 Order. Therein, Plaintiff requests an expedited brieﬁng schedule, owing to the immediacy of the harm caused by Defendants' alleged non-compliance with the Court's 123 June 17, 2020 order. Accordingly, Defendants shall submit any response to Plaintiff's Motion to Enforce Court's June 17, 2020 Order on or before AUGUST 21, 2020. With their response, Defendants shall submit an updated compliance report indicating how Defendants have improved their compliance with the Court's 123 June 17, 2020 order in the time since Defendants ﬁled their 131 Notice of Partial Compliance on June 30, 2020. Defendants' response shall not include assertions of compliance with the Court's June 17, 2020 order that are not supported by the updated compliance report submitted therewith. Failure to submit an updated compliance report will render Defendants' 131 Notice of Partial Compliance void. Plaintiff shall submit any reply on or before AUGUST 28, 2020. Signed by Judge Colleen Kollar-Kotelly on August 10, 2020. (lcckk1) (Entered: 08/10/2020)
Set/Reset Deadlines: Defendants' Response tp Plaintiff's Motion to Enforce Court's June 17, 2020 Order due by 8/21/2020. Plaintiff's Reply, if any, due by 8/28/2020. (dot) (Entered: 08/10/2020)

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140 NOTICE OF INTERLOCUTORY APPEAL as to 123 Order on Motion for TRO, 124 Memorandum & Opinion by MATTHEW T. ALBENCE, NATHALIE ASHER, DEREK N. BENNER, SEAN GALLAGHER, THOMAS HOMAN, DAVID JENNINGS, TAE JOHNSON, ENRIQUE LUCERO, TREY LUND, KEVIN K. MCALEENAN, KIRSTJEN M. NIELSEN, DAVID RIVERA, CLAIRE TRICKLER-MCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, RONALD D. VITIELLO. Fee Status: No Fee Paid. Parties have been notiﬁed. (Byerley, David) (Entered: 08/14/2020)

08/17/2020

141 Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The Court of Appeals docketing fee was not paid because the appeal was ﬁled by the government re 140 Notice of Interlocutory Appeal,. (ztd) (Entered: 08/17/2020)

08/21/2020

142 NOTICE [Updated] of Compliance with the Court's June 17 Order by MATTHEW T. ALBENCE, NATHALIE ASHER, DEREK N. BENNER, SEAN GALLAGHER, TAE JOHNSON, ENRIQUE LUCERO, TREY LUND, KEVIN K. MCALEENAN, CLAIRE TRICKLER-MCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (Attachments: # 1 Exhibit August 21 Paulk Declaration, # 2 Exhibit August 20 Rice Declaration, # 3 Exhibit August 21 Washburn Decl., # 4 Exhibit August 20 Staiger Decl., # 5 Exhibit August 21 Bretz Decl., # 6 Exhibit August 21 Musante Decl.)(Byerley, David) (Entered: 08/21/2020)

08/21/2020

143 Memorandum in opposition to re 139 MOTION to Enforce Court's June 17, 2020 Order ﬁled by MATTHEW T. ALBENCE, NATHALIE ASHER, DEREK N. BENNER, SEAN GALLAGHER, THOMAS HOMAN, DAVID JENNINGS, TAE JOHNSON, ENRIQUE LUCERO, TREY LUND, KEVIN K. MCALEENAN, KIRSTJEN M. NIELSEN, DAVID RIVERA, CLAIRE TRICKLER-MCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, RONALD D. VITIELLO. (Attachments: # 1 Exhibit August 21 Paulk Declaration, # 2 Exhibit August 20 Rice Declaration, # 3 Exhibit August 21 Washburn Decl., # 4 Exhibit August 20 Staiger Decl., # 5 Exhibit August 21 Bretz Decl., # 6 Exhibit August 21 Musante Decl., # 7 Exhibit July 1 Chambarlain Decl., # 8 Exhibit July 2 Musante Decl., # 9 Exhibit July 2 Sterling Decl., # 10 Exhibit July 8 Johnson Decl., # 11 Exhibit July 28 ICE ERO Pandemic Response Requirement, # 12 Exhibit CDC COVID-19 Management in Detention, # 13 Exhibit Interim Considerations for SARS-CoV-2 Testing)(Byerley, David) (Entered: 08/21/2020)

08/24/2020

144 ERRATA by MATTHEW T. ALBENCE, NATHALIE ASHER, DEREK N. BENNER, SEAN GALLAGHER, TAE JOHNSON, ENRIQUE LUCERO, TREY LUND, KEVIN K. MCALEENAN, CLAIRE TRICKLER-MCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT 143 Memorandum in Opposition,,,, ﬁled by KIRSTJEN M. NIELSEN, TAE JOHNSON, TREY LUND, ENRIQUE LUCERO, U.S. DEPARTMENT OF HOMELAND SECURITY, SEAN GALLAGHER, MATTHEW T. ALBENCE, CLAIRE TRICKLERMCNULTY, DAVID JENNINGS, THOMAS HOMAN, KEVIN K. MCALEENAN, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, RONALD D. VITIELLO, DAVID RIVERA, DEREK N. BENNER, NATHALIE ASHER. (Byerley, David) (Entered: 08/24/2020)

08/24/2020

145 Memorandum in opposition to re 139 MOTION to Enforce Court's June 17, 2020 Order [CORRECTED] ﬁled by MATTHEW T. ALBENCE, NATHALIE ASHER, DEREK N. BENNER, SEAN GALLAGHER, THOMAS HOMAN, DAVID JENNINGS, TAE JOHNSON, ENRIQUE LUCERO, TREY LUND, KEVIN K. MCALEENAN, KIRSTJEN M. NIELSEN, DAVID RIVERA, CLAIRE TRICKLER-MCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS

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ENFORCEMENT, RONALD D. VITIELLO. (Attachments: # 1 Exhibit August 21 Paulk Declaration, # 2 Exhibit August 20 Rice Declaration, # 3 Exhibit August 21 Washburn Decl., # 4 Exhibit August 20 Staiger Decl., # 5 Exhibit August 21 Bretz Decl., # 6 Exhibit August 21 Musante Decl., # 7 Exhibit July 1 Chambarlain Decl., # 8 Exhibit July 2 Musante Decl., # 9 Exhibit July 2 Sterling Decl., # 10 Exhibit July 8 Johnson Decl., # 11 Exhibit July 28 ICE ERO Pandemic Response Requirement, # 12 Exhibit CDC COVID19 Management in Detention, # 13 Exhibit Interim Considerations for SARS-CoV-2 Testing)(Byerley, David) (Entered: 08/24/2020)
146 Unopposed MOTION for Leave to File Excess Pages as to Defendants' Response and Opposition to Plaintiff's Motion to Compel Compliance with the Court's June 17, 2020 Order by MATTHEW T. ALBENCE, NATHALIE ASHER, DEREK N. BENNER, SEAN GALLAGHER, THOMAS HOMAN, DAVID JENNINGS, TAE JOHNSON, ENRIQUE LUCERO, TREY LUND, KEVIN K. MCALEENAN, KIRSTJEN M. NIELSEN, DAVID RIVERA, CLAIRE TRICKLER-MCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, RONALD D. VITIELLO (Attachments: # 1 Text of Proposed Order) (Byerley, David) (Entered: 08/24/2020)
MINUTE ORDER: The Court has received the Defendants' 146 Unopposed Motion for Leave. The Court notes that Plaintiff does not oppose this request. Accordingly, and for good cause shown, the Court GRANTS Defendants' 146 Unopposed Motion for Leave. Signed by Judge Colleen Kollar-Kotelly on August 24, 2020. (lcckk1) (Entered: 08/24/2020)
USCA Case Number 20-5257 for 140 Notice of Interlocutory Appeal, ﬁled by KIRSTJEN M. NIELSEN, TAE JOHNSON, TREY LUND, ENRIQUE LUCERO, U.S. DEPARTMENT OF HOMELAND SECURITY, SEAN GALLAGHER, MATTHEW T. ALBENCE, CLAIRE TRICKLER-MCNULTY, DAVID JENNINGS, THOMAS HOMAN, KEVIN K. MCALEENAN, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, RONALD D. VITIELLO, DAVID RIVERA, DEREK N. BENNER, NATHALIE ASHER. (zrdj) (Entered: 08/27/2020)
147 REPLY re 139 MOTION to Enforce Court's June 17, 2020 Order Granting Injunctive Relief ﬁled by SOUTHERN POVERTY LAW CENTER. (Attachments: # 1 Declaration of Laura G. Rivera)(Dorris, William) (Entered: 08/28/2020)
148 NOTICE OF WITHDRAWAL OF APPEARANCE as to SOUTHERN POVERTY LAW CENTER. Attorney Shalini G. Agarwal terminated. (Agarwal, Shalini) (Entered: 09/01/2020)
149 Joint STATUS REPORT by MATTHEW T. ALBENCE, NATHALIE ASHER, DEREK N. BENNER, SEAN GALLAGHER, TAE JOHNSON, ENRIQUE LUCERO, TREY LUND, KEVIN K. MCALEENAN, CLAIRE TRICKLER-MCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT. (Lyerla, Christopher) (Entered: 09/01/2020)
150 NOTICE OF WITHDRAWAL OF APPEARANCE as to MATTHEW T. ALBENCE, NATHALIE ASHER, DEREK N. BENNER, SEAN GALLAGHER, TAE JOHNSON, ENRIQUE LUCERO, TREY LUND, KEVIN K. MCALEENAN, CLAIRE TRICKLERMCNULTY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT. Attorney Alan Burch terminated. (Burch, Alan) (Entered: 09/20/2020)
151 NOTICE OF WITHDRAWAL OF APPEARANCE as to SOUTHERN POVERTY LAW CENTER. Attorney Jared F. Davidson terminated. (Dorris, William) (Entered: 09/22/2020)

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152 NOTICE of Appearance by Veronica Salama on behalf of SOUTHERN POVERTY LAW CENTER (Salama, Veronica) (Entered: 09/24/2020)
153 NOTICE OF WITHDRAWAL OF APPEARANCE as to SOUTHERN POVERTY LAW CENTER. Attorney Lisa S. Graybill terminated. (Graybill, Lisa) (Entered: 09/24/2020)
154 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Gracie H. Willis, Filing fee $ 100, receipt number ADCDC-7822638. Fee Status: Fee Paid. by SOUTHERN POVERTY LAW CENTER (Attachments: # 1 Declaration of Gracie H. Willis, # 2 Text of Proposed Order)(Bergin, John) (Entered: 11/11/2020)
155 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Sarah M. Rich, Filing fee $ 100, receipt number ADCDC-7822669. Fee Status: Fee Paid. by SOUTHERN POVERTY LAW CENTER (Attachments: # 1 Declaration of Sarah M. Rich, # 2 Text of Proposed Order)(Bergin, John) (Entered: 11/11/2020)
ORDER granting 154 Motion for Leave to Appear Pro Hac Vice. Counsel should register for e-ﬁling via PACER and ﬁle a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. Signed by Judge Colleen Kollar-Kotelly on November 15, 2020. (lcckk1) (Entered: 11/15/2020)
ORDER granting 155 Motion for Leave to Appear Pro Hac Vice. Counsel should register for e-ﬁling via PACER and ﬁle a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. Signed by Judge Colleen Kollar-Kotelly on November 15, 2020. (lcckk1) (Entered: 11/15/2020)
156 NOTICE of Appearance by Sarah Rich on behalf of SOUTHERN POVERTY LAW CENTER (Rich, Sarah) (Entered: 12/14/2020)
157 NOTICE of Appearance by Gracie Willis on behalf of SOUTHERN POVERTY LAW CENTER (Willis, Gracie) (Entered: 12/16/2020)
MINUTE ORDER: Upon consideration of Plaintiff's unopposed 129 Motion to Seal, and for the reasons stated therein, the Court GRANTS the Motion. It is hereby ordered that Plaintiff may ﬁle Exhibits A-D to its Motion under seal, which are documents produced in discovery that Defendants have designated conﬁdential. It is further ordered that Plaintiff may ﬁle unredacted versions of its Reply in Support of Its Motion to Compel and Response to Defendants' Cross-Motion for Protective Order, as well as the accompanying Supplemental Declaration of Shalini Goel Agarwal under seal, and must ﬁle redacted versions of these two documents on the public record. Signed by Magistrate Judge Robin M. Meriweather on 01/04/2021. (lcaw) (Entered: 01/04/2021)
MINUTE ORDER: Upon consideration of Defendants' unopposed 134 Motion for Leave to File Excess Pages as to Defendants' Reply in Support of Defendants' Cross-Motion for a Protective Order, and for the reasons stated therein, the Court ﬁnds good cause to GRANT the Motion. Defendants may ﬁle a reply that does not exceed 30 pages. Signed by Magistrate Judge Robin M. Meriweather on 01/04/2021. (lcaw) (Entered: 01/04/2021)
158 SEALED REPLY in Support ﬁled by SOUTHERN POVERTY LAW CENTER re 116 MOTION to Compel Discovery Responses (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Declaration and Exhibits)(zjf) (Entered: 01/07/2021)
159 SEALED RESPONSE ﬁled by SOUTHERN POVERTY LAW CENTER re 122 MOTION for Protective Order (Attachments: # 1 Declaration and Exhibits)(zjf) Modiﬁed on 1/11/2021 to correct docket link (zjf). (Entered: 01/07/2021)

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PACER Service Center
Transaction Receipt

01/14/2021 10:39:19

PACER Login:

CRClearinghouse Client Code: Ruchita Coomar

Description: Docket Report

Search Criteria:

1:18-cv-00760-CKKRMM

Billable Pages:

30

Cost:

3.00

Exempt ﬂag: Not Exempt

Exempt reason:

Not Exempt

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 Case 1:18-cv-00760-CKK Document 1 Filed 04/04/18 Page 1 of 63

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SOUTHERN POVERTY LAW CENTER, in its individual capacity and on behalf of its clients detained at LaSalle Detention Facility, Irwin County Detention Center, and Stewart Detention Center 400 Washington Ave. Montgomery, Alabama 36104

Civil Action No. 1.18-cv-___________________

Plaintiff,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY 3801 Nebraska Avenue, NW Washington, D.C. 20016;
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT 500 12th Street, SW Washington, D.C. 20536;
KIRSTJEN NIELSEN, Secretary of Homeland Security, in official capacity 3801 Nebraska Avenue, NW Washington, D.C. 20016;
THOMAS HOMAN, Deputy Director and Acting Director, U.S. Immigration and Customs Enforcement, in official capacity 500 12th Street, SW Washington, D.C. 20536;
CLAIRE TRICKLER-MCNULTY, Acting Director. U.S. Immigration and Customs Enforcement, Office of Detention Policy and Planning, in official capacity 500 12th Street, SW Washington, D.C. 20536;

COMPLAINT

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MATTHEW ALBENCE, Executive Associate Director, Enforcement & Removal Operations, in official capacity 500 12th Street, SW Washington, D.C. 20536;
TAE JOHNSON, Assistant Director for Custody Management, Enforcement & Removal Operations, in official capacity 500 12th Street, SW Washington, D.C. 20536;
NATHALIE R. ASHER, Acting Assistant Director, Field Operations for Enforcement and Removal Operations, in official capacity 500 12th Street, SW Washington, D.C. 20536;
DAVID RIVERA, Field Office Director, U.S. Immigration and Customs Enforcement, New Orleans Field Office, in official capacity 830 Pine Hill Road Jena, Louisiana 71342;
SEAN GALLAGHER, Field Office Director, U.S. Immigration and Customs Enforcement, Atlanta Field Office, in official capacity 180 Ted Turner Drive, SW. Suite 522 Atlanta, Georgia 30303
Defendants.
INTRODUCTION
1. The United States currently detains hundreds of thousands of noncitizens in civil
immigration prisons each year. These detainees include both documented and undocumented
people. Many have been in the United States for years and have strong family and community
ties. Others have arrived more recently, frequently after fleeing persecution in their home
countries. The basis for detaining noncitizens in immigration prisons is civil, not criminal. Many
of these detained people have claims that would allow them to remain in the United States, and
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many also have viable claims that they should be released on bond or parole pending completion of their removal proceedings. Legal representation often ensures that such people are not unnecessarily detained for long periods of time, and also frequently makes the difference between whether they are allowed to remain safely in the United States or are permanently separated from family and returned to danger or even death.
2. Noncitizen detainees represented by counsel are 10-and-a-half times more likely to succeed in their cases, and almost seven times more likely to obtain bond, as compared to their pro se counterparts. Individuals who are released from detention and are able to secure counsel are almost 20 times more likely to succeed in their cases than detainees without counsel.1
3. The Fifth Amendment to the U.S. Constitution contemplates the crucial role of counsel in high-stakes court proceedings. Courts consistently interpret this amendment to afford people in removal proceedings the right to legal representation at their own expense at full and fair hearings. Yet this right is all but illusory for the thousands of people whom Defendants detain in isolated prisons in remote and rural parts of the United States.
4. For decades, the Department of Homeland Security, Immigration and Customs Enforcement, and their officials (“Defendants”) have deliberately detained people in immigration prisons far away from legal resources. Consistent with this longstanding practice, Defendants have contracted with local municipalities and private prison companies to detain noncitizens in some of the most rural and remote locales in the Southeast—far from major cities, law firms, nonprofit legal organizations, and professional interpretation services.
1 See Ingrid V. Eagly & Steven Shafer, A National Study of Access to Counsel in Immigration Court, 164 U. Penn. L. Rev. 1, 49, 70 (2015) (describing different outcomes for represented versus unrepresented noncitizens in removal proceedings between 2007 and 2012).
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5. Defendants’ imprisonment practices have far-reaching and devastating consequences. Those ensnared by Defendants’ practices often have strong ties to their communities, having lived in the United States for many years. Their families are torn apart often for years: parents are separated from their children and spouses from each other and other family members—all with enormous emotional fallout. When a parent or other primary wageearner is imprisoned for long periods of time, these families face immediate economic hardship as well.
6. Families face the additional burden of having to travel great distances to see their loved one in a far-removed immigration prison. Many families cannot afford the cost, in terms of either time or dollars, that this travel requires and must forego any visits, putting further strain on the family. Employers and communities lose valuable contributors, often with no notice, creating further dislocation. And for those who have fled their home countries more recently due to persecution, their imprisonment in the United States simply continues a cycle of trauma they sought to escape. Without legal representation, the prospects for asserting their rights and reuniting with their families are dim.
7. And yet imprisoned in such isolated settings, people often find it impossible to secure counsel. Moreover, in the rare instances where people in these rural detention centers are able to retain counsel, Defendants detain so many people in these prisons that the small number of attorney-visitation rooms makes attorney-client meetings extremely difficult—if not impossible.
8. Defendants create and maintain substantial barriers that prevent meaningful access to and communication with attorneys, such as forcing attorneys to wait hours to meet with
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a single client, restricting access to critically needed interpreters, and substantially impeding the ability of people to speak remotely and confidentially with their attorneys via telephone.
9. Exacerbating these hurdles to accessing counsel, Defendants fail to prevent their agents who operate these remote prisons from erecting additional barriers between detainees and attorneys. Although Defendants are ultimately responsible for ensuring that conditions in these prisons comply with constitutional dictates, Defendants permit the day-to-day operators of these prisons to enjoy virtual impunity in engaging in obstructive conduct, such as unjustifiably interrupting attorney-client visits, denying attorney-client meetings during counts and shift changes, preventing attorneys from seeing their clients even when visitation rooms are available, frequently and arbitrarily changing visitation rules, and listening in on attorney-client communications.
10. Attorneys and others providing assistance with legal representation undergo harassment for the “unpopular work” of representing these detainees. Defendants’ tactics include following legal representatives off detention center property, examining them on the side of the road, and accusing them of supporting “illegal immigration”; forcing them to remove undergarments before entering civil prisons; pressuring them to end attorney-client visits early; interrupting and interrogating them during client visits; and trapping them for hours in locked areas of the prisons.
11. Such policies and practices further interfere with detainees’ access to, and communication with, their attorneys and impede attorneys’ ability to provide effective, constitutionally guaranteed representation that comports with their ethical obligations.
12. Nationally, only 14 percent of detained noncitizens are represented in immigration removal proceedings—compared to 37 percent of all immigrants. Representation
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rates are even lower—in some cases, as low as six percent—for noncitizens held in some of the large, rural detention centers in the Southeast. The comparatively paltry representation rates in the Southeast flow directly from Defendants’ policies, practices, and omissions.
13. This lawsuit is brought by a provider of legal services, the Southern Poverty Law Center (“SPLC”), on behalf of itself and its clients detained in three detention centers in the Southeastern United States—LaSalle Detention Facility in Jena, Louisiana (“LaSalle”); Irwin County Detention Center in Ocilla, Georgia (“Irwin”), and Stewart Detention Center in Lumpkin, Georgia (“Stewart”). The totality of barriers to accessing and communicating with attorneys endured by detainees in these prisons deprives SPLC’s clients of their constitutional rights to access courts, to access counsel, and to obtain full and fair hearings, in violation of the Due Process Clause of the Fifth Amendment. In addition, Defendants’ conduct violates SPLC’s rights under the First Amendment to represent civil detainees.
PARTIES 14. Plaintiff is the Southern Poverty Law Center (“SPLC”)—a non-profit corporation based in Montgomery, Alabama, that engages in litigation and advocacy to make equal justice and equal opportunity a reality for all, including the most vulnerable members of our society. Lawsuits brought by SPLC have challenged institutional racism and remnants of Jim Crow segregation; bankrupted white supremacist groups; and advocated for the civil rights of children, women, people with disabilities, immigrants and migrant workers, the LGBT community, prisoners, and many others who faced discrimination, abuse, and exploitation. Plaintiff also has a history of litigation and advocacy regarding the conditions of confinement for those in government custody, including immigration imprisonment. SPLC brings this litigation on behalf of itself and its clients detained at LaSalle, Irwin, and Stewart.
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15. In 2017, SPLC launched the Southeast Immigrant Freedom Initiative (“SIFI”)—a legal representation project that aims to provide high-quality pro bono legal representation and to safeguard due process rights for the thousands of people held in civil prisons across the Southeast. At the expense of fully pursuing and fulfilling its institutional goals, SPLC has been forced to devote and redirect significant portions of its monetary and personnel resources to counteract the unlawful barriers to accessing and communicating with counsel that Defendants have imposed at LaSalle, Irwin, and Stewart.
16. The myriad barriers to meaningful representation endured by SPLC’s clients at LaSalle, Irwin, and Stewart, which are the basis for this constitutional challenge, not only undermine their chances of prevailing in removal proceedings but also make it virtually impossible for them to pursue litigation on their own behalf to protect their constitutional rights.
17. Any lawyers who tried to represent SPLC clients in civil litigation would encounter the same obstacles to access with which SIFI’s staff and volunteers are currently grappling—including the inadequate number of attorney-visitation rooms, lack of contact visits, unavailability of interpreters, lack of access to video-teleconferencing (“VTC”) and telephones, lack of confidentiality, prohibition on electronic devices, and arbitrary changes in rules regarding attorney visitation. In fact, communicating with counsel to remediate access barriers would have the perverse consequence of exacerbating these very barriers due to the scarcity of attorneyclient visitation rooms and confidential telephone lines.
18. Further, given that most of SPLC’s detained clients have limited knowledge of the U.S. legal system and lack proficiency in English, the likelihood that they could undertake litigation pro se is virtually nil. Even if legal representation were available, many would be deterred from pursuing constitutional litigation due to a fear of retaliation by Defendants and
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their agents that could adversely impact their immigration cases. This is especially true in light of the intimidating conduct of Defendants’ agents detailed herein. Likewise, communicating with attorneys to pursue civil remedies to vindicate their rights to access counsel and the courts would further limit the insufficient time that detainees have to seek and consult counsel regarding their removal proceedings, thereby further dis-incentivizing their pursuit of civil remedies.
19. Given that SPLC’s detained clients are substantially hindered from protecting their own rights, SPLC has third-party standing to bring this action based on its role in providing noncitizen detainees with legal services and its ability to properly and zealously frame the issues.
20. Defendant U.S. Department of Homeland Security (“DHS”) is a federal executive agency responsible for, among other things, enforcing federal immigration laws and overseeing lawful immigration to the United States.
21. Defendant U.S. Immigration and Customs Enforcement (“ICE”) is a component of DHS. As the principal investigative arm of DHS, ICE is charged with enforcement of immigration laws. ICE’s primary duties include the investigation of persons suspected to have violated immigration laws, and the apprehension, detention, and removal of noncitizens who are unlawfully present in the United States.
22. Defendant Kirstjen Nielsen is the Secretary of DHS. Nielsen is charged with enforcing and administering immigration laws. She oversees each of the component agencies within DHS, including ICE, and has ultimate authority over all policies, procedures, and practices relating to ICE detention facilities. She is responsible for ensuring that all individuals held in ICE custody are detained in accordance with the Constitution and all relevant laws. Defendant Nielson is sued in her official capacity.
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23. Defendant Thomas Homan is the Deputy Director and Senior Official Performing the Duties of Director of ICE. Homan oversees the enforcement of the nation’s immigration laws and the operation of the government’s immigration detention system. To that end, he directs the administration of ICE’s detention policies, procedures, and operations, including those regarding the detention of noncitizens at LaSalle, Irwin, and Stewart. He is also responsible for ensuring that all individuals held in ICE custody are detained in accordance with the Constitution and all other relevant laws. Defendant Homan is sued in his official capacity.
24. Defendant Matthew Albence is the Executive Associate Director of ICE’s Enforcement and Removal Operations (“ERO”). ERO enforces the nation’s immigration laws, identifies and apprehends removable noncitizens, and detains and removes these individuals from the United States when necessary. ERO transports removable noncitizens from point to point, manages noncitizens in custody or in an “alternative to detention” program, provides access to legal resources (such as law textbooks, cases, and statutes) and representatives of advocacy groups, and removes individuals from the United States who have been ordered deported. Defendant Albence is sued in his official capacity.
25. Defendant Claire Trickler-McNulty is the Acting Director of ICE’s Office of Detention Policy and Planning. Trickler-McNulty oversees ICE’s efforts to improve the current immigration detention system, working extensively with both internal and external stakeholders. Defendant Trickler-McNulty is sued in her official capacity.
26. Defendant Tae Johnson is the Assistant Director for Custody Management, Enforcement and Removal Operations. In this capacity, Johnson is responsible for policy and oversight of the administrative custody of noncitizen detainees and oversees detention
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operations, including those at local prisons operating under intergovernmental service agreements and contract detention facilities. Defendant Johnson is sued in his official capacity.
27. Defendant Nathalie R. Asher is the Acting Assistant Director, Field Operations for Enforcement and Removal Operations. Asher oversees 24 field office directors nationwide. She has authority over the implementation of any remedy provided by the court and is in an immediate supervisory position to oversee compliance. Defendant Asher is sued in her official capacity.
28. Defendant Sean Gallagher is the Field Office Director for the ICE Atlanta Field Office. Gallagher has day-to-day responsibility for policies, procedures, and practices relating to the detention of immigrants in Georgia. He is responsible for ensuring that all individuals held in ICE custody in detention centers in Georgia are detained in accordance with the Constitution and all relevant laws. Defendant Gallagher is sued in his official capacity related to Irwin and Stewart.
29. Defendant David Rivera is the Field Office Director for the ICE New Orleans Field Office. Rivera has day-to-day responsibility for policies, procedures, and practices relating to the detention of immigrants in Louisiana. He is responsible for ensuring that all individuals held in ICE custody in detention centers in Louisiana are detained in accordance with the Constitution and all relevant laws. Defendant Rivera is sued in his official capacity related to LaSalle.
JURISDICTION AND VENUE 30. This Court has subject matter jurisdiction under 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 1346 (United States as defendant). Defendants have waived sovereign immunity for purposes of this suit. 5 U.S.C. §§ 702, 706.
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31. This Court has jurisdiction to enter declaratory and injunctive relief to recognize and remedy the underlying constitutional violations under 28 U.S.C. §§ 2201 and 2202 (declaratory relief), and 28 U.S.C. § 1651 (writs).
32. Personal jurisdiction and venue is proper pursuant to 28 U.S.C. § 1391(e) because one or more defendants reside in the District of Columbia, and Defendants DHS and ICE are headquartered in this District.
STATEMENT OF FACTS
33. The United States is the world’s leading incarcerator with over two million people in prisons and jails across the country. But not all of the United States’ incarceration stems from our criminal justice system; the United States also maintains the world’s largest immigration detention system.
34. Immigrants held in detention are not criminal detainees, but rather civil detainees who are awaiting adjudication of their immigration cases and are held pursuant to civil immigration laws.
Civil Immigrant Imprisonment in the United States
35. Civil detention in America has followed a trajectory similar to criminal detention. In the 1980s and 1990s—as America’s prison boom accelerated—mass civil detention of immigrants emerged.
36. In 1994, the U.S. government detained 6,000 noncitizens per day. By 2005, that number had grown to 20,000. Today, the government detains over 38,000 immigrants per day, or over 350,000 people each year.
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This graph tracks the average daily population of noncitizens held in immigration detention from FY 1994-2017.2
37. The origin of this civil detention expansion is linked to the United States’ enactment of two laws in 1996—the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigrant Reform and Immigrant Responsibility Act (IIRIRA). These laws expanded mandatory detention and also rendered any non-U.S. citizen, including legal permanent residents who committed certain offenses, vulnerable to detention and deportation.
2 Chad C. Haddal & Alison Siskin, Immigration-Related Detention: Current Legislative Issues, CONGRESSIONAL RESEARCH SERVICE, p. 12 (Jan. 27, 2010), available at: https://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1712&context=key_workplac e (Data for FY 1994-2010) (last accessed Apr. 3, 2018); Alison Siskin, Immigration-Related Detention: Current Legislative Issues, CONGRESSIONAL RESEARCH SERVICE, p. 13 (Jan. 1, 2012), available at: https://digitalcommons.ilr.cornell.edu /cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1887&context=ke y_workplace (Data for FY 2010-2012) (last accessed Apr. 3, 2018); U.S. DEP'T OF HOMELAND SEC., U.S. Immigration and Customs Enforcement - Budget Overview, (2018), available at: https://www.dhs.gov/sites/default/files/publications/CFO/17_0524_U.S._Immigration_and_Cust oms_Enforcement.pdf (Data for FYI 2013-2016) (last accessed Apr. 3, 2018); Laura Wamsley, As It Makes More Arrests, ICE Looks For More Detention Centers, NAT'L PUB. RADIO, Oct. 26, 2017, available at: https://www.npr.org/sections/thetwo-way/2017/10/26/560257834/as-itmakes-more-arrests-ice-looks-for-more-detention-centers (Data for FY 2017) (last accessed Apr. 3, 2018).
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38. In cases where detention is not legally required, ICE has discretion to determine whether noncitizens should be released on bond, parole, recognizance, or subject to other conditions.3 For the majority of people held in immigration prisons, there is no law requiring that they be imprisoned before their hearings.
39. ICE’s use of certain types of alternatives to detention has resulted in high rates of appearance at court proceedings—the purpose that initially drove the creation of the immigration detention system—and substantially reduced costs. Yet, civil detention of noncitizens has significantly expanded since 2009.
40. In 2009, Congress mandated that ICE maintain at least 33,400 detention beds in immigration prisons across the country. ICE has used this so-called “bed mandate” or “bed quota” to justify enforcement actions against individuals who could be detained to fill those beds. The number of beds included in the mandate has steadily increased since its inception.
41. Defendants detain immigrants who are in removal proceedings in over 200 immigration prisons across the country.
42. In January 2017, the Trump Administration took office armed with an aggressive immigration enforcement agenda, and civil arrests on immigration charges increased by 38 percent within its first four months. By October 2017, ICE was eyeing locations for five new detention centers that could house thousands more detainees, while the number of immigration arrests continued to increase.
43. Detained people may languish in ICE’s prisons for years before their removal proceedings are completed. Accessing and retaining an attorney substantially increases the odds
3 See 8 C.F.R. §§ 236.1(c), 1236.1(c). 13

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that an immigrant detainee will be released on bond or parole and therefore avoid such prolonged detention. Defendants’ Oversight of Private Prisons Holding Noncitizens
44. ICE’s Performance Based National Detention Standards (“PBNDS”) govern the prisons it uses to hold civil detainees, including service processing centers, contract detention facilities, and state or local government facilities used by ERO pursuant to intergovernmental service agreements to hold detainees for more than 72 hours.
45. According to ICE’s website, the PBNDS were “crafted to . . . increase access to legal services . . ., improve communication with detainees with no or limited English proficiency, . . . and increase . . . visitation.”
46. The PBNDS provide that meetings between detainees and attorneys or legal assistants are “confidential” and “shall not be subject to auditory supervision.” Private consultation rooms shall be available for such meetings. If all such rooms are in use and an attorney wishes to meet in a different room, “the request shall be accommodated to the extent practicable.”
47. With respect to conduct during legal visits, the PBNDS require the facility’s procedures to “provide for the exchange of documents between a detainee and the legal representative or assistant, even when contact visitation rooms are unavailable.” Any written material provided to detainees during such meetings “shall be inspected but not read.”
48. On regular business days, legal visits may take place during scheduled meal periods, in which case detainees “shall receive a tray or sack meal after the visit.”
49. Prior to the establishment of an attorney-client relationship, “a legal service provider’s representative need not complete a Form G-28 . . . .” In addition, visitors, including
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attorneys and legal representatives, “are not required to file a Form G-28 to participate in a consultation visit or provide consultation during an asylum officer interview or Immigration Judge’s review of a negative credible fear determination.”
50. During regular legal visitation hours, legal assistants are explicitly permitted to meet alone with detainees “[u]pon presentation of a letter of authorization from the legal representative under whose supervision he/she is working.”
51. The PBNDS, which are specifically incorporated into ICE’s management contracts for LaSalle, Irwin, and Stewart, are not enforced.
52. Even if the PBNDS were enforced at LaSalle, Irwin and Stewart, they are wholly insufficient to protect the important rights of noncitizens held in these prisons. The PBNDS further reflect that Defendants have no interest in maintaining the obstacles to accessing and communicating with attorneys detailed herein.
53. ICE’s routine interference with SPLC’s clients’ access to counsel—by detaining them in facilities with an insufficient number of attorney-visitation rooms, depriving them of confidential contact with their attorneys, and preventing the exchange of documents—violates even the minimal protections embodied in the PBNDS.
Complexity of Immigration Law
54. Immigration is complex and highly technical.4 Several federal courts have observed that the immigration laws rival the tax laws in their complexity.5
4 See Drax v. Reno, 338 F.3d 98, 99 (2d Cir. 2003) (referencing the “labyrinthine character of modern immigration law—a maze of hyper-technical statutes and regulations that engender waste, delay, and confusion for the Government and petitioners alike”); Baltazar-Alcazar v. INS, 386 F.3d 940, 947-48 (9th Cir. 2004) (“A petitioner must weave together a complex tapestry of evidence and then juxtapose and reconcile that picture with the voluminous, and not always consistent, administrative and court precedent in this changing area.”); United States v. AguirreTello, 324 F.3d 1181, 1187 (10th Cir. 2003) (“The district judge observed that immigration law
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55. The Supreme Court has consistently reaffirmed the “purely civil” nature of immigration proceedings.6
56. Civil immigration proceedings pit the government against the noncitizen in an adversarial process where each side is presumed to have the ability to represent its own interests. A DHS attorney—called the trial attorney—trained in substantive immigration law and immigration court procedures represents the government. This attorney acts as a prosecutor, and seeks to establish the noncitizen’s removability.
57. Respondents—who bear the burden of proof to establish that they are statutorily entitled to immigration relief and, in many cases, merit a favorable exercise of discretion—must admit or deny allegations, compile voluminous evidence, and articulate sophisticated legal arguments. The opportunity for federal court review of removal orders is relatively limited because immigration judges’ factual findings receive deference unless they are clearly erroneous.
58. Even for individuals who have representation in immigration court, adequate preparation time is crucial because clients likely will not provide their attorneys with all the information relevant to seeking relief at their first meeting. Some are unable or unwilling to share information immediately, even with their own attorneys, because they have suffered trauma in their home countries or on their journeys to the United States. Many are simply unaware of what
is technical and complex to the point that it is confusing to lawyers, much less to laymen.”), vacated, 324 F.3d 1181 (en banc); Lok v. INS, 548 F.2d 37, 38 (2d Cir. 1977) (“Immigration laws bear a “striking resemblance …[to] King Minos’s labyrinth in ancient Crete. The Tax Laws and the Immigration and Nationality Acts are examples we have cited of Congress’s ingenuity in passing statutes certain to accelerate the aging process of judges”). 5 See, e.g., Castro-O’Ryan v. INS, 847 F.2d 1307, 1312 (9th Cir. 1987) (“With only a small degree of hyperbole, the immigration laws have been termed ‘second only to the Internal Revenue Code in complexity.’”) (internal quotation and citation omitted). 6 See, e.g., INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984); see also Fong Yue Ting v. United States, 149 U.S. 698 (1893); Li Sing v. United States, 180 U.S. 486 (1901); Harisiades v. Shaughnessy, 342 U.S. 580 (1952).
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information is relevant and important to share. Others need time to build trust before sharing intimate personal details that are critical to prevailing in immigration court. Language barriers and the need for interpretation can lengthen this process.
59. For individuals who are unrepresented, the challenges are significantly more daunting. Although the government has the burden of proof, the respondent may concede the allegations against him at the initial master calendar hearing. If that happens, the immigration judge may find that the government has established the respondent’s removability, even in the absence of other evidence. Without meaningful representation, the respondent may forego the opportunity to contest the charges against him, identify potential avenues of relief, marshal the facts and law necessary to establish his eligibility, or follow the requisite procedures to apply.
60. Additional challenges for the unrepresented lurk at every turn. For instance, applications for relief are in English and must be completed in English. If a pro se individual writes an application in a language other than English, the applications are deemed abandoned and the respondents are ordered removed. As a further example, an applicant seeking asylum or withholding of removal based on membership in a particular social group must clearly indicate on the record before the Immigration Judge the exact delineation of any proposed particular social group. Precise delineation is absolutely critical as it becomes the basis for the court’s casespecific analysis to determine whether the proposed social group is immutable, “particular,” and socially distinct in the country from which the respondent fled. Such a hurdle is almost impossible for a detained individual, without counsel, to overcome and obtain appropriate documentation to substantiate.
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61. Acknowledging the complexity of the immigration laws, the Office of the Chief Immigration Judge “recommends that those [respondents] who can obtain qualified professional representation do so.”7
62. Despite the hyper-technical nature of immigration law and the inherent imbalance of power between the government and the respondent, the immigration removal process lacks most of the basic procedural safeguards enshrined in the U.S. criminal justice system. Noncitizens in civil immigration proceedings have no right to government-appointed counsel or a speedy trial. Immigration judges may apply harsh immigration laws retroactively, allow the government to prove its case using unlawfully obtained evidence, and exercise an inordinate amount of discretion. Moreover, immigration proceedings are not governed by the Federal Rules of Evidence.
63. The potentially life-altering consequences of removal proceedings, which “may result in the loss of all that makes life worth living,”8 makes the lack of more checks and balances particularly inexcusable.9
Release on Bond from ICE Prisons
64. Given the significant barriers to accessing counsel that detained immigrants face, release from prison can greatly enhance an individual’s chances of prevailing in immigration court. In addition to restoring physical liberty, release facilitates a person’s ability to retain and meaningfully engage with counsel. In fact, non-detained immigrants are five times more likely to 7 U.S. DEP’T OF JUSTICE, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, IMMIGRATION COURT PRACTICE MANUAL § 2.2(a), “Unrepresented Aliens.” 8 Bridges v. Wixon, 326 U.S. 135, 147 (1945) (internal quotations omitted). 9 For more information on the differences between the U.S. immigration system and the U.S. criminal justice system, see AM. IMMIGRATION COUNCIL, Two Systems of Justice: How the Immigration System Falls Short of American Ideals of Justice (March 2013), available at: https://www.americanimmigrationcouncil.org/sites/default/files/research/aic_twosystemsofjustic e.pdf (last accessed Apr. 3, 2018).
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obtain counsel than those who are detained.10 Further, non-detained immigrants have a substantially greater ability to access translation and interpretation services, to gather evidence for their cases, and to derive support from family and friends throughout the process.
65. With the exception of certain individuals subject to mandatory detention, the Immigration and Nationality Act permits the release of noncitizens on their own recognizance or on bond.11
66. Following the arrest of a noncitizen, DHS makes an initial custody determination regarding whether the individual should be released on bond, recognizance, or subject to other conditions.12 DHS may also determine that an individual is subject to mandatory detention and thus ineligible for release, or exercise its discretion to deny release.13
67. A detained individual is generally entitled to seek review of ICE’s initial custody determination before an immigration judge at a hearing commonly termed a “bond hearing.”14 Even in cases where ICE has concluded that an individual is ineligible for bond, the detained individual may request a bond hearing to challenge that finding.
68. At the bond hearing, the immigration judge determines whether the individual can be released on bond, recognizance, or subject to other conditions.15 The detained individual bears the burden of proving that he does not pose a danger to persons or property; is not likely to
10 Ingrid V. Eagly & Steven Shafer, A National Study of Access to Counsel in Immigration Court, 164 U. Penn. L. Rev. 1, 32 (2015). 11 8 U.S.C. § 1226(a)(2)(A). 12 See 8 C.F.R. §§ 236.1(c), 1236.1(c). 13 See id. 14 See 8 C.F.R. §§ 1003.19(a), (h)(2)(i). 15 See 8 C.F.R. §§ 1236.1(d)(1), 1003.19.
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abscond before his hearing; and does not threaten national security.16 Detained noncitizens are approximately seven times more likely to be released on bond when represented.17
69. The immigration judge has complete discretion to grant or deny release.18 A request to reconsider a decision regarding custody status or bond may be allowed only if “circumstances have changed materially since the prior bond determination.”19
70. Both the detained individual and ICE can appeal the immigration judge’s bond decision to the Board of Immigration Appeals within 30 days.20 SIFI & Removal Defense
71. In 2017, Plaintiff launched SIFI to provide desperately needed legal representation to indigent immigrants detained in remote locations in the Southeast, where attorneys are scarce and immigration attorneys even more so. SPLC seeks to fulfill this mission by providing direct representation to detained immigrants in bond proceedings, training pro bono attorneys to provide effective representation to indigent detainees in their bond proceedings, and facilitating representation in merits hearings for people who would otherwise have no legal recourse.
72. SIFI launched at Stewart in April 2017, at Irwin in August 2017, and at LaSalle in September 2017. SIFI is now on the referral list of each prison’s Legal Orientation Program, which identifies potential pro bono legal resources for detainees.
16 8 C.F.R. § 1236.1(c)(8); Matter of Guerra, 24 I. & N. Dec. 37 (BIA 2006). 17 See Ingrid V. Eagly & Steven Shafer, A National Study of Access to Counsel in Immigration Court, 164 U. Penn. L. Rev. 1, 70 (2015). 18 8 U.S.C. § 1226(e). 19 8 C.F.R. § 1003.19(e). 20 8 CFR §§ 236.1(d)(3)(i), 1003.19(f), 1003.38.
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73. At the time of filing, SPLC and volunteers had communicated with 664 detainees at these three locations. The SIFI project currently represents 79 people at the three prisons at issue in this litigation.
74. SPLC employs on-the-ground SIFI staff, including immigration attorneys and advocates whose offices are near the three prisons. In addition, SIFI relies on volunteer pro bono attorneys from across the United States who travel to the prisons for week-long rotations in order to meet with potential clients, conduct interviews, gather evidence, draft legal documents, and assist clients in obtaining release on bond or parole. Since SIFI’s inception, volunteer attorneys have traveled from Seattle, New York, Chicago, San Francisco, and Washington, DC, among other cities.
75. SPLC’s advocacy, however, is not limited to SIFI’s on-the-ground activities at the detention centers and local immigration courts. In addition, SIFI recruits pro bono attorneys from across the country to represent detainees in the merits phases of their cases, and SIFI staff provide supervision and technical support for all of these cases.
76. Through SIFI, SPLC endeavors to provide effective and ethical removal defense to all its detained clients. To do so, SIFI staff and volunteers—like all immigration practitioners—require the ability to meaningfully, reliably, and confidentially communicate with their detained clients.
77. In this context, effective communication often necessitates access to interpretation services in order for attorney and client to understand one another. An English-speaking attorney who cannot speak Portuguese and a Portuguese speaking client who cannot speak English would be hard-pressed to exchange the simplest of greetings, much less discuss the complex reasons why the client was forced to flee Brazil.
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78. Interpreters are therefore crucial not only for communicating with a client but also for gathering the information that is necessary to defend against removal.
79. The importance of interpretation services for detainees is further reflected in recent revisions to the PBNDS, which explicitly state that prisons are expected to ensure that detainees who are limited English proficient (“LEP”) have access to bilingual staff and/or professional interpretation services during phone calls and visits, including those involving legal consultation and counsel.
80. Effective communication in this context also requires conditions conducive to establishing a client’s trust, which may be essential to obtain critical evidence. Many detained immigrants have fled torture or other types of persecution, and they continue to suffer acute trauma while in detention; detention exacerbates existing trauma and may create new trauma. Although recounting their painful experiences is crucial for building a defense to removal, detained clients are routinely traumatized again in the process of recounting their experiences. Confidential contact visits between attorney and client provide the best mechanism for putting the client sufficiently at ease to share her experiences and assist in preparing a defense to removal.
81. Reliable communication between attorney and client is also a critical component of removal defense. When attorneys are subject to long waits to see detained clients, their representation of those clients and others are detrimentally impacted.
82. Long amounts of time spent in a waiting room is time that cannot be spent conducting legal research, gathering evidence, drafting legal documents, or meeting with other clients. Visits may be cut short due to time constraints or, worse, attorneys may be deterred from visiting detained clients at all.
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83. Attorneys representing detained clients from afar likewise require the ability to consistently communicate with their clients in order to discuss the details of their cases. This means being able to schedule client calls without unreasonable delay and having enough time to discuss necessary matters. These communications also may require the services of third-party interpreters in order for attorneys to effectively communicate with their clients.
84. Detained clients must also be able to communicate confidentially with their attorneys. Although confidentiality is an important feature in all attorney-client relationships, the need for confidentiality is especially acute for detained immigrants in removal proceedings given the sensitivity of the issues that must be discussed.
85. Many detainees have been targeted for persecution in the countries from which they fled, making them vulnerable to harm not only in their home countries but also at the hands of fellow detainees or guards. Without the assurance of confidentiality, detainees may be chilled from speaking about certain issues to their attorneys, which may detrimentally impact their cases. For example, a gay Iranian detainee, who has lived in the United States for decades, may be scared to discuss how his sexuality will make him a target for violence if he knows that a guard or a fellow detainee can overhear his every word.
86. Confidential attorney-visitation rooms, as well as unmonitored telephone and videoconference lines, are crucial to ensure that detainees can speak openly and honestly with their attorneys and that attorneys can obtain the information necessary to effectively advise and advocate for their clients.
87. In spite of the crucial need for effective, reliable, and confidential communication between attorneys and clients, Defendants have erected vast and numerous barriers that frustrate
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SPLC’s ability to zealously represent its clients at LaSalle, Irwin, and Stewart, and that preclude its clients from defending their own constitutional rights. The Detention Facilities and the Barriers to Access to Counsel
88. Although the Sixth Amendment does not guarantee a lawyer to immigrants in removal proceedings, the Due Process Clause of the Fifth Amendment “indisputably affords an [noncitizen] the right to counsel of his or her own choice at his or her own expense.”21 This right to counsel is “fundamental,” and courts consistently “have warned [the government] not to treat it casually.”22 The right “must be respected in substance as well as in name.”23
89. “Th[is] right to counsel is a particularly important procedural safeguard because of the grave consequences of removal . . . [which] ‘visits a great hardship on the individual and deprives him of the right to stay and work in this land of freedom.’”24 Likewise, the right to counsel is a crucial procedural safeguard for detained noncitizens seeking release on bond or parole given the dire consequences of being imprisoned for a substantial and indeterminate amount of time.25 While behind bars in immigration prisons, people are separated from their families, unable to maintain employment, and subjected to harsh conditions, including inadequate medical care and lack of recreation opportunities. For these reasons, procedural safeguards—including access to counsel—are crucial to ensuring that people are not unjustifiably imprisoned pending resolution of their removal cases.26
21 Leslie v. Att’y Gen. of United States, 611 F.3d 171, 181 (3d Cir. 2010). 22 Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 554 (9th Cir. 1990). 23 Baires v. INS, 856 F.2d 89, 91 n.2 (9th Cir. 1988) (citation omitted). 24 Leslie, 611 F.3d at 181 (quoting Bridges v. Wixon, 326 U.S. 135, 154 (1945)). 25 See, e.g., Hernandez v. Sessions, 872 F.3d 976, 994-95 (9th Cir. 2017). 26 See id. at 993-95.
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90. In spite of these constitutional commands, Defendants funnel tens of thousands of noncitizens into isolated prisons where they encounter substantial and often insurmountable barriers to accessing and communicating with counsel. Many of these prisons are located in rural and remote places hours away from major cities, immigration attorneys, and professional interpreters.
91. Legal representation rates are staggeringly low in large civil immigration prisons in the Southeast. Only six out of every 100 people detained at Stewart have legal representation. The same is true at LaSalle. At Irwin, around 20 out of every 100 people have counsel.
92. In the rare instances where detained people are able to obtain counsel, it is typical that legal representatives are required to travel two, three, or even four hours to these prisons, only to confront additional barriers to accessing and communicating with their clients once they arrive.
93. Despite differences in the physical infrastructure at LaSalle, Irwin, and Stewart, similar barriers to access to meaningful representation exist at all three prisons. None of the prisons has an adequate number of attorney-visitation rooms to accommodate their populations:
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LaSalle has one room for up to around 1,200 people. Stewart has three rooms for approximately 1,900 people. Irwin has one room for up to approximately 1,200 people.
94. Attorneys at each prison must regularly wait in excess of an hour—and, in many cases, as long as three or four hours—to meet with their clients. As a result, attorneys often must cut meetings short or see only one client instead of several. Some attorneys do not take cases at these detention centers because they cannot spend the wait time in addition to the lengthy travel time and still provide ethical representation.
95. Frequent “counts” and staff shift changes exacerbate these delays and sometimes prevent attorneys from visiting clients altogether.
96. Once inside the attorney-visitation room, legal representatives and their clients face additional barriers to communication. All three prisons enforce policies that permit only non-contact visits, which hamper attorneys’ ability to review documents with clients and also to create the rapport and trust that is crucial to gathering all the information necessary to defend against removal. Thick partitions separate lawyers from their clients.
97. While a single closed-circuit telephone is provided in each attorney-visitation room, this means of communication impedes meaningful communication between attorney and client. Because only one phone is provided on the “attorney side” of the room, it effectively forecloses bringing paralegal or other support staff to assist with these meetings. For example, in those rare instances where an interpreter can be located and brought into the facilities, the interpreter must listen to the attorney with the ear that is not against the phone; interpret into the phone; listen to the client’s response; and then interpret back to the attorney. The attorney and client cannot hear one another’s voices. The tone and dynamic of the conversation is lost, thereby creating yet another barrier to effective communication between attorney and client.
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98. Making matters worse, the telephone lines themselves are compromised by significant static. As a result, the attorney and client cannot clearly hear each other over the closed-circuit phone, forcing them not only to repeat questions and answers but also to yell and thereby compromise confidentiality. Guards are routinely stationed outside the rooms as a matter of course or for frequent shift changes. The noise made by guards further impedes attorneys’ ability to communicate with clients, and guards are able to hear what attorneys say inside the visitation rooms. For example, following an attorney interview with a prospective client at Stewart, the attorney overheard a guard remark to another guard that the attorney had not even been discussing removal issues with the client. Throughout the client visit, the client had remarked to the attorney that the guard had been frequently lurking behind the attorney at the visitation room door.
99. In addition, the phones in the attorney-visitation rooms have short cords and are located in a way that virtually prevents attorneys and clients from facing one another directly, further frustrating their ability to effectively communicate.
100. Each of the three prisons enforces a “no-electronics” policy which prohibits attorneys and staff from bringing in cell phones or laptops. The impact of these policies is felt in a number of respects. First, because there is no outside phone line to conference in an interpreter, the policy effectively denies an attorney access to remote interpretation services. The use of interpreters is critically necessary for attorneys and clients to communicate effectively, especially at these remote locations where there are no nearby interpreters who can appear in person. SPLC’s staff and volunteers would have the ability to contact such interpretation services if Defendants permitted attorneys and their staff to bring in electronic devices such as cell phones or computers. Under the circumstances, however, attorneys are left to rely on gestures,
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guesstimates, and whatever else can be communicated through broken or no English in order to gather crucial evidence to avert deportation. Many immigration attorneys refuse to take cases at these immigration prisons because they do not feel they can adequately and ethically represent clients with whom they cannot communicate.
101. Other problems are created by the “no-electronics” policies. The prohibition not only prevents access to interpreters who could be contacted using a cell phone or laptop, but also limits attorneys’ ability to efficiently represent their clients. If SPLC’s attorneys and staff could bring computers or tablets into the visitation room, they could draft client declarations or other legal papers during their meetings with clients. Clients’ stories could be memorialized, and errors could be corrected, in real time. This is particularly important given that long periods spent in the waiting room restrict the amount of time attorneys have to work on client cases. Attorneys who represent clients at other immigration prisons where laptops are permitted report that they are able to more effectively and efficiently represent their clients as a result of their access to computers. Some also report either access to landlines or the ability to use cell phones to contact interpreter services who would otherwise be inaccessible for in-person meetings.
102. Importantly, numerous immigration detention centers across the country permit attorneys to bring electronic devices to client meetings, thereby facilitating efficient representation of the client as well as contact with interpreters. Examples include those prisons in Aurora, Colorado; Dilley, Texas; Florence, Arizona; Elizabeth, New Jersey; and Tacoma, Washington.
103. In addition, the “no electronics” policies are not uniformly administered: ICE and private prison staff at some of the detention centers are allowed to have cell phones. In addition,
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criminal defense attorneys are allowed to bring in laptops and use them during client meetings in at least one of the prisons.
104. Many obstacles to accessing and communicating with counsel at LaSalle, Irwin, and Stewart stem from Defendants’ practice of contracting with and failing to adequately supervise private prison companies, which have a financial incentive to understaff detention centers and to refuse to improve conditions that impede access. SPLC staff and volunteers are routinely informed that delays stem from insufficient staffing. Likewise, many of the access barriers described herein stem from poor or inadequate conditions in the facilities operated by these private companies. Money spent on additional staffing and on improving conditions is money that could be distributed to shareholders. At worst, Defendants permit their agents to focus on profit margins at the expense of the constitutional rights of people in their custody; at best, they blithely ignore the ongoing constitutional violations.
105. In addition to these common barriers, unique hurdles at each facility further impede detainees’ meaningful access to counsel and SPLC’s ability to express and fulfill its mission.
A. LaSalle Detention Center 106. LaSalle is located in Jena, Louisiana, a city of 3,435 residents, including the noncitizens detained there. LaSalle is approximately 220 miles—a nearly four-hour drive—from New Orleans. There were no immigration attorney offices in the vicinity of Jena, Louisiana, until SPLC launched SIFI in September 2017. 107. Immigrant detention is the latest use of the facility, which originally opened in 1998 as the Jena Juvenile Corrections Facility. Advocacy groups reported significant civil and
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human rights abuses there; the United States Department of Justice announced an investigation; and the prison was closed three years later after being deemed unfit for use.
108. In 2005, the prison was repurposed to hold prisoners evacuated from New Orleans in the aftermath of Hurricane Katrina. The prison was closed down again after multiple reports of inhumane treatment at the facility.
109. In 2007, the LaSalle Detention Facility opened its doors as an immigration prison. 110. The transition to immigration imprisonment did not save the facility from its notorious reputation—LaSalle has had the highest number of deaths of any immigration prison in the United States over the last two years.27 111. Defendants are ultimately responsible for ensuring that the conditions of the facility comply with constitutional and other legal requirements, including ensuring that detainees have meaningful access to legal representation. Defendants have utterly failed in that regard. 112. LaSalle has capacity to hold 1,200 people. For context, that is one-third of the town’s population. 113. LaSalle has only one room for “confidential” attorney-client visits. 114. The failure to equip LaSalle with an adequate number of rooms for visitation is telling—Defendants never planned for people imprisoned in isolated LaSalle to have the ability to consult with lawyers. 115. Despite Defendants’ assumption that few lawyers would travel several hours through rural Louisiana to represent people sent to LaSalle, the attorney visitation room is
27 Oliver Laughland, Inside Trump’s Secretive Immigration Court: Far From Scrutiny and Legal Aid,” THE GUARDIAN, (June 7, 2017), available at: https://www.theguardian.com/usnews/2017/jun/07/donald-trump-immigration-court-deportation-lasalle (last accessed Apr. 3, 2018).
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frequently full. When the only attorney-visitation room is occupied, lawyers sometimes wait in the small lobby for hours—as no suitable confidential room is made available as an alternative despite ample office space near the attorney-visitation room.
116. The one attorney-visitation room is, in fact, not confidential. It is directly adjacent to a family-visitation room with several non-contact, visitation cubicles. The attorney-visitation room is not soundproof. Confidential conversations with clients about sexual abuse, political persecution, and other sensitive topics can be overheard by guards and by people in the familyvisitation room on the other side of the thin wall.
117. LaSalle conducts six counts per day, at least four of which are during attorney visitation. A visit cannot start during count, each of which lasts about 45 minutes but can last longer. A “count” is a procedure whereby prison staff members determine the whereabouts of each person at the facility. In addition to counts, shift changes stop attorney visitation. For instance, during the 6 p.m. shift change, visitation is delayed consistently for close to 45 minutes.
118. While lawyers are sometimes permitted to use the family-visitation room if available, that room is even less suitable for confidential attorney-client communication. The room is comprised of several individual, interconnected cubicles. A guard is stationed in the room, within ear shot, and detainees awaiting their visits are seated approximately two feet behind the cubicles. Even attempts to speak in lowered voices are insufficient to prevent others from hearing a conversation.
119. There is no slot or other opening in the plastic divider in the family-visitation room to permit the exchange of confidential, legal documents. Guards have instructed attorneys that no documents can be exchanged during these meetings. On occasion the guards will break this rule, and offer to take confidential papers from one person and deliver them to the person on
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the other side of the divide. Guards frequently search the documents if they agree to bend the rules by delivering papers. In most instances, however, a meeting in the family-visitation room means no legal documents can be exchanged.
120. The insufficient number of adequate attorney-visitation rooms at LaSalle has routinely caused SPLC’s staff and volunteers to endure substantial waits in order to see clients, thereby diminishing SPLC’s resources and undermining its mission to provide quality representation to its clients. These wait times are frequently in excess of 90 minutes and can be as long as five hours.
121. Delays are compounded by specific, additional policies and practices maintained by Defendants at LaSalle. For example, if SPLC staff and volunteers seek to visit a client of one gender in the attorney-visitation room, they may not do so if the adjacent family-visitation room is being occupied by a detainee of the opposite gender.
122. Attorneys cannot see a male client between 11 a.m. and 1 p.m. or a female client between 9 a.m. and 11 a.m. Attorneys are often unable to visit female clients during femalevisitation hours because there is an attorney in the visitation room meeting with a male client. For attorneys trying to visit a specific client, available visiting hours are frequently quite limited because of a combination of the gender rules, count, and shift changes.
123. The delays are often longer for clients who are being kept in segregation. The clients in segregation are often severely mentally ill. LaSalle will not bring a client being held in segregation to a visitation room if anyone else is in that room or in the adjacent family-visitation room. LaSalle only permits certain staff to transport clients held in segregation. This often causes even longer delays. An attorney could spend all day in the waiting room before being able to see a client who is held in segregation
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124. The long delays at LaSalle frequently require SPLC’s staff and SIFI volunteers to cut meetings short. On occasion, SPLC’s staff and volunteers also forego meetings with clients altogether out of concern that they will be forced to endure long delays that prevent them from completing other necessary legal work.
125. In isolated Jena, access to remote interpretation is crucial. Many interpreters flatly refuse to travel to LaSalle even if compensated. Due to the lack of access to interpreters, SPLC has been unable to provide representation at LaSalle to detainees who speak certain languages because there was no way to communicate with them.
126. SPLC’s staff and volunteers would have the ability to contact remote interpretation services if the visitation room had a telephone or video teleconferencing, or if Defendants permitted attorneys and their staff to bring in cell phones or computers. But as a result of Defendants’ restrictive policies, LEP detainees at LaSalle are virtually barred from reliable access to interpretation during in-person meetings with their attorneys. Defendants do not allow for VTC communications between lawyers and clients at LaSalle, despite the use of VTC in its courtrooms and for credible fear interviews and various embassy communications.
127. VTC does not substitute for, but can complement, in-person visitation. If attorneys could use VTC at LaSalle, then SPLC—as well as other immigration practitioners— could communicate with clients through a remote interpretation service.
128. Scheduling a telephone call with a LaSalle detainee is extremely difficult and involves significant delay. Attorneys frequently call LaSalle to schedule a phone call, but their calls often go unanswered. Although LaSalle has an answering machine, messages are frequently not returned.
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129. Reports vary regarding what happens after an attorney calls, but attorneys frequently receive no response whatsoever.
130. On information and belief, LaSalle asserts that its policy is as follows: when a detainee requests a legal call, the request goes to the case manager, who has 72 hours to contact the attorney and schedule the call. Likewise, when attorneys request a legal call, the request is sent to “classification” and then to the detainee’s case manager, who has 72 hours to schedule the call. Thus—even if LaSalle’s policy were actually implemented in practice—it could take as long as three days to schedule a call, making phone calls an unreliable method to reach clients regarding time-sensitive matters.
131. In practice, however, attorneys are scheduled for calls approximately seven days from the date of a request. An attorney cannot schedule more than one call with a client until the attorney and client have completed the first scheduled phone call. An attorney is required to repeat the scheduling process after the call takes place, often requiring another week before the next call.
132. Such delay can have a detrimental impact on a detainee’s case if the call was meant to prepare for an impending hearing, finalize a court filing, or address another timesensitive matter.
133. People who do not speak English or Spanish, and people who are severely mentally ill, often cannot understand or complete the paperwork that LaSalle requires in order to schedule a call with an attorney. For these detainees, obtaining a phone call on their own initiative is virtually impossible.
134. LaSalle limits attorney phone calls to only 20 minutes per client per day. This is a wholly insufficient amount of time to complete any substantive task. If an attorney needs to draft
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a client declaration, she cannot ask questions in 20 minutes that will elicit the necessary information. She also cannot advise a client regarding case strategy, explore ways to obtain evidence, obtain sufficient facts to credibly assess defenses to removal, or prepare a client for a hearing. By limiting attorney-client phone meetings to 20 minutes, LaSalle effectively prevents meaningful communication.
135. Because of the difficulty involved in scheduling an attorney call, detainees in need of urgent advice sometimes resort to recorded phone lines, which are more easily available, despite the lack of confidentiality. These calls are also limited to 20 minutes.
136. Not only is there a general dearth of interpreters within driving distance of Jena, Louisiana, there are no regularly available interpreters who are conversant in languages other than English and Spanish. In order to represent LEP clients who communicate in these languages, attorneys rely on language lines. Without an in-facility mechanism to access a language line, the sole avenue to communicate with these clients is by phone.
137. Yet, time spent connecting to the language line is deducted from the 20-minute time period allotted for confidential attorney-client conversations. This puts LEP clients detained at LaSalle at a significant disadvantage if they need interpreters to communicate with their counsel. Based on the experience of SPLC employees and volunteers, the use of interpreters can more than double the length of a conversation—which further restricts their ability to consult with counsel.
138. These barriers to telephonic communication have had especially dire consequences for detainees who are represented by SIFI volunteers from outside Louisiana, for whom reliable telephonic communication is indispensable to provide effective representation.
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139. For instance, SIFI volunteers from New York and Washington DC sought to schedule a phone call with their client at LaSalle to obtain information needed for his merits hearing. The client’s case is assigned to an expedited docket, meaning that frequent substantive communication is crucial in order to prepare for the impending hearing. However, despite repeated attempts by the SIFI volunteers to call LaSalle to schedule a client call, no one picked up the phone. Days later, when a LaSalle staff member finally answered, the call could not be scheduled for several more days. In total, it took more than a week for the call to occur. Making matters worse, LaSalle staff limited the call to only 20 minutes, which was inadequate to gather the necessary information. When the attorneys sought to schedule a follow-up call, the same series of events occurred: days passed before a LaSalle staff member answered the telephone; even more days passed before the call could take place; and when the call finally occurred more than a week later, it was again limited to just 20 minutes—despite the rapidly approaching merits hearing.
140. Because attorneys cannot schedule multiple phone calls with the same client on a given day and cannot spend more than 20 minutes on a given call, they must make in-person visits and wait hours to get into the single visitation room.
141. Defendants and their agents are targeting SPLC and its volunteers based on hostility to SPLC’s mission. The longer SIFI is operational at LaSalle, the more LaSalle staff seek to interfere with SPLC’s efforts to meet with clients and prospective clients. For example, on March 30, 2018, Defendants prevented SIFI staff and volunteers from meeting with clients and prospective clients at LaSalle on the basis that they had not entered appearances in the relevant cases. This requirement had never been mentioned in the months since SIFI began operating at LaSalle or during the hundreds of previous visits. Enforcing such a policy would
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prevent lawyers and clients from engaging in the communications needed to determine whether to enter into a representation. That is why Defendants’ written policies actually provide that legal visitation cannot be denied on the basis that the lawyer has not entered a notice of appearance in the case. That same day SPLC clients had visits cancelled in the facility for people SIFI represents even though SIFI did, in fact have G-28 forms on file.
142. Defendants’ written policy is that legal assistants, with a letter of authorization from their supervising attorney, may visit detainees. That same day, legal volunteers were prevented from using the open attorney-client room because they were not lawyers and “ICE had not approved” them for legal visits. The prison staff terminated the meeting midway through and did not extend the same rules for legal visitation.
143. Upon information and belief, Defendants have exclusively targeted SPLC in enforcing this purported policy in hostility toward the presence and mission of the organization and its volunteers.
B. Irwin County Detention Center 144. Irwin is located in Ocilla, Georgia—a city of 3,604 residents that is 185 miles from Atlanta. The drive from Atlanta takes approximately three hours each way. Today, the immigration prison is the second largest employer in Irwin County. 145. Irwin typically detains around 700 noncitizens in a correctional facility with the capacity to detain 1,200 people. The detainees at Irwin are transported there despite its remote and inconvenient location far from ICE’s administrative offices, the vast majority of immigration lawyers, and the immigration courts in Atlanta that adjudicate the cases of many Irwin detainees. In addition to people in removal proceedings, Irwin also detains a number of federal pre-trial
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detainees under the supervision of the U.S. Marshals Service and a minimal number of county pre-trial detainees.
146. While Defendants are ultimately responsible for ensuring that conditions at the prison comply with constitutional and other legal requirements, Defendants are derelict in that duty because they have failed to remediate the substantial barriers that impede Irwin detainees’ access to counsel.
147. Irwin presently houses approximately 700 immigrant detainees but the prison has only one attorney visitation room for these immigrant detainees to access counsel. The one visitation room is frequently occupied when SIFI staff and volunteers arrive at the detention center to visit clients. That one room is not exclusively used for attorney-client visitations. Weddings, clergy visits and social worker meetings also take place there. Consequently, SIFI staff and volunteers are often subjected to delays of one hour or much longer—sometimes up to three or four hours.
148. These frequent, lengthy delays are compounded by Irwin’s policy of prohibiting movement within the facility during count, while failing to efficiently transport clients prior to count. In other words, even when the attorney-visitation room is available prior to count, Irwin staff may fail to bring a client to the attorney-visitation room before count begins, meaning that an attorney must wait until count is over—sometimes up to an hour or more—before the visit can commence. And Irwin conducts seven counts per day, all of which are during times when attorneys are permitted to visit.
149. Attorneys frequently occupy the room for many hours to see multiple clients, effectively precluding visitation for all detainees with other counsel.
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150. Making matters worse, once SIFI staff and volunteers are escorted into the visitation room, they frequently must wait long periods of time—sometimes close to an hour— for the detainee to be brought to them. Lawyers seeing more than one client frequently wait protracted periods for each client to be escorted to and from the visitation room.
151. Conditions inside the single attorney-visitation room further frustrate detainees’ ability to communicate with their attorneys. The room is not soundproof. Confidential conversations with clients about sensitive topics, like sexual abuse and political persecution, can be clearly overheard by employees of the detention center who often stand near or walk by the room, and by people in the nearby family visitation rooms.
152. The door on the attorney visitation room is controlled by staff in the prison’s operational control room. Once it is closed, the door locks; people in the room have no ability to get out, except by attracting the attention of the guard who operates the door from the control room. There is no mechanism—like a buzzer or speakerphone—in the visitation room to facilitate communication with the control room. Thus, attorneys are relegated to waving at the guard through the control room’s tinted window and knocking on the window of the visitation room. On more than one occasion, attorneys have been trapped in the room for long periods of time. Meanwhile, other lawyers sit in the waiting room, and their clients are deprived of valuable time with their counsel.
153. On certain days, Irwin permits SIFI attorneys and volunteers to conduct noncontact visits with clients in the family visitation room. But it is not a confidential meeting space. While attorneys meet with clients in that room, Irwin staff use the room as a throughway, and staff often loiter in an adjacent office, with the door open.
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154. As with LaSalle, the lack of contact during visits substantially hinders the ability to establish rapport and trust between lawyer and client. Public defenders and other criminal defense attorneys representing pre-trial detainees at Irwin are permitted to conduct contact visits with their clients. As a result, they can freely exchange documents with one another and more easily foster effective communication and trust.
155. Whereas SIFI attorneys and volunteers are largely relegated to meet with clients in the single, non-contact attorney-visitation room, upon information and belief, public defenders are rarely required to use that room. Irwin allows public defenders to conduct contact visits with their clients in rooms located in an area of the prison that SIFI staff and volunteers are not permitted to enter.
156. Irwin has two VTC computers that facilitate meetings between remote attorneys and their clients. VTC meetings take place from 9 a.m. to 4 p.m. with an hour-long break for lunch. While VTC has the potential to facilitate greater access to attorneys, the opportunities for client contact remain wholly insufficient.
157. VTC meetings are strictly limited to one hour, which is often an insufficient amount of time to render legal advice.
158. Mechanical issues regularly undermine basic communications during the onehour VTC allotment.
159. SPLC’s meetings with clients on VTC have frequently been interrupted, cut short, delayed by connection issues, and/or subject to other interference. In such instances, Irwin guards strictly adhere to the one-hour limitation, thereby forcing SPLC staff and volunteers to rush through their conversations with clients on VTC. On one occasion, a VTC visit was cut
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short because the guard who was facilitating the visit informed the attorney that she had to go to lunch.
160. Irwin fails to adequately coordinate the VTC calendar—leading to missed appointments with clients and preventing attorneys from relying on VTC as a reasonable alternative to in-person visits. Irwin guards regularly forget to initiate the VTC visit, initiate VTC visits at unscheduled times, and bring the wrong person to the VTC room.
161. VTC visitation at Irwin occurs in the law library. On information and belief, detainees are unable to use the law library between 9 a.m. and 4 p.m. when calls occur.
162. Guards consistently tell SPLC’s staff and volunteers that they cannot take all the available VTC slots—even when the slots are not being used. By preventing SIFI from scheduling as many meetings as possible, this arbitrary restriction creates a significant hardship to SPLC and its many volunteer attorneys.
163. There are indications that Irwin gives preferential treatment to other visitors over SPLC personnel and volunteers. Despite a first-come, first-served visitation policy, social workers have received priority over SPLC staff and volunteers. On one occasion, Irwin staff interrupted an SPLC client visit to insist that the attorney room be vacated for a social worker visit. On another occasion, although a volunteer attorney had been waiting an hour to meet with a SIFI client, a social worker arrived and was permitted to meet with his clients first.
164. Furthermore, upon information and belief, the attorneys for pre-trial, criminal detainees are allowed to bring their laptops to client meetings. This is at odds with the treatment of SPLC staff and volunteers, who have been consistently prohibited from bringing electronics into any part of the prison, including the waiting room.
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165. Defendants restrict attorney access to Irwin in other problematic ways. For instance, immigration court proceedings for Irwin detainees occur in Atlanta. The detainees participate in the proceedings via VTC from a room inside Irwin near the attorney-visitation room. Because Defendants restrict attorneys’ access to that VTC room, lawyers representing Irwin detainees are forced to drive three hours to Atlanta and enter their appearance there rather than appearing alongside their clients in the detention center.
166. Immigration judges say they have no authority over the prisons where Defendants choose to house civil detainees.
167. While Defendants allow attorney access to the VTC rooms in some prisons during immigration hearings, this access is uniformly denied at Irwin.
168. The three-hour drive means that lawyers cannot meet with their clients immediately before a morning hearing. All Atlanta bond hearings take place in the morning.
169. Because attorneys are not in the same location as their clients, they cannot easily engage in confidential communications—for example, to request clarification of a factual point or advise the client on how to respond to a question from the immigration judge. To speak privately with the client, the lawyer must ask the immigration judge and trial attorney to leave the courtroom.
Stewart County Detention Center 170. Stewart is located in Lumpkin, Georgia. Lumpkin is a small town of approximately 1,091 residents and is approximately 140 miles from Atlanta—a drive of two and a half hours. Stewart County itself is one of Georgia’s least populous counties, with fewer than 6,000 residents, of whom approximately 25 percent are people held at the detention center.
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Lumpkin has very few businesses, no grocery store and no library. The detention center is the town’s primary employer.
171. Stewart County constructed the facility in 2004. In 2006, Defendant ICE entered into a contractual arrangement whereby the facility would serve as an immigration detention center.
172. Defendants are ultimately responsible for ensuring that the conditions in the facility comply with constitutional and other legal requirements, including ensuring that detainees have meaningful access to legal representation. Defendants have utterly failed in that regard. Since SIFI launched at Stewart in April 2017, the conditions, policies, and practices at the facility have routinely prevented detainees from accessing their attorneys and have impeded attorneys’ ability to meaningfully represent detained immigrants at Stewart.
173. Although Stewart typically detains between 1,800 and 1,900 immigrants, the facility has only three attorney-visitation rooms.
174. The small number of attorney-visitation rooms relative to the number of detainees, along with inadequate staffing, means that those visitation rooms are sometimes unavailable, such that SPLC attorneys and volunteers often must wait for extended periods before meeting with their clients.
175. Delays are further compounded during detainee counts and shift changes when there can be no movement in the facility, including taking attorneys to visit clients. Stewart conducts six counts per day, at least two of which are scheduled during attorney visitation hours. Each count and shift change can take an hour or longer. On occasion, shift change and count occur back-to-back, thereby compounding delays to see clients. As a result, counts and shift changes substantially narrow the actual attorney visitation hours at each facility. Although
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regular visitation hours are supposed to last until 5:00 p.m., SIFI staff and volunteers have arrived to conduct client visits prior to 5:00 p.m. only to be told that count was occurring; in some instances, count lasted until 5:00 p.m., and SIFI staff and volunteers were prevented from meeting with their clients. Even in instances when count was not occurring, SIFI staff and volunteers have arrived at Stewart well before 5:00 pm to meet with clients but were forced to wait until 5:00 p.m., when visitation hours end.
176. SIFI staff and volunteers are thus frequently subjected to lengthy delays before they can see clients. Wait times in excess of one or two hours are frequent, and some staff and volunteers have been forced to wait as long as three hours. Attorneys cannot simply leave the facility and come back later because they risk losing their place in line.
177. Between May 10, 2017 and December 22, 2017, the average wait time for SPLC’s attorneys, staff, volunteers, and interpreters at the facility was almost an hour. Approximately 20 visits required waits in excess of two hours—many in excess of three and four hours. Moreover, attorneys are frequently subjected to further delay once inside the attorney-visitation room while waiting for their clients to be transported.
178. SPLC volunteers and staff need to visit with multiple clients every day, making these wait times a substantial drain on SPLC’s resources and undermining its ability to effectively advocate for its clients. In fact, attorneys spent more than 210 hours sitting in the waiting room at Stewart over the seven-month period between May and December 2017. That is more than a month of 40-hour work weeks.
179. Due to the “no-electronics” policy enforced at Stewart, SIFI staff and volunteers must spend additional time trying to make up for the hours lost while waiting to meet with clients.
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180. Delays at Stewart routinely prevent SIFI staff and volunteers from spending sufficient time with clients, either because visitation hours may end or the attorney must cut the meeting short to see another client.
181. In some cases, the lengthy delays have prevented SIFI attorneys and volunteers from meeting with their clients at all.
182. Attorneys invariably must return to the facility to see their clients in order to discuss matters that could not be addressed due to time constraints at the initial meeting. Attorneys are again subjected to lengthy delays at the follow-up visit. As a result, matters that could have been handled within a single efficient visit often take multiple trips and multiple hours of waiting, thereby further straining SPLC’s resources.
183. These delays have prevented SIFI staff from meeting with clients and prospective clients prior to important court hearings. As a result, SPLC’s clients and prospective clients have not been adequately prepared for their hearings.
184. In one instance, SPLC learned about a potential client just prior to his bond hearing. A SIFI volunteer attempted to visit the person before his hearing to provide important advice. Yet, the delay of well over an hour prevented the attorney from speaking with the client prior to the hearing. The bond hearing went forward, and bond was denied.
185. Because the “no-electronics” policy impedes access to interpreters and prevents SPLC from engaging in client work during lengthy waits, SPLC has sought to negotiate with Defendants to revise its prohibition on electronic devices at Stewart. SPLC has made multiple offers of accommodation, including proposals to purchase laptops with no cameras, bring in only pre-registered tablets that Stewart staff could inspect, and certify that any laptops or cell phones are utilized exclusively for client representation purposes. Defendants have implemented such
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safeguards to permit attorneys to bring in electronic devices at other immigration detention centers. Yet, Defendants have outright rejected these proposals at Stewart and continue to prohibit attorneys from bringing electronic devices into the facility, which negatively impacts SPLC and its clients.
186. After SPLC staff complained in 2016 that video-teleconferencing was supposed to be available under the terms of the 2014 Stewart contract, two VTC portals were installed at Stewart. However, Defendants maintain policies that obstruct clients’ reliable access to VTC for the purpose of communicating with their attorneys. For example, Defendants maintain a policy of strictly cutting off the calls one hour after the scheduled start time regardless of need or availability. Mechanical difficulties often delay or interrupt these calls. Yet, Stewart staff refuse to replace such lost time and instead insist on strictly adhering to the policy.
187. In one case, an SPLC volunteer attorney met with an Arabic-speaking SIFI client to review the client’s sworn declaration. Because there is no access to a language line in Stewart, VTC was the only mechanism by which the attorney could access an Arabic interpreter. The call began eight minutes late, and technical difficulties occurred approximately twenty-five minutes later. The attorney was able to resume the call twelve minutes before the hour expired, by which time the officer had sent the detainee back for count. When the volunteer asked the officer to bring the client back, she refused on the basis that the attorney had just seven minutes left of her allotted hour. The attorney was thus unable to complete review of the client’s declaration during that meeting.
188. Access to confidential telephone lines for attorney-client communications is not an alternative at Stewart. Upon information and belief, Stewart only allows confidential telephone calls between attorneys and clients if VTC is not working.
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189. All of these barriers to attorney-client communications are compounded by Defendants’ failure to remediate persistently obstructive conduct by Stewart staff. Stewart staff frequently and arbitrarily change rules without notice; for example, the ever-evolving requirements to obtain visitation authorization have delayed client visits, blocked visits altogether, and drained SPLC’s resources. Recently, SIFI staff followed the longstanding procedure of faxing a letter indicating which clients a volunteer attorney intended to visit the following day. After completing some visits in the morning, the volunteer attorney returned that afternoon to conduct the remaining client visits. However, Stewart staff refused her entry, insisting that she would need to fax a second letter if she wanted to re-enter the facility. The volunteer was unable to see her remaining clients that day.
190. Similarly, during a recent set of client visits, SIFI volunteers sought to bring in business cards for their own clients as well as other indigent detainees in need of legal representation. However, Stewart guards refused to allow the SIFI volunteers to enter with any extra business cards. Guards have continued to enforce this policy with some regularity, thereby depriving unrepresented Stewart detainees of access to information that could assist them in securing crucially-needed legal counsel.
191. Stewart guards have also engaged in conduct to pressure attorneys and detainees to keep legal visits short. Recently, during a prospective client interview with an attorney, a detainee noticed that a Stewart guard was pacing back and forth outside the attorney-visitation room. While the interview was in progress, the attorney overheard that guard state that the interview was taking too long. When the interview was finished, the same guard stated “Finally,” signaling to the attorney that he should keep his remaining interview short.
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192. These recent occurrences are but a few of the many instances in which Defendants’ agents have engaged in conduct that frustrates detainees’ efforts to access legal counsel. Upon information and belief, such conduct is directed specifically and deliberately at SIFI staff and volunteers—not at other attorneys who visit the facility.
193. Defendants have also failed to remediate other obstructive conduct by Stewart staff. In some instances, guards at Stewart have forced SIFI staff and volunteers to wait even when there are available attorney-visitation rooms. Upon information and belief, such conduct is directed specifically and deliberately at SIFI staff and volunteers—not at other attorneys who visit the facility. In a recent incident, a volunteer interpreter arrived at Stewart with two attorneys to facilitate visits with three clients. When she walked under the metal detector, it started beeping. A guard speculated that the underwire in her bra had triggered the detector. The volunteer requested that they use the readily available metal detection wand to clear her. The guard called for supervisory approval. After waiting for approximately 15 minutes, the volunteer asked another guard for an update on her clearance; in response, the guard asked the volunteer when she planned to change her clothes. She removed her bra in the public waiting area, passed through again, and the metal detector again beeped. She was then forced to leave the facility and change clothes before being allowed to re-enter. Although the Stewart guard refused to use the readily available wand on the SIFI volunteer, that volunteer observed the same guard using the wand on a non-SIFI visitor who set off the metal detector on the same day.
194. Guards have also interrupted attorney-client meetings without cause. In one instance, a guard peered through the small window on the visitation door and opened the door during a client visitation, stating that he had seen the attorney showing the client a photograph.
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Although photographs are frequently critical pieces of evidence in removal cases, the guard interrogated the attorney about his conduct.
195. Guards at Stewart have prevented SIFI staff and volunteers from wearing scarves and from carrying CDs that containing a client’s immigration court files.
196. Guards and Defendants’ other agents have also inspected and commented on legal files held by attorneys and confiscated legal papers from detainees.
197. In addition, Defendants have engaged in conduct aimed at intimidating SIFI staff and volunteers. For instance, a volunteer attorney left Stewart on the morning of March 13, 2018 at about 10:15 a.m. She lawfully stopped on the side of Main Street in order to take photos of the water tower and the signage pointing to the detention center, and then returned to her car and resumed driving.
198. An ICE patrol car passed her, drove about halfway toward the detention center and turned around. The ICE officer drove up behind her, activated his lights, and pulled her over. The ICE officer, who did not immediately identify himself, asked what she was doing. When she explained, he acknowledged there was nothing wrong with taking photos, but said he still had to take her information. He asked if she had a business card, and she said no. He then asked for her name and phone number, which he transcribed with a pen on the palm of his hand. When he asked who she was with, she said “SPLC.” He asked if she was helping to “support illegal immigration.” and asked what she was doing. She said she was court watching. When he again asked for the name of her organization, she said “the Southeast Immigrant Freedom Initiative, with the Southern Poverty Law Center,” and he wrote that information on the palm of his hand. The officer then said he had to write down her license plate information.
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199. An actual and substantial controversy exists between SPLC and Defendants as to their respective legal rights and duties with respect to Defendants’ policies, practices, and omissions in obstructing SPLC’s ability to zealously represent its clients. SPLC contends that Defendants’ policies, practices, and omissions alleged herein violate the constitutional rights of SPLC and its clients as alleged in the following paragraphs.
FIRST CLAIM FOR RELIEF
Denial of Access to Courts in Violation of the Due Process Clause of the Fifth Amendment (SPLC, on behalf of its clients detained at LaSalle)
200. SPLC realleges and incorporates by reference the foregoing paragraphs and incorporates them herein by this reference.
201. The Due Process Clause of the Fifth Amendment guarantees noncitizen detainees the right of access to courts and prohibits the government and its agents from unjustifiably obstructing that access.
202. As such, SPLC’s clients require meaningful access to SPLC in order to seek release on both bond and parole and to defend themselves against removal from the United States—the very reason that they are detained at LaSalle.
203. The regulations and practices at LaSalle unjustifiably obstruct the availability of meaningful legal professional representation for SPLC’s clients and impede upon other aspects of their right of access to the courts. These regulations and practices are invalid.
204. SPLC’s clients at LaSalle are civil detainees. 205. As a result, Defendants cannot invoke “penological interests” as justification for any of the barriers they have placed between SPLC’s clients and SPLC.
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206. There are no security interests or administrative needs that justify these barriers at the expense of SPLC’s clients’ access to courts and counsel. Under the totality of the circumstances—including, but not limited to, the remoteness of the facility, the inadequate number of visitation rooms, restrictions on visitation hours, delays in attorney access, lack of confidentiality in visitation rooms, lack of meaningful access to interpretation services, and barriers to remotely and confidentially communicating with their attorneys, Defendants are detaining SPLC’s clients in a manner that prevents them from meaningfully accessing courts.
207. SPLC’s clients have suffered and will imminently suffer irreparable injury as a result of Defendants’ policies, practices, and omissions and are entitled to injunctive relief to avoid any further injury.
SECOND CLAIM FOR RELIEF Denial of the Right to Counsel in Violation of the
Due Process Clause of the Fifth Amendment (SPLC, on behalf of its clients detained at LaSalle) 208. SPLC realleges and incorporates by reference the foregoing paragraphs and incorporates them herein by this reference. 209. The Due Process Clause of the Fifth Amendment guarantees SPLC’s clients the right to the effective assistance of counsel in their removal proceedings at no cost to the Government. 210. SPLC’s clients have retained SPLC to represent them in removal proceedings. 211. For all the reasons assigned above, Defendants’ policies, practices, and omissions have created substantial barriers to SPLC’s efforts to provide effective and ethical representation to its clients.
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212. SPLC’s clients have suffered and will imminently suffer irreparable injury as a result of Defendants’ policies, practices, and omissions and are entitled to injunctive relief to avoid any further injury.
THIRD CLAIM FOR RELIEF Denial of the Right to a Full and Fair Hearing in Violation of the
Due Process Clause of the Fifth Amendment (SPLC, on behalf of its clients detained at LaSalle) 213. SPLC realleges and incorporates by reference the foregoing paragraphs and incorporates them herein by this reference. 214. The Due Process Clause of the Fifth Amendment guarantees SPLC’s clients the right to a full and fair hearing in their removal cases. 215. Defendants’ conduct creates a substantial likelihood that SPLC’s clients’ rights to a full and fair hearing will be violated, because Defendants’ policies and practices severely restrict the ability of Plaintiff to communicate with its clients and to conduct necessary legal work on their behalf in connection with their removal proceedings. 216. SPLC’s clients have a substantial interest in avoiding prolonged detention and ultimately prevailing in their removal proceedings. 217. All of the obstacles to accessing and communicating with counsel described herein create a substantial risk that errors will occur in bond and removal proceedings; eliminating these barriers creates a greater likelihood of preventing an erroneous deprivation of SPLC’s clients’ rights. 218. The government’s interest in maintaining the current obstacles is de minimis, especially in light of the countervailing interests of SPLC’s clients.
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219. SPLC’s clients have suffered and will imminently suffer irreparable injury as a result of Defendants’ policies, practices, and omissions and are entitled to injunctive relief to avoid any further injury.
FOURTH CLAIM FOR RELIEF Denial of the Right to Free Speech in Violation of the First Amendment
(SPLC, on behalf of itself) 220. Plaintiff realleges and incorporates by reference the foregoing paragraphs and incorporates them herein by this reference. 221. The First Amendment protects SPLC’s activities as a legal organization in informing and representing its clients because those activities are modes of expression and association. 222. Defendants’ policies, practices, and omissions have interfered with and obstructed SPLC’s ability to inform and represent its clients at LaSalle. 223. The First Amendment also prohibits the government from restricting SPLC’s expression on the basis of its viewpoint, or treating SPLC’s expression differently from that of other attorneys on the basis of viewpoint. 224. Upon information and belief, many of the obstacles described above have been targeted at the SPLC alone—and not other immigration lawyers who practice at LaSalle—due to SPLC’s underlying mission.
Irwin County Detention Center FIFTH CLAIM FOR RELIEF Denial of Access to Courts in Violation of the Due Process Clause of the Fifth Amendment (SPLC, on behalf of its clients detained at Irwin)
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225.

SPLC realleges and incorporates by reference the foregoing paragraphs and

incorporates them herein by this reference.

226.

The Due Process Clause of the Fifth Amendment guarantees noncitizen detainees

the right of access to courts and prohibits the government and its agents from unjustifiably

obstructing that access.

227.

As such, SPLC’s clients require meaningful access to SPLC in order to seek

release on both bond and parole and to defend themselves against removal from the United

States—the very reason that they are detained at Irwin. The regulations and practices at Irwin

unjustifiably obstruct the availability of meaningful legal professional representation for SPLC’s

clients and impede upon other aspects of their right of access to the courts. These regulations and

practices are invalid.

228.

SPLC’s clients at Irwin are civil detainees.

229.

As a result, Defendants cannot invoke “penological interests” as justification for

any of the barriers they have placed between SPLC’s clients and SPLC.

230.

There are no security interests or administrative needs that justify these barriers at

the expense of SPLC’s clients’ access to courts and counsel. Under the totality of the

circumstances—including, but not limited to, the remoteness of the facility, the inadequate

number of visitation rooms, restrictions on visitation hours, delays in attorney access, lack of

confidentiality in visitation rooms, lack of meaningful access to interpretation services, and

barriers to remotely and confidentially communicating with their attorneys, Defendants are

detaining SPLC’s clients in a manner that prevents them from meaningfully accessing courts.

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231.

SPLC’s clients have suffered and will imminently suffer irreparable injury as a

result of Defendants’ policies, practices, and omissions and are entitled to injunctive relief to

avoid any further injury.

SIXTH CLAIM FOR RELIEF

Denial of the Right to Counsel in Violation of the Due Process Clause of the Fifth Amendment

(SPLC, on behalf of its clients detained at Irwin)

232.

Plaintiff realleges and incorporates by reference the foregoing paragraphs and

incorporates them herein by this reference.

233.

The Due Process Clause of the Fifth Amendment guarantees SPLC’s clients the

right to the effective assistance of counsel in their removal proceedings at no cost to the

Government.

234.

SPLC’s clients have retained Plaintiff to represent them in removal proceedings.

235.

For all the reasons assigned above, Defendants’ policies, practices, and omissions

have created substantial barriers to SPLC’s efforts to provide effective and ethical representation

to its clients.

236.

SPLC’s clients have suffered and will imminently suffer irreparable injury as a

result of Defendants’ policies, practices, and omissions and are entitled to injunctive relief to

avoid any further injury.

SEVENTH CLAIM FOR RELIEF

Denial of the Right to a Full and Fair Hearing in Violation of the Due Process Clause of the Fifth Amendment

(SPLC, on behalf of its clients detained at Irwin)

237.

SPLC realleges and incorporates by reference the foregoing paragraphs and

incorporates them herein by this reference.

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238.

The Due Process Clause of the Fifth Amendment guarantees SPLC’s clients the

right to a full and fair hearing in their removal cases.

239.

Defendants’ conduct creates a substantial likelihood that SPLC’s clients’ rights to

a full and fair hearing will be violated, because Defendants’ policies and practices severely

restrict the ability of Plaintiff to communicate with its clients and to conduct necessary legal

work on their behalf in connection with their removal proceedings.

240.

SPLC’s clients have a substantial interest in avoiding prolonged detention and

ultimately prevailing in their removal proceedings.

241.

All of the obstacles to accessing and communicating with counsel described

herein create a substantial risk that errors will occur in bond and removal proceedings;

eliminating these barriers creates a greater likelihood of preventing an erroneous deprivation of

SPLC’s clients’ rights.

242.

The government’s interest in maintaining the current obstacles is de minimis,

especially in light of the countervailing interests of SPLC’s clients.

243.

SPLC’s clients have suffered and will imminently suffer irreparable injury as a

result of Defendants’ policies, practices, and omissions and are entitled to injunctive relief to

avoid any further injury.

EIGHTH CLAIM FOR RELIEF

Denial of the Right to Free Speech in Violation of the First Amendment

(SPLC, on behalf of itself)

244.

Plaintiff realleges and incorporates by reference the foregoing paragraphs and

incorporates them herein by this reference.

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245.

The First Amendment protects SPLC’s activities as a legal organization in

informing and representing its clients because those activities are modes of expression and

association.

246.

Defendants’ policies, practices, and omissions have interfered with and obstructed

SPLC’s ability to inform and represent its clients at Irwin.

247.

The First Amendment also prohibits the government from restricting SPLC’s

expression on the basis of its viewpoint, or treating SPLC’s expression differently from other

attorneys on the basis of viewpoint.

248.

Upon information and belief, many of the obstacles described above have been

targeted at the SPLC alone—and not other immigration lawyers who practice at Irwin—due to

SPLC’s underlying mission.

Stewart Detention Center

NINTH CLAIM FOR RELIEF

Denial of Access to Courts in Violation of the Fifth Amendment Due Process Clause

(SPLC, on behalf of its clients detained at Stewart)

249.

SPLC realleges and incorporates by reference the foregoing paragraphs and

incorporates them herein by this reference.

250.

The Due Process Clause of the Fifth Amendment guarantees noncitizen detainees

the right of access to courts and prohibits the government and its agents from unjustifiably

obstructing that access.

251.

As such, SPLC’s clients require meaningful access to SPLC in order to seek

release on both bond and parole and to defend themselves against removal from the United

States—the very reason that they are detained at LaSalle. The regulations and practices at

LaSalle unjustifiably obstruct the availability of meaningful legal professional representation for

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SPLC’s clients and impede upon other aspects of their right of access to the courts. These

regulations and practices are invalid.

252.

SPLC’s clients at Stewart are civil detainees.

253.

As a result, Defendants cannot invoke “penological interests” as justification for

any of the barriers they have placed between SPLC’s clients and SPLC.

254.

There are no security interests or administrative needs that justify these barriers at

the expense of SPLC’s clients’ access to courts and counsel. Under the totality of the

circumstances— including, but not limited to, the remoteness of the facility, the inadequate

number of visitation rooms, restrictions on visitation hours, delays in attorney access, lack of

confidentiality in visitation rooms, lack of meaningful access to interpretation services, and

barriers to remotely and confidentially communicating with their attorneys, Defendants are

detaining SPLC’s clients in a manner that prevents them from meaningfully accessing courts.

255.

SPLC’s clients have suffered and will imminently suffer irreparable injury as a

result of Defendants’ policies, practices, and omissions and are entitled to injunctive relief to

avoid any further injury.

TENTH CLAIM FOR RELIEF

Denial of the Right to Counsel in Violation of the Due Process Clause of the Fifth Amendment
(SPLC, on behalf of its clients detained at Stewart)

256.

Plaintiff realleges and incorporates by reference the foregoing paragraphs and

incorporates them herein by this reference.

257.

The Due Process Clause of the Fifth Amendment guarantees SPLC’s clients the

right to the effective assistance of counsel in their removal proceedings at no cost to the

Government.

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258.

SPLC’s clients have retained Plaintiff to represent them in removal proceedings.

259.

For all the reasons assigned above, Defendants’ policies, practices, and omissions

have created substantial barriers to SPLC’s efforts to provide effective and ethical representation

to its clients.

260.

SPLC’s clients have suffered and will imminently suffer irreparable injury as a

result of Defendants’ policies, practices, and omissions and are entitled to injunctive relief to

avoid any further injury.

ELEVENTH CLAIM FOR RELIEF

Denial of the Right to a Full and Fair Hearing in Violation of the Due Process Clause of the Fifth Amendment

(SPLC, on behalf of its clients detained at Stewart)

261.

SPLC realleges and incorporates by reference the foregoing paragraphs and

incorporates them herein by this reference.

262.

The Due Process Clause of the Fifth Amendment guarantees SPLC’s clients the

right to a full and fair hearing in their removal cases.

263.

Defendants’ conduct creates a substantial likelihood that SPLC’s clients’ rights to

a full and fair hearing will be violated, because Defendants’ policies and practices severely

restrict the ability of Plaintiff to communicate with its clients and to conduct necessary legal

work on their behalf in connection with their removal proceedings.

264.

SPLC’s clients have a substantial interest in avoiding prolonged detention and

ultimately prevailing in their removal proceedings.

265.

All of the obstacles to accessing and communicating with counsel described

herein create a substantial risk that errors will occur in bond and removal proceedings, and

eliminating these barriers creates a greater likelihood that no erroneous deprivation of SPLC’s

clients’ rights will occur.

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266.

The government’s interest in maintaining the current obstacles is de minimis,

especially in light of the countervailing interests of SPLC’s clients.

267.

SPLC’s clients have suffered and will imminently suffer irreparable injury as a

result of Defendants’ policies, practices, and omissions and are entitled to injunctive relief to

avoid any further injury.

TWELFTH CLAIM FOR RELIEF Denial of the Right to Free Speech in Violation of the First Amendment
(SPLC, on behalf of itself)

268.

Plaintiff realleges and incorporates by reference the foregoing paragraphs and

incorporates them herein by this reference.

269.

The First Amendment protects SPLC’s activities as a legal organization in

informing and representing its clients because those activities are modes of expression and

association.

270.

Defendants’ policies, practices, and omissions have interfered with and obstructed

SPLC’s ability to inform and represent its clients at Stewart.

271.

The First Amendment also prohibits the government from restricting Plaintiff’s

expression on the basis of its viewpoint, or treating SPLC’s expression differently from other

attorneys on the basis of viewpoint.

272.

Upon information and belief, many of the obstacles described above have been

targeted at the SPLC alone—and not other immigration lawyers who practice at Stewart—due to

SPLC’s underlying mission.

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PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests that the Court:
1. Accept jurisdiction of this case and set it for hearing at the earliest opportunity; 2. Issue a judgment declaring that Defendants’ policies, practices, and omissions described
herein violate SPLC’s and its clients’ rights under the United States Constitution; 3. Enjoin Defendants, their subordinates, agents, employees, and all others acting in concert
with them from subjecting Plaintiff and its clients to the unlawful acts and omissions described herein, and issue an injunction sufficient to remedy the violations of SPLC’s and its clients’ constitutional rights, including:
a. An order that Defendants provide sufficient space for timely, confidential and contact attorney-client meetings;
b. An order that Defendants do not locate more noncitizen detainees at LaSalle, Irwin, or Stewart than can be reasonably accommodated for attorney visitation space;
c. An order that Defendants provide a cost-effective and functional means of accessing remote interpretation services within the attorney-visitation meeting rooms;
d. An order that Defendants permit confidential attorney-client telephonic and/or video teleconference communications in excess of one hour without limitation on the number of such communications;
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e. An order that Defendants institute protocols to ensure that such telephonic and/or video teleconference communications can be scheduled without unreasonable delay; and
f. An order that Defendants permit SPLC’s staff and volunteers to use laptops, tablets and cellular telephones in the waiting rooms and attorney-visitation rooms after Plaintiff certifies that such use is in furtherance of its representation of its clients.
4. Grant Plaintiff its reasonable attorney fees and costs pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412, and any other applicable law.

5. Grant such other relief as the Court deems just and proper.

Dated: April 4, 2018

Respectfully submitted,

/s/ Lisa S. Graybill Lisa Graybill* Jamila Johnson* Jared Davidson* Southern Poverty Law Center 201 St. Charles Avenue, Suite 2000 New Orleans, Louisiana 70170 Tel: (504) 486-8982 Lisa.Graybill@splcenter.org Jamila.Johnson@splcenter.org Jared.Davidson@splcenter.org
/s/ Natalie Lyons Natalie Lyons* Southern Poverty Law Center 150 E. Ponce de Leon Ave., Ste. 340 Decatur, GA 30030 Tel: (404) 521-6700 Natalie.Lyons@splcenter.org

/s/ Melissa Crow Melissa Crow (DC Bar No. 453487) Law Office of Melissa Crow 14608 Drum Hill Court North Potomac, MD 20878 Tel: 202-355-4471 melissa@immjustice.com
/s/ Christian F. Henel Christian F. Henel (DC Bar No. 989746) John T. Bergin (DC Bar No. 448975) Kilpatrick Townsend & Stockton LLP 607 14th Street NW, Suite 900 Washington, D.C. 20005 Tel: (202) 481-9943 CHenel@kilpatricktownsend.com JBergin@kilpatricktownsend.com
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/s/ William E. Dorris William E. Dorris* Susan W. Pangborn* Jeffrey Fisher* Kilpatrick Townsend & Stockton LLP 1100 Peachtree Street NE, Suite 2800 Atlanta, GA 30309 Tel: (404) 815-6104 BDorris@kilpatricktownsend.com SPangborn@kilpatricktownsend.com JFisher@kilpatricktownsend.com

/s/ Maureen A. Sheehy Maureen A. Sheehy* Gia L. Cincone* Kilpatrick Townsend & Stockton LLP Two Embarcadero Center, Suite 1900 San Francisco, CA 94111 Tel: (415) 273-7571 MSheehy@kilpatricktownsend.com GCincone@kilpatricktownsend.com

Attorneys for Plaintiffs

* Pro Hac Vice Motion Pending

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 Case 1:18-cv-00760-CKK Document 42 Filed 09/05/18 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SOUTHERN POVERTY LAW CENTER, Plaintiff,
v. U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants.

Civil Action No. 18-0760 (CKK)

SETTLEMENT AGREEMENT ON PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION REGARDING THE LASALLE ICE PROCESSING CENTER
A. INTRODUCTION AND PROCEDURAL PROVISIONS 1. This Settlement Agreement (“Agreement”) is entered into by Plaintiff and all
Defendants in this lawsuit (collectively, “Parties” and individually a “Party”). Plaintiff is the Southern Poverty Law Center (“SPLC”) and Defendants are United States Department of Homeland Security; U.S. Immigration and Customs Enforcement (“ICE”); Kirstjen Nielsen, Secretary of Homeland Security; Ronald D. Vitiello,1 Deputy Director and Senior Official Performing the Duties of Director, ICE; Matthew Albence, Enforcement and Removal Operations (“ERO”) Executive Associate Director and Senior Official Performing the Duties of the Deputy Director, ICE; Nathalie R. Asher, Acting Executive Director, ERO, ICE; Tae Johnson, Assistant Director for Custody Management; and David Rivera, Field Office Director, New Orleans Field Office, ERO, ICE. All individual Defendants are being sued in their respective official capacities.

1 Under Federal Rule of Civil Procedure 25(d), Mr. Vitiello is substituted for Mr. Thomas Homan as a co-defendant named in the complaint.

Case 1:18-cv-00760-CKK Document 42 Filed 09/05/18 Page 2 of 15
2. On April 4, 2018, SPLC filed this action pursuant to 28 U.S.C. § 1331 on behalf of itself and its clients, who, in relevant part, are being detained at the LaSalle ICE Processing Center (“LaSalle”) in Jena, Louisiana, the Irwin County Detention Center in Ocilla, Georgia (“Irwin”) and the Stewart Detention Center in Lumpkin, Georgia (“Stewart”). SPLC alleges, inter alia, that Defendants’ policies, practices, and omissions at the three facilities create unconstitutional barriers for detainees to access and communicate with attorneys in violation of their Fifth Amendment right to access courts, right to counsel, and right to a full and fair hearing. Defendants deny the allegations in the Complaint.
3. On May 4, 2018, SPLC filed a Motion for Preliminary Injunction (“Motion”) [Dkt 32] against Defendants to require Defendants to immediately cease certain actions and take certain remedial measures at LaSalle pending final disposition of the action. Defendants deny the allegations in Plaintiff’s Motion.
4. On May 24, 2018, the Parties filed a joint motion [Dkt 37] to refer the case to mediation to resolve Plaintiff’s request for additional legal visitation meeting space at LaSalle and Plaintiff’s request for accommodations to facilitate remote interpretation services during in-person legal meetings at the facility. On May 30, 2018, the District Court granted in part and denied in part the Parties’ joint motion, referred the two issues to mediation for resolution, and held Plaintiff’s Motion in abeyance pending resolution of mediation (“May 30 Minute Order”).
5. On July 26, 2018, the Parties filed a Joint Status Report with the District Court [Dkt 46], informing the District Court that they had negotiated a full resolution of Plaintiff’s Motion in accordance with the terms provided in the Draft Settlement Term Sheet—LaSalle Facility Only (“Term Sheet”), and intended to reduce the Term Sheet into a final Agreement to be filed with the District Court by August 27, 2018. On July 26, 2018, the District Court entered a Minute Order
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directing the Parties to file the final Agreement with the Court on or before August 27, 2018. By

Minute Order, dated August 24, 2018, the Court extended the deadline for the parties to file the

Agreement until September 5, 2018.

6. As contemplated by the Term Sheet and the May 30 Minute Order, the Parties

desire to set forth in this Agreement their agreements and understandings to settle only the issues

in the Motion relating to LaSalle.

B. DEFINITIONS OF TERMS IN THIS AGREEMENT

7.

“Attorney Consultation Room” means the room at LaSalle located just past the

entrance lobby typically used for legal in-person visits at the time of the filing of the Term Sheet.

8. “Confidential” and “confidentiality” mean private. In reference to any type of

communication described herein (including but not limited to legal in-person visits, legal telephone

calls, Skype visits or correspondence), “confidential” and “confidentiality” mean privacy

sufficient to ensure that unintended recipients of the communication cannot discern the

communication or any information contained therein.

9. “Contractors” refers to Defendants’ service providers, currently the LaSalle

Economic Development District, with which it contracts to manage the LaSalle facility, and its

sub-contractor, currently The GEO Group, Inc.

10. “Game Room” means the space which housed the former game room at LaSalle.

11. “Force Majeure” means any cause or event beyond the reasonable control of the

Defendants that is not caused by or attributable in whole or in part to the negligence or lack of

reasonable foresight of Defendants or their Contractors, and which by the exercise of due diligence

could not have been avoided or overcome, and which delays Defendants in complying with a

completion date set in this Agreement. Such causes or events include the following types of

events: war, invasion, riot, terrorism, act of vandalism, rebellion or other hostilities, epidemic,

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catastrophic weather or other natural disaster, fire, explosion, unanticipated strike, lockout, walkout, or an unavoidable and unforeseeable labor condition or security threat.
12. A “legal in-person visit” means an in-person visit conducted by a lawyer or his/her agent, including but not limited to paralegals, legal assistants, and legal volunteers.
13. A “legal telephone call” means a telephone call conducted by an attorney or his/her agent, including but not limited to paralegals, legal assistants, and legal volunteers.
14. “Pre-Hearing Room” means the room at LaSalle that, at the time of the filing of the Term Sheet, was available in the foyer for legal in-person visitation prior to court hearings.
15. “Skype Room” means the room described in Paragraph 22 of this Agreement. 16. “Soundproof” means preventing, or constructed of material that prevents, the passage of sound, including but not limited to confidential communications. 17. “2011 Performance-Based National Detention Standards” or “PBNDS” means the 2011 detention standards promulgated by ICE, including its 2016 Revisions in effect at the time of the filing of the Term Sheet. C. TERMS OF SETTLEMENT 18. The Parties will continue to comply with the following terms and conditions for LaSalle that were agreed upon before mediation commenced: (a) Confidential legal telephone calls will not be limited to less than two hours; (b) Defendants will not prevent or intentionally interrupt legal in-person visits or legal telephone calls and will act in accordance with the standards set forth in the PBNDS. Defendants further will require the same of its Contractors. (c) Plaintiff will request legal in-person visits and legal telephone calls the day before, or, at the latest, the morning of, the scheduled visit or call; and
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(d) Defendants will ensure wait times for legal in-person visits are less than 30 minutes upon arrival at LaSalle, provided requisite advance notice of the visits was given.
19. Defendants will ensure the existing Attorney Consultation Room at LaSalle is remodeled and reconfigured so that upon completion, the room will contain three separate, enclosed, soundproof rooms, each approximately four feet by four feet by six feet. Each soundproof room will contain a confidential three-way telephone line to access outside telephonic interpretation services without interference or static; and a new, improved communication system or technology for communication between the attorney side and detainee side of each enclosed space. The Parties agree that reasonable charges will apply for use of the telephone lines to communicate with interpreters, except for telephone calls to toll-free telephone numbers. Defendants agree that construction will be performed between 7 p.m. and 7 a.m. weekdays and/or on weekends in a manner to minimize any disruption of confidential in-person legal visits or confidentiality of communications to ensure that the Attorney Consultation Room may be used at all times during regular legal visitation hours.
20. Construction to renovate and remodel the Attorney Consultation Room will be completed by January 22, 2019. If by January 22, 2019, the changes identified in ¶ 19 above have not been completed, Defendants will provide two additional private, confidential spaces, each with a telephone line, to enable Plaintiff to conduct legal in-person visits with its clients without restraints.
21. Defendants will ensure the Game Room at LaSalle is remodeled and reconfigured to have four to six separate confidential telephone banks for legal telephone calls. Defendants represent that construction and installation of telephone lines at each telephone bank was completed on August 25, 2018. Upon completion, the telephone banks will comply with §
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5.6(V)(F)(2) of the PBNDS to ensure privacy and confidentiality during legal telephone calls. Defendants further will convey information to Plaintiff about the former Game Room to ensure that the legal telephone calls in this room are confidential. Plaintiff and/or their agent(s) may contact outside interpretation services while on these legal telephone calls.
22. Defendants will ensure one room, referred to as the Skype Room, with at least one computer setup, is dedicated for confidential legal visitation by video using Skype or video teleconference (“VTC”) software with no less than a two-hour time limit and the same scheduling for telephone calls that is referenced in Paragraph 18(c) above. An SPLC attorney and/or his or her agent(s) may contact outside interpretation services while on these Skype/VTC calls. Defendants represent that they and their Contractors made the Skype Room available for use on August 25, 2018. The Skype Room will comply with § 5.6(V)(F)(2) of the PBNDS to ensure privacy and confidentiality during legal calls. Defendants will convey information to Plaintiff about the Skype Room to ensure the legal phone calls in this room are confidential. Defendants and their Contractors are authorized to keep track of the occurrences of these visits in the Skype Room for security purposes.
23. Defendants will ensure that their Contractors make the existing Pre-Hearing Room, which is located in the foyer that is not in the secure “hard-side” area of LaSalle, available for legal in-person visits, provided that:
(a) Detainees/clients will be held in full restraints; and (b) Priority use of the Pre-Hearing Room will be for pre-hearing meetings on dates scheduled for immigration removal proceedings; i.e., prehearing consultations between attorneys (or their agents) and clients having their removal proceedings scheduled on those dates will
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preempt any other visits between attorneys and their detainee clients until such consultations have been completed.
24. The Parties stipulate that Plaintiff will not use the Pre-Hearing Room for legal inperson visits because its detainee clients will be in full restraints. Defendants will not require, and will not permit their Contractors to require, Plaintiff to use the Pre-Hearing Room when Plaintiff is scheduled for legal in-person visits. The Parties agree that Defendants’ offer to Plaintiff to make the Pre-Hearing Room available for attorney-client visits while its clients are in full restraints does not fulfill Defendants’ obligation to provide a confidential meeting space within 30 minutes.
25. The Parties agree that before LaSalle is remodeled and reconfigured in accordance with Paragraphs 19 through 22 above, Defendants will ensure that their Contractors provide no less than two confidential meeting spaces, at least one in the existing Attorney Consultation Room and the other in the existing Pre-Hearing Room, for legal in-person visits, subject to Paragraph 24 above. Defendants’ offer to Plaintiff to utilize this Pre-Hearing Room does not fulfill Defendants’ obligation to provide a confidential meeting space within 30 minutes for the reasons described in Paragraph 24.
26. From the date of execution and filing of this Agreement with the District Court, Defendants will ensure that the above meeting spaces are confidential and that their Contractors do not schedule multiple simultaneous legal in-person visits in the existing Attorney Consultation Room during Plaintiff’s scheduled legal in-person visits notwithstanding the June 2018 construction of new partitions in this room.
27. While the existing Attorney Consultation Room is being renovated, Defendants will require their Contractors to prioritize installation of a dedicated telephone line in this room to enable Plaintiff to communicate with its interpreters to the fullest extent possible during
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construction. The Parties agree that Defendants and their Contractors will neither record nor monitor this telephone line and Plaintiff may initiate confidential telephone calls to its interpreters when using this telephone line. D. ALTERNATIVE DISPUTE RESOLUTION
28. In the event a dispute arises concerning the terms or implementation of this Agreement, either Party may send a written communication via email to the other Party’s counsel (a “Notice of Non-Compliance”) setting forth the disputed issue. If such a dispute arises, the Parties will promptly meet and confer in a good faith effort to informally resolve their dispute.
29. In the event that the dispute set forth in the Notice of Non-Compliance cannot be resolved informally within two business days, then counsel for either Party may submit the dispute to the assigned D.C. Circuit Mediators, Ms. Carolyn Lerner and Mr. Robert Fisher (hereinafter, the “Mediators”), to mediate the dispute. If no resolution can be achieved within 15 calendar days of submission to the Mediators or the Mediators agree that the parties have reached a stalemate, whichever is sooner, either Party may immediately move to enforce the Agreement in the District Court.
The Notice of Non-Compliance will be served on Plaintiff via email to: Jamila Johnson 201 St. Charles Avenue, Suite 2000 New Orleans, Louisiana 70170 Jamila.Johnson@splcenter.org And on Defendants via email to: Jon Kaplan Associate Legal Advisor District Court Litigation Division Office of the Principal Legal Advisor U.S. Immigration and Customs Enforcement 500 12th Street, S.W., Room 9060 Washington, D.C. 20536
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Jonathan.L.Kaplan@ice.dhs.gov With Copy to: Daniel P. Schaefer Assistant United States Attorney 555 4th Street, N.W. Washington, D.C. 20530 Daniel.Schaefer@usdoj.gov 30. The Parties are both committed to resolving any disputes that may arise concerning the terms or implementation of the Agreement through the Alternative Dispute Resolution process described above in Paragraphs 28 to 29 (the “ADR Process”). If, however, Plaintiff asserts that its client(s) will likely suffer an imminent and irreparable harm, injury, or loss due to Defendants’ violation of this Agreement and the ADR Process is neither feasible nor practicable, Plaintiff will send Defendants’ counsel a Notice of Non-Compliance. Plaintiff’s Notice of Non-Compliance will alert Defendants’ counsel that this is an emergency situation that requires immediate attention and that Plaintiff is invoking Paragraph 30 of the Agreement. The Parties will promptly meet and confer in a good faith effort to informally resolve their dispute. If no resolution can be achieved by the close of business (5:00 p.m. Eastern Daylight/Standard Time) of the next business day after the sending of the Notice of Non-Compliance, Plaintiff may make an immediate application for relief to the Court. In exercising this provision, Plaintiff must specify facts in an affidavit or declaration filed simultaneously with its application to the Court showing the likelihood of certain imminent and irreparable harm, injury, or loss that will result if the violation alleged is not remedied. Plaintiff must also specify, in writing, discrete steps taken to notify Defendants about the alleged violation, Defendants’ response, if any, and the reason(s) why no further efforts could reasonably be made to resolve the issue through the ADR Process.
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E. DISPOSITION OF MOTION FOR PRELIMINARY INJUNCTION AND OTHER INJUNCTIVE RELIEF 31. This Agreement fully resolves the Motion for Preliminary Injunction filed May 4,
2018 [Dkt 32], but does not resolve Plaintiff’s claims on the merits with respect to LaSalle, including but not limited to, Plaintiff’s position that this Agreement does not meet Defendants’ obligations to provide contact visitation, which Defendants dispute. This Agreement shall not be construed as a presumption, concession, agreement, or stipulation by Plaintiff that the accommodations made by Defendants pursuant to this Agreement are sufficient to satisfy Defendants’ constitutional, statutory, regulatory, and/or administrative responsibilities.
32. Plaintiff will withdraw its Motion for Preliminary Injunction the same day that this Agreement is fully executed and filed with the Court.
33. Plaintiff is not prohibited from seeking injunctive relief in connection with issues at the Irwin and Stewart detention facilities. Plaintiff agrees that it will not seek any further injunctive relief in connection with any other issues at LaSalle within the scope of the abovereferenced action unless the Parties are unsuccessful in resolving the merits of the litigation.
34. This Agreement and any litigation proceedings taken pursuant to it: (a) Shall not be offered or received against any Party as evidence of, or construed as or deemed to be evidence of, any presumption, concession, admission, or stipulation by any of the Parties of the truth of any fact or the validity of any claim that had been or could have been asserted in the action or in any litigation, or the deficiency of any defense that has been or could have been asserted in the action, or any liability, negligence, fault, or wrongdoing of Defendants; or any admission by Defendants of any violations of, or failure to comply with, the Constitution, statutes, regulations, or PBNDS; and
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(b) Shall not be offered or received against Defendants as evidence of a presumption, concession, admission, or stipulation of any liability, negligence, fault, or wrongdoing as against the Parties to this Agreement, in any other civil, criminal, or administrative action or proceeding, other than in proceedings to enforce this Agreement or to assert a violation of, or non-compliance with, the terms of this Agreement. F. ATTORNEYS’ FEES AND COSTS
35. Plaintiff will not seek attorneys’ fees or costs for time spent preparing the Motion, the mediation pursuant to Dkt 38, or activities associated with the Motion. G. ADMISSION OF LIABILITY
36. This Agreement is a voluntary resolution of the Motion and does not constitute and will not be construed or interpreted as an admission of any wrongdoing or liability by any Party. H. FORCE MAJEURE DELAYS
37. Any Defendant(s) seeking to be excused from compliance with completion dates set forth in this Agreement due to the occurrence of a Force Majeure event must notify Plaintiff by email as soon as reasonably possible (but in all events no later than three business days) after the occurrence of the Force Majeure event, specifying the nature and extent of the Force Majeure event, the anticipated duration of such Party’s inability to fully perform hereunder as a result of such Force Majeure event, and the efforts such party is undertaking to mitigate the impact of the Force Majeure event. A Party whose performance hereunder is impacted by a Force Majeure event must undertake diligent efforts to minimize the impact of such Force Majeure event on its performance. Performance hereunder shall not be excused for delays to the extent they have occurred regardless of a Force Majeure event.
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I. MODIFICATION OF AGREEMENT 38. This Agreement constitutes the entire agreement among the Parties as to the
Motion, and supersedes all prior agreements, including, but not limited to, the Term Sheet, representations, warranties, statements, promises, covenants, and understandings, whether oral or written, express or implied, with respect to this Agreement.
39. This Agreement is an integrated agreement at the time of authorization and may not be altered, amended, waived, modified or otherwise changed in any respect except in writing duly executed by authorized representatives of each Party. J. JOINTLY PREPARED
40. This Agreement has been prepared jointly by the Parties with the advice of their attorneys. No ambiguity in the language of this Agreement shall be construed against any Party. K. MUTUAL EXCLUSIVITY OF PROVISIONS
41. If any provision of this Agreement is declared invalid, illegal, or unenforceable in any respect, the remaining portions therein shall remain in full force and effect, unaffected and unimpaired. M. GOVERNING LAW
42. This Agreement shall be governed by and construed in accordance with the laws of the District of Columbia. N. TITLES AND HEADINGS
43. Titles and headings to Articles and Sections herein are inserted for convenience and reference only, and are not intended to be part of, or to affect the application, interpretation, or meaning of, this Agreement.
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O. SUNSET PROVISION 44. This Agreement will remain in effect until the case is resolved on the merits,
including any appellate proceedings. P. COUNTERPARTS
45. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Q. MISCELLANEOUS PROVISIONS
46. The Parties and each of their undersigned representatives hereby warrant and represent that their respective undersigned representatives have full and complete authority to execute this Agreement on behalf of each Party signatory hereto and to bind each Party to the terms of this Agreement.
47. This Agreement shall be binding on all agents, assignees, employees, principals, successors, and those entities, including, but not limited to, Defendants and their Contractors and Plaintiff to the full extent authorized by law. Defendants are responsible for ensuring that its Contractors comply with the Agreement. R. EFFECTIVE DATE
48. This Agreement shall be effective upon execution by all Parties. The date the last Party executes the Agreement shall be deemed its effective date.
[Signatures begin on next page]
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Dated: September 5, 2018
By: /s/ Jamila Johnson Lisa Graybill* Jamila Johnson* Jared Davidson* Southern Poverty Law Center 201 St. Charles Avenue, Suite 2000 New Orleans, Louisiana 70170 Tel: (504) 486-8982 Lisa.Graybill@splcenter.org Jamila.Johnson@splcenter.org Jared.Davidson@splcenter.org
Natalie Lyons* Southern Poverty Law Center 150 E. Ponce de Leon Ave., Ste. 340 Decatur, GA 30030 Tel: (404) 521-6700 Natalie.Lyons@splcenter.org
Melissa Crow (DC Bar No. 453487) Southern Poverty Law Center 1666 Connecticut Avenue, NW Suite 100 Washington, DC 20009 Tel: (202) 355-4471 Melissa.Crow@splcenter.org
John T. Bergin (DC Bar No. 448975) Kilpatrick Townsend & Stockton LLP 607 14th Street NW, Suite 900 Washington, DC 20005 Tel: (202) 481-9943 JBergin@kilpatricktownsend.com

Respectfully submitted,
JESSIE K. LIU D.C. Bar 472845 United States Attorney
DANIEL F. VAN HORN D.C. Bar 924092 Chief, Civil Division
By: /s/ Daniel P. Schaefer DANIEL P. SCHAEFER D.C. Bar 996871 Assistant United States Attorney 555 4th Street, N.W. Washington, D.C. 20530 (202) 252-2531 Daniel.Schaefer@usdoj.gov
Counsel for Defendants

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William E. Dorris* Susan W. Pangborn* Jeffrey Fisher* Kilpatrick Townsend & Stockton LLP 1100 Peachtree Street NE, Suite 2800 Atlanta, GA 30309 Tel: (404) 815-6104 BDorris@kilpatricktownsend.com SPangborn@kilpatricktownsend.com JFisher@kilpatricktownsend.com Gia L. Cincone* Kilpatrick Townsend & Stockton LLP Two Embarcadero Center, Suite 1900 San Francisco, CA 94111 Tel: (415) 273-7571 GCincone@kilpatricktownsend.com Counsel for Plaintiff * Admitted Pro Hac Vice
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 Case 1:18-cv-00760-CKK Document 57 Filed 10/31/18 Page 1 of 80

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SOUTHERN POVERTY LAW CENTER, in its individual capacity and on behalf of its clients detained at LaSalle ICE Processing Center, Irwin County Detention Center, and Stewart Detention Center 400 Washington Ave. Montgomery, AL 36104;

Civil Action No. 1.18-cv-00760-CKK

Plaintiff,

v.

FIRST AMENDED COMPLAINT

U.S. DEPARTMENT OF HOMELAND SECURITY 3801 Nebraska Ave., NW Washington, DC 20016;

U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT 500 12th St., SW Washington, DC 20536;

KIRSTJEN NIELSEN, Secretary of Homeland Security, in official capacity 3801 Nebraska Ave., NW Washington, DC 20016;

RONALD D. VITIELLO,1 Deputy Director and Senior Official Performing the Duties of Director, U.S. Immigration and Customs Enforcement, in official capacity 500 12th St., SW Washington, DC 20536;

MATTHEW ALBENCE, Executive Associate Director, Enforcement & Removal Operations, and Senior Official Performing the Duties of the Deputy Director, ICE in official capacity

1 Under Federal Rule of Civil Procedure 25(d), Mr. Vitiello is substituted for Mr. Thomas Homan as a defendant.
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500 12th St., SW Washington, DC 20536;
NATHALIE R. ASHER, Acting Executive Associate Director, Enforcement and Removal Operations, in official capacity 500 12th St., SW Washington, DC 20536;
TAE JOHNSON, Assistant Director for Custody Management, Enforcement & Removal Operations, in official capacity 500 12th St., SW Washington, DC 20536;
CLAIRE TRICKLER-MCNULTY, Deputy to Assistant Director for Custody Management, Enforcement and Removal Operations, in official capacity 500 12th St., SW Washington, DC 20536;
DAVID JENNINGS Acting Assistant Director, Field Operations, Enforcement and Removal Operations, in official capacity 500 12th St., SW Washington, DC 20536;
DAVID RIVERA, Field Office Director, U.S. Immigration and Customs Enforcement, New Orleans Field Office, in official capacity 830 Pine Hill Road Jena, LA 71342;
SEAN GALLAGHER, Field Office Director, U.S. Immigration and Customs Enforcement, Atlanta Field Office, in official capacity 180 Ted Turner Dr., SW, Suite 522 Atlanta, GA 30303,
Defendants.
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TABLE OF CONTENTS INTRODUCTION..........................................................................................................................1 PARTIES ........................................................................................................................................5 JURISDICTION AND VENUE..................................................................................................10 STATEMENT OF FACTS..........................................................................................................10
I. The Government Has Exponentially Expanded The Scope Of Civil Immigrant Detention Despite The Availability Of Effective And Cost-Efficient Alternatives .....11 A. LaSalle ICE Processing Center ....................................................................................15 B. Irwin County Detention Center....................................................................................16 C. Stewart County Detention Center ................................................................................18
II. High Stakes and Low Representation Rates in Complex Immigration Proceedings Produce Poor Outcomes for Detained Immigrants .......................................................20 A. Immigration Law is Complex ......................................................................................20 B. Immigrants are Not Entitled to Appointed Counsel ....................................................22 C. Representation and Release from Detention via Parole or Bond Significantly Impact an Immigrant’s Chance of Success on the Merits of His or Her Case.........................23
III. SPLC Created the Southeast Immigrant Freedom Initiative to Address the Paucity of Representation for Immigrants Detained in the Rural South by Providing Competent, Ethical Pro Bono Counsel ............................................................................25
IV. The Totality of the Circumstances at Lasalle, Irwin and Stewart Violate Plaintiff’s Constitutional Rights ........................................................................................................30 A. The Totality of the Circumstances at LaSalle ICE Processing Center Violate Plaintiff’s Constitutional Rights ..................................................................................36 B. The Totality of the Circumstances at Irwin County Detention Center Violate Plaintiff’s Constitutional Rights ..................................................................................42 C. The Totality of the Circumstances at Stewart Detention Center Violate Plaintiff’s Constitutional Rights ...................................................................................................47
V. Defendants Are Responsible for the Violations of Plaintiff’s Constitutional Rights ..53 A. Defendants Direct, Manage and Control the U.S. Immigration Detention System .....53 B. Defendants Selected LaSalle, Stewart, and Irwin As Immigration Prisons.................55 C. Defendants Promulgated Performance-Based National Detention Standards to Govern Conditions of Confinement in Immigration Prisons ....................................................59 D. Defendants Fail to Monitor or Enforce Compliance with the PBNDS or Remediate Violations .....................................................................................................................62
FIRST CLAIM FOR RELIEF....................................................................................................68 SECOND CLAIM FOR RELIEF...............................................................................................69 THIRD CLAIM FOR RELIEF ..................................................................................................70
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Case 1:18-cv-00760-CKK Document 57 Filed 10/31/18 Page 4 of 80 FOURTH CLAIM FOR RELIEF ..............................................................................................71 FIFTH CLAIM FOR RELIEF ...................................................................................................71 SIXTH CLAIM FOR RELIEF ...................................................................................................72 PRAYER FOR RELIEF..............................................................................................................74
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INTRODUCTION 1. The United States currently detains hundreds of thousands of noncitizens in civil
immigration prisons each year. These detainees include both documented and undocumented
people. Many have been in the United States for years and have strong family and community ties.
Others have arrived more recently, frequently after fleeing persecution in their home countries.
The basis for detaining noncitizens in immigration prisons is civil, not criminal. Many of these
detained people have claims that would allow them to remain in the United States, and many also
have viable claims that they should be released on bond or parole pending completion of their
removal proceedings. Legal representation often ensures that such people are not unnecessarily
detained for long periods of time, and also frequently makes the difference between whether they
are allowed to remain safely in the United States or are permanently separated from family and
returned to danger or even death.
2. Noncitizen detainees represented by counsel are ten-and-a-half times more likely
to succeed in their cases, and almost seven times more likely to obtain bond, as compared to their
pro se counterparts. Individuals who are released from detention and are able to secure counsel are almost twenty times more likely to succeed in their cases than detainees without counsel.2
2 See Ingrid V. Eagly & Steven Shafer, A National Study of Access to Counsel in Immigration Court, 164 U. Pa. L. Rev. 1, 49, 70 (2015) [hereinafter Eagly & Shafer] (describing different outcomes for represented versus unrepresented noncitizens in removal proceedings between 2007 and 2012); see also Jennifer Stave et al., Vera Inst. of Justice, Evaluation of the New York Immigrant Family Unity Project: Assessing the Impact of Legal Representation on Family and Community Unity 60 (Nov. 2017), https://storage.googleapis.com/vera-webassets/downloads/Publications/new-york-immigrant-family-unity-projectevaluation/legacy_downloads/new-york-immigrant-family-unity-project-evaluation.pdf. (success rate for immigrant detainees with legal counsel 1,100 percent greater than for pro se detainees); Emily Ryo, Detained: A Study of Immigration Bond Hearings, 50 Law & Soc’y Rev. 117 (2016) (immigrant detainees’ chances of securing bond substantially higher when represented by counsel).
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3. The Fifth Amendment to the U.S. Constitution contemplates the crucial role of counsel in high-stakes court proceedings. Courts consistently interpret this amendment to afford people in removal proceedings the right to legal representation at their own expense at full and fair hearings. Yet this right is all but illusory for the thousands of people whom Defendants detain in isolated prisons in remote and rural parts of the United States.
4. For decades, the Department of Homeland Security, Immigration and Customs Enforcement, and their officials (“Defendants”) have deliberately detained people in secure, highly restrictive immigration prisons far away from legal resources. Consistent with this policy and practice, Defendants have contracted with local municipalities and private prison companies to detain noncitizens in some of the most rural and remote locales in the Southeast—far from major cities, law firms, nonprofit legal organizations, and professional interpretation services. Although the law prohibits Defendants from subjecting civil detainees to punitive incarceration, the conditions and restrictions within these immigration prisons are largely indistinguishable from— if not worse than—prisons and jails that hold criminal arrestees and people convicted of crimes.
5. Defendants’ imprisonment policies and practices have far-reaching and devastating consequences. Those ensnared by Defendants’ policies and practices often have strong ties to their communities, having lived in the United States for many years. Their families are torn apart often for years: parents are separated from their children and spouses from each other and other family members—all with enormous emotional distress. When a parent or other primary wage-earner is imprisoned for a long period of time, these families face immediate economic hardship as well.
6. Families face the additional burden of having to travel great distances to see their loved ones in remote immigration prisons. Many families cannot afford the cost, in terms of either time or dollars, that this travel requires and must forego any visits, putting further strain on the
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family. Employers and communities lose valuable contributors, often with no notice, creating further dislocation. And for those who have fled their home countries more recently due to persecution, their imprisonment in the United States simply continues a cycle of trauma they sought to escape. Without legal representation, the prospects for asserting their rights and reuniting with their families are dim.
7. And yet imprisoned in such isolated settings, people often find it impossible to secure counsel. Moreover, in the rare instances where people in these rural detention centers are able to retain counsel, Defendants’ policy and practice is to detain so many people in these prisons that the small number of attorney-visitation rooms makes attorney-client meetings extremely difficult—if not impossible.
8. Defendants’ policies and practices create and maintain substantial barriers that prevent meaningful access to and communication with attorneys. Defendants place people in civil detention in remote prisons where attorneys are forced to wait hours to meet with a single client, where access to critically needed interpreters is restricted, where contact visitation between attorneys and clients is categorically prohibited, where people are shackled during legal visits, and where their ability to speak remotely and confidentially with their attorneys via telephone is substantially impeded or functionally non-existent.
9. After placing people in these prisons, Defendants fail to adequately monitor their agents who operate them. Despite Defendants’ nondelegable constitutional duty to ensure adequate access to counsel and the courts, Defendants do little-to-nothing to prevent their agents from compounding the barriers between detainees and attorneys. Defendants are ultimately responsible for ensuring that conditions in these prisons comply with constitutional dictates; yet, due to Defendants’ abdication of their monitoring and oversight duties, the agents who operate the prisons
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enjoy virtual impunity for their obstructive conduct. For example, Defendants’ agents unjustifiably interrupt attorney-client visits, search attorneys’ legal files, deny attorney-client meetings during counts and shift changes, prevent attorneys from seeing their clients even when visitation rooms are available, frequently and arbitrarily change visitation rules, and listen in on attorney-client communications.
10. Attorneys and others providing assistance with legal representation also endure harassment for the “unpopular work” of representing these detainees. The tactics of Defendants and their agents include following legal representatives off detention center property, examining them on the side of the road, and accusing them of supporting “illegal immigration;” forcing them to remove undergarments before entering civil prisons; pressuring them to end attorney-client visits early; interrupting and interrogating them during client visits; and trapping them for hours in locked areas of the prisons.
11. Such policies and practices further interfere with detainees’ access to, and communication with, their attorneys and impede attorneys’ ability to provide effective, constitutionally guaranteed representation that comports with their ethical obligations.
12. Nationally, only 14 percent of detained noncitizens are represented in immigration removal proceedings—compared to 37 percent of all immigrants. Representation rates are even lower—in some cases, as low as six percent—for noncitizens held in some of the large, rural detention centers in the Southeast. The comparatively paltry representation rates in the Southeast flow directly from Defendants’ policies, practices, and omissions.
13. This lawsuit is brought by the Southern Poverty Law Center (“SPLC”) on behalf of itself and its clients detained in three immigration prisons in the Southeastern United States— LaSalle Detention Facility in Jena, Louisiana (also known as “LaSalle ICE Processing Center,”
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hereinafter “LaSalle”); Irwin County Detention Center in Ocilla, Georgia (“Irwin”), and Stewart Detention Center in Lumpkin, Georgia (“Stewart”). The totality of barriers to accessing and communicating with attorneys endured by detainees in these prisons deprives SPLC’ s clients of their constitutional rights to access courts, to access counsel, to obtain full and fair hearings and to substantive due process, in violation of the Due Process Clause of the Fifth Amendment. In addition, Defendants’ conduct violates the Administrative Procedure Act, as well as SPLC’s rights under the First Amendment to represent civil detainees.
PARTIES 14. Plaintiff Southern Poverty Law Center (“SPLC”) is a non-profit corporation based in Montgomery, Alabama, with offices in four other Southern states: Florida, Georgia, Louisiana, and Mississippi. SPLC is opening an office in Washington D.C. in the coming year and has already begun to staff it with undersigned counsel. 15. SPLC engages in litigation and advocacy to make equal justice and equal opportunity a reality for all, including the most vulnerable members of our society. Lawsuits brought by SPLC have challenged institutional racism and remnants of Jim Crow segregation; bankrupted white supremacist groups; and advocated for the civil rights of children, women, people with disabilities, immigrants and migrant workers, the LGBT community, prisoners, and many others who faced discrimination, abuse, and exploitation. Plaintiff SPLC also has a history of litigation and advocacy regarding the conditions of confinement for those in government custody, including immigration imprisonment. SPLC brings this litigation on behalf of itself and its clients detained at LaSalle, Irwin, and Stewart. 16. In 2017, SPLC launched the Southeast Immigrant Freedom Initiative (“SIFI”)—a legal representation project that aims to provide high-quality pro bono legal representation and to
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safeguard due process rights for the thousands of people held in civil prisons across the Southeast. At the expense of fully pursuing and fulfilling its institutional goals, SPLC has been forced to devote and redirect significant portions of its monetary and personnel resources to counteract the unlawful barriers to accessing and communicating with counsel that Defendants and their agents impose at LaSalle, Irwin, and Stewart.
17. The myriad barriers to meaningful representation endured by Plaintiff’s clients at LaSalle, Irwin, and Stewart, which are the basis for this constitutional challenge, not only undermine their chances of prevailing in removal proceedings but also make it virtually impossible for them to pursue litigation on their own behalf to protect their constitutional rights.
18. Any lawyers who tried to represent Plaintiff’s clients in civil litigation would encounter the same obstacles to access that SIFI staff and volunteers regularly encounter— including the inadequate number of attorney-visitation rooms, lack of contact visits, shackling, unavailability of interpreters, lack of access to video-teleconferencing (“VTC”) and telephones, lack of confidentiality, prohibition on electronic devices, and arbitrary changes in rules regarding attorney visitation. In fact, detained immigrants’ communications with counsel to remediate access barriers would have the perverse consequence of exacerbating these very barriers due to the scarcity of attorney-client visitation rooms and confidential telephone lines.
19. Further, given that most of SPLC’s detained clients have limited knowledge of the U.S. legal system and lack proficiency in English, the likelihood that they could undertake pro se litigation is virtually nil. Even if legal representation were available, many would be deterred from pursuing constitutional litigation due to a fear of retaliation by Defendants and their agents that could adversely impact their immigration cases. This is especially true in light of the intimidating conduct of Defendants’ agents detailed herein. Likewise, communicating with attorneys to pursue
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civil remedies to vindicate their rights to access counsel and the courts would further limit the insufficient time that detainees have to seek and consult with counsel regarding their removal proceedings, thereby further disincentivizing their pursuit of civil remedies.
20. Given that Plaintiff’s detained clients are substantially hindered from protecting their own rights, Plaintiff has third-party standing to bring this action based on its role in providing noncitizen detainees with legal services and their ability to properly and zealously frame the issues.
21. Defendant U.S. Department of Homeland Security (“DHS”) is a federal executive agency responsible for, among other things, enforcing federal immigration laws and overseeing lawful immigration to the United States.
22. Defendant U.S. Immigration and Customs Enforcement (“ICE”) is a component of DHS. As the principal investigative arm of DHS, ICE is charged with enforcement of immigration laws. ICE’s primary duties include the investigation of persons suspected to have violated immigration laws, and the apprehension, detention, and removal of noncitizens who are unlawfully present in the United States.
23. Defendant Kirstjen Nielsen is the Secretary of DHS. Nielsen is charged with enforcing and administering immigration laws. She oversees each of the component agencies within DHS, including ICE, and has ultimate authority over all policies, procedures, and practices relating to ICE detention facilities. She is responsible for ensuring that all individuals held in ICE custody are detained in accordance with the Constitution and all relevant laws. Defendant Nielson is sued in her official capacity.
24. Defendant Ronald D. Vitiello is the Senior Official Performing the Duties of Director of ICE. Vitiello oversees the enforcement of the nation’s immigration laws and the operation of the government’s immigration detention system. To that end, he directs the
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administration of ICE’s detention policies, procedures, and operations, including those regarding the detention of noncitizens at LaSalle, Irwin, and Stewart. He is also responsible for ensuring that all individuals held in ICE custody are detained in accordance with the Constitution and all other relevant laws. Defendant Vitiello is sued in his official capacity.
25. Defendant Matthew Albence is the Executive Associate Director of ICE’s Enforcement and Removal Operations (“ERO”) and the Senior Official Performing the Duties of the Deputy Director of ICE. ERO enforces the nation’s immigration laws, identifies and apprehends removable noncitizens, and detains and removes these individuals from the United States when necessary. ERO transports removable noncitizens from point to point, manages noncitizens in custody or in an “alternative to detention” program, provides access to legal resources (such as law textbooks, cases, and statutes) and representatives of advocacy groups, and removes individuals from the United States who have been ordered deported. Defendant Albence is sued in his official capacity.
26. Defendant Nathalie R. Asher is the Acting Executive Associate Director, Enforcement and Removal Operations. Under the supervision of Defendant Albence, she oversees ERO’s enforcement of the nation’s immigration laws, identifies and apprehends removable noncitizens, and detains and removes these individuals from the United States when necessary.
27. Defendant David Jennings is the Acting Assistant Director, Field Operations for Enforcement and Removal Operations. Jennings oversees 24 field office directors nationwide. He has authority over the implementation of any remedy provided by the court and is in an immediate supervisory position to oversee compliance. Defendant Jennings is sued in his official capacity.
28. Defendant Tae Johnson is the Assistant Director for Custody Management, Enforcement and Removal Operations. In this capacity, Johnson is responsible for policy and
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oversight of the administrative custody of noncitizen detainees and oversees detention operations, including those at local prisons operating under intergovernmental service agreements and contract detention facilities. Defendant Johnson is sued in his official capacity.
29. Defendant Claire Trickler-McNulty is a Deputy to Defendant Tae Johnson, and was previously the Acting Director of ICE’s Office of Detention Policy and Planning (“ODPP”). In that capacity, Trickler-McNulty oversaw ICE’s efforts to improve the current immigration detention system, working extensively with both internal and external stakeholders. Upon information and belief, the ODPP was eliminated and its employees and responsibilities were distributed within ICE. Defendant Trickler-McNulty is sued in her official capacity.
30. Defendant Sean Gallagher is the Field Office Director for the ICE Atlanta Field Office. Gallagher has day-to-day responsibility for implementation of DHS and ICE policies, procedures, and practices relating to the detention of immigrants in Georgia, South Carolina, and North Carolina. He is responsible for implementation of DHS and ICE policies and procedures that ensure that all individuals held in ICE custody in detention centers in these states are detained in accordance with the Constitution and all relevant laws. Defendant Gallagher is sued in his official capacity related to Irwin and Stewart.
31. Defendant David Rivera is the Field Office Director for the ICE New Orleans Field Office. Rivera has day-to-day responsibility for implementation of DHS and ICE policies, procedures, and practices relating to the detention of immigrants in Louisiana, Alabama, Arkansas, Mississippi, and Tennessee. He is responsible for implementation of DHS and ICE policies and procedures that ensure that all individuals held in ICE custody in detention centers in these states are detained in accordance with the Constitution and all relevant laws. Defendant Rivera is sued in his official capacity related to LaSalle.
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JURISDICTION AND VENUE 32. This Court has subject matter jurisdiction under 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 1346 (United States as defendant). Defendants have waived sovereign immunity for purposes of this suit. 5 U.S.C. §§ 702, 706. 33. This Court has jurisdiction to enter declaratory and injunctive relief to recognize and remedy the underlying constitutional violations under 28 U.S.C. §§ 2201 and 2202 (declaratory relief), and 28 U.S.C. § 1651 (writs). 34. Personal jurisdiction and venue is proper pursuant to 28 U.S.C. § 1391(e) because one or more defendants reside in the District of Columbia, and Defendants DHS and ICE are headquartered in this District. Starnes v. McGuire, 512 F.2d 918, 925-26 (D.C. Cir. 1974) (where defendant federal officers are located “within the District of Columbia for purposes of personal jurisdiction, venue is properly laid”).
STATEMENT OF FACTS 35. The United States is the world’s leading incarcerator with over two million people in prisons and jails across the country. But not all of the United States’ incarceration stems from our criminal justice system; the United States also maintains the world’s largest immigration detention system. 36. Immigrants held in detention are not criminal detainees, but rather civil detainees who are awaiting adjudication of their immigration cases and are held pursuant to civil immigration laws. Federal custodians are, therefore, prohibited from subjecting detained immigrants to treatment that amounts to punishment.
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I. THE GOVERNMENT HAS EXPONENTIALLY EXPANDED THE SCOPE OF CIVIL IMMIGRANT DETENTION DESPITE THE AVAILABILITY OF EFFECTIVE AND COST-EFFICIENT ALTERNATIVES 37. Notwithstanding that immigrants are held under civil authority that encourages
release,3 the civil incarceration of immigrants in America has followed a trajectory similar to criminal detention. In the 1980s and 1990s—as America’s prison boom accelerated—mass civil detention of immigrants emerged.
38. In 1994, the U.S. government detained 6,000 noncitizens per day. By 2005, that number had grown to 20,000. Today, the government detains over 38,000 immigrants per day, or over 350,000 people each year. Defendants project that the number will increase to over 51,000 civil immigrant detainees per day in fiscal year 2018.
This graph tracks the average daily population of noncitizens held in immigration detention from FY 1994-2017.4
3 See Matter of De La Cruz, 20 I& N Dec. 346, 349 (BIA 1991) (immigrant in removal proceedings “generally should not be detained or required to post bond pending a determination of deportability except on a finding that he is a threat to the national security or is a poor bail risk”) (citing Matter of Patel, 15 I&N Dec. 666 (BIA 1976)). 4 Chad C. Haddal & Alison Siskin, Cong. Research Serv., Immigration-Related Detention: Current Legislative Issues 12 (Jan. 27, 2010),
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39. The origin of this aggressive civil detention expansion is linked to the United States’ enactment of two laws in 1996—the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigrant Reform and Immigrant Responsibility Act (IIRIRA). These laws expanded mandatory detention and also rendered any non-U.S. citizen, including legal permanent residents who committed certain offenses, vulnerable to detention and deportation.
40. In cases where detention is not legally required, ICE has discretion to determine whether noncitizens should be released on bond, parole, recognizance, or subject to other conditions.5 For most people held in immigration prisons, there is no law requiring that they be imprisoned before their hearings. ICE chooses whether and where to imprison them.
41. Multiple alternatives to detention exist, and ICE’s use of certain types of alternatives to detention has resulted in high rates of appearance at court proceedings—the purpose that initially drove the creation of the immigration detention system—and substantially reduced costs. Notwithstanding the availability and documented efficacy of these alternatives, ICE has significantly expanded the use of civil immigrant detention in the last decade.
42. In 2009, as part its appropriations for DHS, Congress mandated that ICE “maintain” at least 33,400 detention beds in immigration prisons across the country. ICE has construed this
https://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1712&context=key_workplac e (data for FY 1994-2010); Alison Siskin, Cong. Research Serv., Immigration-Related Detention: Current Legislative Issues 13 (Jan. 1, 2012), https://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&htt psredir=1&article=1887&context=key_workplace (data for FY 2010-2012); U.S. Dep’t of Homeland Sec., U.S. Immigration and Customs Enforcement - Budget Overview (2018), https://www.dhs.gov/sites/default/files/publications/CFO/17_0524_U.S._Immigration_and_Cust oms_Enforcement.pdf. 14 (data for FYI 2013-2016); Laura Wamsley, As It Makes More Arrests, ICE Looks For More Detention Centers, Nat’l Pub. Radio (Oct. 26, 2017), https://www.npr.org/sections/thetwo-way/2017/10/26/560257834/as-it-makes-more-arrests-icelooks-for-more-detention-centers (data for FY 2017). 5 See 8 C.F.R. §§ 236.1(c), 1236.1(c).
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language to mandate that it will fill every one of the detention beds it “maintains,” such that this
so-called “bed mandate” or “bed quota” is used to justify enforcement actions against individuals
whose detention can help keep those beds full. The number of beds included in the mandate has
steadily increased since its inception.
43. In Fiscal Year 2018, Defendant ICE estimates the cost for one adult immigration bed will be $133.99 per day.6 ICE also runs an Alternatives to Detention (“ATD”) Program.
Under one of ATD’s costlier programs, the Intensive Supervision Appearance Program, ICE spends no more than an average of $4.50 a day per participant.7 A recent GAO review of the
ATD program found that, of those immigrants participating in the “Full-Service” component of
ATD, “over 99 percent of [immigrants] with a scheduled court hearing appeared at their
scheduled court hearings. . . with the appearance rate dropping slightly to over 95 percent of [immigrants] with a scheduled final hearing appearing at their final removal hearing[.]” 8
44. Defendants detain immigrants who are in removal proceedings in over 200
immigration prisons across the country. Many of these prisons were designed to incarcerate
individuals charged with or sentenced for violating criminal law, but actually incarcerate both
6 U.S. Dep’t of Homeland Sec., U.S. Immigration and Customs Enforcement - Budget Overview 14 (2018), https://www.dhs.gov/sites/default/files/publications/ICE%20FY18%20Budget.pdf; see also U.S. Gov’t Accountability Office, Immigration Detention, Opportunities Exist to Improve Cost Estimates 12 n.19 (Apr. 2018), https://www.gao.gov/assets/700/691330.pdf. (“ICE’s fiscal year 2018 budget request for adult beds was $2,390,489,000. The correct calculation to fund adult beds is 48,879 x $133.99 x 365 = $2,390,493,000, which is slightly more than what ICE requested.”). 7 U.S. Dep’t of Homeland Sec., U.S. Immigration and Customs Enforcement - Budget Overview 179–80 (2018), https://www.dhs.gov/sites/default/files/publications/ICE%20FY18%20Budget.pdf. 8 U.S. Gov’t Accountability Office, Alternatives to Detention 30 (Nov. 2014), https://www.gao.gov/assets/670/666911.pdf.
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civilly detained immigrants and individuals incarcerated pursuant to criminal proceedings. In many instances, the conditions civilly detained immigrants experience do not differ from those who are incarcerated related to criminal proceedings, and in some instances, they are worse.
45. ICE itself has recognized that there are “important distinctions between the characteristics of the Immigration Detention population in ICE custody and the administrative purpose of the detention . . . as compared to the punitive purpose of the Criminal Incarceration system.”9 Yet, as Defendants themselves have previously recognized, immigrant detainees and criminal detainees “are typically managed in similar ways . . . in secure facilities with hardened perimeters in remote locations at considerable distances from counsel and/or their communities.”10
46. In January 2017, the Trump Administration took office armed with an aggressive immigration enforcement agenda, and civil arrests on immigration charges increased by 38 percent within its first four months. By October 2017, ICE was eyeing locations for five new detention centers that could house thousands more detainees, while the number of immigration arrests continued to increase.
47. Detained people may languish in ICE’s prisons for years before their removal proceedings are completed. Accessing and retaining an attorney substantially increases the odds that an immigrant detainee will be released on bond or parole and therefore avoid such prolonged detention.
48. Defendants’ policies, procedures, and practices of placing detainees in three remote prisons that create structural and operational barriers to detainees’ access to courts and counsel,
9 Dora Schriro, U.S. Immigration and Customs Enforcement, Immigration Detention Overview and Recommendations 2 (Oct. 2009), https://www.ice.gov/doclib/about/offices/odpp/pdf/icedetention-rpt.pdf. 10 See id. at 4.
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then failing to monitor or remediate the resulting constitutional violations, form the core of this complaint. These three detention centers are the LaSalle ICE Processing Center, the Irwin County Detention Center, and the Stewart Detention Center.
A. LaSalle ICE Processing Center 49. LaSalle is located in Jena, Louisiana, a city of 3,435 residents, including the noncitizens detained there. LaSalle is approximately 220 miles—a nearly four-hour drive—from New Orleans. There were no immigration attorney offices in the vicinity of Jena, Louisiana, until SPLC launched SIFI in September 2017. 50. LaSalle has capacity to hold 1,200 detainees. For context, that is one-third of the town of Jena’s population. 51. Immigrant detention is the latest use of the facility, which originally opened in 1998 as the Jena Juvenile Corrections Facility. Advocacy groups reported significant civil and human rights abuses there; the United States Department of Justice announced an investigation; and the prison was closed three years later after being deemed unfit for use. 52. In 2005, the prison was repurposed to hold prisoners evacuated from New Orleans in the aftermath of Hurricane Katrina. The prison was closed down again after multiple reports of inhumane treatment at the facility. 53. In 2007, ICE selected LaSalle for a contact to hold federal immigration detainees, and it opened its doors as an immigration prison shortly thereafter.
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54. The transition to immigration imprisonment did not save the facility from its notorious reputation—LaSalle has had the highest number of deaths of any immigration prison in the United States over the last two years.11
55. Defendants’ policies, procedures, and practices govern the selection of the LaSalle ICE Processing Center as an immigration prison and the terms of the contracts pursuant to which it operates; the placement of ICE detainees at that prison and which detainees are selected for placement there; the conditions of confinement that they endure; and, for many of them, whether and under what circumstances they are released.
56. Detainees at the LaSalle are there pursuant to ICE’s custodial authority over them as federal detainees.
57. Defendants are ultimately responsible for ensuring that the conditions at LaSalle comply with constitutional and other legal requirements, including ensuring that detainees have meaningful access to legal representation. Defendants have utterly failed in that regard. Defendants are derelict in their duty because they have failed to remediate the substantial barriers that impede LaSalle detainees’ access to counsel.
B. Irwin County Detention Center 58. Irwin is located in Ocilla, Georgia—a city of 3,604 residents that is 185 miles from Atlanta. The drive from Atlanta takes approximately three hours each way. Today, the immigration prison is the second largest employer in Irwin County. 59. The Irwin County Detention Center was previously operated variously as a boot camp for youth, a holding facility for U.S. Marshals Service detainees, and a jail for neighboring
11 Oliver Laughland, Inside Trump’s Secretive Immigration Court: Far From Scrutiny and Legal Aid, The Guardian (June 7, 2017), https://www.theguardian.com/us-news/2017/jun/07/donaldtrump-immigration-court-deportation-lasalle.
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counties whose jails were full. It was significantly expanded in 2007 and now has the capacity to incarcerate approximately 1,200 people.
60. In 2009, with the county deeply in debt over the expansion, Georgia’s federal legislators sought federal detainees to populate the facility. According to an investigative article published in The Nation about the decision to place immigrant detainees at Irwin, “Initially, ICE officials seemed reluctant. E-mails obtained through open records requests showed they were concerned about the detention center’s distance from legal services and ICE staff.”12 Nonetheless, ICE contracted for the housing of federal immigration detainees at Irwin and began placing them there in late 2010.
61. Irwin typically detains around 700 noncitizens. The detainees at Irwin are transported there despite its remote and inconvenient location far from ICE’s administrative offices, the vast majority of immigration lawyers, and the immigration courts in Atlanta that adjudicate the cases of many Irwin detainees. In addition to people in removal proceedings, Irwin also detains individuals charged with criminal violations of federal law under the supervision of the U.S. Marshals Service and a minimal number of county detainees who have been charged with violations of state criminal law.
62. Defendants’ policies, procedures, and practices govern the selection of the Irwin County Detention Center as an immigration prison and the terms of the contracts pursuant to which it operates; the placement of ICE detainees at that prison and which detainees are selected for placement there; the conditions of confinement that they endure; and, for many of them, whether and under what circumstances they are released.
12 Hannah Rappleye & Lisa Riordan Seville, How One Georgia Town Gambled its Future on Immigrant Detention, The Nation (Apr. 10, 2012), https://www.thenation.com/article/how-onegeorgia-town-gambled-its-future-immigration-detention.
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63. Detainees at the Irwin County Detention Center are there pursuant to ICE’s custodial authority over them as federal detainees.
64. Defendants are ultimately responsible for ensuring that the conditions at Irwin comply with constitutional and other legal requirements, including ensuring that detainees have meaningful access to legal representation. Defendants have utterly failed in that regard. Defendants are derelict in that duty because they have failed to remediate the substantial barriers that impede Irwin detainees’ access to counsel.
C. Stewart County Detention Center 65. Stewart is located in Lumpkin, Georgia. Lumpkin is a small town of approximately 1,091 residents and is approximately 140 miles from Atlanta—a drive of two and a half hours. Stewart County itself is one of Georgia’s least populous counties, with fewer than 6,000 residents, of whom approximately 25 percent are people held at the detention center. Lumpkin has very few businesses, no grocery store and no library. The detention center is the town’s primary employer. 66. Stewart County constructed the facility in 2004. In 2006, Defendant ICE entered into a contractual arrangement whereby the facility would serve as an immigration detention center. 67. Stewart is one of the largest detention facilities in the country, with the capacity to hold nearly 2,000 men. In December 2017, the Department of Homeland Security’s Office of Inspector General (“OIG”) released a report entitled “Concerns about ICE Detainee Treatment and Care at Detention Facilities” that documented the results of unannounced inspections at six detention facilities, one of which was Stewart. Among other things, the OIG reported that staff at Stewart misclassified detainees upon intake; that there was an insufficiently documented grievance system; that the number to the OIG hotline was restricted; and that staff were violating procedures
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for the administration, justification, and documentation of segregation and lock-down of detainees. ICE concurred in the OIG’s recommendations that the Acting Director of ICE should ensure that ERO field offices develop a process for conducting specific reviews of the areas where deficiencies were found, and that deficiency and corrective action should be reported to ERO headquarters to ensure deficiencies are corrected.
68. Defendants’ policies, procedures, and practices govern the selection of the Stewart Detention Center as an immigration prison and the terms of contracts pursuant to which it operates; the placement of ICE detainees at that prison and which detainees are selected for placement there; the conditions of confinement that they endure; and, for many of them, whether and under what circumstances they are released.
69. Detainees at the Stewart Detention Center are there pursuant to ICE’s custodial authority over them as federal detainees.
70. Defendants are ultimately responsible for ensuring that the conditions at Stewart comply with constitutional and other legal requirements, including ensuring that detainees have meaningful access to legal representation.
71. Defendants have utterly failed in that regard. Since SIFI launched at Stewart in April 2017, the conditions, policies, and practices at the facility have routinely prevented detainees from accessing their attorneys and have impeded attorneys’ ability to meaningfully represent detained immigrants at Stewart.
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II. HIGH STAKES AND LOW REPRESENTATION RATES IN COMPLEX IMMIGRATION PROCEEDINGS PRODUCE POOR OUTCOMES FOR DETAINED IMMIGRANTS
A. Immigration Law is Complex
72. Immigration is complex and highly technical.13 Multiple federal courts have
observed that the immigration laws rival the tax laws in their complexity.14
73. The Supreme Court has consistently reaffirmed the “purely civil” nature of
immigration proceedings.15
74. Civil immigration proceedings pit the government against the noncitizen in an
adversarial process where each side is presumed to have the ability to represent its own interests.
A DHS attorney—called the trial attorney—trained in substantive immigration law and
immigration court procedures represents the government. This attorney acts as a prosecutor, and
seeks to establish the noncitizen’s removability.
75. Respondents—who bear the burden of proof to establish that they are statutorily
entitled to immigration relief and, in many cases, merit a favorable exercise of discretion—must
13 See Drax v. Reno, 338 F.3d 98, 99 (2d Cir. 2003) (referencing the “labyrinthine character of modern immigration law—a maze of hyper-technical statutes and regulations that engender waste, delay, and confusion for the Government and petitioners alike”); Baltazar-Alcazar v. INS, 386 F.3d 940, 947-48 (9th Cir. 2004) (“A petitioner must weave together a complex tapestry of evidence and then juxtapose and reconcile that picture with the voluminous, and not always consistent, administrative and court precedent in this changing area.”); United States v. AguirreTello, 324 F.3d 1181, 1187 (10th Cir. 2003) (“The district judge observed that immigration law is technical and complex to the point that it is confusing to lawyers, much less to laymen.”), vacated, 324 F.3d 1181 (en banc); Lok v. INS, 548 F.2d 37, 38 (2d Cir. 1977) (Immigration laws bear a “striking resemblance …[to] King Minos’s labyrinth in ancient Crete. The Tax Laws and the Immigration and Nationality Acts are examples we have cited of Congress’s ingenuity in passing statutes certain to accelerate the aging process of judges”). 14 See, e.g., Castro-O’Ryan v. INS, 847 F.2d 1307, 1312 (9th Cir. 1987) (“With only a small degree of hyperbole, the immigration laws have been termed ‘second only to the Internal Revenue Code in complexity.’”) (internal quotation and citation omitted). 15 See, e.g., INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984); see also Fong Yue Ting v. United States, 149 U.S. 698, 728-29 (1893); Li Sing v. United States, 180 U.S. 486, 494 (1901); Harisiades v. Shaughnessy, 342 U.S. 580 594 (1952).
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admit or deny allegations, compile voluminous evidence, and articulate sophisticated legal arguments. The opportunity for federal court review of removal orders is relatively limited because immigration judges’ factual findings receive deference unless they are clearly erroneous.
76. Although the government has the burden of proof, the respondent may concede the allegations against him at the initial master calendar hearing. If that happens, the immigration judge may find that the government has established the respondent’s removability, even in the absence of other evidence. Without meaningful representation, the respondent may forego the opportunity to contest the charges against him, identify potential avenues of relief, marshal the facts and law necessary to establish his eligibility, or follow the requisite procedures to apply for relief from removal.
77. Additional challenges for the unrepresented lurk at every turn. For instance, applications for relief are in English and must be completed in English. If a pro se individual writes an application in a language other than English, the applications are deemed abandoned and the respondents are ordered removed. Moreover, an applicant seeking asylum or withholding of removal based on membership in a particular social group must clearly indicate on the record before the Immigration Judge the exact delineation of any proposed particular social group. Precise delineation is absolutely critical as it becomes the basis for the court’s case-specific analysis to determine whether the proposed social group is immutable, “particular,” and socially distinct in the country from which the respondent fled. Such a hurdle is almost impossible for a detained individual, without counsel, to overcome and obtain appropriate documentation to substantiate.
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78. Acknowledging the complexity of the immigration laws, the Office of the Chief Immigration Judge “recommends that those [respondents] who can obtain qualified professional representation do so.”16
79. Despite the hyper-technical nature of immigration law and the inherent imbalance of power between the government and the respondent, the immigration removal process lacks most of the basic procedural safeguards enshrined in the U.S. criminal justice system. Noncitizens in civil immigration proceedings have no right to government-appointed counsel or a speedy trial. Immigration judges may apply harsh immigration laws retroactively, allow the government to prove its case using unlawfully obtained evidence, and exercise an inordinate amount of discretion. Moreover, immigration proceedings are not governed by the Federal Rules of Evidence.
80. The potentially life-altering consequences of removal proceedings, which “may result in the loss of all that makes life worth living,”17 makes the lack of more checks and balances particularly inexcusable.18
B. Immigrants are Not Entitled to Appointed Counsel 81. Because immigration proceedings are civil, not criminal, in nature, the Sixth Amendment does not guarantee a lawyer to immigrants in removal proceedings.
16 U.S. Dep’t of Justice, Executive Office for Immigration Review, Immigration Court Practice Manual 19 (Aug. 2, 2018), https://www.justice.gov/eoir/page/file/1084851/download. 17 Bridges v. Wixon, 326 U.S. 135, 147 (1945) (internal quotations omitted). 18 For more information on the differences between the U.S. immigration system and the U.S. criminal justice system, see Am. Immigration Council, Two Systems of Justice: How the Immigration System Falls Short of American Ideals of Justice (Mar. 2013), https://www.americanimmigrationcouncil.org/sites/default/files/research/aic_twosystemsofjustic e.pdf.
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82. However, the Due Process Clause of the Fifth Amendment “indisputably affords an [noncitizen] the right to counsel of his or her own choice at his or her own expense.”19 This right to counsel is “fundamental,” and courts consistently “have warned [the government] not to treat it casually.”20 The right “must be respected in substance as well as in name.”21
83. “Th[is] right to counsel is a particularly important procedural safeguard because of the grave consequences of removal . . . [which] ‘visits a great hardship on the individual and deprives him of the right to stay and work in this land of freedom.’”22
C. Representation and Release from Detention via Parole or Bond Significantly Impact an Immigrant’s Chance of Success on the Merits of His or Her Case
84. Release from prison greatly enhances an individual’s chances of prevailing in immigration court. In addition to restoring physical liberty, release facilitates a person’s ability to retain and meaningfully engage with counsel. In fact, non-detained immigrants are five times more likely to obtain counsel than those who are detained.23 Further, non-detained immigrants have a substantially greater ability to access translation and interpretation services, to gather evidence for their cases, and to derive support from family and friends throughout the process.
85. With the exception of certain individuals subject to mandatory detention, the Immigration and Nationality Act permits the release of noncitizens on their own recognizance or on bond.24
19 Leslie v. Att’y Gen. of United States, 611 F.3d 171, 181 (3d Cir. 2010). 20 Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 554 (9th Cir. 1990). 21 Baires v. INS, 856 F.2d 89, 91 n.2 (9th Cir. 1988). 22 Leslie, 611 F.3d at 181 (quoting Bridges, 326 U.S. at 154). 23 Eagly & Shafer, supra note 2, 32. 24 8 U.S.C. § 1226(a)(2)(A).
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86. Following the arrest of a noncitizen, DHS makes an initial custody determination regarding whether the individual should be released on bond, recognizance, or subject to other conditions.25 DHS may also determine that an individual is subject to mandatory detention and thus ineligible for release, or exercise its discretion to deny release.26
87. A detained individual is generally entitled to seek review of ICE’s initial custody determination before an immigration judge at a hearing commonly termed a “bond hearing.”27 Even in cases where ICE has concluded that an individual is ineligible for bond, the detained individual may request a bond hearing to challenge that finding.
88. At the bond hearing, the immigration judge determines whether the individual can be released on bond, recognizance, or subject to other conditions.28 The detained individual bears the burden of proving that he does not pose a danger to persons or property; is not likely to abscond before his hearing; and does not threaten national security.29 Detained noncitizens are approximately seven times more likely to be released on bond when represented.30
89. The immigration judge has complete discretion to grant or deny release.31 A request to reconsider a decision regarding custody status or bond may be allowed only if “circumstances have changed materially since the prior bond determination.”32
25 See 8 C.F.R. §§ 236.1(c), 1236.1(c). 26 See id. 27 See 8 C.F.R. §§ 1003.19(a), (h)(2)(i). 28 See 8 C.F.R. §§ 1236.1(d)(1), 1003.19. 29 8 C.F.R. § 1236.1(c)(8); Matter of Guerra, 24 I&N Dec. 37 (BIA 2006). 30 See Eagly & Shafer, supra note 2, 70. 31 8 U.S.C. § 1226(e). 32 8 C.F.R. § 1003.19(e).
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90. Both the detained individual and ICE can appeal the immigration judge’s bond decision to the Board of Immigration Appeals within 30 days.33
91. The importance of release on bond or parole is born out in immigration court outcomes. Whereas just two percent of detained pro se immigrants obtain successful outcomes in their removal proceedings, that number jumps to seven percent of pro se immigrants who were released from custody and 17 percent of pro se immigrants who were never detained.34 The numbers grow exponentially for those who have counsel: represented immigrants who are released from custody have a 39 percent success rate, and those with counsel who were never detained have a 60 percent success rate.35 This compares to a 21 percent chance of success for represented immigrants who remain in detention throughout their proceedings.36 III. SPLC CREATED THE SOUTHEAST IMMIGRANT FREEDOM INITIATIVE TO
ADDRESS THE PAUCITY OF REPRESENTATION FOR IMMIGRANTS DETAINED IN THE RURAL SOUTH BY PROVIDING COMPETENT, ETHICAL PRO BONO COUNSEL 92. In 2017, Plaintiff launched SIFI to provide desperately needed legal representation to indigent immigrants detained in remote locations in the Southeast, where attorneys are scarce and immigration attorneys even more so. SPLC seeks to fulfill this mission by providing direct representation to detained immigrants in bond proceedings, training pro bono attorneys to provide effective representation to indigent detainees in their bond proceedings, and facilitating representation in merits hearings for people who would otherwise have no legal recourse.
33 8 C.F.R. §§ 236.1(d)(3)(i), 1003.19(f), 1003.38. 34 Eagly & Shafer, supra note 2, 49-50. 35 Id. 36 Id.
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93. SIFI launched at Stewart in April 2017, at Irwin in August 2017, and at LaSalle in September 2017. SIFI is on the referral list of the Legal Orientation Program, which identifies potential pro bono legal resources for detainees, at LaSalle, Irwin and Stewart.
94. As of October 2018, SPLC and its volunteers had communicated with 1,360 detainees since launching at these locations. The SIFI project currently represents 49 people at the three prisons at issue in this litigation.
95. SPLC employs on-the-ground SIFI staff, including immigration attorneys and advocates whose offices are near the three prisons. In addition, SIFI relies on volunteer pro bono attorneys from across the United States who travel to the prisons for week-long rotations in order to meet with potential clients, conduct interviews, gather evidence, draft legal documents, and assist clients in obtaining release on bond or parole. Since SIFI’s inception, volunteer attorneys have traveled from Seattle, New York, Chicago, San Francisco, and Washington, D.C., among other cities.
96. SPLC’s advocacy, however, is not limited to SIFI’s on-the-ground activities at the detention centers and local immigration courts. In addition, SIFI recruits pro bono attorneys from across the country to represent detainees in the merits phases of their cases, and SIFI staff provide supervision and technical support for all of these cases.
97. Through SIFI, Plaintiff endeavors to provide effective and ethical removal defense to all their detained clients. To do so, SIFI staff and volunteers—like all immigration practitioners—require the ability to meaningfully, reliably, and confidentially communicate with their detained clients.
98. The American Bar Association’s Model Rules of Professional Conduct for attorneys include rules regarding client communication (Rule 1.4) and confidentiality (Rule 1.6).
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Rule 1.4 provides, inter alia, that a lawyer must reasonably consult with the client about the means by which the client’s objectives are to be accomplished; keep the client reasonably informed about the status of the matter; and explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Rule 1.6 provides, inter alia, that a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent; the disclosure is impliedly authorized in order to carry out the representation; or the disclosure is subject to one of a few limited exceptions.
99. Many detained immigrants do not speak English. ICE’s own Performance Based National Detention Standards (“PBNDS”) require immigration prisons to ensure that detainees who are limited English proficient (“LEP”) have access to bilingual staff and/or professional interpretation services to provide them with meaningful access to the prison’s programs and services.37
100. In this context of immigration representation, effective communication often necessitates access to interpretation services in order for the attorney and client to understand one another. An English-speaking attorney who cannot speak Portuguese and a Portuguese-speaking client who cannot speak English would be hard-pressed to exchange the simplest of greetings, much less discuss the complex reasons why the client was forced to flee Brazil.
101. Interpreters are therefore crucial not only for communicating with a client but also for gathering the information that is necessary to defend against removal.
102. Effective communication in this context also requires conditions conducive to establishing a client’s trust, which may be essential to obtain critical evidence. Many detained
37 U.S. Immigration and Customs Enforcement, Performance Based National Detention Standards 2.4(II)(9) (Dec. 2016), https://www.ice.gov/doclib/detention-standards/2011/2-4.pdf.
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immigrants have fled torture or other types of persecution, and they continue to suffer acute trauma while in detention, as detention exacerbates existing trauma and may cause new trauma. Although recounting their painful experiences is crucial for building a defense to removal, detained clients are routinely traumatized again in the process of recounting their experiences. Confidential contact visits between attorney and client provide the best mechanism for putting the client sufficiently at ease to share her experiences and assist in preparing a defense to removal.
103. Reliable communication between attorney and client is also a critical component of removal defense. When attorneys are subject to long waits to see detained clients, their representation of those clients and others are detrimentally impacted. Visits may be cut short due to time constraints or, worse, attorneys may be deterred from visiting detained clients at all.
104. Long amounts of time spent in a waiting room is time that cannot be spent conducting legal research, gathering evidence, drafting legal documents, or meeting with other clients.
105. Remote attorneys representing detained clients likewise require the ability to consistently communicate with their clients in order to discuss the details of their cases. This means being able to schedule client calls without unreasonable delay and having enough time to discuss necessary matters. These communications also may require the services of third-party interpreters in order for attorneys to effectively communicate with their clients.
106. Detained clients must also be able to communicate confidentially with their attorneys. Although confidentiality is an important feature in every attorney-client relationship, the need for confidentiality is especially acute for detained immigrants in removal proceedings given the sensitivity of the issues that must be discussed.
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107. Many detainees have been targeted for persecution in the countries from which they fled, making them vulnerable to harm not only in their home countries but also at the hands of fellow detainees or guards. Without the assurance of confidentiality, detainees may be chilled from speaking about sensitive issues to their attorneys, which may detrimentally impact their cases. For example, a gay Iranian detainee, who has lived in the United States for decades, may be afraid to discuss how his sexuality will make him a target for violence if he knows that a guard or a fellow detainee can overhear his every word.
108. Adequate preparation time is crucial because clients likely will not provide their attorneys with all the information relevant to available relief at their first meeting. Some are unable or unwilling to share information immediately, even with their own attorneys, because they have suffered trauma in their home countries or on their journeys to the United States. Many are simply unaware of what information is relevant and important to share. Others need time to build trust before sharing intimate personal details that are critical to prevailing in immigration court. Language barriers and the need for interpretation can lengthen this process.
109. Confidential attorney-visitation rooms, as well as unmonitored telephone and videoconference lines, are crucial to ensure that detainees can speak openly and honestly with their attorneys and that attorneys can obtain the information necessary to effectively advise and advocate for their clients.
110. In spite of the crucial need for effective, reliable, and confidential communication between attorneys and clients, Defendants have chosen to place immigrants in prisons that structurally and operationally obstruct immigrants’ access to counsel and the courts, frustrate SPLC’s ability to zealously represent its clients, and preclude SPLC’s clients from defending their
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own constitutional rights. Defendants have failed to monitor or remediate these ongoing constitutional violations.
IV. THE TOTALITY OF THE CIRCUMSTANCES AT LASALLE, IRWIN AND STEWART VIOLATE PLAINTIFF’S CONSTITUTIONAL RIGHTS 111. The right to counsel is a crucial procedural safeguard for detained noncitizens
seeking release on bond or parole given the high stakes in immigration cases and the dire conditions and consequences of imprisonment.38 While behind bars in immigration prisons, people are separated from their families, unable to maintain employment, and subjected to harsh conditions, including inadequate medical care and lack of recreation opportunities. They are also removed from access to witnesses and other evidence they need to prove their cases for relief. For these reasons, procedural safeguards—including access to counsel—are crucial to ensuring that people are not unjustifiably imprisoned pending resolution of their removal cases.39
112. In addition, the Fifth Amendment’s substantive due process protections prohibit the imposition of punishment on civil immigrant detainees.40 As other courts have recognized, “[a civil] detainee is entitled to more considerate treatment than his criminally detained counterparts . . . . Therefore, when a [civil] detainee is confined in conditions identical to, similar to, or more restrictive than those in which his criminal counterparts are held,” a presumption arises “that the detainee is being subjected to punishment.”41 Moreover, conditions may constitute punishment where they are intended to punish, or where objective evidence shows that the conditions are “not
38 See, e.g., Hernandez v. Sessions, 872 F.3d 976, 995 (9th Cir. 2017). 39 See id. 40 See, e.g., Zadvydas v. Davis, 533 U.S. 678, 690-91 (2001); R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 187 (D.D.C. 2015). 41 Jones v. Blanas, 393 F.3d 918, 933 (9th Cir. 2004) (internal quotations and citations omitted).
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rationally related to a legitimate governmental objective” or that the conditions are “excessive in relation to that purpose.”42
113. In spite of these constitutional commands, Defendants funnel tens of thousands of noncitizens into isolated prisons where they encounter substantial and often insurmountable barriers to accessing and communicating with counsel. Many of these prisons are located in rural and remote places hours away from major cities, immigration attorneys, and professional interpreters.
114. Legal representation rates are staggeringly low in large civil immigration prisons in the Southeast. Only six out of every 100 people detained at Stewart have legal representation. The same is true at LaSalle. Representation rates are also low at Irwin.
115. In the rare instances where detained people are able to obtain counsel, it is typical that legal representatives are required to travel two, three, or even four hours to these prisons, only to confront additional barriers to accessing and communicating with their clients once they arrive. 42 Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473–74 (2015).
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116. Despite differences in the physical infrastructure at LaSalle, Irwin, and Stewart, similar barriers to accessing meaningful representation exist at all three prisons. None of the prisons has an adequate number of attorney-visitation rooms to accommodate their populations. At the time the Complaint was filed, LaSalle has one room for up to around 1,200 people; upon information and belief, this remains true today. Stewart has three rooms for approximately 1,900 people. Irwin has one room for up to approximately 1,200 people.
117. Attorneys at each prison must regularly wait in excess of an hour—and, in many cases, as long as three or four hours—to meet with their clients. As a result, attorneys often must cut meetings short or see only one client instead of several. Some attorneys do not take cases at these detention centers because they cannot lose several hours of productivity due to long waits and lengthy travel time and still provide ethical representation to all of their clients.
118. Frequent “counts” and staff shift changes exacerbate these delays and sometimes prevent attorneys from visiting clients altogether.
119. Once inside the attorney-visitation room, legal representatives and their clients face excessive restrictions on their ability to communicate with one another. Although many prisons holding criminal detainees permit contact visits between attorneys and clients, Defendants permit LaSalle, Irwin, and Stewart to maintain a categorical ban on contact visitation for civil detainees. Instead lawyers must see clients in non-contact visitation rooms, where thick partitions separate the lawyer and client from each other. This set up hampers attorneys’ ability to review documents with clients. It also detrimentally impacts the lawyer’s ability to create the rapport and trust with his or her client that is crucial to encouraging the client’s confidences and gathering all the information necessary to defend against removal, especially for clients who have been persecuted or are otherwise traumatized.
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120. While a single closed-circuit telephone is provided in some of the non-contact attorney-visitation rooms in these facilities, this mechanism impedes meaningful communication between attorney and client. Because only one phone is provided on the “attorney side” of the room, it effectively forecloses bringing paralegal or other support staff to assist with these meetings. For example, in those rare instances where an interpreter can be located and brought into the facilities, the interpreter must listen to the attorney with the ear that is not against the phone; interpret into the phone; listen to the client’s response; and then interpret back to the attorney. The attorney and client cannot hear one another’s voices. The tone and dynamic of the conversation is lost, thereby creating yet another barrier to effective communication between attorney and client.
121. Making matters worse, the telephone lines themselves are compromised by significant static. As a result, the attorney and client cannot clearly hear each other over the closedcircuit phone, forcing them to repeat questions and answers and sometimes to yell and thereby compromise confidentiality. Guards are routinely stationed outside the rooms as a matter of course or for frequent shift changes, where they are able to hear what attorneys say inside the visitation rooms. For example, following an attorney interview with a prospective client at Stewart, the attorney overheard a guard remark to another guard that the attorney had not even been discussing removal issues with the client. Throughout the client visit, the client had remarked to the attorney that the guard had been frequently lurking behind the attorney at the visitation room door.
122. In addition, the phones in the attorney-visitation rooms have short cords and are located in a way that virtually prevents attorneys and clients from facing one another directly, further frustrating their ability to effectively communicate.
123. Defendants permit all three of the prisons to enforce a “no-electronics” policy which prohibits attorneys and staff from bringing in cell phones or laptops. These restrictions
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impact the attorney-client relationship in a number of respects. First, because there is no outside phone line to conference in an interpreter, the policy effectively denies an attorney access to remote interpretation services. The use of interpreters is critically necessary for attorneys and clients to communicate effectively, especially at these remote locations where there are no nearby interpreters who can appear in person. SPLC’s staff and volunteers would have the ability to contact such interpretation services if Defendants permitted attorneys and their staff to bring in electronic devices such as cell phones or computers. Under the circumstances, however, attorneys are left to rely on gestures, guesstimates, and whatever else can be communicated through broken or no English in order to gather crucial evidence to avert deportation. Many immigration attorneys refuse to take cases at these immigration prisons because they do not feel they can adequately and ethically represent clients with whom they cannot communicate.
124. The prohibition on electronics not only prevents access to interpreters who could be contacted using a cell phone or laptop, but also limits attorneys’ ability to efficiently represent their clients. If SPLC’s attorneys and staff could bring computers or tablets into the visitation room, they could draft client declarations or other legal documents during their meetings with clients. Clients’ stories could be memorialized, and errors could be corrected, in real time. This is particularly important given that long periods spent in the waiting room restrict the time attorneys have to work on client cases. Attorneys who represent clients at other immigration prisons where laptops are permitted report that they are able to more effectively and efficiently represent their clients as a result of their access to computers. Some also report either access to landlines or the ability to use cell phones to contact interpreter services that would otherwise be inaccessible for in-person meetings.
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125. Importantly, the unreasonableness of the no-electronics restriction is evidenced by the immigration detention centers across the country where attorneys are permitted to bring electronic devices to client meetings, thereby facilitating efficient representation of the client as well as contact with interpreters. Examples include those prisons in Aurora, Colorado; Dilley, Texas; Florence, Arizona; Elizabeth, New Jersey; and Tacoma, Washington.
126. In addition, the “no electronics” policies are not uniformly administered: ICE and private prison staff at some of the detention centers have cell phones. In addition, criminal defense attorneys are allowed to bring in laptops and use them during client meetings in at least one of the prisons.
127. The obstacles to accessing and communicating with counsel at these immigration prisons stem from Defendants’ practice of contracting with and failing to adequately supervise private prison companies, sometimes via Inter-Governmental Service Agreements (IGSAs) with local entities, which have a financial incentive to understaff detention centers and to refuse to improve conditions that impede access. SPLC staff and volunteers are routinely informed that delays stem from insufficient staffing. Likewise, many of the other access barriers described herein arise from poor or inadequate conditions in the facilities operated by these private companies. Money spent on additional staffing and on improving conditions is money that could be distributed to shareholders. At worst, Defendants permit their agents to focus on profit margins at the expense of the constitutional rights of people in their custody; at best, they blithely ignore the ongoing constitutional violations.
128. The totality of the circumstances at each facility impede detainees’ meaningful access to counsel and SPLC’s ability to express and fulfill its mission.
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A. The Totality of the Circumstances at LaSalle ICE Processing Center Violate Plaintiff’s Constitutional Rights
129. LaSalle holds 1,200 civil immigration detainees, yet at the time the Complaint was filed, it had only one room for “confidential” attorney-client visits. Upon information and belief, this remains true as of the date of filing of this Amended Complaint.
130. The failure to ensure LaSalle was equipped with an adequate number of rooms for visitation is telling—Defendants clearly never planned for individuals in their custody imprisoned in isolated LaSalle to have the ability to consult with lawyers.
131. Despite Defendants’ apparent assumption that few lawyers would travel several hours through rural Louisiana to represent people sent to LaSalle, the single attorney visitation room is frequently full. When the only attorney-visitation room is occupied, lawyers sometimes wait in the small lobby for hours—as no suitable confidential room is made available as an alternative despite ample office space near the attorney-visitation room.
132. The one attorney-visitation room is, in fact, not confidential. It is directly adjacent to a family-visitation room with several non-contact visitation cubicles. The attorney-visitation room is not soundproof. Confidential conversations with clients about sexual abuse, political persecution, and other sensitive topics can be overheard by guards and by people in the familyvisitation room on the other side of the thin wall.
133. LaSalle conducts six counts per day, at least four of which are during attorney visitation. A visit cannot start during count, each of which lasts about 45 minutes but can last longer. A “count” is a procedure whereby prison staff members determine the whereabouts of each person at the facility. In addition to counts, shift changes stop attorney visitation. For instance, during the 6 p.m. shift change, visitation is delayed consistently for close to 45 minutes.
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134. While lawyers are sometimes permitted to use the family-visitation room if available, that room is even less suitable for confidential attorney-client communication. The room is comprised of several individual, interconnected cubicles with clear partitions that separate the detainees from their visitors. A guard is stationed in the room, within earshot, and detainees awaiting their visits are seated approximately two feet behind the cubicles. Even attempts to speak in lowered voices are insufficient to prevent others from hearing a conversation.
135. There is no slot or other opening in the plastic divider in the family-visitation room to permit the exchange of confidential, legal documents. Guards have instructed attorneys that no documents can be exchanged during these meetings. On occasion the guards will break this rule, and offer to take confidential papers from one person and deliver them to the person on the other side of the partition. Guards who do so frequently search the documents. In most instances, however, a meeting in the family-visitation room means no legal documents can be exchanged.
136. The insufficient number of adequate attorney-visitation rooms at LaSalle has routinely caused SPLC’s staff and volunteers to endure substantial waits in order to see clients, thereby diminishing SPLC’s resources and undermining its mission to provide quality representation to its clients. These wait times are frequently in excess of 90 minutes and can be as long as five hours.
137. Delays are compounded by specific, additional policies and practices maintained by Defendants at LaSalle. For example, if SPLC staff and volunteers seek to visit a client of one gender in the attorney-visitation room, they may not do so if the adjacent family-visitation room is being occupied by a detainee of the opposite gender.
138. Attorneys cannot see a male client between 11 a.m. and 1 p.m. or a female client between 9 a.m. and 11 a.m. Attorneys are often unable to visit female clients during female-
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visitation hours because there is an attorney in the visitation room meeting with a male client. For attorneys trying to visit a specific client, available visiting hours are frequently quite limited because of a combination of the gender rules, count, and shift changes.
139. The delays are often longer for clients who are being kept in segregation. The clients in segregation are often severely mentally ill. LaSalle will not bring a client being held in segregation to a visitation room if anyone else is in that room or in the adjacent family-visitation room. LaSalle only permits certain staff to transport clients held in segregation. This often causes even longer delays. An attorney could spend all day in the waiting room before being able to see a client who is held in segregation.
140. The long delays at LaSalle frequently require SPLC’s staff and SIFI volunteers to cut meetings short. On occasion, SPLC’s staff and volunteers also forego meetings with clients altogether out of concern that they will be forced to endure long delays that prevent them from completing other necessary legal work.
141. In isolated Jena, access to remote interpretation is crucial. Many interpreters flatly refuse to travel to LaSalle even if compensated. Due to the lack of access to interpreters, SPLC has been unable to provide representation at LaSalle to detainees who speak certain languages because there was no way to communicate with them.
142. SPLC’s staff and volunteers would have the ability to contact remote interpretation services if the visitation room had a telephone or video teleconferencing, or if Defendants required their agents to permit attorneys and their staff to bring in cell phones or computers. But as a result of the restrictive policies at LaSalle, LEP clients are virtually barred from reliable access to interpretation during in-person meetings with their attorneys. Defendants do not require their agents to allow VTC communications between lawyers and clients at LaSalle, despite the use of
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VTC in immigration courtrooms and for credible fear interviews and various embassy communications.
143. VTC does not substitute for, but can complement, in-person visitation. If attorneys could use VTC at LaSalle, then SPLC—as well as other immigration practitioners—could communicate with clients through a remote interpretation service.
144. Scheduling a telephone call with a LaSalle detainee is extremely difficult and involves significant delay. Attorneys frequently call LaSalle to schedule a phone call, but their calls often go unanswered. Although LaSalle has an answering machine, messages are frequently not returned.
145. Reports vary regarding what happens after an attorney calls to schedule a phone visit, but attorneys frequently receive no response whatsoever.
146. Upon information and belief, LaSalle asserts that the policy is as follows: when a detainee requests a legal call, the request goes to the case manager, who has 72 hours to contact the attorney and schedule the call. Likewise, when attorneys request a legal call, the request is sent to “classification” and then to the detainee’s case manager, who has 72 hours to schedule the call. Thus—even if LaSalle uniformly followed the policy—it could take as long as three days to schedule a call, making phone calls an unreliable method to reach clients regarding time-sensitive matters.
147. In practice, however, attorneys are scheduled for calls approximately seven days from the date of a request. An attorney cannot schedule more than one call with a client until the attorney and client have completed the first scheduled phone call. An attorney is required to repeat the scheduling process after the call takes place, often requiring another week before the next call.
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148. Such delay can have a detrimental impact on a detainee’s case, especially when the purpose of the call is to prepare for an impending hearing, finalize a court filing, or address another time-sensitive matter.
149. People who do not speak English or Spanish, and people who are severely mentally ill, often cannot understand or complete the paperwork that LaSalle requires in order to schedule a call with an attorney. For these detainees, obtaining a phone call on their own initiative is virtually impossible.
150. LaSalle limits attorney phone calls to only 20 minutes per client per day. This is a wholly insufficient amount of time to complete any substantive task. If an attorney needs to draft a client declaration, she cannot ask questions in 20 minutes that will elicit the necessary information. She also cannot advise a client regarding case strategy, explore ways to obtain evidence, obtain sufficient facts to credibly assess defenses to removal, or prepare a client for a hearing. By limiting attorney-client phone meetings to 20 minutes, LaSalle effectively prevents meaningful communication.
151. Because of the difficulty involved in scheduling an attorney call, detainees in need of urgent advice sometimes resort to monitored phone lines, which are more easily available, despite the lack of confidentiality. These calls are also limited to 20 minutes.
152. Not only is there a general dearth of interpreters within driving distance of Jena, Louisiana, there are no regularly available interpreters who are conversant in languages other than English and Spanish. In order to represent LEP clients who communicate in these languages, attorneys rely on phone interpretation services (“language lines”). Without an in-facility mechanism to access a language line, the sole avenue to communicate with these clients is by phone.
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153. Yet, time spent connecting to the language line is deducted from the 20-minute time period allotted for confidential attorney-client conversations. This puts LEP clients at a significant disadvantage if they need interpreters to communicate with their counsel. Based on the experience of SPLC employees and volunteers, the use of interpreters can more than double the length of a conversation—which further restricts their ability to consult with counsel.
154. These barriers to telephonic communication have had especially dire consequences for detainees who are represented by SIFI volunteers from outside Louisiana, for whom reliable telephonic communication is indispensable to provide effective representation.
155. For instance, SIFI volunteers from New York and Washington, D.C. sought to schedule a phone call with their client at LaSalle to obtain information needed for his merits hearing. The client’s case was assigned to an expedited docket, meaning that frequent substantive communication was crucial in order to prepare for the impending hearing. However, despite repeated attempts by the SIFI volunteers to call LaSalle to schedule a client call, no one picked up the phone. Days later, when a LaSalle staff member finally answered, the call could not be scheduled for several more days. In total, it took more than a week for the call to occur. Making matters worse, LaSalle staff limited the call to only 20 minutes, which was inadequate to gather the necessary information. When the attorneys sought to schedule a follow-up call, the same series of events occurred: days passed before a LaSalle staff member answered the telephone; even more days passed before the call could take place; and when the call finally occurred more than a week later, it was again limited to just 20 minutes—despite the rapidly approaching merits hearing.
156. Because attorneys cannot schedule multiple phone calls with the same client on a given day and cannot spend more than 20 minutes on a given call, they must make in-person visits and sit for hours in the waiting room to access the sole visitation room.
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157. Defendants and their agents are targeting SPLC and its volunteers based on hostility to SPLC’s mission. The longer SIFI is operational at LaSalle, the more Defendants and their agents at LaSalle interfere with SPLC’s efforts to meet with clients and prospective clients. For example, on March 30, 2018, Defendants’ agents prevented SIFI staff and volunteers from meeting with clients and prospective clients at LaSalle on the basis that they had not entered appearances in the relevant cases. This requirement had never been mentioned in the months since SIFI began operating at LaSalle or during the hundreds of previous visits. Enforcing such a policy would prevent lawyers and clients from engaging in the communications needed to determine whether to enter into a representation. That is why Defendants’ written policies actually prohibit legal visitation from being denied on the basis that the lawyer has not entered a notice of appearance in the case. That same day, attorney visits with SPLC clients represented by SIFI were cancelled, even though SIFI did, in fact, have notices of appearance on file.
158. Also, that same day, legal volunteers were prevented from using the open attorneyclient room because they were not lawyers and “ICE had not approved” them for legal visits. Defendants’ written policy is that legal assistants, with a letter of authorization from their supervising attorney, may visit detainees. Defendants’ agents terminated the meeting midway through even though the volunteers had presented the required letter.
159. Upon information and belief, Defendants and their agents have exclusively targeted SPLC in enforcing this purported policy out of hostility toward the presence and mission of the organization and its volunteers.
B. The Totality of the Circumstances at Irwin County Detention Center Violate Plaintiff’s Constitutional Rights
160. Irwin presently houses approximately 700 immigrant detainees but the prison has only one attorney visitation room for these immigrant detainees to access counsel.
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161. The one visitation room is frequently occupied when SIFI staff and volunteers arrive at the detention center to visit clients. That one room is not exclusively used for attorneyclient visitations. Weddings, clergy visits and social worker meetings also take place there. Consequently, SIFI staff and volunteers are often subjected to delays of one hour or much longer— sometimes up to three or four hours.
162. These frequent, lengthy delays are compounded by Defendants’ and their agents’ policy of prohibiting movement within the facility during count, while failing to efficiently transport clients prior to count. In other words, even when the attorney-visitation room is available prior to count, Irwin staff may fail to bring a client to the attorney-visitation room before count begins, meaning that an attorney must wait until count is over—sometimes up to an hour or more— before the visit can commence. And Irwin conducts seven counts per day, all of which are during times when attorneys are permitted to visit.
163. Attorneys frequently occupy the room for many hours to see multiple clients, effectively precluding visitation for all other detainees whose counsel are attempting to meet with them.
164. Making matters worse, once SIFI staff and volunteers are escorted into the visitation room, they frequently must wait long periods of time—sometimes close to an hour—for the detainee to be brought to them. Lawyers seeing more than one client frequently wait protracted periods for each client to be escorted to and from the visitation room.
165. Conditions inside the single attorney-visitation room further frustrate detainees’ ability to communicate with their attorneys. The room is not soundproof. Confidential conversations with clients about sensitive topics, like sexual abuse and political persecution, can
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be clearly overheard by employees of the detention center who often stand near or walk by the room, and by people in the nearby family visitation rooms.
166. The door on the attorney visitation room is controlled by staff in the prison’s operational control room. Once it is closed, the door locks; people in the room have no ability to get out, except by attracting the attention of the guard who operates the door from the control room. There is no mechanism—like a buzzer or speakerphone—in the visitation room to facilitate communication with the control room. Thus, attorneys are relegated to waving at the guard through the control room’s tinted window and knocking on the window of the visitation room. On more than one occasion, attorneys have been trapped in the room for long periods of time. Meanwhile, other lawyers sit in the waiting room, and their clients are deprived of valuable time with their counsel.
167. On certain days, Irwin permits SIFI attorneys and volunteers to conduct non-contact visits with clients in the family visitation room, which is not a confidential meeting space. While attorneys meet with clients in that room, Irwin staff use the room as a throughway, and staff often loiter in an adjacent office, with the door open.
168. As with LaSalle, the lack of contact during visits substantially hinders the ability to establish rapport and trust between lawyer and client. Public defenders and other criminal defense attorneys representing pre-trial detainees at Irwin are permitted to conduct contact visits with their clients. Unlike SIFI staff and volunteers, they can freely exchange documents with one another and more easily foster effective communication and trust.
169. Whereas SIFI attorneys and volunteers are largely relegated to meet with clients in the single, non-contact attorney-visitation room, upon information and belief, public defenders are rarely required to use that room. Irwin allows public defenders to conduct contact visits with their
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clients in rooms located in an area of the prison that SIFI staff and volunteers are not permitted to enter.
170. Irwin has two VTC computers that facilitate meetings between remote attorneys and their clients. VTC meetings take place from 9 a.m. to 4 p.m. with an hour-long break for lunch. While VTC has the potential to facilitate greater access to attorneys, the opportunities for client contact remain wholly insufficient.
171. VTC meetings are strictly limited to one hour, which is often an insufficient amount of time to render legal advice.
172. Mechanical issues regularly undermine basic communications during the one-hour VTC allotment.
173. SPLC’s meetings with clients on VTC have frequently been interrupted, cut short, delayed by connection issues, and/or subject to other interference. In such instances, Irwin guards strictly adhere to the one-hour limitation, thereby forcing SPLC staff and volunteers to rush through their VTC conversations. On one occasion, a VTC visit was cut short because the guard who was facilitating the visit informed the attorney that she had to go to lunch.
174. Irwin fails to adequately coordinate the VTC calendar—leading to missed appointments with clients and preventing attorneys from relying on VTC as a reasonable alternative to in-person visits. Irwin guards regularly forget to initiate the VTC visit, initiate VTC visits at unscheduled times, and bring the wrong person to the VTC room.
175. VTC visitation at Irwin occurs in the law library. Upon information and belief, detainees are unable to use the law library between 9 a.m. and 4 p.m. when calls occur.
176. Guards consistently tell SPLC’s staff and volunteers that they cannot take all the available VTC slots—even when the slots are not being used. By preventing SIFI from scheduling
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as many meetings as possible, this arbitrary restriction creates a significant hardship to SPLC and its many volunteer attorneys.
177. There are indications that Irwin gives preferential treatment to other visitors over SPLC personnel and volunteers. Despite a first-come, first-served visitation policy, social workers have received priority over SPLC staff and volunteers. On one occasion, Irwin staff interrupted an SPLC client visit to insist that the attorney room be vacated for a social worker visit. On another occasion, although a volunteer attorney had been waiting an hour to meet with a SIFI client, a social worker arrived and was permitted to meet with his clients first.
178. Furthermore, upon information and belief, the attorneys for pre-trial, criminal detainees are allowed to bring their laptops to client meetings. This is at odds with the treatment of SPLC staff and volunteers, who have been consistently prohibited from bringing electronics into any part of the prison, including the waiting room.
179. Defendants restrict attorney access to Irwin in other problematic ways. For instance, immigration court proceedings for Irwin detainees occur in Atlanta. The detainees participate in the proceedings via VTC from a room inside Irwin near the attorney-visitation room. Because Defendants prohibit attorneys’ access to that VTC room, lawyers representing Irwin detainees are forced to drive three hours to Atlanta and enter their appearance there rather than appearing alongside their clients in the detention center.
180. Immigration judges say they have no authority over the prisons where Defendants choose to house civil detainees.
181. While Defendants allow attorney access to the VTC rooms in some prisons during immigration hearings, this access is uniformly denied at Irwin.
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182. The three-hour drive means that lawyers cannot meet with their clients immediately before a morning hearing. All Atlanta bond hearings take place in the morning.
183. Because attorneys are not in the same location as their clients, they cannot easily engage in confidential communications—for example, to request clarification of a factual point or advise the client on how to respond to a question from the immigration judge. To speak privately with the client, the lawyer must ask the immigration judge and trial attorney to leave the courtroom.
C. The Totality of the Circumstances at Stewart Detention Center Violate Plaintiff’s Constitutional Rights
184. Although Stewart typically detains between 1,800 and 1,900 immigrants, the prison has only three attorney-visitation rooms.
185. The small number of attorney-visitation rooms relative to the number of detainees, along with inadequate staffing, means that those visitation rooms are regularly unavailable, such that SPLC attorneys and volunteers often must wait for extended periods before meeting with their clients.
186. Delays are further compounded during detainee counts and shift changes when there can be no movement, including taking attorneys to visit clients, in the facility. Stewart conducts six counts per day, at least two of which are scheduled during attorney visitation hours. Each count and shift change can take an hour or longer. On occasion, shift change and count occur back-to-back, compounding delays to see clients. As a result, counts and shift changes substantially narrow the actual attorney visitation hours. Although regular visitation hours are supposed to last until 5:00 p.m., SIFI staff and volunteers have arrived to conduct client visits prior to 5:00 p.m. only to be told that count was occurring; in some instances, count lasted until 5:00 p.m., and SIFI staff and volunteers were prevented from meeting with their clients at all. Even in instances when count was not occurring, SIFI staff and volunteers have arrived at Stewart well
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before 5:00 pm to meet with clients but were forced to wait until 5:00 p.m., when visitation hours ended and they could no longer meet with clients.
187. SIFI staff and volunteers are thus frequently subjected to lengthy delays before they can see clients. Wait times in excess of one or two hours are frequent, and some staff and volunteers have been forced to wait over three hours. Attorneys cannot simply leave the facility and come back later because they risk losing their place in line.
188. Between May 10, 2017 and December 22, 2017, the average wait time for SPLC’s attorneys, staff, volunteers, and interpreters at the facility was almost an hour. Approximately 20 visits have required waits in excess of two hours—many in excess of three and four hours. Moreover, attorneys are frequently subjected to further delay once inside the attorney-visitation room while waiting for their clients to be transported.
189. SPLC volunteers and staff need to visit with multiple clients every day, making these wait times a substantial drain on SPLC’s resources and undermining its ability to effectively advocate for its clients. In fact, attorneys spent more than 210 hours sitting in the waiting room at Stewart over the seven-month period between May and December 2017. That is more than a month of 40-hour work weeks.
190. Due to the “no-electronics” policy enforced at Stewart, SIFI staff and volunteers must spend additional time trying to make up for the hours lost while waiting to meet with clients.
191. Delays at Stewart routinely prevent SIFI staff and volunteers from spending sufficient time with clients, either because visitation hours may end or the attorney must cut the meeting short to see another client.
192. In some cases, the lengthy delays have prevented SIFI attorneys and volunteers from meeting with their clients at all.
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193. Attorneys invariably must return to the facility to see their clients in order to discuss matters that could not be addressed due to time constraints at the initial meeting. Attorneys are again subjected to lengthy delays at the follow-up visit. As a result, matters that could have been handled within a single efficient visit often take multiple trips and multiple hours of waiting, thereby further straining SPLC’s resources.
194. These delays have prevented SIFI staff from meeting with clients and prospective clients prior to important court hearings. As a result, SPLC’s clients and prospective clients have not been adequately prepared for their hearings.
195. In one instance, SPLC learned about a potential client just prior to his bond hearing. A SIFI volunteer attempted to visit the person before his hearing to provide important advice. Yet, the delay of well over an hour prevented the attorney from speaking with the client prior to the hearing. The bond hearing went forward, and bond was denied.
196. Because the “no-electronics” policy impedes access to interpreters and prevents SPLC from engaging in client work during lengthy waits, SPLC has sought to negotiate with Defendants to revise the prohibition on electronic devices at Stewart. SPLC has made multiple offers of accommodation, including proposals to purchase laptops with no cameras, to bring in only pre-registered tablets that Stewart staff could inspect, and to certify that any laptops or cell phones are utilized exclusively for client representation purposes. Defendants and their agents have implemented such safeguards to permit attorneys to bring in electronic devices at other immigration detention centers. Yet, Defendants have outright rejected these proposals at Stewart and continue to prohibit attorneys from bringing electronic devices into the facility, which negatively impacts SPLC and its clients.
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197. After SPLC staff complained in 2016 that video-teleconferencing was supposed to be available under the terms of the 2014 Stewart contract, two VTC portals were installed at Stewart. However, Defendants and their agents maintain policies that obstruct clients’ reliable access to VTC for the purpose of communicating with their attorneys. For example, Defendants’ agents maintain a strict policy of cutting off the calls one hour after the scheduled start time regardless of need or availability. Mechanical difficulties often delay or interrupt these calls. Yet, Stewart staff refuse to replace such lost time and instead insist on strictly adhering to the policy.
198. In one case, an SPLC volunteer attorney met with an Arabic-speaking SIFI client to review the client’s sworn declaration. Because there is no access to a language line in Stewart, VTC was the only mechanism by which the attorney could access an Arabic interpreter. The call began eight minutes late, and technical difficulties occurred approximately twenty-five minutes later. The attorney was able to resume the call twelve minutes before the hour expired, by which time the officer had sent the detainee back for count. When the volunteer asked the officer to bring the client back, she refused on the basis that the attorney had just seven minutes left of her allotted hour. The attorney was thus unable to complete review of the client’s declaration during that meeting.
199. Access to confidential telephone lines for attorney-client communications is not an alternative at Stewart. Upon information and belief, Stewart only allows confidential telephone calls between attorneys and clients if the VTC is not working.
200. All of these barriers to attorney-client communications are compounded by Defendants’ failure to remediate persistently obstructive conduct by Stewart staff. Stewart staff frequently and arbitrarily change rules without notice; for example, the ever-evolving requirements to obtain visitation authorization have delayed client visits, blocked visits altogether, and drained
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SPLC’s resources. Recently, SIFI staff followed the longstanding procedure of faxing a letter indicating which clients a volunteer attorney intended to visit the following day. After completing some visits in the morning, the volunteer attorney returned that afternoon to conduct the remaining client visits. However, Stewart staff refused her entry, insisting that she would need to fax a second letter if she wanted to re-enter the facility. The volunteer was unable to see her remaining clients that day.
201. Similarly, during a recent set of client visits, SIFI volunteers sought to bring in business cards for their own clients as well as other indigent detainees in need of legal representation. However, Stewart guards refused to allow the SIFI volunteers to enter with any extra business cards. Guards enforce this policy with some regularity, thereby depriving unrepresented Stewart detainees of access to information that could assist them in securing crucially-needed legal counsel.
202. Stewart guards have also engaged in conduct to pressure attorneys and detainees to keep legal visits short. Recently, during a prospective client’s interview with an attorney, a detainee noticed that a Stewart guard was pacing back and forth outside the attorney-visitation room. While the interview was in progress, the attorney overheard that guard state that the interview was taking too long. When the interview was finished, the same guard stated “Finally,” signaling to the attorney that he should keep his remaining interview short.
203. These recent occurrences are but a few of the many instances in which Defendants’ agents have engaged in conduct that frustrates detainees’ efforts to access legal counsel. Upon information and belief, such conduct is directed specifically and deliberately at SIFI staff and volunteers—not at other attorneys who visit the facility.
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204. Defendants have also failed to remediate other obstructive conduct by Stewart staff. In some instances, guards at Stewart have forced SIFI staff and volunteers to wait even when there are available attorney-visitation rooms. Upon information and belief, such conduct is directed specifically and deliberately at SIFI staff and volunteers—not at other attorneys who visit the facility. In a recent incident, a volunteer interpreter arrived at Stewart with two SIFI attorneys to facilitate visits with three clients. When she walked under the metal detector, it started beeping. A guard speculated that the underwire in her bra had triggered the detector. The volunteer requested that they use the readily available and regularly used metal detection wand to clear her. The guard called for supervisory approval. After waiting for approximately 15 minutes, the volunteer asked another guard for an update on her clearance; in response, the guard asked the volunteer when she planned to change her clothes. She removed her bra in the public waiting area, passed through again, and the metal detector again beeped. She was then forced to leave the facility and change clothes before being allowed to re-enter. Although the Stewart guard refused to use the readily available wand on the SIFI volunteer, that volunteer observed the same guard using the wand on a non-SIFI visitor who set off the metal detector on that same day.
205. Guards have also interrupted attorney-client meetings at Stewart without cause. In one instance, a guard peered through the small window on the visitation door and opened the door during a client visitation, stating that he had seen the attorney showing the client a photograph. Although photographs are frequently critical pieces of evidence in removal cases, the guard interrogated the attorney about his conduct.
206. Guards at Stewart have prevented SIFI staff and volunteers from wearing scarves and from carrying CDs that containing a client’s immigration court files.
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207. Guards and Defendants’ other agents have also inspected and commented on legal files held by attorneys and confiscated legal papers from detainees.
208. In addition, Defendants have engaged in conduct aimed at intimidating SIFI staff and volunteers. For instance, a volunteer attorney left Stewart on the morning of March 13, 2018 at about 10:15 a.m. She lawfully stopped on the side of Main Street in Lumpkin, Georgia in order to take photos of the water tower and the signage pointing to the detention center, and then returned to her car and resumed driving.
209. An ICE patrol car passed her, drove about halfway toward the detention center and turned around. The ICE officer drove up behind her, activated his lights, and pulled her over. The ICE officer, who did not immediately identify himself, asked what she was doing. When the volunteer attorney explained, the officer acknowledged there was nothing wrong with taking photos, but said he still had to take her information. He asked if she had a business card, and she said no. He then asked for her name and phone number, which he transcribed with a pen on the palm of his hand. When he asked who she was with, she said “SPLC.” He asked if she was helping to “support illegal immigration” and asked what she was doing. She said she was court watching. When he again asked for the name of her organization, she said “the Southeast Immigrant Freedom Initiative, with the Southern Poverty Law Center,” and he wrote that information on the palm of his hand. The officer then said he had to write down her license plate information. V. DEFENDANTS ARE RESPONSIBLE FOR THE VIOLATIONS OF PLAINTIFF’S
CONSTITUTIONAL RIGHTS A. Defendants Direct, Manage and Control the U.S. Immigration Detention System 210. Defendants direct, manage and control the U.S. immigrant detention system and the conditions of confinement therein, including at LaSalle, Irwin, and Stewart.
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211. Detained immigrants are held under the custodial authority of the Department of Homeland Security, which has been delegated to its component agency Immigration and Customs Enforcement.43 ICE Enforcement and Removal Operations (ERO) “manages and oversees the civil immigration detention of one of the most highly transient and diverse populations of any detention or correctional system in the world.”44
212. ERO is responsible for identifying, arresting, and removing unlawfully present immigrants. It “transports removable aliens from point to point, manages aliens in custody or in an alternative to detention program, provides access to legal resources and representatives of advocacy groups, and removes individuals from the United States who have been ordered to be deported.”45
213. ERO has six divisions, one of which is the Custody Management Division. This division “provides policy and oversight for the administrative custody of more than 33,000 detainees daily and roughly 440,000 detainees annually,”46 and “[m]anages ICE detention operations to efficiently and effectively provide for the safety, security, and care of persons in ICE custody.”47
43 See 8 U.S.C. § 1103(a)(1); 8 C.F.R. § 2.1 (Secretary of Homeland Security has authority to administer and enforce the immigration laws, which may be delegated to any DHS official, officer or employee); 8 C.F.R. § 100.1 (authority to administer and enforce immigration laws has been delegated to ICE, as well as U.S. Customs and Border Protection and U.S. Citizenship and Immigration Services). 44 Facility Inspections, U.S. Immigration and Customs Enforcement, https://www.ice.gov/facility-inspections (last updated Sept. 17, 2018). 45 Enforcement and Removal Operations, U.S. Immigration and Customs Enforcement, https://www.ice.gov/ero (last updated Jul. 31, 2018). 46 Custody Management – Leadership, U.S. Immigration and Customs Enforcement, https://www.ice.gov/custody-management (last updated Jan. 3, 2018). 47 Custody Management – Overview, U.S. Immigration and Customs Enforcement, https://www.ice.gov/custody-management (last updated Jan. 3, 2018).
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214. ERO oversees “more than 210 local and state facilities operating under intergovernmental service agreement, contract detention facilities, ICE-owned facilities and facilities operated by the Bureau of Prisons.”48
215. Within the Custody Management Division is the ERO’s Detention Management Division, which “[c]oordinates with the 24 ERO field offices to ensure a safe and secure environment for aliens within ERO custody through facility compliance, on-site monitoring, and the acquisition of detention facilities.”49
B. Defendants Selected LaSalle, Stewart, and Irwin As Immigration Prisons 216. Defendants’ accountability for unconstitutional access to courts and counsel begins with the instrumental act of contracting for the use of physical structures that—by virtue of their design—guarantee inadequate physical space for legal visitation. Upon information and belief, the decision to house immigrants in a designated facility is made by Defendants’ acquisition office, located in the District of Columbia. 217. The ICE Office of Acquisition Management (OAQ), based in the District of Columbia, “negotiates and manages detention facility contracts and agreements.”50 OAQ’s mission is to “deliver quality acquisition solutions in support of the ICE and DHS missions.”51 OAQ’s procurements include: “[l]aw enforcement services and products, including handcuffs, hand restraints, guns and ammunition” and “[d]etention and removal services such as temporary housing, food, clothing and transportation, including air charter flights.”52 This office
48 Id. 49 Id. 50 U.S. Gov’t Accountability Office, Immigration Detention: Additional Actions Needed to Strengthen Management and Oversight of Facility Costs and Standards 2 (October 2014), https://www.gao.gov/assets/670/666467.pdf. 51 Office of Acquisition Management (OAQ), Immigration and Customs Enforcement, https://www.ice.gov/management-administration/oaq (last updated Jul. 26, 2018). 52 Id.
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additionally approves subsequent amendments to contractual agreements to provide funding for, among other things, structural improvements to the facilities. All contracting and procurement responsibilities are centralized at ICE headquarters in Washington, D.C.
218. Via a contract executed on July 7, 2007, ICE selected LaSalle ICE Processing Center to imprison immigration detainees. The contract is signed by an ICE Contracting Officer.
219. Upon information and belief, Defendant ICE selected LaSalle for the imprisonment of immigrants notwithstanding Defendants’ knowledge of the structural barriers limiting detainees’ access to counsel, such as the existence of only one attorney visitation room for approximately 1,200 total prisoners.
220. The contract requires compliance with, inter alia, the most current editions of the ICE Detention Standards and the American Correctional Association (ACA) Standards for Adult Local Detention Facilities (ALDF). It explicitly requires that, in the event other standards conflict with ICE standards, the ICE standards prevail.
221. It also includes a lengthy “Quality Assurance Surveillance Plan” through which the Defendants are supposed to validate that the service provider is complying with governmentmandated quality standards in operating the facility, including compliance with standards related to legal rights.
222. The contract provides that ICE is exclusively responsible for the placement of detainees at LaSalle. ICE detainees may not be accepted into LaSalle custody except upon presentation by properly identified ICE personnel and ICE detainees may not be released from Irwin custody except to properly identified ICE personnel or with ICE authorization.
223. In the contract, ICE maintains “final approving authority” for all LaSalle staff hired to work with immigrants detained by ICE.
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224. Via a contract executed with the U.S. Marshal’s Service on July 25, 2007, Defendant ICE selected Irwin County Detention Center to imprison ICE detainees in its custody.
225. Upon information and belief, Defendant ICE selected the Irwin County Detention Facility for the imprisonment of immigrants notwithstanding Defendants’ knowledge of the structural barriers limiting detainees’ access to counsel, such as the existence of only one attorney visitation room for approximately 1,200 total prisoners.
226. The contract requires compliance with, inter alia, ICE Detention Standards and the most current edition of the ACA Standards for Adult Local Detention Facilities. It explicitly requires that, in the event other standards conflict with ICE standards, the ICE standards prevail.
227. In the contract, Irwin agrees to submit to periodic inspections by federal government inspectors.
228. The contract makes clear that ICE detainees may not be accepted into Irwin custody except upon presentation by a properly identified federal officer, and ICE detainees may not be released from Irwin custody except to properly identified ICE personnel or with ICE authorization.
229. Via a contract executed on June 30, 2006, ICE selected Stewart Detention Center to imprison ICE detainees in its custody. The contract is signed by an ICE Contracting Officer.
230. Upon information and belief, Defendant ICE selected the Stewart Detention Center for the imprisonment of immigrants notwithstanding Defendants’ knowledge of the structural barriers limiting detainees’ access to counsel, such as the existence of just three attorney visitation room for approximately 1,900 detained immigrants.
231. The contract requires compliance with, inter alia, the most current editions of the ICE Detention Standards and the ACA Standards for Adult Local Detention Facilities. It
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explicitly requires that, in the event other standards conflict with ICE standards, the ICE standards prevail.
232. In the contract, Stewart agrees to submit to periodic inspections by ICE inspectors.
233. The contract makes clear that ICE detainees may not be accepted into Stewart custody except upon presentation by a properly identified federal officer and ICE detainees may not be released from Stewart custody except to properly identified ICE personnel or with ICE authorization.
234. The insufficient number of legal visitation rooms, inadequate soundproofing in the rooms, and physical barriers to contact visitation, as detailed herein, result from Defendants’ choice to house immigrants in these buildings and their subsequent failure to authorize and advance funding to improve the buildings to ensure adequate legal visitation space.
235. DHS’s Office of Inspector General recently observed that ICE does not have sufficient policies or guidance for certain “procurement instruments” including InterGovernmental Service Agreements (IGSAs). LaSalle, Irwin, and Stewart are operated pursuant to IGSAs. OIG noted that ICE has failed to formally define IGSA as one of the three types of procurement instruments available to the federal government for obtaining supplies and services (grants, cooperative agreements, and procurement contracts). OIG reported that ICE does not follow Office of Management and Budget’s statutory uniform administrative requirements for Federal awards or Federal Acquisition Regulations, and observed that ICE “should have developed policies and procedures for negotiating, executing, and modifying IGSAs.” Finally, OIG noted that ICE is not in compliance with OMB’s Circular A-123, Management Responsibility for Enterprise Risk Management and Internal Control, which requires agencies to establish policies and
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procedures related to operations, reporting, and compliance with relevant law and regulations. ICE disagreed with OIG’s findings.53
C. Defendants Promulgated Performance-Based National Detention Standards to Govern Conditions of Confinement in Immigration Prisons
236. ICE claims that it ensures detainees in its custody reside in “safe, secure and humane environments” through an “aggressive inspections program” designed to ensure compliance with ICE’s National Detention Standards. These standards were first established in 2000. The purpose of ICE’s detention standards was to establish “consistent conditions of confinement, access to legal representation, and safe and secure operations across the detention system.”54 The standards exist in addition to, and do not limit, Defendants’ nondelegable constitutional duties.
237. In 2008, ICE renamed the standards as the Performance Based National Detention Standards (“PBNDS”), and revised them to “more clearly delineate the results or outcomes to be accomplished by adherence to their requirements” and improve, inter alia, the “conditions of confinement” for detained immigrants.
238. Finally, in 2011, ICE again revised the PBNDS to improve several specific aspects of conditions of confinement, including “access to legal services . . . improve[ment of] communication with detainees with limited English proficiency” and access to visitation.55
53 DHS Office of Inspector General, Immigration and Customs Enforcement Did Not Follow Federal Procurement Guidelines When Contracting for Detention Services (OIG-18-53) 5 (February 2018), https://www.oig.dhs.gov/sites/default/files/assets/2018-02/OIG-18-53Feb18.pdf. 54 Detention Management, U.S. Immigration and Customs Enforcement, https://www.ice.gov/detention-management (last updated Aug. 27, 2018). 55 U.S. Immigration and Customs Enforcement, Preface to Performance-Based National Detention Standards 2011 [hereinafter 2011 PBNDS], https://www.ice.gov/doclib/detentionstandards/2011/pbnds2011r2016.pdf. (last updated Dec. 2016).
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239. The PBNDS govern the prisons ICE uses to hold civil detainees, including service processing centers, contract detention facilities, and state or local government facilities used by ERO pursuant to intergovernmental service agreements to hold detainees for more than 72 hours.
240. Defendants’ PBNDS are the primary mechanism through which they execute their duty to ensure constitutional access to counsel for the thousands of detained immigrants across the United States.
241. The PBNDS provide that meetings between detainees and attorneys or legal assistants are “confidential” and “shall not be subject to auditory supervision.”56 The PBNDS further specify that “[p]rivate consultation rooms shall be available for such meetings.”57 If all such rooms are in use and an attorney wishes to meet in a different room, “the request shall be accommodated to the extent practicable” and “[s]uch meetings shall be afforded the greatest possible degree of privacy under the circumstances.”58
242. Regarding the availability of legal visitation, the PBNDS require facilities to permit legal visitation every day, including holidays.59 Legal visitation must be available for at least eight hours on weekdays and at least four hours on weekend days.60
243. With respect to conduct during legal visits, the PBNDS require the facility’s procedures to “provide for the exchange of documents between a detainee and the legal
56 2011 PBNDS at 5.7(I)(2). 57 Id. 58 2011 PBNDS at 5.7(V)(J)(9). 59 2011 PBNDS at 5.7(V)(J)(2). 60 Id.
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representative or assistant, even when contact visitation rooms are unavailable.”61 Any written material provided to detainees during such meetings “shall be inspected but not read.”62
244. The PBNDS additionally prohibit staff from being present in the confidential visitation area during a legal meeting, unless their presence is requested by the legal representative or assistant.63
245. As to legal visitation that occurs at the same time as other regular activities in the prison’s daily schedule, the PBNDS provide that legal visitation may take place during scheduled meal periods, in which case detainees “shall receive a tray or sack meal after the visit.”64 Additionally, legal visits may not be terminated for routine official counts.65
246. The PBNDS state that “[l]egal representatives and legal assistants shall not be asked to state the legal subject matter of the meeting”66 and “[a]ttorneys representing detainees on legal matters unrelated to immigration are not required to complete a Form G-28 [Notice of Appearance].”67
247. Facilities are required to allow detainees to meet with prospective legal representatives or legal assistants.68 For these pre-representation meetings, “a legal service provider’s representative need not complete a Form G-28 . . . .”69 In addition, visitors, including attorneys and legal representatives, “are not required to file a Form G-28 to participate in a
61 2011 PBNDS at 5.7(V)(J)(10). 62 Id. 63 2011 PBNDS at 5.7(V)(J)(9). 64 2011 PBNDS at 5.7(V)(J)(2). 65 See 2011 PBNDS at 5.7(V)(J)(9). 66 2011 PBNDS at 5.7(V)(J)(4). 67 2011 PBNDS at 5.7(V)(J)(8). 68 2011 PBNDS. at 5.7(V)(J)(4). 69 2011 PBNDS at 5.7(V)(J)(7).
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consultation visit or provide consultation during an asylum officer interview or Immigration Judge’s review of a negative credible fear determination.”70
248. During regular legal visitation hours, legal assistants are explicitly permitted to meet alone with detainees by presenting “a letter of authorization from the legal representative under whose supervision he/she is working.”71
249. The PBNDS encourage facilities “to provide opportunities for both contact and non-contact visitation with approved visitors during both day and evening hours.”72
D. Defendants Fail to Monitor or Enforce Compliance with the PBNDS or Remediate Violations
250. Defendants are responsible for the issuance and enforcement of immigrant detention standards that apply to all prisons in the system; monitoring compliance with those standards through inspections, investigations and onsite supervision; and negotiating, developing and executing the contracts that designate physical structures for the detention of immigrants that comply with those standards and other applicable law.
251. These standards reflect that Defendants have no legitimate interest in maintaining obstacles that prevent detainees from accessing and communicating with attorneys. Yet, as detailed infra, Defendants wholly fail to enforce the PBNDS—which are specifically incorporated into ICE’s management contracts for LaSalle, Irwin, and Stewart.
252. Defendants purport to fulfill their responsibility for individual prisons’ adherence to the PBNDS through a system of monitoring, inspection and oversight. That system includes internal divisions and programs within ICE that are designated to ensure compliance with ICE
70 2011 PBNDS at 5.7(V)(K)(7). 71 2011 PBNDS at 5.7(V)(J)(4). 72 2011 PBNDS at 5.7(I)(4).
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detention standards at immigrant detention facilities—including LaSalle, Irwin and Stewart. Those internal mechanisms include the Custody Management Division, Enforcement and Removal Operations, directed by Defendant Johnson, and the Detention Monitoring Program, which provides for continual monitoring by on-site ICE staff.73
253. According to its website, August of 2009, ICE created the Office of Detention Oversight (ODO). ODO is a unit of ICE’s Office of Professional Responsibility, Inspections and Detention Oversight Division. ODO is institutionally separate from ERO and reports directly to the ICE director.74 Its inspections are intended to provide ICE leadership with an independent assessment of ICE facilities.75 It bases its inspection schedule on perceived risk, ICE direction, or national interest, and its leadership selects facilities for review each year based on staff capacity, agency priorities, and special requests by ICE leadership.
254. In October 2009, ICE centralized detention facility management contracts under ICE Headquarters supervision in order to aggressively enforce contract compliance and initiate new procurements.76 Beginning in December 2009, ICE collaborated with vendors to provide specific no-cost improvement, such as increased recreation and contact visitation, to improve conditions of confinement. In December 2010, ICE created the Detention Monitoring Council, which engages ICE senior leadership in the review of facility inspection reports, assessment of corrective action plans, implementation of detention reforms, and other ongoing oversight issues.
73 See generally DHS Office of Inspector General, ICE’s Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or Systemic Improvements (OIG-1867) (June 2018), https://www.oig.dhs.gov/sites/default/files/assets/2018-06/OIG-18-67Jun18.pdf. 74 Id. at 3. 75 Id. 76 Detention Reform, U.S. Immigration and Customs Enforcement, https://www.ice.gov/detention-reform#tab1 (last updated Jul. 24, 2018).
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255. More recently, upon information and belief, one of the offices previously tasked with internal oversight—the Office of Detention Policy and Planning (ODPP)—was eliminated by Defendants.77
256. Importantly, ODPP was established to be “institutionally separate” from ICE Enforcement and Removal Operations so that it could provide an “independent assessment of detention facilities.”78 Defendants’ action to eradicate ODPP is at odds with their duty to ensure that detained immigrants are housed in facilities that adhere to the PBNDS.
257. Defendants’ failure to properly oversee its immigration prisons for compliance with its own policies or the Constitution has been well-documented by external stakeholders as well as DHS itself. Most recently, a report issued in 2018 by DHS’ own Office of the Inspector General (“OIG”) entitled “ICE’s Inspections and Monitoring of Facilities Do Not Lead to Sustained Compliance or Systemic Improvements” details Defendants’ utter failure to ensure compliance with the PBNDS. A damning assessment of ICE detention oversight and inspection, the report concludes that none of the on-site inspections employed by ICE adequately “ensure[ ] consistent compliance with detention standards or comprehensive correction of identified deficiencies.”79 The DHS Inspector General further states that “ICE does not adequately follow up on identified
77 Caitlin Dickerson, Trump Plan Would Curtail Protections for Detained Immigrants, New York Times (Apr. 13, 2017), https://www.nytimes.com/2017/04/13/us/detained-immigrantsmay-face-harsher-conditions-under-trump.html. 78 Detention Reform, U.S. Immigration and Customs Enforcement, https://www.ice.gov/detention-reform#tab1 (last updated Jul. 24, 2018); see also DHS Office of Inspector General, ICE’s Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or Systemic Improvements (OIG-18-67) (June 2018), https://www.oig.dhs.gov/sites/default/files/assets/2018-06/OIG-18-67-Jun18.pdf 79 DHS Office of Inspector General, ICE’s Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or Systemic Improvements (OIG-18-67) 4 (June 2018), https://www.oig.dhs.gov/sites/default/files/assets/2018-06/OIG-18-67-Jun18.pdf.
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deficiencies or systematically hold facilities accountable for correcting deficiencies[.]”80 Ultimately, the report finds that the entire system employed by ICE for monitoring and enforcing compliance with the PBNDS “do[es] not ensure adequate oversight or systemic improvements in detention conditions; certain deficiencies remain unaddressed for years.”81
258. The documentation of Defendants’ failure goes back more than a decade. In a 2006 report, the OIG identified issues with ICE detention facility inspections and corrective action plans. OIG advised ICE to improve its inspection process and correct non-compliance deficiencies.82
259. In 2009 two advocacy groups along with the law firm Holland & Knight published a report entitled “A Broken System: Confidential Reports Reveal Failures in U.S. Immigrant Detention Centers,” which documented the results of the “first-ever system wide look at the federal government’s compliance with its own standards regulating immigrant detention facilities.” The report’s authors analyzed the results of inspections conducted by the American Bar Association, the United Nations High Commissioner for Refugees, and ICE itself. Based on this review, the report found that “the persistent failure of facilities to respect detainees’ visitation rights severely hampers detainees’ ability to exercise their constitutional and statutory right to counsel.” It also found that ICE had consistently failed to ensure compliance with telephone standards, noting that “the most pervasive and troubling violations are lack of privacy afforded to detainees when making confidential legal calls, monitoring of legal calls by facility officials…arbitrary and unnecessary
80 Id. 81 Id. 82 DHS Office of Inspector General, Treatment of Immigration Detainees Housed at Immigration and Customs Enforcement Facilities (OIG-07-01) (December 2006), https://www.oig.dhs.gov/assets/Mgmt/OIG_07-01_Dec06.pdf.
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time limits placed on detainees’ telephone calls, and refusal by facility staff to deliver telephone messages to detainees.”83
260. In 2015, three national non-profit organizations issued a report entitled “Lives in Peril: How Ineffective Inspections Make ICE Complicit in Immigration Detention Abuse.”84 The authors reviewed five years’ worth of ICE inspections for 105 of the largest immigration detention prisons in the country and concluded that ICE’s inspection process “remains a ‘checklist culture’ in which inspectors – employed by ICE directly or via subcontracts- engage in pre-planned, perfunctory reviews of detention centers that are designed to result in passing ratings. . . .” This report includes an in-depth section on Stewart that notes that attorneys in the region complained as far back as 2012 that the visitation rooms were inadequate because they had to communicate with their clients through a phone and Plexiglas, making it difficult to prepare for court and provide confidential documents—but that none of these concerns were reflected in the facility inspection reports.85
261. Even if Defendants enforced the PBNDS at LaSalle, Irwin, and Stewart, the standards are entirely insufficient to protect the rights of noncitizens held in these prisons. Among other facially inadequate aspects of the PBNDS, they allow prison staff to improperly interfere with the attorney-client relationship; they fail to mandate timely access in all situations where communication with counsel is imperative to provide adequate representation in dispositive
83 Nat’l Immigration Law Ctr., A Broken System: Confidential Reports Reveal Failures in U.S. Immigration Detention Centers ix, https://www.nilc.org/wp-content/uploads/2016/02/A-BrokenSystem-2009-07.pdf. 84 Nat’l Immigrant Justice Ctr., Lives in Peril: How Ineffective Inspections Make ICE Complicit in Immigration Detention Abuse 2, http://immigrantjustice.org/lives-peril-how-ineffectiveinspections-make-ice-complicit-detention-center-abuse-0. 85 See id. at 25–26.
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proceedings; and they fail to prevent punitive conditions of legal visitation, such as non-contact visitation and shackling of immigrants during legal visits.
262. Defendants’ repeated and consistent failure to adequately direct and manage the immigration system that they control results in ongoing and routine interference with Plaintiff’s clients’ access to counsel—by detaining them in facilities with an insufficient number of attorneyvisitation rooms, actually and constructively depriving them of confidential contact with their attorneys or legal representatives, preventing the confidential exchange of documents, and subjecting them to punitive conditions such as shackling during legal visitation. Defendants’ conduct violates the minimal protections embodied in the PBNDS and, ultimately, the protections afforded to immigrants by the Constitution.
263. Defendants have abdicated their duty at every point in the process of setting and enforcing compliance with standards for immigration detention. This abdication, along with the inadequacies of the oversight and monitoring scheme itself, are the cause of the unconstitutional lack of access to counsel and to courts at immigration prisons across the country, including LaSalle, Irwin, and Stewart.
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FIRST CLAIM FOR RELIEF Denial of Access to Courts in Violation of the Due Process Clause of the Fifth Amendment
(SPLC, on behalf of its clients at LaSalle, Irwin and Stewart) 264. SPLC reallege and incorporate by reference the foregoing paragraphs and incorporate them herein by this reference. 265. The Due Process Clause of the Fifth Amendment guarantees noncitizen detainees the right of access to courts and prohibits the government and its agents from unjustifiably obstructing that access. 266. As such, Plaintiff’s clients require meaningful access to Plaintiff in order to seek release on both bond and parole and to defend themselves against removal from the United States—the very reason that they are detained at these immigration prisons. 267. The regulations and practices of the Defendants unjustifiably obstruct the availability of meaningful legal professional representation for SPLC’s clients and impede upon other aspects of their right of access to the courts at facilities across the Southeast. These regulations and practices are invalid. 268. SPLC’s clients at these facilities are civil detainees. 269. As a result, Defendants cannot invoke “penological interests” as justification for any of the barriers they have placed between SPLC’s clients and SPLC. 270. There are no security interests or administrative needs that justify these barriers at the expense of SPLC’s clients’ access to courts and counsel. Under the totality of the circumstances—including, but not limited to, the remoteness of the facility, the inadequate number of visitation rooms, restrictions on visitation hours, delays in attorney access, lack of confidentiality in visitation rooms, lack of meaningful access to interpretation services, and
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barriers to remotely and confidentially communicating with their attorneys, Defendants are detaining Plaintiff’s clients in a manner that prevents them from meaningfully accessing courts.
Plaintiff’s clients have suffered and will imminently suffer irreparable injury as a result of Defendants’ policies, practices, and omissions and are entitled to injunctive relief to avoid any further injury.
SECOND CLAIM FOR RELIEF Denial of the Right to Counsel in Violation of the
Due Process Clause of the Fifth Amendment (SPLC, on behalf of its clients at LaSalle, Irwin and Stewart)
271. Plaintiff realleges and incorporates by reference the foregoing paragraphs and incorporates them herein by this reference.
272. The Due Process Clause of the Fifth Amendment guarantees Plaintiff’s clients the right to the effective assistance of counsel in their removal proceedings at no cost to the Government.
273. Plaintiff’s clients have retained Plaintiff to represent them in removal proceedings. 274. For all the reasons assigned above, Defendants’ policies, practices, and omissions have created substantial barriers to Plaintiff’s efforts to provide effective and ethical representation to their clients. 275. Plaintiff’s clients have suffered and will imminently suffer irreparable injury as a result of Defendants’ policies, practices, and omissions and are entitled to injunctive relief to avoid any further injury.
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THIRD CLAIM FOR RELIEF Denial of the Right to a Full and Fair Hearing in Violation of the
Due Process Clause of the Fifth Amendment (SPLC, on behalf of its clients at LaSalle, Irwin and Stewart)
276. Plaintiff realleges and incorporates by reference the foregoing paragraphs and incorporates them herein by this reference.
277. The Due Process Clause of the Fifth Amendment guarantees Plaintiff’s clients the right to a full and fair hearing in their removal cases.
278. Defendants’ conduct creates a substantial likelihood that Plaintiff’s clients’ rights to a full and fair hearing will be violated, because Defendants’ policies and practices severely restrict the ability of Plaintiff to communicate with its clients and to conduct necessary legal work on their behalf in connection with their removal proceedings.
279. Plaintiff’s clients have a substantial interest in avoiding prolonged detention and ultimately prevailing in their removal proceedings.
280. All of the obstacles to accessing and communicating with counsel described herein create a substantial risk that errors will occur in bond and removal proceedings; eliminating these barriers creates a greater likelihood of preventing an erroneous deprivation of Plaintiff’s clients’ rights.
281. The government’s interest in maintaining the current obstacles is de minimis, especially in light of the countervailing interests of Plaintiff’s clients.
282. Plaintiff’s clients have suffered and will imminently suffer irreparable injury as a result of Defendants’ policies, practices, and omissions and are entitled to injunctive relief to avoid any further injury.
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FOURTH CLAIM FOR RELIEF Denial of the Right to Free Speech in Violation of the First Amendment
(SPLC, on behalf of itself) 283. SPLC realleges and incorporates by reference the foregoing paragraphs and incorporates them herein by this reference. 284. The First Amendment protects SPLC’s activities as a legal organization in informing and representing its clients because those activities are modes of expression and association. 285. Defendants’ policies, practices, and omissions have interfered with and obstructed SPLC’s ability to inform and represent its clients. 286. The First Amendment also prohibits the government from restricting SPLC’s expression on the basis of its viewpoint, or treating SPLC’s expression differently from that of other attorneys on the basis of viewpoint. 287. Upon information and belief, many of the obstacles described above have been targeted at the SPLC alone—and not other immigration lawyers who practice at LaSalle, Stewart, or Irwin—due to SPLC’s underlying mission.
FIFTH CLAIM FOR RELIEF Denial of Substantive Due Process in Violation of the Fifth Amendment
(SPLC, on behalf of its clients at LaSalle, Irwin and Stewart) 288. Plaintiff realleges and incorporates by reference the foregoing paragraphs and incorporates them herein by this reference. 289. Due process prohibits imprisoning civil detainees in conditions that rise to the level of punishment.
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290. Conditions of confinement that are expressly intended to punish, that are not reasonably related to a legitimate governmental objective, and/or that are excessive in relation to that objective, constitute punishment of civil detainees in violation of the Due Process Clause.
291. The conditions of confinement for Plaintiff’s clients at LaSalle, Irwin, and Stewart, violate the Due Process Clause.
292. At each facility, Defendants’ policies and practices obstruct civil detainees from accessing and communicating with attorneys in a manner that is equivalent to or even more restrictive than conditions imposed upon criminal detainees in jails and prisons.
293. For example, contact visits with attorneys are categorically prohibited at LaSalle, Irwin, and Stewart. Rather than requiring an individualized assessment of whether a particular civil detainee poses a security threat sufficient to justify an individual ban on contact visits, Defendants deliberately choose to maintain policies and practices that permit categorical bans on contact visits between attorneys and their detained immigrant clients.
294. The constellation of restrictions on attorney access described herein violate the Due Process Clause because they, individually and collectively: (1) are identical to, similar to, or more restrictive than those under which persons accused or convicted of crimes are confined; (2) are expressly intended to punish civil detainees; (3) are not reasonably related to legitimate governmental objectives; and/or (4) are excessive in relation to any proffered objective.
SIXTH CLAIM FOR RELIEF Violation of the Administrative Procedure Act, 5 U.S.C. § 706 (SPLC, on behalf itself and its clients at LaSalle, Irwin and Stewart) 295. Plaintiff realleges and incorporates by reference the foregoing paragraphs and incorporates them herein by this reference.
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296. The Administrative Procedure Act (“APA”), 5 U.S.C. § 551, et seq., authorizes suits by “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant strategy.” 5 U.S.C. § 702.
297. ICE’s Performance-Based National Detention Standards (“PBNDS”) apply at all ICE civil detention facilities, including LaSalle, Irwin, and Stewart. The PBNDS are the primary mechanism through which Defendants execute their duty to ensure constitutional access to counsel for the thousands of detained immigrants across the United States.
298. With respect to legal visitation, the PBNDS require, among other things, that meetings between detainees and attorneys or legal assistants be confidential, be permitted for at least eight hours on weekdays and four hours on weekend days (including holidays, scheduled meal periods, and routine official counts that take place after a visit has begun), and provide for the exchange of documents even when contact visitation rooms are unavailable. The PBNDS strongly encourage contact visitation. In addition, the PBNDS require that facilities allow detainees to meet with prospective legal representatives or legal assistants, who need not file a notice of appearance to participate in a consultation visit or to provide consultation during an asylum officer interview or an Immigration Judge’s review of a negative credible fear determination.
299. Although the PBNDS are incorporated into ICE’s management contracts for LaSalle, Irwin, and Stewart, Defendants have failed miserably to ensure compliance with them. In particular, Defendants have provided an inadequate number of soundproof legal visitation rooms, deprived detainees of confidential contact with their attorneys or legal representatives, prevented the confidential exchange of documents between detainees and their attorneys or legal assistants, and imposed punitive barriers to contact visitation.
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300. An agency’s unexplained failure to follow its own rules constitutes “arbitrary, capricious” conduct in violation of the Administrative Procedure Act. 5 U.S.C. § 706(2)(A); United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 267 (1954); FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009).
301. In addition, the agency’s failure to comply with the attorney access requirements and SPLC’s First Amendment rights under the Constitution is not “in accordance with law.” 5 U.S.C. § 706(2)(A).
302. Defendants’ final agency actions have caused Plaintiff and its clients detained at LaSalle, Irwin, and Stewart to suffer injuries in fact.
303. The interests that Plaintiff seeks to protect are within the zone of interests regulated by the applicable provisions of the Constitution and the PBNDS.
304. Defendants’ final agency actions are the direct cause of the injuries to Plaintiff’s detained clients.
305. Plaintiff’s requested relief would redress these injuries. 306. Plaintiff has no adequate remedy at law to redress the wrongs suffered as set forth in this Complaint.
PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests that the Court:
1. Accept jurisdiction of this case and set it for hearing at the earliest opportunity; 2. Issue a judgment declaring that Defendants’ policies, practices, and omissions described
herein violate Plaintiff and its clients’ rights under the United States Constitution and the Administrative Procedure Act;
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3. Enjoin Defendants, their subordinates, agents, employees, and all others acting in concert with them from subjecting Plaintiff and its clients to the unlawful acts and omissions described herein, and issue an injunction sufficient to remedy the violations of Plaintiff’s and its clients’ constitutional and statutory rights, including: a. An order that Defendants provide sufficient space for timely, confidential and contact attorney-client meetings; b. An order that Defendants do not locate more noncitizen detainees at LaSalle, Irwin, and Stewart than can be reasonably accommodated for attorney visitation space; c. An order that Defendants provide a cost-effective and functional means of accessing remote interpretation services within the attorney-visitation meeting rooms; d. An order that Defendants permit confidential attorney-client telephonic and/or video teleconference communications in excess of one hour without limitation on the number of such communications; e. An order that Defendants institute protocols to ensure that such telephonic and/or video teleconference communications can be scheduled without unreasonable delay; and f. An order that Defendants permit SPLC’s staff and volunteers to use laptops, tablets and cellular telephones in the waiting rooms and attorney-visitation rooms after Plaintiff certifies that such use is in furtherance of its representation of its clients.
4. Grant Plaintiff its reasonable attorney fees and costs pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412, and any other applicable law. 75

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5. Grant such other relief as the Court deems just and proper.

Dated: October 10, 2018

Respectfully submitted,

/s/ Lisa S. Graybill Lisa Graybill Jamila Johnson Jared Davidson Southern Poverty Law Center 201 St. Charles Avenue, Suite 2000 New Orleans, Louisiana 70170 Tel: (504) 486-8982 Lisa.Graybill@splcenter.org Jamila.Johnson@splcenter.org Jared.Davidson@splcenter.org
/s/ Natalie Lyons Natalie Lyons Southern Poverty Law Center 150 E. Ponce de Leon Ave., Ste. 340 Decatur, GA 30030 Tel: (404) 521-6700 Natalie.Lyons@splcenter.org

/s/ Melissa Crow Melissa Crow (DC Bar No. 453487) Southern Poverty Law Center 1666 Connecticut Avenue, NW, Suite 100 Washington, DC 20009 Tel: 202-355-4471 Melissa.Crow@splcenter.org
/s/ John T. Bergin John T. Bergin (DC Bar No. 448975) Kilpatrick Townsend & Stockton LLP 607 14th Street NW, Suite 900 Washington, DC 20005 Tel: (202) 481-9942 JBergin@kilpatricktownsend.com

/s/ William E. Dorris William E. Dorris Susan W. Pangborn Jeffrey Fisher Kilpatrick Townsend & Stockton LLP 1100 Peachtree Street NE, Suite 2800 Atlanta, GA 30309 Tel: (404) 815-6104 BDorris@kilpatricktownsend.com SPangborn@kilpatricktownsend.com JFisher@kilpatricktownsend.com

/s/ Gia L. Cincone Gia L. Cincone Kilpatrick Townsend & Stockton LLP Two Embarcadero Center, Suite 1900 San Francisco, CA 94111 Tel: (415) 273-7571 GCincone@kilpatricktownsend.com

Attorneys for Plaintiff

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 Case 1:18-cv-00760-CKK-RMM Document 70 Filed 08/28/19 Page 1 of 92

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SOUTHERN POVERTY LAW CENTER, in its individual capacity and on behalf of its clients detained at Pine Prairie ICE Processing Center, LaSalle ICE Processing Center, Irwin County Detention Center, and Stewart Detention Center 400 Washington Ave. Montgomery, AL 36104;

Civil Action No. 1.18-cv-00760-CKK

Plaintiff,

v.
U.S. DEPARTMENT OF HOMELAND SECURITY 3801 Nebraska Ave., NW Washington, DC 20016;

SECOND AMENDED COMPLAINT

U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT 500 12th St., SW Washington, DC 20536;

KEVIN MCALEENAN,1 Acting Secretary of Homeland Security, in official capacity 3801 Nebraska Ave., NW Washington, DC 20016;

MATTHEW T. ALBENCE, Acting Director, U.S. Immigration and Customs Enforcement, in official capacity 500 12th St., SW Washington, DC 20536;

DEREK N. BENNER, Acting Deputy Director, U.S. Immigration and Customs Enforcement, in official capacity 500 12th St., SW Washington, DC 20536;

1 Under Federal Rule of Civil Procedure 25(d), Mr. McAleenan, Mr. Albence, Mr. Benner, and Mr. Lucero are substituted for their predecessors.

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NATHALIE R. ASHER, Executive Associate Director, Enforcement and Removal Operations, in official capacity 500 12th St., SW Washington, DC 20536;
TAE JOHNSON, Assistant Director for Custody Management, Enforcement and Removal Operations, in official capacity 500 12th St., SW Washington, DC 20536;
CLAIRE TRICKLER-MCNULTY, Deputy to Assistant Director for Custody Management, Enforcement and Removal Operations, in official capacity 500 12th St., SW Washington, DC 20536;
ENRIQUE LUCERO Assistant Director, Field Operations, Enforcement and Removal Operations, in official capacity 500 12th St., SW Washington, DC 20536;
TREY LUND, Acting Field Office Director, U.S. Immigration and Customs Enforcement, New Orleans Field Office, in official capacity 830 Pine Hill Road Jena, LA 71342;
SEAN GALLAGHER, Field Office Director, U.S. Immigration and Customs Enforcement, Atlanta Field Office, in official capacity 180 Ted Turner Dr., SW, Suite 522 Atlanta, GA 30303,
Defendants.

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TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1 PARTIES......................................................................................................................................... 5 JURISDICTION AND VENUE .................................................................................................. 10 STATEMENT OF FACTS .......................................................................................................... 11 I. THE GOVERNMENT HAS EXPONENTIALLY EXPANDED THE SCOPE OF
CIVIL IMMIGRANT DETENTION DESPITE THE AVAILABILITY OF EFFECTIVE AND COST-EFFICIENT ALTERNATIVES ..........................................11 A. LaSalle ICE Processing Center ...............................................................................15 B. Irwin County Detention Center ...............................................................................17 C. Stewart County Detention Center............................................................................18 D. Pine Prairie ICE Processing Center.........................................................................20 II. HIGH STAKES AND LOW REPRESENTATION RATES IN COMPLEX IMMIGRATION PROCEEDINGS PRODUCE POOR OUTCOMES FOR DETAINED IMMIGRANTS .............................................................................................21 A. Immigration Law is Complex..................................................................................21 B. Immigrants are Not Entitled to Appointed Counsel ................................................23 C. Representation and Release from Detention via Parole or Bond Significantly
Impact an Immigrant’s Chance of Success on the Merits of His or Her Case ........24 III. SPLC CREATED THE SOUTHEAST IMMIGRANT FREEDOM INITIATIVE TO
ADDRESS THE PAUCITY OF REPRESENTATION FOR IMMIGRANTS DETAINED IN THE RURAL SOUTH BY PROVIDING COMPETENT, ETHICAL PRO BONO COUNSEL .....................................................................................................26 IV. THE TOTALITY OF THE CIRCUMSTANCES AT LASALLE, IRWIN, PINE PRAIRIE, AND STEWART VIOLATE PLAINTIFF’S AND PLAINTIFF’S CLIENTS’ CONSTITUTIONAL RIGHTS ....................................................................30 A. The Totality of the Circumstances at LaSalle ICE Processing Center Violate
Plaintiff’s and Plaintiff’s Clients’ Constitutional Rights ........................................37 B. The Totality of the Circumstances at Irwin County Detention Center Violate
Plaintiff’s and Plaintiff’s Clients’ Constitutional Rights ........................................44 C. The Totality of the Circumstances at Stewart Detention Center Violate Plaintiff’s
and Plaintiff’s Clients’ Constitutional Rights .........................................................48 D. The Totality of the Circumstances at Pine Prairie ICE Processing Center Violate
Plaintiff’s and Plaintiff’s Clients’ Constitutional Rights ........................................55 V. DEFENDANTS ARE RESPONSIBLE FOR THE VIOLATIONS OF PLAINTIFF’S
AND PLAINTIFF’S CLIENTS’ CONSTITUTIONAL RIGHTS..................................65 A. Defendants Direct, Manage and Control the U.S. Immigration Detention System 65
i

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Prisons .....................................................................................................................67 C. Defendants Promulgated Performance-Based National Detention Standards to
Govern Conditions of Confinement in Immigration Prisons ..................................71 D. Defendants Fail to Monitor or Enforce Compliance with the PBNDS or Remediate
Violations ................................................................................................................74 FIRST CLAIM FOR RELIEF .................................................................................................... 79 SECOND CLAIM FOR RELIEF ............................................................................................... 81 THIRD CLAIM FOR RELIEF ................................................................................................... 81 FOURTH CLAIM FOR RELIEF............................................................................................... 82 FIFTH CLAIM FOR RELIEF.................................................................................................... 83 SIXTH CLAIM FOR RELIEF ................................................................................................... 84 PRAYER FOR RELIEF .............................................................................................................. 86
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INTRODUCTION 1. The United States currently detains hundreds of thousands of noncitizens in civil immigration prisons each year. These detainees include both documented and undocumented people. Many have been in the United States for years and have strong family and community ties. Others have arrived more recently, frequently after fleeing persecution in their home countries. The basis for detaining noncitizens in immigration prisons is civil, not criminal. Many of these detained people have claims that would allow them to remain in the United States, and many also have viable claims that they should be released on bond or parole pending completion of their removal proceedings. Legal representation often ensures that such people are not unnecessarily detained for long periods of time, and also frequently makes the difference between whether they are allowed to remain safely in the United States or are permanently separated from family and returned to danger or even death. 2. Noncitizen detainees represented by counsel are ten-and-a-half times more likely to succeed in their cases, and almost seven times more likely to obtain bond, as compared to their pro se counterparts. Individuals who are released from detention and are able to secure counsel are almost twenty times more likely to succeed in their cases than detainees without counsel.1
1 See Ingrid V. Eagly & Steven Shafer, A National Study of Access to Counsel in Immigration Court, 164 U. Pa. L. Rev. 1, 49, 70 (2015) [hereinafter Eagly & Shafer] (describing different outcomes for represented versus unrepresented noncitizens in removal proceedings between 2007 and 2012); see also Jennifer Stave et al., Vera Inst. of Justice, Evaluation of the New York Immigrant Family Unity Project: Assessing the Impact of Legal Representation on Family and Community Unity 60 (Nov. 2017), https://storage.googleapis.com/vera-webassets/downloads/Publications/new-york-immigrant-family-unity-projectevaluation/legacy_downloads/new-york-immigrant-family-unity-project-evaluation.pdf. (success rate for immigrant detainees with legal counsel 1,100 percent greater than for pro se detainees); Emily Ryo, Detained: A Study of Immigration Bond Hearings, 50 Law & Soc’y Rev. 117 (2016) (immigrant detainees’ chances of securing bond substantially higher when represented by counsel).
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3. The Fifth Amendment to the U.S. Constitution contemplates the crucial role of counsel in high-stakes court proceedings. Courts consistently interpret this amendment to afford people in removal proceedings the right to legal representation at their own expense at full and fair hearings. Yet this right is all but illusory for the thousands of people whom Defendants detain in isolated prisons in remote and rural parts of the United States.
4. For decades, the Department of Homeland Security, Immigration and Customs Enforcement, and their officials (“Defendants”) have deliberately detained people in secure, highly restrictive immigration prisons far away from legal resources. Consistent with this policy and practice, Defendants have contracted with local municipalities and private prison companies to detain noncitizens in some of the most rural and remote locales in the Southeast—far from major cities, law firms, nonprofit legal organizations, and professional interpretation services. Although the law prohibits Defendants from subjecting civil detainees to punitive incarceration, the conditions and restrictions within these immigration prisons are largely indistinguishable from—if not worse than—prisons and jails that hold criminal arrestees and people convicted of crimes.
5. Defendants’ imprisonment policies and practices have far-reaching and devastating consequences. Those ensnared by Defendants’ policies and practices often have strong ties to their communities, having lived in the United States for many years. Their families are torn apart often for years: parents are separated from their children and spouses from each other and other family members—all with enormous emotional distress. When a parent or other primary wage-earner is imprisoned for a long period of time, these families face immediate economic hardship as well.
6. Families face the additional burden of having to travel great distances to see their loved ones in remote immigration prisons. Many families cannot afford the cost, in terms of either time or dollars, that this travel requires and must forego any visits, putting further strain on the
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family. Employers and communities lose valuable contributors, often with no notice, creating further dislocation. And for those who have fled their home countries more recently due to persecution, their imprisonment in the United States simply continues a cycle of trauma they sought to escape. Without legal representation, the prospects for asserting their rights and reuniting with their families are dim.
7. And yet imprisoned in such isolated settings, people often find it impossible to secure counsel. Moreover, in the rare instances where people in these rural detention centers are able to retain counsel, Defendants’ policy and practice is to detain so many people in these prisons that the small number of attorney-visitation rooms makes attorney-client meetings extremely difficult—if not impossible.
8. Defendants’ policies and practices create and maintain substantial barriers that prevent meaningful access to and communication with attorneys. Defendants place people in civil detention in remote prisons where attorneys are forced to wait hours to meet with a single client, where access to critically needed interpreters is restricted, where contact visitation between attorneys and clients is categorically prohibited, where people are shackled during legal visits, and where their ability to speak remotely and confidentially with their attorneys via telephone is substantially impeded or functionally non-existent.
9. After placing people in these prisons, Defendants fail to adequately monitor their agents who operate them. Despite Defendants’ nondelegable constitutional duty to ensure adequate access to counsel and the courts, Defendants do little-to-nothing to prevent their agents from compounding the barriers between detainees and attorneys. Defendants are ultimately responsible for ensuring that conditions in these prisons comply with constitutional dictates; yet, due to Defendants’ abdication of their monitoring and oversight duties, the agents who operate the prisons
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enjoy virtual impunity for their obstructive conduct. For example, Defendants’ agents unjustifiably interrupt attorney-client visits, search attorneys’ legal files, deny attorney-client meetings during counts and shift changes, prevent attorneys from seeing their clients even when visitation rooms are available, frequently and arbitrarily change visitation rules, and listen in on attorney-client communications.
10. Attorneys and others providing assistance with legal representation also endure harassment for the “unpopular work” of representing these detainees. The tactics of Defendants and their agents include following legal representatives off detention center property, examining them on the side of the road, and accusing them of supporting “illegal immigration;” forcing them to remove undergarments before entering civil prisons; pressuring them to end attorney-client visits early; interrupting and interrogating them during client visits; and trapping them for hours in locked areas of the prisons.
11. Such policies and practices further interfere with detainees’ access to, and communication with, their attorneys and impede attorneys’ ability to provide effective, constitutionally guaranteed representation that comports with their ethical obligations.
12. Nationally, only 14 percent of detained noncitizens are represented in immigration removal proceedings—compared to 37 percent of all immigrants. Representation rates are even lower—in some cases, as low as six percent—for noncitizens held in some of the large, rural detention centers in the Southeast. The comparatively paltry representation rates in the Southeast flow directly from Defendants’ policies, practices, and omissions.
13. This lawsuit is brought by the Southern Poverty Law Center (“SPLC”) on behalf of itself and its clients detained in four immigration prisons in the Southeastern United States— LaSalle Detention Facility in Jena, Louisiana (also known as “LaSalle ICE Processing Center,”
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hereinafter “LaSalle”); Irwin County Detention Center in Ocilla, Georgia (“Irwin”); Stewart Detention Center in Lumpkin, Georgia (“Stewart”); and Pine Prairie ICE Processing Center in Pine Prairie, Louisiana (“Pine Prairie”). The totality of barriers to accessing and communicating with attorneys endured by detainees in these prisons deprives SPLC’ s clients of their constitutional rights to access courts, to access counsel, to obtain full and fair hearings and to substantive due process, in violation of the Due Process Clause of the Fifth Amendment. In addition, Defendants’ conduct violates the Administrative Procedure Act, as well as SPLC’s rights under the First Amendment to represent civil detainees.
PARTIES 14. Plaintiff Southern Poverty Law Center (“SPLC”) is a non-profit corporation based in Montgomery, Alabama, with offices in four other Southern states: Florida, Georgia, Louisiana, and Mississippi. SPLC has recently opened an office in Washington D.C. and has already begun to staff it with undersigned counsel. 15. SPLC engages in litigation and advocacy to make equal justice and equal opportunity a reality for all, including the most vulnerable members of our society. Lawsuits brought by SPLC have challenged institutional racism and remnants of Jim Crow segregation; bankrupted white supremacist groups; and advocated for the civil rights of children, women, people with disabilities, immigrants and migrant workers, the LGBT community, prisoners, and many others who faced discrimination, abuse, and exploitation. Plaintiff SPLC also has a history of litigation and advocacy regarding the conditions of confinement for those in government custody, including immigration imprisonment. SPLC brings this litigation on behalf of itself and its clients detained at LaSalle, Irwin, Pine Prairie and Stewart.
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16. In 2017, SPLC launched the Southeast Immigrant Freedom Initiative (“SIFI”)—a legal representation project that aims to provide high-quality pro bono legal representation and to safeguard due process rights for the thousands of people held in civil prisons across the Southeast. At the expense of fully pursuing and fulfilling its institutional goals, SPLC has been forced to devote and redirect significant portions of its monetary and personnel resources to counteract the unlawful barriers to accessing and communicating with counsel that Defendants and their agents impose at LaSalle, Irwin, Pine Prairie and Stewart.
17. The myriad barriers to meaningful representation endured by Plaintiff’s clients at LaSalle, Irwin, Pine Prairie and Stewart, which are the basis for this constitutional challenge, not only undermine their chances of prevailing in removal proceedings but also make it virtually impossible for them to pursue litigation on their own behalf to protect their constitutional rights.
18. Any lawyers who tried to represent Plaintiff’s clients in civil litigation would encounter the same obstacles to access that SIFI staff and volunteers regularly encounter— including the inadequate number of attorney-visitation rooms, lack of contact visits, shackling, unavailability of interpreters, lack of access to video-teleconferencing (“VTC”) and telephones, lack of confidentiality, prohibition on electronic devices, and arbitrary changes in rules regarding attorney visitation. In fact, detained immigrants’ communications with counsel to remediate access barriers would have the perverse consequence of exacerbating these very barriers due to the scarcity of attorney-client visitation rooms and confidential telephone lines.
19. Further, given that most of SPLC’s detained clients have limited knowledge of the U.S. legal system and lack proficiency in English, the likelihood that they could undertake pro se litigation is virtually nil. Even if legal representation were available, many would be deterred from pursuing constitutional litigation due to a fear of retaliation by Defendants and their agents that
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could adversely impact their immigration cases. This is especially true in light of the intimidating conduct of Defendants’ agents detailed herein. Likewise, communicating with attorneys to pursue civil remedies to vindicate their rights to access counsel and the courts would further limit the insufficient time that detainees have to seek and consult with counsel regarding their removal proceedings, thereby further disincentivizing their pursuit of civil remedies.
20. Given that Plaintiff’s detained clients are substantially hindered from protecting their own rights, Plaintiff has third-party standing to bring this action based on its role in providing noncitizen detainees with legal services and their ability to properly and zealously frame the issues.
21. Defendant U.S. Department of Homeland Security (“DHS”) is a federal executive agency responsible for, among other things, enforcing federal immigration laws and overseeing lawful immigration to the United States.
22. Defendant U.S. Immigration and Customs Enforcement (“ICE”) is a component of DHS. As the principal investigative arm of DHS, ICE is charged with enforcement of immigration laws. ICE’s primary duties include the investigation of persons suspected to have violated immigration laws, and the apprehension, detention, and removal of noncitizens who are unlawfully present in the United States.
23. Defendant Kevin McAleenan is the Acting Secretary of DHS. McAleenan is charged with enforcing and administering immigration laws. He oversees each of the component agencies within DHS, including ICE, and has ultimate authority over all policies, procedures, and practices relating to ICE detention facilities. He is responsible for ensuring that all individuals held in ICE custody are detained in accordance with the Constitution and all relevant laws. Defendant McAleenan is sued in his official capacity.
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24. Defendant Matthew T. Albence is the Acting Director of ICE. Albence oversees the enforcement of the nation’s immigration laws and the operation of the government’s immigration detention system. To that end, he directs the administration of ICE’s detention policies, procedures, and operations, including those regarding the detention of noncitizens at LaSalle, Irwin, Pine Prairie, and Stewart. He is also responsible for ensuring that all individuals held in ICE custody are detained in accordance with the Constitution and all other relevant laws. Defendant Albence is sued in his official capacity.
25. Defendant Derek N. Benner is the Acting Deputy Director of ICE. Defendant Benner is sued in his official capacity.
26. Defendant Nathalie R. Asher is the Executive Associate Director, Enforcement and Removal Operations (“ERO”).2 ERO enforces the nation’s immigration laws, identifies and apprehends removable noncitizens, and detains and removes these individuals from the United States when necessary. ERO transports removable noncitizens from point to point, manages noncitizens in custody or in an “alternative to detention” program, provides access to legal resources (such as law textbooks, cases, and statutes) and representatives of advocacy groups, and removes individuals from the United States who have been ordered deported. Under the supervision of Defendant Benner, Defendant Asher oversees ERO’s enforcement of the nation’s immigration laws, identifies and apprehends removable noncitizens, and detains and removes these individuals from the United States when necessary. Defendant Asher is sued in her official capacity.
2 In their July 24, 2019 Answer, ECF No. 65, Defendants admitted that Nathalie R. Asher is the Executive Associate Director of ERO. However, as of August 23, 2019, Timothy S. Robbins is listed as the Active Executive Associate Director of ERO on ICE’s website. See ICE Leadership, https://www.ice.gov/leadership (last visited Aug. 23, 2019). Plaintiff names as Defendant whomever is the Executive Associate Director of ERO Senior Official Performing the Duties thereof at the time of filing.
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27. Defendant Enrique Lucero is the Assistant Director, Field Operations for Enforcement and Removal Operations. Lucero oversees 24 field office directors nationwide. He has authority over the implementation of any remedy provided by the court and is in an immediate supervisory position to oversee compliance. Defendant Lucero is sued in his official capacity.
28. Defendant Tae Johnson is the Assistant Director for Custody Management, Enforcement and Removal Operations. In this capacity, Johnson is responsible for policy and oversight of the administrative custody of noncitizen detainees and oversees detention operations, including those at local prisons operating under intergovernmental service agreements and contract detention facilities. Defendant Johnson is sued in his official capacity.
29. Defendant Claire Trickler-McNulty3 is a Deputy to Defendant Tae Johnson, and was previously the Acting Director of ICE’s Office of Detention Policy and Planning (“ODPP”). In that capacity, Trickler-McNulty oversaw ICE’s efforts to improve the current immigration detention system, working extensively with both internal and external stakeholders. Upon information and belief, the ODPP was eliminated and its employees and responsibilities were distributed within ICE. Defendant Trickler-McNulty is sued in her official capacity.
30. Defendant Sean Gallagher is the Field Office Director for the ICE Atlanta Field Office. Gallagher has day-to-day responsibility for implementation of DHS and ICE policies, procedures, and practices relating to the detention of immigrants in Georgia, South Carolina, North Carolina, and at the U.S. border. He is responsible for implementation of DHS and ICE policies and procedures that ensure that all individuals held in ICE custody in detention centers in these
3 In their July 24, 2019 Answer, ECF No. 65, Defendants admitted that Ms. Trickler-McNulty was the Acting Director of ICE’s Office of Detention Policy and Planning but deny that she is currently deputy to Tae Johnson. They further admit that the position of Deputy to the Assistant Director for Custody Management for ERO is vacant.
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states are detained in accordance with the Constitution and all relevant laws. Defendant Gallagher is sued in his official capacity related to Irwin and Stewart.
31. Defendant Trey Lund4 is the Acting Field Office Director for the ICE New Orleans Field Office. Lund has day-to-day responsibility for implementation of DHS and ICE policies, procedures, and practices relating to the detention of immigrants in Louisiana, Alabama, Arkansas, Mississippi, and Tennessee. He is responsible for implementation of DHS and ICE policies and procedures that ensure that all individuals held in ICE custody in detention centers in these states are detained in accordance with the Constitution and all relevant laws. Defendant Lund is sued in his official capacity related to LaSalle and Pine Prairie.
JURISDICTION AND VENUE 32. This Court has subject matter jurisdiction under 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 1346 (United States as defendant). Defendants have waived sovereign immunity for purposes of this suit. 5 U.S.C. §§ 702, 706. 33. This Court has jurisdiction to enter declaratory and injunctive relief to recognize and remedy the underlying constitutional violations under 28 U.S.C. §§ 2201 and 2202 (declaratory relief), and 28 U.S.C. § 1651 (writs). 34. Personal jurisdiction and venue is proper pursuant to 28 U.S.C. § 1391(e) because one or more defendants reside in the District of Columbia, and Defendants DHS and ICE are
4 In their July 24, 2019 Answer, ECF No. 65, Defendants admitted that Mr. Lund was the Acting Field Office Director. However, as of August 26, 2019, Stanley Crockett is listed as the Field Office Director on USCIS’s website. See Louisiana – New Orleans Field Office, https://www.uscis.gov/about-us/find-uscis-office/field-offices/louisiana-new-orleans-field-office (last visited Aug. 26, 2019). Plaintiff names as Defendant whomever is Field Office Director for the ICE New Orleans Field Office or the Senior Official Performing the Duties thereof at the time of filing.
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headquartered in this District. Starnes v. McGuire, 512 F.2d 918, 925-26 (D.C. Cir. 1974) (where defendant federal officers are located “within the District of Columbia for purposes of personal jurisdiction, venue is properly laid”).
STATEMENT OF FACTS 35. The United States is the world’s leading incarcerator with over two million people in prisons and jails across the country. But not all of the United States’ incarceration stems from our criminal justice system; the United States also maintains the world’s largest immigration detention system. 36. Immigrants held in detention are not criminal detainees, but rather civil detainees who are awaiting adjudication of their immigration cases and are held pursuant to civil immigration laws. Federal custodians are, therefore, prohibited from subjecting detained immigrants to treatment that amounts to punishment.
I. THE GOVERNMENT HAS EXPONENTIALLY EXPANDED THE SCOPE OF CIVIL IMMIGRANT DETENTION DESPITE THE AVAILABILITY OF EFFECTIVE AND COST-EFFICIENT ALTERNATIVES 37. Notwithstanding that immigrants are held under civil authority that encourages
release,5 the civil incarceration of immigrants in America has followed a trajectory similar to criminal detention. In the 1980s and 1990s—as America’s prison boom accelerated—mass civil detention of immigrants emerged.
5 See Matter of De La Cruz, 20 I& N Dec. 346, 349 (BIA 1991) (immigrant in removal proceedings “generally should not be detained or required to post bond pending a determination of deportability except on a finding that he is a threat to the national security or is a poor bail risk”) (citing Matter of Patel, 15 I&N Dec. 666 (BIA 1976)).
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38. In 1994, the U.S. government detained 6,000 noncitizens per day. By 2005, that number had grown to 20,000. Today, the government detains over 38,000 immigrants per day, or over 350,000 people each year. Defendants project that the number will increase to over 51,000 civil immigrant detainees per day in fiscal year 2018.
This graph tracks the average daily population of noncitizens held in immigration detention from FY 1994-2017.6
39. The origin of this aggressive civil detention expansion is linked to the United States’ enactment of two laws in 1996—the Antiterrorism and Effective Death Penalty Act (AEDPA) and
6 Chad C. Haddal & Alison Siskin, Cong. Research Serv., Immigration-Related Detention: Current Legislative Issues 12 (Jan. 27, 2010), https://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1712&context=key_workplace (data for FY 1994-2010); Alison Siskin, Cong. Research Serv., Immigration-Related Detention: Current Legislative Issues 13 (Jan. 1, 2012), https://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&htt psredir=1&article=1887&context=key_workplace (data for FY 2010-2012); U.S. Dep’t of Homeland Sec., U.S. Immigration and Customs Enforcement - Budget Overview (2018), https://www.dhs.gov/sites/default/files/publications/CFO/17_0524_U.S._Immigration_and_Custo ms_Enforcement.pdf. 14 (data for FYI 2013-2016); Laura Wamsley, As It Makes More Arrests, ICE Looks For More Detention Centers, Nat’l Pub. Radio (Oct. 26, 2017), https://www.npr.org/sections/thetwo-way/2017/10/26/560257834/as-it-makes-more-arrests-icelooks-for-more-detention-centers (data for FY 2017).
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the Illegal Immigrant Reform and Immigrant Responsibility Act (IIRIRA). These laws expanded mandatory detention and also rendered any non-U.S. citizen, including legal permanent residents who committed certain offenses, vulnerable to detention and deportation.
40. In cases where detention is not legally required, ICE has discretion to determine whether noncitizens should be released on bond, parole, recognizance, or subject to other conditions.7 For most people held in immigration prisons, there is no law requiring that they be imprisoned before their hearings. ICE chooses whether and where to imprison them.
41. Multiple alternatives to detention exist, and ICE’s use of certain types of alternatives to detention has resulted in high rates of appearance at court proceedings—the purpose that initially drove the creation of the immigration detention system—and substantially reduced costs. Notwithstanding the availability and documented efficacy of these alternatives, ICE has significantly expanded the use of civil immigrant detention in the last decade.
42. In 2009, as part its appropriations for DHS, Congress mandated that ICE “maintain” at least 33,400 detention beds in immigration prisons across the country. ICE has construed this language to mandate that it will fill every one of the detention beds it “maintains,” such that this so-called “bed mandate” or “bed quota” is used to justify enforcement actions against individuals whose detention can help keep those beds full. The number of beds included in the mandate has steadily increased since its inception.
43. In Fiscal Year 2018, Defendant ICE estimates the cost for one adult immigration bed will be $133.99 per day.8 ICE also runs an Alternatives to Detention (“ATD”) Program. Under
7 See 8 C.F.R. §§ 236.1(c), 1236.1(c). 8 U.S. Dep’t of Homeland Sec., U.S. Immigration and Customs Enforcement - Budget Overview 14 (2018), https://www.dhs.gov/sites/default/files/publications/ICE%20FY18%20Budget.pdf; see also U.S. Gov’t Accountability Office, Immigration Detention, Opportunities Exist to
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one of ATD’s costlier programs, the Intensive Supervision Appearance Program, ICE spends no more than an average of $4.50 a day per participant.9 A recent GAO review of the ATD program
found that, of those immigrants participating in the “Full-Service” component of ATD, “over 99
percent of [immigrants] with a scheduled court hearing appeared at their scheduled court hearings…
with the appearance rate dropping slightly to over 95 percent of [immigrants] with a scheduled final hearing appearing at their final removal hearing[.]” 10
44. Defendants detain immigrants who are in removal proceedings in nearly 200
immigration prisons across the country. Many of these prisons were designed to incarcerate
individuals charged with or sentenced for violating criminal law, but actually incarcerate both
civilly detained immigrants and individuals incarcerated pursuant to criminal proceedings. In many
instances, the conditions civilly detained immigrants experience do not differ from those who are
incarcerated related to criminal proceedings, and in some instances, they are worse.
45. ICE itself has recognized that there are “important distinctions between the
characteristics of the Immigration Detention population in ICE custody and the administrative
purpose of the detention . . . as compared to the punitive purpose of the Criminal Incarceration system.”11 Yet, as Defendants themselves have previously recognized, immigrant detainees and
Improve Cost Estimates 12 n.19 (Apr. 2018), https://www.gao.gov/assets/700/691330.pdf. (“ICE’s fiscal year 2018 budget request for adult beds was $2,390,489,000. The correct calculation to fund adult beds is 48,879 x $133.99 x 365 = $2,390,493,000, which is slightly more than what ICE requested.”). 9 U.S. Dep’t of Homeland Sec., U.S. Immigration and Customs Enforcement - Budget Overview 179–80 (2018), https://www.dhs.gov/sites/default/files/publications/ICE%20FY18%20Budget.pdf. 10 U.S. Gov’t Accountability Office, Alternatives to Detention 30 (Nov. 2014), https://www.gao.gov/assets/670/666911.pdf. 11 Dora Schriro, U.S. Immigration and Customs Enforcement, Immigration Detention Overview and Recommendations 2 (Oct. 2009), https://www.ice.gov/doclib/about/offices/odpp/pdf/icedetention-rpt.pdf.
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criminal detainees “are typically managed in similar ways . . . in secure facilities with hardened perimeters in remote locations at considerable distances from counsel and/or their communities.”12
46. In January 2017, the Trump Administration took office armed with an aggressive immigration enforcement agenda, and civil arrests on immigration charges increased by 38 percent within its first four months. By October 2017, ICE was eyeing locations for five new detention centers that could house thousands more detainees, while the number of immigration arrests continued to increase.
47. Detained people may languish in ICE’s prisons for years before their removal proceedings are completed. Accessing and retaining an attorney substantially increases the odds that an immigrant detainee will be released on bond or parole and therefore avoid such prolonged detention.
48. Defendants’ policies, procedures, and practices of placing detainees in four remote prisons that create structural and operational barriers to detainees’ access to courts and counsel, then failing to monitor or remediate the resulting constitutional violations, form the core of this complaint. These four detention centers are the LaSalle ICE Processing Center, the Irwin County Detention Center, the Stewart Detention Center, and the Pine Prairie ICE Processing Center.
A. LaSalle ICE Processing Center 49. LaSalle is located in Jena, Louisiana, a city of 3,435 residents, including the noncitizens detained there. LaSalle is approximately 220 miles—a nearly four-hour drive—from New Orleans. There were no immigration attorney offices in the vicinity of Jena, Louisiana, until SPLC launched SIFI in September 2017. SIFI currently maintains an office in Alexandria, Louisiana, which serves detainees at LaSalle.
12 See id. at 4. 15

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50. LaSalle has capacity to hold 1,200 detainees. For context, that is one-third of the town of Jena’s population.
51. Immigrant detention is the latest use of the facility, which originally opened in 1998 as the Jena Juvenile Corrections Facility. Advocacy groups reported significant civil and human rights abuses there; the United States Department of Justice announced an investigation; and the prison was closed three years later after being deemed unfit for use.
52. In 2005, the prison was repurposed to hold prisoners evacuated from New Orleans in the aftermath of Hurricane Katrina. The prison was closed down again after multiple reports of inhumane treatment at the facility.
53. In 2007, ICE selected LaSalle for a contract to hold federal immigration detainees, and it opened its doors as an immigration prison shortly thereafter.
54. The transition to immigration imprisonment did not save the facility from its notorious reputation—LaSalle has had the highest number of deaths of any immigration prison in the United States over the last two years.13
55. Defendants’ policies, procedures, and practices govern the selection of the LaSalle ICE Processing Center as an immigration prison and the terms of the contracts pursuant to which it operates; the placement of ICE detainees at that prison and which detainees are selected for placement there; the conditions of confinement that they endure; and, for many of them, whether and under what circumstances they are released.
56. Detainees at the LaSalle are there pursuant to ICE’s custodial authority over them as federal detainees.
13 Oliver Laughland, Inside Trump’s Secretive Immigration Court: Far From Scrutiny and Legal Aid, The Guardian (June 7, 2017), https://www.theguardian.com/us-news/2017/jun/07/donaldtrump-immigration-court-deportation-lasalle.
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57. Defendants are ultimately responsible for ensuring that the conditions at LaSalle comply with constitutional and other legal requirements, including ensuring that detainees have meaningful access to legal representation. Defendants have utterly failed in that regard. Defendants are derelict in their duty because they have failed to remediate the substantial barriers that impede LaSalle detainees’ access to counsel.
B. Irwin County Detention Center 58. Irwin is located in Ocilla, Georgia—a city of 3,604 residents that is 185 miles from Atlanta. The drive from Atlanta takes approximately three hours each way. Today, the immigration prison is the second largest employer in Irwin County. 59. The Irwin County Detention Center was previously operated variously as a boot camp for youth, a holding facility for U.S. Marshals Service detainees, and a jail for neighboring counties whose jails were full. It was significantly expanded in 2007 and now has the capacity to incarcerate approximately 1,200 people. 60. In 2009, with the county deeply in debt over the expansion, Georgia’s federal legislators sought federal detainees to populate the facility. According to an investigative article published in The Nation about the decision to place immigrant detainees at Irwin, “Initially, ICE officials seemed reluctant. E-mails obtained through open records requests showed they were concerned about the detention center’s distance from legal services and ICE staff.”14 Nonetheless, ICE contracted for the housing of federal immigration detainees at Irwin and began placing them there in late 2010.
14 Hannah Rappleye & Lisa Riordan Seville, How One Georgia Town Gambled its Future on Immigrant Detention, The Nation (Apr. 10, 2012), https://www.thenation.com/article/how-onegeorgia-town-gambled-its-future-immigration-detention.
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61. Irwin typically detains around 700 noncitizens. The detainees at Irwin are transported there despite its remote and inconvenient location far from ICE’s administrative offices, the vast majority of immigration lawyers, and the immigration courts in Atlanta that adjudicate the cases of many Irwin detainees. In addition to people in removal proceedings, Irwin also detains individuals charged with criminal violations of federal law under the supervision of the U.S. Marshals Service and a minimal number of county detainees who have been charged with violations of state criminal law.
62. Defendants’ policies, procedures, and practices govern the selection of the Irwin County Detention Center as an immigration prison and the terms of the contracts pursuant to which it operates; the placement of ICE detainees at that prison and which detainees are selected for placement there; the conditions of confinement that they endure; and, for many of them, whether and under what circumstances they are released.
63. Detainees at the Irwin County Detention Center are there pursuant to ICE’s custodial authority over them as federal detainees.
64. Defendants are ultimately responsible for ensuring that the conditions at Irwin comply with constitutional and other legal requirements, including ensuring that detainees have meaningful access to legal representation. Defendants have utterly failed in that regard. Defendants are derelict in that duty because they have failed to remediate the substantial barriers that impede Irwin detainees’ access to counsel.
C. Stewart County Detention Center 65. Stewart is located in Lumpkin, Georgia. Lumpkin is a small town of approximately 1,091 residents and is approximately 140 miles from Atlanta—a drive of two and a half hours. Stewart County itself is one of Georgia’s least populous counties, with fewer than 6,000 residents,
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of whom approximately 25 percent are people held at the detention center. Lumpkin has very few businesses, no grocery store and no library. The detention center is the town’s primary employer.
66. Stewart County constructed the facility in 2004. In 2006, Defendant ICE entered into a contractual arrangement whereby the facility would serve as an immigration detention center.
67. Stewart is one of the largest detention facilities in the country, with the capacity to hold nearly 2,000 men. In December 2017, the Department of Homeland Security’s Office of Inspector General (“OIG”) released a report entitled “Concerns about ICE Detainee Treatment and Care at Detention Facilities” that documented the results of unannounced inspections at six detention facilities, one of which was Stewart. Among other things, the OIG reported that staff at Stewart misclassified detainees upon intake; that there was an insufficiently documented grievance system; that the number to the OIG hotline was restricted; and that staff were violating procedures for the administration, justification, and documentation of segregation and lock-down of detainees. ICE concurred in the OIG’s recommendations that the Acting Director of ICE should ensure that ERO field offices develop a process for conducting specific reviews of the areas where deficiencies were found, and that deficiency and corrective action should be reported to ERO headquarters to ensure deficiencies are corrected.
68. Defendants’ policies, procedures, and practices govern the selection of the Stewart Detention Center as an immigration prison and the terms of contracts pursuant to which it operates; the placement of ICE detainees at that prison and which detainees are selected for placement there; the conditions of confinement that they endure; and, for many of them, whether and under what circumstances they are released.
69. Detainees at the Stewart Detention Center are there pursuant to ICE’s custodial authority over them as federal detainees.
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70. Defendants are ultimately responsible for ensuring that the conditions at Stewart comply with constitutional and other legal requirements, including ensuring that detainees have meaningful access to legal representation.
71. Defendants have utterly failed in that regard. Since SIFI launched at Stewart in April 2017, the conditions, policies, and practices at the facility have routinely prevented detainees from accessing their attorneys and have impeded attorneys’ ability to meaningfully represent detained immigrants at Stewart.
D. Pine Prairie ICE Processing Center 72. Pine Prairie is located in Pine Prairie, Louisiana, a rural village of 1,455 residents. Pine Prairie is approximately 178 miles – a nearly three-hour drive – from New Orleans and more than 100 miles from Baton Rouge. Until SPLC launched SIFI in October 2018, there were no pro bono and few for-hire immigration attorney offices in the vicinity of Pine Prairie, Louisiana. 73. Pine Prairie has the capacity to hold nearly 1,100 people and currently holds approximately 890 men and transgender women. Upon information and belief, Pine Prairie has detained individuals in ICE custody since at least 2017. 74. Defendants’ policies, procedures, and practices govern the selection of Pine Prairie as an immigration prison and the terms of contracts pursuant to which it operates; the placement of ICE detainees at that prison and which detainees are selected for placement there; the conditions of confinement that they endure; and, for many of them, whether and under what circumstances they are released. 75. Non-citizens detained at Pine Prairie are imprisoned there pursuant to ICE’s custodial authority over them as federal detainees.
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76. Defendants are ultimately responsible for ensuring that the conditions at Pine Prairie
comply with constitutional and other legal requirements, including ensuring that detained
individuals have meaningful access to legal representation. Defendants have utterly failed in that
regard. Defendants are derelict in their duty because they have failed to remediate the substantial
barriers that impede access to counsel for individuals detained at Pine Prairie.
II. HIGH STAKES AND LOW REPRESENTATION RATES IN COMPLEX IMMIGRATION PROCEEDINGS PRODUCE POOR OUTCOMES FOR DETAINED IMMIGRANTS
A. Immigration Law is Complex
77. Immigration is complex and highly technical.15 Multiple federal courts have
observed that the immigration laws rival the tax laws in their complexity.16
78. The Supreme Court has consistently reaffirmed the “purely civil” nature of
immigration proceedings.17
15 See Drax v. Reno, 338 F.3d 98, 99 (2d Cir. 2003) (referencing the “labyrinthine character of modern immigration law—a maze of hyper-technical statutes and regulations that engender waste, delay, and confusion for the Government and petitioners alike”); Baltazar-Alcazar v. INS, 386 F.3d 940, 947-48 (9th Cir. 2004) (“A petitioner must weave together a complex tapestry of evidence and then juxtapose and reconcile that picture with the voluminous, and not always consistent, administrative and court precedent in this changing area.”); United States v. AguirreTello, 324 F.3d 1181, 1187 (10th Cir. 2003) (“The district judge observed that immigration law is technical and complex to the point that it is confusing to lawyers, much less to laymen.”), vacated, 324 F.3d 1181 (en banc); Lok v. INS, 548 F.2d 37, 38 (2d Cir. 1977) (Immigration laws bear a “striking resemblance …[to] King Minos’s labyrinth in ancient Crete. The Tax Laws and the Immigration and Nationality Acts are examples we have cited of Congress’s ingenuity in passing statutes certain to accelerate the aging process of judges”). 16 See, e.g., Castro-O’Ryan v. INS, 847 F.2d 1307, 1312 (9th Cir. 1987) (“With only a small degree of hyperbole, the immigration laws have been termed ‘second only to the Internal Revenue Code in complexity.’”) (internal quotation and citation omitted). 17 See, e.g., INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984); see also Fong Yue Ting v. United States, 149 U.S. 698, 728-29 (1893); Li Sing v. United States, 180 U.S. 486, 494 (1901); Harisiades v. Shaughnessy, 342 U.S. 580 594 (1952).
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79. Civil immigration proceedings pit the government against the noncitizen in an adversarial process where each side is presumed to have the ability to represent its own interests. A DHS attorney—called the trial attorney—trained in substantive immigration law and immigration court procedures represents the government. This attorney acts as a prosecutor and seeks to establish the noncitizen’s removability.
80. Respondents—who bear the burden of proof to establish that they are statutorily entitled to immigration relief and, in many cases, merit a favorable exercise of discretion—must admit or deny allegations, compile voluminous evidence, and articulate sophisticated legal arguments. The opportunity for federal court review of removal orders is relatively limited because immigration judges’ factual findings receive deference unless they are clearly erroneous.
81. Although the government has the burden of proof, the respondent may concede the allegations against him at the initial master calendar hearing. If that happens, the immigration judge may find that the government has established the respondent’s removability, even in the absence of other evidence. Without meaningful representation, the respondent may forego the opportunity to contest the charges against him, identify potential avenues of relief, marshal the facts and law necessary to establish his eligibility, or follow the requisite procedures to apply for relief from removal.
82. Additional challenges for the unrepresented lurk at every turn. For instance, applications for relief are in English and must be completed in English. If a pro se individual writes an application in a language other than English, the applications are deemed abandoned and the respondents are ordered removed. Moreover, an applicant seeking asylum or withholding of removal based on membership in a particular social group must clearly indicate on the record before the Immigration Judge the exact delineation of any proposed particular social group. Precise
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delineation is absolutely critical as it becomes the basis for the court’s case-specific analysis to determine whether the proposed social group is immutable, “particular,” and socially distinct in the country from which the respondent fled. Such a hurdle is almost impossible for a detained individual, without counsel, to overcome and obtain appropriate documentation to substantiate.
83. Acknowledging the complexity of the immigration laws, the Office of the Chief Immigration Judge “recommends that those [respondents] who can obtain qualified professional representation do so.”18
84. Despite the hyper-technical nature of immigration law and the inherent imbalance of power between the government and the respondent, the immigration removal process lacks most of the basic procedural safeguards enshrined in the U.S. criminal justice system. Noncitizens in civil immigration proceedings have no right to government-appointed counsel or a speedy trial. Immigration judges may apply harsh immigration laws retroactively, allow the government to prove its case using unlawfully obtained evidence, and exercise an inordinate amount of discretion. Moreover, immigration proceedings are not governed by the Federal Rules of Evidence.
85. The potentially life-altering consequences of removal proceedings, which “may result in the loss of all that makes life worth living,”19 makes the lack of more checks and balances particularly inexcusable.20
B. Immigrants are Not Entitled to Appointed Counsel
18 U.S. Dep’t of Justice, Executive Office for Immigration Review, Immigration Court Practice Manual 19 (Aug. 2, 2018), https://www.justice.gov/eoir/page/file/1084851/download. 19 Bridges v. Wixon, 326 U.S. 135, 147 (1945) (internal quotations omitted). 20 For more information on the differences between the U.S. immigration system and the U.S. criminal justice system, see Am. Immigration Council, Two Systems of Justice: How the Immigration System Falls Short of American Ideals of Justice (Mar. 2013), https://www.americanimmigrationcouncil.org/sites/default/files/research/aic_twosystemsofjustice. pdf.
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86. Because immigration proceedings are civil, not criminal, in nature, the Sixth Amendment does not guarantee a lawyer to immigrants in removal proceedings.
87. However, the Due Process Clause of the Fifth Amendment “indisputably affords an [noncitizen] the right to counsel of his or her own choice at his or her own expense.”21 This right to counsel is “fundamental,” and courts consistently “have warned [the government] not to treat it casually.”22 The right “must be respected in substance as well as in name.”23
88. “Th[is] right to counsel is a particularly important procedural safeguard because of the grave consequences of removal . . . [which] ‘visits a great hardship on the individual and deprives him of the right to stay and work in this land of freedom.’”24
C. Representation and Release from Detention via Parole or Bond Significantly Impact an Immigrant’s Chance of Success on the Merits of His or Her Case
89. Release from prison greatly enhances an individual’s chances of prevailing in immigration court. In addition to restoring physical liberty, release facilitates a person’s ability to retain and meaningfully engage with counsel. In fact, non-detained immigrants are five times more likely to obtain counsel than those who are detained.25 Further, non-detained immigrants have a substantially greater ability to access translation and interpretation services, to gather evidence for their cases, and to derive support from family and friends throughout the process.
90. With the exception of certain individuals subject to mandatory detention, the Immigration and Nationality Act permits the release of noncitizens on their own recognizance or on bond.26
21 Leslie v. Att’y Gen. of United States, 611 F.3d 171, 181 (3d Cir. 2010). 22 Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 554 (9th Cir. 1990). 23 Baires v. INS, 856 F.2d 89, 91 n.2 (9th Cir. 1988). 24 Leslie, 611 F.3d at 181 (quoting Bridges, 326 U.S. at 154). 25 Eagly & Shafer, supra note 2, 32. 26 8 U.S.C. § 1226(a)(2)(A).
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91. Following the arrest of a noncitizen, DHS makes an initial custody determination regarding whether the individual should be released on bond, recognizance, or subject to other conditions.27 DHS may also determine that an individual is subject to mandatory detention and thus ineligible for release, or exercise its discretion to deny release.28
92. A detained individual is generally entitled to seek review of ICE’s initial custody determination before an immigration judge at a hearing commonly termed a “bond hearing.”29 Even in cases where ICE has concluded that an individual is ineligible for bond, the detained individual may request a bond hearing to challenge that finding.
93. At the bond hearing, the immigration judge determines whether the individual can be released on bond, recognizance, or subject to other conditions.30 The detained individual bears the burden of proving that he does not pose a danger to persons or property; is not likely to abscond before his hearing; and does not threaten national security.31 Detained noncitizens are approximately seven times more likely to be released on bond when represented.32
94. The immigration judge has complete discretion to grant or deny release.33 A request to reconsider a decision regarding custody status or bond may be allowed only if “circumstances have changed materially since the prior bond determination.”34
95. Both the detained individual and ICE can appeal the immigration judge’s bond decision to the Board of Immigration Appeals within 30 days.35
27 See 8 C.F.R. §§ 236.1(c), 1236.1(c). 28 See id. 29 See 8 C.F.R. §§ 1003.19(a), (h)(2)(i). 30 See 8 C.F.R. §§ 1236.1(d)(1), 1003.19. 31 8 C.F.R. § 1236.1(c)(8); Matter of Guerra, 24 I&N Dec. 37 (BIA 2006). 32 See Eagly & Shafer, supra note 2, 70. 33 8 U.S.C. § 1226(e). 34 8 C.F.R. § 1003.19(e). 35 8 C.F.R. §§ 236.1(d)(3)(i), 1003.19(f), 1003.38.
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96. The importance of release on bond or parole is born out in immigration court outcomes. Whereas just two percent of detained pro se immigrants obtain successful outcomes in their removal proceedings, that number jumps to seven percent of pro se immigrants who were released from custody and 17 percent of pro se immigrants who were never detained.36 The numbers grow exponentially for those who have counsel: represented immigrants who are released from custody have a 39 percent success rate, and those with counsel who were never detained have a 60 percent success rate.37 This compares to a 21 percent chance of success for represented immigrants who remain in detention throughout their proceedings.38 III. SPLC CREATED THE SOUTHEAST IMMIGRANT FREEDOM INITIATIVE TO
ADDRESS THE PAUCITY OF REPRESENTATION FOR IMMIGRANTS DETAINED IN THE RURAL SOUTH BY PROVIDING COMPETENT, ETHICAL PRO BONO COUNSEL 97. In 2017, Plaintiff launched SIFI to provide desperately needed legal representation to indigent immigrants detained in remote locations in the Southeast, where attorneys are scarce and immigration attorneys even more so. SPLC seeks to fulfill this mission by providing direct representation to detained immigrants in bond proceedings, training pro bono attorneys to provide effective representation to indigent detainees in their bond proceedings, and facilitating representation in merits hearings for people who would otherwise have no legal recourse. 98. SIFI launched at Stewart in April 2017, at Irwin in August 2017, and at LaSalle in September 2017, and most recently at Pine Prairie in October 2018. SIFI is on the referral list of the Legal Orientation Program, which identifies potential pro bono legal resources for detainees, at LaSalle, Irwin, Pine Prairie and Stewart.
36 Eagly & Shafer, supra note 2, 49-50. 37 Id. 38 Id.
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99. As of October 2018, SPLC and its volunteers had communicated with 1,360 detainees since launching at these locations. The SIFI project currently represents 83 people at the four prisons at issue in this litigation.
100. SPLC employs on-the-ground SIFI staff, including immigration attorneys and advocates whose offices are near the four prisons. In addition, SIFI relies on volunteer pro bono attorneys from across the United States who travel to the prisons for week-long rotations in order to meet with potential clients, conduct interviews, gather evidence, draft legal documents, and assist clients in obtaining release on bond or parole. Since SIFI’s inception, volunteer attorneys have traveled from Seattle, New York, Chicago, San Francisco, and Washington, D.C., among other cities. SIFI volunteers also provide pro bono legal services remotely, by communicating with clients via telephone and VTC when possible.
101. SPLC’s advocacy, however, is not limited to SIFI’s on-the-ground activities at the detention centers and local immigration courts. In addition, SIFI recruits pro bono attorneys from across the country to represent detainees in the merits phases of their cases, and SIFI staff provide supervision and technical support for all of these cases.
102. Through SIFI, Plaintiff endeavors to provide effective and ethical removal defense to all their detained clients. To do so, SIFI staff and volunteers—like all immigration practitioners— require the ability to meaningfully, reliably, and confidentially communicate with their detained clients.
103. The American Bar Association’s Model Rules of Professional Conduct for attorneys include rules regarding client communication (Rule 1.4) and confidentiality (Rule 1.6). Rule 1.4 provides, inter alia, that a lawyer must reasonably consult with the client about the means by which the client’s objectives are to be accomplished; keep the client reasonably informed about the status
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of the matter; and explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Rule 1.6 provides, inter alia, that a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent; the disclosure is impliedly authorized in order to carry out the representation; or the disclosure is subject to one of a few limited exceptions.
104. Many detained immigrants do not speak English. ICE’s own Performance Based National Detention Standards (“PBNDS”) require immigration prisons to ensure that detainees who are limited English proficient (“LEP”) have access to bilingual staff and/or professional interpretation services to provide them with meaningful access to the prison’s programs and services.39
105. In this context of immigration representation, effective communication often necessitates access to interpretation services in order for the attorney and client to understand one another. An English-speaking attorney who cannot speak Portuguese and a Portuguese-speaking client who cannot speak English would be hard-pressed to exchange the simplest of greetings, much less discuss the complex reasons why the client was forced to flee Brazil.
106. Interpreters are therefore crucial not only for communicating with a client but also for gathering the information that is necessary to defend against removal.
107. Effective communication in this context also requires conditions conducive to establishing a client’s trust, which may be essential to obtain critical evidence. Many detained immigrants have fled torture or other types of persecution, and they continue to suffer acute trauma while in detention, as detention exacerbates existing trauma and may cause new trauma. Although
39 U.S. Immigration and Customs Enforcement, Performance Based National Detention Standards 2.4(II)(9) (Dec. 2016), https://www.ice.gov/doclib/detention-standards/2011/2-4.pdf.
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recounting their painful experiences is crucial for building a defense to removal, detained clients are routinely traumatized again in the process of recounting their experiences. Confidential contact visits between attorney and client provide the best mechanism for putting the client sufficiently at ease to share her experiences and assist in preparing a defense to removal.
108. Reliable communication between attorney and client is also a critical component of removal defense. When attorneys are subject to long waits to see detained clients, their representation of those clients and others are detrimentally impacted. Visits may be cut short due to time constraints or, worse, attorneys may be deterred from visiting detained clients at all.
109. Long amounts of time spent in a waiting room is time that cannot be spent conducting legal research, gathering evidence, drafting legal documents, or meeting with other clients.
110. Remote attorneys representing detained clients likewise require the ability to consistently communicate with their clients in order to discuss the details of their cases. This means being able to schedule client calls without unreasonable delay and having enough time to discuss necessary matters. These communications also may require the services of third-party interpreters in order for attorneys to effectively communicate with their clients.
111. Detained clients must also be able to communicate confidentially with their attorneys. Although confidentiality is an important feature in every attorney-client relationship, the need for confidentiality is especially acute for detained immigrants in removal proceedings given the sensitivity of the issues that must be discussed.
112. Many detainees have been targeted for persecution in the countries from which they fled, making them vulnerable to harm not only in their home countries but also at the hands of fellow detainees or guards. Without the assurance of confidentiality, detainees may be chilled from
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speaking about sensitive issues to their attorneys, which may detrimentally impact their cases. For example, a gay Iranian detainee, who has lived in the United States for decades, may be afraid to discuss how his sexuality will make him a target for violence if he knows that a guard or a fellow detainee can overhear his every word.
113. Adequate preparation time is crucial because clients likely will not provide their attorneys with all the information relevant to available relief at their first meeting. Some are unable or unwilling to share information immediately, even with their own attorneys, because they have suffered trauma in their home countries or on their journeys to the United States. Many are simply unaware of what information is relevant and important to share. Others need time to build trust before sharing intimate personal details that are critical to prevailing in immigration court. Language barriers and the need for interpretation can lengthen this process.
114. Confidential attorney-visitation rooms, as well as unmonitored telephone and videoconference lines, are crucial to ensure that detainees can speak openly and honestly with their attorneys and that attorneys can obtain the information necessary to effectively advise and advocate for their clients.
115. In spite of the crucial need for effective, reliable, and confidential communication between attorneys and clients, Defendants have chosen to place immigrants in prisons that structurally and operationally obstruct immigrants’ access to counsel and the courts, frustrate SPLC’s ability to zealously represent its clients, and preclude SPLC’s clients from defending their own constitutional rights. Defendants have failed to monitor or remediate these ongoing constitutional violations.
IV. THE TOTALITY OF THE CIRCUMSTANCES AT LASALLE, IRWIN, PINE PRAIRIE, AND STEWART VIOLATE PLAINTIFF’S AND PLAINTIFF’S CLIENTS’ CONSTITUTIONAL RIGHTS
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116. The right to counsel is a crucial procedural safeguard for detained noncitizens seeking release on bond or parole given the high stakes in immigration cases and the dire conditions and consequences of imprisonment.40 While behind bars in immigration prisons, people are separated from their families, unable to maintain employment, and subjected to harsh conditions, including inadequate medical care and lack of recreation opportunities. They are also removed from access to witnesses and other evidence they need to prove their cases for relief. For these reasons, procedural safeguards—including access to counsel—are crucial to ensuring that people are not unjustifiably imprisoned pending resolution of their removal cases.41
117. In addition, the Fifth Amendment’s substantive due process protections prohibit the imposition of punishment on civil immigrant detainees.42 As other courts have recognized, “[a civil] detainee is entitled to more considerate treatment than his criminally detained counterparts . . . . Therefore, when a [civil] detainee is confined in conditions identical to, similar to, or more restrictive than those in which his criminal counterparts are held,” a presumption arises “that the detainee is being subjected to punishment.”43 Moreover, conditions may constitute punishment where they are intended to punish, or where objective evidence shows that the conditions are “not rationally related to a legitimate governmental objective” or that the conditions are “excessive in relation to that purpose.”44
118. In spite of these constitutional commands, Defendants funnel tens of thousands of noncitizens into isolated prisons where they encounter substantial and often insurmountable barriers
40 See, e.g., Hernandez v. Sessions, 872 F.3d 976, 995 (9th Cir. 2017). 41 See id. 42 See, e.g., Zadvydas v. Davis, 533 U.S. 678, 690-91 (2001); R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 187 (D.D.C. 2015). 43 Jones v. Blanas, 393 F.3d 918, 933 (9th Cir. 2004) (internal quotations and citations omitted). 44 Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473–74 (2015).
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Case 1:18-cv-00760-CKK-RMM Document 70 Filed 08/28/19 Page 36 of 92 to accessing and communicating with counsel. Many of these prisons are located in rural and remote places hours away from major cities, immigration attorneys, and professional interpreters.
119. Legal representation rates are staggeringly low in large civil immigration prisons in the Southeast. Only about 25 percent of people detained at Stewart have legal representation. At LaSalle, about 33 percent of detainees have legal representation. Representation rates are also low at Irwin and Pine Prairie.
120. In the rare instances where detained people are able to obtain counsel, it is typical that legal representatives are required to travel two, three, or even four hours to these prisons, only to confront additional barriers to accessing and communicating with their clients once they arrive.
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121. Despite differences in the physical infrastructure at LaSalle, Irwin, Pine Prairie, and Stewart, similar barriers to accessing meaningful representation exist at all four prisons. None of the prisons has an adequate number of attorney-visitation rooms to accommodate their populations. At the time the Complaint was filed, LaSalle had one room for up to around 1,200 people. Pine Prairie has two visitation cubicles for up to approximately 1,100 people. Stewart has three rooms for approximately 1,900 people. Irwin has one room for up to approximately 1,200 people.
122. Attorneys at each prison must regularly wait in excess of an hour—and, in many cases, as long as three or four hours—to meet with their clients. As a result, attorneys often must cut meetings short or see only one client instead of several. Some attorneys do not take cases at these detention centers because they cannot lose several hours of productivity due to long waits and lengthy travel time and still provide ethical representation to all of their clients.
123. Frequent “counts” and staff shift changes exacerbate these delays and sometimes prevent attorneys from visiting clients altogether.
124. Once inside the attorney-visitation room, legal representatives and their clients face excessive restrictions on their ability to communicate with one another. Although many prisons holding criminal detainees permit contact visits between attorneys and clients, Defendants permit LaSalle, Irwin, and Stewart to maintain a categorical ban on contact visitation for civil detainees. Instead lawyers must see clients in non-contact visitation rooms, where thick partitions separate the lawyer and client from each other. This set up hampers attorneys’ ability to review documents with clients. It also detrimentally impacts the lawyer’s ability to create the rapport and trust with his or her client that is crucial to encouraging the client’s confidences and gathering all the information necessary to defend against removal, especially for clients who have been persecuted or are otherwise traumatized.
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125. While a single closed-circuit telephone is provided in some of the non-contact attorney-visitation rooms in LaSalle, Irwin, and Stewart, this mechanism impedes meaningful communication between attorney and client. Because only one phone is provided on the “attorney side” of the room, it effectively forecloses bringing paralegal or other support staff to assist with these meetings. For example, in those rare instances where an interpreter can be located and brought into the facilities, the interpreter must listen to the attorney with the ear that is not against the phone; interpret into the phone; listen to the client’s response; and then interpret back to the attorney. The attorney and client cannot hear one another’s voices. The tone and dynamic of the conversation is lost, thereby creating yet another barrier to effective communication between attorney and client.
126. Making matters worse, the telephone lines themselves are compromised by significant static. As a result, the attorney and client cannot clearly hear each other over the closedcircuit phone, forcing them to repeat questions and answers and sometimes to yell and thereby compromise confidentiality. Guards are routinely stationed outside the rooms as a matter of course or for frequent shift changes, where they are able to hear what attorneys say inside the visitation rooms. For example, following an attorney interview with a prospective client at Stewart, the attorney overheard a guard remark to another guard that the attorney had not even been discussing removal issues with the client. Throughout the client visit, the client had remarked to the attorney that the guard had been frequently lurking behind the attorney at the visitation room door.
127. In addition, the phones in the attorney-visitation rooms have short cords and are located in a way that virtually prevents attorneys and clients from facing one another directly, further frustrating their ability to effectively communicate.
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128. Defendants permit three45 of the prisons to enforce a “no-electronics” policy which prohibits attorneys and staff from bringing in cell phones or laptops. These restrictions impact the attorney-client relationship in a number of respects. First, because there is no outside phone line to conference in an interpreter, the policy effectively denies an attorney access to remote interpretation services. The use of interpreters is critically necessary for attorneys and clients to communicate effectively, especially at these remote locations where there are no nearby interpreters who can appear in person. SPLC’s staff and volunteers would have the ability to contact such interpretation services if Defendants permitted attorneys and their staff to bring in electronic devices such as cell phones or computers. Under the circumstances, however, attorneys are left to rely on gestures, guesstimates, and whatever else can be communicated through broken or no English in order to gather crucial evidence to avert deportation. Many immigration attorneys refuse to take cases at these immigration prisons because they do not feel they can adequately and ethically represent clients with whom they cannot communicate.
129. The prohibition on electronics not only prevents access to interpreters who could be contacted using a cell phone or laptop, but also limits attorneys’ ability to efficiently represent their clients. If SPLC’s attorneys and staff could bring computers or tablets into the visitation room, they could draft client declarations or other legal documents during their meetings with clients. Clients’ stories could be memorialized, and errors could be corrected, in real time. This is particularly important given that long periods spent in the waiting room restrict the time attorneys have to work on client cases. Attorneys who represent clients at other immigration prisons where laptops are permitted report that they are able to more effectively and efficiently represent their clients as a
45 In their Answer, Defendants informed Plaintiff for the first time that Stewart now permits attorneys to bring in electronics to the facility. See ECF No. 65, Defendant’s Answer to First Amended Complaint, at ¶ 128.
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result of their access to computers. Some also report either access to landlines or the ability to use cell phones to contact interpreter services that would otherwise be inaccessible for in-person meetings.
130. Importantly, the unreasonableness of the no-electronics restriction is evidenced by the immigration detention centers across the country where attorneys are permitted to bring electronic devices to client meetings, thereby facilitating efficient representation of the client as well as contact with interpreters. Examples include those prisons in Aurora, Colorado; Dilley, Texas; Florence, Arizona; Elizabeth, New Jersey; and Tacoma, Washington.
131. In addition, the “no electronics” policies are not uniformly administered: ICE and private prison staff at some of the detention centers have cell phones. In addition, criminal defense attorneys are allowed to bring in laptops and use them during client meetings in at least one of the prisons.
132. The obstacles to accessing and communicating with counsel at these immigration prisons stem from Defendants’ practice of contracting with and failing to adequately supervise private prison companies, sometimes via Inter-Governmental Service Agreements (IGSAs) with local entities, which have a financial incentive to understaff detention centers and to refuse to improve conditions that impede access. SPLC staff and volunteers are routinely informed that delays stem from insufficient staffing. Likewise, many of the other access barriers described herein arise from poor or inadequate conditions in the facilities operated by these private companies. Money spent on additional staffing and on improving conditions is money that could be distributed to shareholders. At worst, Defendants permit their agents to focus on profit margins at the expense of the constitutional rights of people in their custody; at best, they blithely ignore the ongoing constitutional violations.
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133. The totality of the circumstances at each facility impede detainees’ meaningful access to counsel and SPLC’s ability to express and fulfill its mission.
A. The Totality of the Circumstances at LaSalle ICE Processing Center Violate Plaintiff’s and Plaintiff’s Clients’ Constitutional Rights
134. LaSalle holds 1,200 civil immigration detainees, yet at the time the Complaint was filed, it had only one room for “confidential” attorney-client visits.46
135. The failure to ensure LaSalle was equipped with an adequate number of rooms for visitation is telling—Defendants clearly never planned for individuals in their custody imprisoned in isolated LaSalle to have the ability to consult with lawyers.
136. Despite Defendants’ apparent assumption that few lawyers would travel several hours through rural Louisiana to represent people sent to LaSalle, the attorney-visitation rooms are frequently full. When the rooms are occupied, lawyers sometimes wait in the small lobby for hours—as no suitable confidential room is made available as an alternative despite ample office space near the attorney-visitation room.
137. The three attorney visitation rooms are not adequately confidential. The rooms are directly adjacent to a family-visitation room with several non-contact visitation cubicles. The attorney-visitation rooms are not fully soundproof. Confidential conversations with clients about sexual abuse, political persecution, and other sensitive topics can be overheard by attorneys,
46 On September 5, 2018, the Parties filed a notice of settlement which resolved Plaintiff’s Motion for Preliminary Injunction concerning conditions at LaSalle. See ECF No. 42. However, that Settlement Agreement resolved only the Motion for Preliminary Injunction and not the merits of Plaintiff’s claims concerning LaSalle. See id. at ¶ 31. Although Defendants built two additional attorney visitation rooms pursuant to the Settlement Agreement and made some additional reforms, the Settlement Agreement and its negotiated terms are only in effect during the pendency of this action.
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detained individuals, guards and by people in the family-visitation room on the other side of the thin wall.
138. LaSalle conducts six counts per day, at least four of which are during attorney visitation. A visit cannot start during count, each of which lasts about 45 minutes but can last longer. A “count” is a procedure whereby prison staff members determine the whereabouts of each person at the facility. In addition to counts, shift changes stop attorney visitation. For instance, during the 6 p.m. shift change, visitation is delayed consistently for close to 45 minutes.
139. While lawyers are sometimes permitted to use the family-visitation room if available, that room is even less suitable for confidential attorney-client communication. The room is comprised of several individual, interconnected cubicles with clear partitions that separate the detainees from their visitors. A guard is stationed in the room, within earshot, and detainees awaiting their visits are seated approximately two feet behind the cubicles. Even attempts to speak in lowered voices are insufficient to prevent others from hearing a conversation.
140. There is no slot or other opening in the plastic divider in the family-visitation room to permit the exchange of confidential, legal documents. Guards have instructed attorneys that no documents can be exchanged during these meetings. On occasion the guards will break this rule, and offer to take confidential papers from one person and deliver them to the person on the other side of the partition. Guards who do so frequently search the documents. In most instances, however, a meeting in the family-visitation room means no legal documents can be exchanged.
141. The insufficient number of adequate attorney-visitation rooms at LaSalle has routinely caused SPLC’s staff and volunteers to endure substantial waits in order to see clients, thereby diminishing SPLC’s resources and undermining its mission to provide quality
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representation to its clients. These wait times are frequently in excess of 90 minutes and can be as long as five hours.
142. Delays are compounded by specific, additional policies and practices maintained by Defendants at LaSalle. For example, if SPLC staff and volunteers seek to visit a client of one gender in the attorney-visitation room, they may not do so if the adjacent family-visitation room is being occupied by a detainee of the opposite gender.
143. Attorneys cannot see a male client between 11 a.m. and 1 p.m. or a female client between 9 a.m. and 11 a.m. Attorneys are often unable to visit female clients during femalevisitation hours because there is an attorney in the visitation room meeting with a male client. For attorneys trying to visit a specific client, available visiting hours are frequently quite limited because of a combination of the gender rules, count, and shift changes.
144. The delays are often longer for clients who are being kept in segregation. The clients in segregation are often severely mentally ill. LaSalle will not bring a client being held in segregation to a visitation room if anyone else is in that room or in the adjacent family-visitation room. LaSalle only permits certain staff to transport clients held in segregation. This often causes even longer delays. An attorney could spend all day in the waiting room before being able to see a client who is held in segregation.
145. The long delays at LaSalle frequently require SPLC’s staff and SIFI volunteers to cut meetings short. On occasion, SPLC’s staff and volunteers also forego meetings with clients altogether out of concern that they will be forced to endure long delays that prevent them from completing other necessary legal work.
146. In isolated Jena, access to remote interpretation is crucial. Many interpreters flatly refuse to travel to LaSalle even if compensated. Due to the lack of access to interpreters, SPLC has
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been unable to provide representation at LaSalle to detainees who speak certain languages because there was no way to communicate with them.
147. SPLC’s staff and volunteers would have the ability to contact remote interpretation services if the visitation room had a telephone or video teleconferencing, or if Defendants required their agents to permit attorneys and their staff to bring in cell phones or computers. But as a result of the restrictive policies at LaSalle, LEP clients are virtually barred from reliable access to interpretation during in-person meetings with their attorneys.47 Defendants do not require their agents to allow VTC communications between lawyers and clients at LaSalle, despite the use of VTC in immigration courtrooms and for credible fear interviews and various embassy communications.
148. VTC does not substitute for, but can complement, in-person visitation. If attorneys could use VTC at LaSalle, then SPLC—as well as other immigration practitioners—could communicate with clients through a remote interpretation service.
149. Scheduling a telephone call with a LaSalle detainee is extremely difficult and involves significant delay. Attorneys frequently call LaSalle to schedule a phone call, but their calls often go unanswered. Although LaSalle has an answering machine, messages are frequently not returned.
150. Reports vary regarding what happens after an attorney calls to schedule a phone visit, but attorneys frequently receive no response whatsoever.48
47 Pursuant to the Settlement Agreement filed on September 5, 2018, ECF No. 42, LaSalle has provided a mechanism for interpretation services during the pendency of this claim only. 48 Pursuant to the Settlement Agreement filed on September 5, 2018, ECF No. 42, LaSalle has modified its procedure for legal phone calls during the pendency of this claim only.
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151. Upon information and belief, LaSalle asserts that the policy is as follows: when a detainee requests a legal call, the request goes to the case manager, who has 72 hours to contact the attorney and schedule the call. Likewise, when attorneys request a legal call, the request is sent to “classification” and then to the detainee’s case manager, who has 72 hours to schedule the call. Thus—even if LaSalle uniformly followed the policy—it could take as long as three days to schedule a call, making phone calls an unreliable method to reach clients regarding time-sensitive matters.
152. In practice, however, attorneys are scheduled for calls approximately seven days from the date of a request. An attorney cannot schedule more than one call with a client until the attorney and client have completed the first scheduled phone call. An attorney is required to repeat the scheduling process after the call takes place, often requiring another week before the next call.
153. Such delay can have a detrimental impact on a detainee’s case, especially when the purpose of the call is to prepare for an impending hearing, finalize a court filing, or address another time-sensitive matter.
154. People who do not speak English or Spanish, and people who are severely mentally ill, often cannot understand or complete the paperwork that LaSalle requires in order to schedule a call with an attorney. For these detainees, obtaining a phone call on their own initiative is virtually impossible.
155. LaSalle limits attorney phone calls to only 20 minutes per client per day. This is a wholly insufficient amount of time to complete any substantive task. If an attorney needs to draft a client declaration, she cannot ask questions in 20 minutes that will elicit the necessary information. She also cannot advise a client regarding case strategy, explore ways to obtain evidence, obtain sufficient facts to credibly assess defenses to removal, or prepare a client for a hearing. By limiting
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attorney-client phone meetings to 20 minutes, LaSalle effectively prevents meaningful communication.
156. Because of the difficulty involved in scheduling an attorney call, detainees in need of urgent advice sometimes resort to monitored phone lines, which are more easily available, despite the lack of confidentiality. These calls are also limited to 20 minutes.
157. Not only is there a general dearth of interpreters within driving distance of Jena, Louisiana, there are no regularly available interpreters who are conversant in languages other than English and Spanish. In order to represent LEP clients who communicate in these languages, attorneys rely on phone interpretation services (“language lines”). Without an in-facility mechanism to access a language line, the sole avenue to communicate with these clients is by phone.
158. Yet, time spent connecting to the language line is deducted from the 20-minute time period allotted for confidential attorney-client conversations. This puts LEP clients at a significant disadvantage if they need interpreters to communicate with their counsel. Based on the experience of SPLC employees and volunteers, the use of interpreters can more than double the length of a conversation—which further restricts their ability to consult with counsel.
159. These barriers to telephonic communication have had especially dire consequences for detainees who are represented by SIFI volunteers from outside Louisiana, for whom reliable telephonic communication is indispensable to provide effective representation.
160. For instance, SIFI volunteers from New York and Washington, D.C. sought to schedule a phone call with their client at LaSalle to obtain information needed for his merits hearing. The client’s case was assigned to an expedited docket, meaning that frequent substantive communication was crucial in order to prepare for the impending hearing. However, despite repeated attempts by the SIFI volunteers to call LaSalle to schedule a client call, no one picked up
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the phone. Days later, when a LaSalle staff member finally answered, the call could not be scheduled for several more days. In total, it took more than a week for the call to occur. Making matters worse, LaSalle staff limited the call to only 20 minutes, which was inadequate to gather the necessary information. When the attorneys sought to schedule a follow-up call, the same series of events occurred: days passed before a LaSalle staff member answered the telephone; even more days passed before the call could take place; and when the call finally occurred more than a week later, it was again limited to just 20 minutes—despite the rapidly approaching merits hearing.
161. Because attorneys cannot schedule multiple phone calls with the same client on a given day and cannot spend more than 20 minutes on a given call, they must make in-person visits and sit for hours in the waiting room to access the sole visitation room.
162. Defendants and their agents are targeting SPLC and its volunteers based on hostility to SPLC’s mission. The longer SIFI is operational at LaSalle, the more Defendants and their agents at LaSalle interfere with SPLC’s efforts to meet with clients and prospective clients. For example, on March 30, 2018, Defendants’ agents prevented SIFI staff and volunteers from meeting with clients and prospective clients at LaSalle on the basis that they had not entered appearances in the relevant cases. This requirement had never been mentioned in the months since SIFI began operating at LaSalle or during the hundreds of previous visits. Enforcing such a policy would prevent lawyers and clients from engaging in the communications needed to determine whether to enter into a representation. That is why Defendants’ written policies actually prohibit legal visitation from being denied on the basis that the lawyer has not entered a notice of appearance in the case. That same day, attorney visits with SPLC clients represented by SIFI were cancelled, even though SIFI did, in fact, have notices of appearance on file.
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163. Also, that same day, legal volunteers were prevented from using the open attorneyclient room because they were not lawyers and “ICE had not approved” them for legal visits. Defendants’ written policy is that legal assistants, with a letter of authorization from their supervising attorney, may visit detainees. Defendants’ agents terminated the meeting midway through even though the volunteers had presented the required letter.
164. Upon information and belief, Defendants and their agents have exclusively targeted SPLC in enforcing this purported policy out of hostility toward the presence and mission of the organization and its volunteers.
B. The Totality of the Circumstances at Irwin County Detention Center Violate Plaintiff’s and Plaintiff’s Clients’ Constitutional Rights
165. Irwin presently houses approximately 700 immigrant detainees but the prison has only one attorney visitation room for these detained individuals to access counsel.
166. The one visitation room is frequently occupied when SIFI staff and volunteers arrive at the detention center to visit clients. That one room is not exclusively used for attorney-client visitations. Weddings, clergy visits, and social worker meetings also take place there. Consequently, SIFI staff and volunteers are often subjected to delays of one hour or much longer— sometimes up to three or four hours.
167. These frequent, lengthy delays are compounded by Defendants’ and their agents’ policy of prohibiting movement within the facility during count, while failing to efficiently transport clients prior to count. In other words, even when the attorney-visitation room is available prior to count, Irwin staff may fail to bring a client to the attorney-visitation room before count begins, meaning that an attorney must wait until count is over—sometimes up to an hour or more— before the visit can commence. And Irwin conducts seven counts per day, all of which are during times when attorneys are permitted to visit.
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168. Attorneys frequently occupy the room for many hours to see multiple clients, effectively precluding visitation for all other detainees whose counsel are attempting to meet with them.
169. Making matters worse, once SIFI staff and volunteers are escorted into the visitation room, they frequently must wait long periods of time—sometimes close to an hour—for the detainee to be brought to them. Lawyers seeing more than one client frequently wait protracted periods for each client to be escorted to and from the visitation room.
170. Conditions inside the single attorney-visitation room further frustrate detainees’ ability to communicate with their attorneys. The room is not soundproof. Confidential conversations with clients about sensitive topics, like sexual abuse and political persecution, can be clearly overheard by employees of the detention center who often stand near or walk by the room, and by people in the nearby family visitation rooms.
171. The door on the attorney visitation room is controlled by staff in the prison’s operational control room. Once it is closed, the door locks; people in the room have no ability to get out, except by attracting the attention of the guard who operates the door from the control room. There is no mechanism—like a buzzer or speakerphone—in the visitation room to facilitate communication with the control room. Thus, attorneys are relegated to waving at the guard through the control room’s tinted window and knocking on the window of the visitation room. On more than one occasion, attorneys have been trapped in the room for long periods of time. Meanwhile, other lawyers sit in the waiting room, and their clients are deprived of valuable time with their counsel.
172. On certain days, Irwin permits SIFI attorneys and volunteers to conduct non-contact visits with clients in the family visitation room, which is not a confidential meeting space. While
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attorneys meet with clients in that room, Irwin staff use the room as a throughway, and staff often loiter in an adjacent office, with the door open.
173. As with LaSalle, the lack of contact during visits substantially hinders the ability to establish rapport and trust between lawyer and client. Public defenders and other criminal defense attorneys representing pre-trial detainees at Irwin are permitted to conduct contact visits with their clients. Unlike SIFI staff and volunteers, they can freely exchange documents with one another and more easily foster effective communication and trust.
174. Whereas SIFI attorneys and volunteers are largely relegated to meet with clients in the single, non-contact attorney-visitation room, upon information and belief, public defenders are rarely required to use that room. Irwin allows public defenders to conduct contact visits with their clients in rooms located in an area of the prison that SIFI staff and volunteers are not permitted to enter.
175. Irwin has two VTC computers that facilitate meetings between remote attorneys and their clients. VTC meetings take place from 9 a.m. to 4 p.m. with an hour-long break for lunch. While VTC has the potential to facilitate greater access to attorneys, the opportunities for client contact remain wholly insufficient.
176. VTC meetings are strictly limited to one hour, which is often an insufficient amount of time to render legal advice.
177. Mechanical issues regularly undermine basic communications during the one-hour VTC allotment.
178. SPLC’s meetings with clients on VTC have frequently been interrupted, cut short, delayed by connection issues, and/or subject to other interference. In such instances, Irwin guards strictly adhere to the one-hour limitation, thereby forcing SPLC staff and volunteers to rush through
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their VTC conversations. On one occasion, a VTC visit was cut short because the guard who was facilitating the visit informed the attorney that she had to go to lunch.
179. Irwin fails to adequately coordinate the VTC calendar—leading to missed appointments with clients and preventing attorneys from relying on VTC as a reasonable alternative to in-person visits. Irwin guards regularly forget to initiate the VTC visit, initiate VTC visits at unscheduled times, and bring the wrong person to the VTC room.
180. VTC visitation at Irwin occurs in the law library. Upon information and belief, detainees are unable to use the law library between 9 a.m. and 4 p.m. when calls occur.
181. Guards consistently tell SPLC’s staff and volunteers that they cannot take all the available VTC slots—even when the slots are not being used. By preventing SIFI from scheduling as many meetings as possible, this arbitrary restriction creates a significant hardship to SPLC and its many volunteer attorneys.
182. There are indications that Irwin gives preferential treatment to other visitors over SPLC personnel and volunteers. Despite a first-come, first-served visitation policy, social workers have received priority over SPLC staff and volunteers. On one occasion, Irwin staff interrupted an SPLC client visit to insist that the attorney room be vacated for a social worker visit. On another occasion, although a volunteer attorney had been waiting an hour to meet with a SIFI client, a social worker arrived and was permitted to meet with his clients first.
183. Furthermore, upon information and belief, the attorneys for pre-trial, criminal detainees are allowed to bring their laptops to client meetings. This is at odds with the treatment of SPLC staff and volunteers, who have been consistently prohibited from bringing electronics into any part of the prison, including the waiting room.
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184. Defendants restrict attorney access to Irwin in other problematic ways. For instance, immigration court proceedings for Irwin detainees occur in Atlanta. The detainees participate in the proceedings via VTC from a room inside Irwin near the attorney-visitation room. Because Defendants prohibit attorneys’ access to that VTC room, lawyers representing Irwin detainees are forced to drive three hours to Atlanta and enter their appearance there rather than appearing alongside their clients in the detention center.
185. Immigration judges say they have no authority over the prisons where Defendants choose to house civil detainees.
186. While Defendants allow attorney access to the VTC rooms in some prisons during immigration hearings, this access is uniformly denied at Irwin.
187. The three-hour drive means that lawyers cannot meet with their clients immediately before a morning hearing. All Atlanta bond hearings take place in the morning.
188. Because attorneys are not in the same location as their clients, they cannot easily engage in confidential communications—for example, to request clarification of a factual point or advise the client on how to respond to a question from the immigration judge. To speak privately with the client, the lawyer must ask the immigration judge and trial attorney to leave the courtroom.
C. The Totality of the Circumstances at Stewart Detention Center Violate Plaintiff’s and Plaintiff’s Clients’ Constitutional Rights
189. Although Stewart typically detains between 1,800 and 1,900 immigrants, the prison has only three attorney-visitation rooms.
190. The small number of attorney-visitation rooms relative to the number of detainees, along with inadequate staffing, means that those visitation rooms are regularly unavailable, such that SPLC attorneys and volunteers often must wait for extended periods before meeting with their clients.
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191. Delays are further compounded during detainee counts and shift changes when there can be no movement, including taking attorneys to visit clients, in the facility. Stewart conducts six counts per day, at least two of which are scheduled during attorney visitation hours. Each count and shift change can take an hour or longer. On occasion, shift change and count occur back-to-back, compounding delays to see clients. As a result, counts and shift changes substantially narrow the actual attorney visitation hours. Although regular visitation hours are supposed to last until 5:00 p.m., SIFI staff and volunteers have arrived to conduct client visits prior to 5:00 p.m. only to be told that count was occurring; in some instances, count lasted until 5:00 p.m., and SIFI staff and volunteers were prevented from meeting with their clients at all. Even in instances when count was not occurring, SIFI staff and volunteers have arrived at Stewart well before 5:00 pm to meet with clients but were forced to wait until 5:00 p.m., when visitation hours ended and they could no longer meet with clients.
192. SIFI staff and volunteers are thus frequently subjected to lengthy delays before they can see clients. Wait times in excess of one or two hours are frequent, and some staff and volunteers have been forced to wait over three hours. Attorneys cannot simply leave the facility and come back later because they risk losing their place in line.
193. Between May 10, 2017 and December 22, 2017, the average wait time for SPLC’s attorneys, staff, volunteers, and interpreters at the facility was almost an hour. Approximately 20 visits have required waits in excess of two hours—many in excess of three and four hours. Moreover, attorneys are frequently subjected to further delay once inside the attorney-visitation room while waiting for their clients to be transported.
194. SPLC volunteers and staff need to visit with multiple clients every day, making these wait times a substantial drain on SPLC’s resources and undermining its ability to effectively
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advocate for its clients. In fact, attorneys spent more than 210 hours sitting in the waiting room at Stewart over the seven-month period between May and December 2017. That is more than a month of 40-hour work weeks.
195. Due to a prior “no-electronics” policy enforced at Stewart, SIFI staff and volunteers had to spend additional time trying to make up for the hours lost while waiting to meet with clients.
196. Delays at Stewart routinely prevent SIFI staff and volunteers from spending sufficient time with clients, either because visitation hours may end or the attorney must cut the meeting short to see another client.
197. In some cases, the lengthy delays have prevented SIFI attorneys and volunteers from meeting with their clients at all.
198. Attorneys invariably must return to the facility to see their clients in order to discuss matters that could not be addressed due to time constraints at the initial meeting. Attorneys are again subjected to lengthy delays at the follow-up visit. As a result, matters that could have been handled within a single efficient visit often take multiple trips and multiple hours of waiting, thereby further straining SPLC’s resources.
199. These delays have prevented SIFI staff from meeting with clients and prospective clients prior to important court hearings. As a result, SPLC’s clients and prospective clients have not been adequately prepared for their hearings.
200. In one instance, SPLC learned about a potential client just prior to his bond hearing. A SIFI volunteer attempted to visit the person before his hearing to provide important advice. Yet, the delay of well over an hour prevented the attorney from speaking with the client prior to the hearing. The bond hearing went forward, and bond was denied.
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201. Because the prior “no-electronics” policy impeded access to interpreters and prevents SPLC from engaging in client work during lengthy waits, SPLC had sought to negotiate with Defendants to revise the prohibition on electronic devices at Stewart. SPLC made multiple offers of accommodation, including proposals to purchase laptops with no cameras, to bring in only pre-registered tablets that Stewart staff could inspect, and to certify that any laptops or cell phones are utilized exclusively for client representation purposes. It was not until Defendants’ Answer that Plaintiff was informed that electronics would be permitted at Stewart.
202. After SPLC staff complained in 2016 that video-teleconferencing was supposed to be available under the terms of the 2014 Stewart contract, two VTC portals were installed at Stewart. However, Defendants and their agents maintain policies that obstruct clients’ reliable access to VTC for the purpose of communicating with their attorneys. For example, Defendants’ agents maintain a strict policy of cutting off the calls one hour after the scheduled start time regardless of need or availability. Mechanical difficulties often delay or interrupt these calls. Yet, Stewart staff refuse to replace such lost time and instead insist on strictly adhering to the policy.
203. In one case, an SPLC volunteer attorney met with an Arabic-speaking SIFI client to review the client’s sworn declaration. Because there is no access to a language line in Stewart, VTC was the only mechanism by which the attorney could access an Arabic interpreter. The call began eight minutes late, and technical difficulties occurred approximately twenty-five minutes later. The attorney was able to resume the call twelve minutes before the hour expired, by which time the officer had sent the detainee back for count. When the volunteer asked the officer to bring the client back, she refused on the basis that the attorney had just seven minutes left of her allotted hour. The attorney was thus unable to complete review of the client’s declaration during that meeting.
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204. Access to confidential telephone lines for attorney-client communications is not an alternative at Stewart. Upon information and belief, Stewart only allows confidential telephone calls between attorneys and clients if the VTC is not working.
205. All of these barriers to attorney-client communications are compounded by Defendants’ failure to remediate persistently obstructive conduct by Stewart staff. Stewart staff frequently and arbitrarily change rules without notice; for example, the ever-evolving requirements to obtain visitation authorization have delayed client visits, blocked visits altogether, and drained SPLC’s resources. Recently, SIFI staff followed the longstanding procedure of faxing a letter indicating which clients a volunteer attorney intended to visit the following day. After completing some visits in the morning, the volunteer attorney returned that afternoon to conduct the remaining client visits. However, Stewart staff refused her entry, insisting that she would need to fax a second letter if she wanted to re-enter the facility. The volunteer was unable to see her remaining clients that day.
206. Similarly, during a recent set of client visits, SIFI volunteers sought to bring in business cards for their own clients as well as other indigent detainees in need of legal representation. However, Stewart guards refused to allow the SIFI volunteers to enter with any extra business cards. Guards enforce this policy with some regularity, thereby depriving unrepresented individuals at Stewart of access to information that could assist them in securing crucially-needed legal counsel.
207. Stewart guards have also engaged in conduct to pressure attorneys and detainees to keep legal visits short. Recently, during a prospective client’s interview with an attorney, a detainee noticed that a Stewart guard was pacing back and forth outside the attorney-visitation room. While the interview was in progress, the attorney overheard that guard state that the interview was taking
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too long. When the interview was finished, the same guard stated “Finally,” signaling to the attorney that he should keep his remaining interview short.
208. These recent occurrences are but a few of the many instances in which Defendants’ agents have engaged in conduct that frustrates detainees’ efforts to access legal counsel. Upon information and belief, such conduct is directed specifically and deliberately at SIFI staff and volunteers—not at other attorneys who visit the facility.
209. Defendants have also failed to remediate other obstructive conduct by Stewart staff. In some instances, guards at Stewart have forced SIFI staff and volunteers to wait even when there are available attorney-visitation rooms. Upon information and belief, such conduct is directed specifically and deliberately at SIFI staff and volunteers—not at other attorneys who visit the facility. In a recent incident, a volunteer interpreter arrived at Stewart with two SIFI attorneys to facilitate visits with three clients. When she walked under the metal detector, it started beeping. A guard speculated that the underwire in her bra had triggered the detector. The volunteer requested that they use the readily available and regularly used metal detection wand to clear her. The guard called for supervisory approval. After waiting for approximately 15 minutes, the volunteer asked another guard for an update on her clearance; in response, the guard asked the volunteer when she planned to change her clothes. She removed her bra in the public waiting area, passed through again, and the metal detector again beeped. She was then forced to leave the facility and change clothes before being allowed to re-enter. Although the Stewart guard refused to use the readily available wand on the SIFI volunteer, that volunteer observed the same guard using the wand on a non-SIFI visitor who set off the metal detector on that same day.
210. Guards have also interrupted attorney-client meetings at Stewart without cause. In one instance, a guard peered through the small window on the visitation door and opened the door
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during a client visitation, stating that he had seen the attorney showing the client a photograph. Although photographs are frequently critical pieces of evidence in removal cases, the guard interrogated the attorney about his conduct.
211. Guards at Stewart have prevented SIFI staff and volunteers from wearing scarves and from carrying CDs that contain a client’s immigration court files.
212. Guards and Defendants’ other agents have also inspected and commented on legal files held by attorneys and confiscated legal papers from detainees.
213. In addition, Defendants have engaged in conduct aimed at intimidating SIFI staff and volunteers. For instance, a volunteer attorney left Stewart on the morning of March 13, 2018 at about 10:15 a.m. She lawfully stopped on the side of Main Street in Lumpkin, Georgia in order to take photos of the water tower and the signage pointing to the detention center, and then returned to her car and resumed driving.
214. An ICE patrol car passed her, drove about halfway toward the detention center and turned around. The ICE officer drove up behind her, activated his lights, and pulled her over. The ICE officer, who did not immediately identify himself, asked what she was doing. When the volunteer attorney explained, the officer acknowledged there was nothing wrong with taking photos, but said he still had to take her information. He asked if she had a business card, and she said no. He then asked for her name and phone number, which he transcribed with a pen on the palm of his hand. When he asked who she was with, she said “SPLC.” He asked if she was helping to “support illegal immigration” and asked what she was doing. She said she was court watching. When he again asked for the name of her organization, she said “the Southeast Immigrant Freedom Initiative, with the Southern Poverty Law Center,” and he wrote that information on the palm of his hand. The officer then said he had to write down her license plate information.
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D. The Totality of the Circumstances at Pine Prairie ICE Processing Center Violate Plaintiff’s and Plaintiff’s Clients’ Constitutional Rights
215. Pine Prairie is located in rural, Central Louisiana – more than three hours from New Orleans and nearly two hours from Baton Rouge – and far removed from pro bono legal resources and interpretation services.
216. Although Pine Prairie has capacity to hold up to 1,100 civil immigration detainees, at the time SPLC filed the Second Amended Complaint, Pine Prairie had only two “rooms” for attorney-client visits. In actuality, and as detailed below, the attorney-visitation “rooms” are adjacent cubicles that lack any confidentiality whatsoever.
217. Recognizing the desperate need for additional space, ICE represented in a May 7, 2019 letter to SPLC that it anticipated construction of four new attorney visitation stations at Pine Prairie as early as May 2019. Although more than three months have passed, there is no evidence that construction has begun.
218. The lack of sufficient and adequate attorney-consultation rooms is troubling because Pine Prairie detainees are in a pre-trial posture – awaiting hearings or final dispositions of their pending removal cases. As a result, Pine Prairie detainees require robust, expeditious, and consistent access to immigration attorneys.
219. Making matters worse, one of the visitation cubicles is typically unavailable for at least four hours per day because it is the only available space for remote VTC legal visits. As a result, Pine Prairie has only one dedicated, full-time space for in-person legal visitation.
220. Pine Prairie requires SIFI to go through a difficult process to even schedule a legal visit. In order to schedule an in-person legal visit at Pine Prairie, SIFI staff must send a fax or email requesting a specific date for their legal visit. Visit dates that are close to the date the request is made are regularly denied, as Pine Prairie appears to require visits be requested at least several days
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out, a practice that delays access to clients. Moreover, because of the limited available space, SIFI staff and volunteers are frequently told that there is no availability for in-person visits, which also results in delay before meeting with clients and prospective clients.
221. Pine Prairie also strictly limits who can attend the visits. SIFI relies upon volunteer legal assistants and attorneys, who frequently travel from afar, to help manage its caseload. Pine Prairie, however, will not allow entry to SIFI’s volunteer legal assistants or attorneys without inperson supervision from an additional SIFI employee. The result is that SIFI cannot appropriately staff its cases, meaning it can visit and represent fewer detainees than it could if SIFI volunteers could visit clients without SIFI’s in-person supervision.
222. In March 2019, Pine Prairie denied a SIFI visitation request, explaining by phone that only SPLC employees were allowed to visit detained individuals. In a follow-up email, Pine Prairie explained that, if the volunteers were not employees of SPLC, they would have to follow public visitation procedures/protocols, effectively foreclosing any opportunity for confidential communication.
223. On May 30, 2019, Pine Prairie staff denied three volunteer legal assistants entry to meet with ten detained people. Pine Prairie staff denied the legal assistants entry under the pretext that legal assistants must be accompanied by their supervisors. SPLC staff, however, had sent a letter from their attorney supervisor authorizing them to meet with individuals on her behalf in compliance with PBNDS 5.7(J)(3)(B), which provides that “upon presentation of a letter of authorization from the legal representative under whose supervision he/she is working, an unaccompanied legal assistant may meet with a detainee during legal visiting hours.” When the legal assistants presented the letter to Pine Prairie staff, who acknowledged receiving the letter, the assistant warden responded “don’t make this more difficult. We have our rules and you have yours.”
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In turn, SIFI was delayed in visiting with detained individuals and forced to expend additional personnel resources.
224. Pine Prairie staff also prevented SIFI staff from meeting with detained individuals based on claims that an attorney already represented the individual. On several occasions, Pine Prairie staff refused to allow SIFI to meet with detained individuals although SIFI had evidence of express permission from the individual’s immigration lawyer. On other occasions, follow-up revealed that the detained individual did not actually have other counsel.
225. Even when SIFI is able to successfully schedule an in-person visit, the insufficient number of adequate attorney-visitation rooms at Pine Prairie has routinely caused SPLC’s staff and volunteers to endure substantial waits in order to see clients, thereby diminishing SPLC’s resources and undermining its mission to provide quality representation to its clients. The wait times at Pine Prairie are frequently in excess of 90 minutes and can be as long as four hours.
226. Delays are further compounded during counts and shift changes when there can be no movement, including taking attorneys to visit clients within the facility. On one occasion, an attorney waited over two hours for count to end before she was able to begin a scheduled client meeting. This delay—and others like it—prevent SIFI from engaging in work on behalf of its clients’ removal cases.
227. The two attorney-visitation spaces at Pine Prairie lack any confidentiality. The spaces consist of two adjacent cubicles that are located within a larger room occupied by other people. The cubicles are separated by a partition that is approximately seven or eight feet tall but does not reach the ceiling. Neither the partitions nor the cubicles’ walls are soundproof. As a result, anyone in the adjacent cubicle or in the surrounding multipurpose room—which is frequently occupied by 60 to 70 people, including guards and other detainees—can easily overhear attorney-
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client communications about sexual abuse, political persecution, conditions of confinement at Pine Prairie, and other sensitive topics.
228. In addition, guards at Pine Prairie frequently interrupt legal visits without any justification. These interruptions not only jeopardize detained individuals’ confidence in confidentiality, but also threaten to further traumatize the victims. On one occasion, a guard unjustifiably barged into the visitation cubicle while a detainee was recounting an experience involving sexual assault.
229. Pine Prairie staff have engaged in other obstructionist behavior during visits, including demanding to review and take pictures of confidential client files, barging in and asking for client identification, refusing to provide a table or chairs for attorney visitation, and refusing to allow detainees to use the bathroom during legal visits. These obstructionist tactics deter detained individuals from seeking counsel and prevent SIFI from effectively representing its clients. Upon information and belief, these obstructionist tactics are targeted at SIFI and SIFI’s clients due to SPLC’s and SIFI’s missions.
230. One notable example of unjustifiable restrictions specifically targeted towards SIFI is Pine Prairie’s prohibition on SIFI’s use of accordion files to organize client materials. Pine Prairie requires that SIFI employees and volunteers bring in client files, forms, and other documents in loose collections, rather than organized into large folders. Pine Prairie has offered no legitimate basis for this arbitrary rule. In fact, Pine Prairie permits non-SIFI attorneys to use briefcases or large files to organize their paperwork when they visit the facility.
231. Pine Prairie has also made it difficult for SIFI to provide information to detained individuals. Pine Prairie refused to allow the distribution of SIFI calling cards with instructions on how to call the free legal helpline, preventing SIFI from even connecting with many prospective
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clients. Pine Prairie staff searched SIFI employees and volunteers for these calling cards and would refuse entry if they found one. They offered no legitimate rationale for this prohibition on the distribution of calling cards to detained individuals in need of legal representation. Nor could they.
232. Detained individuals at Pine Prairie have also had difficulty receiving important documents through the mail. In one instance, a detainee never received documents that the detainee’s family member mailed to the detention center, which included important exhibits for his bond hearing. Because the family member did not have copies of the documents at home, SIFI could not use critical exhibits to support its client’s case, and the client’s bond request was denied.
233. Access to interpreters is also severely limited—and in some cases wholly impossible—at Pine Prairie. Although the PBNDS mandates that interpretation services be made available to facilitate both in-person and telephonic meetings with attorneys, a substantial number of people detained at Pine Prairie are, in effect, barred from accessing interpreters during legal visits.
234. In isolated Pine Prairie, access to remote interpretation is crucial. Many interpreters flatly refuse to travel to Pine Prairie even if compensated. Due to the lack of access to interpreters, SPLC has been unable to provide representation at Pine Prairie to individuals who speak certain languages because there is no way to communicate with them.
235. SIFI, for example, represents a client detained at Pine Prairie whose primary language is Quiche. Despite numerous requests to access phone lines for third-party interpretation, due to a lack of interpreter access, SIFI has been unable to coordinate a visit with its client for more than four months.
236. Pine Prairie also does not permit attorneys to bring laptop computers, tablets, or mobile phones into in-person legal visits. Access to electronics is critical to the modern practice of
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law. Attorneys use these tools to enter and access clients’ files and information, conduct live legal research during client meetings, take digital notes, draft written testimony, and even access remote interpretation services. Due to these restrictions, SIFI staff must spend additional time and resources drafting client documents that could be avoided absent the restriction.
237. Pine Prairie also substantially restricts detainees’ access to confidential legal calls and VTC meetings. These barriers to conducting telephonic and VTC communications are particularly burdensome given Pine Prairie’s remote location and distance from immigration attorneys. Pine Prairie’s policies and procedures make it difficult for SIFI to recruit pro bono lawyers – who may be as far away as New York or California – to take on cases for individuals detained at Pine Prairie.
238. Pine Prairie has no dedicated space for confidential telephone calls, and therefore it is nearly impossible for SIFI to schedule a confidential legal call with its clients. A telephone call with counsel can typically only take place in the client’s open dormitory on a non-confidential line in the presence of other detained persons.
239. The process for arranging confidential legal calls at Pine Prairie is unreasonably cumbersome and results in substantial delay. First, SIFI staff must call the front desk and leave a message for the detainee to call them. Then, once the detainee receives the message, the detainee can either call SIFI from their dormitory – on a non-confidential line – or contact their case manager to schedule a call for them. However, none of SIFI’s clients have been told who their case manager is, or even that they could schedule a confidential attorney call. One SIFI client, with the assistance of her SIFI attorney, addressed a written message “To my case manager,” and it was ignored. Finally, many of the case managers speak only English, so even if a detainee could ascertain who her case manager is and reach her, she would have to find someone to translate the conversation
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with the case manager (which is often impossible depending on language), increasing the effort and time required to schedule a VTC.
240. People who do not speak English or Spanish, and people who are severely mentally ill, often cannot understand or complete the process that Pine Prairie requires in order to schedule a call or VTC with an attorney. For these individuals, obtaining a phone call with an attorney on their own initiative is virtually impossible.
241. Scheduling a prompt VTC meeting is nearly impossible, and takes several days to complete. Pine Prairie frequently denies SIFI staff timely VTC visitation. Because Pine Prairie only has one cubicle that can be used for VTC, and that cubicle is also used for in-person legal visits, SIFI staff seeking to schedule a VTC meeting are frequently told there is no availability until the following week. Each call with a detainee must be scheduled individually, through a separate request.
242. Such delays can have a detrimental impact on an individual’s case, especially when the purpose of the call is to prepare for an impending hearing, finalize a court filing, or address another time-sensitive matter.
243. In one instance, an SPLC staff member requested a VTC visit with her client on Tuesday, August 13. Pine Prairie told her that the requested visit would need to be re-submitted due to “internet issues.” She then requested a VTC visit on Wednesday, August 14. Pine Prairie staff cancelled that visit due to “security issues.” The attorney was not able to set a meeting with her client until Monday, August 19.
244. Pine Prairie also imposes unreasonable limitations on the duration of VTC attorneyclient visits. Pine Prairie automatically cuts off VTC calls after thirty minutes. And because of frequent technical issues, including nearly ubiquitous static, attorneys are rarely able to engage in
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substantive communication during the entire 30-minute period. The time crunch is especially acute where the attorney needs to use an interpreter, which at best doubles the time needed to complete necessary legal communications. Pine Prairie staff do not allot additional time to compensate for lost time due to delays, such as frequent technical issues, that are wholly outside the control of SIFI and its clients.
245. Thirty minutes is an insufficient amount of time for even the most efficient immigration attorney to complete basic tasks. If an attorney needs to draft a client declaration, she cannot ask questions in 30 minutes that will elicit and confirm the necessary information. She also cannot adequately advise a client regarding case strategy, explore ways to obtain evidence, obtain sufficient facts to credibly assess defenses to removal, or prepare a client for a hearing in half an hour. It also is only half of the time SIFI typically takes for a screening interview of a potential client. By limiting attorney-client VTC meetings to 30 minutes, Pine Prairie effectively prevents meaningful attorney-client communication by VTC.
246. And many VTC conferences are cancelled or shortened to even less than 30 minutes. One SIFI staff member, for example, requested three VTCs in one day. The first two calls were canceled. The third call was cut 15 minutes short because an officer did not timely bring the SIFI client to the VTC.
247. These barriers to telephonic and VTC communication have especially dire consequences for detainees who are represented by SIFI volunteers from outside Louisiana, for whom reliable telephonic communication is indispensable to provide effective representation.
248. Because attorneys cannot schedule multiple VTCs with the same client on a given day and cannot spend more than 30 minutes on a given VTC, they must make in-person visits and sit for hours in the waiting room to access one of the two visitation cubicles, if available. The long
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wait times and necessity of in-person visits prevent SIFI staff from doing other work, limiting their effectiveness, and make it nearly impossible to recruit volunteer attorneys.
249. Pine Prairie also unreasonably limits detainees’ ability to use the law library. Restrictions on access prevent SIFI’s clients from assisting their attorneys with their removal cases, and also impedes other individuals from advocating for themselves in their removal cases or other legal matters. For example, detainees wishing to file an application for asylum must make three to four copies of their Form 589—a task that can only be performed if they can access the copier in the law library. If an applicant does not make sufficient copies, his application may be denied and he may have a removal order entered against him.
250. For example, one detainee, who was representing himself pro se, made numerous requests to visit the law library over the course of a week, but received no response. Pine Prairie staff only permitted the detainee access to the law library when a SIFI attorney intervened and informed Pine Prairie staff that the detainee had an application due in court the following day. Although the detainee eventually obtained access to the law library, Pine Prairie staff denied him access to a photocopier to make free copies of documents critical to his defense at an upcoming hearing. When he requested to make copies, a Pine Prairie employee refused, informing him that he must have his attorney make the copies for him. The detainee was representing himself pro se for his asylum application.
251. These hurdles to attorney access were exacerbated during a four-week medical quarantine imposed at Pine Prairie earlier this year. During the quarantine, which began in January 2019, Pine Prairie denied SIFI staff the ability to engage in any confidential communications with quarantined individuals. The quarantined individuals could not meet with their attorneys in-person, and Pine Prairie staff categorically denied all requests for confidential calls and VTC. According
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to Pine Prairie staff, quarantined individuals were required to have all legal communications with SIFI staff via dorm phones that are not confidential. Despite the limited access to counsel during the quarantine, these detainees’ removal proceedings went forward. Pine Prairie informed staff that the quarantined individuals’ hearings would not be continued and would, instead, take place via VTC.
252. Because of the quarantine, SIFI staff were prohibited from conducting confidential communications with at least 15 individuals. The quarantine also prevented SIFI from informing many more detainees about their free legal services and from screening potential clients who could not access SIFI’s fee telephonic helpline. One detainee that SIFI was attempting to offer representation to after screening was ordered removed during this time. Numerous other detainees who called SIFI’s helpline were not able to be screened during this time and also received removal orders. Upon information and belief, if another quarantine were to go into effect (which is not rare in immigration prisons), Pine Prairie has no protocol in place to ensure that confidential attorney communications could occur.
253. Additionally, on August 3, 2019, ICE and its private prison contractors at Pine Prairie shot tear gas canisters and rubber bullets at approximately 115 hunger strikers sitting in protest in the recreation yard. Following the incident, and upon information and belief, ICE retaliated against them by imposing punitive conditions, including obstructing communication with attorneys and subjecting them to solitary confinement during which time they were unable to call SIFI attorneys.
254. Defendants and their agents are targeting SPLC and its volunteers based on hostility to SPLC’s mission. The longer SIFI is operational at Pine Prairie, the more Defendants and their agents at Pine Prairie interfere with SPLC’s efforts to meet with clients and prospective clients. For
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example, during the week of July 22, 2019, Defendants’ agents began requiring an SPLC attorney to provide in-person supervision of any legal volunteer who is not a SIFI employee. This requirement had never been mentioned in the months since SIFI began operating at Pine Prairie or during the hundreds of previous visits. Enforcing such a policy prevents SPLC from efficiently using pro bono attorney volunteers, impedes the SIFI mission, requires SPLC to expend additional personnel resources, and reduces the number of clients SIFI can represent.
255. Upon information and belief, Defendants and their agents have exclusively targeted SPLC in enforcing this purported policy out of hostility toward the presence and mission of the organization and its volunteers.
256. Due to the barriers to attorney access at Pine Prairie described herein, SPLC has sent three letters to ICE and its officials—the first in February 2019—requesting remediation of these barriers so that SPLC can meaningfully and reliably communicate with its clients and potential clients. Nevertheless, Defendants have refused to use their oversight and enforcement powers to remediate these conditions, which leaves SPLC’s clients at a substantial risk of irreparable harm.
V. DEFENDANTS ARE RESPONSIBLE FOR THE VIOLATIONS OF PLAINTIFF’S AND PLAINTIFF’S CLIENTS’ CONSTITUTIONAL RIGHTS A. Defendants Direct, Manage and Control the U.S. Immigration Detention System 257. Defendants direct, manage and control the U.S. immigrant detention system and the
conditions of confinement therein, including at LaSalle, Irwin, Pine Prairie, and Stewart. 258. Detained immigrants are held under the custodial authority of the Department of
Homeland Security, which has been delegated to its component agency Immigration and Customs Enforcement.49 ICE Enforcement and Removal Operations (ERO) “manages and oversees the civil
49 See 8 U.S.C. § 1103(a)(1); 8 C.F.R. § 2.1 (Secretary of Homeland Security has authority to administer and enforce the immigration laws, which may be delegated to any DHS official,
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immigration detention of one of the most highly transient and diverse populations of any detention or correctional system in the world.”50
259. ERO is responsible for identifying, arresting, and removing unlawfully present
immigrants. It “transports removable aliens from point to point, manages aliens in custody or in an
alternative to detention program, provides access to legal resources and representatives of advocacy groups, and removes individuals from the United States who have been ordered to be deported.”51
260. ERO has six divisions, one of which is the Custody Management Division. This
division “provides policy and oversight for the administrative custody of more than 33,000 detainees daily and roughly 440,000 detainees annually,”52 and “[m]anages ICE detention
operations to efficiently and effectively provide for the safety, security, and care of persons in ICE custody.”53
261. ERO oversees “more than 210 local and state facilities operating under inter-
governmental service agreement, contract detention facilities, ICE-owned facilities and facilities operated by the Bureau of Prisons.”54
262. Within the Custody Management Division is the ERO’s Detention Management
Division, which “[c]oordinates with the 24 ERO field offices to ensure a safe and secure
officer or employee); 8 C.F.R. § 100.1 (authority to administer and enforce immigration laws has been delegated to ICE, as well as U.S. Customs and Border Protection and U.S. Citizenship and Immigration Services). 50 Facility Inspections, U.S. Immigration and Customs Enforcement, https://www.ice.gov/facilityinspections (last updated Sept. 17, 2018). 51 Enforcement and Removal Operations, U.S. Immigration and Customs Enforcement, https://www.ice.gov/ero (last updated Jul. 31, 2018). 52 Custody Management – Leadership, U.S. Immigration and Customs Enforcement, https://www.ice.gov/custody-management (last updated Jan. 3, 2018). 53 Custody Management – Overview, U.S. Immigration and Customs Enforcement, https://www.ice.gov/custody-management (last updated Jan. 3, 2018). 54 Id.
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environment for aliens within ERO custody through facility compliance, on-site monitoring, and the acquisition of detention facilities.”55
B. Defendants Selected LaSalle, Stewart, Pine Prairie and Irwin As Immigration Prisons
263. Defendants’ accountability for unconstitutional access to courts and counsel begins with the instrumental act of contracting for the use of physical structures that—by virtue of their design—guarantee inadequate physical space for legal visitation. Upon information and belief, the decision to house immigrants in a designated facility is made by Defendants’ acquisition office, located in the District of Columbia.
264. The ICE Office of Acquisition Management (OAQ), based in the District of Columbia, “negotiates and manages detention facility contracts and agreements.”56 OAQ’s mission is to “deliver quality acquisition solutions in support of the ICE and DHS missions.”57 OAQ’s procurements include: “[l]aw enforcement services and products, including handcuffs, hand restraints, guns and ammunition” and “[d]etention and removal services such as temporary housing, food, clothing and transportation, including air charter flights.”58 This office additionally approves subsequent amendments to contractual agreements to provide funding for, among other things, structural improvements to the facilities. All contracting and procurement responsibilities are centralized at ICE headquarters in Washington, D.C.
55 Id. 56 U.S. Gov’t Accountability Office, Immigration Detention: Additional Actions Needed to Strengthen Management and Oversight of Facility Costs and Standards 2 (October 2014), https://www.gao.gov/assets/670/666467.pdf. 57 Office of Acquisition Management (OAQ), Immigration and Customs Enforcement, https://www.ice.gov/management-administration/oaq (last updated Jul. 26, 2018). 58 Id.
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265. Via a contract executed on July 7, 2007, ICE selected LaSalle ICE Processing Center to imprison immigration detainees. The contract is signed by an ICE Contracting Officer.
266. Upon information and belief, Defendant ICE selected LaSalle for the imprisonment of immigrants notwithstanding Defendants’ knowledge of the structural barriers limiting detainees’ access to counsel, such as the existence of only one attorney visitation room for approximately 1,200 total prisoners.
267. The contract requires compliance with, inter alia, the most current editions of the ICE Detention Standards and the American Correctional Association (ACA) Standards for Adult Local Detention Facilities (ALDF). It explicitly requires that, in the event other standards conflict with ICE standards, the ICE standards prevail.
268. It also includes a lengthy “Quality Assurance Surveillance Plan” through which the Defendants are supposed to validate that the service provider is complying with governmentmandated quality standards in operating the facility, including compliance with standards related to legal rights.
269. The contract provides that ICE is exclusively responsible for the placement of detainees at LaSalle. ICE detainees may not be accepted into LaSalle custody except upon presentation by properly identified ICE personnel and ICE detainees may not be released from LaSalle custody except to properly identified ICE personnel or with ICE authorization.
270. In the contract, ICE maintains “final approving authority” for all LaSalle staff hired to work with immigrants detained by ICE.
271. Via a contract executed with the U.S. Marshal’s Service on July 25, 2007, Defendant ICE selected Irwin County Detention Center to imprison ICE detainees in its custody.
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272. Upon information and belief, Defendant ICE selected the Irwin County Detention Facility for the imprisonment of immigrants notwithstanding Defendants’ knowledge of the structural barriers limiting detainees’ access to counsel, such as the existence of only one attorney visitation room for approximately 1,200 total prisoners.
273. The contract requires compliance with, inter alia, ICE Detention Standards and the most current edition of the ACA Standards for Adult Local Detention Facilities. It explicitly requires that, in the event other standards conflict with ICE standards, the ICE standards prevail.
274. In the contract, Irwin agrees to submit to periodic inspections by federal government inspectors.
275. The contract makes clear that ICE detainees may not be accepted into Irwin custody except upon presentation by a properly identified federal officer, and ICE detainees may not be released from Irwin custody except to properly identified ICE personnel or with ICE authorization.
276. Via a contract executed on June 30, 2006, ICE selected Stewart Detention Center to imprison ICE detainees in its custody. The contract is signed by an ICE Contracting Officer.
277. Upon information and belief, Defendant ICE selected the Stewart Detention Center for the imprisonment of immigrants notwithstanding Defendants’ knowledge of the structural barriers limiting detainees’ access to counsel, such as the existence of just three attorney visitation room for approximately 1,900 detained immigrants.
278. The contract requires compliance with, inter alia, the most current editions of the ICE Detention Standards and the ACA Standards for Adult Local Detention Facilities. It explicitly requires that, in the event other standards conflict with ICE standards, the ICE standards prevail.
279. In the contract, Stewart agrees to submit to periodic inspections by ICE inspectors.
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280. The contract makes clear that ICE detainees may not be accepted into Stewart custody except upon presentation by a properly identified federal officer and ICE detainees may not be released from Stewart custody except to properly identified ICE personnel or with ICE authorization.
281. Via an IGSA, ICE selected the Pine Prairie ICE Processing Center to imprison ICE detainees in its custody. Upon information and belief, the IGSA is signed by an ICE Contracting Officer.
282. Defendant ICE selected the Pine Prairie ICE Processing Center for the imprisonment of immigrants notwithstanding Defendants’ knowledge of the structural barriers limiting detainees’ access to counsel, such as the existence of just three attorney visitation room for up to 1,100 detained immigrants.
283. Upon information and belief, the contract requires compliance with, inter alia, the most current editions of the ICE Detention Standards and the ACA Standards for Adult Local Detention Facilities. It requires that, in the event other standards conflict with ICE standards, the ICE standards prevail.
284. Upon information and belief, in the contract, Pine Prairie agrees to submit to periodic inspections by ICE inspectors.
285. Upon information and belief, the contract makes clear that ICE detainees may not be accepted into Pine Prairie custody except upon presentation by a properly identified federal officer and ICE detainees may not be released from Pine Prairie custody except to properly identified ICE personnel or with ICE authorization.
286. The insufficient number of legal visitation rooms, inadequate soundproofing in the rooms, and physical barriers to contact visitation, as detailed herein, result from Defendants’ choice
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to house immigrants in these buildings and their subsequent failure to authorize and advance funding to improve the buildings to ensure adequate legal visitation space.
287. DHS’s Office of Inspector General recently observed that ICE does not have sufficient policies or guidance for certain “procurement instruments” including Inter-Governmental Service Agreements (IGSAs). LaSalle, Irwin, Pine Prairie, and Stewart are operated pursuant to IGSAs. OIG noted that ICE has failed to formally define IGSA as one of the three types of procurement instruments available to the federal government for obtaining supplies and services (grants, cooperative agreements, and procurement contracts). OIG reported that ICE does not follow Office of Management and Budget’s statutory uniform administrative requirements for Federal awards or Federal Acquisition Regulations, and observed that ICE “should have developed policies and procedures for negotiating, executing, and modifying IGSAs.” Finally, OIG noted that ICE is not in compliance with OMB’s Circular A-123, Management Responsibility for Enterprise Risk Management and Internal Control, which requires agencies to establish policies and procedures related to operations, reporting, and compliance with relevant law and regulations. ICE disagreed with OIG’s findings.59
C. Defendants Promulgated Performance-Based National Detention Standards to Govern Conditions of Confinement in Immigration Prisons
288. ICE claims that it ensures detainees in its custody reside in “safe, secure and humane environments” through an “aggressive inspections program” designed to ensure compliance with ICE’s National Detention Standards. These standards were first established in 2000. The purpose of ICE’s detention standards was to establish “consistent conditions of confinement, access to legal
59 DHS Office of Inspector General, Immigration and Customs Enforcement Did Not Follow Federal Procurement Guidelines When Contracting for Detention Services (OIG-18-53) 5 (February 2018), https://www.oig.dhs.gov/sites/default/files/assets/2018-02/OIG-18-53Feb18.pdf.
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representation, and safe and secure operations across the detention system.”60 The standards exist in addition to, and do not limit, Defendants’ nondelegable constitutional duties.
289. In 2008, ICE renamed the standards as the Performance Based National Detention Standards (“PBNDS”), and revised them to “more clearly delineate the results or outcomes to be accomplished by adherence to their requirements” and improve, inter alia, the “conditions of confinement” for detained immigrants.
290. Finally, in 2011, ICE again revised the PBNDS to improve several specific aspects of conditions of confinement, including “access to legal services . . . improve[ment of] communication with detainees with limited English proficiency” and access to visitation.61
291. The PBNDS govern the prisons ICE uses to hold civil detainees, including service processing centers, contract detention facilities, and state or local government facilities used by ERO pursuant to intergovernmental service agreements to hold detainees for more than 72 hours.
292. Defendants’ PBNDS are the primary mechanism through which they execute their duty to ensure constitutional access to counsel for the thousands of detained immigrants across the United States.
293. The PBNDS provide that meetings between detainees and attorneys or legal assistants are “confidential” and “shall not be subject to auditory supervision.”62 The PBNDS further specify that “[p]rivate consultation rooms shall be available for such meetings.”63 If all such rooms are in use and an attorney wishes to meet in a different room, “the request shall be
60 Detention Management, U.S. Immigration and Customs Enforcement, https://www.ice.gov/detention-management (last updated Aug. 27, 2018). 61 U.S. Immigration and Customs Enforcement, Preface to Performance-Based National Detention Standards 2011 [hereinafter 2011 PBNDS], https://www.ice.gov/doclib/detentionstandards/2011/pbnds2011r2016.pdf. (last updated Dec. 2016). 62 2011 PBNDS at 5.7(I)(2). 63 Id.
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accommodated to the extent practicable” and “[s]uch meetings shall be afforded the greatest possible degree of privacy under the circumstances.”64
294. Regarding the availability of legal visitation, the PBNDS require facilities to permit legal visitation every day, including holidays.65 Legal visitation must be available for at least eight hours on weekdays and at least four hours on weekend days.66
295. With respect to conduct during legal visits, the PBNDS require the facility’s procedures to “provide for the exchange of documents between a detainee and the legal representative or assistant, even when contact visitation rooms are unavailable.”67 Any written material provided to detainees during such meetings “shall be inspected but not read.”68
296. The PBNDS additionally prohibit staff from being present in the confidential visitation area during a legal meeting, unless their presence is requested by the legal representative or assistant.69
297. As to legal visitation that occurs at the same time as other regular activities in the prison’s daily schedule, the PBNDS provide that legal visitation may take place during scheduled meal periods, in which case detainees “shall receive a tray or sack meal after the visit.”70 Additionally, legal visits may not be terminated for routine official counts.71
298. The PBNDS state that “[l]egal representatives and legal assistants shall not be asked to state the legal subject matter of the meeting”72 and “[a]ttorneys representing detainees on legal
64 2011 PBNDS at 5.7(V)(J)(9). 65 2011 PBNDS at 5.7(V)(J)(2). 66 Id. 67 2011 PBNDS at 5.7(V)(J)(10). 68 Id. 69 2011 PBNDS at 5.7(V)(J)(9). 70 2011 PBNDS at 5.7(V)(J)(2). 71 See 2011 PBNDS at 5.7(V)(J)(9). 72 2011 PBNDS at 5.7(V)(J)(4).
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matters unrelated to immigration are not required to complete a Form G-28 [Notice of Appearance].”73
299. Facilities are required to allow detainees to meet with prospective legal representatives or legal assistants.74 For these pre-representation meetings, “a legal service provider’s representative need not complete a Form G-28 . . . .”75 In addition, visitors, including attorneys and legal representatives, “are not required to file a Form G-28 to participate in a consultation visit or provide consultation during an asylum officer interview or Immigration Judge’s review of a negative credible fear determination.”76
300. During regular legal visitation hours, legal assistants are explicitly permitted to meet alone with detainees by presenting “a letter of authorization from the legal representative under whose supervision he/she is working.”77
301. The PBNDS encourage facilities “to provide opportunities for both contact and noncontact visitation with approved visitors during both day and evening hours.”78
D. Defendants Fail to Monitor or Enforce Compliance with the PBNDS or Remediate Violations
302. Defendants are responsible for the issuance and enforcement of immigrant detention standards that apply to all prisons in the system; monitoring compliance with those standards through inspections, investigations and onsite supervision; and negotiating, developing and executing the contracts that designate physical structures for the detention of immigrants that comply with those standards and other applicable law.
73 2011 PBNDS at 5.7(V)(J)(8). 74 2011 PBNDS. at 5.7(V)(J)(4). 75 2011 PBNDS at 5.7(V)(J)(7). 76 2011 PBNDS at 5.7(V)(K)(7). 77 2011 PBNDS at 5.7(V)(J)(4). 78 2011 PBNDS at 5.7(I)(4).
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303. These standards reflect that Defendants have no legitimate interest in maintaining obstacles that prevent detainees from accessing and communicating with attorneys. Yet, as detailed infra, Defendants wholly fail to enforce the PBNDS—which are specifically incorporated into ICE’s management contracts for LaSalle, Irwin, Pine Prairie, and Stewart.
304. Defendants purport to fulfill their responsibility for individual prisons’ adherence to the PBNDS through a system of monitoring, inspection and oversight. That system includes internal divisions and programs within ICE that are designated to ensure compliance with ICE detention standards at immigrant detention facilities—including LaSalle, Irwin, Pine Prairie, and Stewart. Those internal mechanisms include the Custody Management Division, Enforcement and Removal Operations, directed by Defendant Johnson, and the Detention Monitoring Program, which provides for continual monitoring by on-site ICE staff.79
305. According to its website, ICE created the Office of Detention Oversight (ODO). ODO is a unit of ICE’s Office of Professional Responsibility, Inspections and Detention Oversight Division. ODO is institutionally separate from ERO and reports directly to the ICE director.80 Its inspections are intended to provide ICE leadership with an independent assessment of ICE facilities.81 It bases its inspection schedule on perceived risk, ICE direction, or national interest, and its leadership selects facilities for review each year based on staff capacity, agency priorities, and special requests by ICE leadership.
306. In October 2009, ICE centralized detention facility management contracts under ICE Headquarters supervision in order to aggressively enforce contract compliance and initiate new
79 See generally DHS Office of Inspector General, ICE’s Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or Systemic Improvements (OIG-18-67) (June 2018), https://www.oig.dhs.gov/sites/default/files/assets/2018-06/OIG-18-67-Jun18.pdf. 80 Id. at 3. 81 Id.
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procurements.82 Beginning in December 2009, ICE collaborated with vendors to provide specific no-cost improvement, such as increased recreation and contact visitation, to improve conditions of confinement. In December 2010, ICE created the Detention Monitoring Council, which engages ICE senior leadership in the review of facility inspection reports, assessment of corrective action plans, implementation of detention reforms, and other ongoing oversight issues.
307. More recently, upon information and belief, one of the offices previously tasked with internal oversight—the Office of Detention Policy and Planning (ODPP)—was eliminated by Defendants.83
308. Importantly, ODPP was established to be “institutionally separate” from ICE Enforcement and Removal Operations so that it could provide an “independent assessment of detention facilities.”84 Defendants’ action to eradicate ODPP is at odds with their duty to ensure that detained immigrants are housed in facilities that adhere to the PBNDS.
309. Defendants’ failure to properly oversee its immigration prisons for compliance with its own policies or the Constitution has been well-documented by external stakeholders as well as DHS itself. Most recently, a report issued in 2018 by DHS’ own Office of the Inspector General (“OIG”) entitled “ICE’s Inspections and Monitoring of Facilities Do Not Lead to Sustained Compliance or Systemic Improvements” details Defendants’ utter failure to ensure compliance with
82 Detention Reform, U.S. Immigration and Customs Enforcement, https://www.ice.gov/detention-reform#tab1 (last updated Jul. 24, 2018). 83 Caitlin Dickerson, Trump Plan Would Curtail Protections for Detained Immigrants, New York Times (Apr. 13, 2017), https://www.nytimes.com/2017/04/13/us/detained-immigrants-may-faceharsher-conditions-under-trump.html. 84 Detention Reform, U.S. Immigration and Customs Enforcement, https://www.ice.gov/detention-reform#tab1 (last updated Jul. 24, 2018); see also DHS Office of Inspector General, ICE’s Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or Systemic Improvements (OIG-18-67) (June 2018), https://www.oig.dhs.gov/sites/default/files/assets/2018-06/OIG-18-67-Jun18.pdf
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the PBNDS. A damning assessment of ICE detention oversight and inspection, the report concludes that none of the on-site inspections employed by ICE adequately “ensure[ ] consistent compliance with detention standards or comprehensive correction of identified deficiencies.”85 The DHS Inspector General further states that “ICE does not adequately follow up on identified deficiencies or systematically hold facilities accountable for correcting deficiencies[.]”86 Ultimately, the report finds that the entire system employed by ICE for monitoring and enforcing compliance with the PBNDS “do[es] not ensure adequate oversight or systemic improvements in detention conditions; certain deficiencies remain unaddressed for years.”87
310. The documentation of Defendants’ failure goes back more than a decade. In a 2006 report, the OIG identified issues with ICE detention facility inspections and corrective action plans. OIG advised ICE to improve its inspection process and correct non-compliance deficiencies.88
311. In 2009 two advocacy groups along with the law firm Holland & Knight published a report entitled “A Broken System: Confidential Reports Reveal Failures in U.S. Immigrant Detention Centers,” which documented the results of the “first-ever system wide look at the federal government’s compliance with its own standards regulating immigrant detention facilities.” The report’s authors analyzed the results of inspections conducted by the American Bar Association, the United Nations High Commissioner for Refugees, and ICE itself. Based on this review, the report found that “the persistent failure of facilities to respect detainees’ visitation rights severely
85 DHS Office of Inspector General, ICE’s Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or Systemic Improvements (OIG-18-67) 4 (June 2018), https://www.oig.dhs.gov/sites/default/files/assets/2018-06/OIG-18-67-Jun18.pdf. 86 Id. 87 Id. 88 DHS Office of Inspector General, Treatment of Immigration Detainees Housed at Immigration and Customs Enforcement Facilities (OIG-07-01) (December 2006), https://www.oig.dhs.gov/assets/Mgmt/OIG_07-01_Dec06.pdf.
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hampers detainees’ ability to exercise their constitutional and statutory right to counsel.” It also found that ICE had consistently failed to ensure compliance with telephone standards, noting that “the most pervasive and troubling violations are lack of privacy afforded to detainees when making confidential legal calls, monitoring of legal calls by facility officials…arbitrary and unnecessary time limits placed on detainees’ telephone calls, and refusal by facility staff to deliver telephone messages to detainees.”89
312. In 2015, three national non-profit organizations issued a report entitled “Lives in Peril: How Ineffective Inspections Make ICE Complicit in Immigration Detention Abuse.”90 The authors reviewed five years’ worth of ICE inspections for 105 of the largest immigration detention prisons in the country and concluded that ICE’s inspection process “remains a ‘checklist culture’ in which inspectors – employed by ICE directly or via subcontracts- engage in pre-planned, perfunctory reviews of detention centers that are designed to result in passing ratings. . . .” This report includes an in-depth section on Stewart that notes that attorneys in the region complained as far back as 2012 that the visitation rooms were inadequate because they had to communicate with their clients through a phone and Plexiglas, making it difficult to prepare for court and provide confidential documents—but that none of these concerns were reflected in the facility inspection reports.91
313. Even if Defendants enforced the PBNDS at LaSalle, Irwin, Pine Prairie, and Stewart, the standards are entirely insufficient to protect the rights of noncitizens held in these prisons.
89 Nat’l Immigration Law Ctr., A Broken System: Confidential Reports Reveal Failures in U.S. Immigration Detention Centers ix, https://www.nilc.org/wp-content/uploads/2016/02/A-BrokenSystem-2009-07.pdf. 90 Nat’l Immigrant Justice Ctr., Lives in Peril: How Ineffective Inspections Make ICE Complicit in Immigration Detention Abuse 2, http://immigrantjustice.org/lives-peril-how-ineffectiveinspections-make-ice-complicit-detention-center-abuse-0. 91 See id. at 25–26.
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Among other facially inadequate aspects of the PBNDS, they allow prison staff to improperly interfere with the attorney-client relationship; they fail to mandate timely access in all situations where communication with counsel is imperative to provide adequate representation in dispositive proceedings; and they fail to prevent punitive conditions of legal visitation, such as non-contact visitation and shackling of immigrants during legal visits.
314. Defendants’ repeated and consistent failure to adequately direct and manage the immigration system that they control results in ongoing and routine interference with Plaintiff’s clients’ access to counsel—by detaining them in facilities with an insufficient number of attorneyvisitation rooms, actually and constructively depriving them of confidential contact with their attorneys or legal representatives, preventing the confidential exchange of documents, and subjecting them to punitive conditions such as shackling during legal visitation. Defendants’ conduct violates the minimal protections embodied in the PBNDS and, ultimately, the protections afforded to immigrants by the Constitution.
315. Defendants have abdicated their duty at every point in the process of setting and enforcing compliance with standards for immigration detention. This abdication, along with the inadequacies of the oversight and monitoring scheme itself, are the cause of the unconstitutional lack of access to counsel and to courts at immigration prisons across the country, including LaSalle, Irwin, Pine Prairie, and Stewart.
FIRST CLAIM FOR RELIEF
Denial of Access to Courts in Violation of the Due Process Clause of the Fifth Amendment (SPLC, on behalf of its clients at LaSalle, Irwin, Pine Prairie, and Stewart)
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316. Plaintiff realleges and incorporates by reference the foregoing paragraphs and incorporates them herein by this reference.
317. The Due Process Clause of the Fifth Amendment guarantees noncitizen detainees the right of access to courts and prohibits the government and its agents from unjustifiably obstructing that access.
318. As such, Plaintiff’s clients require meaningful access to Plaintiff in order to seek release on both bond and parole and to defend themselves against removal from the United States— the very reason that they are detained at these immigration prisons.
319. The regulations and practices of the Defendants unjustifiably obstruct the availability of meaningful legal professional representation for SPLC’s clients and impede upon other aspects of their right of access to the courts at facilities across the Southeast. These regulations and practices are invalid.
320. SPLC’s clients at these facilities are civil detainees. 321. As a result, Defendants cannot invoke “penological interests” as justification for any of the barriers they have placed between SPLC’s clients and SPLC. 322. There are no security interests or administrative needs that justify these barriers at the expense of SPLC’s clients’ access to courts and counsel. Under the totality of the circumstances—including, but not limited to, the remoteness of the facility, the inadequate number of visitation rooms, restrictions on visitation hours, delays in attorney access, lack of confidentiality in visitation rooms, lack of meaningful access to interpretation services, and barriers to remotely and confidentially communicating with their attorneys, Defendants are detaining Plaintiff’s clients in a manner that prevents them from meaningfully accessing courts.
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323. Plaintiff’s clients have suffered and will imminently suffer irreparable injury as a result of Defendants’ policies, practices, and omissions and are entitled to injunctive relief to avoid any further injury.
SECOND CLAIM FOR RELIEF Denial of the Right to Counsel in Violation of the
Due Process Clause of the Fifth Amendment (SPLC, on behalf of its clients at LaSalle, Irwin, Pine Prairie, and Stewart)
324. Plaintiff realleges and incorporates by reference the foregoing paragraphs and incorporates them herein by this reference.
325. The Due Process Clause of the Fifth Amendment guarantees Plaintiff’s clients the right to the effective assistance of counsel in their removal proceedings at no cost to the Government.
326. Plaintiff’s clients have retained Plaintiff to represent them in removal proceedings. 327. For all the reasons assigned above, Defendants’ policies, practices, and omissions have created substantial barriers to Plaintiff’s efforts to provide effective and ethical representation to their clients. 328. Plaintiff’s clients have suffered and will imminently suffer irreparable injury as a result of Defendants’ policies, practices, and omissions and are entitled to injunctive relief to avoid any further injury.
THIRD CLAIM FOR RELIEF Denial of the Right to a Full and Fair Hearing in Violation of the
Due Process Clause of the Fifth Amendment (SPLC, on behalf of its clients at LaSalle, Irwin, Pine Prairie, and Stewart)
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329. Plaintiff realleges and incorporates by reference the foregoing paragraphs and incorporates them herein by this reference.
330. The Due Process Clause of the Fifth Amendment guarantees Plaintiff’s clients the right to a full and fair hearing in their removal cases.
331. Defendants’ conduct creates a substantial likelihood that Plaintiff’s clients’ rights to a full and fair hearing will be violated, because Defendants’ policies and practices severely restrict the ability of Plaintiff to communicate with its clients and to conduct necessary legal work on their behalf in connection with their removal proceedings.
332. Plaintiff’s clients have a substantial interest in avoiding prolonged detention and ultimately prevailing in their removal proceedings.
333. All of the obstacles to accessing and communicating with counsel described herein create a substantial risk that errors will occur in bond and removal proceedings; eliminating these barriers creates a greater likelihood of preventing an erroneous deprivation of Plaintiff’s clients’ rights.
334. The government’s interest in maintaining the current obstacles is de minimis, especially in light of the countervailing interests of Plaintiff’s clients.
335. Plaintiff’s clients have suffered and will imminently suffer irreparable injury as a result of Defendants’ policies, practices, and omissions and are entitled to injunctive relief to avoid any further injury.
FOURTH CLAIM FOR RELIEF Denial of the Right to Free Speech in Violation of the First Amendment
(SPLC, on behalf of itself) 336. Plaintiff realleges and incorporates by reference the foregoing paragraphs and incorporates them herein by this reference.
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337. The First Amendment protects SPLC’s activities as a legal organization in informing and representing its clients because those activities are modes of expression and association.
338. Defendants’ policies, practices, and omissions have interfered with and obstructed SPLC’s ability to inform and represent its clients.
339. The First Amendment also prohibits the government from restricting SPLC’s expression on the basis of its viewpoint, or treating SPLC’s expression differently from that of other attorneys on the basis of viewpoint.
340. Upon information and belief, many of the obstacles described above have been targeted at the SPLC alone—and not at other immigration lawyers who practice at LaSalle, Stewart, or Irwin—due to SPLC’s underlying mission.
FIFTH CLAIM FOR RELIEF Denial of Substantive Due Process in Violation of the Fifth Amendment (SPLC, on behalf of its clients at LaSalle, Irwin, Pine Prairie, and Stewart) 341. Plaintiff realleges and incorporates by reference the foregoing paragraphs and incorporates them herein by this reference. 342. Due process prohibits imprisoning civil detainees in conditions that rise to the level of punishment. 343. Conditions of confinement that are expressly intended to punish, that are not reasonably related to a legitimate governmental objective, and/or that are excessive in relation to that objective, constitute punishment of civil detainees in violation of the Due Process Clause. 344. The conditions of confinement for Plaintiff’s clients at LaSalle, Irwin, Pine Prairie, and Stewart, violate the Due Process Clause.
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345. At each facility, Defendants’ policies and practices obstruct civil detainees from accessing and communicating with attorneys in a manner that is equivalent to or even more restrictive than conditions imposed upon criminal detainees in jails and prisons.
346. For example, contact visits with attorneys are categorically prohibited at LaSalle, Irwin, and Stewart. Rather than requiring an individualized assessment of whether a particular civil detainee poses a security threat sufficient to justify an individual ban on contact visits, Defendants deliberately choose to maintain policies and practices that permit categorical bans on contact visits between attorneys and their detained immigrant clients.
347. The constellation of restrictions on attorney access described herein violate the Due Process Clause because they, individually and collectively: (1) are identical to, similar to, or more restrictive than those under which persons accused or convicted of crimes are confined; (2) are expressly intended to punish civil detainees; (3) are not reasonably related to legitimate governmental objectives; and/or (4) are excessive in relation to any proffered objective.
SIXTH CLAIM FOR RELIEF Violation of the Administrative Procedure Act, 5 U.S.C. § 706 (SPLC, on behalf itself and its clients at LaSalle, Irwin, Pine Prairie and Stewart) 348. Plaintiff realleges and incorporates by reference the foregoing paragraphs and incorporates them herein by this reference. 349. The Administrative Procedure Act (“APA”), 5 U.S.C. § 551, et seq., authorizes suits by “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.” 5 U.S.C. § 702. 350. ICE’s Performance-Based National Detention Standards (“PBNDS”) apply at all ICE civil detention facilities, including LaSalle, Irwin, Pine Prairie, and Stewart. The PBNDS are
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the primary mechanism through which Defendants execute their duty to ensure constitutional access to counsel for the thousands of detained immigrants across the United States.
351. With respect to legal visitation, the PBNDS require, among other things, that meetings between detainees and attorneys or legal assistants be confidential, be permitted for at least eight hours on weekdays and four hours on weekend days (including holidays, scheduled meal periods, and routine official counts that take place after a visit has begun), and provide for the exchange of documents even when contact visitation rooms are unavailable. The PBNDS strongly encourage contact visitation. In addition, the PBNDS require that facilities allow detainees to meet with prospective legal representatives or legal assistants, who need not file a notice of appearance to participate in a consultation visit or to provide consultation during an asylum officer interview or an Immigration Judge’s review of a negative credible fear determination.
352. Although the PBNDS are incorporated into ICE’s management contracts for LaSalle, Irwin, Pine Prairie, and Stewart, Defendants have failed miserably to ensure compliance with them. In particular, Defendants have provided an inadequate number of soundproof legal visitation rooms, deprived detainees of confidential contact with their attorneys or legal representatives, prevented the confidential exchange of documents between detainees and their attorneys or legal assistants, and imposed punitive barriers to contact visitation.
353. An agency’s unexplained failure to follow its own rules constitutes “arbitrary, capricious” conduct in violation of the Administrative Procedure Act. 5 U.S.C. § 706(2)(A); United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 267 (1954); FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009).
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354. In addition, the agency’s failure to comply with the attorney access requirements and SPLC’s First Amendment rights under the Constitution is not “in accordance with law.” 5 U.S.C. § 706(2)(A).
355. Defendants’ final agency actions have caused Plaintiff and its clients detained at LaSalle, Irwin, Pine Prairie, and Stewart to suffer injuries in fact.
356. The interests that Plaintiff seeks to protect are within the zone of interests regulated by the applicable provisions of the Constitution and the PBNDS.
357. Defendants’ final agency actions are the direct cause of the injuries to Plaintiff’s detained clients.
358. Plaintiff’s requested relief would redress these injuries. 359. Plaintiff has no adequate remedy at law to redress the wrongs suffered as set forth in this Complaint.
PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests that the Court:
1. Accept jurisdiction of this case and set it for hearing at the earliest opportunity; 2. Issue a judgment declaring that Defendants’ policies, practices, and omissions described
herein violate Plaintiff and its clients’ rights under the United States Constitution and the Administrative Procedure Act; 3. Enjoin Defendants, their subordinates, agents, employees, and all others acting in concert with them from subjecting Plaintiff and its clients to the unlawful acts and omissions described herein, and issue an injunction sufficient to remedy the violations of Plaintiff’s and its clients’ constitutional and statutory rights, including:
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a. An order that Defendants provide sufficient space for timely, confidential and contact attorney-client meetings;
b. An order that Defendants do not locate more noncitizen detainees at LaSalle, Irwin, Pine Prairie, and Stewart than can be reasonably accommodated for attorney visitation space;
c. An order that Defendants provide a cost-effective and functional means of accessing remote interpretation services within the attorney-visitation meeting rooms;
d. An order that Defendants permit confidential attorney-client telephonic and/or video teleconference communications in excess of one hour without limitation on the number of such communications;
e. An order that Defendants institute protocols to ensure that such telephonic and/or video teleconference communications can be scheduled without unreasonable delay; and
f. An order that Defendants permit SPLC’s staff and volunteers to use laptops, tablets and cellular telephones in the waiting rooms and attorney-visitation rooms after Plaintiff certifies that such use is in furtherance of its representation of its clients.
4. Grant Plaintiff its reasonable attorney fees and costs pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412, and any other applicable law.
5. Grant such other relief as the Court deems just and proper.
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Dated: August 26, 2019
/s/ Lisa S. Graybill Lisa Graybill Jamila Johnson Jared Davidson Southern Poverty Law Center 201 St. Charles Avenue, Suite 2000 New Orleans, Louisiana 70170 Tel: (504) 486-8982 Lisa.Graybill@splcenter.org Jamila.Johnson@splcenter.org Jared.Davidson@splcenter.org
/s/ Elissa Johnson Elissa Johnson Southern Poverty Law Center 150 East Ponce DeLeon Ave., Suite 340 Decatur, Georgia 30030 Tel: (678) 954-4995 Elissa.Johnson@splcenter.org
/s/ John T. Bergin John T. Bergin (DC Bar No. 448975) Kilpatrick Townsend & Stockton LLP 607 14th Street NW, Suite 900 Washington, DC 20005 Tel: (202) 481-9943 JBergin@kilpatricktownsend.com

Respectfully submitted,
/s/ Melissa Crow Melissa Crow (DC Bar No. 453487) Southern Poverty Law Center 1666 Connecticut Avenue, NW, Suite 100 Washington, DC 20009 Tel: 202-355-4471 Melissa.Crow@splcenter.org
/s/ William E. Dorris William E. Dorris Susan W. Pangborn Jeffrey Fisher Kilpatrick Townsend & Stockton LLP 1100 Peachtree Street NE, Suite 2800 Atlanta, GA 30309 Tel: (404) 815-6104 BDorris@kilpatricktownsend.com SPangborn@kilpatricktownsend.com JFisher@kilpatricktownsend.com
/s/ Gia L. Cincone Gia L. Cincone Kilpatrick Townsend & Stockton LLP Two Embarcadero Center, Suite 1900 San Francisco, CA 94111 Tel: (415) 273-7571 GCincone@kilpatricktownsend.com

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SOUTHERN POVERTY LAW CENTER, Plaintiff,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants.

Civil Action No. 18-760 (CKK)

MEMORANDUM OPINION (June 17, 2020)
This case concerns detained immigrants’ access to legal counsel and conditions of confinement in relation to four Immigration and Customs Enforcement (“ICE”) detention facilities: LaSalle ICE Processing Center in Jena, Louisiana (“LaSalle”); Pine Prairie ICE Processing Center in Pine Prairie, Louisiana (“Pine Prairie); Irwin County Detention Center in Ocilla, Georgia (“Irwin”); and Stewart Detention Center in Lumpkin, Georgia (“Stewart”) (collectively, “the Facilities”). Pl.’s Second Am. Compl., ECF No. 70, ¶ 13. Plaintiff Southern Poverty Law Center (“SPLC”) is an organization that provides representation for detained persons at these four Facilities. Recently, Plaintiff’s efforts have focused on assisting detained individuals seeking to be released into the community due to the emergence and spread of COVID-19. Pending before the Court is Plaintiff’s Motion for a Temporary Restraining Order, ECF No. 105.
Plaintiff argues that the Facilities’ reactions to the COVID-19 pandemic violate Plaintiff’s clients’ rights to access counsel and substantive due process rights under the Fifth Amendment. Plaintiff seeks a temporary restraining order “directing Defendants to remove access barriers and remedy the dangerously punitive conditions at the four detention facilities at issue in this case.” Pl.’s Mot. for Temp. Restraining Order at 1. In response, Defendants argue that Plaintiff lacks
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standing, that this Court lacks subject-matter jurisdiction, and that Plaintiff does not satisfy the
standard for a temporary restraining order and that, in particular, it has not shown a likelihood of success on the merits for either of its claims. Upon consideration of the briefing,1 the relevant
authorities, and the record, the Court GRANTS-IN-PART and DENIES-IN-PART Plaintiff’s
Motion for a Temporary Restraining Order.
I. EXECUTIVE SUMMARY
In this Memorandum Opinion, the Court first finds that Plaintiff has sufficiently
demonstrated third-party standing and that there is subject-matter jurisdiction over its conditions
of confinement claim. As for standing, Plaintiff has established an injury in fact. The policies
and procedures at the Facilities have forced Plaintiff to divert resources and have thwarted its
organizational mission, which includes providing legal representation to detained individuals at
these Facilities, especially clients seeking to be released into the community in light of COVID-
19. See infra Section IV.A at 23–31. The Court further finds that it has subject-matter jurisdiction
over Plaintiff’s conditions of confinement claim because the Immigration and Nationality Act’s
1 The Court’s consideration has focused on the following: • Pl.’s Mot. for a Temp. Restraining Order (“Pl.’s Mot.”), ECF No. 105; • Pl.’s Mem. of P. & A. in Supp. of Its Mot. for a Temp. Restraining Order (“Pl.’s Mem.”), ECF No. 105-1; • Notice of Supplementation to Pl.’s Mot. for a Temp. Restraining Order (“Pl.’s Suppl.”), ECF No. 108; • Defs.’ Corrected Opp’n to Pl.’s Mot. for Temp. Restraining Order (“Defs.’ Opp’n”), ECF No. 112; • Pl.’s Reply in Supp. of Mot. for a Temp. Restraining Order (“Pl.’s Reply”), ECF No. 113; and • Pl.’s Notice of Suppl. Authority (“Pl.’s Suppl. Notice”), ECF No. 119.
On June 16, 2020, Plaintiff also filed an additional Notice of Supplemental Facts, ECF No. 120, with two attached declarations, in which Plaintiff claimed that the restrictions at issue in this Memorandum Opinion were still ongoing. However, the Court does not rely upon this Notice of Supplemental Facts in this Memorandum Opinion. In an exercise of its discretion, the Court finds that holding oral argument would not be of assistance in rendering a decision. See LCvR 7(f).
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zipper clause, 8 U.S.C. § 1252(b)(9), does not extend to claims collateral to the removal process for which judicial review of the final order of removal may be ineffective or too late. Plaintiff’s conditions of confinement claim falls into this category of collateral claims and is therefore reviewable at this juncture. See infra Section IV.B at 31–37.
The Court then concludes that Plaintiff has satisfied the requirements for a temporary restraining order for its conditions of confinement claim. First, the Court finds that Plaintiff has a likelihood of success on the merits for that claim: The conditions and restrictions that Plaintiff raises are likely punitive in violation of the Fifth Amendment. Defendants’ apparent alternative to remote legal visitation—in-person legal visitation with certain precautions—is not a less harsh alternative to the conditions and restrictions placed on remote legal visitation. Due to the emergence and spread of COVID-19, in-person legal visitation is no longer viable as a primary vehicle of communication between legal representatives and detained individuals at these Facilities. See infra Section IV.C at 38–45.
Instead, out of necessity, remote legal communications and visits have become the primary method through which detained individuals may confer with legal representatives. But Defendants’ response to this development with respect to increasing the capacity and possibilities for remote legal visitation and communication has been inadequate and insufficient. Moreover, the restrictions on and conditions relating to remote legal visitation and communication are disproportionate to Defendants’ non-punitive governmental objectives and appear to be more restrictive than standards promulgated for criminal detainees. See infra Section IV.C at 46–70. The Court further finds that Plaintiff has shown that there will be irreparable harm without preliminary relief and that the balance of hardships and public interest weigh in favor of issuing temporary injunctive relief. See infra Section IV.C at 70–74.
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Lastly, the Court describes the specific relief granted. In broad strokes, the Court orders that Defendants shall comply with the optimal-level requirements of the Performance-Based National Detention Standards related to calls and video-teleconferences; shall ensure that the telephones, video-teleconference systems, and other devices used to access legal representatives are in good working order and shall designate points of contact at the Facilities for related issues; shall ensure that attorney–client confidentiality be maintained on legal calls and videoteleconferences; shall devise, implement, and advertise procedures for scheduling and accessing calls and video-teleconferences and shall designate points of contact at the Facilities for related questions and issues; shall comply with the CDC Interim Guidance with respect to the cleaning of devices and spaces used for legal calls and video-teleconferences; shall create, implement, and advertise procedures through which detained individuals and legal representatives may exchange confidential legal documents electronically and shall designate points of contact at the Facilities for related questions and issues; and shall train staff at the Facilities on the aforementioned procedures. See infra Section IV.D at 74–77.
II. BACKGROUND A. Procedural History and the Pending Motion
On April 4, 2018, Plaintiff commenced this lawsuit against Defendants, the United States Department of Homeland Security (“DHS”) and the United States Immigration and Customs Enforcement (“ICE”), as well as various DHS and ICE officials, to challenge the constitutionality of Defendants’ alleged failure to provide adequate access to legal counsel and courts for detained immigrants. Pl.’s Mem. at 1. In May 2018, Plaintiff filed a preliminary injunction to “resolve urgent access issues” at LaSalle, and in August 2018, the parties reached a mediated agreement. Id. at 4. In May 2019, this Court denied Defendants’ motion to sever and transfer the pending case,
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declining to sever the lawsuit into three separate actions and holding that “the interests of justice d[id] not warrant transfer of the unsevered case to a different forum.” S. Poverty Law Ctr. v. U.S. Dep’t of Homeland Sec., No. 18-760 CKK, 2019 WL 2077120, at *4 (D.D.C. May 10, 2019). Plaintiff consequently amended its complaint and the parties commenced discovery. Pl.’s Mem. at 4.
Certain detained immigrants at the four Defendant Facilities in this suit have also recently been involved in a class action challenging the hygiene conditions at the Facilities in the wake of COVID-19, Fraihat v. U.S. Immigration & Customs Enforcement, No. EDCV 19-1546 JGB, 2020 WL 1932570 (C.D. Cal. Apr. 20, 2020). The court there issued preliminary relief and found that the plaintiffs were likely to succeed on the merits of one or more of their claims, which included “punitive conditions of confinement, in violation of the Fifth Amendment.” Id. at *21, 25. During a pandemic such as COVID-19, the court found, “it is likely punitive for a civil detention administrator to fail to mandate compliance with widely accepted hygiene, protective equipment, and distancing measures until the peak of the pandemic, and to fail to take similar systemwide actions as jails and prisons.” Id. at *25. Moreover, “the protective actions taken by comparable prison and jail administrators [had] been as favorable or more favorable than [the] Defendants’.” Id.
On May 7, 2020, Plaintiff filed the pending Motion for a Temporary Restraining Order, seeking to compel Defendants into lifting certain restrictions and/or removing barriers that they claim are punitive and unreasonably limit their clients’ access to legal counsel during the COVID19 pandemic at the Facilities. Pl.’s Mem. at 1; see also Pl.’s Mot. Their arguments hinge on two different arguments or claims: first, that the conditions at the Facilities violate their clients’ right to counsel; and second, that the conditions are punitive in violation of their clients’ substantive
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due process rights. See Pl.’s Mem. In support of its motion seeking a TRO and its reply to Defendants’ motion in opposition, Plaintiff submitted the following declarations:
• Declaration of Aristoteles Sanchez Martinez (“Sanchez Martinez Decl.”), ECF No. 105-2;
• Declaration of Benjamin Osorio (“Osorio Decl.”), ECF No. 105-3; • Declaration of Dr. Dora Schriro (“Schriro Decl.”), ECF No. 105-4; • Declaration of Homer Venters (“Venters Decl.”), ECF No. 105-5;2 • Declaration of Homero López, Jr. (“López Decl.”), ECF No. 105-6; • Declaration of Laura G. Rivera (“Rivera Decl.”), ECF No. 105-7; • Declaration of Lorilei Williams (“Williams Decl.”), ECF No. 105-8; • Declaration of Shalini Goel Agarwal (“Agarwal Decl.”), ECF No. 105-9; • Supplemental Declaration of Shalini Goel Agarwal (“Supp. Agarwal Decl.”), ECF
No. 108-1; and • Supplemental Declaration of Laura G. Rivera (“Supp. Rivera Decl.”), ECF
No. 108-2. In response, Defendants argue that Plaintiff lacks standing, that this Court lacks subjectmatter jurisdiction, and that Plaintiff cannot meet the applicable TRO standard for both its claims. See Defs.’ Opp’n. In support of its motion in opposition to Plaintiff’s motion, Defendants
2 Defendants note that Plaintiff did not include Dr. Venters’ curriculum vitae and statement of compensation from his report. Defs.’ Opp’n at 26 n.3. Defendants also appear to object to parts of Plaintiff’s declarations as “double hearsay.” Id. at 43. However, whether to grant preliminary relief is frequently based on “procedures that are less formal and evidence that is less complete than in a trial on the merits.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). “Following this principle, courts generally permit consideration of hearsay evidence in connection with preliminary injunction motions.” Holiday CVS, L.L.C. v. Holder, 839 F. Supp. 2d 145, 155 (D.D.C.), vacated and remanded on other grounds, 493 F. App’x 108 (D.C. Cir. 2012).
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submitted the following declarations: • Declaration of Officer in Charge John Bretz (“Bretz Decl.”), ECF No. 112-7; • Declaration of Gary W. Chambarlain, Jr. (“Chambarlain Decl.”), ECF No. 112-8; • Declaration of Russell Hott (“Hott Decl.”), ECF No. 112-9; • Declaration of Tracy Moten (“Moten Decl.”), ECF No. 112-10; • Declaration of Assistant Field Office Director Patrick Musante (“Musante Decl.”), ECF No. 112-11; • Second Declaration of Patrick Musante (“Second Musante Decl.”), ECF No. 11212; • Declaration of David Paulk (“Paulk Decl.”), ECF No. 112-13; • Second Declaration of David Paulk (“Second Paulk Decl.”), ECF No. 112-14; • Declaration of Matthew W. Reaves (“Reaves Decl.”), ECF No. 112-15; • Declaration of Facility Administrator Shad Rice (“Rice Decl.”), ECF No. 112-16; • Declaration of Facility Administrator Eric Staiger (“Staiger Decl.”), ECF No. 11217; • Declaration of Russell Washburn (“First Washburn Decl.”), ECF No. 112-18; • Second Declaration of Russell Washburn (“Second Washburn Decl.”), ECF No. 112-19; • Third Declaration of Russell Washburn (“Third Washburn Decl.”), ECF No. 11220; and • Fourth Declaration of Russell Washburn (“Fourth Washburn Decl.”), ECF No. 112-21.
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B. COVID-19 Pandemic and Relevant Related Litigation The novel coronavirus, COVID-19, is a disease that has led to a global pandemic. See
World Health Org., WHO Director-General’s Opening Remarks at the Media Briefing on COVID19 (Mar. 11, 2020), https://www.who.int/dg/speeches/detail/who-director-general-s-openingremarks-at-the-media-briefing-on-covid-19---11-march-2020. As of June 16, 2020, 7.94 million individuals have been infected worldwide, including 2.07 million people in the United States, of whom 115,484 have died. World Health Org., Situation Report–148 (June 16, 2020), https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200616-covid-19sitrep-148-draft.pdf?sfvrsn=9b2015e9_2. On March 23, 2020, the Centers for Disease Control and Prevention (“CDC”) released the Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (“CDC Interim Guidance”). See Ctrs. for Disease Control & Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, https://www.cdc.gov/coronavirus/2019ncov/downloads/guidance-correctional-detention.pdf (last visited June 17, 2020). Furthermore, as of June 16, 2020, the entire population of ICE detention facilities is 24,713, and the number of detained individuals tested for COVID-19 is 7,364, of whom a total of 2,110 have tested positive as of June 17, 2020, while in ICE custody since testing began in February 2020. ICE Guidance on COVID-19, ICE Detainee Statistics, https://www.ice.gov/coronavirus#citations (last updated June 17, 2020). C. Defendants’ Response to COVID-19 in This Case
Defendants represent that, in response to the COVID-19 pandemic, they have implemented various protocols and safety precautions in order to reduce the risk of spreading the virus. Defs.’ Opp’n at 5. These protocols include mandating the use of PPE for in-person attorney–client
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meetings, as well as expanding the hours for remote consultations via video-teleconferencing (“VTC”). Id.
1. Stewart Detention Center Defendants represent that Stewart has taken various steps to protect its detained immigrants, staff, and visitors during COVID-19. Id. at 10. First, though Stewart has the capacity to house 2,040 ICE detained immigrants, Defendants claim that as of May 15, 2020, Stewart’s detained population is 1,129. Id.; see also Second Washburn Decl. ¶ 5. This number represents the facility’s efforts to promote social distancing, as it previously housed 1,681 detained individuals on March 18, 2020. Defs.’ Opp’n at 10; see also Moten Decl. ¶ 19. Second, “vulnerable detainees” are placed in “protective cohorts” to limit the contact between these individuals and the general population at the facility. Defs.’ Opp’n at 11. These cohorts, or “units,” are in a protective area, supported by a team of nurses, providers, and security. Id. In addition, Stewart created a “daily COVID-19 checklist,” with the purpose of ensuring that each facility supervisor is kept updated as to new developments, is speaking with staff and detained individuals about the appropriate precautions, is encouraging any staff member or detained individual to seek medical care if they are experiencing symptoms, is engaging in educational efforts with its staff and detained individuals, is confirming the number of necessary materials and supplies, and is conducting daily sanitation inspections in their delegated areas. Id. With respect to in-person visitations, all attorneys are screened for COVID-19 symptoms prior to entrance to Stewart. Id. at 12. This includes filling out a medical questionnaire and completing a temperature check in accordance with the CDC Interim Guidance. Id.; see also First Washburn Decl. ¶ 16. If attorneys do not bring their own PPE, then the facility will provide it to them, free of charge. Defs.’ Opp’n at 13; see also Fourth Washburn Decl. ¶ 32. Defendants claim
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that in-person visits do occur at Stewart, taking place in secure visitation areas with a divider placed between the attorney and their client. Defs.’ Opp’n at 13; see also Fourth Washburn Decl. ¶ 21.
An attorney may also choose to have confidential meetings either through the “detainee telephone system” or through a VTC device. Defs.’ Opp’n at 13. Defendants represent that in late March 2020, the VTC hours were expanded and meetings may now be scheduled between 8:00 a.m. and 6:00 p.m., Monday through Friday. Id.; see also Fourth Washburn Decl. ¶ 62. VTC visits are scheduled on a first-come, first-serve basis, with 60-minute time blocks and attorneys may not conduct more than one appointment with any one detained client on any single calendar day. Defs.’ Opp’n at 13. According to Defendants, this expansion allows for 100 VTC legal meetings each week. Id.; see Fourth Washburn Decl. ¶ 62. Defendants further represent that “Stewart does not unilaterally cancel attorney VTC calls,” but that appointments may be “frustrated” when “a detainee refuses to attend the appointment, or when the detainee was discharged.” Defs.’ Opp’n at 13–14; see Fourth Washburn Decl. ¶ 73.
Additionally, Defendants represent that Stewart has 214 telephones that may be used to communicate with legal counsel. Defs.’ Opp’n at 14. On April 24, 2020, Stewart implemented a new process to facilitate discussions between detained individuals and their legal counsel. Defs.’ Opp’n at 13. This procedure allows an attorney to contact the facility, calling the Warden’s Secretary during business hours, and schedule a time to speak with their client. Id.; see also Fourth Washburn Decl. ¶ 56. At the scheduled time, the detained individual is escorted to the Unit Manager’s Office and is placed on the phone with their attorney. Defs.’ Opp’n at 14. Defendants represent that during these meetings, “detainees are neither heard nor recorded,” but only “visually observed during the call.” Id.; see also Fourth Washburn Decl. ¶ 57.
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With regard to appropriately marked legal mail, Defendants claim that the mail is delivered, unopened, by a staff member to the detained individual. Defs.’ Opp’n at 15. In front of the recipient, the staff member will open the mail, inspect its contents for any contraband, and then give the mail to the individual. Id. Finally, Defendants represent that “[n]o deficiencies have been noted with respect to the operation of the detainee telephone system, visitation, or legal access.” Id. at 10; see also Fourth Washburn Decl. ¶ 6.
2. Irwin County Detention Center As for Irwin, Defendants represent that as of May 15, 2020, Irwin’s detained population is 497, with the capacity to host 920 detained immigrants. Defs.’ Opp’n at 15; see also Musante Decl. ¶ 18. The population number has declined to promote social distancing during the pandemic, as the facility previously housed 615 detained individuals on March 18, 2020. Defs.’ Opp’n at 15; see also Musante Decl. ¶ 18. On April 13, 2020, Irwin temporarily prohibited in-person visitations, with the sole exception being attorney visitations. Defs.’ Opp’n at 16. Attorneys are required to wear a mask during in-person consultations, and if they do not bring one, the facility will provide them with one. Id.; see also Musante Decl. ¶ 9. Prior to entrance to Irwin, each person is screened, which includes a temperature check and completing a medical questionnaire. Defs.’ Opp’n at 16. In-person meetings take place in “[n]on-contact visitation rooms,” which Defendants claim are separate rooms that allow for “complete and total privacy.” Id.; see also Musante Decl. ¶ 16. These rooms are also cleaned and sanitized between each visit. Defs.’ Opp’n at 16. In addition to in-person consultations, Defendants represent that Irwin provides for VTC communications and currently manages four operational VTC devices at its facility. Id. at 17. Defendants represent that throughout the pandemic, Irwin’s VTC devices have remained fully
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operational and that detained individuals have had adequate access to the devices. Id.; see also Musante Decl. ¶¶ 18–19. An attorney may make a VTC appointment by calling or emailing the Inmates’ Services Department, which manages a separate email address and phone line specifically for attorney VTC requests. Defs.’ Opp’n at 17. Detained individuals may also make VTC requests, either by written requests or via a tablet device. Id. Defendants claim that Irwin reviews these requests daily and responds within twenty-four hours to schedule an appointment. Id.; see also Musante Decl. ¶ 38. If Irwin is informed that an emergency VTC session with a detained client is necessary, then Irwin “works diligently” to schedule that appointment, possibly even scheduling the appointment the same day as the request. Defs.’ Opp’n at 17–18. Moreover, Irwin maintains a “regimented schedule for calls” so that VTC sessions remain confidential, and staff members are “careful not to abruptly cut-off an ongoing legal call.” Id. at 18; see also Second Paulk Decl. ¶ 23.
In addition to VTC access, Defendants claim that an attorney and their detained client may also set up a telephone call. Defs.’ Opp’n at 19. Irwin currently has 89 telephones, which are available Sunday through Thursday from 5:00 a.m. to 11:00 p.m., and Friday through Saturday from 5:00 a.m. to 1:00 a.m. Id.
With regard to legal mail, Defendants assert that an Irwin staff member takes the mail directly to the detained recipient upon arrival, opens it in front of the individual to complete a cursory check for contraband, and then hands it off to the individual. Id. Detained clients can also send their legal counsel confidential mail by obtaining supplies from the commissary and providing it to Irwin’s mail service. Id. Finally, Irwin allows detained individuals to have access to a facsimile machine, allowing them to send confidential documents and other information to their attorneys. Id. Defendants state that documents obtained from the detained population are
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faxed daily, and a staff member delivers a confirmation receipt to the detained individual once the fax is transmitted. Id. at 20; see also Second Paulk Decl. ¶ 61. Similarly, attorneys are provided with a designated legal fax number to deliver information to their detained clients, which is delivered to the recipient upon arrival. Defs.’ Opp’n at 20; see also Second Paulk Decl. ¶ 62.
3. LaSalle ICE Processing Center Defendants represent that in response to the pandemic, LaSalle is operating at 58% capacity, housing 769 detained individuals despite a capacity to host up to 1,335 individuals and a contract with ICE to house 1,160. Defs.’ Opp’n at 20; see Rice Decl. ¶ 10; Reaves Decl. ¶ 19. Since the start of the pandemic, LaSalle has held town hall meetings and posted signs to inform the detained population of COVID-19 symptoms and demonstrate proper hand hygiene. Defs.’ Opp’n at 20. LaSalle also provides detained individuals with soap and other supplies once a week, as well as three masks and the opportunity to request more if needed. Id. at 20–21. Additionally, LaSalle has increased cleaning procedures for frequently touched surfaces and objects, such as doorknobs, phones, VTC devices, recreation equipment, and tables. Id. at 20. Apart from legal counsel, LaSalle has prohibited all other visitors from visiting its facility. Id. at 21. In-person legal meetings are available from 6:00 a.m. to 11:00 p.m. every day of the week, including holidays. Id. Defendants claim that LaSalle will provide attorneys with PPE if they do not bring their own, free of charge. Id.; see also Rice Decl. ¶ 24. In addition, to facilitate VTC meetings, LaSalle’s VTC room availability has increased to three units, and the hours have expanded to 7:00 a.m. to 7:00 p.m., seven days a week. Defs.’ Opp’n at 21. Defendants claim that there is no limitation to the number or frequency of legal communications, apart from VTC device availability. Id.; see also Rice Decl. ¶ 34. Defendants also represent that as a special accommodation to Plaintiff, LaSalle has agreed to a two-hour block (5:00 p.m. to 7:00 p.m.) of a
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dedicated VTC machine for Plaintiff, in addition to access to the other available time slots. Defs.’ Opp’n at 21; see also Rice Decl. ¶ 34.
Furthermore, LaSalle allows a detained client and their legal counsel to communicate by legal mail. Defs.’ Opp’n at 21. This mail must be clearly marked and will be delivered, unopened, by a staff member to the recipient. Id. Once the staff member performs a cursory check for contraband, the mail will be given to the detained individual. Id. In addition, detained individuals may seal marked legal mail and deposit it to the facility’s mail service, where it will be untouched by staff members. Id. at 21–22. Defendants represent that LaSalle is unaware of any issues related to the receiving or sending of legal mail. Id. at 22; see also Rice Decl. ¶ 43.
4. Pine Prairie ICE Processing Center According to Defendants, Pine Prairie incorporates the CDC Interim Guidance to educate its staff members and the detained population. Defs.’ Opp’n at 22. As of May 15, 2020, Pine Prairie houses 435 detained individuals, though it has the capacity to host 730. Id.; see also Chambarlain Decl. ¶ 18. This number has declined due to COVID-19, as the facility previously housed 471 individuals on April 13, 2020. Defs.’ Opp’n at 22; see also Chambarlain Decl. ¶ 18. In response to the pandemic, Pine Prairie has posted signs to inform its detained population of COVID-19 symptoms and provide hand hygiene instructions. Defs.’ Opp’n at 22. Staff members also describe symptoms and demonstrate hand hygiene techniques in daily briefings, also known as “town halls,” and request that detained individuals report any symptoms to staff. Id. Detained individuals are provided with shampoo, body wash, tissue paper, and other hygiene products twice a week, with soap available on demand. Id.; see also Staiger Decl. ¶¶ 17, 35. Defendants claim that the facility’s living areas are cleaned and sanitized four times per shift, and all detained individuals and staff members have been issued masks. Defs.’ Opp’n at 22. For in-
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person visitations, attorneys are required to wear masks and gloves, and the facility will provide PPE, free of charge, if the attorneys need them. Id.
Furthermore, Pine Prairie has doubled the rooms for in-person visitations and has increased the window for both in-person and VTC meetings. Id. at 23. VTC access is now available from 8:00 a.m. to 7:00 p.m. during the week, and at 8:00 a.m. to 2:00 p.m. during the weekends. Id. Defendants represent that no restrictions have been placed on the number or frequency of attorney– client communications, and that Plaintiff has continued to meet with their clients at Pine Prairie on a “frequent basis.” Id. at 22–23; see also Staiger Decl. ¶¶ 29, 41.
To make an appointment for a VTC meeting or phone call, an attorney must call or email the facility and request a time slot. Defs.’ Opp’n at 23. Pine Prairie employs two individuals who are tasked with scheduling such requests. Id. In addition, because of COVID-19, detained individuals have been given free minutes to communicate with their legal counsel telephonically. Id.; see also Staiger Decl. ¶ 38. There are no restrictions on this phone use and the telephones are available all day, each day of the week in the housing units. Defs.’ Opp’n at 23. In addition, Pine Prairie has 166 tablets available for detained individuals to communicate with their counsel by VTC. Id. Defendants represent that all VTC devices have been tested several times, with successful results and no issues with connectivity or audio. Id.; see also Chambarlain Decl. ¶ 44.
Finally, marked legal mail will be delivered, unopened, to the detained recipient. Defs.’ Opp’n at 23. In front of the individual, a staff member will open the mail to ensure it does not contain contraband, prior to handing the mail to the detained individual. Id. at 23–24. Detained individuals may also mark legal mail and give it to the facility mail service, where it will be unopened by staff. Id. at 24.
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D. Plaintiff’s Claims Regarding the Detention Facilities Plaintiff established the Southeast Immigrant Freedom Initiative (“SIFI”) in April 2017 to
provide pro bono representation to immigrants in ICE custody at the four Facilities included in this lawsuit. Pl.’s Mem. at 4. Plaintiff represents that since SIFI’s inception, SIFI attorneys and their detained clients in the Facilities have experienced “repeated and substantial barriers to meaningfully and reliably communicating with one another.” Id. This disputed issue led Plaintiff to file the underlying lawsuit in April 2018. Id.; see also Pl.’s Compl., ECF No. 1. In light of the COVID-19 pandemic, Plaintiff seeks the pending motion for a TRO because Defendants allegedly “continue to refuse to remediate barriers to legal communications during the pandemic.” Pl.’s Mem. at 5.
Pursuant to the CDC Interim Guidance, detention facilities are encouraged to place limitations on in-person visits and increase access to telephones and VTC devices, as well as consider reducing or eliminating the cost of phone calls for detained individuals. Id. at 6; see also CDC Interim Guidance at 13–14. However, Plaintiff claims that Defendants have failed to implement the necessary changes to increase access to legal communications, thereby forcing SIFI attorneys to choose between conducting in-person visits, at an increased risk of exposure to themselves and their clients, or relying on telephones or VTC devices which were “already insufficient and unreliable prior to the pandemic and [are] now even worse.” Pl.’s Mem. at 6–7. Due to the pandemic, Plaintiff alleges that in-person consultations have become “functionally impossible,” while remote access methods have become “more limited.” Id. at 8.
Moreover, on March 23, 2020, ICE announced that all legal visitors are required to wear “gloves, N-95 masks, and eye protection” in order to conduct an in-person consultation. Id. at 9; see also Rivera Decl. ¶ 18. While Defendants represent that the Facilities provide PPE to attorneys
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who did not bring their own, Plaintiff alleges that because there is a national shortage of N-95 masks, attorneys are unable to comply with ICE’s PPE requirements and Defendants have not provided “any remedy” to facilitate in-person legal communications. Pl.’s Mem. at 9–10.
1. VTC Access According to Plaintiff, VTC access—the more effective means of legal communication compared to telephones—has become increasingly worse as the pandemic continues. Id. at 10. Plaintiff claims that SIFI has experienced scheduling issues at the Facilities throughout the entire process, from delays in receiving a response to VTC requests to delays on the day of the scheduled appointment, as well as complete cancellations. Id.; see also Rivera Decl. ¶¶ 22–29; Williams Decl. ¶¶ 11–12. In a letter dated April 3, 2020, Defendants promised Plaintiff that because of the pandemic, they would expand VTC days and hours of operations at the Facilities. Pl.’s Mem. at 10; see also Rivera Decl. Ex. B, ¶ 21. However, Plaintiff represents that as of May 7, 2020, SIFI had seen “no evidence of these extensions.” Pl.’s Mem. at 10. For example, according to SIFI staff at Stewart, the facility offered the same hours for VTC time slots as before the pandemic, 9:00 a.m. to 3:00 p.m. Id. at 10–11. In addition to scheduling delays, Plaintiff states that Defendants have further limited VTC access “through sudden and seemingly arbitrary restrictions at the Facilities.” Id. at 11. Stewart has allegedly set a weekly cap on the number of VTC calls a SIFI attorney could have with the same detained client; Pine Prairie once rescheduled a VTC appointment because the assigned officer was on transport duty and could not escort the detained individual; LaSalle’s VTC quality is “so poor” that one SIFI attorney will only conduct legal phone calls; and both Irwin and Stewart have cancelled VTC appointments without notice. Id.; see also Rivera Decl. ¶¶ 24–28. Plaintiff also alleges that SIFI attorneys experience additional communication barriers allegedly caused by
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Defendants’ “unreasonable time restrictions.” Pl.’s Mem. at 11. According to Plaintiff, Pine Prairie limits VTC calls to thirty minutes, while Stewart’s and Irwin’s VTCs are limited to one hour. Id. at 11–12.
Moreover, Plaintiff alleges that confidentiality between the attorneys and their detained clients is “severely compromised in the VTC rooms at the Facilities.” Id. at 12. At Irwin, when VTC meetings are conducted in the library, Plaintiff claims that facility staff members frequently interrupt the meetings by entering the library and answering separate calls nearby. Id. At Pine Prairie, VTCs allegedly occur in adjacent cubicles with thin walls and the conversations are “clearly audible.” Id. Defendants have also placed “inadequate safeguards” to protect the detained populations’ exposure to COVID-19 during VTC appointments. Id. For example, at Irwin, one SIFI attorney has never seen his clients wear protective gloves during their VTC meetings. Id.; see also Rivera Decl. ¶ 32. And at Stewart, a detained client was never issued gloves, but instead wears a pair that an officer had discarded. Pl.’s Mem. at 12; see also Sanchez Martinez Decl. ¶ 14. Accordingly, Plaintiff asserts that every time a detained individual leaves their cell for a VTC appointment, the individual risks exposure to COVID-19 as a result of Defendants’ alleged failure to provide them with sufficient hygiene products and protection. Pl.’s Mem. at 12–13; see also Venters Decl. ¶ 11.
2. Phone Access As a result of Defendants’ alleged restrictions on VTC appointments, Plaintiff claims that SIFI attorneys have resorted to “facility legal calls,” which are confidential phone calls provided by the facility, to reach current and potential clients. Pl.’s Mem. at 13. Contrary to Defendants’ representations, Plaintiff asserts that the process for setting up such phone calls is “unclear to clients and attorneys” at the Facilities, and until recently, was “impossible at Stewart or Pine
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Prairie.” Id.; see also Rivera Decl. ¶ 38. For example, though detained immigrants at Pine Prairie may request legal calls through their case managers, most of them do not know the identity of their case manager. Pl.’s Mem. at 14; see also Rivera Decl. ¶ 38. Additionally, a SIFI attorney who has represented clients at Pine Prairie since 2018 claims to have never had a client successfully request a legal call. Pl.’s Mem. at 14; see also Rivera Decl. ¶ 38. And even when the process for requesting legal calls is clear, there are still scheduling delays and detained individuals are occasionally restricted from accessing such calls due to lockdowns in their units. Pl.’s Mem. at 14; see also Rivera Decl. ¶¶ 40–42. At LaSalle, Plaintiff claims that there are “significant connectivity issues” when attempting to include crucial third parties, such as additional attorneys or interpreters. Pl.’s Mem. at 14; see also Rivera Decl. ¶ 43. According to Plaintiff, Defendants’ solution is to have the client place the call on speaker phone, which raises additional confidentiality concerns because “conversations can be overheard by individuals in the next room.” Pl.’s Mem. at 14; see also Rivera Decl. ¶ 31.
Plaintiff also claims that Defendants have not taken adequate safety precautions for calls made by shared telephones. Pl.’s Mem. at 15. Detained clients are allegedly forced to stand in close proximity as they wait to use the shared telephones, thereby increasing their chances of contracting the virus as they lack PPE. Id.; see also Venters Decl. ¶ 36. Detained clients have also expressed to Plaintiff that the Facilities have failed to provide them with sufficient hygiene products, and that they have never seen anyone wipe down the telephones, neither detained individuals assigned to cleaning nor any staff member. Pl.’s Mem. at 15; see also Sanchez Martinez Decl. ¶¶ 7, 12.
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3. Legal Mail and Document Exchange In addition to the aforementioned difficulties regarding remote access to legal communications, Plaintiff alleges that Defendants’ COVID-19 policies on document exchange are “unreasonably restrictive” and make it difficult for Plaintiff to maintain contact and pursue their clients’ cases. Pl.’s Mem. at 16. First, Plaintiff claims that Defendants stated that they will not retrieve fax documents or download electronic documents for detained individuals at the Facilities. Id.; see also Rivera Decl. Ex. B ¶ 53. Plaintiff states that this policy is unreasonable since the Facilities utilize fax machines to send attorneys their clients’ medical records, and Irwin already allows detained individuals to send faxes to their attorneys. Pl.’s Mem. at 16–17. Second, Plaintiff alleges that because of Defendants’ various restrictions, Plaintiff must send postal mail to the Facilities, which was an unreliable method of communication even before the pandemic. Id. at 17. Plaintiff states that it is common for delays to occur in the sending and receiving of mail. Id.; see also Rivera Decl. ¶ 9. For example, Pine Prairie has reports of legal mail being improperly searched. Pl.’s Mem. at 17; see also Rivera Decl. ¶ 9. Mail is also allegedly “periodically rejected regardless of the delivery service or the type of postage.” Pl.’s Mem. at 17; see also Rivera Decl. ¶ 50. Plaintiff represents that these mail-related delays have had “grave consequences” for their medically vulnerable clients, in addition to generally harming their clients’ chances of securing release. Pl.’s Mem. at 18; see also Rivera Decl. ¶¶ 51–52. Lastly, Plaintiff alleges that Defendants have restricted Plaintiff’s access “to the ICE official who oversees their clients’ parole requests and Fraihat custody redeterminations.” Pl.’s Mem. at 18. According to Plaintiff, ICE has delayed in responding to humanitarian parole requests by weeks. Id.; see also Rivera Decl. ¶ 56. For example, a SIFI attorney submitted a humanitarian parole request for a “medically vulnerable client” on or around April 15, 2020. Pl.’s Mem. at 18.
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ICE then instructed the attorney to mail the request, not email it. Id. On April 28, the attorney emailed the ICE agent involved in her client’s case, asking for a status update on the request, only to find out that ICE had never received the request. Id. She was then instructed to email the request, and an ICE agent responded to her within the hour, ultimately denying the request. Id.
III. LEGAL STANDARD A temporary restraining order (“TRO”) is an extraordinary form of relief. An application for a TRO is analyzed using factors applicable to preliminary injunctive relief. See, e.g., Gordon v. Holder, 632 F.3d 722, 723–24 (D.C. Cir. 2011) (applying preliminary injunction standard to district court decision denying motion for TRO and preliminary injunction); Sibley v. Obama, 810 F. Supp. 2d 309, 310 (D.D.C. 2011) (articulating TRO elements based on preliminary injunction case law). Preliminary injunctive relief is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)); see also Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (“[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” (internal quotation marks omitted)). A plaintiff seeking preliminary injunctive relief “must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (quoting Sherley, 644 F.3d at 392 (internal quotation marks omitted)). When seeking such relief, “the movant has the burden to show that all four factors, taken together, weigh in favor of the injunction.” Abdullah v. Obama, 753 F.3d 193,
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197 (D.C. Cir. 2014) (quoting Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009)) (internal quotation marks omitted). “The four factors have typically been evaluated on a ‘sliding scale.’” Davis, 571 F.3d at 1291. Under this sliding-scale framework, “[i]f the movant makes an unusually strong showing on one of the factors, then it does not necessarily have to make as strong a showing on another factor.” Id. at 1291–92.
It is unclear whether the United States Court of Appeals for the District of Columbia Circuit’s (“D.C. Circuit”) sliding-scale approach to assessing the four preliminary injunction factors survives the Supreme Court’s decision in Winter. See Save Jobs USA v. U.S. Dep't of Homeland Sec., 105 F. Supp. 3d 108, 112 (D.D.C. 2015). Several judges on the D.C. Circuit have “read Winter at least to suggest if not to hold ‘that a likelihood of success is an independent, freestanding requirement for a preliminary injunction.’” Sherley, 644 F.3d at 393 (quoting Davis, 571 F.3d at 1296 (Kavanaugh, J., concurring)). However, the D.C. Circuit has yet to hold definitively that Winter has displaced the sliding-scale analysis. See id.; see also Save Jobs USA, 105 F. Supp. 3d at 112. In light of this ambiguity, the Court shall consider each of the preliminary injunction factors and shall only evaluate the proper weight to accord the likelihood of success if the Court finds that its relative weight would affect the outcome.
IV. DISCUSSION Before the Court considers each of the requirements for granting a TRO, it first addresses the preliminary issues of standing and subject-matter jurisdiction. As the Court grants Plaintiff’s Motion and issues injunctive relief on the basis of its arguments relating to the conditions of confinement claim under substantive due process, the Court does not consider Plaintiff’s separate arguments focusing on its clients’ access to counsel claims pursuant to the Fifth Amendment.
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A. Standing Defendants first argue that Plaintiff lacks either organizational or third-party standing. As
Plaintiff only argues that it has third-party standing, the Court will only consider whether Plaintiff has third-party standing.
The jurisdiction of federal courts is limited by Article III of the Constitution to the adjudication of actual, ongoing cases or controversies. This limitation “gives rise to the doctrine[] of standing.” Foretich v. United States, 351 F.3d 1198, 1210 (D.C. Cir. 2003); see Sierra Club v. Jackson, 648 F.3d 848, 852 (D.C. Cir. 2011) (“Article III of the Constitution limits the federal courts to adjudication of actual, ongoing controversies.”). In general, “[t]he Supreme Court has cautioned that a party ‘generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.’” Juvenile Matters Trial Lawyers Ass’n v. Judicial Dep’t, 363 F. Supp. 2d 239, 248 (D. Conn. 2005) (quoting Warth v. Seldin, 422 U.S. 490, 499 (1975)). It has not “treated this rule as absolute, however,” and has “recogniz[ed] that there may be circumstances where it is necessary to grant a third party standing to assert the rights of another.” Kowalski v. Tesmer, 543 U.S. 125, 129–30 (2004).
A party relying on a claim of third-party standing must satisfy three requirements: (1) “injury in fact,” (2) “a close relation to the third party,” and (3) “some hindrance to the third party’s ability to protect his or her own interests.” Powers v. Ohio, 499 U.S. 400, 411 (1991); see Kowalski, 543 U.S. at 130 (describing latter two requirements as “additional showings” on top of injury in fact requirement). An injury in fact must be “an invasion of a legally protected interest that is ‘concrete and particularized,’ ‘actual or imminent,’ and ‘fairly traceable’ to the challenged act of the defendant, and likely to be redressed by a favorable decision in the federal court.” Navegar, Inc. v. United States, 103 F.3d 994, 998 (D.C. Cir. 1997) (quoting Lujan v. Defenders of
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Wildlife, 504 U.S. 555, 560–61 (1992)). 1. Injury in Fact Defendants first argue that Plaintiff lacks third-party standing because it has not satisfied
the first prong of injury in fact, as it instead “relies entirely on alleged harms to detained aliens,” Defs.’ Opp’n at 30, when “a party ‘must assert his own legal rights’ and ‘cannot rest his claim to relief on the legal rights . . . of third parties.’” Sessions v. Morales-Santana, 137 S. Ct. 1678, 1689 (2017) (quoting Warth, 422 U.S. at 499). Defendants also suggest that any aliens “adversely affected by the challenged policies” can bring their own suits to challenge the policies. Defs.’ Opp’n at 31. In response, Plaintiff claims that its clients are hindered from bringing their own suits, and that it further has established an injury in fact because Defendants’ conduct has thwarted its institutional purpose to represent its clients and because it has a close relationship with its detained clients.3 Pl.’s Reply at 2–7. The Court agrees that Plaintiff has sufficiently established an injury in fact.
Courts have found that legal aid organizations suffer an injury when their “organizational purpose” or mission “has been thwarted.” Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 799 (D.C. Cir. 1987) (internal quotation marks omitted); see Ukrainian-Am. Bar Ass’n, Inc. v. Baker, 893 F.2d 1374, 1378 (D.C. Cir. 1990) (finding that harm via “inability to counsel individual asylees” would interfere with “organizational purpose of furthering the beneficial integration of
3 Despite Defendants’ claim that Plaintiff sought standing on behalf of both its clients and potential clients, Defs. Opp’n at 30–31, Plaintiff clarifies in its Reply that it “seeks to represent only own clients.” Pl.’s Reply at 4 n.2. This distinguishes this case from those cited by Defendants, such as Am. Immigration Lawyers Ass’n v. Reno, 199 F.3d 1352 (D.C. Cir. 2000), in which the organization did not represent individual immigrants at particular facilities, id. at 1359, 1364. The Court therefore does not consider whether Plaintiff would have standing to bring suit on behalf of any third parties other than its own clients, with whom its attorneys have already ongoing, established attorney–client relationships.
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individuals of Ukrainian descent,” and concluding organization had shown injury in fact (internal quotation marks omitted)); Innovation Law Lab v. Nielsen, 310 F. Supp. 3d 1150, 1161 (D. Or. 2018) (finding injury in fact when challenged policies and procedures prevented plaintiff “from fulfilling its mission of advocating on behalf of noncitizens” and caused it to divert resources); cf. Juvenile Matters Trial Lawyers Ass’n, 363 F. Supp. 2d at 249 (noting that organization must “set forth a ‘real and immediate’ threat of injury to itself”).
Plaintiff here claims that “Defendants’ conduct has frustrated its organizational mission and forced it to divert its resources.” Pl.’s Reply at 2. In its Second Amended Complaint, Plaintiff explains its organizational purpose, which extends to “litigation and advocacy regarding the conditions of confinement for those in government custody, including immigration imprisonment.” Pl.’s Second Am. Compl. ¶ 15. Plaintiff specifically launched its initiative, SIFI, “to provide desperately needed legal representation to indigent immigrants detained in remote locations in the Southeast, where,” Plaintiff alleges, “attorneys are scarce and immigration attorneys even more so.” Id. ¶ 97. Plaintiff “seeks to fulfill this mission by,” among other things, “providing direct representation to detained immigrants in bond proceedings” and “facilitating representation in merits hearings for people who would otherwise have no legal recourse.” Id. Declarations submitted by Plaintiff in support of its Motion also show that this is Plaintiff’s mission. See, e.g., Rivera Decl. ¶ 2 (“SIFI provides pro bono representation to detained immigrants in proceedings before the Executive Office for Immigration Review, U.S. Immigration and Customs and Enforcement (‘ICE’), and the Board of Immigration Appeals (‘BIA’).”); Williams Decl. ¶ 1 (stating same). In particular, Plaintiff “focuses on seeking clients’ release from ICE custody,” Rivera Decl. ¶ 2; Williams Decl. ¶ 1, which is especially relevant in light of the current situation regarding COVID-19, see Pl.’s Reply at 2–3; see also Venters Decl. ¶¶ 9–13
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(discussing spread of COVID-19 in detention facilities). Plaintiff’s attorneys represent individuals detained at the four centers that are Defendants in this case. Pl.’s Second Am. Compl. ¶ 99; Rivera Decl. ¶ 3; Williams Decl. ¶ 2.
Plaintiff has sufficiently shown that the alleged policies and procedures, which Plaintiff claims are punitive, prevent Plaintiff from fulfilling its mission with respect to its clients at these centers to satisfy the injury in fact requirement. Plaintiff claims that Defendants’ policies and procedures, which focus on in-person legal visitation, prevent its attorneys from conferring with their clients. Plaintiff has historically used multiple in-person visits to help clients prepare for bond motions, parole requests, and removal hearings. Rivera Decl. ¶¶ 10–11. These visits also involve exchanges of documents, which Plaintiff has found to be more reliable and quicker when done during in-person meetings. Id. ¶¶ 9–11. SIFI used to visit the centers two to three days a week, conducting in-person legal visits with, on average, two dozen people or more. Id. ¶ 6.
Now, however, Plaintiff asserts that in-person legal visitation is no longer a consistently safe and viable option in the wake of COVID-19. Despite this, they claim that Defendants have imposed restrictions on remote legal visitation and related conditions that frustrate their mission. This includes delays in scheduling VTC appointments, delays on the day of the appointment, and cancellations. Pl.’s Mem. at 10; Rivera Decl. ¶¶ 22–29 (providing examples of significant delays for VTCs); Williams Decl. ¶¶ 11–12 (describing delays in scheduling remote visitations for Irwin and Stewart). The Rivera Declaration highlights one example. A SIFI legal worker requested VTC calls with five people inside LaSalle. Rivera Decl. ¶ 23. No VTC appointments were available in the upcoming six days after her request. Id. Two of the people had recently “engaged in a hunger strike for more than 140 days and had recently [been] subjected to forced feeding via nasogastric tubes.” Id. The other three were “medically fragile due to other conditions.” Id. That
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same legal worker encountered another six-day delay at that facility with respect to “another medically vulnerable client.” Id. The purpose of the call was “time-sensitive” as the clients were all “seeking release due to their increased vulnerability of serious illness or death should they contract COVID-19.” Id. ¶ 24. Plaintiff also claims there have been restrictions on the number of VTC calls with the same client, id. ¶ 25, calls scheduled on short notice, Williams Decl. ¶¶ 12, 20, poor VTC quality, Rivera Decl. ¶ 24; López Decl. ¶ 9, failure to notify attorneys or clients of calls, Rivera Decl. ¶ 33; Williams Decl. ¶ 21, and confidentiality concerns, Pl.’s Mem. at 12; Rivera Decl. ¶¶ 30–31; Williams Decl. ¶ 15; Osorio Decl. ¶¶ 5–6.
The above, of course, is not exhaustive even with respect to Plaintiff’s claims specific to VTC. It does not include the issues that Plaintiff raises with respect to phone access restrictions, Pl.’s Mem. at 13–16 (citing declarations), or legal mail and document exchange restrictions, id. at 16–18 (citing declarations), all of which also thwart Plaintiff’s organizational mission by making it more difficult for Plaintiff to effectively represent its clients (which involves, among other things, meeting with them and exchanging confidential information and documents). See Pl.’s Reply at 2–3. Nor does the above discuss how the additional time needed to coordinate in-person visits or navigate the remote visit system diverts resources from Plaintiff’s primary mission; they could have, for instance, used that time to represent additional detained individuals. See Pl.’s Reply at 3–4; Rivera Second Supp. Decl. ¶ 14; Williams Decl. ¶ 19. Plaintiff has sufficiently shown that its alleged injuries are “concrete and specific to the work in which they are engaged” to satisfy the injury in fact requirement as to each of these categories. Action All. of Senior Citizens of Greater Philadelphia v. Heckler, 789 F.2d 931, 938 (D.C. Cir. 1986); see People for the Ethical Treatment of Animals v. U.S. Dep’t of Agric., 797 F.3d 1087, 1095 (D.C. Cir. 2015) (finding that organization established injury in fact when it had to “expend[] resources to counter” injuries).
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All of these are traceable to Defendants, as they relate to policies and procedures enacted and enforced by them. They are actual, imminent, ongoing, and not speculative, as the declarations provided by Plaintiff indicate. This harm is also redressable by an order from this Court. In short, Plaintiff has claimed an injury in fact sufficient for third-party standing. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982) (explaining that where conduct of defendant impairs organization’s ability to provide services and drains its resources, “there can be no question that the organization has suffered injury in fact”).
2. Close Relationship The second prong of third-party standing requires that Plaintiff share a “close relationship” with the third parties. In discussing this factor, the D.C. Circuit has noted that “the [Supreme] Court has never required a confidential relationship between the parties in order to have standing. To the contrary, it has only required a ‘close relation’ in the sense that there must be an identity of interests between the parties such that the plaintiff will act as an effective advocate of the third party’s interests.” Lepelletier v. FDIC, 164 F.3d 37, 44 (D.C. Cir. 1999); see Reese Bros., Inc. v. U.S. Postal Serv., 531 F. Supp. 2d 64, 67 (D.D.C. 2008) (explaining that relationship must give Plaintiff “a sufficiently concrete interest in the outcome of the issue in dispute to ensure that the plaintiff will be an effective advocate” (internal quotation marks omitted)); Pennsylvania Psychiatric Soc. v. Green Spring Health Servs., Inc., 280 F.3d 278, 289 (3d Cir. 2002) (“To meet this standard, this relationship must permit the psychiatrists to operate fully, or very nearly, as effective a proponent of their patients’ rights as the patients themselves.” (internal quotation marks omitted)). Plaintiff’s legal staff are parties to the attorney–client relationships at issue and are, in fact, advocates for their clients. The mission of their organization and initiative is to provide representation to these clients. This relationship is therefore sufficient to satisfy this requirement.
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See, e.g., Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 623 n.3 (1989) (finding that lawyer could bring lawsuit on behalf of criminal defendant); Exodus Refugee Immigration, Inc. v. Pence, 165 F. Supp. 3d 718, 732 (S.D. Ind. 2016) (finding that organization “certainly ha[d] a close relationship with its Syrian refugee clients” because “[i]ts entire purpose and mission [was] to resettle refugees escaping dire circumstances”), aff’d, 838 F.3d 902 (7th Cir. 2016).
3. Hindrance The third prong requires that Plaintiff demonstrate that there is some “hindrance” to the third party’s ability to protect his or her own interests. See Kowalski v. Tesmer, 543 U.S.125, 129 (2004) (explaining that party invoking third-party standing must show that “the party asserting the right has a ‘close’ relationship with the person who possesses the right,” and “there is a ‘hindrance’ to the possessor’s ability to protect his own interests”). Defendants contend that litigants detained at the Facilities at issue can “litigate as first parties,” and that Plaintiff can “represent the alien in a first-party challenge to the policies” as they “can and have done so.” Defs.’ Opp’n at 31 (citing Williams Decl. ¶¶ 5–6 (noting that habeas petitions have been filed in District Court in Georgia on behalf of several detained individuals)). Defendants therefore dispute that Plaintiff has demonstrated that there is any hindrance to an individual alien being able to “protect his or her own interests.” Am. Immigration Lawyers Ass’n. v. Reno, 199 F.3d 1352, 1362 (D.C. Cir. 2000). However, this prong “does not require an absolute bar from suit, but ‘some hindrance to the third party’s ability to protect his or her own interests.’” Pennsylvania Psychiatric Soc., 280 F.3d at 290 (quoting Powers, 499 U.S. at 411). “In other words, a party need not face insurmountable hurdles to warrant third-party standing.” Id. (citing examples). This factor therefore “favors third-party standing” and “presents a relatively low threshold.” Exodus Refugee Immigration, Inc., 165 F. Supp. 3d at 732. “Imminent mootness” is one of various obstacles that
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may warrant third-party standing. Singleton v. Wulff, 428 U.S. 106, 117 (1976) (finding it appropriate for physician to assert rights of women patients—through challenge to constitutionality of state statute excluding certain abortions from Medicaid benefits—after noting several obstacles to patients’ assertion of their own rights, including chilling effect of desire to protect privacy and imminent mootness). The nature of the constitutional right at stake may also present an inherent obstacle for the right holder when asserting the right. See id.; see also Aid for Women v. Foulston, 441 F.3d 1101, 1114 (10th Cir. 2006 ) (finding hindrance where third-party adolescent patients seeking heath care counseling wished to protect the privacy of care that they sought from public nature of court case).
Here, there are clear hindrances to the detained individuals filing their own suits, even with (or especially with) Plaintiff representing them. To begin with, in light of the restrictions implemented due to COVID-19, the already-limited time that detained individuals have to speak with their counsel would also have to cover a suit to vindicate these interests. This would, in turn, take away from the time that they had to prepare for any other proceedings, including those relating to their possible release. In other words, Plaintiff’s clients “filing suit on their own behalf would have the perverse effect of impairing those very interests.” See Pl.’s Reply at 6. Moreover, as in Singleton, there are chilling effects and privacy concerns that would hinder the detained individuals from filing their own suits. Imminent mootness is also at issue: by the time that the detained individuals could litigate their suits, their removal cases may have already concluded. And most of Plaintiff’s clients “do not speak fluent English, have limited knowledge of the U.S. legal system, and have no access to legal resources but for those provided by” Plaintiff. Id. at 7. These obstacles that Plaintiff has presented are sufficient to satisfy the hindrance requirement.
As the Court finds that Plaintiff has satisfied the injury in fact, close relationship, and
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hindrance requirements, Plaintiff accordingly has standing here. B. Subject-Matter Jurisdiction
Defendants next argue that Plaintiff has not established a likelihood of success with respect to subject-matter jurisdiction. Defs.’ Opp’n at 31–35. Defendants argue that the Immigration and Nationality Act’s (“INA”) jurisdictional bars prevent these claims from “form[ing] the basis for” a temporary restraining order. Id. at 32.
The INA provides that “a petition for review filed with an appropriate court of appeals” is “the sole and exclusive means for judicial review of an order of removal.” 8 U.S.C. § 1252(a)(5). It also channels “[j]udicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States” into “judicial review of a final order” of removal. Id. § 1252(b)(9) (emphasis added). Section 1252(b)(9) is an “unmistakable ‘zipper’ clause,” Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483 (1999), that has been recognized as “breathtaking” in its reach, Aguilar v. U.S. Immigration & Customs Enf’t Div. of Dep’t of Homeland Sec., 510 F.3d 1, 9 (1st Cir. 2007). It “therefore swallows up virtually all claims that are tied to removal proceedings.” J.E.F.M. v. Lynch, 837 F.3d 1026, 1031 (9th Cir. 2016).
Defendants propose that sections 1252(a)(5) and 1252(b)(9) prevent this Court from hearing this Motion because the claims brought by Plaintiff “arise from” immigration removal proceedings. Defs.’ Opp’n at 32. Defendants are incorrect as to Plaintiff’s substantive due process claim. The Court does not venture an opinion here as to whether it would have jurisdiction over Plaintiff’s Fifth Amendment access to counsel claim, as it decides the Motion on the basis of
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Plaintiff’s substantive due process claim.4
To begin with, not all claims brought by detained immigrants are barred by section
1252(b)(9). Courts, including the court in J.E.F.M. v. Lynch, a case relied upon by Defendants,
have distinguished between claims directly regarding the removal hearing and collateral issues.
The former is barred; the latter is not barred. In general, “claims that are independent of or
collateral to the removal process do not fall within the scope of” the INA’s zipper clause. J.E.F.M.,
837 F.3d at 1032; see also id. (“Thus, we have distinguished between claims that ‘arise from’
4 The question of whether the Court would have jurisdiction over Plaintiff’s access to counsel claim is a complicated one and the authorities are in equipoise. Some courts have found that such claims, when they allege interference with a pre-existing attorney–client relationship, are collateral and thus not barred. See, e.g., Torres v. United States Dep’t of Homeland Sec., 411 F. Supp. 3d 1036, 1048 (C.D. Cal. 2019) (“Plaintiffs’ INA and procedural due process claims do not hinge on events at any particular removal proceeding. . . . Plaintiffs’ claims are based on a right protecting the attorney–client relationship from undue burden or interference.”); Arroyo v. United States Dep’t of Homeland Sec., No. SACV 19-815 JGB (SHKX), 2019 WL 2912848, at *13 (C.D. Cal. June 20, 2019) (“But for purposes of the jurisdictional inquiry, it is enough that represented Immigrant Plaintiffs assert harm which accrues at the moment of geographic separation, rather than in reference to the fairness of their underlying removal proceedings. . . . Accordingly, the Court finds represented Immigrant Plaintiffs allege an injury to their established counsel relationship that is independent of and collateral to their removal proceedings.”); Innovation Law Lab v. Nielsen, 342 F. Supp. 3d 1067, 1078 (D. Or. 2018) (“As with the legal question regarding an alien’s indefinite detention in Jennings, the legal questions regarding detainees’ access to their retained counsel in this case are ‘too remote’ from removal proceedings to fall within the scope of § 1252(b)(9) or (g).”).
Other courts have found that such claims are barred, as the right to counsel is too closely bound up in the removal proceeding and related processes. See, e.g., Aguilar, 510 F.3d at 13 (finding barred plaintiffs’ “claim that their detention and subsequent transfer by the government infringed their rights to counsel by barring their access to lawyers, interfering with preexisting attorney–client relationships, and making it difficult to secure counsel of their choosing”); Nat’l Immigration Project of Nat’l Lawyers Guild v. Exec. Office of Immigration Review, No. 1:20-CV00852 (CJN), 2020 WL 2026971, at *8 (D.D.C. Apr. 28, 2020) (finding barred plaintiffs’ “accessto-counsel and due process claims” because they arose “from the course of removal hearings”); Avilez v. Barr, No. 19-CV-08296-CRB, 2020 WL 570987, at *2 (N.D. Cal. Feb. 5, 2020) (finding barred claim that plaintiff’s “transfer to [another facility] violate[d] her Fifth Amendment right to counsel”); Alvarez v. Sessions, 338 F. Supp. 3d 1042, 1048 (N.D. Cal. 2018) (finding barred claims alleging “disruption to an established representation relationship”). And, more recently, the Third Circuit has found that statutory right to counsel claims are barred, but constitutional ones are not. See E.O.H.C. v. Sec’y United States Dep’t of Homeland Sec., 950 F.3d 177, 187–88 (3d Cir. 2020).
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removal proceedings under § 1252(b)(9)—which must be channeled through the PFR process— and claims that are collateral to, or independent of, the removal process.”); Torres v. United States Dep’t of Homeland Sec., 411 F. Supp. 3d 1036, 1047 (C.D. Cal. 2019) (“But J.E.F.M. is equally clear that the INA does not channel claims that are independent of or collateral to the removal process.” (internal quotation marks omitted)).
Justice Samuel A. Alito’s plurality opinion in Jennings v. Rodriguez, 138 S. Ct. 830, 839– 41 (2018),5 upon which Defendants also rely, recently explored this distinction when considering the “arising from” language in section 1252(b)(9). The opinion counseled against an “expansive interpretation of § 1252(b)(9)” that “would lead to staggering results.” Id. at 840. In particular, it noted that “cramming judicial review of” a claim “based on allegedly inhumane conditions of confinement” into “the review of final removal orders would be absurd.” Id. Without delineating the exact scope of section 1252(b)(9), the opinion suggested that three categories of challenges would fall within it: (1) “review of an order of removal,” (2) a challenge to “the decision to detain them in the first place or to seek removal,” and (3) a challenge to “any part of the process by which their removability will be determined.” Id. at 841. Ultimately, the opinion found that the Court had jurisdiction over the plaintiffs’ claims, which related to whether detained immigrants were entitled to bond hearings to determine whether their continued detention was justified. Id. at 838, 841. Justice Stephen Breyer’s dissent, joined by Justice Ruth Bader Ginsburg and Justice Sonia Sotomayor, would have read section 1252(b)(9) even more narrowly to only bar challenges to orders of removal. Id. at 874 (Breyer, J., dissenting). At least five Justices therefore agreed that
5 This discussion takes place in Part II of the opinion, which was joined by Chief Justice John Roberts and Justice Anthony Kennedy. However, as noted by the Court in the Memorandum Opinion, Justice Breyer’s dissenting opinion, joined by Justice Ginsburg and Justice Sotomayor, took an even narrower view of this provision. See 138 S. Ct. at 874 (Breyer, J., dissenting).
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section 1252(b)(9) does not clearly bar challenges collateral to the removal proceeding.
The Third Circuit recently considered Jennings and the subsequent case of Nielsen v.
Preap, 139 S. Ct. 954 (2019), in which “[t]he Justices largely reprised” their positions from
Jennings. E.O.H.C. v. Sec’y United States Dep’t of Homeland Sec., 950 F.3d 177, 185 (3d Cir.
2020). It concluded:
We distill a simple principle from Jennings, Preap, and the presumptions favoring judicial review. That principle informs how we read the phrase “arising under.” We must ask: If not now, when? If the answer would otherwise be never, then § 1252(b)(9) poses no jurisdictional bar. In other words, it does not strip jurisdiction when aliens seek relief that courts cannot meaningfully provide alongside review of a final order of removal. As the First Circuit has noted, the point of the provision is to channel claims into a single petition for review, not to bar claims that do not fit within that process. See Aguilar v. U.S. ICE, 510 F.3d 1, 11 (1st Cir. 2007).
Id. at 185–86. The Third Circuit went on to recognize that section 1252(b)(9) does not touch
collateral claims, which it found included certain conditions of confinement claims, as “review
and relief may come too late to redress these conditions of confinement.” Id. at 186.
In the wake of Jennings and Preap, the question then becomes whether the challenges
Plaintiff brings here are collateral to the removal proceeding. The Court agrees with Plaintiff that
its substantive due process claim alleging punitive conditions of confinement is not barred by
section 1252(b)(9), especially as the plurality opinion in Jennings singled out such claims as
collateral and suggested that they should not be barred:
Suppose, for example, that a detained alien wishes to assert a claim under Bivens v. Six Unknown Fed. Narcotics Agents based on allegedly inhumane conditions of confinement. . . . The ‘questions of law and fact’ in all those cases could be said to ‘aris[e] from’ actions taken to remove the aliens in the sense that the aliens’ injuries would never have occurred if they had not been placed in detention. But cramming judicial review of those questions into the review of final removal orders would be absurd.
Jennings, 138 S. Ct. at 840 (citations omitted). Plaintiff here does not challenge a final removal
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order. Instead, Plaintiff claims that the conditions at these four detention centers are so restrictive that they are punitive in violation of the Fifth Amendment’s substantive due process clause. See Pl.’s Mem. at 24–28. Plaintiff’s conditions of confinement claim is analogous to the conditions of confinement claims that the plurality opinion in Jennings highlighted as collateral. See Jennings, 138 S. Ct. at 840. This claim is ancillary to the removal process and does not challenge “any part of the process by which [Plaintiff’s clients’] removability will be determined.” Id. at 841; see Torres, 411 F. Supp. 3d at 1048 (“Plaintiffs take pains to tailor their claims only to the conditions of their removal-related detention, and do not challenge the legal sufficiency or any procedural aspect of their removal proceedings.”); cf. Innovation Law Lab, 342 F. Supp. 3d at 1076 (“In the pending case, however, Plaintiffs do not challenge the detainees’ removal proceedings because formal removal proceedings under 8 U.S.C. § 1229a have not yet commenced.”).
Interpreting section 1252(b)(9) to reach conditions of confinement claims like the one brought by Plaintiff would be problematic, especially because Immigration Judges are “powerless to remedy the conditions alleged.” Torres, 411 F. Supp. 3d at 1049 (citing 8 C.F.R. §§ 1240.1, 1240.31, 1240.41; Executive Office for Immigration Review, Immigration Court Practice Manual at 125 (rev’d June 10, 2013) (“Immigration Judges have no jurisdiction over . . . the conditions in the detention facility.”)); see also E.O.H.C., 950 F.3d at 187 (finding that section 1252(b)(9) did not bar claims that could not “be redressed at the end of the removal proceedings” and further finding that court had subject-matter jurisdiction over conditions-of-confinement claim); Castillo v. Barr, No. 20-00605 TJH (AFMX), 2020 WL 1502864, at *4 (C.D. Cal. Mar. 27, 2020) (“However, because the Petitioners, here, have asserted claims for violations of their Fifth Amendment substantive due process rights, and those claims exceed the jurisdictional limits of the Immigration Court and the Board of Immigration Appeals, Petitioners need not first exhaust their
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administrative remedies.”). The cases cited by Defendants do not dictate a different result. Most of Defendants’ cited
authorities focus on access to counsel claims. See, e.g., J.E.F.M., 837 F.3d at 1029, 1033 (finding barred claim regarding whether immigrant minors had a “statutory right to appointed counsel at government expense in immigration proceedings” because “the alien’s right to counsel [was] part and parcel of the removal proceeding itself,” and that “[a]n alien’s right to counsel possesses a direct link to, and is inextricably intertwined with, the administrative process that Congress so painstakingly fashioned” (internal quotation marks omitted)); Aguilar, 510 F.3d at 13 (finding barred plaintiffs’ “claim that their detention and subsequent transfer by the government infringed their rights to counsel by barring their access to lawyers, interfering with preexisting attorney– client relationships, and making it difficult to secure counsel of their choosing”); Nat’l Immigration Project of Nat’l Lawyers Guild v. Exec. Office of Immigration Review, No. 1:20-CV00852 (CJN), 2020 WL 2026971, at *8 (D.D.C. Apr. 28, 2020) (finding barred plaintiffs’ “accessto-counsel and due process claims” because they arose “from the course of removal hearings”); Avilez v. Barr, No. 19-CV-08296-CRB, 2020 WL 570987, at *2 (N.D. Cal. Feb. 5, 2020) (finding barred claim that plaintiff’s “transfer to [another facility] violate[d] her Fifth Amendment right to counsel”); Alvarez v. Sessions, 338 F. Supp. 3d 1042, 1048 (N.D. Cal. 2018) (finding barred claims alleging “disruption to an established representation relationship”).
The Court noted above that it is not considering whether it has jurisdiction over Plaintiff’s access to counsel claim here, and these two types of claims are sufficiently distinct that the reasoning in those cases does not carry over to this context. It is true that Plaintiff’s conditions of confinement claim raises issues addressing access to counsel. Rather than questioning whether the detained clients’ right to counsel has been violated, though, it concerns whether the conditions
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imposed as a result of the limitations and restrictions adopted due to COVID-19 are punitive, in part because they result in limited access to counsel. Moreover, Plaintiff’s lawyers represent the detained immigrants in proceedings other than removal proceedings, such as bond and release proceedings. The Court therefore does not view Plaintiff’s substantive due process claim as a claim that directly invokes the detained immigrants’ right to counsel in removal proceedings.
Other cases Defendants cite do not address either access to counsel claims or conditions of confinement claims, and as a result are also not persuasive in considering whether punitive conditions claims are barred or are collateral. See, e.g., Martinez v. Napolitano, 704 F.3d 620, 623 (9th Cir. 2012) (finding barred plaintiff’s challenges to “the procedure and substance of the BIA’s determination that he was ineligible for asylum, withholding of removal, and relief under the [Convention Against Torture]”); P.L. v. U.S. Immigration & Customs Enf’t, No. 1:19-CV-01336 (ALC), 2019 WL 2568648, at *3 (S.D.N.Y. June 21, 2019) (finding that plaintiff’s challenge to ICE’s VTC policy with respect to actual removal proceedings was barred because “[h]ow immigrants appear for removal proceedings constitutes part of the process of these proceedings”); Vetcher v. Sessions, 316 F. Supp. 3d 70, 75 (D.D.C. 2018) (finding barred plaintiff’s claims regarding “purported deficiencies with the law library at the facility where he is detained”).
The Court accordingly finds that Plaintiff has sufficiently established that this Court has subject-matter jurisdiction over its conditions of confinement claim. See also, e.g., Sallaj v. U.S. Immigration & Customs Enf’t, No. C.A. No. 20-167-JJM-LDA, 2020 WL 1975819, at *2 (D.R.I. Apr. 24, 2020) (exercising jurisdiction over conditions of confinement claim against ICE).
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C. Fifth Amendment Substantive Due Process Claim (Conditions of Confinement) The Court now applies the standard for issuing a temporary restraining order to Plaintiff’s
argument that the conditions of their confinement, and the restrictions Defendants have implemented, are likely punitive and therefore likely violate the rights of Plaintiff’s detained clients.
1. Likelihood of Success on the Merits Plaintiff claims that the conditions and restrictions imposed by Defendants in this case are punitive in violation of the substantive due process clause. Pl.’s Mem. at 24–27. Defendants’ response focuses largely on Plaintiff’s access to counsel claim, which this Court does not consider here. In fact, the Court cannot find a single mention of the words “punitive” or “punish” in Defendants’ Opposition. The Opposition uses the word “substantive” only once, see id. at 29 (“Throughout its Motion and Memo, SPLC does not claim that any of SPLC’s substantive rights that have been invaded by Defendants’ response to COVID-19.”), and not in relation to Plaintiff’s substantive due process claim. In that sense, Defendants have failed to fully address this argument. See Schneider v. Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir. 2005) (“It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones.” (internal quotation marks omitted)). Regardless, Defendants make general arguments about the restrictions that Plaintiff claims are punitive, see, e.g., Defs.’ Opp’n at 38–49, and rather than treat the entire argument as conceded, the Court will consider those arguments in this context. Detention in this context is “undisputedly civil—i.e., non-punitive in nature.” R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 187 (D.D.C. 2015). Plaintiff’s detained clients, like pre-trial detainees, are therefore “entitled to more considerate treatment and conditions of confinement than
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criminals whose conditions of confinement are designed to punish.” Youngberg v. Romeo, 457 U.S. 307, 322 (1982). “While a convicted prisoner is entitled to protection only against ‘cruel and unusual’ punishment [under the Eighth Amendment], a [civil] detainee, not yet found guilty of any crime, may not be subjected to punishment of any description.” Hardy v. Dist. of Columbia, 601 F. Supp. 2d 182, 188 (D.D.C. 2009) (quoting Hill v. Nicodemus, 979 F.2d 987, 991 (4th Cir. 1992)). As a result, “where it is alleged that a [civil] detainee has been deprived of liberty without due process, the dispositive inquiry is whether the challenged condition, practice, or policy constitutes punishment.” Block v. Rutherford, 468 U.S. 576, 583 (1984).
“The Court’s task in applying this standard is to determine ‘whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose.’” United States v. Moore, No. CR 18-198 (JEB), 2019 WL 2569659, at *2 (D.D.C. June 21, 2019) (quoting Bell, 441 U.S. at 561). A civil detainee can prevail by introducing “evidence of a subjective intent to punish,” or by showing “that a restriction is objectively unreasonable or excessive relative to the Government’s proffered justification.”6 Id.; see also Banks v. Booth, No. CV 20-849(CKK), 2020 WL 1914896, at *5–6 (D.D.C. Apr. 19, 2020) (discussing standard to be applied to punitive-conditions claim in prison context). Under Bell v. Wolfish, courts have considered whether the conditions are “employed to achieve objectives that could be accomplished in so many alternative and less harsh methods” as part of the determination of whether a condition or restriction is reasonably related to a legitimate governmental objective.
6 Most cases that apply this standard do so in the context of pre-trial detainees in prison. However, there is nothing to suggest that the same standard should not apply to other civil detainees such as the detained immigrants here, and cases have recognized the same. See, e.g., Doe v. Kelly, 878 F.3d 710, 714 (9th Cir. 2017) (applying standard in immigration detainee context); Torres, 411 F. Supp. 3d at 1064 (same); cf. Matherly v. Andrews, 859 F.3d 264, 274–75 (4th Cir. 2017) (applying standard to civil commitment under Adam Walsh Act).
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Bell, 441 U.S. at 539 n.20; see, e.g., Jones v. Blanas, 393 F.3d 918, 932 (9th Cir. 2004).7 Few cases consider conditions of confinement in the context of conditions that result, at
least in part, in limited access to counsel. Plaintiff cites to Torres v. United States Dep’t of Homeland Sec., 411 F. Supp. 3d 1036 (C.D. Cal. 2019), in which the court considered whether certain alleged conditions at a detention facility were sufficient to sustain a conditions of confinement claim at the motion to dismiss stage, id. at 1064–65. It found that they did, as plaintiffs there had sufficiently alleged that the conditions regarding access to counsel were “not more considerate than those at pretrial and prison facilities” and that the facility could have achieved its objective using “‘alternative and less harsh methods.’” Id. (quoting Jones, 393 F.3d at 932). The Court agrees with the reasoning in Torres that plaintiffs may fairly claim that conditions resulting in limited access to counsel may be punitive in nature and may therefore violate the substantive due process clause. This is especially true when the access to counsel is not necessarily related to removal proceedings, but to proceedings in which detained immigrants are seeking release in light of COVID-19.
Below, the Court first addresses the “less harsh” alternative seemingly proposed by Defendants—in-person legal visitation—and finds that it is likely not a “less harsh” and viable alternative through which detained individuals may confer with legal representatives in light of
7 Plaintiff suggests that this Court adopt the approach taken in Jones v. Blanas, in which the Ninth Circuit found that:
With respect to an individual confined awaiting adjudication under civil process, a presumption of punitive conditions arises where the individual is detained under conditions identical to, similar to, or more restrictive than those under which pretrial criminal detainees are held, or where the individual is detained under conditions more restrictive than those he or she would face upon commitment. 393 F.3d at 934. This approach has been rejected by the Fourth Circuit. See Matherly, 859 F.3d at 275–76. Because the Court finds that Plaintiff has a likelihood of success in demonstrating that the conditions are punitive without such a presumption, the Court does not adopt this approach here.
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COVID-19. The Court then discusses the conditions challenged by Plaintiff and considers the points raised by Defendants with respect to those conditions. The Court thereafter considers whether the claimed restrictions and conditions are punitive, which also includes considering Defendants’ proffered objectives and whether the conditions and restrictions are proportionate to those objectives.
a. In-Person Legal Visitation as a “Less Harsh” Alternative As previously noted, Defendants do not frame their briefing in terms of the substantive due process analysis. However, their focus on access to in-person legal visitation indicates that they view such visitation as a “less harsh” alternative for ensuring that Plaintiff’s clients have access to their counsel in the wake of COVID-19. In other words, they appear to suggest that the conditions and restrictions that Plaintiff alleges regarding remote legal visits cannot violate any substantive due process rights because in-person legal visitation, with applicable restrictions, is still an option.8 See Defs.’ Opp’n at 38–40. The Court therefore considers whether in-person legal visitation, with restrictions, is likely a “less harsh” alternative to ensuring that detained immigrants have access to their counsel under the current circumstances. Defendants argue that the restrictions on in-person visits do not violate any constitutional rights. They also stress, both in their briefing and declarations, that in-person legal visits are still possible with certain restrictions. In doing so, they misunderstand the gravamen of Plaintiff’s argument with respect to in-person visitation. Plaintiff does not appear to question whether the
8 Again, Defendants did not directly address Plaintiff’s substantive due process arguments. However, the Court, in its discretion, is willing to consider Defendants’ general arguments in this context, construed generously, rather than treat the entire argument as conceded. See Wannall v. Honeywell, Inc., 775 F.3d 425, 428 (D.C. Cir. 2014) (“[Local Civil Rule 7] is understood to mean that if a party files an opposition to a motion and therein addresses only some of the movant’s arguments, the court may treat the unaddressed arguments as conceded.” (emphasis added)).
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restrictions on in-person visitation, namely the PPE requirement, are punitive. See Pl.’s Mem. at 25–27 (arguing that legal communications conditions are punitive without discussing whether inperson visitation restrictions are punitive); Pl.’s Reply at 19 (“But as SPLC has repeatedly explained, Plaintiff is ‘in no way’ challenging the PPE requirement.” (citing Trans. of May 12, 2020 Hearing at 13:25–14:1)). The Court therefore does not consider whether the PPE requirement or other restrictions relating to in-person visitation are themselves likely punitive.
At least with respect to the conditions of confinement argument, Plaintiff is suggesting that in-person visitation is currently not a viable alternative method of communication due to COVID19 and that, in most instances, remote legal communication is necessary. Plaintiff explains that “most of the legal profession has transitioned to remote communications (e.g., phone and videoteleconference) in order to protect not only themselves but also their clients and detention center staff from the prospect of transmitting the virus.” Pl.’s Mem. at 6. The declarations submitted by Plaintiff demonstrate that Plaintiff’s concern is “unknowingly expos[ing] clients to the virus or contract[ing] the virus themselves.” Rivera Decl. ¶ 19; see also, e.g., Osorio Decl. ¶ 8 (“Because of a number of factors, including local and state directives on social distancing, ICE’s requirements for attorneys to procure personal protective equipment (which is in short supply), and in order to limit exposure, I proceeded with preparation for this client’s individual hearing via VTC.”); López ¶ 11 (“Given the nationwide shortage of such protective equipment, even for medical personnel, such a requirement has, in practice, created a ban on in-person attorney visits.”); id. ¶ 18 (“Our clients are understandably fearful of contracting the disease . . . This makes it incredibly difficult for us to meet with and represent our clients since going to facilities with confirmed cases, especially when travelling from the most affected area of the state, puts us, our clients, our families, and everyone with whom we come in contact at risk of infection.”). Indeed, there are already cases
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of COVID-19 in these detention centers. See, e.g., Rivera Decl. ¶ 14 (listing confirmed cases as

of May 6, 2020); López Decl. ¶ 6 (explaining that “an entire dorm had been quarantined” at Pine

Prairie due to suspected cases of COVID-19); id. ¶ 14 (discussing confirmed cases at Pine Prairie).

And certain of Plaintiff’s clients may be at high risk of becoming seriously ill if they contract

COVID-19. For example, one of Plaintiff’s clients has “Type II diabetes and hypertension” along

with other conditions, which places him at a higher risk of becoming severely ill if he contracts

COVID-19. Sanchez Martinez Decl. ¶ 3.

Defendants do not contend that in-person visitation, with the PPE requirement, is safe.

They do not present any information or evidence suggesting that Plaintiff’s concerns about

attorneys infecting detained individuals, or contracting the illness themselves, are misplaced.

Defendants do suggest that the mandatory use of PPE was implemented “to reduce the risk of

spreading the virus.” Defs.’ Opp’n at 5; see also Bretz Decl. ¶ 17 (“Noncontact legal visitation is

still permitted provided the visitor provides their own personal protective equipment and submits

to screening prior to entering the facility.”); Chambarlain Decl. ¶ 21 (“All visitors must wear PPE

and if they do not have it the facility will provide it to them.”); First Washburn Decl. ¶¶ 16–20

(explaining that all visitors must submit to screening and must bring their own PPE if making an

in-person legal visit). The Court does not disagree that adopting a mandatory PPE requirement

may work to slow the spread of COVID-19, especially in light of CDC guidance on face coverings.

See, e.g., About Cloth Face Coverings, Ctrs. for Disease Control & Prevention,

https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/about-face-coverings.html (last

visited June 17, 2020); Recommendations for Cloth Face Covers, Ctrs. for Disease Control &

Prevention,

https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-

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cover.html (last visited June 17, 2020).9 However, the Court cannot dismiss Plaintiff and its legal staff’s valid concerns regarding
infecting detained immigrants or contracting the illness themselves, especially as many of Plaintiff’s clients are seeking to be released into the community to decrease their chances of contracting and becoming seriously ill with COVID-19. As the CDC explains, “the virus can spread between people interacting in close proximity—for example, speaking, coughing, or sneezing—even if those people are not exhibiting symptoms.” Recommendations for Cloth Face Covers, Ctrs. for Disease Control & Prevention (last visited June 17, 2020). While it recommends the use of face coverings to “slow the spread of the virus,” it also emphasizes that “maintaining 6feet social distancing remains important to slowing the spread of the virus.” Id. (emphasis added). The CDC Interim Guidance subsequently suggests that detainment facilities “[c]onsider suspending or modifying visitation programs” and “provide access to virtual visitation options where available.” See Ctrs. for Disease Control & Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities at 13, https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidance-correctional-detention.pdf (last updated March 27, 2020). It further advises that, to the extent in-person visits are suspended or modified, “alternate means (e.g., phone or video visitation)” should be provided “for incarcerated/detained individuals to engage with legal representatives, clergy, and other individuals with whom they have legal right to consult.” See id.
Based on this language and the CDC Interim Guidance more generally, it appears that the
9 Plaintiff has also submitted declarations that address how COVID-19 is spread. See, e.g., Venters Decl. ¶ 5(a) (listing “transmission by aerosolized droplets expelled from the mouth by speaking, coughing, sneezing, and breathing” as one method of transmission for COVID-19). Defendants do not bring to this Court’s attention in its briefing any evidence that this is not how COVID-19 is transmitted. Nor do they appear to contest these assertions.
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CDC does not maintain that wearing face coverings or PPE guarantees that transmission of the virus will not occur. Moreover, Defendants do not argue about or present any evidence regarding the effectiveness of PPE, and their other precautions, as related to the circumstances surrounding in-person legal visitation (such as the distance between attorney and client, the size of the room, etc.) for the Court to consider. It may be that information regarding the effectiveness of PPE and their precautions in such circumstances, or even more generally, is limited. But that too suggests that Plaintiff’s concern that in-person legal visitation still poses tangible risks is legitimate, as there would be insufficient information to support that in-person legal visitation does not place numerous persons at risk of contracting COVID-19. Nor do Defendants address whether in-person legal visitation complies with regional, state-level, or local stay-at-home orders.
Accordingly, to the extent that Defendants intended to suggest in their briefing that inperson legal visitation remains a less harsh alternative to remote legal visits, the Court finds that, under the circumstances presented here, it does not. Considering how COVID-19 spreads, there is a real risk of attorneys or staff contracting the illness or infecting their clients (or even staff) at the Facilities. While Defendants have established certain precautions aimed at decreasing those risks, they do not propose or present evidence indicating that such risks can be completely, or even mostly, ameliorated. As a result, Defendants cannot maintain that in-person legal visits are likely to be a “less harsh” alternative to the current remote legal visitation systems, policies, and procedures that Plaintiff challenges. See Bell, 441 U.S. at 539 n.20; Jones, 393 F.3d at 932.
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b. Challenged Conditions i. Challenged VTC-related Conditions
Plaintiff raises various issues with VTC access. Prominent among them are delays: “delays in receiving a response to a VTC request, delays between the date requested and the date made available, delays on the day of the appointment, as well as outright cancellations.” Pl.’s Mem. at 10; see, e.g., Rivera Decl. ¶ 22 (“SIFI staff report delays relating to VTC requests at all four facilities, both in the time that it takes facility staff to send an initial response to the request, and in the number of days between the date of the request and the dates offered for VTC slot availability.”); id. ¶ 23 (“With respect to VTC delays, at LaSalle, SIFI staff have repeatedly had to wait four to six days between the date they request a VTC call and the date they complete the corresponding VTC call.”); id. (detailing how, in two instances, no time slots were available for six days); id. ¶ 24 (explaining how LaSalle acknowledged the delay and attributed it to “the high demand to use Skype during the pandemic and the limited resources at the facility”); Williams Decl. ¶ 11 (discussing Irwin and Stewart facilities and explaining that “[t]he detention center typically schedules our request for a one-hour appointment one to three days after our original request”).
Plaintiff states that Defendants offered to “provide extended VTC days and hours of operation for the Facilities.” Pl.’s Mem. at 10; see Rivera Decl. ¶ 21; id. Ex B. (April 3 letter from Defendants to Plaintiff). However, Plaintiff claims that it has seen no evidence of these extensions. Pl.’s Mem. at 10; Rivera Decl. ¶ 22 (“There is no indication that these extensions have been fully applied. For example, for VTC slots on April 24 and April 27, SIFI attorneys at Stewart were offered the same hours that Stewart has always had – 9am to 3pm.”); id. ¶ 24 (“Moreover, despite ICE’s promise to extend VTC hours, SIFI staff still report scheduling delays. On April 6, a SIFI
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attorney at LaSalle requested a VTC for the next day. She received a response on April 7, providing a slot on April 8.”).
According to Plaintiff, delays can significantly harm their detained clients’ causes, especially with respect to their efforts to be released due to the ongoing pandemic. For example, in one instance involving a six-day delay between the date of the request and the date scheduled, the SIFI legal worker was attempting to meet with “medically fragile” detained clients who “required immediate assistance in seeking release due to their increased vulnerability to serious illness or death should they contract COVID-19.” Rivera Decl. ¶ 24. The purpose of the calls was “to gather evidence for humanitarian parole applications in light of COVID-19 vulnerabilities,” and each additional day of delay increased the possibility that they might contract COVID-19 within the facility. Id. In another instance, counsel requested a remote legal visit with an immigrant detained at Irwin to interview that individual “for potential inclusion” in ongoing habeas litigation filed by Plaintiff and SIFI, but Irwin allegedly failed to respond to the attorney’s request despite multiple follow-up attempts and the visit was never scheduled. Williams Decl. ¶ 19. Plaintiff claims that this “defeat[ed] their chances for release during this dangerous pandemic.” Pl.’s Mem. at 11.
In addition to delays, Plaintiff alleges that “Defendants have restricted VTC access through sudden and seemingly arbitrary restrictions at the Facilities.” Id. This includes Stewart effectively setting “a weekly cap on the number of VTC calls a SIFI attorney could have with the same client.” Id. As explained in the Rivera Declaration, an attorney had requested two more additional onehour slots before a hearing to prepare with her client. Rivera Decl. ¶ 25. However, staff “quickly denied one of her two requests, saying two slots per week for one client was sufficient.” Id. She was ultimately scheduled for one more slot the day before the hearing, but it was cancelled due to
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a lockdown at the facility, which Plaintiff claims “denied counsel her final opportunity to speak to the client before the hearing.” Id.
Plaintiff also claims that Defendants have scheduled, rescheduled, or canceled calls with little or no notice. Pl.’s Mem. at 11; Rivera Decl. ¶ 26 (“For example, on April 14, an officer at Pine Prairie told a SIFI attorney that the reason they had to reschedule the VTC appointment from the prior day was because the officer was on transport duty.”); id. ¶ 28 (“This happened to a SIFI attorney on April 16, when he was unable to speak to one of four individuals inside Stewart with whom he had scheduled VTCs. All four individuals had disclosed COVID19 vulnerabilities at intake, prompting the need for time-sensitive follow-up given the rise in COVID-19 cases at Stewart. The VTC calls were set back-to-back, starting at 12 p.m. CoreCivic staff did not call until 1 p.m. At that point, the VTC took place with the second individual he was scheduled to meet. No mention was made of the first individual he had been scheduled to speak with at 12 p.m. The SIFI attorney completed three interviews from 1 p.m. to 4 p.m., then asked the VTC coordinator about the missed call at 12 p.m. He did not receive a response, so SIFI staff again had to follow up. Eventually, the SIFI attorney was forced to reschedule the meeting with that individual for six days later, April 22.”); Williams Decl. ¶ 12 (“In my experience, when Irwin finally responds to a request for a remote legal visit, Irwin routinely provides very short notice of the selected time and day and does not give Habeas Counsel any opportunity to reschedule due to conflicts.”); id. ¶ 20 (“On April 15, 2020, I requested remote legal visits for two of our petitioners detained at Irwin by emailing the designated contact at Irwin. I sent emails following up on this request on April 16 and 17. On April 17, I received an unexpected Skype call from one of the petitioners. Irwin had failed to confirm the date and time of this remote legal visit. While I was able to answer the call, I was unprepared for the visit and was unable to accomplish everything I had planned to address during
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our visit.”); Osorio Decl. ¶ 7 (“[O]n April 15, 2020, I requested a VTC legal visit for April 21 to finish preparing my client for her individual hearing scheduled for two days later, on April 23. Despite several emails to Irwin requesting the VTC appointment, I received no confirmation and was unaware if the meeting would be moving forward. Fortunately, my client’s husband advised me on the morning of April 21 that the appointment had been confirmed to the client for 2 PM later that day.”).
Plaintiff also alleges that Defendants, and in particular Irwin, also failed to properly notify clients of scheduled calls on at least two occasions. Pl.’s Mem. at 11; see Rivera Decl. ¶ 33 (“On March 13, a SIFI attorney had scheduled a VTC call with a client detained at Irwin. At the time of the VTC, Irwin employees told the SIFI attorney that the individual did not want to speak with him. It was not until a rescheduled call days later that he was able to meet with the client, and the client stated that if he had known it was the SIFI attorney on the VTC, he would have certainly taken the call.”); Williams Decl. ¶ 21 (“On April 22, 2020 at 2 pm, Ms. Mesa was scheduled for a remote legal visit with one of our petitioners detained at Irwin. Irwin never presented our petitioner for the visit. Irwin represented to Ms. Mesa that our petitioner did not want to speak with her. Ms. Mesa subsequently spoke with our petitioner’s immigration counsel and family, who informed Ms. Mesa that our plaintiff was told that Ms. Mesa was an attorney trying to “poach” her.”). Quality of VTC calls is also at issue, as “one SIFI attorney now schedules only legal phone calls” at LaSalle. Pl.’s Mem. at 11; Rivera Decl. ¶ 24; see also López Decl. ¶ 9 (discussing similar issues at Pine Prairie).
Plaintiff also highlights “unreasonable time restrictions” for VTC calls. Pl.’s Mem. at 11. At Pine Prairie, the limit is thirty minutes, although in reality it is sometimes less “due to the time it takes to move quarantined and non-quarantined individuals separately.” Id. at 11–12; see Rivera
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Decl. ¶ 8 (“Until recently, Pine Prairie had only one VTC console; each VTC call is limited to thirty minutes.”); López Decl. ¶ 8 (explaining calls are thirty minutes and detailing on in practice calls are often less time). VTCs are limited to one hour at Stewart and Irwin. Pl.’s Mem. at 12; Williams Decl. ¶ 11 (“Generally, visitation is limited to one hour, even when an interpreter is needed for the remote legal visit.”). These limitations are still in place even when interpreters are necessary, which “effectively doubles the time it takes to communicate.” Pl.’s Mem. at 12; see Williams Decl. ¶¶ 11, 16; Rivera Decl. ¶ 10.
Furthermore, Plaintiff notes that there are confidentiality issues with the current systems established by Defendants, such as staff interrupting calls or having calls occur in cubicles with thin walls through which attorney–client conversations are “clearly audible.” Pl.’s Mem. at 12; Rivera Decl. ¶¶ 30–31 (“Pine Prairie does not provide spaces that allow for private and confidential VTC conversations. The VTC consoles sit in cubicles with thin walls that are not soundproof and do not reach to the ceiling. A SIFI attorney was conducting a VTC call with a client on April 7 when she received a text message from a fellow attorney that practices with ISLA- Immigration Services & Legal Advocacy. The attorney alerted her that they were conducting their own VTC with an individual at Pine Prairie and could clearly hear everything that the SIFI attorney and SIFI client were saying.”); id. ¶ 32 (“At Irwin, it is very common for employees to go in and out of the library room during VTCs.”); Williams Decl. ¶ 15 (“Additionally, at Irwin, if the library videoteleconference station is used for the remote legal visit, detention center staff frequently interrupt our visit by entering the library and answering calls on a phone placed just a few feet away from the detained individual.”); Osorio Decl. ¶¶ 5–6 (“In all of these VTC legal visits, I have observed Irwin staff coming and going from the VTC room, compromising the confidentiality of the meeting. At times, guards have sat in the back of the VTC room while I have discussed case
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preparations with the client.”). Lastly, Plaintiff explains that Defendants have taken “inadequate safeguards to protect
detained individuals from the virus during VTC calls,” which has made Plaintiff’s attorneys “think twice about proceeding with remote legal visits to avoid health risks to their clients.” Pl.’s Mem. at 12. Plaintiff provides examples of how detained clients did not have access to gloves. Id. at 12; see Williams Decl. ¶¶ 8–9; Rivera Decl. ¶ 32; Sanchez Martinez Decl. ¶ 14. Plaintiff also gives an example of a VTC terminal not being disinfected after an individual from a quarantined unit was at the VTC terminal. Pl.’s Mem. at 13; López Decl. ¶ 16 (explaining how guards mistakenly brought wrong client from “cohorted dorm,” or quarantined unit, and then replaced him with correct client “without wiping down the area” and noting that warden was emailed and did not respond regarding this incident). Plaintiff claims that the lack of PPE and other hygiene measures causes detained clients to risk exposure to the virus. Pl.’s Mem. at 15–16 (citing sources); Venters Decl. ¶ 11.
Defendants do not respond to the crux of Plaintiff’s arguments that these conditions are punitive, as previously explained. See Defs.’ Opp’n at 40–43 (arguing mostly that allegations regarding VTC access do not rise to violation of right to access counsel). Aside from Defendants arguments aimed at the access-to-counsel claim, which this Court does not consider here, Defendants point out a few other issues worth raising. First, they argue that Plaintiff “demands a system that involves both appointments of unlimited time and duration” but that also “is free of delays,” and that these two conditions are incompatible. Defs.’ Opp’n at 43. Defendants also argue at length that Plaintiff’s requested relief would require the Court to micromanage “the dayto-day operations of the facilities.” Id. at 43–44. The Court considers these two points later in the context of the balance of hardships, the public interest, and the scope of the injunctive relief
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granted. Defendants also claim that a ruling in Plaintiff’s favor would “convert every video
conference with poor picture quality, any dropped phone call, or a scheduling mishap into a federal lawsuit.” Id. at 44. But that is not true: One single mishap does not necessarily a lawsuit make. Plaintiff alleges that it is the totality of these circumstances—the lack of viability of in-person visits, the scheduling and quality issues of VTC, and the other conditions discussed below—that are punitive, not any particular condition. Defendants’ argument is therefore unpersuasive.
Defendants next point out that the relevant Performance-Based National Detention Standards (“PBNDS”) do not require any generalized access to VTC under PBNDS 5.6. Defs.’ Opp’n at 44. It is true that PBNDS does not provide details on access to VTC. That does not demonstrate that the conditions at the Facilities, in their totality, are not punitive. Moreover, as VTCs are essentially calls, the provisions in the PBNDS regarding telephone calls may be applicable or at least serve as guidance on how such conferences should be handled. Relevant provisions are discussed in more detail below, when discussing the claimed telephone conditions.
Lastly, Defendants take issue with some of Plaintiff’s claims relating to VTCs. Defendants note that Stewart has a daily limit of one hour per attorney–client pairing, which it argues is reasonable under the PBNDS. Defs.’ Opp’n at 45; Fourth Washburn Decl. ¶¶ 64, 82. Defendants here miss Plaintiff’s point that due to the limited availability of time slots, that one hour in some cases effectively becomes the only time in a week that a detained immigrant may speak with counsel, thereby establishing a cap. See Pl.’s Mem. at 11.
Defendants respond that the VTC schedule at Stewart was in fact expanded from 8 a.m. to 6 p.m. on Monday through Friday. Defs.’ Opp’n at 45; Fourth Washburn Decl. ¶¶ 62–63. Defendants further state that Plaintiff is “given special VTC treatment at LaSalle,” which “includes
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a daily exclusive two-hour VTC window from 5:00pm–7:00pm on one of LaSalle’s VTC consoles.” Defs.’ Opp’n at 46. Plaintiff explains in its Reply that “this ad hoc remedy was offered only six days ago in response to a non-compliance notice sent by SPLC,” and that it provides “no additional access beyond what the parties already negotiated in a prior settlement agreement at that facility.” Pl.’s Reply at 16 n.8. Plaintiff also claims that this does not provide a “systemic ‘fix’” for the “ongoing connectivity issues that have made VTCs wholly unreliable at LaSalle.” Id. (citing Rivera Decl. ¶ 24). While Plaintiff does have additional time slots at LaSalle, the availability of those additional slots does not erase any issues with scheduling, delays, cancellations, or VTC quality.
ii. Challenged Telephone-related Conditions Plaintiff raises several issues with “facility legal calls,” which it describes as “confidential phone calls coordinated by the facility.” Pl.’s Mem. at 13. Plaintiff explains that the process for setting up legal calls is unclear to clients and attorneys at these Facilities, especially as such phone calls are new to Stewart and Pine Prairie. Id.; see Rivera Decl. ¶ 38 (“However, to SIFI’s knowledge, there had never been a process to set up facility legal calls at Stewart or Pine Prairie.”). For instance, when SIFI staff at Stewart approached employees there about facility legal calls, they were told that those employees “were not aware of any mechanism for facility legal calls.” Rivera Decl. ¶ 39; id. Ex. B. The attorney had to contact the warden regarding a clear procedure for facility legal calls, which, based on Plaintiff’s declaration, she did not receive. Rivera Decl. ¶¶ 39– 40. When she did schedule facility legal calls, she experienced issues and delays. Id. ¶ 41 (“For the first call, the SIFI attorney was given a phone number to call at 10 a.m. She called the number and twice got voicemail. When she called a third time, a person answered and asked who she needed. About ten minutes later, her client spoke into the phone line and she was able to talk with
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him. The second call was scheduled for 12 noon. It did not happen at 12 noon, and when the attorney inquired, she was told she could do the call at 1 p.m. She called at 1 p.m. and was finally able to speak with the potential client.”).
Moreover, as for Pine Prairie, Plaintiff explains that “although officials have represented to SIFI that detained persons may request a facility legal call through their case manager, this does not occur in practice” because “only one of SIFI’s clients at Pine Prairie has been informed who their case manager is.” Rivera Decl. ¶ 38. This is complicated by the fact that the case managers speak only English. Id. Moreover, Plaintiff claims that “none of their clients have been informed by their facilities of any process for requesting a facility legal call.” Id. (“One SIFI attorney who has been working with people detained at the facility since October 2018 states that no client of hers has ever been able to successfully request a facility legal call.”).
Plaintiff also claims that, aside from process-related issues, there are delays in scheduling similar to VTC calls and that detained individuals have been restrained from accessing legal calls due to lockdowns. Pl.’s Mem. at 14; see Rivera Decl. ¶¶ 40–42. There have been significant connectivity issues at LaSalle when dialing in essential third parties, such as other attorneys and interpreters. Pl.’s Mem. at 14; see Rivera Decl. ¶ 43. Plaintiff claims that Defendants’ solution is to have the client take the call while on speaker, which Plaintiff claims “raises similar confidentiality concerns to the VTC calls because conversations can be overheard by individuals in the next room.” Pl.’s Mem. at 14; see Rivera Decl. ¶ 43 (“On April 6, SIFI staff attempted to conference an additional party into the call and the line stopped functioning. When SIFI staff raised the issue to Geo Group staff, they stated this was likely because the detained client was attempting to use the receiver rather than take the call on speaker phone. On April 23 and April 25, a SIFI attorney had legal calls with clients, but the phone connectivity each time was very
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rough and the call itself kept breaking up. In the April 25 instance, the client tried to hang up and call using another phone, but the issues remained. Connectivity issues for legal calls at LaSalle are especially frustrating because, for example, one SIFI attorney only schedules legal calls due to LaSalle’s extremely poor VTC quality.”).
Furthermore, Plaintiff claims that it has had issues getting confirmation from the Facilities that their phone numbers are on a do-not-monitor list to address confidentiality concerns. Pl.’s Mem. at 15. They have received verbal, but not written, confirmation from LaSalle, Stewart, and Pine Prairie. Id.; Rivera Decl. ¶ 44 (“In mid-March, SIFI also contacted ICE to request that a list of SIFI cell phone numbers be placed on a do-not-monitor-or record list for paid calls. SIFI requested written assurances that calls to these numbers would not be monitored or recorded. While ICE did not provide any promises of confidentiality in writing, the agency did verbally confirm that calls would be confidential at three of the four facilities.”); Williams Decl. ¶ 14 (“SPLC has requested that several phone numbers of SPLC staff who regularly provide legal assistance to detained individuals at Irwin and Stewart be placed on a do-not-monitor list. While we have received verbal confirmation that these phone numbers have been placed on a do-notmonitor list for detained individuals at Stewart, Warden Paulk has refused to confirm whether our calls with detained individuals at Irwin are unmonitored.”). As of May 5, Irwin was unable to confirm whether the calls at its facility were monitored because “Defendants do not have a contract with that facility’s phone vendor.” Pl.’s Mem. at 15; see Rivera Decl. ¶ 45 (“ICE’s assurances concerning the privacy of paid calls do not apply to Irwin because this facility’s phone vendor, Correct Solutions, does not have a contract with ICE. To obtain assurances of privacy for Irwin calls, SIFI staff spoke with the Irwin warden. He agreed to contact the vendor to request that certain phone numbers be placed on a do-not-monitor or record list. After that conversation, a SIFI
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attorney emailed the warden with a list of the telephone numbers. The warden asked for the names of the phone owners; SIFI declined to provide the names of its legal workers. As of May 5th, the Irwin warden had not yet responded to SIFI’s repeated requests for confirmation that calls made to these numbers are unmonitored.”); Williams Decl. ¶ 14.
Plaintiff also notes that these calls are made in an “open space, in close proximity to the individuals from their unit” and thus do not guarantee confidentiality. Pl.’s Mem. at 15; see Williams Decl. ¶ 13 (“Because of the difficulty of scheduling remote legal visits with petitioners, we have relied heavily on petitioners’ ability to call us using the same phones they use to call loved ones, which are located in open, shared spaces that do not allow for confidential conversations.”); Rivera Decl. ¶ 46 (“Even if Correct Solutions and/or ICE were to confirm that collect calls to SIFI attorneys are not being monitored, these calls face the same confidentiality concerns as calls made to the SIFI hotline, as they are made in the unit on a shared telephone.”).
Plaintiff additionally claims that there are hygiene concerns with the use of these shared telephones, as detained clients are often close to each other while waiting to use the telephones and lack protective equipment. Pl.’s Mem. at 15; see Venters Decl. ¶ 11 (discussing general cramped nature and inability to effectively socially distance in detention environment); id. ¶ 36 (discussing how April 10, 2020 ERO COVID-19 Pandemic Response Requirements are deficient, in particular with respect to cleaning of shared spaces and objects, including telephones). One client explains in his declaration that he was cautious to use the telephones:
I also was very careful about what I shared during these telephone calls because I was not very comfortable speaking in the common area and surrounded by other detainees. I was also scared to be using the phone too often, because I knew that it was not cleaned, and it was used by many other detainees. Because we were not provided with our own additional cleaning supplies, I used to use the alcohol pad that the nurse gives me when I receive my insulin shot to wipe down the telephone. Sanchez Martinez Decl. ¶ 7. He also stated that he “never once saw a detainee or someone who
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works at Stewart cleaning the telephones” and that they were not “provided with additional cleaning supplies to keep” such items and areas “disinfected and sufficiently clean.” Id. ¶ 12. Plaintiff notes that clients are in units with few working telephones, which means that if the phones are not being cleaned between uses, there could be significant exposure issues. Pl.’s Mem. at 15– 16; see Rivera Decl. ¶ 47; Sanchez Martinez ¶¶ 10–11; Venters Decl. ¶ 36.
In conclusion, Plaintiff claims that Defendants have failed to comply with its own ERO COVID-19 Pandemic Response Requirements, which require facilities “to ensure all detainees receive some number of free calls per week,” Rivera Decl. ¶ 48; Schriro Decl. ¶ 58, and the CDC’s guidance for detained populations, to “increase access to free or low-cost telephones and virtual visitation,” Pl.’s Mem. at 16 (citing CDC Interim Guidance at 13–14).
Defendants’ response to the telephone-related conditions focus on arguing that Defendants are in compliance with the relevant PBNDS provisions. See Defs.’ Opp’n at 44, 46. The PBNDS’s minimum requirement is 25 phones and a minimum limit of 20 minutes per legal call. See PBNDS 5.6(V)(A)(1) (“To ensure sufficient access, each facility shall provide at least one operable telephone for every 25 detainees.”); PBNDS 5.6(V)(F) (“If time limits are necessary for [legal] calls, they shall be no shorter than 20 minutes.”). Defendants explain that some of the Facilities in fact exceed the optimal ratio of 1:10 for telephones. Defs.’ Opp’n at 46 (listing Facilities and using information from Plaintiff’s declarations to calculate ratio). While the PBNDS provides a helpful touchstone, whether Defendants are in compliance with PBNDS does not indicate whether the conditions are punitive. Moreover, in light of the spread of COVID-19, some of the provisions in the PBNDS may be less relevant.
Next, Defendants “do not agree that legal calls are difficult to obtain.” Id. at 47. They cite to various portions of their declarations, many of which outline processes for obtaining a VTC
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and/or legal call, many of which have been recently adopted. See Rice Decl. ¶ 37; Staiger Decl. ¶ 36; Fourth Washburn Decl. ¶¶ 55–60; Second Paulk Decl. ¶ 40. These declarations establish that these Facilities have started to adopt processes by which attorneys and detained clients may schedule VTCs or legal calls. However, they do not address many of Plaintiff’s claims, such as issues with delays in scheduling, ensuring the confidentiality of legal calls, hygiene concerns, and quality of VTCs and phone calls. In fact, at least one declaration provided by Defendants indicated that confidentiality may be a concern for certain phone calls, see Second Paulk Decl. ¶ 39 (“Attorneys wishing to speak to a detainee [at Irwin] via telephone are advised that phone calls are recorded and monitored, and attorneys are recommended to schedule a VTC appointment to speak to detainees for full confidentiality.”), and another declaration submitted by Defendants indicated that the offices in which such calls are taken may be cleaned only once per day, see Fourth Washburn Decl. ¶¶ 58 (noting that offices “where these calls are scheduled to occur are cleaned and sanitized, at least once daily”).
iii. Challenged Mail-related and Document Exchange-related Conditions Plaintiff also challenges the restrictions and conditions related to mail and document exchange at the Facilities. To begin with, Plaintiff claims that Defendants “will not retrieve fax documents or download electronic documents for detained individuals at the Facilities.” Pl.’s Mem. at 16; see Rivera Decl. ¶ 53, Ex. B at 3 (Apr. 3, 2020 Letter from ICE Associate Legal Advisor stating that “[t]he facilities’ unit managers and law library officers will continue to assist the detainees with their needs to exchange a hardcopy of legal documents with their attorneys, but will not retrieve facsimiles or download electronic copies of legal documents for detainees”). Plaintiff proposes that this is unreasonable because Irwin allows detained individuals to send faxes to their attorneys and, at least for a few weeks, “had allowed attorneys to send faxes for
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their clients that the facility officer would retrieve for them before a VTC appointment.” Pl.’s Mem. at 16; see Rivera Decl. ¶ 53 (“Out of the four facilities, SIFI has received faxes from their detained clients at Irwin, as it seems there is a system in place for this one-way communication. Additionally, for about two to three weeks before the pandemic, Irwin also allowed attorneys to send faxes to the facility before VTC appointments, to be delivered to their client.”); Williams Decl. ¶¶ 23–24 (“Additionally, as far as I know, we are unable to send faxes to any of our detained petitioners at Stewart or Irwin. We are able to receive faxes from our petitioners detained at Irwin, but we are unable to receive faxes from our petitioners detained at Stewart.”). Plaintiff also claims this restriction on use of faxes is unreasonable because faxes are used for certain documents such as medical records already. Pl.’s Mem. at 16–17; Rivera Decl. ¶ 12 (“Facilities have allowed SIFI attorneys to fax authorizations for release of medical records and often subsequently receive the medical records from the facility via fax.”). Plaintiff claims that allowing the use of fax machines to obtain client signatures “would greatly improve access, especially with the restrictions on inperson visitation and delays in mail.” Pl.’s Mem. at 17; see Rivera Decl. ¶ 54 (explaining that “Defendants’ refusal to facilitate timely exchange of documents hinders effective representation” and providing example where “in late March a SIFI attorney requested her client’s medical records from LaSalle after receiving express verbal authorization from her client to do so,” but ICE officials refused to accept the medical records release without “a wet signature” from the detainee, which would require use of mail and delay process).
Plaintiff further claims that its attorneys and clients have experienced difficulties with mailing. They first discuss restrictions on metered and preaddressed envelopes. Their staff has had mixed success, for example, with sending pre-stamped envelopes to Stewart. Pl.’s Mem. at 17; Rivera Decl. ¶ 50. As stamps are not permitted in the Facilities, Plaintiff must deposit funds
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into the clients’ accounts or potentially not comply with stay-at-home orders to obtain prepaid envelopes. Pl.’s Mem. at 17; Williams Decl. ¶ 23 (“In addition to the access issues related to remote legal visits, Habeas Counsel have been unable to exchange documents with petitioners in an expeditious manner. Before the pandemic, we typically exchanged documents and obtained signatures during in-person legal visits. Now, with in-person visitation effectively prohibited, the only means for documents exchange is postal mail, which is a slow and unreliable process. We are unable to include stamps in our written correspondence with petitioners because stamps are banned by the detention centers. This forces us to deposit funds into petitioners’ commissary accounts or break social distancing protocols and stay-at-home orders to obtain prepaid envelopes that can be used by petitioners to return documents to us.”).
As a result of the above restrictions, Plaintiff has relied upon postal mail, which it claims is also unreliable and may result in significant delays. Pl.’s Mem. at 17; see Rivera Decl. ¶ 9 (“Mail has not proven to be a reliable method to exchange documents with clients. For example, at Stewart, where a single post office box number is shared by the court, ICE prosecutors, ICE Enforcement and Removal Operations agents, and people confined inside the detention center, mail sometimes does not reach its intended recipient. At Pine Prairie, detained individuals have reported that legal mail has been searched and evidence improperly confiscated as contraband. Delays in sending and receiving are the norm.”); id. ¶ 50 (“SIFI staff has been using the U.S. Postal Service and FedEx to send mail to detained people. SIFI provides pre-stamped or pre-metered envelopes for the recipient to return documents to SIFI. SIFI staff report inconsistent results with receipt of correspondence from people detained at Stewart, while SIFI LaSalle have been successful. Mailings appear to be periodically rejected regardless of the delivery service or the type of postage.”). These types of delays may have serious consequences for Plaintiff’s clients
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that are seeking to be released due to the emergence and spread of COVID-19. Pl.’s Mem. at 17– 18; see Rivera Decl. ¶ 51 (“A one-week delay amid this pandemic has grave consequences for individuals medically vulnerable to COVID-19. To illustrate, in a matter of one week, ICE reported the number of confirmed COVID-19 cases among individuals detained at LaSalle increased from two to twenty.”); id. ¶ 52 (“Delays also generally harm clients’ chances of winning release. One factor an immigration judge considers in a release motion is the applicant’s flight risk. The closer a person’s final individual or merits hearing is, the more of a flight risk she is considered to be.”).
Lastly, Plaintiff alleges that “Defendants have restricted SPLC’s access to the ICE official who oversees their clients’ parole requests and Fraihat custody redeterminations.” Pl.’s Mem. at 18. In particular, Plaintiff provides an example of a lengthy delay involved in a humanitarian parole request on behalf of a medically vulnerable client. Id.; see Rivera Decl. ¶¶ 55–56.
In response, Defendants point out that it requires legal documents be sent by post to ensure confidentiality. Defs.’ Opp’n at 48. However, considering that confidential medical records are sent via fax (which Defendants do not contest), and that Irwin has devised such a system (which Defendants admit), it is hard to understand why some system to assure confidentiality through the fax system could not be devised for the other Facilities. While Defendants point out that legal mail is a low-risk alternative, that does not address Plaintiff’s concerns regarding delays and other difficulties with legal mail at these Facilities.
c. Plaintiff Has Shown a Likelihood of Success on the Merits The Court now turns to whether Plaintiff has demonstrated a likelihood of success with respect to its claim that these restrictions and conditions, taking into account Defendants’ related arguments, are punitive. As previously noted, a civil detainee can prevail by showing that conditions are “objectively unreasonable or excessive relative to the Government’s proffered
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justification.” Moore, 2019 WL 2569659, at *2. Moreover, as part of its analysis, the Court will consider whether the conditions and restrictions have been “employed to achieve objectives that could be accomplished in so many alternative and less harsh methods.” Bell, 441 U.S. at 539 n.20.
To that end, the Court incorporates its discussion above regarding whether in-person legal visitation is likely an alternative and less harsh method of ensuring that detained immigrants have access to counsel in light of COVID-19. As the Court previously noted, in-person legal visitation was, before COVID-19, the primary vehicle through which detained individuals would communicate and exchange documents with their counsel. But in the wake of COVID-19, inperson legal visits are understandably no longer the appropriate default option and cannot reasonably be viewed as a less harsh alternative to remote legal visitation. Defendants’ responses to this development, as the Court explains in more detail below, have been inadequate and insufficient.
To begin with, it must be noted that the emergence and spread of COVID-19 impacts the analysis of whether these conditions are punitive. The Court does not venture an opinion as to whether these conditions and restrictions would, in a world without COVID-19, be punitive. But COVID-19 exists. It is an unprecedented pandemic that poses dangerous risks, especially for those who cannot easily socially distance themselves or maintain recommended hygiene standards, such as Plaintiff’s detained clients in this case. The Court therefore views the parties’ arguments against the backdrop of COVID-19 and the circumstances surrounding it. This includes the above conclusion regarding the non-viability of in-person legal visitation at this point in time. See, e.g., Pimentel-Estrada v. Barr, No. C20-495 RSM-BAT, 2020 WL 2092430, at *17 (W.D. Wash. Apr. 28, 2020) (discussing COVID-19 in context of conditions of confinement claim and rejecting argument that “the COVID-19 outbreak does not alter the conclusion that Petitioner’s detention is
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rationally related to the government’s non-punitive responsibilities and administrative purposes”); Coreas v. Bounds, No. CV TDC-20-0780, 2020 WL 1663133, at *12 (D. Md. Apr. 3, 2020) (discussing how COVID-19 impacts conditions of confinement analysis); Thakker v. Doll, No. 1:20-CV-480, 2020 WL 1671563, at *8 (M.D. Pa. Mar. 31, 2020) (considering emergence and spread of COVID-19, and recognized ways of effectively countering it, in determining that conditions likely amounted to punishment).
In broad strokes, Plaintiff argues that the above-discussed “policies, practices, and omissions concerning legal communications during the COVID-19 pandemic are unnecessarily restrictive.” Pl.’s Mem. at 24. It argues that these restrictions are “excessive relative to any justification that Defendants could conceivably proffer.” Id. at 24–25. It claims that these restrictions fail to “comply with ICE’s very own standards and requirements,” such as on confidential legal communications; that the failure “to ensure that spaces and devices used for legal communications are properly disinfected” and that detained individuals “have adequate access” to PPE is unreasonable; and that these conditions and restrictions are more punitive than “policies on legal communications for individuals in criminal custody” under the Bureau of Prisons COVID19 Action Plan. Id. at 25–26.
Plaintiff’s arguments require a discussion of Defendants’ offered justifications. As noted above, Defendants do not frame their arguments in terms of the substantive due process analysis. Their justifications for the claimed restrictions and conditions, however, may be at least partially discerned from their briefing. First, the purpose underlying the adoption of certain new policies or restrictions appears to primarily be controlling the spread of COVID-19 within the Facilities. See Defs.’ Opp’n at 9–24 (discussing COVID-19 response at Facilities). Plaintiff does not contest that this is a legitimate, non-punitive governmental objective. The Court agrees that Defendants
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have a legitimate, non-punitive interest in minimizing the spread of COVID-19 within the Facilities. However, as Plaintiff does not question the PPE or in-person restrictions, this justification is less relevant to Plaintiff’s arguments.
Defendants also stress certain objectives in the PBNDS, such as ensuring that all detainees have “orderly and fair” access to VTCs and/or telephones: “A facility may neither restrict the number of calls a detainee places to his/her legal representatives, nor limit the duration of such calls by rule or automatic cut-off, unless necessary for security purposes or to maintain orderly and fair access to telephones.” PBNDS 5.6(V)(F)(1) (emphasis added). In other words, they argue that certain conditions, such as Stewart’s daily limit of one hour per attorney–client pairing, are “necessary” to “maintain orderly and fair access to telephones.” Defs.’ Opp’n at 13, 45. Defendants also suggest that certain restrictions, such as on mail and fax exchange, are to ensure confidentiality. Id. at 48. Plaintiff does not contend that such purposes are not legitimate, and the Court agrees that these justifications are generally legitimate and non-punitive.
However, Plaintiff has demonstrated a likelihood of success on the merits that the current conditions and restrictions on remote legal visits and communications through VTCs, legal calls, and document exchanges, taken together, are excessive in relation to those justifications, as COVID-19 makes in-person legal visitation no longer viable or safe and Defendants’ responses have been inadequate and insufficient as to the use of alternatives, including telephones and VTCs.
Most notably, while Defendants describe at length the actions that they claim to have taken in response to COVID-19, see Defs.’ Opp’n at 9–24, they do not claim that they have substantially increased the capacity for remote legal visits or communications despite the increased risks involved with in-person legal visitation. For instance, they note that hours have been somewhat expanded for VTCs, either under certain circumstances or on a regular basis. See Defs.’ Opp’n at
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13 (Stewart) (citing Fourth Washburn Decl. ¶¶ 62, 64); id. at 17 (Irwin) (citing Second Paulk Decl.
¶¶ 27–28); id. at 21 (LaSalle) (citing Rice Decl. ¶¶ 30–31, 34); id. at 23 (Pine Prairie) (citing
Staiger Decl. ¶¶ 29–31). LaSalle also represents that it has increased the VTC rooms available for
legal visits from one to three units,10 Defs.’ Opp’n at 21; Rice Decl. ¶ 30, and both LaSalle and
Pine Prairie represent that they have provided detainees access to tablets to communicate with
legal representatives, Defs.’ Opp’n at 23; Staiger Decl. ¶ 37; Rice Decl. ¶ 39. However, these
actions are not necessarily sufficient and there are still confidentiality issues that arise with the use
of, for example, tablets. Other than aforementioned steps, however, the Facilities do not claim that
they have increased the number of telephones, telephone lines, or VTC rooms.11 Nor do they claim
that they have increased access to remote legal visits and communications through other
technologies.12 These actions, and the lack of action, are not proportionate to the increased demand
10 The other Facilities have similar numbers of VTC devices. Stewart has two sets of VTC equipment “dedicated for use only for attorney visits.” Fourth Washburn Decl. ¶ 61. Irwin has four operational VTC devices used for legal visitation. Musante Decl. ¶ 27. The Court cannot discern from the briefing and declarations how many VTC devices that Pine Prairie has. 11 To be complete, some of the Facilities do provide some information regarding how many telephones that they have. Stewart has “214 detainee telephones in the housing areas, which detainees may use to call counsel.” Defs.’ Opp’n at 14; see Fourth Washburn Decl. ¶ 41. They seemingly also have other telephones that detained individuals may use for legal calls. See Moten Decl. ¶ 32. Defendants thus claim that Stewart has a “detainee-to-phone ratio” of 9.53 detainees per telephone at capacity, and currently has a ratio of 4.95 detainees to telephone. Defs.’ Opp’n at 14; see Fourth Washburn Decl. ¶ 41. Irwin has 89 telephones: “one in the library, forty among the ten open dormitory units, and forty-eight among the sixteen closed cell units.” Defs.’ Opp’n at 19; see Second Paulk Decl. ¶¶ 49–52. Detained individuals also have access to five telephones that can be used for confidential calls with legal counsel. Musante Decl. ¶ 25. Pine Prairie does not appear to give exact telephone numbers, but states that detained individuals have received free minutes to call their counsel. Defs.’ Opp’n at 23; see Staiger Decl. ¶ 38. However, Defendants do not indicate that any capacity has been increased due to COVID-19. And while some of these telephones appear to be not monitored, many also appear to be in public places (such as the dormitories) where attorney–client confidentiality cannot be easily assured. 12 Stewart also explains that it has a purchasable email service at 63 kiosks for detained individuals to use to communicate with their attorneys. Fourth Washburn Decl. ¶¶ 51–54. The cost to send an external email message is “comparable to first-class postage to mail a letter.” Id. ¶ 53. Defendants do not clarify whether this system predates or postdates COVID-19, but the cost of
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for remote legal visitation in the wake of COVID-19. They are, in short, inadequate. The Court does not address here whether that lack of action would be problematic under normal circumstances, or in a pre-COVID-19 world in which remote legal visits and communications may be less necessary. But these are not normal circumstances—the risks associated with COVID-19 render these circumstances exigent. In this situation, when in-person legal visitation is no longer a less harsh alternative, such conditions are likely to be punitive.
The Court also finds that the current conditions and restrictions surrounding existing methods of remote legal communication and visitation are not objectively reasonable and are excessive in relation to the proposed objectives. For example, Defendants appear to represent that the current restrictions and conditions regarding VTCs and telephones are to ensure “orderly and fair” access to the VTCs and telephones. See Defs.’ Opp’n at 13, 45. The Court accepts that, to allow all detained individuals fair and orderly access, there likely must be some restrictions on the number and length of calls. But Defendants have not explained why the current system is the least restrictive one that can achieve that objective. In particular, they do not explain why they have not more than minimally increased the number of VTCs, telephones, or other devices and spaces that detained individuals can use for confidential legal visits and/or communications. Nor do they address in full the other issues experienced by Plaintiff, its staff, and its clients, such as poor VTC or audio quality, delays in scheduling, and cancellations.13 In other words, Defendants do not explain why they cannot devise a system that allows for easier, quicker, and more consistent
postage is another of Plaintiff’s concerns. 13 LaSalle represents that, upon receiving notification of Plaintiff’s complaint regarding VTC quality, it tested its VTC devices again and reported that they are, in Defendants’ words, functioning “appropriately.” Rice Decl. ¶ 38. While this type of testing is helpful, it does not provide on-the-spot assistance for these issues, nor do Defendants claim that they each have clear and consistent procedures for detained individuals and legal representatives to follow when encountering technical issues.
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scheduling of VTCs and legal calls, that attempts to have consistent quality (or make allowances for when quality is not consistent), and that maintains confidentiality during those sessions.
The same is true of Defendants’ offered justification for certain mail and fax restrictions with respect to confidentiality. Defendants even admit that Irwin has allowed faxes for certain documents in the past, but then claim that other Facilities are hesitant to adopt such a system in case there are breaches of confidentiality that may render them liable. See Defs.’ Opp’n at 48. The Court is skeptical that the Facilities cannot create a fax (or email, or other electronic) system that would ensure confidentiality for at least some kinds of documents, especially as they have already used faxes in the past for medical records purposes, and would be free to detained individuals. It also makes little sense that Defendants cannot create systems for receiving and processing mail received that aims to ensure that legal mail is not rejected, is delivered to the proper recipients, and maintains confidentiality. This system could be communicated to Plaintiff’s attorneys, and other legal representatives, to ameliorate the issues raised by Plaintiff.
Moreover, Plaintiff’s other arguments show that there is a likelihood of success on the merits. The Declaration of Dr. Dora Schriro outlines how the Facilities have failed to comply with ICE’s own Detention Standards related to confidentiality, Schriro Decl. ¶¶ 92–100, which supports that these restrictions and conditions are punitive since there are less restrictive alternatives, see, e.g., Torres, 411 F. Supp. 3d at 1065 (“Plaintiffs argue that the conditions at Adelanto are in excess of restrictions in the PBNDS, which offer an example of less restrictive alternative measures.” (citation omitted)). The same declaration opines that “ICE has failed to ensure that the Facilities provide expedient and reliable access to legal calls and video-conferencing services, as well as reliable facilitation of legal document exchange, in violation of its own standards.” Pl.’s Mem. at 25; Schriro Decl. ¶¶ 57–59, 80–90. Defendants’ briefing in response focuses on the possibility of
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in-person legal visitation to ensure confidentiality and access, which the Court found above is not an acceptable alternative at this point in time due to COVID-19.
Because Defendants do not address Plaintiff’s arguments, they also fail to explain how the conditions are less restrictive than those for criminal detainees. Plaintiff, however, argues that even the Federal Bureau of Prisons COVID-19 Action Plan “provides clear instructions for attorneys seeking confidential calls with their clients via a chart listing consolidated legal centers and phone numbers.” Pl.’s Mem. at 26 (citing Fed. Bureau of Prisons, Federal Bureau of Prisons COVID-19 Action Plan, https://www.bop.gov/resources/news/20200313_covid-19.jsp (last updated March 13, 2020)). Defendants do not argue that the current restrictions and conditions surrounding access to counsel are less restrictive than those put forward by BOP in the COVID19 Action Plan. This also supports that these conditions are likely to be punitive.14 See Fraihat, 2020 WL 1932570, at *25 (comparing BOP’s actions to actions taken by ICE detainment facilities to support that conditions were likely punitive).
Defendants also claim that they are taking certain hygiene precautions, such as providing soap and other hygiene products to detained individuals, and some devices are touch-free. See, e.g., Defs.’ Opp’n at 12, 20, 22; First Washburn Decl. ¶ 50; Fourth Washburn Decl. ¶ 72; Second Paulk Decl. ¶¶ 19–20; Paulk Decl. ¶ 6; Musante Decl. ¶ 30; Reaves Decl. ¶ 35; Staiger Decl. ¶¶ 19, 35; Moten Decl. ¶ 37. However, despite these precautions, based on Plaintiff’s claims and Defendants’ submissions it does not appear that Defendants are uniformly ensuring that certain devices such as telephones, or the surrounding spaces such as offices, used for legal calls are cleaned between each use.
14 The Court here does not comment on whether BOP has actually implemented the provisions in the Action Plan. Instead, it considers the Action Plan as an example presented by Plaintiff of standards that contain less restrictive conditions.
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It is unreasonable for Defendants not to take precautions to ensure that spaces and devices used for legal communications are disinfected or provide detained individuals with protective equipment. See, e.g., Fraihat, 2020 WL 1932570, at *25 (“During a pandemic such as this, it is likely punitive for a civil detention administrator to fail to mandate compliance with widely accepted hygiene, protective equipment, and distancing measures until the peak of the pandemic, and to fail to take similar systemwide actions as jails and prisons.”); Jeferson V. G. v. Decker, No. CV 20-3644 (KM), 2020 WL 1873018, at *8 (D.N.J. Apr. 15, 2020) (“Although Respondents have delineated the numerous measures they have undertaken to prevent the spread of COVID-19 in HCCC, those measures are insufficient to protect Petitioner whose asthma puts him at higher risk of severe illness from COVID-19.”); Castillo, 2020 WL 1502864, at *5 (“Civil detainees must be protected by the Government. Petitioners have not been protected. They are not kept at least 6 feet apart from others at all times. They have been put into a situation where they are forced to touch surfaces touched by other detainees, such as with common sinks, toilets and showers. Moreover, the Government cannot deny the fact that the risk of infection in immigration detention facilities— and jails—is particularly high if an asymptomatic guard, or other employee, enters a facility.”). In fact, the CDC Interim Guidance suggests that if facilities “mov[e] to virtual visitation,” they should “clean electronic surfaces regularly” and some objects on a “conclusion of use” basis. See Ctrs. for Disease Control & Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities at 9, 13 (last visited June 17, 2020).
At bottom, Plaintiff’s conditions of confinement claim has a likelihood of success on the merits. The restrictions and conditions that it claims and supports at length, most of which are not clearly contested by Defendants, are unnecessarily restrictive and excessive in light of the current circumstances—namely, COVID-19, which makes in-person legal visitation unsafe and not a less
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harsh alternative to ensure that detained individuals have access to legal counsel. The current restrictions and lack of action relating to remote legal visitation and communications, including VTCs, telephone calls, faxes, and mail, are not proportionate to Defendants’ objectives. See Bell, 441 U.S. at 539 (“[I]f a restriction or condition is not reasonably related to a legitimate goal—if it is arbitrary or purposeless—a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees.”). Moreover, Plaintiff claims—and Defendants fail to contest—that the current conditions relating to remote legal visitation and communications at the Facilities are more restrictive and excessive than those for criminal detainees. Accordingly, Plaintiff has demonstrated a likelihood of success on the merits for its conditions of confinement claim.
2. Plaintiff Has Shown Irreparable Harm Plaintiff has also demonstrated that the claimed conditions pose an irreparable harm to its clients’ rights in the absence of preliminary relief. In the preliminary injunction and temporary restraining order context, both the United States Supreme Court and the D.C. Circuit have emphasized that a movant must show at least some likelihood of irreparable harm in the absence of an injunction. See Winter, 555 U.S. at 22 (holding that plaintiff must “demonstrate that irreparable injury is likely in the absence of an injunction,” and not mere “possibility”); CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995) (concluding that plaintiff must demonstrate “at least ‘some injury’” for a preliminary injunction to issue because “‘the basis of injunctive relief in federal courts has always been irreparable harm’” (first quoting Population Inst. V. McPherson, 797 F.2d 1062, 1078 (D.C. Cir. 1986); then quoting Sampson v. Murray, 415 U.S. 61, 68 (1974))). This is because a preliminary injunction or temporary restraining order “ordinarily is sought to preserve the status quo pending the resolution of the
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underlying litigation . . . a preliminary injunction that would change the status quo is an even more extraordinary remedy.” Abdullah v. Bush, 945 F. Supp. 2d 64, 67 (D.D.C. 2013), aff’d sub nom. Abdullah v. Obama, 753 F.3d 193 (D.C. Cir. 2014) (citations omitted).
To begin with, Plaintiff has sufficiently demonstrated a likelihood of success on the merits for its Fifth Amendment substantive due process claim, and “[i]t has long been established that the loss of constitutional freedoms, ‘for even minimal periods of time, unquestionably constitutes irreparable injury.’” Mills v. Dist. of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion)). Moreover, as detailed above in the discussion of the challenged conditions, Plaintiff points out that the consequences of these conditions and restrictions, such as delays and substantially restricted access to counsel, can cause irreparable injuries related to the proceedings for which Plaintiff’s clients are preparing. This is particularly pressing now, as many of Plaintiff’s clients are seeking release from the Facilities based on the emergence of COVID-19; some of those same clients have medical vulnerabilities that put them at high-risk for severe illness if they contract COVID-19. See Pl.’s Mem. at 28–29; see also, e.g., Rivera Decl. ¶ 24 (discussing harm related to delays in legal calls with “medically fragile” patients seeking release due to COVID-19); id. ¶ 52 (“Delays also generally harm clients’ chances of winning release. One factor an immigration judge considers in a release motion is the applicant’s flight risk. The closer a person’s final individual or merits hearing is, the more of a flight risk she is considered to be. By obstructing a client’s access to her attorney and therefore delaying the completion of her release application, the facilities also reduce her chances of succeeding.”); id. ¶ 56 (“This problem will be exacerbated as attorneys prepare to submit custody redetermination requests in light of Fraihat, which requires ICE to identify and consider for release all medically vulnerable individuals in custody Case No. 5:19-cv-01546-JGBSHK (C.D. Cal. Apr.
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20, 2020), ECF No. 13. Fraihat also gives all subclass members in ICE custody the right to submit a custody redetermination request. Id.”). Accordingly, Plaintiff has shown that the conditions and restrictions here pose irreparable harm to its clients’ in the absence of preliminary injunctive relief.
3. The Balance of Hardships and the Public Interest Weigh in Plaintiff’s Favor The Court now considers the final factors to be considered in granting a temporary restraining order—the balance of the equities and the public interest. In this case, where the Facilities are government entities and parties to the suit, the harm to the Facilities and the public interest merge and “are one and the same, because the government’s interest is the public interest.” Pursuing America’s Greatness v. FEC, 831 F.3d 500, 511 (D.C. Cir. 2016) (emphasis in original). The Court agrees with Plaintiff that the public interest weighs in favor of granting injunctive relief. First, Plaintiff has established a likelihood that it will succeed on the merits of its substantive due process claim. And “[i]t is always in the public interest to prevent the violation of a party’s constitutional rights.” Simms v. Dist. of Columbia, 872 F. Supp. 2d 90, 105 (D.D.C. 2012) (internal quotation marks omitted); see also Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (stating same). Moreover, the injunctive relief granted here also touches on issues of hygiene in these Facilities, which seek to lessen the risk that Plaintiff’s clients in these Facilities contract COVID-19 and become seriously ill. The relief granted also aims to allow Plaintiff’s clients access to counsel so that they may seek release due to COVID-19 as appropriate. This too is in the public interest. See Fraihat, 2020 WL 1932570, at *28 (“[T]here can be no public interest in exposing vulnerable persons to increased risks of severe illness and death.”). Lastly, the Court finds that the relief to be granted, which is described in more detail below, does not impose an undue burden on the Facilities. The Court begins by noting that the D.C. Circuit “has rejected any distinction between a mandatory and prohibitory injunction.” League of
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Women Voters of United States v. Newby, 838 F.3d 1, 7 (D.C. Cir. 2016). Furthermore, Defendants have not objected to, and have in fact expressed a willingness to adopt, some of the procedures and processes that the Court requires below. See, e.g., Defs.’ Opp’n at 14, 17, 19, 20–21, 22, 46; Fourth Washburn Decl. ¶¶ 56–57; Musante Decl. ¶¶ 28–29, 38, 59–62; Staiger Decl. ¶ 36. Other portions of the relief granted below are no more than what is required by the PBNDS, such as for the attorney–client confidentiality of legal calls. See PBNDS 5.6(V)(B); PBNDS 5.6(V)(F)(2).
Defendants frame Plaintiff’s request as one for “this Court to broadly interfere in and assume oversight over the immigration-detention system.” Defs.’ Opp’n at 5; see also id. at 43 (“Without exception, each one of Plaintiff’s preliminary injunction requests requires close supervision of each Facility by the Court.”). The Court recognizes the public interest in allowing the government discretion to carry out its authorized functions. However, “[c]ourts may not allow constitutional violations to continue simply because a remedy would involve intrusion into the realm of prison administration.” Brown v. Plata, 563 U.S. 493, 511 (2011). The D.C. Circuit has previously authorized injunctive relief against detention facilities, even where the injunctive relief imposes a particular set of conditions. See Campbell v. McGruder, 580 F.2d 521, 551–52 (D.C. Cir. 1978) (finding specific conditions not unduly intrusive because there was “no alternative if the rights of pretrial detainees are to be respected”). As one court has put it, “[t]he global COVID19 pandemic and the ensuing public health crisis now faced by American society have forced us all to find new ways of operating,” including to “prevent virus transmission to the greatest extent possible. We expect no less of ICE.” Thakker, 2020 WL 1671563, at *8.
Accordingly, the Court finds that the balance of equities and the public interest weigh in favor of granting injunctive relief. For the foregoing reasons, Plaintiff has a likelihood of success on the merits, Plaintiff has shown there is imminent irreparable harm absent preliminary relief,
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and the balance of hardships and the public interest all weigh in favor of issuing a temporary restraining order. D. Specific Relief Granted
While the Court has concluded that, on the present record, Plaintiff is entitled to some injunctive relief on behalf of its clients, the Court is not granting the totality of the relief that Plaintiff has requested.15 See Pl.’s Mot. at 1–3 (listing relief requested). The Court grants the following relief:
First, in light of the COVID-19 pandemic, which has resulted in in-person legal visits becoming unsafe and not an acceptable alternative, Defendants shall comply with the optimal requirements in PBNDS 5.6, Telephone Access. This includes ensuring that there is, at minimum, one telephone (or VTC console) for every ten detained individuals, see PBNDS 5.6(V)(A)(1), and that calls to legal representatives such as Plaintiff are direct or free, see PBNDS 5.6(V)(E).
Second, Defendants shall ensure that their telephones, VTC systems, and other technology used to access legal representatives (e.g., tablets) are in proper working order. See PBNDS 5.6(V)(A)(3)–(4). Defendants shall implement a clear process in writing for reporting and troubleshooting issues, such as connection or quality issues, with telephone calls or VTCs. As part of that process, Defendants shall designate point(s) of contact at each Facility to assist with or relay information regarding issues with telephone calls and VTCs. The written process and point(s) of contact shall be shared with internal staff, detained individuals, and legal representatives. See PBNDS 5.6(V)(A)(3).
15 The Court finds Plaintiff’s request in its Motion that “Defendants implement a system that requires Deportation Officers to provide immigrants and their attorneys confirmation of receipt of any parole request or custody redetermination requests within 24 hours and to provide a final determination within seven (7) days,” Pl.’s Mot. at 2, to be outside the scope of the issues raised by Plaintiff’s claims in this case and the instant Motion.
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Third, Defendants shall ensure that attorney–client confidentiality can be maintained on all telephone calls and VTCs with attorneys and legal staff. Most importantly, telephone calls and VTCs should not be monitored and should not take place in an area where staff or other detained individuals can overhear attorney–client conversations. See PBNDS 5.6(V)(B); PBNDS 5.6(V)(F)(2). The Court will not dictate how Defendants comply with this requirement, as the Court recognizes that each Facility has its own circumstances, but it notes that PBNDS 5.6(V)(F)(2) suggests several alternatives for the Facilities to consider, including telephones with sufficiently spaced privacy panels, telephones isolated from areas where conversations may be overheard (e.g., areas where other detained individuals may be waiting to use the telephone), and allowing use of telephones in offices.
Fourth, Defendants shall devise and implement clear internal and external procedures, in writing, for scheduling and accessing telephone calls and VTCs so that Facility staff, detained individuals, and legal representatives such as Plaintiff and its legal staff have access to clear information regarding these procedures. These written procedures shall include information regarding the point(s) of contact at each Facility for those responsible for scheduling calls/VTCs and maintaining the schedule. Defendants shall provide these written procedures to internal staff, detained individuals, and externally to legal representatives and free legal service providers. These written procedures shall provide requests be responded to, and the requested calls and VTCs, be put on the schedule within 48 hours of the request.
Fifth, Defendants shall comply with the CDC Interim Guidance, especially with respect to the cleaning of devices and spaces used for remote legal visits. In particular, Defendants shall clean surfaces and objects involved in calls and VTCs after each use. See Ctrs. for Disease Control & Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in
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Correctional and Detention Facilities at 9. Sixth, Defendants shall create and implement procedures, in writing, through which
detained individuals and legal representatives may exchange confidential documents, such as to obtain signatures, via electronic means (that is, not by “snail mail”). The Court will not order what form this system shall take, but in light of the COVID-19 pandemic and the fact that many detained individuals are seeking to be released in response to the pandemic, both the delays claimed by Plaintiff and those inherent in the legal mail process present problematic conditions. Defendants shall ensure that attorney–client confidentiality is maintained with these written procedures. Defendants shall include in the written procedures the point(s) of contact designated for questions or issues with the devised processes. Defendants shall provide these written procedures to Facility staff, detained individuals, and to legal representatives and free legal service providers.
Seventh, Defendants shall provide training to staff at the Facilities regarding the procedures for scheduling remote legal visits through telephone calls and VTCs implemented by the Facilities; on how to ensure attorney–client confidentiality for remote legal visits and communications in accordance with the circumstances and procedures at the respective Facilities; and on the document exchange systems implemented by the Facilities. Staff members who are responsible for escorting detained individuals to VTCs or telephone calls, or who monitor VTCs or telephone calls, should also receive training on who to contact in the event of technical issues arising.
The Court shall require Defendants to file a notice with the Court with either a Certificate of Compliance certifying under oath that the Defendant Facilities are in compliance with the Court’s Order or a detailed notice explaining steps taken so far and the current state of compliance with the Court’s Order at each Facility.
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V. CONCLUSION For the foregoing reasons, Plaintiff’s Motion for a Temporary Restraining Order, ECF No. 105, is GRANTED IN PART and DENIED IN PART. Plaintiff has demonstrated a likelihood of success on the merits, irreparable harm absent preliminary relief, and that the balance of the hardships and the public interest weigh in its favor. Accordingly, Plaintiff is entitled to the injunctive relief detailed above. An appropriate Order accompanies this Memorandum Opinion.

Date: June 17, 2020

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge

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 Case 1:18-cv-00760-CKK-RMM Document 123 Filed 06/17/20 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SOUTHERN POVERTY LAW CENTER, Plaintiff,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants.

Civil Action No. 18-760 (CKK)

ORDER (June 17, 2020) For the reasons set forth in the accompanying Memorandum Opinion, it is, this 17th day of June 2020, hereby ORDERED that Plaintiff’s Motion for a Temporary Restraining Order, ECF No. 105, is GRANTED IN PART and DENIED IN PART. Specifically, the Court ORDERS the following relief: First, in light of the COVID-19 pandemic, which has resulted in in-person legal visits becoming unsafe and not an acceptable alternative, Defendants shall comply with the optimal requirements in PBNDS 5.6, Telephone Access. This includes ensuring that there is, at minimum, one telephone (or VTC console) for every ten detained individuals, see PBNDS 5.6(V)(A)(1), and that calls to legal representatives such as Plaintiff are direct or free, see PBNDS 5.6(V)(E). Second, Defendants shall ensure that their telephones, VTC systems, and other technology used to access legal representatives (e.g., tablets) are in proper working order. See PBNDS 5.6(V)(A)(3)–(4). Defendants shall implement a clear process in writing for reporting and troubleshooting issues, such as connection or quality issues, with telephone calls or VTCs. As part of that process, Defendants shall designate point(s) of contact at each Facility to assist with or
1

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relay information regarding issues with telephone calls and VTCs. The written process and point(s) of contact shall be shared with internal staff, detained individuals, and legal representatives. See PBNDS 5.6(V)(A)(3).
Third, Defendants shall ensure that attorney–client confidentiality can be maintained on all telephone calls and VTCs with attorneys and legal staff. Most importantly, telephone calls and VTCs should not be monitored and should not take place in an area where staff or other detained individuals can overhear attorney–client conversations. See PBNDS 5.6(V)(B); PBNDS 5.6(V)(F)(2). The Court will not dictate how Defendants comply with this requirement, as the Court recognizes that each Facility has its own circumstances, but it notes that PBNDS 5.6(V)(F)(2) suggests several alternatives for the Facilities to consider, including telephones with sufficiently spaced privacy panels, telephones isolated from areas where conversations may be overheard (e.g., areas where other detained individuals may be waiting to use the telephone), and allowing use of telephones in offices.
Fourth, Defendants shall devise and implement clear internal and external procedures, in writing, for scheduling and accessing telephone calls and VTCs so that Facility staff, detained individuals, and legal representatives such as Plaintiff and its legal staff have access to clear information regarding these procedures. These written procedures shall include information regarding the point(s) of contact at each Facility for those responsible for scheduling calls/VTCs and maintaining the schedule. Defendants shall provide these written procedures to internal staff, detained individuals, and externally to legal representatives and free legal service providers. These written procedures shall provide requests be responded to, and the requested calls and VTCs, be put on the schedule within 48 hours of the request.
Fifth, Defendants shall comply with the CDC Interim Guidance, especially with respect to
2

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the cleaning of devices and spaces used for remote legal visits. In particular, Defendants shall clean surfaces and objects involved in calls and VTCs after each use. See Ctrs. for Disease Control & Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities at 9.
Sixth, Defendants shall create and implement procedures, in writing, through which detained individuals and legal representatives may exchange confidential documents, such as to obtain signatures, via electronic means (that is, not by “snail mail”). The Court will not order what form this system shall take, but in light of the COVID-19 pandemic and the fact that many detained individuals are seeking to be released in response to the pandemic, both the delays claimed by Plaintiff and those inherent in the legal mail process present problematic conditions. Defendants shall ensure that attorney–client confidentiality is maintained with these written procedures. Defendants shall include in the written procedures the point(s) of contact designated for questions or issues with the devised processes. Defendants shall provide these written procedures to Facility staff, detained individuals, and to legal representatives and free legal service providers.
Seventh, Defendants shall provide training to staff at the Facilities regarding the procedures for scheduling remote legal visits through telephone calls and VTCs implemented by the Facilities; on how to ensure attorney–client confidentiality for remote legal visits and communications in accordance with the circumstances and procedures at the respective Facilities; and on the document exchange systems implemented by the Facilities. Staff members who are responsible for escorting detained individuals to VTCs or telephone calls, or who monitor VTCs or telephone calls, should also receive training on who to contact in the event of technical issues arising.
The Court shall require Defendants to file a notice with the Court with either a Certificate of Compliance certifying under oath that the Defendant Facilities are in compliance with the
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Court’s Order or a detailed notice explaining steps taken so far and the current state of compliance with the Court’s Order at each Facility.
Furthermore, the Court, in its discretion, waives a security bond for issuance of this Temporary Restraining Order. See Fed. R. Civ. P. 65(c); Citizen’s Alert Regarding Env’t v. U.S. Dep’t of Justice, No. CIV. A. 95-1702 (GK), 1995 WL 748246, at *12 (D.D.C. Dec. 8, 1995) (“The amount of security required is a matter for the discretion of the trial court; it may elect to require no security at all.” (internal quotation marks omitted) (quoting Corrigan Dispatch Co. v. Case Guzman, S.A., 569 F.2d 300, 303 (5th Cir. 1978)); see also Complete Angler, LLC v. City of Clearwater, Fla., 607 F. Supp. 2d 1326, 1335 (M.D. Fla. 2009) (“Waiving the bond requirement is particularly appropriate where a plaintiff alleges the infringement of a fundamental constitutional right.”).
SO ORDERED.

Date: June 17, 2020

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge

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 Case 1:18-cv-00760-CKK-RMM Document 105 Filed 05/07/20 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SOUTHERN POVERTY LAW CENTER, Plaintiff,
v. U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants.

Civil Action No. 18-0760 (CKK)

PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER Pursuant to Federal Rule of Civil Procedure 65(b), Plaintiff Southern Poverty Law Center (“SPLC”) respectfully moves this Court for the entry of a temporary restraining order directing Defendants to remove access barriers and remedy the dangerously punitive conditions at the four detention facilities at issue in this case. Specifically, SPLC respectfully moves this court to issue an order providing the following relief at Pine Prairie ICE Processing Center, Irwin County Detention Center, and Stewart Detention Center: 1. That Defendants provide a ratio of at least one telephone or video telecommunication (“VTC”) console per ten detained persons in each facility, as required by PBNDS 5.6(V)(A)(1). 2. That Defendants provide privacy and confidentiality for telephone and VTC communications between detained persons and their attorneys (including attorney legal staff and their agents), as required by PBNDS 5.6(V)(F)(2).

Case 1:18-cv-00760-CKK-RMM Document 105 Filed 05/07/20 Page 2 of 4
3. That Defendants refrain from limiting the number and duration of legal phone or VTC calls between detained persons and attorneys (or their legal staff and agents), as required by PBNDS 5.6(V)(F)(1).
4. That Defendants make all legal telephone calls from detained persons free of charge, as required by PBNDS 5.6(V)(E).
5. That Defendants maintain their phone and VTC systems in proper working order, as required by PBNDS(V)(A)(3)–(4).
6. That Defendants designate persons authorized as points of contact at each facility to relay any issues with scheduling VTC or legal calls or to address issues concerning the quality and confidentiality of those call.
7. That Defendants create, implement, and advertise a process by which attorneys and detained immigrants may schedule confidential telephone calls and VTC within 24 hours of the request, to take place between 8:00 a.m. and 8:00 p.m. Further, SPLC respectfully moves this court to issue an order providing the following relief
at all four detention facilities at issue in this case, LaSalle ICE Processing Center, Pine Prairie ICE Processing Center, Irwin County Detention Center, and Stewart Detention Center:
1. That Defendants implement a system that requires Deportation Officers to provide immigrants and their attorneys confirmation of receipt of any parole request or custody redetermination requests within 24 hours and to provide a final determination within seven (7) days.
2. That Defendants create, implement, and advertise a process by which attorneys and detained immigrants may exchange confidential documents electronically, whether via email or fax. 2

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3. That Defendants advertise and maintain a schedule for cleaning the shared telephones, video teleconference rooms, law library, and library.

4. That Defendants provide persons detained with sufficient gloves, masks, as well as antibacterial wipes and hand sanitizer, such that immigrants may safely access counsel through VTC or legal calls without further risk of exposure to the virus.

5. That All of the above relief shall be made available to detained immigrants who are quarantined.

6. Any other such relief as the Court deems just and proper.

In support of this Motion, Plaintiff submits the attached Memorandum of Points and

Authorities in Support as well as the attached Declarations. As set forth more fully in the

Memorandum of Points and Authorities, SPLC is substantially likely to succeed on the merits of

its clients’ Fifth Amendment claims. SPLC’s clients, and others seeking but obstructed from

obtaining SPLC’s services, will suffer irreparable harm in the absence of emergency relief. The

balance of equities and the public interest favor restraining Defendants from violating SPLC’s

clients’ constitutional rights.

Dated: May 7, 2020

Respectfully submitted,

/s/ Shalini Goel Agarwal Shalini Goel Agarwal (Fla. Bar No. 90843)* Southern Poverty Law Center 106 East College Avenue, Suite 1010 Tallahassee, Florida 32302 Tel: (850) 521-3024 shalini.agarwal@splcenter.org
/s/ Lisa Graybill Lisa Graybill (Tx. Bar No. 24054454)* Jared Davidson (La. Bar No. 37093)* Conor Gaffney (La. Bar No. 38225)* Southern Poverty Law Center

/s/ William E. Dorris William E. Dorris (Ga. Bar No. 225987)* Susan W. Pangborn (Ga Bar. No. 735027)* Jeffrey Fisher (Ga. Bar No. 981575)* Kilpatrick Townsend & Stockton LLP 1100 Peachtree Street NE, Suite 2800 Atlanta, GA 30309 (404) 815-6104 bdorris@kilpatricktownsend.com spangborn@kilpatricktownsend.com jfisher@kilpatricktownsend.com

3

Case 1:18-cv-00760-CKK-RMM Document 105 Filed 05/07/20 Page 4 of 4

201 St. Charles Avenue, Suite 2000 New Orleans, LA 70170 (504) 486-8982 lisa.graybill@splcenter.org jared.davidson@splcenter.org conor.gaffney@splcenter.org

/s/ John T. Bergin John T. Bergin (DC Bar #448975) Kilpatrick Townsend & Stockton LLP 607 14th Street NW, Suite 900 Washington, DC 20005 (202) 481-9942 jbergin@kilpatricktownsend.com
*Admitted Pro Hac Vice

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Case 1:18-cv-00760-CKK-RMM Document 105-1 Filed 05/07/20 Page 1 of 40

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SOUTHERN POVERTY LAW CENTER, Plaintiff,
v. U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants.

Civil Action No. 18-0760 (CKK)

PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR A TEMPORARY RESTRAINING ORDER

Shalini Goel Agarwal (Fla. Bar No. 90843) Southern Poverty Law Center 106 East College Avenue, Suite 1010 Tallahassee, Florida 32302 Tel: (850) 521-3024
Lisa Graybill (Tx. Bar No. 24054454) Jared Davidson (La. Bar No. 37093) Conor Gaffney (La. Bar No. 38225) Southern Poverty Law Center 201 St. Charles Avenue, Suite 2000 New Orleans, LA 70170 (504) 486-8982

William E. Dorris (Ga. Bar No. 225987) Susan W. Pangborn (Ga Bar. No. 735027) Jeffrey Fisher (Ga. Bar No. 981575) Kilpatrick Townsend & Stockton LLP 1100 Peachtree Street NE, Suite 2800 Atlanta, GA 30309 (404) 815-6104
John T. Bergin (DC Bar No. 448975) Kilpatrick Townsend & Stockton LLP 607 14th Street NW, Suite 900 Washington, DC 20005 (202) 481-9942

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TABLE OF CONTENTS Page
I. Introduction............................................................................................................................. 1 II. Statement of Facts................................................................................................................... 4
A. SPLC continues to provide representation for detained persons at the Facilities during the COVID-19 pandemic, and Defendants are failing to adequately accommodate necessary remote legal communications. ..................... 4
B. ICE has restricted in-person legal visitation in response to COVID-19. ............... 8 C. ICE has imposed additional restrictions on remote legal visitation..................... 10 D. Restrictions on legal mail and document exchange. ............................................ 16 III. Legal Standard ...................................................................................................................... 18 IV. Argument .............................................................................................................................. 19 A. SPLC has a substantial likelihood of succeeding on the merits of its
clients’ Fifth Amendment access claims.............................................................. 19 B. SPLC has a substantial likelihood of succeeding on the merits of its
clients’ substantive due process claims................................................................ 24 C. Defendants’ violation of SPLC’s clients’ constitutional rights causes
irreparable harm. .................................................................................................. 28 D. The balance of equities and the public interest weigh in favor of
restraining Defendants from violating SPLC’s clients’ constitutional rights. ................................................................................................................... 30 E. The Court should waive a security bond for this application. ............................. 32 F. The relief sought is tailored to the access barriers created by Defendants’ COVID-19 access restrictions.............................................................................. 33 V. Conclusion ............................................................................................................................ 35
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TABLE OF AUTHORITIES

Page(s)

Cases

Arroyo v. U.S. Dep’t of Homeland Sec., No. 8:19-CV-815, 2019 WL 2912848 (C.D. Cal. June 20, 2019) ............................................ 20

Banks v. Booth, No. 1:20-CV-849, 2020 WL 1914896 (D.D.C. Apr. 19, 2020)...................................... 6, 24, 34

Basank v. Decker, No. 20-CV-2518, 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020) ............................................. 34

Bell v. Wolfish, 441 U.S. 520 (1979).................................................................................................................. 24

Biwot v. Gonzales, 403 F.3d 1094 (9th Cir. 2005) .................................................................................................. 30

Castillo v. Nielsen, No. 5:18-CV-01317, 2018 WL 6131172 (C.D. Cal. June 21, 2018) ........................................ 22

Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 (D.C. Cir. 2006) .................................................................................................. 28

Citizen's Alert Regarding Env’t v. U.S. Dep't of Justice, No. 95-CV-1702, 1995 WL 748246 (D.D.C. Dec. 8, 1995)..................................................... 32

Complete Angler, LLC v. City of Clearwater, Fla., 607 F. Supp. 2d 1326 (M.D. Fla. 2009).................................................................................... 32

Council on Am.-Islamic Relations v. Gaubatz, 667 F. Supp. 2d 67 (D.D.C. 2009) ...................................................................................... 18, 31

Dada v. Witte, No. 1:20-CV-458 (W.D. La. Apr. 30, 2020) ............................................................................ 25

Dakane v. U.S. Att’y Gen., 399 F.3d 1269 (11th Cir. 2005) ................................................................................................ 19

Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288 (D.C. Cir. 2009) ................................................................................................ 19

Doe v. McAleenan, 415 F. Supp. 3d 971 (S.D. Cal. 2019)................................................................................. 29, 31

Fed. Defs of New York, Inc. v. Fed. Bureau of Prisons, 416 F. Supp. 3d 249 (E.D.N.Y. 2019) ...................................................................................... 29

Fraihat v. U.S. Immigration & Customs Enf’t, No. 5:19-CV-1546, 2020 WL 1932570 (C.D. Cal. Apr. 20, 2020) .......................... 6, 25, 27, 34

Gordon v. Holder, 721 F.3d 638 (D.C. Cir. 2013) .................................................................................................. 28

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Innovation Law Lab v. Nielsen, 310 F. Supp. 3d 1150 (D. Or. 2018) ....................................................................... 20, 22, 29, 34
Johnson ex rel. Johnson v. Brelje, 701 F.2d 1201 (7th Cir. 1983) .................................................................................................. 22
Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004) .............................................................................................. 24, 26
Kingman Park Civic Ass’n v. Gray, 956 F. Supp. 2d 230 (D.D.C. 2013) .......................................................................................... 19
Louis v. Meissner, 530 F. Supp. 924 (S.D. Fla. 1981) ............................................................................................ 22
Mays v. Dart, No. 1:20-CV-2134 (N.D. Ill. Apr. 9, 2020) .............................................................................. 34
McClendon v. City of Albuquerque, 272 F. Supp. 2d 1250 (D.N.M. 2003) ....................................................................................... 34
Mills v. District of Columbia, 571 F.3d 1304 (D.C. Cir. 2009) ................................................................................................ 28
Nunez v. Boldin, 537 F. Supp. 578 (S.D. Tex. 1982) ........................................................................................... 21
Orantes-Hernandez v. Meese, 685 F. Supp. 1488 (C.D. Cal. 1988) ................................................................................... 19, 22
Ozoanya v. Reno, 968 F. Supp. 1 (D.D.C. 1997) ................................................................................................... 19
Procunier v. Martinez, 416 U.S. 396 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989)........................................................................................................................................ 20
Pursuing Am.’s Greatness v. FEC, 831 F.3d 500 (D.C. Cir. 2016) .................................................................................................. 30
R.I.L-R v. Johnson, 80 F. Supp. 3d 164 (D.D.C. 2015) ............................................................................................ 24
Reno v. Flores, 507 U.S. 292 (1993).................................................................................................................. 19
Simms v. District of Columbia, 872 F. Supp. 2d 90 (D.D.C. 2012) ...................................................................................... 31, 33
Smith v. Bd. of Election Comm'rs for City of Chicago, 591 F. Supp. 70 (N.D. Ill. 1984) ............................................................................................... 32
Torres v. U.S. Dep’t of Homeland Sec., No. 5:18-CV-2604 (C.D. Cal. Apr. 11, 2010), ECF No. 144 ............................................ passim
United States v. Moore, No. 1:18-CR-198, 2019 WL 2569659 (D.D.C. June 21, 2019)................................................ 24
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Upshaw v. Alameda Cty., 377 F. Supp. 3d 1027 (N.D. Cal. 2019) .................................................................................... 31
Valentine v. Beyer, 850 F.2d 951 (3d Cir. 1988) ..................................................................................................... 29
Youngberg v. Romeo, 457 U.S. 307 (1982).................................................................................................................. 24
Other Authorities Ctrs. for Disease Control & Prevention, Cases in the U.S.,
https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last visited May 6, 2020) ....................................................................................................................................... 5 Ctrs. for Disease Control & Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidance-correctional-detention.pdf (last visited May 6, 2020) ............................................................................................... 6, 22, 26 Federal Bureau of Prisons COVID-19 Action Plan, https://www.bop.gov/resources/news/20200313_covid-19.jsp (last visited May 6, 2020) ...... 26 ICE Guidance on Coronavirus, https://www.ice.gov/coronavirus (last visited May 6, 2020) ....... 8 Nat’l Immigrant Justice Ctr, ICE Offices Involved in Detention Center Inspections, https://immigrantjustice.org/sites/immigrantjustice.org/files/images/T%26HR%20DHS%20flo w%20chart%20linked%20version2.pdf ................................................................................... 32 Nebraska Dep’t of Health & Human Servs. v. Dep’t of Health & Human Servs., 435 F.3d 326 (D.C. Cir. 2006) .................................................................................................. 33 PBNDS 5.6(V)(A)(1) .............................................................................................................. 31, 32 Strategies to Optimize the Supply of PPE and Equipment, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/hcp/ppe-strategy/index.html (last visited May 5, 2020) ................................................................................................................... 9 World Health Org., Situation Report 106 (May 5, 2020), https://www.who.int/docs/defaultsource/coronaviruse/situation-reports/20200505covid-19-sitrep-106.pdf?sfvrsn=47090f63_2. 5 Rules Federal Rule of Civil Procedure 65(c) .......................................................................................... 32
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I. Introduction The COVID-19 pandemic has changed nearly every aspect of life in the United States,
and that includes forcing unprecedented changes on the legal system. Instead of meeting in person, attorneys now consult with clients over the phone or via video-teleconference (“VTC”). Deposition and trial testimony are taken by VTC, and judges conduct trials in courtrooms empty except for the judge and a video monitor. These actions preserve access to courts and counsel as COVID-19 has made it too dangerous for client consultations, attorney meetings, and judicial proceedings to occur in person. Defendants’ immigration detention facilities, however, have refused to make accommodations to ensure safe, constitutionally sufficient, and reliable access to counsel during this pandemic. Plaintiff the Southern Poverty Law Center (“SPLC”) therefore seeks a temporary restraining order requiring Defendants to remove barriers that unreasonably limit access to counsel during the COVID-19 pandemic at four detention facilities.
Defendants, the Department of Homeland Security (“DHS”), Immigrations and Customs Enforcements (“ICE”), and various DHS and ICE officials, are responsible for the approximately 30,000 immigrants detained in the United States on any given day, including those served by SPLC’s Southeast Immigrant Freedom Initiative (“SIFI”) at four detention facilities in the rural Southeastern United States.1 SPLC initiated this litigation over two years ago to challenge the constitutionality of Defendants’ failure to provide access to counsel and courts to detained immigrants. SPLC alleged that Defendants failed to ensure constitutionally sufficient access to confidential legal calls and VTC, citing deficiencies in confidentiality, time limitations, access, and reliability.
1 While some of the facilities are run by private groups such as “CoreCivic” and “GEO Group,” ICE is the ultimate custodial entity with a nondelegable legal responsibility for ensuring that it and its vendors/contractors comply with the Constitution and applicable regulations.
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COVID-19 has foreseeably exacerbated these failures even as detained immigrants’ need to consult with counsel via telephone or VTC has exponentially increased. While non-detained immigration courts have halted proceedings, detained courts have not, and the current administration’s aggressive removal policy has continued. Detained immigrants, facing continued removal proceedings and the terror of being trapped in prisons as COVID-19 sweeps through, are desperate to speak with counsel about their cases, the need to litigate to improve conditions inside, and the possibility of release through bond, parole, habeas proceedings or other means.
Yet, as the acute need for access to counsel has grown, already inadequate access has further diminished. Defendants limit in-person access to counsel, require attorneys to provide their own personal protective equipment (“PPE”) despite the near impossibility of procuring PPE in the rural South, fail to provide PPE to detained individuals, and fail to adequately clean and disinfect visitation rooms between visits or telephone and VTC equipment between calls. At the same time, Defendants have failed to implement necessary procedures to expand capacity for remote legal visitation through telephone and video calls or to facilitate the exchange of documents remotely. A federal court has already recognized that Defendants’ failures to accommodate legal communications during the COVID-19 pandemic are more than likely unconstitutional and entered a temporary restraining order requiring Defendants to implement accommodations to ensure sufficient access to counsel at a detention facility in California. See Min. Order, Torres v. U.S. Dep’t of Homeland Sec., No. 5:18-CV-2604 (C.D. Cal. Apr. 11, 2010), ECF No. 144. But Defendants continue to refuse to make necessary—and life-saving— accommodations for legal communications throughout the country, including those SIFI serves.
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SPLC seeks narrow relief. It does not seek any modifications to the public health measures at the facilities related to COVID-19, the release of any detained person, or the reinstitution of unprotected in-person visitation at the facility. Rather, SPLC requests commonsense accommodations to ensure constitutionally sufficient access to counsel, including increasing the number of VTC consoles, facilitating the scheduling of VTC calls, enjoining limitations on the number and duration of VTC calls, requiring Defendants to make all legal telephone calls from detained persons free of charge, ensuring that detained immigrants can exchange confidential documents with counsel electronically, and mandating that Defendants disinfect the shared telephone and VTC rooms and provide detained persons with personal protective equipment to ensure that they can communicate with counsel without risking exposure to the virus.
As detailed below, SPLC is likely to succeed on the merits of its claims that Defendants are violating its clients’ Fifth Amendment rights to access counsel and to substantive due process. These constitutional violations constitute irreparable harm—never more so than now in the face of COVID-19, as clients without access to counsel can neither adequately fight their removal cases from detention nor seek release from detention to avoid COVID-19 infection. The balance of equities and the public interest tip sharply in favor of SPLC’s clients because it is in both the government’s and the public’s interest to ensure protection of the constitutional rights of people in Defendants’ custody.
Accordingly, and for all the reasons set forth below, this Court should grant Plaintiff’s motion and enter a temporary restraining order enjoining Defendants from unreasonably limiting access to counsel during the COVID-19 pandemic and failing to ensure the safety of detained persons during legal communications.
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II. Statement of Facts A. SPLC continues to provide representation for detained persons at the Facilities during the COVID-19 pandemic, and Defendants are failing to adequately accommodate necessary remote legal communications.
The Southern Poverty Law Center established SIFI in April 2017 to provide pro bono representation to individuals in ICE custody at facilities with some of the lowest representation rates in the country: LaSalle ICE Processing Center (“LaSalle”) in Jena, Louisiana; the Pine Prairie ICE Processing Center (“Pine Prairie”) in Pine Prairie, Louisiana; the Irwin County Detention Center (“ICDC” or “Irwin”) in Ocilla, Georgia; and the Stewart Detention Center (“Stewart”) in Lumpkin, Georgia (hereinafter referenced collectively as “the Facilities”). Since SIFI’s launch, SIFI attorneys and their detained clients have experienced repeated and substantial barriers to meaningfully and reliably communicating with one another. After efforts to resolve the problems without court intervention failed, SPLC filed the underlying litigation over two years ago in April 2018.
Shortly thereafter, SPLC filed a request for preliminary injunction to resolve urgent access issues at LaSalle and reached a mediated agreement (“LaSalle Agreement”) with Defendants in August 2018. After this Court adjudicated Defendants’ motion to sever and transfer, Plaintiff amended its complaint and the parties commenced discovery. Defendants made some changes at LaSalle as a result of the LaSalle Agreement, which focused on the need for additional legal visitation meeting space and remote interpretation services for in-person meetings at LaSalle. Agarwal Decl. ¶ 3. Defendants’ noncompliance with the agreement is an ongoing issue, and has contributed to the present threat of irreparable harm to SPLC’s clients. See Agarwal Decl. ¶¶ 5–10; Notices of Noncompliance, Exs. A, C, E, and G to Agarwal Decl. Further, the LaSalle Agreement is limited in scope and does not address crucial and emergent issues that have detrimentally impacted SIFI’s clients during the COVID-19 pandemic, such as
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the failure to provide a method to facilitate remote confidential document exchange (e.g., via email or fax) and ICE’s failure to ensure that spaces and technologies used for remote legal communications are properly disinfected.2 These issues are described in greater detail below.
SPLC now seeks emergency relief because, although the circumstances for individuals detained at the Facilities and their attorneys have deteriorated significantly in light of the COVID-19 pandemic, Defendants continue to refuse to remediate barriers to legal communications during the pandemic. As of the date of filing, 3.5 million individuals have been infected worldwide, including 1.15 million people in the United States, of whom 61,000 have died. World Health Org., Situation Report 106 (May 5, 2020), https://www.who.int/docs/defaultsource/coronaviruse/situation-reports/20200505covid-19-sitrep-106.pdf?sfvrsn=47090f63_2. There are significant outbreaks in Louisiana and Georgia (the states where the Facilities are located) and within detention centers themselves. Ctrs. for Disease Control & Prevention, Cases in the U.S., https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last visited May 6, 2020); Rivera Decl. ¶ 14. The Centers for Disease Control published an Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (“CDC Interim Guidance”) on March 23, 2020. See Ctrs. for Disease Control & Prevention, Interim Guidance on Management of Coronavirus Disease 2019
2 On May 4, 2020, SPLC sent a Notice of Non-Compliance to Defendants regarding violations of certain provisions of the LaSalle Agreement concerning VTC scheduling. SPLC is currently working with Defendant to resolve phone and VTC issues at LaSalle. This motion includes facts about these issues at LaSalle only to illustrate Defendants’ systemic pattern of failing to ensure adequate remote legal communications during the pandemic. SPLC does not currently seek an order to remediate VTC or phone issues at LaSalle. SPLC only seeks relief to remediate other issues at LaSalle, including Defendants’ failure to provide a method to facilitate remote confidential document exchange (e.g., via e-mail or fax) and to ensure that spaces and technologies used for remote legal communications are properly disinfected. SPLC reserves the right to seek additional remedies concerning VTC and phones at LaSalle if negotiations between the parties are unsuccessful, as contemplated by the LaSalle Agreement.
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(COVID-19) in Correctional and Detention Facilities, https://www.cdc.gov/coronavirus/2019ncov/downloads/guidance-correctional-detention.pdf (last visited May 6, 2020). A federal judge has already found ICE noncompliant with the CDC Interim Guidance with regard to the protection and provision of adequate care to medically vulnerable individuals in detention. Fraihat v. U.S. Immigration & Customs Enf’t, No. 5:19-CV-1546, 2020 WL 1932570 (C.D. Cal. Apr. 20, 2020). Judges across the country have ordered correctional and detention facilities to take various measures to remediate the risk of COVID-19 and/or to release individuals to diminish the risk, including this Court in Banks v. Booth, No. 1:20-CV-849, 2020 WL 1914896 (D.D.C. Apr. 19, 2020). These facts demonstrate the crucial need for detained persons to be able to communicate with their attorneys to seek release from detention and protect themselves from the lethal risks of COVID-19.
Not surprisingly, the pandemic has fundamentally altered the way detained individuals access and communicate with counsel, as most of the legal profession has transitioned to remote communications (e.g., phone and video-teleconference) in order to protect not only themselves but also their clients and detention center staff from the prospect of transmitting the virus. This alteration is consistent with the CDC Interim Guidance, which encourages facilities to place limitations on contact visitation while expanding access to telephonic and video-conferencing legal communications as well as providing free phone calls to detained persons and cleaning surfaces used for remote communications. See CDC Interim Guidance at 13–14.
Yet Defendants have failed to accommodate these necessary and foreseeable changes to legal communications, placing SIFI attorneys in the untenable position of having to choose between engaging in-person visitation at high risk to their clients, detention center staff and themselves, or relying on remote access that was already insufficient and unreliable prior to the
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pandemic and is now even worse. As Dora Schriro, a national expert on detention management and the founding director of ICE’s Office of Detention Policy and Planning, explains, at a time when detained immigrants need their lawyers most, Defendants “are currently failing to ensure that the individuals in its custody have crucially needed access to lawyers during the COVID-19 pandemic.” Schriro Decl. ¶ 17. SIFI has brought these failures to the attention of Defendants, most recently with a letter on March 25, 2020 demanding a number of remote legal visitation provisions in light of the pandemic. Agarwal Decl. ¶ 6; Demand Letter, Ex. E to Agarwal Decl; LaSalle Notices of Noncompliance, Exs. A, C, and G to Agarwal Decl. Nevertheless, Defendants have failed to ensure that SIFI’s clients can adequately and reliably access their attorneys despite the growing and acute need. See Demand Letter, Ex. E to Agarwal Decl.; Rivera Decl. ¶ 20.
As explained by SIFI’s Director Laura Rivera, both pre-and post-COVID-19, SIFI’s representation of clients at the Facilities typically begins the same way: detained individuals contact SIFI’s free and unmonitored hotline through the shared telephones mounted in their units. Rivera Decl. ¶¶ 10, 36. SIFI’s hotline operators conduct an intake, ranging from thirty minutes to an hour. Id. Before COVID-19, SIFI staff would then conduct a screening interview of the prospective client, typically in person. These initial screenings may take sixty to ninety minutes, depending on whether a SIFI-provided interpreter is necessary. If SIFI determines it can take the case, it must meet with the individual again to explain and execute the retainer, to discuss next steps, and to answer any questions the client may have. Id at ¶ 11. It is common for SIFI staff to speak with the client two or three more times to prepare the client’s bond motion or parole request even before necessary interviews related to the removal merits case. Id. Eliciting relevant facts usually requires several conversations, as clients typically must describe in detail personal and traumatic events and revisit them repeatedly. Id. Because exchanging documents
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with detained clients and getting their signatures by mail is often unreliable at the Facilities, id. at ¶ 9, SIFI staff have historically done this in person, id. at ¶ 12.
Although in-person visits at the Facilities have always been deeply constrained by long wait times, limited hours, and time limits, id. at ¶ 6, SIFI still found in-person visits to be more effective and more reliable than the Defendants’ processes and capabilities for video teleconferences and legal phone calls at the Facilities. Id. at ¶¶ 7–8. Before the pandemic, SIFI staff visited Facilities two or three days a week and conducted in-person legal visits with two dozen people or more on average. Id. As set forth in detail below, during the COVID-19 pandemic, in-person visits have become functionally impossible, thus increasing the need for remote access, which has simultaneously become more limited—leaving clients and their attorneys in an untenable position that necessitates this Court’s immediate intervention.
B. ICE has restricted in-person legal visitation in response to COVID-19. The exponential rate of the spread of COVID-19 inside ICE facilities is evident by ICE’s own information. More than 48% of immigrants in ICE custody who have been screened for COVID-19 have tested positive. ICE Guidance on Coronavirus, https://www.ice.gov/coronavirus (last visited May 6, 2020). As of the date of this application, ICE has confirmed the following positive cases of COVID-19 at the Facilities: ten detained people at LaSalle;3 twenty-six detained people at Pine Prairie; two detained people at Irwin; eleven detained people at Stewart and more than forty staff. Rivera Decl. ¶ 14; see also Schriro Decl. ¶ 30 (“ICE does not report the status of detention staff employed by the facilities”). At the same time, Executive Office of Immigration Review (“EOIR”) courts where SIFI lawyers practice continue to press forward in their detained dockets “as speedily as they had before the pandemic.” Rivera Decl. ¶ 15.
3 On April 27, ICE reported twenty cases at LaSalle. See Rivera Decl. ¶ 14 Ex. C.
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Although Defendants are ultimately responsible for ensuring that conditions inside detention centers comply with constitutional, statutory and regulatory dictates, Defendants have done little more to address COVID-19 than publish inadequate guidance documents. Schriro Decl. at ¶¶ 37–40. Yet, ICE’s guidance has been exactly that: guidance—without any meaningful mandate or monitoring mechanisms to ensure compliance. ICE still has not provided concrete mandates to ensure that detention facilities—including the Facilities at issue here— implement necessary modifications to legal communication procedures during the pandemic. Id. at ¶ 35. On March 23, ICE posted a statement allowing only non-contact legal visitation and requiring all legal visitors to wear, “gloves, N-95 masks, and eye protection.” Rivera Decl. ¶ 18, Ex. A. Because there was and continues to be a national shortage of N-95 masks, this requirement effectively prohibited in-person legal visits. Rivera Decl. ¶ 20; López Decl. ¶ 11; see also Strategies to Optimize the Supply of PPE and Equipment, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/hcp/ppe-strategy/index.html (last visited May 5, 2020) (“PPE shortages are currently posing a tremendous challenge to the US healthcare system because of the COVID-19 pandemic”).
For a short time, SIFI was able to acquire a limited amount of the necessary PPE. But because Defendants’ remote visitation policies continued to create intolerable delays, SIFI’s Director was forced to make tough calls, “deciding between waiting days for remote legal visits to complete time-sensitive client communications, or authorizing in-person visits by SIFI staff who could unknowingly expose clients to the virus or contract the virus themselves.” Rivera Decl. ¶ 19. It has been over a month since ICE published its PPE requirement, which effectively blocked in-person attorney-client communication at a critical time. Defendants have not provided
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any remedy. To the contrary, Defendants have imposed additional restrictions on remote legal visitation that further impede detained clients’ access to crucially needed legal counsel.
C. ICE has imposed additional restrictions on remote legal visitation. The combination of ICE’s PPE requirements, the shelter-in-place orders across the states, and the recorded COVID-19 outbreaks at the Facilities has effectively blocked SPLC’s ability to conduct in-person legal visitation. Rivera Decl. ¶ 20; Williams Decl. ¶ 10. As the number of positive cases has risen exponentially, and clients’ vulnerabilities and immediate need for legal assistance inside of these Facilities has become even more urgent, SPLC has been forced to rely on Defendants’ increasingly restrictive, inconsistent, and unreliable policies for videoteleconferences and legal phone calls (hereinafter referenced together as “remote legal visitation”). Out of necessity, SPLC has also had to rely on communicating through nonconfidential, collect calls with clients at these Facilities.
1. Video-teleconference access restrictions. Defendants’ pre-existing barriers to VTC access—the more effective means of attorneyclient communication compared to telephones— have worsened as the pandemic has progressed. Over the past month, SIFI has experienced scheduling delays at all Facilities at every step of the process: delays in receiving a response to a VTC request, delays between the date requested and the date made available, delays on the day of the appointment, as well as outright cancellations. Rivera Decl. ¶ 22–29; Williams Decl. ¶ 11 –12. These delays can be attributed to factors that Defendants have conceded are within their control. In an April 3 letter to SPLC, Defendants stated that, because of the public health crisis, they would provide extended VTC days and hours of operation for the Facilities. Rivera Decl. ¶ 21, Ex. B. Nearly two months into the pandemic, however, SIFI has seen no evidence of these extensions. For example, SIFI staff at Stewart reported on April 24 and April 27 that they were
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offered the same hours for VTC slots as before—9am-3pm. Id. at ¶ 22. Defendants’ failures to ensure adequate access to VTC has resulted in devastating consequences for detained individuals. For example, due to inadequate access to VTC at Irwin, detained persons were unable to be retained and be Petitioners in a habeas action filed by SPLC and SIFI, thereby defeating their chances for release during this dangerous pandemic. Williams Decl. ¶ 19.
In addition to scheduling delays, Defendants have restricted VTC access through sudden and seemingly arbitrary restrictions at the Facilities over the past month. For instance, Stewart set a weekly cap on the number of VTC calls a SIFI attorney could have with the same client, refusing counsel’s request for a two-hour session the day before the client’s final asylum hearing. Rivera Decl. ¶ 25. Pine Prairie rescheduled a VTC appointment because the officer was on transport duty and could not bring the client. Id. at ¶ 26. Irwin and Stewart cancelled VTC calls without notice. Id. at ¶¶ 27-28. Irwin scheduled VTC calls with extremely short notice. Williams Decl. ¶¶ 12, 20. LaSalle’s VTC quality is so poor that one SIFI attorney now schedules only legal phone calls. Rivera Decl. ¶ 24; López Decl. ¶ 9. And on at least two separate occasions, Irwin failed to notify the client of the scheduled call, Rivera Decl. ¶ 33; Williams Decl. ¶ 21, and sometimes fails to notify attorneys that it has scheduled a call. Osorio Decl. ¶ 7. These barriers have a direct impact on SIFI’s ability to expeditiously prepare urgent filings, and adequately prepare their clients for hearings. Rivera Decl. ¶ 25; see also, López Decl. ¶ 10; Osorio Decl. ¶7 (“The failure to provide notice to immigration attorneys of when VTC appointments are scheduled makes it difficult to effectively communicate with my client and properly meet my ethical obligations to my client if I cannot have access to her.”)
When SIFI is finally able to schedule VTC calls, the attorneys experience further barriers because of Defendants’ unreasonable time restrictions. At Pine Prairie, VTCs are limited to thirty
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minutes, and are sometimes even shorter than that due to the time it takes to move quarantined and non-quarantined individuals separately. Rivera Decl. ¶ 8.; López Decl. ¶ 8. At Stewart and Irwin, VTCs are limited to one hour. Williams Decl. ¶ 11. These limitations exist even when an interpreter is needed, which effectively doubles the time it takes to communicate. See id. at ¶16; Rivera Decl. ¶ 10 (“While a typical screening without interpretation may take one to one-and-ahalf hours, a screening through an interpreter may take twice as long.”). SIFI has no choice under these strict time limits but to request additional VTC calls and go through the same scheduling delays once or twice more.
Although confidentiality is “a bedrock principle” of attorney-client communication, confidentiality is severely compromised in the VTC rooms at the Facilities. Rivera Decl. ¶ 30. At Irwin, for example, when VTC calls are conducted in the library, detention center staff frequently interrupt the call by entering and answering separate calls on a phone close to the detained individual. Williams Decl. ¶15; Osorio Decl. ¶¶ 5–6. Likewise, at Pine Prairie, VTCs occur in adjacent cubicles with thin walls, and attorney-client conversations are clearly audible. Rivera Decl. ¶31.
Finally, Defendants’ inadequate safeguards to protect detained individuals from the virus during VTC calls have forced SIFI attorneys to think twice about proceeding with remote legal visits to avoid health risks to their clients. Williams Decl. ¶¶ 8-9. One SIFI attorney has never seen any of his clients at Irwin wearing gloves during their VTC call. Rivera Decl. ¶ 32. At Stewart, a client was never provided gloves but found a pair of gloves that an officer had discarded and put them on for his own safety. Sanchez-Martinez Decl. ¶ 14. Because of Defendants’ documented failure to provide detained individuals in these Facilities with sufficient hygiene products and protection, every time clients leave their cells for a VTC appointment, they
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risk exposure to the virus. Venters Decl. ¶ 11; see Joe Penney, Inside an ICE facility in Louisiana, detainees say ICE is depriving them of masks, under-testing for COVID-19, and moving migrants around the country, BUSINESSINSIDER (May 1, 2020) https://www.businessinsider.com/detainees-say-ice-undertesting-for-covid19-not-giving-themsupplies-2020-5; see also Debbie Nathan, Women in ICE Detention Face Reprisals For Speaking Up About Fears of Covid-19, THE INTERCEPT (April 28, 2020) https://theintercept.com/2020/04/28/ice-detention-coronavirus-videos/(Women detained at Irwin describe conditions of overcrowding and deficient sanitation).Likewise, the VTC equipment itself can transmit the virus, which necessitates disinfecting it and providing detained persons with proper PPE, but this is not happening. see, e.g., López Decl. ¶ 16 (describing failure to disinfect VTC terminals and seats after a detained individual from a quarantined unit was at the VTC). Defendants’ ongoing failure to implement these precautionary measures puts attorneys in the untenable position choosing between preparing their clients for their legal cases and putting them at risk of transmission due to Defendants’ inadequate precautions. Rivera Decl. ¶ 47; López Decl. ¶ 18.
2. Phone access restrictions. Due to Defendants’ worsening restrictions for VTC access, SIFI has tried to utilize “facility legal calls,” which are confidential phone calls coordinated by the facility, to reach current and potential clients. Rivera Decl. ¶ 37. But the process for setting up such legal calls is still unclear to clients and attorneys at the Facilities and, until recently, was impossible at Stewart or Pine Prairie. Id. at ¶ 38. Defendants’ April 3 letter stated that they would “extend” the hours for facility legal calls at the Facilities. Id. Ex. B. When SIFI staff at Stewart brought this information to CoreCivic employees’ attention, the employees said they were not aware of any
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mechanism for facility legal calls. Id. at ¶ 39. Only on April 24, after several weeks and multiple email exchanges, was a new process set up at Stewart, requiring the SIFI attorney to email the warden to request the call, and the warden to confirm the time and date and then provide the attorney with a phone number. Id. at ¶¶ 40–41. Pine Prairie officials state that facility legal calls may be requested by detained individuals through their case managers. However, most clients at Pine Prairie do not know who their case managers are. Id. at ¶ 38. A SIFI attorney who has been representing clients at Pine Prairie since October 2018 has never had a client successfully request a facility legal call. Id.
Even where there is a process for requesting facility legal calls, there are still delays in scheduling, as with VTC calls, and detained individuals have been limited from accessing such calls due to lockdowns in their units. Rivera Decl. ¶¶ 40–42. At LaSalle, there have been significant connectivity issues when dialing in essential third parties, such as other attorneys and interpreters. Id. at ¶ 43. Defendants’ solution has been for the client to take the call while on speaker phone. This solution raises similar confidentiality concerns to the VTC calls because conversations can be overheard by individuals in the next room Id. at ¶ 31.
Because the mechanism for requesting facility legal calls is not clear, uniform, or reliable, SIFI has identified alternatives to Defendants’ restrictions to communicate with their clients during this pandemic. Although detained individuals are entitled to free access to legal calls (Schriro Decl. ¶ 58; Rivera Decl. ¶ 48), because access to such calls is so difficult to obtain, SIFI staff have arranged with clients for them to make paid calls at designated times from one of the telephones in their unit. Williams Decl. ¶ 13; Sanchez-Martinez Decl. ¶ 5. To alleviate the financial burden of this communication on their clients, SIFI set up an internal method to allow SIFI to pay for these collect calls from clients at the Facilities. Rivera Decl. ¶ 44.
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SIFI has asked Defendants to place SIFI staff’s phone numbers on a do-not-monitor list, but Defendants have refused to provide written confirmation and verbally confirmed that they were able to do this at only three of the facilities: Stewart, LaSalle, and Pine Prairie. Rivera Decl. ¶ 44–45; Williams Decl. ¶¶ 13–14. At Irwin, Defendants told SIFI that they cannot place them on a do-not-monitor list because Defendants do not have a contract with that facility’s phone vendor. Rather, SIFI would have to reach out to Irwin’s warden and make this request. SIFI made this request via email but, as of May 5th, still have not received a response. Rivera Decl. ¶ 45.
Although SIFI staff should be placed on the do-not-monitor list, it is important to note that these collect calls do not guarantee confidential attorney-client communications. Clients at the Facilities make these calls from the same telephones that they use to call the SIFI hotline as well as their loved ones. They are made in the open space, in close proximity to the individuals from their unit and are shared by many other individuals. Williams Decl. ¶ 13; Rivera Decl. ¶ 46.
Furthermore, calls made from these shared telephones raise similar safety concerns to calls made from the VTC rooms. Individuals are already unable to socially distance in their units, and using the shared phones puts them at a higher risk for contracting the virus. Venters Decl.¶ 11, 36. When detained clients are waiting in line to use the shared telephones, they are often extremely close to one another and, because they also lack protective equipment, they are exposing themselves to the virus. Venters Decl. ¶ 36. Additionally, clients indicate that the facilities still fail to provide them with adequate hygienic products. They have not seen anyone wipe down the telephones— neither detained individuals who clean the units, nor the detention staff. Sanchez-Martinez Decl. ¶¶ 7, 12. At Stewart, a SIFI client is in a unit with ninety-two people in total with only seven working telephones. At Irwin, another SIFI client has been in a
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unit when it was at capacity and had 32 people in two-person cells with a total of three shared telephones. At LaSalle, a client is currently detained in a unit that has had 88 people sharing eight telephones. At Pine Prairie, one client is in a unit that has had 56 or 57 people and eight shared telephones. Rivera Decl. ¶ 47; Sanchez-Martinez ¶¶ 10-11; Venters Decl. ¶ 36 (“Cleaning and disinfecting is a crucial aspect of infection control as there are numerous frequently used locations within facilities that may facilitate infection spread”).
SIFI’s partial solution of paying for these collect calls does not excuse Defendants’ failure to follow its own ERO COVID-19 Pandemic Response Requirements, which call on facilities “to ensure all detainees receive some number of free calls per week,” (Rivera Decl. ¶ 48; Schriro Decl. ¶ 58), as well as the Center for Disease Control’s guidance for detained populations, which calls on detention facilities, including those that confine immigrants, to increase access to free or low-cost telephones and virtual visitation. CDC Interim Guidance 13– 14.
D. Restrictions on legal mail and document exchange. Defendants’ COVID-19 policies on document exchange are unreasonably restrictive and make SPLC’s ability to maintain necessary contact and move expeditiously on its clients’ cases extremely and needlessly difficult. Defendants state that they will not retrieve fax documents or download electronic documents for detained individuals at the Facilities. Rivera Decl. ¶ 53, Ex. B. This is unreasonable since Irwin already allows detained individuals to send faxes to their attorneys and, for a few weeks prior to the pandemic, it had allowed attorneys to send faxes for their clients that the facility officer would retrieve for them before a VTC appointment. Id.; Williams Decl. ¶¶ 23–24; see also Rivera Decl. ¶ 12 (listing the multitude of documents typically exchanged for case preparation). All Facilities utilize fax machines to send attorneys their
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clients’ medical records. Rivera Decl. ¶ 12. Allowing attorneys to use the fax machines to transmit documents to clients for their signature would greatly improve access, especially with the restrictions on in-person visitation and delays in mail. For example, in trying to obtain a client’s medical records at LaSalle, a SIFI attorney was told by the deportation officer that the client’s verbal authorization over the phone to release their medical records was insufficient and would instead require a wet signature, delaying SIFI’s ability to timely procure the files and represent the client. Rivera Decl. ¶¶ 54; see also López Decl. ¶ 13. Providing a mechanism for electronic or facsimile document exchange would alleviate at least one of the many compounding barriers SPLC now faces amid COVID-19.
Defendants have also stated that they “may permit” metered and preaddressed envelopes. Rivera Decl. Ex. B. At Stewart, SIFI staff has had mixed success with sending pre-stamped envelopes. At LaSalle, SIFI has been successful. Rivera Decl. ¶ 50. Defendants also refuse to permit stamps into the Facilities. Since in-person legal visitation is prohibited, Defendants’ stamp prohibition forces SPLC to deposit funds into their clients’ accounts or break stay-at-home orders to obtain prepaid envelopes that they may have success sending to facility. Williams Decl. ¶ 23.
Because of these restrictions, SPLC must send postal mail to the Facilities, which even before the pandemic, has been unreliable. Rivera Decl. ¶ 9 (explaining that delays in sending and receiving mail are commonplace; Stewart’s sole post office box number is shared by multiple actors in the system; Pine Prairie has reports of detained individuals’ legal mail being improperly searched); Id. ¶ 50 (“Mailings appear to be periodically rejected regardless of the delivery service or the type of postage”). Reliance on postal mail results in undue delay. Ms. Rivera explains that, “to even start working on an individual’s case, SIFI legal workers may need to wait
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at least one week after their first client meeting to receive any documents from the client. A oneweek delay amid this pandemic has grave consequences for individuals medically vulnerable to COVID-19.” Id. at ¶ 51. Delays also harm clients’ chances of winning release. Id. at ¶ 52. Judges consider the applicant’s flight risk in deciding on release motions. “The closer a person’s final individual or merits hearing is, the more of a flight risk she is considered to be.” Id.
Finally, Defendants have restricted SPLC’s access to the ICE official who oversees their clients’ parole requests and Fraihat custody redeterminations. There have been weeks-long delays by ICE in responding to humanitarian parole requests. Rivera Decl. ¶ 56. For example, on or about April 15, a SIFI attorney submitted a humanitarian parole request on behalf of their medically vulnerable client. ICE had instructed her not email, but to mail the request. On April 28, she emailed an ICE agent involved in her client’s case to ask about the status of the request, only to learn that ICE had never received it. She was subsequently instructed to email the request. The ICE agent responded within one hour denying her request. Id. at ¶ 55. III. Legal Standard
Motions for temporary restraining orders and preliminary injunctions are analyzed under the same four-factor standard. Council on Am.-Islamic Relations v. Gaubatz, 667 F. Supp. 2d 67, 74 (D.D.C. 2009). An applicant must clearly show: “(1) a substantial likelihood of success on the merits, (2) that it would suffer irreparable injury if the injunction were not granted, (3) that an injunction would not substantially injure other interested parties, and (4) that the public interest would be furthered by the injunction.” Id. Historically, courts have applied these four factors along a “sliding scale” in which “a particularly strong showing in one area can compensate for weakness in another.” Id. Lately, however, “the continued viability of that approach has been called into some doubt, as the United States Court of Appeals for the District of Columbia
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Circuit has suggested, without holding, that a likelihood of success on the merits is an independent, free-standing requirement.” Kingman Park Civic Ass’n v. Gray, 956 F. Supp. 2d 230, 241 (D.D.C. 2013). Additionally, some Circuit judges have observed that all four factors may need to be independently shown. See, e.g., Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1296 (D.C. Cir. 2009) (“It appears that a party moving for a preliminary injunction must meet four independent requirements.”) (Kavanaugh, J. concurring). Regardless of the status of the sliding scale approach in this Circuit, the evidence clearly shows that SPLC satisfies each of these factors, thereby warranting a temporary restraining order. IV. Argument
A. SPLC has a substantial likelihood of succeeding on the merits of its clients’ Fifth Amendment access claims.
Defendants’ unreasonable restrictions and conditions on legal communications during the COVID-19 pandemic deprive SPLC’s clients of their fundamental right to access crucially needed counsel during this dangerous period.
“It is well established that the Fifth Amendment entitles [non-citizens] to due process of law in deportation proceedings.” Reno v. Flores, 507 U.S. 292, 306 (1993). This includes the right to meaningful access to counsel and the courts. Ozoanya v. Reno, 968 F. Supp. 1, 8 (D.D.C. 1997); Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1273 (11th Cir. 2005) (non-citizens have “the constitutional right under the Fifth Amendment Due Process Clause right to a fundamentally fair hearing to effective assistance of counsel where counsel has been obtained”); OrantesHernandez v. Meese, 685 F. Supp. 1488, 1510 (C.D. Cal. 1988) (holding that immigration officials “have a constitutional duty not to obstruct [detained immigrants’] access to courts”). “Regulations and practices that unjustifiably obstruct the availability of professional [legal] representation or other aspects of the right of access to the courts are invalid.” See Procunier v.
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Martinez, 416 U.S. 396, 419 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989). Accordingly, when Defendants impose unreasonable restrictions or conditions on legal communications between SPLC and its clients, Defendants’ conduct violates the Fifth Amendment. See, e.g., Innovation Law Lab v. Nielsen, 310 F. Supp. 3d 1150, 1162 (D. Or. 2018) (“Government practices that effectively deny access to counsel include the detention of aliens far from where potential or existing counsel was located, limited attorney visitation hours, and the processing of aliens at locations where telephones were not available to them.”); Arroyo v. U.S. Dep’t of Homeland Sec., No. 8:19-CV-815, 2019 WL 2912848, *17–18 (C.D. Cal. June 20, 2019) (granting preliminary injunctive relief because plaintiffs were likely to succeed on merits of Fifth Amendment claim regarding Defendants’ interference with detained immigrants’ attorney-client relationships); Torres, 411 F. Supp. 3d at 1063–64 (unreasonable burdens on attorney-client relationship violate Fifth Amendment rights of detained immigrants). The Central District of California has recently held that Defendants violate the Fifth Amendment by failing to accommodate access to crucially needed legal counsel during the COVID-19 pandemic. See Min. Order, Torres, No. 5:18-CV-2604 (ECF No. 144).
Here, the evidence plainly shows that Defendants’ policies, practices, and omissions concerning legal communications during the COVID-19 pandemic impose unreasonable restrictions on SPLC’s clients’ access to their attorneys and therefore violate the Fifth Amendment. As detailed above, the evidence shows that in-person legal visits are functionally impossible during the COVID-19 pandemic due to a variety of factors, including the high-risk of infection and the national shortage of PPE. Rivera Decl. ¶ 20; Williams Decl. ¶ 10. Consequently, SIFI and its clients must rely on remote communications, such as VTC and legal calls, in order to prepare SIFI’s clients for their removal cases and assist SIFI clients in their
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efforts to be released from detention during this deadly pandemic. Rivera Decl. ¶¶ 17-48. Yet, Defendants have altogether failed to modify their policies and procedures to expand access to crucially needed remote legal communications, implement necessary precautions during remote visits (e.g., by disinfecting phones/VTC rooms and providing detained persons with necessary PPE), and provide mechanisms for exchange of legal documents remotely. To the contrary, Defendants have increased barriers to access. Rivera Decl. ¶ 20. In some cases, these barriers have altogether barred individuals from obtaining SPLC’s services, including to obtain release. Williams Decl. ¶ 19. These access barriers are unreasonable as evidenced by Defendants’ own detention standards, expert opinion, and legions of legal precedent. Schriro Decl. ¶¶ 50–100.
For example, the lack of confidentiality in communication between SPLC’s clients and their legal teams violate DHS’s Performance Based National Detention Standards (“PBNDS”). The PBNDS mandate that “each facility shall ensure privacy by providing a reasonable number of telephones on which detainees can make such calls without being overheard by staff or other detainees.” PBNDS 5.6(V)(F)(2). Facility “staff may not monitor phone calls made in reference to legal matters.” Id. According to Dora Schriro, a detention operations expert, the current conditions at the facilities exhibit a failure to comply with ICE Detention Standards for confidentiality. See Schriro ¶¶ 92–100. The evidence further shows that these violations of the PBNDS are merely the tip of the iceberg in terms of ICE’s violation of its own standards concerning attorney access. See Schriro ¶¶ 110-15. “[R]estrictions which are not reasonably related to orderly administration cannot stand.” Nunez v. Boldin, 537 F. Supp. 578, 582 (S.D. Tex. 1982)
Defendants’ conduct is not only unreasonable, it is also dangerous—even deadly. Defendants’ refusal to expand access to remote legal communications contradicts CDC guidance.
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See CDC Interim Guidance at 13–14 (detailing the need to expand virtual communications and clean electronic surfaces regularly). And even where VTC and phone use is successful, Defendants’ failure to disinfect these areas and provide detained persons with PPE forces SPLC’s clients to choose between speaking to their attorneys and risking infection with COVID19 or foregoing a legal call (and any hope of release) to avoid transmission. Rivera Decl. ¶¶ 36, 47; Venters Decl. ¶¶ 14, 32–36.
Numerous courts have held that similar combinations of access barriers as those described herein deny timely and confidential remote legal communications in violation of a detained person’s right to access counsel and the courts. See, e.g., Castillo v. Nielsen, No. 5:18CV-01317, 2018 WL 6131172 (C.D. Cal. June 21, 2018) (granting TRO enjoining DHS from limiting phone calls and in-person visits to detained immigrants housed at a medium security prison); Innovation Law Lab, 310 F. Supp. 3d at 1162 (granting TRO requiring detention facility to, inter alia, expand access to remote legal communications and requiring those communications to be confidential); Orantes-Hernandez, 685 F. Supp. at 1511 (“Defendants have violated detained plaintiff class members’ rights to effective representation of counsel by unduly restricting attorney and paralegal visitation, failing to provide private telephone and visitation facilities, and in some cases failing to provide adequate telephone access.”); Louis v. Meissner, 530 F. Supp. 924, 927 (S.D. Fla. 1981) (granting injunctive relief when there was a “general unavailability of telephones” in detention facilities thereby restricting detained persons’ access to counsel); Johnson ex rel. Johnson v. Brelje, 701 F.2d 1201, 1207 (7th Cir. 1983) (finding two ten-minute calls a week to criminal defendants detained was unreasonable barrier to access courts).
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Most recently, a federal district court entered a temporary restraining order requiring Defendants to expand remote legal communications during the COVID-19 pandemic, holding that Defendants’ failures to accommodate necessary remote legal communications at a detention facility in California during the pandemic most likely violated the Fifth Amendment. See Min. Order, Torres, No. 5:18-CV-2604 (ECF No. 144). In Torres, the court found that pre-existing access barriers almost identical to those complained of in this case—lack of confidential phone calls, unreliable and inconsistent procedures, strict time limitations—were exacerbated by the virtual elimination of in-person visits due to Defendants’ COVID-19 restrictions. The court held that this combination of limitations on in-person legal visits and restrictions on phone and other remote communications warranted emergency relief. According to the court: “Although the harm to attorneys and clients has been magnified by the pandemic, it is still fair to say Defendants’ own policies caused the harm, not the virus or the shortage in PPE.” Id. at 10.
As in Torres, the evidence here establishes that Defendants’ myriad—and mutually reinforcing— failures to accommodate legal communications during the COVID-19 pandemic unreasonably impedes SPLC’s clients’ rights to access crucially needed legal counsel. Sealed inside of Defendants’ remote detention centers, SPLC’s clients are unable to reliably, adequately, and confidentially communicate with attorneys who can assist them in their removal cases, in obtaining release, or in advocating for improved conditions and medical care during the pandemic. For these reasons, SPLC’s clients are likely to succeed on their merits of their due process claim.
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B. SPLC has a substantial likelihood of succeeding on the merits of its clients’ substantive due process claims.
Defendants’ policies, practices and omissions concerning legal communications during the COVID-19 pandemic are unnecessarily restrictive and excessive and, therefore, constitute punishment in violation of the Fifth Amendment’s substantive due process protections.
Immigration detention is “undisputedly civil” in nature, R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 187 (D.D.C. 2015), and therefore people in immigration detention are entitled to “more considerate treatment” than individuals confined pursuant to criminal process, Youngberg v. Romeo, 457 U.S. 307, 322 (1982). For that reason, Defendants may not impose conditions or restrictions on people in immigration detention that are “punitive” in nature. See Torres, 411 F. Supp. 3d at 1064–65. Conditions or restrictions in civil detention are unconstitutionally “punitive” where there is either a “subjective intent to punish” or where the condition or restriction “is objectively unreasonable or excessive relative to the Government’s proffered justification.” Banks, 2020 WL 1914896, at *6 (citing United States v. Moore, No. 1:18-CR-198, 2019 WL 2569659, at *2 (D.D.C. June 21, 2019)); accord Bell v. Wolfish, 441 U.S. 520, 538–39 (1979); Torres, 411 F. Supp. 3d at 1064–65. A presumption of punitiveness arises (1) where those conditions “are employed to achieve objectives that could be accomplished in so many alternative and less harsh methods” or (2) where there conditions are “identical to, similar to, or more restrictive than” those under which individuals detained pursuant to criminal process are held. Jones v. Blanas, 393 F.3d 918, 932–34 (9th Cir. 2004).
Because SPLC can establish both presumptions, it is likely to prevail on its claims that Defendants’ conditions and restrictions concerning legal communications are unconstitutionally punitive. First, the evidence plainly establishes that Defendants’ conditions and restrictions concerning legal communications at the Facilities are objectively unreasonable and excessive
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relative to any justification that Defendants could conceivably proffer. As detention expert Dora Schriro explains, Defendants have failed to ensure that policies and practices concerning legal communications at the Facilities comply with ICE’s very own standards and requirements. For example, ICE is failing to ensure that the Facilities comply with its own standards on confidential legal communications. Schriro Decl. ¶¶ 92–100. Likewise, ICE has failed to ensure that the Facilities provide expedient and reliable access to legal calls and video-conferencing services, as well as reliable facilitation of legal document exchange, in violation of its own standards. Schriro Decl. ¶¶ 57–59; ¶¶ 80–90. As the evidence lays bare, these examples are just a few of many of ICE’s outright failures to ensure that the Facilities comply with ICE’s own standards concerning legal communications. This evidence is sufficient for SPLC to establish that Defendants’ practices concerning legal communications are excessive and therefore constitute punishment. See Torres, 411 F. Supp. 3d at 1065 (plaintiffs’ allegations that ICE failed to follow regulations in the PBNDS at an ICE facility were sufficient to show punitive conditions and state a substantive due process claim). But there is more.
ICE’s failure to implement necessary precautions at the Facilities to ensure that spaces and devices used for legal communications are properly disinfected and that detained persons have adequate access to gloves or other protective equipment is also objectively unreasonable. Schriro Decl. ¶¶ 109–11; Venters Decl. ¶¶ 29, 36; Sanchez-Martinez Decl. ¶¶ 12–14; Rivera Decl. ¶¶ 32, 36, 47; López Decl. ¶¶ 16, 20; Report & Recommendation, Dada v. Witte, No. 1:20CV-458 (W.D. La. Apr. 30, 2020), ECF No. 17 (outlining lack of hygienic conditions at LaSalle and Pine Prairie that rendered all petitioners housed at the facilities “all at moderate to high risk of exposure” to the virus). This evidence further supports a finding of punitive conditions. Fraihat, 2020 WL 1932570, at *25 (“During a pandemic such as this, it is likely punitive for a
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civil detention administrator to fail to mandate compliance with widely accepted hygiene, protective equipment, and distancing measures until the peak of the pandemic, and to fail to take similar systemwide actions as jails and prisons.”).
Defendants’ policies requiring attorneys to rely on post mail to exchange legal documents and submit parole requests is also excessive relative to any justification that may be proffered. Rivera Decl. ¶¶ 50–56. Post mail has proven unreliable to SIFI staff (id. at ¶ 9) and Defendants have themselves made exceptions to this requirement. Id. ¶ 55 (ICE agents directed a SIFI attorney to email the humanitarian parole request after the attorney stated she had mailed to them weeks earlier, per their instructions). Defendants similarly have refused to retrieve fax or download electronic copies of legal documents for detained individuals. (Rivera Decl. ¶ 53; ex. B). This refusal is also excessive when viewed in light of the fact that all the Facilities already rely on fax to retrieve privacy waivers from, and send medical records to, attorneys. Id. at ¶ 12; cf. López Decl. ¶ 13.
Second, the evidence establishes that Defendants’ conditions and restrictions on legal communications are unconstitutionally “punitive” because they “are similar to[] or more restrictive than” policies on legal communications for individuals in criminal custody. See Jones, 393 F.3d at 932. For example, the Federal Bureau of Prisons COVID-19 Action Plan provides clear instructions for attorneys seeking confidential calls with their clients via a chart listing consolidated legal centers and phone numbers. Fed. Bureau of Prisons, Federal Bureau of Prisons COVID-19 Action Plan, https://www.bop.gov/resources/news/20200313_covid-19.jsp (last visited May 6, 2020). The CDC has also issued guidance to ensure that individuals in correctional settings have adequate methods to communicate via telephone or videoconference with their lawyers. See CDC Interim Guidance.
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In sharp contrast, Defendants have failed to ensure that detained persons have adequate and reliable access to confidential legal communications during the COVID-19 pandemic, supporting a finding of punitive conditions. Defendants have failed to issue a single mandate to ensure access to legal communications during the pandemic. Schriro Decl. ¶¶ 35–46. As a direct consequence of Defendants’ failure to provide adequate guidance and oversight concerning legal communications, SIFI attorneys at the Facilities have been substantially impeded in obtaining securing confidential legal communications with their clients. Rivera Decl. ¶¶ 21–44. Because conditions for detained individuals are worse than those for individuals with criminal convictions, a Fifth Amendment substantive due process violation has occurred. See, e.g., Torres, 411 F. Supp. 3d at 1064–65 (allegations that there were less restrictive legal communication policies and practices in jails as compared to ICE facility was sufficient to create presumption of punitive conditions); Fraihat, 2020 WL 1932570, at *25 (comparing BOP memorandum commanding BOP director to “immediately maximize” transfers to home confinement with ICE guidelines to FODs to “please” make individualized determinations as to release).
In sum, the evidence firmly establishes that Defendants have altogether failed to provide SPLC’s clients with the “more considerate” treatment to which they are entitled during the COVID-19 pandemic. Instead, Defendants’ policies and practices concerning legal communications during the pandemic are excessive, violate their own standards, and are even more restrictive than those of certain prisons. SPLC is therefore more than likely to succeed on the merits of its Fifth Amendment substantive due process claim.
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C. Defendants’ violation of SPLC’s clients’ constitutional rights causes irreparable harm.
“It has long been established that the loss of constitutional freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Mills v. District of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009) (internal citation and quotation marks omitted); see also Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013) (prospective due process violation constitutes threat of irreparable harm). The mere allegation of a constitutional violation may be sufficient to show irreparable harm when the three other factors for a TRO are satisfied. See Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 304 (D.C. Cir. 2006). More palpably, because of the heightened risk of contracting COVID-19 in the Facilities, especially among vulnerable people in detention, Venters Decl. ¶ 25, adequate and reliable access to counsel to seek release on bond, parole, or habeas is a matter of life and death for SPLC’s clients. In this context, restrictions on SPLCs’ clients’ Fifth Amendment rights indisputably cause irreparable harm.
The facilities’ delays and nonresponses in scheduling remote legal visits with SIFI staff have narrowed the prospects for release for Plaintiff’s clients, increasing their risk of exposure to the coronavirus. At Irwin, for example, because a SIFI attorney’s repeated requests to schedule a VTC with a client were ignored, the call never happened. As a result, the client could not be a plaintiff in habeas litigation seeking release of medically vulnerable people. Williams Decl. ¶ 19; see also Rivera Decl. ¶¶ 23–24 (noting delays in humanitarian parole applications at LaSalle because SIFI cannot conduct interviews). Erratic scheduling practices have damaged SPLC’s clients’ ability to prepare for their immigration hearings with their attorneys, jeopardizing their prospects for immigration relief. Rivera Decl. ¶¶ 24, 52, 56. Further, Defendants’ failure to ensure the availability of remote legal visits has meant that SPLC’s clients must resort to
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conducting legal calls without privacy in the communal day room to more timely consult with their attorneys. Rivera Decl. ¶¶ 36, 46–47; Williams Decl. ¶ 13. And in some cases, this has even led to detained persons being unable to obtain SPLC’s services to seek release from detention. Williams Decl. ¶ 19.
“[T]he irreparable harm here, the denial of access to legal counsel, is apparent on its face.” Fed. Defs of New York, Inc. v. Fed. Bureau of Prisons, 416 F. Supp. 3d 249, 251 (E.D.N.Y. 2019) (prison banned legal visitation outright). Denial of access to counsel and the courts that creates a risk of missed filing deadlines, ineffective relief applications or other motions, and hastily prepared oral presentations at hearings, also creates the threat of irreparable harm warranting emergency relief. Compounding this harm is the risk to SPLC’s clients of contracting COVID-19 and sustaining severe illness, organ failure and even death. This risk increases with the duration of their detention, notwithstanding viable claims for release that they cannot file because of access barriers in Defendants’ control, and this injury is irreparable. The stakes of immigration proceedings are simply too high to deny a respondent access to counsel. See Innovation Law Lab, 342 F. Supp. 3d at 1081 (“The harms likely to arise from the denial of access to legal representation in the context of asylum applications are particularly concrete and irreparable.”); Valentine v. Beyer, 850 F.2d 951, 957 (3d Cir. 1988) (“Clearly no greater harm than the inability to meet filing deadlines, potentially precluding litigation forever, is possible when the question of access to the courts is at issue.”); Doe v. McAleenan, 415 F. Supp. 3d 971, 979 (S.D. Cal. 2019) (“Petitioners allege that without access to counsel, they risk the irreparable harm of a non-reviewable erroneous decision that forces them to return to Mexico to face persecution. Petitioners emphasize the complexity of non-refoulement interviews that they—as unsophisticated migrants in stressful and foreign circumstances—do not understand; and that
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without access to their counsel, their ability to answer questions and meaningfully participate in the interview is significantly impaired. Given the high stakes of the interview, the Court finds Petitioners have shown likelihood of irreparable harm.”).
The injury caused by the loss of access to counsel and the courts is not only irreparable, but for SPLC’s clients concrete and ongoing. To obstruct someone’s access to counsel as she tries to challenge her detention in a facility with confirmed COVID-19 cases where “ICE will be unable to stop the spread of the virus through the facility,” (Venters Decl. ¶ 9), and to defend against her removal, is to deny her the right to counsel when she needs it most. In the last month, while SIFI attorneys have struggled to schedule phone calls and set up VTC appointments to communicate with their clients, EOIR courts have operated as if it were business as usual. Rivera Decl. ¶ 15. SPLC’s clients have had to prepare various filings and prepare for hearings with reduced assistance from their legal teams. Rivera Decl. ¶ 25; Williams Dec. ¶¶ 7, 19, 11. Immigration law is second only to the tax code in complexity; it is “a labyrinth that only a lawyer could navigate.” Biwot v. Gonzales, 403 F.3d 1094, 1098 (9th Cir. 2005). Without adequate and reliable access to their counsel, SPLC’s clients suffer real harm as they try to navigate this labyrinth during this deadly pandemic.
D. The balance of equities and the public interest weigh in favor of restraining Defendants from violating SPLC’s clients’ constitutional rights.
The balance of equities and the public interest favor issuing a temporary restraining order to remove the access barriers between SPLC and its clients at Defendants’ facilities. When the government is the non-movant, these final considerations for a grant of injunctive relief merge into one “because the government’s interest is the public interest.” Pursuing Am.’s Greatness v. FEC, 831 F.3d 500, 511 (D.C. Cir. 2016) (emphasis in original). A movant may satisfy this factor by demonstrating a violation of her constitutional rights. Simms v. District of Columbia,
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872 F. Supp. 2d 90, 105 (D.D.C. 2012) (“It is always in the public interest to prevent the violation of a party’s constitutional rights.”); see also Upshaw v. Alameda Cty., 377 F. Supp. 3d 1027, 1033 (N.D. Cal. 2019) (finding public interest in enjoining punitive conditions of confinement in violation of due process); Doe v. McAleenan, 415 F. Supp. 3d 971, 979 (S.D. Cal. 2019) (“[T]he public interest is served by allowing Petitioners’ access to retained counsel prior to and during their non-refoulement interviews.”). In addition to the public interest in the vindication of constitutional rights, the attorney-client relationship is “an institutionally significant . . . relationship” in the American legal system, and as such, a court order protecting that relationship “advances broader public interests in the observance of law and administration of justice.” Council on Am.-Islamic Relations, 667 F. Supp. 2d at 79 (internal quotation marks and citation omitted).
A TRO would serve the public interest by ensuring the protection of SPLC’s clients’ constitutional rights and upholding the integrity of removal proceedings during the COVID-19 pandemic. It also would place a minimal administrative burden on Defendants given the limited scope of relief requested. SPLC seeks an order which largely mirrors policies envisioned by Defendants’ own regulations and guidance. See Min. Order at 11, Torres, No. 5:18-CV-2604 (ECF No. 144) (“Although a grant of relief requires Defendants to take steps to ensure access to counsel, any administrative burden will be minor based on the limited scope of that relief, which can mirror policies already envisioned by Defendants’ own regulations and guidance.”). An order enforcing Defendants’ own access standards requires Defendants to enforce what they already have the authority and means to do. All Facilities were always supposed to have, for example, “at least one operable telephone for every 25 detainees,” legal calls unlimited in number or duration, and confidential phone lines, but simply never have. PBNDS 5.6(V)(A)(1);
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id. (V)(F)(1)–(2). Defendants have the ultimate and non-delegable constitutional obligation to ensure that conditions in the facilities comply with constitutional, statutory, and regulatory mandates. Defendants also have the contractual authority to require this from their operators, and an extensive monitoring and compliance bureaucracy to ensure that it happens.4 All this motion asks is that they finally, and immediately, fulfill those obligations and use their authority, which they have historically refused to do. Schriro Decl. ¶¶ 17–24.
E. The Court should waive a security bond for this application. SPLC also requests that the Court exercise its broad discretion to waive any security bond for issuance of the TRO. Federal Rule of Civil Procedure 65(c) provides that “[t]he court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” However, it is well settled that, “[t]he amount of security required is a matter for the discretion of the trial court; it may elect to require no security at all.” Citizen's Alert Regarding Env’t v. U.S. Dep't of Justice, No. 95-CV-1702, 1995 WL 748246, at *12 n.10 (D.D.C. Dec. 8, 1995) (citation omitted). “Waiving the bond requirement is particularly appropriate where a plaintiff alleges the infringement of a fundamental constitutional right.” Complete Angler, LLC v. City of Clearwater, Fla., 607 F. Supp. 2d 1326, 1335 (M.D. Fla. 2009). To impose a financial condition on the vindication of a movant’s constitutional right may “impact negatively on the exercise of” those rights. Smith v. Bd. of Election Comm'rs for City of Chicago, 591 F. Supp. 70, 72 (N.D. Ill. 1984).
4 See Nat’l Immigrant Justice Ctr, ICE Offices Involved in Detention Center Inspections, https://immigrantjustice.org/sites/immigrantjustice.org/files/images/T%26HR%20DHS%20flow %20chart%20linked%20version2.pdf.
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SPLC is a non-profit organization seeking to vindicate the constitutional rights of its indigent clients who are civilly detained. The possible loss that Defendants would suffer from a TRO requiring they comply with the Constitution and enforce their own detention standards is minimal. SPLC merely asks that Defendants comply with their constitutional obligations—in part, by enforcing various parts of the PBNDS requiring free legal phone calls, prohibiting limitations on legal communications, requiring competent scheduling, and requiring a sufficient ratio of phone or VTC equipment to detained persons. The relief SPLC seeks that is beyond the mere enforcement of the PBNDS also imposes a minimal administrative burden. Providing detained persons with documents through fax or email, for instance, at facilities where attorneys already communicate with staff through fax or email does not entail purchasing or designing any new communication systems. When the possible monetary loss caused by an injunction is minimal, waiver or a minimal bond is appropriate. See, e.g., Simms v. District of Columbia, 872 F. Supp. 2d 90, 107 (D.D.C. 2012) (“[T]he costs or damages sustained by the District would be modest…”).
F. The relief sought is tailored to the access barriers created by Defendants’ COVID-19 access restrictions
This Circuit has “long held that an injunction must be narrowly tailored to remedy the specific harm shown.” Nebraska Dep’t of Health & Human Servs. v. Dep’t of Health & Human Servs., 435 F.3d 326, 330 (D.C. Cir. 2006). SPLC seeks relief that is particularly tailored to the specific access barriers and substantive due process violations at Defendants’ Facilities. SPLC has demonstrated that unreliable scheduling, delays, restrictive time limits, poor connectivity, lack of confidentiality in remote legal communications, and restrictions on legal document exchange obstruct its clients’ access to counsel and the courts. As a remedy, SPLC seeks more robust scheduling systems and staffing, the removal of time limits on communications,
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maintenance of phones and VTC systems, the provision of private settings for confidential legal communications, and an ability to exchange necessary legal documents with clients through a reliable and effective method (e.g., fax or e-mail).
These remedies fit the violations narrowly. See, e.g., Min. Order at 12–14, Torres, No. 5:18-CV-2604 (ECF No. 144) (finding free legal phone calls, 24-hour scheduling system, and document drop box appropriately tailored remedies to similar access barriers); Innovation Law Lab, 310 F. Supp. 3d at 1165 (issuing TRO requiring new phone lines be installed, that detained immigrants have expanded access to legal calls, and that staff resources be dedicated to accommodate increase in attorney visits); McClendon v. City of Albuquerque, 272 F. Supp. 2d 1250, 1260 (D.N.M. 2003) (enjoining jail from limiting the length of legal calls).
SPLC has also demonstrated that Defendants are violating its clients’ substantive due process rights to be free from punitive conditions by confining them in conditions that are worse than those in facilities where individuals with criminal convictions are held. The remedies SPLC seeks for this constitutional violation are also narrowly tailored. See Basank v. Decker, No. 20CV-2518, 2020 WL 1481503, at *7 (S.D.N.Y. Mar. 26, 2020) (TRO releasing medically vulnerable persons from ICE detention); Fraihat, 2020 WL 1932570, at *25 (preliminary injunction ordering nationwide custody reviews of medically vulnerable persons in ICE detention); Mem. Op. at 33–37, Mays v. Dart, No. 1:20-CV-2134 (N.D. Ill. Apr. 9, 2020), ECF No. 47 (issuing TRO ordering various sanitation measures but declining to release detained persons in Cook County Jail during coronavirus pandemic); Mem. Op. at 27–29, Banks v. Booth, No. 1:20-CV-849 (D.D.C. Apr. 20, 2020), ECF No. 51 (issuing TRO ordering D.C. DOC provide various sanitation measures and adhere to social distancing protocols).
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V. Conclusion For the reasons set forth above, SPLC respectfully requests this Court enter a Temporary
Restraining Order requiring Defendants to immediately implement the requested remedies.

Dated: May 7, 2020

Respectfully submitted,

/s/ Shalini Goel Agarwal Shalini Goel Agarwal (Fla. Bar No. 90843)* Southern Poverty Law Center 106 East College Avenue, Suite 1010 Tallahassee, Florida 32302 Tel: (850) 521-3024 shalini.agarwal@splcenter.org
/s/ Lisa Graybill Lisa Graybill (Tx. Bar No. 24054454)* Jared Davidson (La. Bar No. 37093)* Conor Gaffney (La. Bar No. 38225)* Southern Poverty Law Center 201 St. Charles Avenue, Suite 2000 New Orleans, LA 70170 (504) 486-8982 lisa.graybill@splcenter.org jared.davidson@splcenter.org conor.gaffney@splcenter.org

/s/ William E. Dorris William E. Dorris (Ga. Bar No. 225987)* Susan W. Pangborn (Ga Bar. No. 735027)* Jeffrey Fisher (Ga. Bar No. 981575)* Kilpatrick Townsend & Stockton LLP 1100 Peachtree Street NE, Suite 2800 Atlanta, GA 30309 (404) 815-6104 bdorris@kilpatricktownsend.com spangborn@kilpatricktownsend.com jfisher@kilpatricktownsend.com
/s/ John T. Bergin John T. Bergin (DC Bar #448975) Kilpatrick Townsend & Stockton LLP 607 14th Street NW, Suite 900 Washington, DC 20005 (202) 481-9942 jbergin@kilpatricktownsend.com

*Admitted Pro Hac Vice

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DECLARATION OF ARISTOTELES SANCHEZ MARTINEZ I, Aristoteles Sanchez Martinez, declare the following is true to the best of my knowledge:
1. I am at least 18 years of age and am competent to sign this declaration. I am originally from Venezuela. I was in ICE custody from approximately September 2018 to April 16, 2020. I was transferred to Stewart Detention Center in Lumpkin, Georgia, on March 23, 2020, from the Houston Contract Detention Facility (“HCDF”) in Houston, Texas. I had been at HCDF since about January 10, 2020. Before HCDF, I was at Stewart Detention Center (“Stewart”). Previously, I was at Folkston ICE Processing Center in Folkston, Georgia.
2. I am a named plaintiff in Fraihat v. ICE. I am also a petitioner in Sanchez Martinez v. Donahue. While I was detained at Stewart Detention Facility during the pandemic, my medical care continued to decline and I was very afraid, as my many medical conditions put me at a higher risk for contracting COVID-19. I faced many obstacles trying to speak to my attorneys in Fraihat v. ICE and Sanchez-Martinez v. Donohue.
3. I am 47 years old and have several medical conditions that make me vulnerable to COVID-19. I have Type II diabetes and hypertension, which both put me at a higher risk for contracting COVID-19. While I was in ICE custody, my hemoglobin A1C levels and sugar levels were dangerously high, at times at 9.7 and 345, respectively. I am recovering from a hernia repair surgery that occurred on or around March 11, 2020. The surgeon removed a large right flank hernia on my abdomen, which had grown substantially since being in ICE custody. I also have neuropathy, a bone spur on my left foot, Charcot foot, avascular necrosis, non-palpable pulses in lower extremities, and venous insufficiency.
4. When I was transferred from HCDF to Stewart on or about March 22, 2020, I was not given any reason for my transfer. Nor, to my understanding, was my attorney notified about the transfer. When I arrived at Stewart, I placed a collect call to my daughter from the shared telephones in my unit to ask her to let my Fraihat attorney know that they transferred me back to Stewart.
5. To my knowledge, the only options available for me to speak to my attorneys was by Skype call that my attorneys had to set up with the facility, or by telephone collect call using one of the telephones in my unit. In the almost four weeks that I was detained in Stewart during the pandemic, I only had two skype calls with my attorneys. My attorneys and I had to talk on the telephone in my unit and coordinate our next conversation to be placed on those phones.
6. My attorneys for the two cases explained to me that they would be paying for this call but that we could not treat this communication as a confidential legal call. They explained that

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their phone numbers should be on a “do-not-monitor” list, but that ICE had not given them a written confirmation of this fact. So, it was difficult to speak about important and confidential information.
7. I also was very careful about what I shared during these telephone calls because I was not very comfortable speaking in the common area and surrounded by other detainees. I was also scared to be using the phone too often, because I knew that it was not cleaned, and it was used by many other detainees. Because we were not provided with our own additional cleaning supplies, I used to use the alcohol pad that the nurse gives me when I receive my insulin shot to wipe down the telephone.
8. I was never given instructions for how to ensure my attorneys’ phone numbers were on the do-not-monitor list. One time, towards the end of the Skype, my attorney asked the guard who came to take me back to my unit if there was a way to confirm this fact or make this happen. The guard said that “he could do it,” referring to me. I did not know of any process and the guard did not explain anything to me when he brought me back to my unit.
9. One of the days I had coordinated with my attorney to speak with her on the shared telephone, I could not call her until because my entire unit was placed on lockdown. I was locked inside my cell.
10. Until March 31, I was living in a dorm unit with approximately eighty (80) other men. I shared a cell with another detainee. The entire unit had eight telephones to share. We were regularly in close proximity to each other and did not have the ability to exercise any social distancing. I was also initially placed in a wheelchair that I could not move on my own and I relied on other people, including my cellmate, to help me move.
11. On Tuesday, March 31st, I was transferred to a separate dorm unit at Stewart. In that unit, I was living in a dorm with approximately twenty (20) other men. I was assigned a cell without any roommates. The unit had about nine telephones, at least one of them was broken. I usually used the same phone. Everyone in the unit would share a shower and eat our meals at the tables in the common area within 6 feet of each other.
12. Since the COVID-19 crisis started and throughout my time at Stewart, ICE did not make any changes to the cleaning schedule for our dorm. My unit was only cleaned by other detainees who did not seem to have adequate cleaning supplies. I never once saw a detainee or someone who works at Stewart cleaning the telephones. Nor were we provided with additional cleaning supplies to keep our dorm disinfected and sufficiently clean.

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13. ICE maintained the same schedule for distribution of personal hygiene supplies. Every Thursday, we received one toilet paper roll, batteries, one small bar of body soap (for washing hands and showering), one bottle of body lotion, and one tube of toothpaste. When we would run out of these provisions before the end of the week, the only option was to buy additional supplies at the commissary.
14. Guards would often enter and exit our unit without masks. I was not given a mask until around the time of my last Skype call with my attorney. I was never provided with gloves. Rather, I saw one glove that a guard had just discarded, so I picked it up and used it for my own safety.
15. During my time in ICE detention, before the pandemic, I used to try and spend as much time as possible at the law library. But during the pandemic, I was scared to go there because I worried that it will not be cleaned.
16. Instead, to keep myself busy, I spent my time playing videogames in the common area of the unit. But, even there, I was worried for my life. Again, because we were not provided with additional cleaning supplies, I used to use the alcohol pad that the nurse gives me when I receive my insulin shot to wipe down the video console.
I declare under penalty of perjury that the statements above are true and correct to the best of my knowledge. Executed on May 6, 2020
____________________________

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DECLARATION OF DR. DORA SCHRIRO
I, Dora Schriro, declare as follows:
I. Background and Qualifications
1. I am a career public servant who has served as an executive-level administrator, policy maker, and homeland security advisor. I was appointed to lead a number of city and state agencies and a federal office.
2. I was the Commissioner of the Connecticut Department of Emergency Services and Public Protection consisting of six state agencies including the Connecticut State Police and Homeland Security and Emergency Management, from 2014 through 2018. I served concurrently as Connecticut’s Homeland Security Advisor from 2016 through 2018. My Department of Homeland Security (DHS) security clearance was Top Secret. During my tenure as Director, we grappled with Ebola and through our Division of Emergency Management and Homeland Security, developed a protocol specifically for the state’s first responders. Additionally, as the state’s Homeland Security Advisor, I interfaced with many of the DHS offices and agencies on an ongoing basis including the Federal Emergency Management Agency with which we had an active and ongoing partnership.
3. I was Senior Advisor to DHS Secretary Janet Napolitano on U.S. Immigration and Customs Enforcement (ICE) Detention and Removal, and the founding Director of the ICE Office of Detention Policy and Planning in 2009. During my tenure, I authored the report Immigration Detention Overview and Recommendations, DHS’ template for immigration detention reform. My report included a number of recommendations specific to risk assessments, the continuum of control, pre-release planning, alternatives to detention, and healthcare. Specific to healthcare, I found the assessment, treatment, and management of pandemic and contagious diseases was inconsistent across Division of Immigration Health Services (DIHS)-staffed and non-dedicated facilities and recommended improvements should be made to ensure that all facilities are capable of managing large-scale outbreaks. Access to legal information, another mandated service, was often treated as optional and had to be addressed. Accountability, the operating framework and process for decisionmaking, was not but should the means by which ICE would provide oversight, pursue improvement, and achieve transparency. I regret to say these conditions continue to affect the agency’s performance today.
4. I was the Commissioner of two city jail systems: the St. Louis City Division of Corrections, which included the St. Louis Police Department Prison Intake Facility, from 2001 to 2003; and the New York City (NYC) Department of Correction from 2009 to 2014. I was also the Warden of the Medium Security Institution, a jail in St. Louis City, Missouri, from
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1989 to 1993. During an earlier appointment to the NYC Department of Correction as Assistant Commissioner for Programs Services from 1985 to 1989, I was responsible for most the mandated activities including the operation of all the jails’ law libraries.
5. I was the Director of two state correctional systems: the Missouri Department of Corrections, which encompasses state prisons, probation, and parole, from 1993 to 2001; and the Arizona Department of Corrections, which encompasses state prisons and parole, from 2003 to 2009. During my tenure as Director of the Arizona Department of Corrections, the department was the first correctional system to be selected Winner of the Innovations in American Government awards program, for a prison-based reform that we named Parallel Universe, pre-release preparation in which all inmates participated from the first to the last day of their incarceration guided by norms and values closely mirroring those of the community. As Director of the Missouri Department of Corrections, I also served on the state’s Sentencing Commission.
6. I was a member of the adjunct faculties of University of Missouri-St. Louis Department of Criminology from 1990 to 1998, St. Louis University School of Law from 2000 to 2002, and Arizona State University Sandra Day O’Connor School of Law from 2005 to 2008, during which time I taught graduate-level Criminology and Correctional Law courses and led Sentencing Seminars.
7. I have served continuously on the Women’s Refugee Commission since 2012, and the American Bar Association (ABA) Commission on Immigration since 2014.
8. I am knowledgeable about both the American Correction Association and ICE Performance-Based and National Detention Standards, including Medical Care, Disability Identification, Assessment and Accommodations, and Classification Systems, which is premised on objective, evidence-based risk assessments and the least restrictive housing and community-based assignments consistent with those assessments. I have also participated in the development of ABA professional standards for both correctional systems and ICE detention facilities. I am familiar with the California Board of State and Community Corrections Title 15 Minimum Standards for Local Detention Facilities.
9. I am knowledgeable about the operation of civil detention and criminal pre-trial and sentenced correctional facilities, and the individuals in the custody of both systems.
10. I have served as a corrections expert for the California Department of Justice, Disability Rights California, and the Hampton County, Massachusetts Sheriff’s Department. I am currently engaged by the California Department of Justice, the Southern Poverty Law
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Center, the American Civil Liberties Union, Human Rights First, and the St. Louis University School of Law Legal Clinics.
11. A complete and correct resume, which includes a list of my publications from the last ten years, is attached as Appendix A.
12. In the previous four years, I have testified as an expert at trial or by deposition in the following case: Endicott v. Hurley, No. 2:14-cv-107 DDN (E.D. Mo.).
13. The Southern Poverty Law Center (SPLC) represents immigration detainees assigned by ICE to the Pine Prairie ICE Processing Center (Pine Prairie facility) and the LaSalle ICE Processing Center (LaSalle facility) in Louisiana, and the Stewart County Detention Center (Stewart facility) and the Irwin County Detention Center (Irwin facility) in Georgia. The Pine Prairie ICE facility, the LaSalle facility, and the Stewart facility are dedicated immigration facilities; the Irwin facility is not.1 A dedicated facility may house only immigration detainees whereas a non-dedicated facility may house one or more correctional populations in addition to ICE detainees.
14. The Pine Prairie facility, the LaSalle facility, and the Stewart facility must comply with ICE 2011 Performance-based National Detention Standards (PBNDS)(revised 2016).2 The Irwin facility must comply with ICE 2008 Performance-based National Detention Standards.3 These detention standards set forth minimum requirements for the care of persons in ICE custody.
15. Access to Counsel requirements are enumerated in five detention standards.4 They are Standard 6.4 Law Libraries and Legal Material5 and Standard 6.5 Legal Rights Group Presentations6 each one in its entirely, and relevant portions of Standard 5.1
1 Facility Inspections, ICE Dedicated Non-Dedicated Facility List (4.6.20), https://www.ice.gov/facility-inspections, [hereinafter ICE Facility Inspections]. 2 ICE 2011 Performance-based National Detention Standards (rev. Dec. 2016, last reviewed/updated Dec. 18, 2019), https://www.ice.gov/detention-standards/2011 [hereinafter 2011 PBNDS]. 3 Id. ICE 2008 Performance-based National Detention Standards (last reviewed/updated Dec. 18, 2019), https://www.ice.gov/detention-standards/2008, [hereinafter 2008 PBNDS]. 4 ICE Detention Standards, https://www.ice.gov/factsheets/facilities-pbnds 5 ICE 2008 PBNDS, Law Library and Legal Research Material, https://www.ice.gov/doclib/dro/detentionstandards/pdf/law_libraries_and_legal_material.pdf; ICE 2011 PBNDS, Law Library and Legal Research Material, https://www.ice.gov/doclib/detention-standards/2011/6-3.pdf [hereinafter, collectively, “PBNDS Law Library and Legal Research”]. 6 ICE 2008 PBNDS, Legal Rights Group Presentation, https://www.ice.gov/doclib/dro/detentionstandards/pdf/law_libraries_and_legal_material.pdf; ICE 2011 PBNDS, Legal Rights Group Presentation, https://www.ice.gov/doclib/detention-standards/2011/6-4.pdf. [hereinafter, collectively, “PBNDS Legal Rights Group Presentation”].
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Correspondence and Other Mail,7 Standard 5.6 Telephone Access,8 and Standard 5.7 Visitation.9 This analysis is based upon four of the five standards, Correspondence and Other Mail, Telephone Access, Visitation, and Law Libraries and Legal Material. Consideration of Law Libraries and Legal Material is included because it also directly addresses the issues at hand. Also considered are revisions adopted by ICE in 2016, and applicable to all facilities, to fortify its commitment and rectify compliance issues impacting limited English proficiency detainees, detainees with disabilities, and detainees in special housing units.10 Performance indicators for each of these detention standards are provided as Appendix B.
16. There are few substantive differences between 2008 and 2011 Performance-based National Detention Standards (rev. 2016) concerning Access to Counsel.11 The 2016 Revisions are applicable to all facilities.12 This analysis is based on the 2011 Performance-based National Detention Standards (rev. 2016).
II. DHS and ICE Have Historically Failed to Adequately Monitor and Oversee Its Detention Facilities
17. As detailed in Section V below, DHS and ICE are currently failing to ensure that the individuals in its custody have crucially needed access to lawyers during the COVID-19 pandemic. To provide historical context for this current failure, I briefly trace in this section ICE’s long-entrenched abdication of its oversight function.
18. ICE monitors immigration detention facility activity and operations by several means to ensure compliance and to address deficiencies. They include on-site agency monitors at larger facilities; an independent office, the Office of Detention Oversight, within ICE but outside of Enforcement and Removal Operations (ERO) to conduct independent reviews; and a contract with the Nakamoto Group Inc. to make annual inspections.
7 Id. ICE 2008 PBNDS, Correspondence and Other Mail, https://www.ice.gov/doclib/dro/detentionstandards/pdf/correspondence_and_other_mail.pdf; ICE 2011 PBNDS, Correspondence and Other Mail, https://www.ice.gov/doclib/detention-standards/2011/5-1.pdf [hereinafter, collectively, “PBNDS Correspondence and Other Mail”]. 8 Id. ICE 2008 PBNDS, Telephone Access, https://www.ice.gov/doclib/dro/detentionstandards/pdf/telephone_access.pdf; ICE 2011 PBNDS, Telephone Access, https://www.ice.gov/doclib/detentionstandards/2011/5-6.pdf[hereinafter, collectively, “PBNDS Telephone Access”]. 9ICE 2008 PBNDS, Visitation, https://www.ice.gov/doclib/dro/detention-standards/pdf/visitation.pdf; ICE 2011 PBNDS, Visitation, https://www.ice.gov/doclib/detention-standards/2011/5-7.pdf [hereinafter, collectively, “PBNDS Visitation”]. 10 ICE Detention Standards, https://www.ice.gov/factsheets/facilities-pbnds, 2016 Revisions, Summary of Revisions to the ICE Performance-Based National Detention Standards, December 2016, (last reviewed/updated Dec. 18, 2019), https://www.ice.gov/detention-standards/2011 [hereinafter 2016 Revisions]. 11 2008 PBNDS, supra note 3, and 2011 PBNDS, supra, note 2 [hereinafter PBNDS]. 12 2016 Revisions, supra note 15.
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19. These efforts to achieve and maintain compliance, as implemented, have failed to realize their intended outcomes – accountability, transparency, and continuous improvement.
20. The U.S. Office of Government Accountability (GAO) has made several recent studies of ICE detention operations. The GAO identified a number of reoccurring impediments to realizing these minimum requirements including its ongoing inability to assess cost, failure to adopt and assess performance measures across facilities and over time, continued use of multiple detention standards, and an apparent lack of interest in detainee complaints and concerns.
• In October 2014, the Government Accountability Office (GAO) issued GAO-15-153, IMMIGRATION DETENTION, Additional Actions Needed to Strengthen Management and Oversight of Facility Costs and Standards.13 The GAO assessed the two different methods ICE used to collect and access data on detention costs and determined neither method yielded complete or correct data for managing detention costs across facilities and facility types. The GAO also evaluated the three different sets of detention standards that ICE employed, each with its own performance indicators and methodology, and concluded this practice further undercut its efforts towards a uniformly effective and efficient system.
• In February 2016, the GAO issued GAO-16-231, IMMIGRATION DETENTION, Additional Actions Needed to Strengthen Management and Oversight of Detainee Medical Care.14 The GAO determined similar practices impeded ICE Health Service Corp (IHSC) efforts to collect information about on-site and off-site health care services and to assess their utilization. ICE relied incorrectly on facility-specific, yearend decision-making to improve a nationwide health care system over a period of years. IHSC also neglected to conduct trend analyses of key performance indicators including detainee complaints.
• In May 2016, the GAO issued GAO-16-231, IMMIGRATION DETENTION, Additional Actions Needed to Strengthen DHS Management of Short-term Holding Facilities.15 CBP and ICE both operate short-term holding facilities and neither had a mechanism to determine how many detainees exceeded the agencies’ respective facility maximum lengths of stay. The GAO pointed out this problem was compounded by
13 GAO-15-153, Immigration Detention, Additional Actions Needed to Strengthen Management and Oversight of Facility Costs and Standards at https://www.gao.gov/products/GAO-15-153. 14 GAO-16-231, IMMIGRATION DETENTION, Additional Actions Needed to Strengthen Management and Oversight of Detainee Medical Care at https://www.gao.gov/assets/680/675484.pdf. 15 GAO-16-231, IMMIGRATION DETENTION, Additional Actions Needed to Strengthen DHS Management of Short-term Holding Facilities, May 2016, at https://www.gao.gov/assets/680/677484.pdf.
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delays in both agencies’ recording of “book-ins” and “book-outs.” The GAO also considered the various mechanisms DHS used to elicit and address detainees’ complaints and concluded none clearly identified the facilities about which the complaints had been made. The failure to collect timely and complete information about both these activities impacted CBP and ICE assessments of bench (versus bed) utilization16 and their compliance with their respective detention standards.17
21. The Department of Homeland Security Office of the Inspector General (DHS OIG) also studied DHS’ oversight of ICE and reported on ICE detention operations. Of special note are recent reports with findings and recommendations concerning questionable procurement practices, faulty facility inspections and monitoring, continuing noncompliance with detention standards, and repeated failure to enforce contract requirements. • In February 2018, the DHS OIG issued Immigration and Customs Enforcement Did Not Follow Federal Procurement Guidelines When Contracting for Detention Services.18 The OIG determined ICE improperly modified an existing IGSA with the City of Eloy, Arizona to establish a 2,400-bed detention facility in Dilley, Texas, thereby increasing taxpayer cost by $438,00 annually in fees and another undetermined sum annually in detention services. ICE disagreed with OIG’s recommendation to discontinue modifying Eloy’s IGSA to procure detention space in Dilley, Texas. The IGSA remains in place today.
• In June 2018, the DHS OIG issued ICE’s Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or Systemic Improvements.19 This report addressed ICE’s use of two inspection types, annual inspections, and onsite monitoring, to assess detention facilities’ compliance with PBNDS. The OIG determined neither the inspections, a combination of private and public sector efforts, nor onsite agency monitoring, were implemented as intended. As a result, ICE failed to achieve compliance with detention standards and to address the underlying deficiencies. The OIG concluded although the practices ICE adopted mitigated some deficiencies, they did not yield the intended oversight or systematic improvements in detention conditions, some of which had been languishing for years. The OIG made five recommendations and ICE concurred with all of them. Fifteen months later, in
16 Bench or bed capacity is a function of numbers admitted and released within a 24-hour day and each person’s length of stay. 17 Generally, CBP does not keep anyone in its custody for more than 72 hours. ICE designates some of its detention facilities as suitable for detention less than 72 hours and all the rest, for detention greater than 72 hours. 18 DHS OIG, Immigration and Customs Enforcement Did Not Follow Federal Procurement Guidelines When Contracting for Detention Services, February 2018, at https://www.oig.dhs.gov/sites/default/files/assets/201802/OIG-18-53-Feb18.pdf. 19 DHS OIG, ICE’s Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or Systemic Improvements, June 2018, at https://www.oig.dhs.gov/sites/default/files/assets/2018-06/OIG-18-67Jun18.pdf.
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September 2019, Tae Johnson, Assistant Director for Custody Management, ICE Enforcement and Removal Operations, appeared before the Committee on Homeland Security, Subcommittee on Oversight, Management, and Accountability, regarding Oversight of Detention Facilities.20 He reported, responding to the OIG findings, that ICE was reevaluating its current inspection practices and planned to modify some of its requirements. He stated ERO had also begun to monitor Nakamoto, the vendor with which it contracted to monitor detention facilities.
• In January 2019, the DHS OIG issued ICE Does Not Fully Use Contracting Tools to Hold Detention Facility Contractors Accountable for Failing to Meet Performance Standards.21 At the time of that study, ICE contracted for 206 detention facilities. The OIG focused on 106 facilities which, when combined, received in excess of $3 billion the prior year to detain removable aliens. Although ICE had a system in place to manage and oversee detention contracts, just 28 of the 106 contracts included the Quality Assurance Surveillance Plan (QASP) provision, which would allow ICE to impose financial penalties to ensure facilities met performance standards. The OIG determined ICE imposed financial penalties on only two occasions despite documenting thousands of instances of facilities’ failures to comply with detention standards. Instead, ICE issued waivers, exempting facilities with deficient conditions, from complying with certain standards. The OIG discovered ICE also failed to generate written instruction to govern the waiver process, thereby enabling staff at HQ and in the field to grant waivers without clear authority to do so.
• Also, in January 2019, the DHS OIG issued DHS Needs to Improve the Process for Identifying Acquisition Planning Capability Needs.22 DHS acquisition planning had been an area of weakness since the department’s inception. Efforts to improve included a process to guide identification of agency capabilities, gaps, and opportunities, and adding controls to prevent its circumvention by the agencies. DHS was uneven in its enforcement, however; failing to hold the agencies accountable for not following instructions, failing to document those shortfalls, and failing to improve upon the guidance it had previously promulgated.
20 Statement of Tae Johnson, Asst. Director for Custody Management, ICE Enforcement and Removal Operations, regarding Oversight of Detention Facilities, before the Committee on Homeland Security, Subcommittee on Oversight, Management, and Accountability, September 2019, at https://www.ice.gov/sites/default/files/documents/Testimony/2019/190926johnson.pdf. 21 DHS OIG, ICE Does Not Fully USE Contracting Tools to Hold Detention Facility Contractors Accountable for Failing to Meet Performance Standards, January 2019, at https://www.oig.dhs.gov/sites/default/files/assets/201902/OIG-19-18-Jan19.pdf. 22 DHS OIG, DHS Needs to Improve the Process for Identifying Acquisition Planning Capability Needs, January 2019, at https://www.oig.dhs.gov/sites/default/files/assets/2019-02/OIG-19-19-Jan19.pdf.
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22. Most recently, in the wake of the pandemic, ICE suspended all facility annual inspections by the Nakamoto Group, Inc. for 30 days. Despite this vendor’s documented deficiencies, in a time of heightened uncertainty, a marked increase in complaints by detainees, family members, attorneys and other advocates about facilities’ non-compliance with detention standards, and less access by detainees to facility staff for assistance, additional oversight could be beneficial and should be resumed.
23. These failures of oversight extend to the four facilities at issue in this litigation.
• The Irwin County Detention Center,23 It was last inspected by the Nakamoto Group, Inc. (NGI) on June 13, 2019.24 Based on my experience having reviewed hundreds of detention files over the years, detainees filed far more grievances at this facility than at others, with a spike more than twice its elevated rate during the third quarter of 2019; NGI provided no information about those grievances. NGI identified eight deficiencies in five areas, five of which were reoccurring. NGI also provided little information about the deficiencies. NGI determined the facility’s performance was “Acceptable.”
• The Stewart County Detention Center25 was last inspected by the Nakamoto Group, Inc. (NGI) on May 9, 2019.26 The inspection forms that NGI used to conduct this inspection provided only aggregated information. NGI identified four deficiencies, one of which was reoccurring. NGI provided little information about the deficiencies. NGI determined the facility’s performance “Meets Standards.”
• The LaSalle ICE Processing Center27 was last inspected by the Nakamoto Group, Inc. (NGI) on September 26, 2019.28 NGI identified one unspecified deficiency concerning the standard, Law Library and Legal Material. NGI did not provide any information about this deficiency. NGI determined the facility’s performance was “Acceptable.”
23 The Irwin facility, capacity 1,201 beds, houses U.S. Marshal Service (USMS) prisoners, ICE detainees, and Irwin County inmates. Fiscal Year 2020 to date, the ICE average daily population is 754 male and female detainees. ICE accesses the county-owned and -operated facility through the USMS agreement with Irwin County. The facility has no accreditations. It is operated by a private company called LaSalle Corrections. 24 ICE Facility Inspections, Annual Inspection of the Irwin County Detention Center, June 13, 2019, https://www.ice.gov/facility-inspections. 25 The Stewart facility, capacity 1,752 beds, is owned and operated by CoreCivic, formerly Corrections Corporation of America. Fiscal Year 2020 to date, the ICE average daily population is 1,550 male detainees. Stewart County contracts with the CoreCivic and ICE contracts with the county by means of an intergovernmental service agreement. ICE is the only occupant. 26ICE Facility Inspections, Annual Inspection of the Stewart Detention Center, May 9, 2019, https://www.ice.gov/facility-inspections. 27 The LaSalle facility, capacity 1,660 beds, is owned and operated by the Geo Group Inc. (GEO). Fiscal Year 2020 to date, the ICE average daily population is 1,221 male and female detainees. The LaSalle Economic Development Group (EDG) has an intergovernmental service agreement (IGSA) with GEO, and ICE has an IGSA with the EDG. ICE is the only occupant. 28ICE Facility Inspections, Annual Inspection of the LaSalle ICE Processing Center, September 26, 2019, https://www.ice.gov/facility-inspections.
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• The Pine Prairie ICE Processing Center29 was last inspected by the Nakamoto Group, Inc. (NGI) on April 25, 2019.30 At the time of that inspection, the facility was “cohorting” over 500 detainees following an outbreak of mumps among the population. NGI did not indicate whether mandatory services were interrupted during the quarantine and if the facility took any measures to mediate the impact of the quarantine on detainees’ access to mandated services including access to counsel. NGI identified two deficiencies about which no information was provided. Also missing on-line from the file was the accompanying Detention Review Summary Form or the Facility Significant Incident Summary report. NGI determined its performance was “Acceptable.”
24. The examples of failed monitoring described above are not an anomaly. In 2009, DHS Secretary Napolitano appointed me Sr. Advisor on Immigration Detention and Removal Operations and directed that I make a comprehensive review and evaluation of the U.S. Immigration and Custom Enforcement system of immigration detention. Top among the recommendations in the report that followed, I wrote ICE should establish a system of immigration detention with the requisite management tools and informational systems to detain, or supervise in the community, the persons in its custody consistent with their standing as civil detainees held pursuant to civil immigration laws. To fulfill this obligation, ICE must also provide federal oversight of key detention operations to track performance and outcomes, commit to continuous improvement, and hold the agency and its contractors accountable.31
III. DHS & ICE Have a Continuing Duty to Ensure Access to Counsel During COVID-19
25. The mission of the Department of Homeland Security (DHS) is emergency planning and preparedness for all manner of incursions, natural and man-made, foreign and domestic. Realization of this mandate helps to ensure that as a nation, we are ready to respond, informed by the evidence and faithful to the law.
26. The DHS was formed in November 2002. Since its inception, the United States and the world have encountered several pandemic diseases: an influenza pandemic (H1N1) in 2009, Ebola, also a viral infection in 2014, and the coronavirus (COVID-19) in 2020. In
29 The Pine Prairie facility, capacity 700 beds, is owned and operated by the GEO Group Inc. (GEO). Fiscal Year 2020 to date, the ICE average daily population is 641 male detainees. ICE contracts directly from GEO. ICE is the only occupant. 30ICE Facility Inspections, Annual Inspection of the Pine Prairie ICE Processing Center, April 25, 2019, https://www.ice.gov/facility-inspections. 31 Dora Schriro, DHS Immigration and Customs Enforcement, Immigration Detention Overview and Recommendations, Oct. 6, 2009, https://www.ice.gov/doclib/about/offices/odpp/pdf/ice-detention-rpt.pdf.
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the United States, the Department of Homeland Security along with the Department of Health and Human Services are the primary federal agencies whose responsibility it is plan, prepare and respond.
27. In detention facilities, infectious and contagious diseases such as mumps, measles, and chicken pox, reoccur periodically. Usually, the consequences are not severe and there are vaccines for some/all of them. Despite the regularity with which these outbreaks occur, ICE has not improved its practices, and is still prone to quarantining large groups of detainees, failing to screen and separate detainees who may be at risk by more measured means, and repeatedly disrupting detainees’ access to counsel.
28. DHS’s mandate to plan for emergencies including medical emergencies such as N1H1, Ebola and the coronavirus pandemics, and ICE’s custodial obligations, require ensuring that its COVID-19 response protects detained individuals’ ready access to their lawyers. Yet, as detailed herein, both DHS and ICE are failing to ensure that people have access to lawyers during this crucial time.
29. COVID-19 is a highly infectious and deadly disease. There is no vaccine to prevent transmission, and there is no cure for COVID-19 today.32 The likelihood of recurrence is great.33
30. As of May 4, there were 3,529,408 confirmed cases of COVID-19 resulting in 248,025 deaths worldwide. The United States accounted for 1,194,145 confirmed cases and 68,797 deaths, more than any other country.34 The states of Louisiana and Georgia have been severely impacted as well. There have been 29,673 confirmed cases and 1,991 deaths in Louisiana including the Evangeline Parish where the Pine Prairie ICE Processing Center (Pine Prairie facility) is located and reported 60 confirmed cases and one death, and the LaSalle Parish where the LaSalle ICE Processing Center (LaSalle facility) is located and reported 27 confirmed cases. In Georgia, there have been 29,145 confirmed cases and 1,207 deaths including Stewart County where the Stewart County Detention Center (Stewart facility) is located and reported 25 confirmed cases, Irwin County where the Irwin County Detention Center (Irwin facility) is located and reported 18 positive cases and one death.35 ICE detainees account nationwide for 606 confirmed cases including the 25 people held at
32 Coronavirus Disease 2019 (COVID-19): Situation Summary, CDC, (LAST UPDATED APR. 26, 2020, 5:59PM), https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/summary.html. 33 Ed Yong, How the Pandemic Will End, ATLANTIC (Mar. 25, 2020), https://www.theatlantic.com/health/archive/2020/03/how-will-coronavirus-end/608719/. 34 Coronavirus (COVID-19) pandemic, May 4, 2020, at 1:47 PM, https://www.bing.com/search?q=pa+map+of+covid+19+cases+by+county&form=ANSPH1&refig=0afa3913a0be4a 0fad9408b8f9276010&sp=2&qs=SC&pq=pa+map+of+covid-19+casse&sk=PRES1SC1&sc=224&cvid=0afa3913a0be4a0fad9408b8f9276010 [hereinafter COVID-19 cases]. 35 Id.
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Pine Prairie facility, and 10 people held at the LaSalle facility in Louisiana, and 11 people held at the Stewart facility and 2 people held at the Irwin facility in Georgia.36 An additional 39 confirmed cases represent ICE employees assigned to detention facilities including 2 staff members assigned to the Steward facility in Georgia.37 ICE does not report the status of detention staff employed by the facilities.
31. The lethal and highly infectious nature of COVID-19 makes it even more important that DHS and ICE ensure individuals in detention can reliably and adequately communicate with lawyers.
32. For example, at each of the facilities at issue, immigration proceedings are ongoing.38 Access to immigration lawyers is not only important for purposes of the removal determination itself, but immigration attorneys may be able to obtain their clients’ release on bond or parole—especially given the dangers of detention during COVID-19. It is therefore incumbent on detention officials to ensure that detained people can freely communicate with their attorneys (and their attorneys’ agents) during this pandemic.
33. Moreover, ready access to attorneys during COVID-19 is crucial for ensuring that detained persons’ constitutional right to adequate medical care and statutory rights to disability accommodations are respected during this pandemic. Across the country, many detained persons are filing actions related to inadequate medical care and poor conditions during the COVID-19 pandemic. DHS and ICE are obligated to ensure that detained persons can communicate with lawyers concerning their conditions of confinement and are not impeded from accessing courts to vindicate their constitutional and statutory rights.
IV. Consistent with a Long History of Oversight Failures, DHS and ICE Are Failing to Ensure Access to Counsel at the Four Facilities During COVID-19.
34. As detailed below, DHS and ICE are failing to ensure that people in their custody can adequately and reliably communicate with attorneys during the COVID-19 pandemic, including at the four facilities at issue.
35. To date, DHS and ICE have not issued any comprehensive guidance or mandate to ensure that attorney access is not materially impeded during the COVID-19 pandemic. I first outline ICE’s inadequate response to COVID-19 as it relates to attorney communications.
36 ICE Guidance on COVID-19, Confirmed Cases, last updated May 4, 2020 at 5:30PM. 37 Id. 38 U.S. Department of Justice, Executive Office for Immigration Review, EOIR Operational Status During Coronavirus Pandemic, (last reviewed May 4, 2020), https://www.justice.gov/eoir/eoir-operational-status-duringcoronavirus-pandemic.
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I then explain how, as a direct consequence, the four facilities at issue here fail to ensure adequate and reliable attorney communications for those in its custody.
36. To date, ICE has issued three directives of consequence concerning access to counsel and COVID-19. None of them is sufficient and, critically, none of them unequivocally mandates that detention facilities make crucially needed modifications to ensure that detained persons can adequately and reliably communicate with attorneys.
37. The ICE Health Services (IHSC) issued the first of the three directives, IHSC Interim Reference Sheet on 2019-Novel Coronavirus (COVID-19), on March 6, 2020.39 It did not concern access to counsel per se; however, the agency’s approach to ascertaining whether symptomatic and monosymptomatic individuals were infected with the virus primarily by means of “cohorting” large numbers of detainees together for days had a profound impact on their health and their access to counsel.
38. ICE issued the second of three directives, Memorandum on Coronavirus Disease 2019 (COVID-19), Action Plan, Revision 1, on March 27, 2020.40 Its stated goal was to ensure a unified response but that was not the case. The Memorandum is applicable only to ICE’s 42 dedicated facilities therefore, it applies to the Stewart, LaSalle and Pine Prairie facilities and not to the Irwin facility.41 With regards to the remaining 191 non-dedicated facilities, ICE deferred to local, state, tribal, territorial and federal public health authorities, recommending the actions contained in this memo be considered best practices.42 Its brief treatment of only some of the issues relevant to access to counsel failed to provide crucially needed mandates for all detention centers. The affirmation, “Detainee access to legal representatives remains a paramount requirement…,” was undercut mid-sentence with the qualification, “… and should be accommodated to the maximum extent practicable,”43 language that signals individual detention facilities may continue to do as they please without fear of any consequences on their underlying contracts with ICE.
39. The Memorandum’s brief treatment of other issues key to access to counsel failed to provide crucially needed mandates for all detention centers in the following ways.
39 ICE Health Service Corps, Interim Reference Sheet On 2019-Novel Coronavirus (COVID-19) (Mar. 6, 2020) [hereinafter IHSC Interim Reference Sheet]. 40 ICE Enforcement and Removal Operations, Memorandum on Coronavirus Disease 2019 (COVID-19) Action Plan, Revision 1, ICE (Mar. 27, 2020), https://www.ice.gov/doclib/coronavirus/attF.pdf [hereinafter March 27 ICE Memorandum]. 41 A dedicated facility is an immigration detention center that houses only ICE detainees. A non-dedicated facility hosts more than one confined population. ICE currently utilizes 233 facilities to detain persons in its custody of which 42 are dedicated and 191 are non-dedicated. IHSC staffs 21 of the 42 dedicated detention facilities. 42 ICE Facilities List, Facility Inspections, supra note 1. 43 March 27 ICE Memorandum, supra note 40.
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• ICE directed that facilities shall afford indigent detainees the same access and related privileges as are other detainees including the ability to make calls to the ICE-provided list of free legal service providers and consulates at no charge to the detainee or receiving party.44 ICE did not require facilities to submit a plan with a timeline or to report progress.
• ICE directed that legal visitation must continue unless determined to pose a risk to the safety and security of the facility.45 These are subjective terms for which ICE did not provide clear definitions or require field office review and opportunity for appeal.
• ICE stated that attorneys should be offered non-contact visitation (e.g., Skype or teleconference) first to limit exposures, but stipulated in-person contact visits should be permitted if determined essential by the legal representative.46 ICE added that the ultimate legal visit approving authority lies with the warden or facility administrator, however; in which case the facility should notify the field office of any denied visit at the earliest opportunity.47 ICE delegated its decision-making entirely to the facilities without any provision to review facility denials of attorneys’ essential in-person meetings with clients.
• ICE directed that modified operations should be implemented to maximize social distancing in facilities “as much as practicable.” Administrators should consider staggered mealtimes and recreation to limit congregate gatherings.48 ICE provided no statement affirming that Law Library access is mandated, legal mail must be delivered timely without first being searched, document exchange must be facilitated, facsimiles and emails accepted, notarizing and making copies of documents must remain readily available, and scheduling of confidential phone calls and video visitation and including those utilizing interpreters must continue and without delay.
40. ICE issued the third of three directives, COVID-19 Pandemic Response Requirements, Version 1.0, on April 10, 2020.49 The Pandemic Response Requirements (PPR) is the first communication from ICE to require all detention facilities comply with CDC guidance and which includes CDC recommendations about access to counsel, but not all of which ICE incorporated in its requirements. The PRR also directs all detention facilities comply with both the provisions of their relevant ICE contract or agreement and the detention standards applicable to their facility, already longstanding obligations. Additionally, ICE directs
44 Id., p. 2. 45 Id. 46 Id. 47 Id. 48 Id., p. 6. 49 ICE, ERO. Pandemic Response Requirements [hereinafter ERO COVID-19 PPR].
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dedicated facilities must continue to comply with its March 27 Memorandum to Detention Wardens and Superintendents and subsequent updates.
41. ICE Pandemic Response Requirements (PRR) contain critical enforcement tools that are required – its detention standards, facility contracts, and pandemic instruction – to provide the detained population with the access to counsel it is owed, and that is precisely the problem. The PRR identifies a number of crucially needed modifications in a number of areas including access to counsel—such as leveraging technology and facilitating telephonic appointments— and still, it fails to expressly mandate that these modifications be implemented. Instead, the PRR merely states over and over that these modifications “may” be implemented to the extent practicable.
42. The Pandemic Response Requirements suggest several ways to enhance legal visits. Nevertheless, the PRR is highly unlikely to rectify longstanding issues affecting access to counsel. Since its release, impediments to access have worsened for attorneys and their clients. These Requirements, as were those in the previous Memorandum, are merely requests.
43. ICE directed that during suspended (social) or modified (legal) visitation programs, facilities should provide access to virtual visitation options where available. When not possible, all visitors shall be screened on entry for symptoms of COVID-19 and temperature checks performed, when possible.50
44. ICE recommended facilities extend law library hours of operation and stagger detainee access to reduce social distancing.51
45. ICE added that it continues to explore opportunities to enhance attorney access while legal visits are impacted. For facilities at which immigration hearings are conducted or where detainees are otherwise held who have cases pending immigration proceedings ICE indicated this may include several promising practices:
• Adding all immigration attorneys of record to the Talton Pro-bono platform.
• Requiring facilities to establish a process for detainees/immigration attorneys to schedule appointments and facilitate the calls.
• Leveraging technology (e.g., tablets, smartphones) to facilitate attorney/client communication.
50 Id., p. 12. 51 Id., p. 13.
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• Working with various detention contractors and telephone service providers to ensure all detainees receive some number of free calls per week.52
46. ICE did not commit to adopting any of the improvements. ICE did not indicate whether it would require a requisite level of effort by the facilities and field offices to enhance visitation at any location. It did indicate whether Headquarters would monitor to assess its impact and intervene as needed.
47. The U.S. Centers for Disease Control and Infection (CDC) issued Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities on March 23, 2020.53 The CDC provided interim guidance concerning operational preparedness, prevention, and management, to ensure continuation of essential public services and protection of the health and safety of persons in custody and staff.54 ICE incorporated portions of the CDC guidelines concerning access to counsel in its March 27 Memorandum and April 10 Requirements.
48. Missing from the documents issued by ICE is CDC instruction intended to improve communication and promote collaboration and that it is applicable to access to counsel:
• Communication and Coordination. Develop information-sharing with partners. Create and test communication plans to disseminate critical information to detained persons, staff, contractors, vendors, and visitors as the pandemic progresses. Communicate with the public about any changes to facility operations, including visitation.
• Coordination with court officials. Identify any lawful alternatives to in-person court appearances, such as virtual court, as a social distancing measure to reduce the risk of COVID-19 transmission. While confirmation of suspected cases are pending confirmation or upon confirmation, when possible, arrange lawful alternatives to inperson court appearances.
• Prevention practices for visitors. If possible, communicate with potential visitors to discourage contact visits in the interest of their health and others. Perform verbal screening and temperature check for all visitors on entry. Provide alcohol-based hand sanitizer with at least 60% alcohol in visitor entrances, exits, and waiting areas. Provide visitors with information to prepare them for screening. Promote non-contact visits.
52 Id., pp. 12-13. 53 U.S. Centers for Disease Control and Infection (CDC), Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Mar. 23, 2020, https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html [hereinafter CDC COVID-19]54 Id. 54 Id.
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Consider reducing or temporarily eliminating the cost of phone calls. Consider increasing phone privileges.
• Implementation, modification of visitation programs. If moving to virtual visitation, clean electronic surfaces regularly. Inform potential visitors of changes and the reasons. Clearly communicate any changes to the detained population. If suspending contact visits, provide alternate means to engage with legal representatives and other individual with whom they have a legal right to consult.
49. ICE Pandemic Response Requirements incorporate some, not all, CDC guidelines including those concerning access to counsel, but direct all facilities to comply, presumably in full, with the CDC guidelines as well as the relevant ICE detention standards and ICE contract. If ICE headquarters has not made the effort to reconcile the differences in its instructions and those of the CDC, and issue one clear and unequivocal set of requirements that must be fulfilled, what assurance has ICE Headquarters that the field is willing or able to do so.
V. Immigration Detention Oversight & Operational Deficiencies Impede Access to Counsel 50. As was established in Section II, Immigration and Customs Enforcement has had considerable difficulty with detention operations for years. The agency is comprised primarily of law enforcement personnel with extensive expertise performing removal functions, but not in the design and delivery of detention facilities. Based on my years of executive experience in immigration detention, state and local correctional systems, and enforcement agencies including ICE, it is my opinion that ICE has not yet established a system of immigration detention with the requisite management tools, informational systems and oversight to detain and supervise this population as is required. Its lack of expertise and interest in this area, coupled with its continual search for more beds, creates conditions under which ICE is continually deferential to its contractors and facility administrators, a situation that its providers take advantage.
51. ICE detention standards recognize attorneys must have access to their clients every day of the week including weekends and holidays.55 Among its many performance-based requirements of the facilities to protect detainees’ rights, “Facilities are required to provide access by means of in-person contact and non-contact visits, phone calls, and mail, all of which should be confidential and at no cost to either party.”56 “Facilities are encouraged to
55 PBNDS Visitation, supra note 13. 56 PBNDS Law Library and Legal Research Material, supra, note 5.
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utilize electronic means of communication such as video-telephonic conferencing and Skype, to increase opportunity for access.”57
52. What ICE says is not what ICE does. To follow is a brief summary of access to counsel prior to and during the pandemic at the Irwin, LaSalle, Pine Prairie and Stewart facilities.
53. Prior to the pandemic, attorneys report their ability to communicate with clients was limited in every modality: in-person visitation, video teleconference calls (VTC), phone calls, mail, email and facsimile. All four facilities had insufficient infrastructure to support attorney calls by video teleconference or phone. There were not enough computers, too few time slots to meet demand, not enough staff, and significant issues with scheduling practices.
54. Noteworthy examples of the facilities’ chronic problems include the following.
• Irwin, LaSalle, and Stewart facilities did not allow contact legal visits; while at Pine Prairie, contact visits are the only form of in-person visitation.
• The number of visitation rooms at all four facilities was far too few to accommodate the large numbers of detainees they held, and contributed to long wait times, limited hours, and time limits well before stay-at-orders were in effect.
• Wait-times at all the locations for VTC visits precluded its use in time-sensitive matters when in-person visits were still possible.
• The Stewart, Irwin, and Pine Prairie facilities did not permit attorneys to phone off-site interpreters for translation assistance during in-person visitation, and the supportive technology at these locations was so limited, it further impeded their access to interpretation services.
• Mail was not a reliable method to exchange documents. Delays in sending and receiving and searching legal mail not in the presence of the detainee recipient were routine.
55. The pandemic has further taxed facilities’ scant resources and ICE’s lack of resolve. The providers continue to fail to address their longstanding deficiencies or to respond to the additional requirements ICE imposed. ICE continues to operationalize its requirements, as it had in the past, as mere requests.
57 PBNDS Telephone Access, supra note 11.
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56. Conditions have worsened in the past several months since the pandemic took hold.
A. Failure to Increase the Number of Video Teleconferencing Equipment & Telephones and Hours of Operation
57. The ICE Visitation Detention Standard directs in part, that each facility shall permit legal visitation 7 days a week, including holidays, for a minimum of 8 hours per day on regular business days (Monday through Friday), and a minimum of 4 hours per day on weekends and holidays. In emergency circumstances, facilities may consider requests from legal representatives for extended visits or visits outside normal facility visiting hours. The number of visitors a detainee may receive, and the length of visits, shall be limited only by reasonable constraints of space, scheduling, staff availability, safety, security and good order. Generally, visits should be for the maximum period practicable but not less than one hour. Detainees with hearing or speech disabilities shall be granted reasonable accommodations to allow for equal access to telephone services. Detainees may meet privately with current or prospective legal representatives and their legal assistants. Visits between legal representatives and assistants and an individual detainee are confidential and shall not be subject to auditory supervision. Private consultation rooms shall be available for such meetings. Detainees shall be advised of their right to contact their consular representatives and receive visits from their consulate officers. Facilities are encouraged to provide opportunities for both contact and non-contact visitation with approved visitors during both day and evening hours. Persons allowed to attend legal visits include attorneys and other legal representatives, legal assistants, and translators and interpreters. Additionally, the facility shall permit messengers who are not legal assistants to deliver documents to and from the facility.58
58. The ICE Telephone Access Detention Standard directs in part, that detainees and their legal counsel shall be able to communicate effectively with each other. Privacy for detainee telephone calls regarding legal matters shall be ensured. Telephone access procedures shall foster legal access and confidential communications with attorneys. Detainees shall be able to make free calls to the ICE/ERO-provided list of free legal service providers. Telephones shall be maintained in proper working order. Detainees with hearing or speech disabilities shall be granted reasonable accommodations to allow for equal access to telephone services. Facilities shall strive to reduce telephone costs, including through the use of emerging telecommunications, voiceover, and Internet protocol technologies.59
58 ICE Detention Standards, 5.7 Visitation, Visits by Legal Representatives and Legal Assistants (last rev. Dec. 2016 PBNDS Visitation, supra note 13. 59 ICE Detention Standard, 5.6 Telephone Access (last rev. Dec. 2016), https://www.ice.gov/doclib/detentionstandards/2011/5-6.pdf. PBNDS Telephone Access, supra note 11.
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59. The ICE Law Libraries and Legal Material Detention Standard directs in part that detainees shall have access to courts and counsel. Detainees shall be able to have confidential contact with attorneys and their authorized representatives in person, on the telephone and through correspondence. Special scheduling consideration shall be given to detainees facing deadlines or time constraints.60
60. In the March 27 memorandum for Detention Warden and Superintendents through Field Office Directors,61 62 ICE ERO directed facilities to offer legal representatives non-contact visits, e.g., Skype or VTC, whenever possible to reduce the risk associated with COVID19, and only provide contact visits when the representatives determined it was essential. ICE also directed that each facility must ensure all detainees are able to make calls to the ICE-provided list of free legal service providers and consulates at no charge to the detainee or receiving party. In order to partake of remote attorney visitation, and place calls to free legal service providers and consulates, ICE directed there must be both adequate access and sufficient communication equipment in good working order at every location, and a uniform system of oversight.63
61. It is unknown whether ICE ERO Headquarters required the Field Offices to monitor for compliance and what measures Headquarters took when the Field Offices or the facilities failed to comply. It is known ICE ERO, the Field Offices and facilities failed to comply. There are inadequate access and insufficient communication equipment in good working order at all four facilities, and no uniform system of oversight.
62. When ICE released its Pandemic Response Requirements on April 10, ERO reiterated all detention facilities and local jails housing ICE detainees “must” comply with the ICE national detention standards appliable to their facility.64
63. The Pandemic Response Requirements included an additional requirement, directing facilities where immigration hearings are conducted or detainees who have cases pending
60 ICE Detention Standards, 6.3PBNDS Law Library and Legal Material (last rev. Dec. 2016), https://www.ice.gov/doclib/detention-standards/2011/6-3.pdf., supra note 5. 61 March 27 ICE Memorandum, supra note 49, p. 2. 62 ICE maintains 24 field offices. Detention facilities in Georgia are overseen by the Atlanta filed office; detention facilities in Louisiana are overseen by the New Orleans field office. ICE Enforcement and Removal Operations Field Offices (last rev. 4/29/2020), https://www.ice.gov/contact/ero#fieldOffice. ICE issued directions to the field offices to convey to the facilities and delegated to each facility warden or superintendent final decision-making. 63 ICE maintains 24 field offices. Detention facilities in Georgia are overseen by the Atlanta filed office; detention facilities in Louisiana are overseen by the New Orleans field office. ICE Enforcement and Removal Operations Field Offices (last rev. 4/29/2020), https://www.ice.gov/contact/ero#fieldOffice. ICE issued directions to the field offices to convey to the facilities and delegated to each facility warden or superintendent final decision-making. March 27 ICE Memorandum, supra note 49, p. 2. 64 ERO COVID-19 PRR, supra note 58.
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immigration proceedings are housed to establish a process for detainees and immigration attorneys to schedule appointments and facilitate these (remote) calls.65
64. The Pandemic Response Requirements also suggested (a) adding all immigration attorneys of record to the Talton Pro-Bono platform, (b) leveraging technology (e.g., tablets and smartphones) to facilitate attorney/client communication, and (c) working with the various detention contactors and telephone service providers to ensure that all detainees receive some number of free calls per week.66
65. It is unknown whether ICE ERO Headquarters required the Field Offices to monitor for compliance and what measures Headquarters took when the Field Offices or the facilities failed to comply. It is known that ICE ERO, the Field Offices and facilities failed to comply. There are both inadequate access and insufficient communication equipment in good working order at all four facilities, and no uniform system of oversight.
66. Since the suspension of all social visitation in response to the pandemic, the demand for VTC visits and attorney calls further exceeds its capacity. The facilities have made few changes and realized little improvement: Attorneys struggle to meet their ethical obligations to their clients. Detainees are unable to communicate with their attorneys.
67. Currently, attorneys wait as long as four to six days to receive a VTC appointment and as much as an additional six days to meet in-person or remotely with their client.
68. Facilities limit the number of VTC calls an attorney may have with their client in a period of time.
69. Clearing interpreters to participate in three-way calls continues to be impeded by the availability of the government attorneys to make those arrangements has not changed.
70. Appointments are made with little advance notice, and on a take-it-or-leave-it basis.
71. Appointments are canceled without notice or an explanation.
72. Detainees arrive late to appointments, and detainees are returned early to their housing units.
73. There is no clear practice in place to accommodate quarantined detainees to participate in a VTC or regular phone call with their attorney.
65 Id. 66 Id.
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74. There is no apparent policy in place to enable an attorney to access her client by any means in the event of an emergency for the duration of the pandemic.
75. Attorneys continue to experience difficulty arranging confidential phone or video teleconferencing calls with their clients because there is not enough communication equipment in working order and corresponding connectivity to meet the demand.
76. Detainees continue to experience difficulties reaching their attorneys. As demand for phone use increases, the number of phones in dayrooms not working or disconnected is reported to have risen. The wait time for working phones is greater.
77. Additionally, the primary means by which detainees can speak with their attorney is from their housing units where most phone calls are recorded. There is also a phone to a hotline in the housing units and its calls are not recorded. None of the phone conversations in the housing units are confidential however, as all conversations can be overheard by staff and the other detainees in the unit.
78. All these conditions fail to comply with ICE Detention Standards. Non-compliance with ICE Detention Standards is also a material breach of the facilities’ contracts with ICE. Failure to comply with ICE Detention Standards and facilities’ contracts with ICE constitutes failure to comply with the ICE March 27 Memorandum for all dedicated detention facilities and the April 10 Pandemic Response Requirements for all detention facilities housing ICE detainees.
B. Failure to Deliver Mail and Modify Document Exchange Procedures
79. The ICE Correspondence and Other Mail Detention Standard directs detainees shall be able to correspond with their families, the community, legal representatives, government offices and consular officials. Incoming and outgoing letters shall be held for no more than 24 hours and packages no more than 48 hours before distribution, excluding weekends, holidays or exceptional circumstances. Incoming and outgoing mail, with the exception of special correspondence or legal mail, shall be opened to inspect for contraband and to intercept cash, checks and money orders. Detainees shall be permitted to send special correspondence or legal mail to a specified class of persons and organizations such as SIFI, and incoming mail from these persons shall be opened only in the presence of the detainees to check for contraband. All facilities shall implement policies and procedures addressing acceptable and non-acceptable mail. Detainees may receive as correspondence any material reasonably necessary for the detainee to present his/her legal claim, in accordance with this standard. When timely communication through the mail is not possible, the facility
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administrator may in his/her discretion allow for a reasonable amount of communication by means of facsimile device between the detainee and his/her designated legal representatives.67
80. The ICE Law Libraries and Legal Material Detention Standard requires detainees shall be able to have confidential contact with attorneys and their authorized representatives in person, on the telephone and through correspondence.68
81. The ICE Telephone Access Detention Standard requires detainees and their legal counsel shall be able to communicate effectively with each other.69
82. The ICE Visitation Detention Standard encourages facilities to provide opportunities for both contact and non-contact visitation with approved visitors during both day and evening hours. And, it requires the facility shall permit messengers who are not legal representatives or legal assistants to deliver documents to and from the facility, but not to visit detainees.70
83. When ICE released its Pandemic Response Requirements on April 10, ERO reiterated all detention facilities and local jails housing ICE detainees “must” comply with the ICE national detention standards appliable to their facility.71
84. Pandemic-related disruptions to in-person visitation and difficulties with remote communication have increased the need for reliable mail service and document exchange.
85. Mail service is not reliable at the four facilities. Attorneys use both the U.S. Postal Service and FedEx to send legal mail to detainees, but detainees do not receive everything that their attorneys have sent by either carrier. And, facilities do not routinely return undeliverable legal mail to the Postal Service or FedEx.
86. Delays in mail delivery transmittals impede attorney representation of their clients who increasing include medically vulnerable individuals. These delays can impact detainees’ health as well as the outcome of their cases.
67 ICE Detention Standard 5.1 PBNDS Correspondence and Other Mail (last rev. Dec. 2016), https://www.ice.gov/doclib/detention-standards/2011/5-1.pdf., supra note 9. 68 ICE Detention Standards, 6.3 PBNDS Law Library and Legal Material (last rev. Dec. 2016), https://www.ice.gov/doclib/detention-standards/2011/6-3.pdf., supra note 5. 69 PBNDS Telephone Access, supra note 11 70 PBNDS Visitation, supra note 13. 71 ERO COVID-19 PRR, supra note 58.
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87. ICE and the facilities have not resolved mail delivery and three of the four facilities are unwilling to adopt facsimile or the Internet as alternative means of delivery. Only the Irwin facility has a system in place to accomplish this.
88. Attorneys also encounter difficulty corresponding directly with ICE by mail. There are occasions when ICE does not accept emails and did not respond to correspondence when it arrives by regular mail. Facsimiles have also proven to be unreliable.
89. Email and faxes are widely accepted and customary means of communication within the government including DHS, ICE and ERO and should be accommodated at all facilities.
90. The increased demand for humanitarian parole considerations may have increased the agency’s workload; however, ICE has not put in place a viable plan to address it.
91. All these conditions fail to comply with ICE Detention Standards. Non-compliance with ICE Detention Standards is also a material breach of the facilities’ contracts with ICE. Failure to comply with ICE Detention Standards and facilities’ contracts with ICE constitutes failure to comply with the ICE March 27 Memorandum for all dedicated detention facilities and the April 10 Pandemic Response Requirements for all detention facilities housing ICE detainees.
C. Failure to Comply with Confidentiality Requirements.
92. The ICE Visitation Detention Standard72 directs visits between legal representatives and assistants and an individual detainee are confidential and shall not be subject to auditory supervision. Private consultation rooms shall be available for such meetings.
93. The ICE Correspondence and Other Mail Detention Standard73 requires incoming and outgoing mail, with the exception of special correspondence or legal mail, shall be opened to inspect for contraband and to intercept cash, checks and money orders. Detainees shall be permitted to send special correspondence or legal mail to be specified class of persons and organizations, and incoming and outgoing mail from these persons shall be opened only in the presence of the detainees unless waived to check for contraband.
94. The ICE Telephone Access Detention Standard74 requires privacy for detainee telephone calls regarding legal matters shall be ensured. Telephone access procedures shall foster
72 PBNDS Visitation, supra note 20. 73 PBNDS Correspondence and Other Mail, supra note 18. 74 PBNDS Telephone Access, supra note 11.
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legal access and confidential communications with attorneys. Detainees shall be able to have confidential contact with attorneys and their authorized representatives in person, on the telephone and through correspondence.

95. The ICE Law Libraries and Legal Material Detention Standard75 requires detainees shall be able to have confidential contact with attorneys and their authorized representatives in person, on the telephone, and through correspondence.

96. Confidentiality is a concern under any circumstances and particularly during a pandemic when medical as well as legal information is at risk. It is also a commitment that ICE, and by extension, its agents must keep. When ICE released its Pandemic Response Requirements on April 10, ERO reiterated all detention facilities and local jails housing ICE detainees “must” comply with the ICE national detention standards appliable to their facility.76

97. Chronic and current coronavirus-related factors – risk of infection while attending an inperson attorney visit, significant and growing larger wait times for VTC calls/video conferencing, and problems with mail delivery and inspection – push detainees towards utilizing the regular phones and hotline numbers in their housing units to place legal calls to their attorneys with or without realizing these calls are recorded as well as overhead by other detainees and staff in the immediate area, because they have no other choice.

98. Physical plant limitations infringe upon confidentiality. Attorneys report VTC conferences with clients have been overheard in areas where there are no partitions or sound absorption.

99. Security practices also affect confidentiality. Attorneys report custody staff has the practice of standing closer to groups of three – the attorney, her client, and an interpreter. Additionally, the detainee’s time out-of-cell to meet or speak with counsel, is an opportunity for a cell search, and the impermissible confiscation of legal material.

100.

All these conditions fail to comply with ICE Detention Standards. Non-compliance

with ICE Detention Standards is also a material breach of the facilities’ contracts with ICE.

Failure to comply with ICE Detention Standards and facilities’ contracts with ICE

constitutes failure to comply with the ICE March 27 Memorandum for all dedicated

detention facilities and the April 10 Pandemic Response Requirements for all detention

facilities housing ICE detainees.

D. Failure to Accommodate LEP Detainees and Detainees with Disabilities

75 PBNDS Law Libraries and Legal Material, supra note 5. 76 ERO COVID-19 PRR, supra note 58.

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101.

The 2016 revisions to the 2011 ICE Performance-based National Detention

Standards represent a substantial effort to fortify detainee rights and facilities’

responsibility to afford access for detainees including those who are limited in their English proficiency (LEP) and detainees with disabilities.77 These protections include:

• Communication assistance for LEP detainees.

• Language assistance, including bilingual staff or professional interpretation and translation services, to provide LEP detainees with meaningful access to its programs and activities.

• Auxiliary aids, such as readers, materials in Braille, audio recordings, telephone handset amplifiers, telephones compatible with hearing aids, telecommunications devices (TTYs), interpreters, and notetakers, as needed for detainees with disabilities.

• Mobility assistance for physically or visually impaired persons, the infirm and the elderly.

• Other forms of reasonable accommodation.

102.

ICE did not issue any instruction concerning COVID-19 that modified these

provisions to accommodate detainees with disabilities and limited English proficiency;

therefore, these standards stand as written.

103.

Persons who are limited in their English proficiency (LEP) or have disabilities

frequently require more time to complete tasks than do those who do not have these

characteristics. One widely recognized method of accommodation is affording LEP

individuals additional time.

104.

The use of translation and interpretative services requires more time as each

question must be asked and answered in two languages, including the American Sign

Language. The additional time for translation alone doubles the time needed, and

differences in languages and dialects frequently require additional clarification, extending

further the minimum time needed.

105.

The four facilities fail to do so.

77 2011 Operations Manual ICE Performance-Based National Detention Standards, 2016 Revisions PBNDS, supra note 2, Summary of Revisions to the ICE Performance-Based National Detention Standards, December 2016, https://www.ice.gov/detention-standards/2011.

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106.

Attorneys who request additional time when scheduling an appointment with

clients who will require interpretative services are routinely denied.

107.

In addition to outright denials, there are several other impediments to

accommodation.

• In order to litigate Habeas Counsel petitions, legal staff must schedule remote consultations with clients and potential clients, and not in-person meetings, for all the reasons previously cited. Third party interpretation must be coordinated and provided by Habeas Counsel. There is no ability to request a remote legal visit for the weekend or in the evening. There is also no ability to schedule an expedite remote legal visit for any reason.

• When an interpreter is present, there is a tendency on the part of custody staff to remain nearby rendering a confidential visit, non-confidential.

• Detainees in quarantined housing units have less access, and less certain access to remote communication with counsel.

108.

All these conditions fail to comply with ICE Detention Standards. Non-compliance

with ICE Detention Standards is also a material breach of the facilities’ contracts with ICE.

Failure to comply with ICE Detention Standards and facilities’ contracts with ICE

constitutes failure to comply with the ICE March 27 Memorandum for all dedicated

detention facilities and the April 10 Pandemic Response Requirements for all detention

facilities housing ICE detainees.

E. Failure to Address the Spread of Coronavirus in the Detention Facilities.

109.

ICE directed all the detention facilities comply with the CDC’s Interim Guidance

on Management of Coronavirus Disease 2019 in Correctional and Detention Facilities to

prevent the spread of COVID-19 at their locations.78 Fundamental to compliance are social-

distancing and aggressive sanitation and personal hygiene. Specific to legal visits, the CDC

recommends verbal screening of visitors, 60% alcohol-based hand sanitizer availability at

visitor entrance and exits, in the waiting areas and visitation rooms, that frequently touched

items are cleaned and disinfected several times a day, and that everyone in those areas

maintains a distance of 6 feet from one another.79

78 CDC, Interim Guidance, supra note 62. 79 Id., p. 13-14.

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110.

Visiting attorneys report the areas to which they have access – the lobby, waiting

areas, restrooms, and visiting rooms – are dirty, hand sanitizer is not available, and social

distancing is not enforced. They also report rolling requirements for personal protection

equipment – masks, and sometimes, specifically 95-respiratior masks, gloves and gowns –

that they must bring with them and wear or they will denied entry. The insistence that the

masks be 95-respirator masks, which is not a CDC requirement and often was unavailable

for purchase and otherwise held for first responders, is both an arbitrary and highly

effective way to impede attorney and detainee access to one another. Additionally, this

was not required of detention staff.

111.

Attorneys also expressed concern that the facilities are not disinfecting frequent-

touch items as CDC guidelines require, especially the phones that detainees use in their

housing units, to call their attorneys and others.

F. Summary of Violations of Performance-Based National Detention Standards

112.

There are several ICE detention standards that lay out the parameters of Access to

Counsel. This analysis concerns four of them. They are Correspondence and Other Mail,

Telephone Access, Visitation and Law Libraries and Legal Material. ICE also adopted

special provisions in 2016, and applicable to all facilities, to fortify its commitment and

rectify compliance with operational issues impacting limited English proficiency detainees

and detainees with disabilities.

113.

Based on my review of the declarations of SIFI attorneys concerning what is

happening on the ground during the COVID-19 pandemic, I conclude that Defendants are

likely violating the following standards set forth in the PBNDS:

114.

Correspondence and Other Mail. This detention standard ensures detainees shall be

able to correspond with their legal representatives, government offices and consular

officials. In part, this requires incoming and outgoing mail, with the exception of special

correspondence or legal mail, shall be opened to inspect for contraband and to intercept

cash, checks and money orders. Correspondence may be delivered by a messenger.

Incoming and outgoing letters shall be held for no more than 24 hours and packages no

more than 48 hours before distribution, excluding weekends, holidays, or exceptional

circumstances. All facilities shall implement policies and procedures addressing acceptable

and unacceptable mail. Detainees may receive as correspondence, any material reasonably

necessary for the detainee to present their legal claim, in accordance with this standard.

When timely communication through mail is not possible, the facility administrator may

in their discretion allow for a reasonable amount of communication by means of a facsimile

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device between the detainee and their legal representative. ICE ERO and the facilities have failed to meet these requirements.

115.

Telephone Access. This detention standard requires detainees may communicate

with legal representatives, consulates, courts, and government agencies by providing them

reasonable and equitable access to telephone services. In part, this requires detainees and

their legal counsel shall be able to communicate effectively with each other. Privacy for

detainee telephone calls regarding legal matters shall be ensured. Telephone access

procedures shall foster legal access and confidential communications with attorneys.

Telephones shall be maintained in proper working order. Detainees with hearing or speech

disabilities shall be granted reasonable accommodations to allow for equal access to

telephone services. The facility shall provide communication assistance to detainees with

disabilities and detainees who are limited in their English proficiency and reasonable

accommodation to avail themselves of this assistance. ICE ERO and the facilities have

failed to meet these requirements.

116.

Visitation. This detention standard affirms visits between legal representatives and

assistants and an individual detainee are confidential and shall not be subject to auditory

supervision. In part, this requires private consultation rooms shall be available for such

meetings. Each detainee may meet privately with current or prospective legal

representatives and their legal assistants. Each facility shall permit legal visitation seven

days a week, including holidays, for a minimum of 8 hours per day on regular business

days, Monday through Friday, and a minimum of 4 hours per day on weekends and

holidays. In emergency circumstances, facilities may consider requests from legal

representatives for extended visits or visits outside normal facility visiting hours. Facility

staff shall not be present in the confidential area during the meeting unless the legal

representative or legal assistant requests the presence of an officer; however, as long as

staff cannot overhear the conversation, staff may observe such meetings visually through

a window or camera, to the extent necessary to maintain security. When a situation arises

in which private conference rooms are in use and the attorney wishes to meet in a regular

or alternate visiting room, the request shall be accommodated to the extent practicable.

Such meetings shall be afforded the greatest possible degree of privacy under the

circumstances. The facility’s written legal visitation procedures must provide for the

exchange of documents between a detainee and the legal representative or assistant, even

when contact visitation rooms are unavailable. Documents or other written material

provided to a detainee during a visit with a legal representative shall be inspected but not

read. The facility shall permit messengers who are not legal representatives or legal

assistants to deliver documents to and from the facility, but not to visit detainees. Detainees

are entitled to retain legal material received for their personal use. ICE ERO and the

facilities have failed to meet these requirements.

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117.

Law Libraries and Legal Material. This detention standard affirms detainees shall

have access to courts and counsel. In part, this requires detainees shall be able to have

confidential contact with attorneys and their authorized representatives in person, on the

telephone, and through correspondence. It directs the facility shall provide communication

assistance to detainees with disabilities and detainees who are limited in their English

proficiency. ICE ERO and the facilities have failed to meet these requirements.

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct.

Executed this 5th day in May 2020, in New York City, NY.
__________________________ Dora Schriro

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Appendix A

Case 1:18-cv-00760-CKK-RMM Document 105-4 Filed 05/07/20 Page 31 of 41
DORA B. SCHRIRO, Ed.D. J.D. EXECUTIVE EXPERIENCE
State of Connecticut, Middletown CT (2014–2018) CT Homeland Security Advisor (2016–2018), DHS clearance, Top Secret, appointed by Gov. Dannel Malloy Commissioner, Department of Emergency Services & Public Protection (2014–2018), appt. by Gov. Malloy • Responsible for CT State Police, Emergency Management & Homeland Security, Scientific Services,
Fire Prevention & Control, Police Officer Standards & Training, Statewide Telecommunications. • FY2018 operating budget, $185M; federal grants, $348M; bond funding, $79M; 1817 employees • Public Safety & Service, Homeland Security, and Emergency Response, Recovery & Resiliency • Accomplishments: 1. Comprehensive procedural justice effort with body-worn cameras, all state police on
patrol, civilian complaint process, 21st century curricula for state & local law enforcement, an investigative protocol for officer-involved shootings, annual reports of uses of force, traffic stops & police pursuits, mandatory police agency accreditation, and ICE-interface protocol; 2. Drug intervention & enforcement including a dark-web opioid taskforce, equipping all troopers and training first responders to administer naloxone; 3. Other harm reduction efforts including a multi-jurisdictional cybersecurity investigative unit, comprehensive gun control, community-focused active shooter preparedness, wrap-around DV safety & support, K-12 & post-secondary school safety planning, and Ebola & Zika first responder protocols
City of New York, New York, New York (2009–2014) Commissioner, New York City Department of Correction, appointed by Mayor Michael Bloomberg • Responsible for adult detention, prisoner processing, and operation of criminal court pens, an average
of 12,000 inmates daily and 100,000 pretrial and city-sentenced inmate admissions annually • FY2014 operating budget, $1.065B, capital budget, $691.9M; 10,440 employees • Focus: Special Populations; Intake, Classification and Discharge Planning; Staff Accountability;
Alternatives to Disciplinary Segregation; Alternatives to Detention • Accomplishments: 1st U.S. Social Impact Bond funded program, adolescent pre-release initiative; Justice
Reinvestment funded pre-release preparation for adults; pre-trial & post-plea diversion for the mentally ill; comprehensive reform of disciplinary segregation with clinical alternatives for special populations; centralized intake with risk & needs classification, gang identification, and discharge planning
US Department of Homeland Security, Washington DC (2009–2009) Senior Advisor to Secretary on ICE Detention and Removal, appointed by DHS Sec. Janet Napolitano Director, ICE Office of Detention Policy and Planning, appointed by ICE Asst. Sec. John Morton • Focus: Design a civil detention system satisfying all safety and security needs and legal requirements • Authored, 2009 Report on ICE Detention Policies and Practices: A Recommended Course of Action for Systems
Reform, DHS’ adopted template for improving the operation of immigration detention • Improved the efficiency and effectiveness and increased the transparency of ICE detention operations
State of Arizona, Phoenix, Arizona (2003–2009) Department Director, Arizona Department of Corrections, appointed by Gov. Janet Napolitano • Responsible for adult corrections and community supervision including 39,000 inmates and 7,200
parolees daily and 55,000 felons annually (21,000 admissions/11,500 case openings) • FY2009 operating budget, $1.23B; 9,750 employees • Focus: Systems reform, re-entry, victim services, strategic planning, privatization oversight • Winner, 2008 Innovations in American Government, and first prison-based reform awards recipient

Case 1:18-cv-00760-CKK-RMM Document 105-4 Filed 05/07/20 Page 32 of 41
Dora B. Schriro, Ed.D. J.D. Page 2
City of St. Louis, St. Louis, Missouri (2001–2003) Commissioner of Corrections, St. Louis City Division of Corrections, appointed by Mayor Francis Slay • Responsible for adult detention, prisoner processing, and city probation and parole including 1,500 jail
inmates and 2,000 offenders on supervision daily (9,000 admissions/63,000 bookings annually) • FY2003 operating budget, $68M; 615 employees • Focus: Population management, alternative sentencing initiatives, staff development • Opened and operated the city’s first combined police prisoner processing and detention center
State of Missouri, Jefferson City, Missouri (1993–2001) Department Director, Missouri Department of Corrections, appointed by Gov. Mel Carnahan • Responsible for adult corrections and probation and parole services including 28,000 prisoners and
65,000 offenders on community supervision daily, 35,000 admissions/72,000 case openings annually • FY2002 operating budget, $500M; 11,000 employees • Focus: Systems and sentencing reform, litigation reduction, restorative justice, capital construction • Winner, Council of State Governments Innovations award program; four-time Innovations in
American Government Finalist and Semi-Finalist
City of St. Louis, St. Louis Missouri (1989–1993) Correctional Superintendent, St. Louis City Division of Correction, appointed by Mayor Vince Schoemehl • Responsible for 600 pre-trial and city sentenced inmates, 4,000 admissions annually • FY1993 operating budget, $26M; 210 employees • Focus: Court oversight, overcrowding, certified juveniles, community relations
City of New York, New York, New York (1984–1989) Assistant Commissioner, New York City Department of Correction, appointed by Mayor Ed Koch • Responsible for design and delivery of inmate programs services, programs development, grants • Services provided to 100,000 pre-trial and city sentenced inmates annually by 200 employees • Focus: Public-funded and accredited education, school-aged inmates; contracts management Assistant Deputy Director, Office of the Mayor, Coordinator of Criminal Justice • Grants administration, federal and state funded systems reforms, $189M annually • Focus: Alternatives to detention, intermediate sanctions, policy analysis, applied research
CONSULTING SERVICES Dora B. Schriro Consulting Services, LLC (est. 2013)
EDUCATION St. Louis University, St. Louis, Missouri, Juris Doctorate, School of Law (2002) Columbia University, New York, New York, Doctor of Education, Teachers College (1984) University of Massachusetts at Boston, Massachusetts, Master of Education (1980) Northeastern University, Boston, Massachusetts, Bachelor of Arts cum laude (1972)
MANAGERIAL PROGRAMS Council of State Governments, Toll Fellowship (2018) Harvard University, JFK School of Government, Innovations in Governance (2005) Harvard University, JFK School of Government, Strategic Public Sector Negotiations (1996) Harvard University, JFK School of Government, Senior Executives in State and Local Government (1992)

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Dora B. Schriro, Ed.D. J.D.

Page 3

HONORS AND AWARDS, INNOVATIONS

Innovations in American Government, 2008 Winner, Getting Ready: Keeping Communities Safe

Innovations in American Government, 2000 Semi-finalist, Correcting Corrections

Innovations in American Government, 1999 Semi-finalist, Constituent Services

Innovations in American Government, 1998 Semi-finalist, Pre-Promotional Training

Innovations in American Government, 1997 Finalist, Constituent Services

Council of State Governments, 1998 Innovations Award Winner, Waste Tire to Energy

Council of State Governments, 1997 Innovations Award Regional Finalist, Pre-Promotional Training

Council of State Governments, 1996 Innovations Award Finalist, Constituent Services

OTHER HONORS AND AWARDS
U.S. Department of Justice, Office for Victims of Crime, Allied Professional Award, 2012 Florida Immigrant Advocacy Center, American Justice Award, 2011 Hofstra University (Hempstead, New York) Presidential Medal, 2010 National Governors Association, Distinguished Service to State Government Award, 2006 Arizona Parents of Murdered Children, Filling Empty Shoes, 2006 Honoree Farmingdale Public Schools (Farmingdale, New York), Wall of Fame, 2001 Inductee St. Louis Forum, Trailblazer Award, 2000 Association of Correctional Administrators, Michael Francke Award for Outstanding Leadership, 1999 Jefferson City (Missouri) Ten Most Influential Women, 1998 Missouri Governor Award for Quality and Productivity, 1993, 1994, 1995, 1996, 1997, 1998, 1999, 2000 Missouri Governor Torch of Excellence Gold Award, 1999 Missouri Governor Torch of Excellence Award, 1997 International Association of Correctional Training Personnel Award, Pre-Promotional Training, 1996 Women’s Self-Help Center, Twenty Distinguished Women, 1996 St. Louis (Missouri) YWCA Special Leadership Award for a Government Official, 1995 Jefferson City (Missouri) News Tribune Statesman of the Month, June 1995

PUBLICATIONS, IMMIGRATION DETENTION REFORM
Weeping in the Playtime of Others: The Obama Administration's Failed Reform of ICE Family Detention Practices, in Journal on Migration and Human Security, The Law that Begot the Modern U.S. immigration Enforcement System: IIRIRA 20 Years Later (December 2018) Women and Children First: An Inside Look at the Impediments to Reforming Family Detention in the U.S., in Challenging Immigration Detention, ed. by Flynn and Flynn. Edward Elgar Publishing (September 2017) Afterword, Intimate Economies, Anomie and Moral Ambiguity, in Intimate Economies of Immigration Detention: Critical Perspectives, ed. by Conlon and Hiemstra. Routledge Publishers (2016) Improving Conditions of Confinement for Immigrant Detainees: Guideposts toward a Civil System of Civil Detention in The New Deportation Delirium, ed. by Kanstroom and Lykes. NYU Press (2015) Family Immigration Detention: The Past Cannot be Prologue, co-author, ABA Commission on Immigration (2015)
Envisioning a Civil System of Civil Detention: Our Opportunity, Our Challenge (Foreword), in Outside Justice, ed. by Brotherton, Stageman and Leyro. Springer Press (2013) Improving Conditions of Confinement for Criminal Inmates and Immigrant Detainees, American Criminal Law Review, Georgetown University Law Center (Fall 2010) The 2009 Report on ICE Detention Policies and Practices: A Recommended Course of Action for Systems Reform, U.S. Department of Homeland Security (October 2009) Rethinking Civil Detention and Supervision, Arizona Attorney (July–August 2009)

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Dora B. Schriro, Ed.D. J.D. Page 4

PUBLICATIONS, CORRECTIONS REFORM

Smart and Safe: Making the Most of Adolescents’ Time in Detention, the Physical Plant, Our Workforce, and the

“What Works’ Literature, in The State of Criminal Justice, American Bar Association (2013)

Corrections: The Justice-Involved Mentally Ill, A Practitioner’s Perspective, in The State of Criminal Justice,

American Bar Association (2012)

Good Science, Good Sense: Making Meaningful Change Happen – A Practitioner’s Perspective, Criminology &

Public Policy, Vol. 11, No. 1, Special Issue (February 2012)

Is Good Time a Good Idea? Federal Sentencing Reporter, Vol. 21, No. 3 (February 2009)

Correcting Corrections: The Arizona Plan: Creating Conditions for Positive Change in Corrections, Confronting

Confinement: A Report of the Commission on Safety and Abuse in American Prisons (2006)

Missouri’s Parallel Universe: Blueprint for Effective Prison Management, Corrections Today (April 2001)

Correcting Corrections: Missouri’s Parallel Universe, Papers from the Executive Sessions on Sentencing and

Corrections, U.S. Department of Justice, Office of Justice Programs (May 2000)

Avoiding Inmate Litigation: The ‘Show-Me’ State Shows How, Sheriff’s Magazine, (March–April 1999)

Best Practices: Excellence in Corrections, American Correctional Association (August 1998)

Reducing Inmate Litigation, Corrections Today (August 1998)

Corrections Management Quarterly, Issue Editor, Aspen Publications (1997)

Currents, Leadership St. Louis, Danforth Foundation (1992)

What Makes Correctional Education Educational, Journal of Correctional Education (September 1986)

Safe Schools, Sound Schools, ERIC Clearinghouse on Urban Education (January 1985)

What Works with Serious Juvenile Offenders: US Experience, Juvenile Delinquency in Australia (1984)

What Makes Correctional Education Educational: Ethnography of an Instructionally Effective School,

University Microfilm (1983)

STANDARDS, SENTENCING AND RELATED CIVIL-CRIMINAL JUSTICE REFORM ACTIVITIES Women’s Refugee Commission, Commissioner (2012–2020) American Bar Association, Commission on Immigration, Special Advisor (2019–2020) American Bar Association, Commission on Immigration, Advisory Board Member (2017–2019) American Bar Association, Commission on Immigration, Standards for the Custody, Placement and Care; Legal Representation, and Adjudication of Unaccompanied Alien Children in the United States (2018) U.S. Dept. of Homeland Security, DHS Family Residential Ctr. Advisory Committee, member (2015–2016) American Bar Association, Commission on Immigration, Commissioner (2014–2016) American Bar Association, Commission on Immigration, Co-chair, Standing Subcommittee on Punitive Segregation, (2012–2014) American Bar Association, Commission on Immigration, Civil Detention Standards Task Force (2011–2012) American Bar Association, Criminal Justice Standards Subcommittee, ACA representative (2005–2008) Arizona State University School of Law, Sentencing Policy Seminar (2004–2005) Arizona Attorney General Sentencing Advisory Committee (2004–2008) St. Louis University School of Law, Instructor, Sentencing Policy Seminar (2000–2002) Missouri Sentencing Advisory Commission, Vice Chair (1994–2001) U.S. Department of Justice Executive Sessions on Sentencing and Corrections, in conjunction with Harvard University JFK School of Government and University of Minnesota Law School (1997–2000) Partnership for Criminal Justice Workshop, Institute on Criminal Justice, University of Minnesota Law School, State Partner (1997–2000) State Sentencing and Corrections Program, Vera Institute of Justice, National Associate (1999–2002) U.S. Dept. of Justice, Bureau of Justice Assist., Discretionary Grant Program, Peer Reviewer (1994–2002)

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Dora B. Schriro, Ed.D. J.D. Page 5
PRE-DOCTORAL EMPLOYMENT, LECTURING AND RELATED EXPERIENCE Employment • Executive Director, Planned Parenthood of Bergen County, Hackensack, New Jersey (1983–1984) • Director, Correctional Education Consortium, Long Island City, New York (1982–1983) • Supervising Social Worker, Franklin Public Schools, Franklin, Massachusetts (1978–1981) • Director, Adult and Continuing Education, Franklin Public Schools, Franklin, MA (1978–1981) • Director, Staff Development, Wrentham State School, Wrentham, Massachusetts (1977–1978) • Program Administrator, Medfield-Norfolk Prison Project, Medfield, Massachusetts (1974–1976)
Academic Experience • Instructor, Arizona State University School of Law, Corrections Law Seminar (2005–2008) • Instructor, St. Louis University School of Law, Sentencing Policy (2000–2002) • Senior Policy Fellow, Public Policy Research Center, University of Missouri-St. Louis (2001) • Visiting Lecturer, Strategic Planning, National Institute of Corrections (1998–2002) • Adjunct Professor, Criminal Justice, University of Missouri-St. Louis (1990–1998) • Adjunct Professor, Criminal Justice, Long Island University at CW Post (1986–1988) • Instructor, Innovation, Open Center of New York City (1987) • Teaching Assistant, Field Research Methodology, Administrative Intern to the School Superintendent,
Franklin Public Schools, Franklin, Massachusetts (1979) • Visiting Lecturer, Special Education, Framingham State College, Framingham, Massachusetts (1979) • Adjunct Professor, Psychology, Fischer Junior College, Boston, Massachusetts (1978)
Related Activities • Institutional Research Board, St. Louis University (2002–2003) • Institutional Research Board, University of Missouri-St. Louis (2001–2003)
Contact information:
611 King Avenue City Island, NY 10464 917-710-7029 dora.schriro@gmail.com
Professional References available upon request

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Appendix B

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Appendix B
Access to Counsel, Key ICE Performance-Based National Detention Standards Indicators
I. ICE National Detention Standards delineate the immigration detainee’s Access to Counsel. ICE’s contract or written agreement with its detention providers including its enforcement provisions, is the means by which ICE procures and ensures provision of these critical activities is provided to the population. ICE Performance-Based National Detention Standards prescribe both the expected outcomes of each detention standard and the expected practices required to achieve them. This summary is based on the 2011 Performance-Based National Detention Standards (revised 2016).
II. There are two standards in their entirety that address access to counsel. They are: 6.3 Law Libraries and Legal Material, and 6.4 Legal Rights Group Presentations.
1. 6.3 Law Libraries and Legal Material. The purpose of this detention standard is to protect detainees’ rights by ensuring their access to courts, counsel and comprehensive legal materials.
a. Key ICE Performance-Based Compliance Indicators, Law Libraries and Legal Material. i. Detainees shall have access to courts and counsel. ii. Detainees shall be able to have confidential contact with attorneys and their authorized representatives in person, on the telephone and through correspondence. iii. Special scheduling consideration shall be given to detainees facing deadlines or time constraints.
b. COVID-19 Modifications to Law Libraries and Legal Material. ICE recommended facilities extend law library hours of operation and stagger detainee access to reduce social distancing.1
2. 6.4 Legal Rights Group Presentations. The purpose of this detention standard is to protect detainees’ rights by providing all detainees’ access to information presented by authorized persons and organizations for the purpose of informing them of U.S. immigration law and procedures.
a. Key ICE Performance-Based Compliance Indicators, Legal Rights Group Presentations. i. Detainees shall have access to group presentations on U.S. immigration law and procedures and all other relevant issues related to the immigration court, appeals and removal processes, including a detainee’s legal rights.
1 ERO COVID-19 PRR, supra note 62.
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Appendix B
ii. Detainees shall be able to communicate and correspond with representatives from the legal groups that make presentations at the facilities.
iii. Detainees shall have access to information and materials provided by legal groups. Organizations shall be permitted to distribute information in response to specific legal inquiries.
b. COVID-19 Modifications to Legal Rights Group Presentations. ICE suspended all legal orientation programs except for Department of Justice-funded presentations provided at a limited number of detention facilities.2
III. There are three additional detention standards with portions addressing access to counsel. They are: 5.1 Correspondence and Other Mail, 5.6 Telephone Access, and 5.7 Visitation.
1. 5.1 Correspondence and Other Mail. The purpose of this standard is to ensure that detainees shall be able to correspond with legal representatives, embassies and consulates consistent with the facility’s safe and orderly operation.
a. Key ICE Compliance Indicators, Correspondence and Other Mail. i. Detainees shall be able to correspond with their families, the community, legal representatives, government offices and consular officials. ii. Incoming and outgoing mail, with the exception of special correspondence or legal mail, shall be opened to inspect for contraband and to intercept cash, checks and money orders. iii. Detainees shall be permitted to send special correspondence or legal mail to a specified class of persons and organizations, and incoming mail from these persons shall be opened only in the presence of the detainees (unless waived) to check for contraband (except when contamination is suspected). iv. Incoming and outgoing letters shall be held for no more than 24 hours and packages no more than 48 hours before distribution, excluding weekends, holidays, or exceptional circumstances. v. All facilities shall implement policies and procedures addressing acceptable and non-acceptable mail. Detainees may receive as correspondence any material reasonably necessary for the detainee to present their legal claim, in accordance with this standard. vi. When timely communication through the mail is not possible, the facility administrator may in their discretion allow for a reasonable amount of communication by means of facsimile device between the detainee and his/her designated legal representatives.
2 March 27 ICE Memorandum, supra note 53.
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Appendix B
b. COVID-19 Modifications to Correspondence and Other Mail. There are none.
2. 5.6 Telephone Access. The purpose of this detention standard is to ensure that detainees may maintain ties with their families and others in the community, legal representatives, consulates, courts and government agencies by providing them reasonable and equitable access to telephone services.
a. Key ICE Compliance Indicators, Telephone Access. i. Detainees and their legal counsel shall be able to communicate effectively with each other. ii. Privacy for detainee telephone calls regarding legal matters shall be ensured. iii. Telephone access procedures shall foster legal access and confidential communications. iv. Detainees with hearing or speech disabilities shall be granted reasonable accommodations to allow for equal access to telephone services. v. Telephones shall be maintained in proper working order. vi. Detainees shall be able to make free calls to the ICE/ERO-provided list of free legal service providers for the purpose of obtaining initial legal representation, to consular officials, the DHS OIG, and the ICE Office of Professional Responsibility Joint Intake Center. vii. Indigent detainees, who are representing themselves pro se, shall be permitted free calls on an as-needed basis to family or other individuals assisting with the detainee’s immigration proceedings.
b. COVID-19 Modifications to Telephone Access. ICE directed facilities to ensure all detainees are able to make calls to its list of free legal service providers and consulates at no charge to the detainee or the receiving party.3
3. 5.7 Visitation. The purpose of this detention standard is to ensure that detainees shall be able to maintain morale and ties through visitation with their families, the community, legal representatives and consular officials, within the constraints of the safety, security and good order of the facility.
a. Key ICE Compliance Indicators, Visitation. i. Detainees shall be able to receive visits from legal representatives, consular officials, and others.
3 Effective March 13, ICE suspended social visitation until further notice to offset its impact. ICE “requested” the facilities maximize detainee phones, video visitation (e.g., Skype, FaceTime), email, and/or tablets with extended hours where possible. It also requested facilities make a “timely effort” to identify indigent detainees and afford them the same telephone access and related privileges. ICE provided no guidance how to accommodate increased demand for family/social and legal communication and contact.
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Appendix B
ii. Visits between legal representatives and assistants and the detainee confidential and shall not be subject to auditory supervision. Private consultation rooms shall be available for such meetings.
iii. Each facility shall permit legal visitation seven days a week, including holidays, for a minimum of eight hours per day on regular business days (Monday through Friday), and a minimum of four hours per day on weekends and holidays. The facility shall provide notification.
iv. In visits referred to as legal visitation, each detainee may meet privately with current or prospective legal representatives and their legal assistants. Legal visits may not be terminated for routine official counts.
v. In emergency circumstances, facilities may consider requests from legal representatives for extended visits or visits outside normal facility visiting hours.
vi. Persons allowed to visit include attorneys and other legal representatives, legal assistants, and translators and interpreters. Additionally, the facility shall permit messengers who are not legal representatives or legal assistants to deliver documents to and from the facility, but not to visit detainees.
b. COVID-19 Modifications to Visitation. The March 27 Memorandum directed non-contact legal visitation (e.g., Skype or teleconference) should be offered first to limit exposure to ICE detainees but in-person contact visitation should be permitted if determined essential by the legal representative. Prior to the in-person visit, the legal representative must undergo the same medical screening required for staff entry into the facility. The ultimate legal visit approving authority lies with the Warden or Facility Administrator; however, the facility should notify its local Field Office Director as soon as possible of any denied legal visits.4
The ERO COVID-19 PRR added, ICE continues to explore opportunities to enhance attorney access while legal visits are impacted.5 For facilities at which immigration hearings are conducted or where detainees are otherwise held who have cases pending immigration proceedings, this may include: i. Adding attorneys of record to the Talton Pro-bono platform. ii. Requiring facilities to establish a process for detainees/immigration attorneys
to schedule appointments and facilitate the calls. iii. Leveraging technology to facilitate attorney/client communication. iv. Working with detention contractors and telephone service providers to ensure
all detainees receive “some number” of free calls per week.
The PRR also directed that there by communication with the public about any changes to facility operations including visitation programs. Facilities were encouraged to prohibit
4 March 27 Memorandum, supra note 53. 5 ERO COVID-19 PRR, supra note 62.
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Appendix B
or, at a minimum, significantly adopt restricted visitation programs.” ICE’s meaning is unclear. Social visitation was suspended indefinitely effective March 13. IV. ICE national detention standards also address accommodations for detainees with disabilities and limited English proficiency to partake of mandated activities including access to counsel. 1. The facility shall provide communication assistance to detainees with disabilities and detainees who are limited in their English proficiency (LEP). 2. The facility will provide detainees with disabilities with effective communication, which may include the provision of auxiliary aids, such as readers, materials in Braille, audio recordings, telephone handset amplifiers, telephones compatible with hearing aids, telecommunications devices for deaf persons (TTYs), interpreters, and notetakers, as needed. 3. The facility will also provide detainees who have limited English proficiency (LEP) with language assistance, including bilingual staff or professional interpretation and translation services, to provide them with meaningful access to its programs and activities. 4. There are no COVID-19 modifications to provisions to address accommodations for detainees with disabilities and limited English proficiency.
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DECLARATION OF HOMER VENTERS, M.D.
I, Homer Venters, declare the following under penalty of perjury pursuant to 28 U.S.C. § 1746 as follows:
BACKGROUND
1. I am a physician, internist and epidemiologist with over a decade of experience in providing, improving and leading health services for incarcerated people. My clinical training includes a residency in internal medicine at Albert Einstein/Montefiore Medical Center (2007) and a fellowship in public health research at the New York University School of Medicine (2009). My experience in correctional health includes two years visiting immigration detention centers and conducting analyses of physical and mental health policies and procedures for persons detained by the U.S. Department of Homeland Security. This work included and resulted in collaboration with ICE on numerous individual cases of medical release, formulation of health-related policies as well as testimony before the U.S. Congress regarding mortality inside ICE detention facilities.
2. After my fellowship training, I became the Deputy Medical Director of the NYC Jail Correctional Health Service. This position included both direct care to persons held in NYC’s 12 jails, as well as oversight of medical policies for their care. This role included oversight of chronic care, sick call, specialty referral and emergency care. I subsequently was promoted to the positions of Medical Director, Assistant Commissioner, and Chief Medical Officer. In the latter two roles, I was responsible for all aspects of health services including physical and mental health, addiction, quality improvement, re-entry and morbidity and mortality reviews as well as all training and oversight of physicians, nursing and pharmacy staff. In these roles I was also responsible for evaluating and making recommendations on the health implications of numerous security policies and practices including use of force and restraints. During this time, I managed multiple communicable disease outbreaks including H1N1 in 2009, which impacted almost a third of housing areas inside the adolescent jail, multiple seasonal influenza outbreaks, a recurrent legionella infection and several other smaller outbreaks.
3. In March 2017, I left Correctional Health Services of NYC to become the Director of Programs for Physicians for Human Rights. In this role, I oversaw all programs of Physicians for Human Rights, including training of physicians, judges and law enforcement staff on forensic evaluation and documentation, analysis of mass graves and mass atrocities, documentation of torture and sexual violence, and analysis of attacks against healthcare workers.
4. BetweenDecember 2018 and April 30, 2020, I served as the Senior Health and Justice Fellow and subsequently as the President for Community Oriented Correctional Health
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Services (COCHS), a nonprofit organization that promotes evidence-based improvements to correctional practices across the U.S. As of May 1, 2020, I left COCHS to focus exclusively on COVID-19 response work as a medical expert. I wrote a book on the health risks of jail (Life and Death in Rikers Island) which was published in early 2019 by Johns Hopkins University Press. A copy of my curriculum vitae, which includes my publications, a listing of cases in which I have been involved and a statement of my compensation, is attached to this report.
TRANSMISSION OF COVID-19
5. Information and understanding about the transmissibility of the coronavirus disease of 2019 (COVID-19) is rapidly evolving. New information is relevant to the health of ICE detainees and staff.
a. In addition to transmission by aerosolized droplets expelled from the mouth by speaking, coughing, sneezing, and breathing, COVID-19 appears to be transmissible through aerosolized fecal contact. This is relevant because the plume of aerosolized fecal material that occurs when a toilet is flushed is not addressable in many detention centers because ICE detainee toilets generally lack lids. This mode of transmission would pose a threat to anyone sharing a cell with a person who has COVID-19 and could occur before a person becomes symptomatic. This mode of transmission could also extend beyond cellmates, especially in circumstances where common bathrooms exist or where open communication between cells exists.1
b. CDC and state guidance now recommend the use of protective masks for anyone who is in close contact with others, at less than 6 feet distance.2 This recommendation applies to staff and detainees alike.
COVID-19 IN ICE DETENTION
6. COVID-19 is a viral pandemic. This is a novel virus for which there is no established curative medical treatment and no vaccine.
7. ICE has not been able to stop the spread of COVID-19 in detention centers. ICE reported that, as of April 7, there were 19 detained people in 11 facilities, 11 ICE employees in 6 facilities, and 60 ICE employees not assigned to a facility who had all tested positive for COVID-19. As of April 20, less than two weeks later, ICE reported a jump to 220 detained people in 28 facilities, 30 ICE employees in 9 facilities, and 86 ICE employees
1 https://www.medpagetoday.com/infectiousdisease/covid19/85315. 2 https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover.html.
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not assigned to a facility who had tested positive for COVID-19.3 These numbers, which do not include non-ICE staff and contractors at the facilities, are likely just the tip of the iceberg in terms of the number of ICE staff and detainees who are already infected but are unaware due to the lack of testing nationwide, and the fact that people who are infected can be asymptomatic for several days.
8. When COVID-19 impacts a community, it will also impact the detention facilities. In New York, one of the areas of early spread in the U.S., multiple correctional officers and jail and prison inmates have become infected with COVID-19. The medical leadership in the NYC jail system have announced that they will be unable to stop COVID from entering their facilities and have called for release as the primary response to this crisis. Staff are more likely to bring COVID-19 into a facility, based solely on their movement in and out every day.
9. Once COVID-19 is inside a facility, ICE will be unable to stop the spread of the virus throughout the facility given long-existing inadequacies in ICE’s medical care and also in light of how these facilities function. ICE has faced longstanding challenges in maintaining adequate health staffing for many years, and the outbreak of this pandemic will dramatically worsen this problem.
10. I have been inside multiple ICE detention facilities, both county jails that house ICE detainees and dedicated facilities. My experience is that the densely packed housing areas, the structure of health services, food services, recreation, bathroom and shower facilities for detained people, as well as the arrangement of entry points, locker rooms, meal areas, and control rooms for staff, all contribute to many people being in small spaces.
11. Detention facilities are designed to force close contact between people and rely on massive amounts of movement every day from one part of the facility to another, e.g., for programming, access to cafeterias, commissary, and medical, just to name a few. This movement is required of detained people as well as staff. My experience managing smaller outbreaks is that it is impossible to apply hospital-level infection control measures on security staff. In a hospital or nursing home, staff may move up and down a single hallway over their shift, and they may interact with one patient at a time. In detention settings, officers move great distances, are asked to shout or yell commands to large numbers of people, routinely apply handcuffs and operate heavy doors/gates, operate large correctional keys and are trained in the use of force. These basic duties cause the personal protective equipment they are given to quickly break and become useless, and even when in good working order, may impede their ability to talk and be
3 ICE Guidance on COVID-19, IMMIGRATION & CUSTOMS ENFORCEMENT (Updated Apr. 20, 2020), https://www.ice.gov/coronavirus.
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understood, in the case of masks. For officers working in or around patients at risk or with symptoms, there may be an effort to have them wear protective gowns, as one would in any other setting with similar clinical risks. These gowns cover their radios, cut down their ability to use tools and other equipment located on their belts and in my experience working with correctional staff, are basically impossible to use as a correctional officer.
12. Efforts to lock detained people into cells will worsen, not improve this facility-level contribution to infection control. Units that are comprised of locked cells require additional staff to escort people to and from their cells for showers and other encounters, and medical, pharmacy and nursing staff move on and off these units daily to assess the welfare and health needs of these people, creating the same movement of virus from the community into the facilities as if people were housed in normal units.
13. ICE’s detention procedures and practices have manifestly failed to mitigate the rapid spread of the novel coronavirus within their facilities. As of the date of this declaration, there are confirmed cases of COVID-19 among both detainees and staff at the four facilities in this case. Nine detainees and one employee at Stewart Detention Center, two detainees at Irwin County Detention Center, five detainees at LaSalle ICE Processing Center, and seventeen detainees at Pine Prairie ICE Processing Center have tested positive for the virus.4 These figures likely underestimate the number of people infected at each facility, as ICE only tests people who meet the CDC’s definition of a person under investigation;5 that is, someone exhibiting symptoms of COVID-19. Many carriers of coronavirus are asymptomatic, and thus would not qualify for testing by ICE.
ICE RESPONSE TO COVID-19 IN DETENTION CENTERS IS DEFICIENT
14. On the whole, ICE’s response to the COVID-19 pandemic is grossly deficient and at odds with recommendations of the CDC regarding detention settings in a manner that threatens the health and survival of ICE detainees. I’ve reviewed available documents regarding their planning, including the March 6, 2020 interim guidance sheet provided by ICE Health Service Corps,6 March 27, 2020 Memorandum to ICE wardens (“March 27 memo”),7 ICE’s guidance on its website,8 the April 4, 2020 Docket Review memo,9 and the April 10, 2020 ERO COVID-19 Pandemic Response Requirements (“ERO document”).
A. The March 6 and March 27 Memoranda
4 https://www.ice.gov/coronavirus. 5 Id. 6 https://www.aila.org/infonet/ice-interim-reference-sheet-coronavirus. 7 https://www.ice.gov/doclib/coronavirus/attF.pdf. 8 https://www.ice.gov/covid19. 9 https://www.ice.gov/doclib/coronavirus/attk.pdf.
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15. I have reviewed ICE’s March 6 and March 27, 2020 documents addressing COVID-19 (together, the “March 2020 ICE Protocols”); although I understand the March 6 interim guidance policies to be superseded by the April 10, 2020 ERO document, it is worth noting that these policies were deficient and at odds with recommendations of the CDC regarding detention settings in a manner that threatens the health and survival of ICE detainees. The April 10 ERO document mandates compliance with the March 27 memo, which also fails to comply with CDC guidance.
16. ICE’s March 27 memo takes the dangerous approach of limiting clinical guidelines for COVID-19 response to the detainees being provided direct care by ICE Health Services Corps (IHSC) staff, which represents approximately 13,000 detainees.10 As a result, detention centers operated by public and private contractors are not provided with this guidance. This approach to management of the COVID-19 outbreak ensures that vital information would remain in these facilities, instead of being acted upon by ICE. As a result, ICE could not have known when its own policies or even basic standards of infection control were being followed.
17. The March 2020 ICE Protocols failed to address the key recommendation of the CDC on the need for adequate staffing and training of staff. ICE’s March 27 memo simply states that “facilities are expected to be appropriately staffed,” but provides no guidance whatsoever on how that could be accomplished in the context of existing staffing gaps, a decreased workforce, and increased needs resulting from steps required to screen, monitor and treat detainees for COVID-19. CDC Detention Guidelines make clear the need for a concrete plan for ensuring adequate staffing as part of the COVID-19 response.11 These guidelines also make clear the need to orient staff to the critical need to stay home if and when they experience symptoms of COVID-19 infection. The March 27 guidance mentions only the “expectation” of appropriate staffing levels rather than implementing any meaningful oversight system to ensure that staffing levels are appropriate. Critically, appropriate staffing levels refers not only to a sufficient number of staff but also to a sufficient number of qualified staff. In my experience, many facilities rely heavily on guards and LPNs to do medical work that they are not qualified to do; likewise, many facilities rely on RNs to do medical work that only doctors or physicianassistants are qualified to do. There is no indication whatsoever that ICE is implementing procedures to ensure not only sufficient numbers of staff but also sufficient numbers of qualified staff. This is a very serious defect because access to qualified medical professionals is crucial during this rapidly evolving pandemic.
10 https://www.ice.gov/ice-health-service-corps. 11 Guidance for Correctional & Detention Facilities (“CDC Detention Guidelines”) https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html.
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18. The March 2020 ICE Protocols failed to address the key recommendation of the CDC on the need for adequate intake screening of detainees. CDC Detention Guidelines make clear that everyone arriving in a detention facility should be screened for signs and symptoms of COVID-19, but the March 2020 ICE Protocols relied on questions about travel or other known contacts as a precursor to temperature checks and other sign and symptom checks. It is likely that almost everyone in the general public who is not practicing social distancing is in contact with the COVID-19 virus, and these questions give a false impression that they will somehow help identify those most likely to have this type of contact. According to the CDC, the appropriate focus should be on checking for active symptoms including fever and known sick contacts of any type every time a person, whether a staff member or detained person, enters an ICE facility. The March 2020 ICE Protocols also failed to clearly mandate that all symptomatic patients be immediately given a mask and placed in medical isolation, and that all staff who have further contact with that patient wear personal protective equipment, as set forth in the CDC Detention Guidelines. These protocols also failed to address the now-standard CDC advice that everyone who cannot engage in social distancing wear a face covering.12
19. The March 2020 ICE Protocols provided no guidance about identification of high-risk patients at the time of entry or any special precautions that would be enacted to protect them. The protocol also failed to address the identification of high-risk patients who have already been admitted.
20. The March 2020 ICE Protocols stated that people with suspected COVID-19 contact would be monitored for 14 days with symptom checks. The protocols were written as if this would be a rare occurrence, reflecting smaller outbreak management, but the prevalence of COVID-19 has grown to such an extent that a large share of newly arrived people will have recent contact with someone who is infected. ICE would need to use this level of monitoring for every person arriving in detention. Accordingly, ICE would need to dramatically expand its medical facilities and staffing to conduct this daily monitoring of every newly arrived person for 14 days. The protocols failed to contemplate these necessary changes.
21. The March 2020 ICE Protocols failed to address the key recommendation of the CDC on the need for monitoring and care of symptomatic patients.
a. The CDC Detention Guidelines make clear that patients who exhibit symptoms of COVID-19 should be immediately placed in medical isolation. The March 2020 ICE Protocols only invoked this response for newly arrived detainees who also
12 https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/diy-cloth-face-coverings.html.
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answered yes to screening questions. This approach results in a failure to actively screen the large majority of detainees: people who are already detained.
b. CDC Detention Guidelines clearly indicate the need for twice-daily monitoring of patients who are symptomatic or in quarantine, and ICE only mandated a daily check.
c. ICE made no mention of access to masks for patients in quarantine settings.
d. ICE failed to present a plan for how isolation would be conducted when the number of people exceeded the number of existing isolation rooms or cells, a near certainty.
22. The March 2020 ICE Protocols failed to address the key recommendation of the CDC Detention Guidelines on the need for social distancing. ICE's March 27 memo mentions social distancing briefly, but fails to address how ICE facilities will enact modified meal or recreation times and also fails to address the most common scenarios in which high risk detainees find themselves in close quarters, including shared cells, medication lines, bathroom facilities, common walkways and day rooms, sally ports and transportation. Again, because there is no cure for COVID-19, social distancing remains the most effective means of prevention, and ICE failed to meaningfully implement this precaution in its March 2020 guidance.
23. The March 2020 ICE Protocols failed to address the recommendation of the CDC Detention Guidelines on the need to limit transportation of detainees as a means to limit the spread of COVID-19. CDC Detention Guidelines state that transfers should be limited to those that are absolutely necessary and that receiving facilities must have capacity to isolate symptomatic patients upon arrival. ICE protocols failed to address these issues. CDC Detention Guidelines make clear the need for a clear plan for all aspects of transport of suspected COVID-19 infected people, and ICE does not have or did not report such a plan. The CDC Detention Guidelines recommend a level of infection control measures in transportation of symptomatic or potentially COVID-19 positive patients that would require far more staffing and training than ICE has the capacity to provide for large scale transfers: “If a transfer is absolutely necessary, perform verbal screening and a temperature check as outlined in the Screening section below, before the individual leaves the facility. If an individual does not clear the screening process, delay the transfer and follow the protocol for a suspected COVID-19 case – including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing. If the transfer must still occur, ensure that the receiving facility has capacity to properly isolate the individual upon arrival. Ensure that staff transporting the individual wear recommended PPE . . . and that the transport vehicle is cleaned thoroughly after transport.” In other words, transferring
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people between facilities, as ICE routinely does and as I understand is still going on, requires far more measures than ICE implements and should be ceased.
24. The March 2020 ICE Protocols failed to address the recommendation of the CDC Detention Guidelines on the need for environmental cleaning of both housing areas and other common spaces within facilities. CDC Detention Guidelines provide clear details about the types of cleaning agents and cleaning processes that should be employed, while ICE provided no guidance to facilities on this critical issue. Reliance on detainees for conducting critical environmental cleaning, without proper training, protection or supervision, represents a gross deviation from correctional practices, and will likely contribute to the spread of COVID-19 throughout the ICE detention system.
B. The April 4, 2020 Docket Review Guidance
25. None of the ICE COVID-19 protocols set forth sufficient policies or protocols addressing release of medically vulnerable detained people in light of the significant risks to those people posed by COVID-19. This must be done immediately and is in contrast to the efforts made in many prison and jail systems across the country.
26. The April 4 list of risk factors for serious illness and death from COVID-19 infection developed by ICE is inconsistent with CDC guidelines and fails to adequately advise facilities on which detainees are at elevated risk. This list is included in a memo to Field Office Directors regarding Docket Review, and fails to include very basic risk factors identified by the CDC, including body mass index over 40 and being a current or former smoker.13 By apparently assigning this process to field directors and their staff, who are not medical professionals, advising security staff to check with medical professionals after the fact, and failing to include CDC-identified risk factors, this docket review process will likely leave many people with true risk factors in detention. This is particularly the case if they’re detained under certain immigration law provisions, where the guidance recommends officers not release them despite risks. Thus, the guidance appears to be just that – guidance, and the risk factors are not determinative. In fact, the guidance appears to not make these risk factors determinative for release—even for people who are not subject to mandatory detention. ICE also identifies people under the age of 60 in this cohort but the age of 55 is appropriate. Because detained people have consistently been identified as having higher levels of health problems that reflect that they are 10-15 years more progressed than chronological age, numerous organizations and research studies have used the age of 55 to define the lower limit of older detainees.14 ICE also limits the high risk period for women to 2 weeks after child birth, yet one of the
13 https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html and https://www.cdc.gov/mmwr/volumes/69/wr/mm6913e2.htm. 14 https://nicic.gov/aging-prison and https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3464842/.
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most serious increased risk during pregnancy is hypercoagulable state, which increases the risk of blood clots in the large veins of the lower extremities, and sometimes in the lung which can prove fatal. This risk extends to 6 weeks post-partum and also occurs independently with COVID-19 infection.15 Accordingly, ICE should include these definitions in its list of risk factors. ICE should also put in place a mechanism to ensure that risk factors reflect the evolving science and data concerning COVID-19, since it is likely that additional risk factors will emerge as more data is collected.
27. The April 4 promulgation of an incomplete list of risk factors in a memo relating to discretion for release occurs in a complete vacuum of guidance on special protection and clinical management of people with those risk factors while in detention. This Memo describes an overly discretionary decision-making process for release that does not sufficiently favor depopulation as public health requires and that has no urgency to it. Reviews and releases must be undertaken immediately.
28. The April 4 ICE memo to Field Directors on identification and release of detained people with risk factors for serious illness and death from COVID-19 infection is both incomplete and revelatory. ICE has omitted multiple important risk factors identified by the CDC in its own list but has also failed to create any surveillance of the outbreak across facilities that includes the number of patients experiencing symptoms, confirmed COVID-19 infection or hospitalization by presence or absence of CDC risk factors.
C. The April 10, 2020 ERO Document
29. The ERO document identifies multiple areas of COVID-19 response that all facilities holding ICE detainees must supposedly adhere to. Multiple sections of this document reflect inconsistencies or critical omissions from CDC Detention Guidelines for response to COVID-19. In addition, ICE is unlikely to ensure compliance with the policies laid out in this document due to longstanding lack of information systems, quality assurance and oversight mechanisms that are standard in other carceral or detention settings. These inconsistencies and omissions increase the risk that facilities holding ICE detainees will not follow evidence-based practices in infection control and that ICE detainees will experience higher risks of serious illness and death because of these deficiencies.
30. The ERO document omits key aspects of CDC guidelines for self-monitoring and quarantine for staff and detainees who have had contact with suspected or known cases of COVID-19.
15 https://www.acog.org/patient-resources/faqs/womens-health/preventing-deep-vein-thrombosis and https://www.medpagetoday.com/infectiousdisease/covid19/85865.
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a. Staff who have contact with a known or suspected case of COVID-19 are only mentioned in one section of this document “Exposed employees must then selfmonitor for symptoms (i.e., fever, cough, or shortness of breath).” This omits several critical aspects of CDC guidelines that bear on this very scenario, contacts between critical staff and COVID-19 suspected or known cases. The CDC guidelines include the following directives:16
i. Pre-Screen: Employers should measure the employee’s temperature and assess symptoms prior to them starting work. Ideally, temperature checks should happen before the individual enters the facility.
ii. Regular Monitoring: As long as the employee doesn’t have a temperature or symptoms, they should self-monitor under the supervision of their employer’s occupational health program.
iii. Wear a Mask: The employee should wear a face mask at all times while in the workplace for 14 days after last exposure. Employers can issue face masks or can approve employees’ supplied cloth face coverings in the event of shortages.
iv. Social Distance: The employee should maintain 6 feet and practice social distancing as work duties permit in the workplace.
v. Disinfect and Clean work spaces: Clean and disinfect all areas such as offices, bathrooms, common areas, shared electronic equipment routinely.
b. In addition, the ERO document provides no guidance on how facilities should act if one of these staff members with a known/suspected contact becomes ill at work. The CDC provides clear guidance however:
i. “If the employee becomes sick during the day, they should be sent home immediately. Surfaces in their workspace should be cleaned and disinfected. Information on persons who had contact with the ill employee during the time the employee had symptoms and 2 days prior to symptoms should be compiled. Others at the facility with close contact within 6 feet of the employee during this time would be considered exposed.”
c. Key CDC recommendations for detainees who have contact with a known or suspected case of COVID-19 are similarly left out of the ERO document. The ERO document addresses this aspect of facility management with the following:
16 https://www.cdc.gov/coronavirus/2019-ncov/community/criticalworkers/implementing-safety-practices.html.
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“If an individual is a close contact of a known COVID-19 case or has traveled to an affected area (but has no COVID-19 symptoms), quarantine the individual and monitor for symptoms two times per day for 14 days.” This omits several critical aspects of CDC guidelines that bear on this very scenario, the quarantine of detainees who have contacts with suspected or known cases. In the section on “Management,” the CDC Detention Guidelines include specific protocols applicable to quarantine. Examples of these protocols include:17
i. Provide PPE to staff working in quarantine settings, and masks to detainees in these settings.
ii. Quarantined individuals should be monitored for COVID-19 symptoms twice per day, including temperature checks.
iii. Meals should be provided to quarantined individuals in their quarantine spaces. Individuals under quarantine should throw disposable food service items in the trash. Non-disposable food service items should be handled with gloves and washed with hot water or in a dishwasher. Individuals handling used food service items should clean their hands after removing gloves.
31. The ERO document mandates that every facility holding ICE detainees have a COVID19 mitigation plan in place. The ERO document specifies the following: “Consistent with ICE detention standards, all facilities housing ICE detainees are required to have a COVID-19 mitigation plan that meets the following four objectives:
a. To protect employees, contractors, detainees, visitors to the facility, and stakeholders from exposure to the virus;
b. To maintain essential functions and services at the facility throughout the pendency of the pandemic;
c. To reduce movement and limit interaction of detainees with others outside their assigned housing units, as well as staff and others, and to promote social distancing within housing units; and
d. To establish means to monitor, cohort, quarantine, and isolate the sick from the well.
17 https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctionaldetention.html#management.
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32. My experience in reviewing policies and procedures in detention settings around the nation is that many facilities holding ICE detainees do not have such a plan and that since a critical part of the CDC recommendations include preparation for COVID-19, many facilities have already failed to meet many basic elements of the COVID-19 responses recommended by the CDC. Even if ICE is able to ensure and report that every facility has created such a plan, it is likely that the lack of COVID-19 response plan to prepare many facilities and respond to the early stages of the outbreak will increase the risk of serious illness or death. Many ICE facilities are in the throes of COVID-19 infection, and waiting until this pandemic is at its peak to require a mitigation plan represents a gross deviation from both CDC guidelines and basic correctional practice. Key areas of work that must be conducted before COVID-19 arrives include training of staff, ordering of supplies, planning for quarantine housing and monitoring, and identification of surge staffing. Starting these basic tasks immediately makes it much less likely that facilities will succeed in their efforts to slow spread of the virus.
33. The ERO document identifies a list of high-risk conditions that is inconsistent with the guidance given by ERO just days earlier and fails to adhere to CDC guidelines.
a. The new ERO document fails to identify pregnant or post-partum women. The ERO docket review guidelines dated April 4, 2020, failed to identify smoking history or body mass index over 40 as risk factors, both of which are included by the CDC.
b. The age for older detainees was indicated as 65 in the new ERO document and 60 in the prior document. The correct age, based on correctional standards, should be 55.
34. The purpose of the ERO document’s identification of high-risk patients is unclear beyond custody review, but it fails to establish any higher level of protection from COVID-19 infection.
a. The prescribed actions in the ERO document regarding high-risk detainees include identifying who they are, emailing their name, location, medical issues and medications, and facility point of contact information to ICE headquarters apparently for review for release.
b. No guidance is given about how these high-risk patients can be protected from being infected with COVID-19, unless and until they are in a quarantine area or have been identified as symptomatic.
c. Having identified the detainees who are at increased risk of serious illness and death, and initiated a process to effectuate their release based on that risk, ICE
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must also create increased surveillance of these detainees, including twice daily symptom checks with temperature checks.
35. The ERO document creates an unwieldy and unrealistic process for facilities to notify ICE headquarters regarding high risk detainees.
a. The process of requiring every facility to send emails about every individual detainee with risk factors is unwieldy and unlikely to be effective. I have created surveillance tools for high risk patients in multiple detention scenarios and several key elements of this process are problematic:18
i. The process of emailing thousands of names with relevant information, or even spreadsheets, tables and other documents from over 150 facilities creates an unreliable and error prone system for finding the most vulnerable detainees inside ICE facilities.
ii. The process identified by ICE is static, meaning that as detained people move from one facility to another, there will be no way for their location to be automatically updated with their high-risk status, requiring labor intensive and error-prone records reviews.
iii. This approach will not allow for day to day management of the high-risk population by ICE leadership, since there will not be any way to be automatically notified when people are released, become ill for nonCOVID-19 reasons, or even to automatically cross check the new COVID19 cases against this initial batch of hundreds or thousands of emails.
iv. ICE should create single portal into which every facility can enter data on the detainees who meet CDC criteria for being high-risk. I employed such a portal as Chief Medical Officer of the NYC jail system, and we relied on this before and after the implementation of an electronic medical record as a way to identify high-risk patients and then track them from one facility to another. This type of approach is also essential for ICE to meet its stated obligations regarding re-entry planning for people who are leaving amid the COVID-19 crisis and coordination with local and state public health partners.
v. The net effect to this cumbersome and inefficient process will be that it will move unacceptably slowly in a fast-changing situation, far fewer
18 https://cochs.org/files/health-it-hie/nyc-meaningful-use.pdf; https://www.researchgate.net/publication/264512394_DataDriven_Human_Rights_Using_the_Electronic_Health_Record_to_Promote_Human_Rights_in_Jail.
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detainees with risk factors will actually be released than could have occurred based on policies, and more high-risk patients will be at risk of serious illness and death in ICE detention.
36. The ERO document fails to include vital elements of CDC guidelines on preventing the spread of COVID-19 inside detention settings:
a. The ERO document fails to mention or provide guidance on key aspects of social distancing including;
i. Intake pens
ii. Clinical and medication lines
iii. Bathroom and shower areas
iv. Sally ports
v. Staff entry, symptom checking, meal and locker room areas
b. The ERO document fails to include guidance on the importance of communication with detainees about changes to their daily routine and how they can contribute to risk reduction, both of which are explicitly identified by the CDC guidelines. This is particularly important in a cross-cultural, multi-lingual setting like ICE detention. Simply posting signs is insufficient to communicate with detained people or staff, particularly during a stressful and chaotic situation like an outbreak. My personal experience leading both small and large scale outbreak responses behind bars is that frequent communication, in housing areas and other parts of detention settings where detained people are held, and where staff work, is critical to delivering important messages about infection control and also hearing about what is working and what isn’t.
c. The ERO document fails to include many critical aspects of cleaning and disinfection outlined in CDC guidelines including:
i. CDC guidelines identify a higher level of cleaning and disinfection after a person has been identified as a suspected COID-19 case. This common sense approach is critical to ensuring that the most high-risk scenarios encountered by detainees and staff alike are responded to appropriately.
ii. The ERO document only mentions cleaning of vehicles after transport of a known/suspected case but fails to mention anything about the
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housing area, cell, bunk or personal effects of detainees, or the computer, equipment or other belongings of staff.
iii. CDC guidelines indicate that in settings where people are held overnight, response to a known or suspected COVID-19 case should include closing off areas used by the person who is sick, opening outside doors and windows to increase air circulation in the area and waiting 24 hours (or as long as possible) before cleaning/disinfecting.
iv. The ERO document fails to establish what PPE should be utilized by staff or detainees cleaning areas occupied by a known or suspected COVID-19 case.
v. Cleaning and disinfecting is a crucial aspect of infection control as there are numerous frequently used locations within facilities that may facilitate infection spread. This includes but is not limited to telephones, videoconferencing equipment, the law library, legal visitation spaces, and any other space that may be used by detained individuals. Facility staff should be sure to disinfect these spaces between uses given the likelihood of spread. In addition to cleaning, providing gloves and masks to detained individuals between uses of these spaces is a crucial component of infection control and prevention.
d. CDC guidelines clearly recommend against transfer of detainees between facilities, as a means to prevent the regional spread of COVID-19. This approach is only mandated with regard to non-ICE detainees by the April 10 ERO document, leaving transfers of people in custody of ICE unrestricted.
e. The ERO document requires that everyone in facilities engage in hand washing for 20 seconds with soap and water but fails to address how this can be accomplished in facilities that utilize metered faucets that make this process essentially impossible.
f. The ERO document fails to establish or mandate a respiratory protection program, a critical guideline of the CDC: “If not already in place, employers operating within the facility should establish a respiratory protection program as appropriate, to ensure that staff and incarcerated/detained persons are fit tested for any respiratory protection they will need within the scope of their responsibilities.” Simply giving out N95 or other masks to staff and detainees and failing to train them and identify the high-risk tasks or scenarios they will encounter serves only to decrease the overall effectiveness of infection
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control and increase the risk of serious illness and death in ICE facilities. The ERO document gives some details about cloth masks, but there is no mention of any plan to train, record or supervise members of the respiratory protection team, despite the CDC clearly including security personnel in this team.19
37. The ERO document fails to address the re-entry needs of people leaving ICE custody. This is a critical failure given their ongoing docket review. The CDC makes clear recommendations on this process:
a. If an individual does not clear the screening process, follow the protocol for a suspected COVID-19 case20 – including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing.
b. If the individual is released before the recommended medical isolation period is complete, discuss release of the individual with state, local, tribal, and/or territorial health departments to ensure safe medical transport and continued shelter and medical care, as part of release planning. Make direct linkages to community resources to ensure proper medical isolation and access to medical care.
c. Before releasing an incarcerated/detained individual with COVID-19 symptoms to a community-based facility, such as a homeless shelter, contact the facility’s staff to ensure adequate time for them to prepare to continue medical isolation, or contact local public health to explore alternate housing options.
D. Critical Issues the ICE Has Failed to Address Absent Direct CDC Guidance
38. ICE does not have any mechanisms to monitor or promote the health of all people in its charge. This failure is documented in many reports about ICE’s inadequate healthcare system, but now poses a grave risk to their survival as ICE struggles to mount a competent response to COVID-19 across more than 150 facilities, on behalf of roughly 40,000 detainees and almost as many direct and contract staff. ICE's failure to properly monitor and oversee medical care at its detention centers has been a chronic concern in the health services provided to ICE detainees prior to this outbreak and has been cited as
19 https://www.cdc.gov/niosh/npptl/hospresptoolkit/programeval.html. CDC definition of healthcare personnel includes “paid and unpaid persons who provide patient care in a healthcare setting or support the delivery of healthcare by providing clerical, dietary, housekeeping, engineering, security, or maintenance services.” 20 https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctionaldetention.html#Medicalisolation.
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a core failure of ICE in its obligations to establish quality assurance throughout its detention network.21 There is no indication that ICE can adequately monitor the response across its system to COVID-19. Absent robust and centralized oversight, ICE will not be able to provide a coordinated response informed by on-the-ground data from detention centers. This is in stark contrast to many prison systems across the country that are coordinating their efforts, including with health departments.
39. ICE has no plan or even capacity to provide daily clinical guidance to all of the clinical staff it relies on to care for ICE detainees, whether at ICE-operated facilities or contract facilities. The differing levels of oversight and clinical involvement across the various types of ICE facilities means that ICE is unable to promulgate and support a consistent set of clinical practices for all ICE detainees This is a core failure because of the new nature of COVID-19 and constantly changing clinical guidance on how to treat patients. Daily briefings with health administrators and medical and nursing leadership should be held; both are a core aspect of outbreak management and provide a critical avenue for receiving feedback on real-time conditions inside facilities. ICE has not articulated any plan to ensure that this type of basic communication is in place across its network of detention settings. This guidance should also include uniform recommendations on when and how to transport patients to the hospital. Failure to implement this kind of procedure—particularly in light of the other defects described herein—poses a significant risk to the health and lives of ICE detainees.
40. As ICE determines to release people from detention, they should be afforded symptom screening akin to what is done with staff, but the release of detainees to the community will lower their own risks of infection and will also serve to flatten the overall epidemic curve by decreasing the rate of new infections and the demands on local hospital systems. From a medical and epidemiologic standpoint, people are safer from COVID-19 infection when not detained, and the epidemic curve of COVID-19 on the general community is flattened by having fewer people detained.
I declare under penalty of perjury that the statements above are true and correct to the best of my knowledge.
Signed this 2nd day of May, 2020 in Port Washington, NY.
21 https://www.oig.dhs.gov/sites/default/files/assets/2019-02/OIG-19-18-Jan19.pdf; https://www.oig.dhs.gov/sites/default/files/assets/2019-06/OIG-19-47-Jun19.pdf.
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________ Homer Venters

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Case 1:18-cv-00760-CKK-RMM Document 105-7 Filed 05/07/20 Page 1 of 35
DECLARATION OF LAURA G. RIVERA, ESQ. I, Laura G. Rivera, Esq., make this declaration on my personal knowledge and if called to testify, I could and would do so competently as follows:
1. I serve as the Director of the Southeast Immigrant Freedom Initiative of the Southern Poverty Law Center (“SIFI”). I have worked at SIFI since its launch in early 2017, serving variously as Deputy Director and Advocacy Attorney. I became the Director in September 2019.
2. SIFI provides pro bono representation to detained immigrants in proceedings before the Executive Office for Immigration Review, U.S. Immigration and Customs and Enforcement (“ICE”), and the Board of Immigration Appeals (“BIA”). SIFI focuses on seeking clients’ release from ICE custody. SIFI also represents some individuals in merits proceedings before EOIR and the BIA, and provides pro se support to some custody clients in their merits proceedings.
3. SIFI represents individuals confined inside the LaSalle ICE Processing Center (“LaSalle”) in Jena, Louisiana; the Pine Prairie ICE Processing Center (“Pine Prairie”) in Pine Prairie, Louisiana; the Irwin County Detention Center (“Irwin”) in Ocilla, Georgia; the Folkston ICE Processing Center (“Folkston”) in Folkston, Georgia; and the Stewart Detention Center (“Stewart”) in Lumpkin, Georgia. The facilities at issue in this litigation (LaSalle, Pine Prairie, Irwin, and Stewart) will hereinafter be referenced collectively as “the four facilities.”
4. Since the start of the COVID-19 outbreak, SIFI has started to represent a few medically vulnerable people confined under alarming conditions at Adams County Correctional Facility (“Adams”) in Natchez, Mississippi; South Louisiana ICE Processing Center (“Basile”) in Basile, Louisiana; and Winn Correctional Center (“Winn”) in Winnfield, Louisiana. SPLC has also partnered with Asian Americans Advancing Justice-Atlanta and Kilpatrick, Townsend, & Stockton LLP (hereinafter “Habeas Counsel,” referring to
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counsel collectively) to represent medically vulnerable immigrants in habeas petitions at Stewart and Irwin.
5. Before SIFI’s launch in 2017, the previous Director and I attempted to negotiate terms for legal access with CoreCivic managers at Stewart Detention Center. SIFI undertook similar efforts at the four facilities, without success.
6. SIFI’s ability to communicate with our clients has been constrained from the very beginning. The constraints exist across every medium of communication: in-person visitation, video teleconference (“VTC”) calls, phone calls, and mail. For example, inperson visits at Stewart, Irwin, and LaSalle do not allow contact between attorneys and clients, while at Pine Prairie, contact visits are the only form of in-person legal visitation. The number of visitation rooms are too few considering that hundreds of individuals in essentially a pre-trial posture are confined at each of the four facilities. Long wait times, limited hours, and time limits on visits have been commonplace at the four facilities. These are the conditions SIFI staff faced before the pandemic as they visited the four facilities. Each week, SIFI staff visited facilities two or three days, on average, conducting visitation with two dozen people or more, depending on the week.
7. SIFI has also made use of VTC and legal phone calls to communicate with clients, especially where staff requires interpreters for effective communication, because Stewart, Irwin, and Pine Prairie have not consistently allowed attorneys to call interpreters during in-person visitation, or provide a method that is workable in practice. For example, in the past few months, Stewart began allowing legal visitors to use a cell phone during inperson visits solely to call interpreters. In practice, however, this method is unworkable. Since Stewart only allows non-contact visits, the legal visitor must place the cell phone with the interpreter on the line up to the glass or the receiver of the facility phone, and the client often cannot hear it.
8. But these means of communications, too, are so limited that SIFI staff experience chronic delays in developing cases. For example, Stewart, has only two VTC consoles with VTC
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calls limited to one hour, and, until last week, no process for confidential legal phone calls. Until recently, Pine Prairie had only one VTC console; each VTC call is limited to thirty minutes. Irwin requires two to three days’ advanced notice to coordinate a VTC call. Similar or longer wait times are the norm at LaSalle and Stewart. (Collectively, legal phone calls and VTC are hereinafter referenced as “remote legal visit”).
9. Mail has not proven to be a reliable method to exchange documents with clients. For example, at Stewart, where a single post office box number is shared by the court, ICE prosecutors, ICE Enforcement and Removal Operations agents, and people confined inside the detention center, mail sometimes does not reach its intended recipient. At Pine Prairie, detained individuals have reported that legal mail has been searched and evidence improperly confiscated as contraband. Delays in sending and receiving are the norm.
10. Taken together, these constraints lengthen the time it takes for SIFI staff to prepare a case, given the many steps involved in developing an application for release to EOIR or ICE. In a typical case, SIFI staff conduct a phone intake with a potential client via SIFI’s free and confidential hotline. The intake may last from 30 minutes to more than an hour, depending on the caller’s circumstances and whether an interpreter is necessary. SIFI staff then conduct a more in-depth screening with that individual. The screening usually takes place in-person unless the individual speaks a foreign language that SIFI staff do not speak. In those cases, the screening is conducted via VTC, and SIFI call an interpreter. While a typical screening without interpretation may take one to one-and-ahalf hours, a screening through an interpreter may take twice as long.
11. If SIFI determines it may accept the case, staff again meet with the individual to explain SIFI’s retainer, discuss the next steps in developing the case, and answer the client’s questions. To prepare the client’s bond motion or parole request, SIFI staff may speak with the client two or three more times, in-person or remotely. Eliciting relevant facts for the case usually takes several conversations, especially because most clients have experienced trauma on account of their detention, their migration journey, life experiences in their home countries or the United States, or any combination of those. In
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such cases, SIFI staff, employing trauma-informed approaches to representation, may invest time building rapport with clients, spread triggering subject matter across conversations, and revisit difficult topics as clients recollect suppressed details.
12. Clients typically possess documentary evidence and case filings that are not otherwise available to SIFI staff, and because the mail is unreliable, staff generally have collected those documents in person. Documents that include sensitive material may be the client’s only copy; in which case, the ability to take it from them in person, make a copy of it, and bring it back to them safely is invaluable. For similar reasons, SIFI staff have tended to obtain signatures from clients via in-person visits rather than by mail. Examples of typical documents exchanged include the G-28, Entry of Appearance before ICE, the ICE Privacy Waiver, authorizations for the release of medical records, ICE charging documents, and copies of identification documents and other records from clients’ home countries. Facilities have allowed SIFI attorneys to fax authorizations for release of medical records and often subsequently receive the medical records from the facility via fax.
13. The outbreak of the novel coronavirus has heightened the urgency of release for clients confined in close quarters, as they and those around them contract the virus, face food shortages, and suffer violence in response to protesting for basic sustenance, hygiene supplies, and healthcare. Medically fragile clients especially need legal representatives now more than ever to advocate for their release from confinement, given Homeland Security medical experts’ characterization of detention centers as a “tinderbox” for contagion, as well as a federal district court’s finding that “[a]ny medically vulnerable individual in an ICE facility likely confronts an unreasonable risk of infection, severe illness, and death.” Faour Abdallah Fraihat, et al v. U.S. Immigration and Customs Enforcement, et al, Case No. 5:19-cv-01546-JGB-SHK (C.D. Cal. Apr. 20, 2020), ECF No. 132.
14. The exponential rate of spread of COVID-19 inside ICE detention centers is evident even from ICE’s public representations. ICE Guidance on Coronavirus,
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https://www.ice.gov/coronavirus. As of May 6, 2020, ICE has confirmed the following cases of COVID-19 among the detained population at the four facilities:
• 11 detained people at LaSalle (on April 27, ICE had reported 20 cases at LaSalle (Exhibit C);
• 26 detained people at Pine Prairie; • 2 detained people at Irwin; • 11 detained people at Stewart and more than 40 staff. See Stephannie Stokes,
More than 40 Employees at Ga. Immigration Detention Center Test Positive For COVID-19 (Apr. 28, 2020), https://bit.ly/3f4zJfC. At a hearing on April 10, 2020, almost one month ago, when the confirmed number of cases at Stewart was 5, Warden Washburn confirmed that there were 30 suspected cases of COVID19 among the detained population at Stewart and that they had only tested 9 in total.
15. At the same time, most of the EOIR courts where SIFI lawyers practice continue to press forward on their detained dockets as speedily as they had before the pandemic. With few interruptions, EOIR courts with jurisdiction over the four facilities—Stewart, Atlanta, LaSalle, and Oakdale—have set and held master calendar, individual, and bond hearings for detained respondents throughout the pandemic. The only exception I am aware of is in the Allen Parish Correctional Complex in Oberlin, Louisiana, where a detained individual’s relative reported that court proceedings are stalled until cameras are installed in the jail. This means people in ICE custody there have no recourse to a timely custody hearing.
16. The fast pace of EOIR’s detained docket means SIFI staff must act quickly to seek clients’ release before their final immigration court hearings. Yet SIFI’s ability to timely prepare cases is even more stymied since the COVID-19 outbreak, as ICE’s past practices, coupled with its current response, create unprecedented obstacles to communications with clients.
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SIFI’s Representation of Detained Individuals in the Time of Coronavirus
17. In early March, as reports of confirmed COVID-19 cases spread across the country, SIFI adopted guidelines for in-person client visits consistent with public health experts’ advice. To reduce the risk of transmission between SIFI staff and clients, SIFI staff were required to follow certain safety precautions, and to limit in-person visits to certain circumstances. Staff were provided with and instructed to wear surgical masks and gloves during visits, and to use hand sanitizer after visits. Visits were authorized for retained clients only to obtain necessary signatures or time-sensitive documents, or to prepare clients for hearings.
18. In late March, ICE issued a conflicting sequence of statements on its website concerning the requirements for in-person legal visitation. These shifting requirements put SIFI in the position of scrambling for virtually nonexistent personal protective equipment for legal visitation against the admonition of public health experts to save N-95 masks for health care providers. On March 23, ICE posted a statement indicating that non-contact legal visitation would be permitted, and that visitors may be required to wear protective equipment. The next day, ICE posted new language indicating that all legal visitors would be required to wear “gloves, N-95 masks, and eye protection” (see March 24, 2020 guidance attached as Exhibit A). Then, in a letter dated April 3, 2020, ICE stated that, until further notice, “ICE will continue requiring attorneys to bring in their own PPE and undergo wellness screening should they decide to visit the facilities to minimize the risk of exposure to and/or spread of the virus.” Attached as Exhibit B.
19. During the period that the N-95 requirement was in effect, SIFI’s inability to source N-95 masks amid the national shortage virtually foreclosed compliance with this requirement. Thereafter, SIFI had the necessary personal protective equipment to fulfill the remaining requirements. However, SIFI’s COVID-19 guidelines restricting in-person visitation came up against untenable delays to remote legal visitation. This put me in the difficult position of deciding between waiting days for remote legal visits to complete time-
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sensitive client communications, or authorizing in-person visits by SIFI staff who could unknowingly expose clients to the virus or contract the virus themselves.
20. The combination of ICE’s PPE requirements, local and state constraints on interpersonal interactions, including shelter-in-place orders, and the recorded COVID-19 outbreaks at the four facilities, has effectively paused in-person visitation to detention centers for the foreseeable future. All communications must now be conducted by VTC calls or phone calls. This means SIFI must now rely entirely on remote legal visitation to communicate with clients, a system that remains inadequate and has only worsened during this pandemic. SIFI staff have reported all of the following experiences to me.
VTC Problems: Limited Consoles and Time Slots, Delays in Scheduling, Limited Duration of VTC Calls, Cancellations without Notice, and Other Irregularities
21. Before the COVID-19 outbreak, the four facilities already had limited infrastructure for VTC calls, including limited computers and time slots. Since the COVID-19 outbreak, the spike in demand for these limited resources has far outpaced the facilities’ capacity to provide adequate access to communications through VTC. And although ICE has promised to extend VTC days and hours of operation (Exhibit B), access remains limited by factors in ICE’s control, like the number of computers connected to VTC and the staff available to schedule and initiate calls.
22. SIFI staff report delays relating to VTC requests at all four facilities, both in the time that it takes facility staff to send an initial response to the request, and in the number of days between the date of the request and the dates offered for VTC slot availability. These delays have persisted in the past month despite ICE’s promises to provide extended hours for VTC. Exhibit B. There is no indication that these extensions have been fully applied. For example, for VTC slots on April 24 and April 27, SIFI attorneys at Stewart were offered the same hours that Stewart has always had – 9am to 3pm.
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23. With respect to VTC delays, at LaSalle, SIFI staff have repeatedly had to wait four to six days between the date they request a VTC call and the date they complete the corresponding VTC call. On March 24, 2020, a SIFI legal worker requested VTC calls with five people inside LaSalle. While GEO Group staff did respond within minutes, it was only to say that no time slots were available for the next six days. The first available time slot was March 30, 2020 at 3 p.m. Central. Two of the detained people had engaged in a hunger strike for more than 140 days and had recently subjected to forced feeding via nasogastric tubes. The other three were medically fragile due to other conditions. The sixday delay happened again, on March 25, 2020, when the same SIFI legal worker requested another VTC call with another medically vulnerable client. GEO Group officials did not respond until the following day, saying the earliest available VTC slot was on Tuesday, March 31, 2020, at noon Central.
24. The SIFI legal worker was distressed to learn about the six-day delay because of the time-sensitive nature of her work and the harm of delay to her clients. All the clients she intended to visit were medically fragile. As such, they required immediate assistance in seeking release due to their increased vulnerability to serious illness or death should they contract COVID-19. The purpose of the calls with them was to gather evidence for humanitarian parole applications in light of COVID-19 vulnerabilities. Each day in delaying the preparation of the applications increased the risk that they would contract COVID-19 inside LaSalle. The harm from delays imposed by Defendants on SIFI’s ability to prepare such applications for release is substantial and applies to all SIFI’s detained clients. Instead of aiming to correct these delays, ICE has simply acknowledged their existence. (Exhibit B) (stating “upon initial investigation, LaSalle acknowledges that the six-day delay to set up video-teleconference (VTC) calls is likely accurate given the high demand to use Skype during the pandemic and the limited resources at the facility.”) Moreover, despite ICE’s promise to extend VTC hours, SIFI staff still report scheduling delays. On April 6, a SIFI attorney at LaSalle requested a VTC for the next day. She received a response on April 7, providing a slot on April 8. In addition, the quality of the VTCs at LaSalle continues to be so poor that the participants routinely cannot understand
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each other. Because of this, some SIFI staff at LaSalle have moved exclusively to using legal phone calls.
25. In one incident at Stewart, CoreCivic staff set a weekly cap on the number of VTC calls that a SIFI attorney was permitted to have with the same client, harming her ability to adequately prepare her client for his individual hearing. On April 6, the SIFI attorney had a VTC call with her client to prepare for his final hearing. The SIFI attorney entered her appearance and planned to prepare with him for his final merits hearing, which was scheduled for April 10. Although she had two VTCs scheduled for Monday and Tuesday, she requested two more hours before the Friday hearing, explaining the situation and the amount of time that normally goes into preparing for a final asylum hearing. Because VTC calls are limited to one hour each, she requested two slots, both for April 9. CoreCivic staff quickly denied one of her two requests, saying two slots per week for one client was sufficient. She was finally scheduled for one more slot on Thursday, April 9, but that VTC was cancelled during a lockdown at the facility, denying counsel her final opportunity to speak to the client before the hearing. The SIFI attorney did not have the time she needed, in her assessment, to adequately prepare her client for his asylum hearing.
26. Understaffing may be playing a role in delayed responses to VTC requests, at least in some facilities. For example, on April 14, an officer at Pine Prairie told a SIFI attorney that the reason they had to reschedule the VTC appointment from the prior day was because the officer was on transport duty. Similarly, to SIFI’s knowledge, one CoreCivic employee is responsible for coordinating the VTC program at Stewart. Even before the pandemic, SPLC staff requested VTC calls at Stewart on several occasions, but because the employee was out, SIFI did not receive a response until her return. In at least one instance, this resulted in a weeklong delay. In the past month, the same issue has occurred on at least two occasions.
27. At Irwin, delays in responses to VTC requests have grown longer since the COVID-19 outbreak. Where, before COVID-19, responses generally were made within 24 hours,
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since COVID-19, it has been taking two to three days to schedule VTC calls, and sometimes staff completely miss an email or individual. For example, on April 21, a SIFI attorney requested VTC calls with four individuals in a single email. He did not receive a response, so the next day, he sent a follow-up email. On April 23, Irwin staff responded with an offer of available VTC slots for two individuals only. The next day, the SIFI attorney replied to ask about the remaining two. He got no response. Then, on April 27, he requested a VTC call with a different person, and that’s when he received a response about the two forgotten individuals. One of those is a woman who was placed in solitary confinement because she participated in a video demonstration that has circulated widely in Spanish-language media and social media.
28. SIFI staff have also experienced cancellations without notice. This happened to a SIFI attorney on April 16, when he was unable to speak to one of four individuals inside Stewart with whom he had scheduled VTCs. All four individuals had disclosed COVID19 vulnerabilities at intake, prompting the need for time-sensitive follow-up given the rise in COVID-19 cases at Stewart. The VTC calls were set back-to-back, starting at 12 p.m. CoreCivic staff did not call until 1 p.m. At that point, the VTC took place with the second individual he was scheduled to meet. No mention was made of the first individual he had been scheduled to speak with at 12 p.m. The SIFI attorney completed three interviews from 1 p.m. to 4 p.m., then asked the VTC coordinator about the missed call at 12 p.m. He did not receive a response, so SIFI staff again had to follow up. Eventually, the SIFI attorney was forced to reschedule the meeting with that individual for six days later, April 22.
29. Another example of a cancellation without notice occurred at Pine Prairie this month. On the afternoon of April 10, a SIFI attorney requested a VTC for a time-sensitive matter for Monday, April 13 at 4:30 p.m. She did not receive a response. So, on the morning of April 13, she followed up to ask if the call would be scheduled. She then received a confirmation that the facility “had her scheduled” for that afternoon. However, at the confirmed time, she did not receive any call, nor did she receive a response to her followup emails. She was forced to reschedule the VTC.
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30. Confidentiality is especially an issue with VTC calls at Irwin and Pine Prairie. Confidentiality is a bedrock principle of the attorney-client relationship and remains vital during COVID-19. SIFI staff must have recourse to confidential conversations with actual and potential clients if we are to ethically represent them. Without confidentiality, SIFI staff cannot ethically ask clients and potential clients to disclose potentially traumatic information that may constitute the grounds for their claim for relief. Detained individuals must have assurances that the personal information they disclose to SIFI staff is confidential if we are to build the rapport with clients that we need to elicit this sensitive information, whether it be about past domestic abuse, persecution, torture, threats, or other experiences. As well, in the time of COVID-19, as detained individuals’ medical and mental health conditions become more and more relevant to their eligibility for release from custody, SIFI staff must have a guarantee of confidentiality as a precondition to eliciting personal medical information.
31. Pine Prairie does not provide spaces that allow for private and confidential VTC conversations. The VTC consoles sit in cubicles with thin walls that are not soundproof and do not reach to the ceiling. A SIFI attorney was conducting a VTC call with a client on April 7 when she received a text message from a fellow attorney that practices with ISLA- Immigration Services & Legal Advocacy. The attorney alerted her that they were conducting their own VTC with an individual at Pine Prairie and could clearly hear everything that the SIFI attorney and SIFI client were saying.
32. At Irwin, it is very common for employees to go in and out of the library room during VTCs. A SIFI attorney at Irwin states they have never seen their clients wearing gloves during VTC.
33. One other irregularity in access to VTC calls concerns facility staff failing to inform SIFI detained clients of incoming VTC calls from their attorneys. On March 13, a SIFI attorney had scheduled a VTC call with a client detained at Irwin. At the time of the VTC, Irwin employees told the SIFI attorney that the individual did not want to speak
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with him. It was not until a rescheduled call days later that he was able to meet with the client, and the client stated that if he had known it was the SIFI attorney on the VTC, he would have certainly taken the call.
Legal Phone Calls 34. To date, SIFI’s primary mode of contact with confined individuals has been through a free and confidential hotline through which confined individuals may reach us. The hotline has typically been staffed by two full-time SIFI staff who operate the hotline Monday through Thursday of each week during business hours. Since March 16, 2020, in light of the COVID-19 pandemic, SPLC has closed its offices, and three SPLC employees have rotated staffing the hotline remotely on Mondays and Thursdays only. Additionally, the call center technology available to SIFI in its office is not available outside the office, such that SIFI may answer only one call at a time. Changes in staffing, technology, and hours of operation mean fewer callers are reaching SIFI via the hotline.
35. Historically, there have been issues of connectivity with calls made to the hotline. Most recently, SIFI hotline staff have reported issues with disturbance in calls made from multiple facilities. On Monday, April 27th, one of the two days the hotline was scheduled to be open for the week, making it near impossible to have a clear conversation with the caller. Additionally, there were also issues of calls dropping when trying to answer or soon after answering the call. To SIFI’s knowledge, there is no designated point of contact at the various facilities, to whom they may troubleshoot questions or report quality issues on any given day.
36. The SIFI hotline was never intended to and did not operate as a channel for SIFI legal teams to develop actual clients’ substantive claims, for several reasons. First, hotline callers lack privacy. Generally, they call the hotline from common areas inside their unit, open spaces with twenty to more than eighty other individuals. A client detained at Irwin reported that phone stations in their unit are about two to three feet apart. Second, since the COVID-19 outbreaks, callers who use these shared phones are exposed to the risk of
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transmission of the virus because, according to clients, facility staff do not disinfect the telephones, and detained people lack sufficient hygienic products to do so themselves.
37. The physical dangers of in-person visits, the decreased volume of calls through SIFI’s hotline, and the worsening access to VTC calls has pushed SIFI to resort to phone calls to fulfill our need to access actual and potential clients. There are two forms of phone calls at issue: free legal phone calls coordinated through facility staff and conducted in a private space (“facility legal calls”); and paid phone calls initiated by detained people through phones available in housing units and common areas (“paid detainee calls”).
38. In a letter dated April 3, ICE stated that it would extend hours for facility legal calls at the four facilities. (Exhibit B). However, to SIFI’s knowledge, there had never been a process to set up facility legal calls at Stewart or Pine Prairie. After multiple requests, a new process was set up at Stewart on April 24, 2020. At Pine Prairie, although officials have represented to SIFI that detained persons may request a facility legal call through their case manager, this does not occur in practice. To date, only one of SIFI’s clients at Pine Prairie has been informed who their case manager is. And upon information and belief, the case managers at Pine Prairie only speak English, making communication with detained persons who do not speak English impossible. Furthermore, to SIFI’s knowledge, none of their clients have been informed by their facilities of any process for requesting a facility legal call. One SIFI attorney who has been working with people detained at the facility since October 2018 states that no client of hers has ever been able to successfully request a facility legal call.
39. Even after ICE’s April 3 letter, SIFI staff at Stewart who approached CoreCivic employees about facility legal calls reported that CoreCivic employees expressed confusion. CoreCivic employees said they were not aware of any mechanism for facility legal calls (Exhibit B). On April 14, a SIFI legal worker requested a facility legal call at Stewart. The VTC coordinator responded that she would pass along the message to the detained person and instructed the SIFI legal worker to wait for the message to be relayed and the caller to contact the SIFI attorney. When nothing happened, the SIFI legal worker
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followed up with CoreCivic staff on April 17. Staff told her they had not been updated about the new policy on allowing legal calls and advised her to email the warden about it. A SIFI attorney emailed the warden that day. As of April 21, she had not gotten a response, so she followed up with him. On April 21, the warden replied to her, stating he would provide a clear process for scheduling legal calls by the end of the day.
40. As of April 23, the SIFI attorney had not gotten a response from the warden, so she wrote to him. She asked for clarification on procedures and requested a facility legal call with a detained person SIFI had been seeking to communicate with since April 6 without success. SIFI had placed a VTC call request to speak with him on April 6 and were assigned a VTC slot for April 10. But that VTC call did not occur; SIFI staff were told that he could not have a VTC because he was in quarantine. SIFI had made a further request for a facility legal call with this individual on April 16. Later, on April 23, the SIFI attorney wrote a second email requesting a legal call with a client whose family was concerned that they had not heard from him for several days.
41. On April 24, the SIFI attorney was confirmed for facility legal calls with both individuals. For the first call, the SIFI attorney was given a phone number to call at 10 a.m. She called the number and twice got voicemail. When she called a third time, a person answered and asked who she needed. About ten minutes later, her client spoke into the phone line and she was able to talk with him. The second call was scheduled for 12 noon. It did not happen at 12 noon, and when the attorney inquired, she was told she could do the call at 1 p.m. She called at 1 p.m. and was finally able to speak with the potential client.
42. In April, a client detained at Stewart told SIFI staff that for the preceding four days, he and about 100 others in his unit had been cut off from all communications, prohibited from leaving their rooms, and even denied the right to shower. He and others were told that they would not be allowed to make calls—including legal calls of any kind—and would only have the right to send letters. On April 27, someone in another unit reported
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that his unit, too, had been put on lockdown and no one was being allowed to make any calls to their lawyers or families.
43. At LaSalle, facility legal calls suffer from frequent connectivity issues and problems dialing in third parties. SIFI often needs to dial in a third party, whether that is another SIFI attorney, expert, or an interpreter. On April 6, SIFI staff attempted to conference an additional party into the call and the line stopped functioning. When SIFI staff raised the issue to Geo Group staff, they stated this was likely because the detained client was attempting to use the receiver rather than take the call on speaker phone. On April 23 and April 25, a SIFI attorney had legal calls with clients, but the phone connectivity each time was very rough and the call itself kept breaking up. In the April 25 instance, the client tried to hang up and call using another phone, but the issues remained. Connectivity issues for legal calls at LaSalle are especially frustrating because, for example, one SIFI attorney only schedules legal calls due to LaSalle’s extremely poor VTC quality.
44. Due to delays and confusion in setting up facility legal calls, SPLC has pivoted to provide alternate methods of communication, including setting up accounts to allow for collect calls made from detained individuals and charged to SIFI. SIFI did this by contacting telephone vendors directly. In mid-March, SIFI also contacted ICE to request that a list of SIFI cell phone numbers be placed on a do-not-monitor-or record list for paid calls. SIFI requested written assurances that calls to these numbers would not be monitored or recorded. While ICE did not provide any promises of confidentiality in writing, the agency did verbally confirm that calls would be confidential at three of the four facilities.
45. ICE’s assurances concerning the privacy of paid calls do not apply to Irwin because this facility’s phone vendor, Correct Solutions, does not have a contract with ICE. To obtain assurances of privacy for Irwin calls, SIFI staff spoke with the Irwin warden. He agreed to contact the vendor to request that certain phone numbers be placed on a do-notmonitor or record list. After that conversation, a SIFI attorney emailed the warden with a list of the telephone numbers. The warden asked for the names of the phone owners; SIFI declined to provide the names of its legal workers. As of May 5th, the Irwin warden had
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not yet responded to SIFI’s repeated requests for confirmation that calls made to these numbers are unmonitored.
46. Even if Correct Solutions and/or ICE were to confirm that collect calls to SIFI attorneys are not being monitored, these calls face the same confidentiality concerns as calls made to the SIFI hotline, as they are made in the unit on a shared telephone.
47. Several individuals detained at Irwin, Stewart, and LaSalle have reported to SIFI about the number of shared telephones in their units. Until April 14, one client detained at Irwin was in a unit that was at capacity – with 32 detained individuals in 2-person cells, and three telephones in the common area for all of them to share. On or about April 14, Irwin staff transferred some individuals to a different unit, in an attempt to disrupt a hunger strike. As of April 29, there were 16 individuals in the two-person cells. Another detained individual at Irwin reported that in their unit, which is an open dorm with 40-50 bunk beds, there are 6 to 7 telephones for everyone to share. At Stewart, one client reported on April 29 that their unit, which holds 92 people, has 9 telephones but only 7 that are working. Another individual at Stewart is in a pod with about 60 people and 8 shared telephones. On April 30, a client detained at LaSalle reported that there are 8 telephones in their unit that currently has about 56 individuals, but there have been up to 88 people at various points. On April 30, a client detained at Pine Prairie provided that his unit, while it currently has 45 people, has had up to 56-57 people in the past and all share eight telephones. These numbers are especially concerning given the accounts from our clients that they have not seen a change in the hygienic practices of the facilities, and the inability for individuals at these facilities to socially distance. SIFI attorneys are wary of these conditions and take into consideration that a client speaking to them on these shared telephones is surrounded by others in their unit – eating, waiting in line for the phone, entering and exiting the bathrooms. When SIFI attorneys must communicate with clients on the shared telephones, they are weighing the various factors that bear on confidentiality and safety/exposure to the virus.
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48. Furthermore, ICE has still not fulfilled its obligation, according its own COVID-19 guidance, to provide free calls. See ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020), at 13 https://bit.ly/3fvn5Xw. Rather, it seems that some facilities have provided limited free phone calls on and off over the past month, in a manner that is not entirely beneficial to our clients. For example, several times in the week of March 30, SIFI staff experienced calls with clients being cut off at five minutes. At the beginning of the call, they heard a voice stating, “this is a free call,” and then, at or around four minutes, it stated, “there is one minute left.” There did not appear to be an option for the client to not use those five free minutes for the call with the SIFI staff, which SIFI already pays for. Hence, on several occasions, clients have had to use the free five-minute call provided to them not for a call with a loved one, but rather for their call with SIFI staff. On April 29, 2020 a SIFI client confined at Pine Prairie told SIFI that the facility was providing detainees with three ten-minute long phone calls free of charge. These calls automatically end after ten minutes and, because clients cannot request a legal phone call, they must be made from phones in the facility dormitories that lack privacy and do not provide confidentiality. Similarly, the client did not have an option to not use those free calls for the call with the SIFI attorney and was forced to use two of his three free calls.
Mail and Document Exchange 49. Disruptions to in-person visitation have forced SIFI to rely on the mail to exchange documents with actual and potential clients, revealing the systemic problems with the mail at the four facilities. The problems range from delays in sending, processing, and receiving to improper inspection and seizure of legal mail and confiscation of return envelopes with postage.
50. SIFI staff has been using the U.S. Postal Service and FedEx to send mail to detained people. SIFI provides pre-stamped or pre-metered envelopes for the recipient to return documents to SIFI. SIFI staff report inconsistent results with receipt of correspondence from people detained at Stewart, while SIFI LaSalle have been successful. Mailings appear to be periodically rejected regardless of the delivery service or the type of postage.
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51. One result of mail problems is to unduly delay the exchange of documents necessary for SIFI staff to evaluate a potential client’s legal claims, to obtain client authorization for the release of personal information, and to timely prepare EOIR and ICE filings, especially on behalf of clients medically vulnerable to COVID-19. In practical terms, this means that to even start working on an individual’s case, SIFI legal workers may need to wait at least one week after their first client meeting to receive any documents from the client. A one-week delay amid this pandemic has grave consequences for individuals medically vulnerable to COVID-19. To illustrate, in a matter of one week, ICE reported the number of confirmed COVID-19 cases among individuals detained at LaSalle increased from two to twenty. See attached Exhibit C (ICE Guidance on COVID-19 https://www.ice.gov/coronavirus (updated Apr. 20, 2020 and April 27, 2020).
52. Delays also generally harm clients’ chances of winning release. One factor an immigration judge considers in a release motion is the applicant’s flight risk. The closer a person’s final individual or merits hearing is, the more of a flight risk she is considered to be. By obstructing a client’s access to her attorney and therefore delaying the completion of her release application, the facilities also reduce her chances of succeeding.
53. Despite SIFI’s showing of these problems, ICE has not consistently allowed SIFI to exchange legal documents with clients via facsimile or Internet. Instead, on April 3, ICE stated that the facilities would not “retrieve facsimiles or download electronic copies of legal documents for detainees.” (Exhibit B). Out of the four facilities, SIFI has received faxes from their detained clients at Irwin, as it seems there is a system in place for this one-way communication. Additionally, for about two to three weeks before the pandemic, Irwin also allowed attorneys to send faxes to the facility before VTC appointments, to be delivered to their client.
54. Defendants’ refusal to facilitate timely exchange of documents hinders effective representation. For example, in late March a SIFI attorney requested her client’s medical records from LaSalle after receiving express verbal authorization from her client to do so.
18

Case 1:18-cv-00760-CKK-RMM Document 105-7 Filed 05/07/20 Page 19 of 35
The deportation officer, after consulting with his supervisor, refused to accept the medical records release without a wet signature by the detainee himself—something the facility’s own restrictions have made very hard to procure. Instead, the deportation officer instructed the attorney to send him the release, and then he would send it to the facility, which would then return it by mail. Getting such a signature by mail (rather than by fax or some electronic means) increases the interval before the medical records can be sent to SIFI, effectively delaying clients’ access to counsel.
55. Another consequence of mail problems is to subvert the timeliness of adjudications of release requests to ICE. For example, on or about April 15, a SIFI attorney submitted a humanitarian parole request on behalf of a medically vulnerable client detained at LaSalle. Because ICE had instructed her not to email the request, she sent it by mail (she also tried to send it by facsimile, but it did not go through). Not having received a response, on the morning of April 28, she emailed ICE agents involved with her client’s case to inquire into the status of the parole request. An ICE Deportation Officer promptly responded, stating that he had no record of any such request, and asking how she had sent it. The SIFI attorney replied at 9:54 a.m., stating that she used the mail and attaching to the email a copy of the parole request. The Deportation Officer responded in less than one hour, at 10:37 a.m., stating that “the New Orleans Field Office has decided not to parole your client at this time.” The SIFI attorney was distressed to note that a decision had been made on her client’s voluminous parole request after less than one hour of review of material that, according to the ICE agent, had not been in ICE’s possession until that very morning.
56. This is just one instance in a pattern of weeks-long delays by ICE in responding to humanitarian parole requests. SIFI staff continue to face difficulty in getting responses from deportation officers. Based on a conversation between a deportation officer and a SIFI staff member, it appears that officers on the ground have been overwhelmed and not able to keep up with parole applications being submitted; are not aware when new applications are submitted; and are working erratic schedules. Based on a conversation between a different deportation officer and a different SIFI staff member, who has several
19

Case 1:18-cv-00760-CKK-RMM Document 105-7 Filed 05/07/20 Page 20 of 35
cases awaiting responses for parole requests, another source of delay is the review of a line ICE agent’s recommendation at the level of Field Office Director, Deputy Field Office Director, or Assistant Field Office Director. There is also lack of clarity from ICE about where to send correspondence and parole applications, in what format, and to whom. This problem will be exacerbated as attorneys prepare to submit custody redetermination requests in light of Fraihat, which requires ICE to identify and consider for release all medically vulnerable individuals in custody Case No. 5:19-cv-01546-JGBSHK (C.D. Cal. Apr. 20, 2020), ECF No. 13. Fraihat also gives all subclass members in ICE custody the right to submit a custody redetermination request. Id.
Quarantined Units
57. Detained individuals inside the four facilities are being subjected to ICE’s method of “cohorting,” a practice that has been criticized by experts as ineffective to combating coronavirus.
58. ICE has not clarified what if any rules apply to legal access to detained individuals who are in quarantine, cohorting, or isolation in the four facilities. However, for SIFI clients subject to these types of confinement, SIFI staff have faced obstacles to access. For example, SIFI staff communicated with CoreCivic employees for more than two weeks in an attempt to schedule a remote legal visit with a potential client who was subject to quarantine inside Stewart. The first request for a VTC call dates back to April 6. The VTC coordinator assigned SIFI a VTC slot with the potential client for April 10. But on that date, a CoreCivic officer told a SIFI legal worker that the individual could not be brought to the VTC room because he was under quarantine. The SIFI legal worker asked the officer to relay her phone number to the potential client and ask him to call her. She had not heard from the potential client as of April 16, so she followed up with the VTC coordinator that day to request a facility legal call with him. A SIFI attorney then took up communications with the Stewart warden to secure a facility legal call. It eventually took place on April 24. See supra, paragraphs 35-36.
20

Case 1:18-cv-00760-CKK-RMM Document 105-7 Filed 05/07/20 Page 21 of 35 Conclusion
59. Our clients inside LaSalle, Pine Prairie, Stewart, and Irwin need SIFI’s legal assistance now as much as ever.
60. The access barriers that SIFI faced before the coronavirus pandemic have been exacerbated. What SIFI staff have personally experienced in attempting to communicate with detained individuals amid COVID-19 exhibits a grossly deficient response by ICE to protect individuals’ constitutional right to counsel.
I hereby declare that the above statement is true to the best of my knowledge and belief, and that I understand it is made for use as evidence in court and is subject to penalty for perjury.
21

Case 1:18-cv-00760-CKK-RMM Document 105-7 Filed 05/07/20 Page 22 of 35
Exhibit A

ICE Guidance on COVID-19 | ICE

https://www.ice.gov/covid19

CasCe a5s:1e81-:c1v8-0-c2v6-040-7J6G0B-C-SKHKK-RMDMocuDmoecnutm1e2n7t-11005-F7ileFdil0e3d/2065//2007/2P0agPea8geof293 oPf a3g5e ID

#:1187

Official Website of the Department of Homeland Security

Report Crimes: Email or Call 1-866-DHS-2-ICE
Search ICE.gov
NOTICE Click here for the latest ICE guidance on COVID-19

ICE Guidance on COVID-19 Introduction

U.S. Immigration and Customs Enforcement (ICE) is working closely with the Department of Homeland Security (DHS) and other federal, state, and localagencies to facilitate a speedy, whole-of-government response in confronting Coronavirus Disease 2019 (COVID-19), keeping everyone safe, and helping detect and slow the spread of the virus. In order to keep the public, media and family members of those incustody and other stakeholders informed, we will update this site frequently during this extremely fluid situation.

Expand All Collapse All
GENERAL

CONFIRMED CASES

IMMIGRATION ENFORCEMENT and CHECK-INS

BONDS

DETENTION

VISITATION AT DETENTION FACILITIES
My family member or friend is currently in ICE custody, will visitation to the facility still be allowed?

ICE, like other law enforcement agencies with a detained population, is taking important steps to further safeguard those in our care and as a precautionary measure, ICE has temporarily suspended social visitation in all of its detention facilities. ICE will continue to collaborate with the CDC, IHSC, and its network of care providers to provide updates and revise procedures as necessary.
Updated 03/15/2020 2:38pm
How will family member communicate with their family members?

ICE recognizes the substantial impact of temporarily curtailing personal visitation, but the agency has determined it necessary in order to maintain the safety and security of the facility, the detainees and those who work at the facility. ICE will take steps to facilitate such communication with families, in the absence of visitation, through extended access to telephones and other reasonable means. ICE will continue to collaborate with the CDC, IHSC, and its network of care providers to provide updates and revise procedures as necessary.

Will individuals in ICE custody be able to meet with their legal representatives?

Updated 03/15/2020 2:38pm

Detainee access to legal counsel remains a paramount requirement and will be accommodated to the maximum extent practicable. Unless and until it is determined to pose a risk to the safety andsecurity of the facility, legal visitation will continue; but ICE is encouraging all legal representatives to contact the facility at which they must visit their clients in-person to determine current policies and procedures regarding legal visits. Non-contactlegal visitation (e.g., Skype or teleconference) should be offered first, if available, to limit exposure to ICE detainees; but if the attorney believes the legal visit requires contact, the facility should permit the visit with the appropriate guidelinesit has established.

For in-person, contact (without any physical barriers) visits to occur, the attorney must undergo screening using the same procedures as staff. ICE will require all legal visitors to provideand wear PPE (e.g., gloves, N-95 masks, and eye protection) while visiting with any client at any facility . Legal representatives may also be required to go through similar testing as employees of the detention facility, as determined by

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3/25/20, 1:05 PM

ICE Guidance on COVID-19 | ICE

https://www.ice.gov/covid19

CasCe a5s:1e81-:c1v8-0-c2v6-040-7J6G0B-C-SKHKK-RMDMocuDmoecnutm1e2n7t-11005-F7ileFdil0e3d/2065//2007/2P0agPea9geof294 oPf a3g5e ID

#:1188

the individual facility.The overall authority to approve legal visits lies with the Warden or Facility Administrator; however, the facilities have been asked to notify its local Field Office Director as soon as possible of any denied legal visits.

For attorneys appearing in-person for court at ICE facilities, they are encouraged to contact the Executive Office for Immigration Review for any additional requirements.

Government-sponsored Legal Orientation Programs (LOPs) carried out by the Department of Justice Executive Office of Immigration Review (EOIR) and authorized by Congressional appropriationscurrently operate at a limited number of detention sites and may continue to make presentations to detainees. No more than four LOP presenters may be allowed in the facility at any time and they will need to undergo screening using the same procedures as staff.ICE will require all legal visitors participating in contact visitation to provide and wear PPE (e.g., gloves, N-95 masks, and eye protection) while visiting any facility. Non-LOP legal rights group presentations offered by volunteers are suspended until furthernotice. ICE will continue to collaborate with the CDC, IHSC, and its network of care providers to provide updates and revise procedures as necessary.

Will members of Congress be able to visit ICE detention facilities?

Updated 03/24/2020 2:15pm

Members of Congress, Congressional member delegations and Congressional staff delegations will continue to have access to the facility for the purpose of conducting oversight.In order to safeguard visitors, detainees, and ICE and facility staff, official visitors may be subject to special screening and procedures. ICE/ERO now requires all CODELs, and STAFFDELs to provide and wear personal protective equipment (PPE) (disposablevinyl gloves, N-95 or surgical masks, and eye protection) while visiting any detention facility. ICE will continue to collaborate with the CDC, IHSC, and its network of care providers to provide updates and revise procedures as necessary.
Updated 03/24/2020 2:15pm

REMOVALS

STAKEHOLDER ENGAGEMENT NONIMMIGRANT STUDENTS AND SEVP-CERTIFIED SCHOOLS
Last Reviewed/Updated: 03/25/2020

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Case 1:18-cv-00760-CKK-RMM Document 105-7 Filed 05/07/20 Page 25 of 35
Exhibit B

Case 1:18-cv-00760-CKK-RMM Document 105-7 Filed 05/07/20 Page 26 of 35
Office of the Principal Legal Advisor
U.S. Department of Homeland Security 500 12tth Street SW, Room 9060 Washington, DC 20536
April 3, 2020
VIA E-MAIL
Shalini Goel Agarwal Senior Supervising Attorney Southern Poverty Law Center P.O. Box 10788 Tallahassee, FL 32302-2788
Re: SPLC Novel Corona Virus Outbreak
Dear Ms. Goel Agarwal:
I write in response to Southern Poverty Law Center’s (SPLC) March 25, 2020 letter concerning access to counsel during the novel coronavirus pandemic for aliens detained at Irwin County Detention Center (Irwin), LaSalle ICE Processing Center (LaSalle), Pine Prairie ICE Processing Center (Pine Prairie), and Stewart Detention Center (Stewart). This letter, however, does not address SPLC v. DHS, et al., No. 18-760 (D.D.C. SAC filed Aug. 28, 2019), which is before the United States District Court for the District of Columbia.
U.S. Immigration and Customs Enforcement (ICE) is reviewing its “at risk population” to include the elderly, pregnant detainees, and others with compromised immune systems to ensure that detention is appropriate given the extenuating circumstances. Custody determinations are made on a case-by-case basis at each detention facility and include, among other factors, the public safety risk that such release could create and the requirement to detain certain aliens under law. See Section 236 of the Immigration and Nationality Act, 8 U.S.C. § 1226. The agency will continue to review its “at risk population” at the four detention facilities in the days and weeks ahead when deciding whether any detainees should be released from custody.
Separately, ICE rejects SPLC’s assertion that, as of March 25, 2020, there were “confirmed cases of COVID-19 at Irwin, LaSalle, and Pine Prairie.” Letter from Shalini Goel Agarwal, Senior Supervisory Attorney, to Jon Kaplan, Associate Legal Advisor, Office of the Principal Legal Advisor, and Julie Plavsic, Senior Policy Advisor, Office of Legal Access Programs at 4 (Mar. 25, 2020) (SPLC Letter). At that time, all four locations had reported that there are no confirmed cases of COVID-19 at any of the facilities. On April 1, 2020, at 8:54 p.m., however, ICE received confirmation that an alien detained at Pine Prairie who transferred as an inmate from the Federal Bureau of Prisons in Oakdale, LA, tested positive for
www.ice.gov

Case 1:18-cv-00760-CKK-RMM Document 105-7 Filed 05/07/20 Page 27 of 35 Shalini Goel Agarwal, Esq. SPLC Page 2 of 4
COVID-19. At the time, he was found to be asymptomatic. Since the detainee’s arrival at Pine Prairie, he has been kept in a negative pressure chamber in the facility and has not interacted with the general population in any manner. Additionally, in the exercise of caution, the detainee arrived at Pine Prairie wearing personal protective equipment (PPE). The detainee will remain in isolation until April 6, 2020, before he is placed in a general population pod at the facility. Notwithstanding this incident, ICE will continue to coordinate with medical professionals and monitor the facilities and detainees in an effort to minimize the chances of entry of COVID-19 into the facilities.
SPLC further raises three alleged incidents on March 20, 2020, at Pine Prairie, March 24, 2020, at LaSalle, and March 25, 2020, at Stewart relating to the facilities’ responses to the public health crisis. First, Pine Prairie rejects the allegation about the quarantined dorm incident because SPLC, like other visitors, are limited to the legal visitation area, which is adjacent to the front entrance and which does not provide visual access into the dorm area. Accordingly, please provide any evidence supporting SPLC’s allegations. Additionally, ICE encourages SPLC visitors to file complaints with the facility regarding any issues encountered during visits. Second, and upon initial investigation, LaSalle acknowledges that the six-day delay to set up video-teleconference (VTC) calls is likely accurate given the high demand to use Skype during the pandemic and the limited resources at the facility. To reduce the current backlog for access to VTC at LaSalle, GEO Group (GEO) has agreed to extend the hours from 7:00 a.m. to 7:00 p.m., Mondays through Fridays, and anticipates installing two additional Skype units by April 10, 2020. (Please note that LaSalle, like the other facilities, will continue to schedule VTC sessions on a first-come, first-serve basis.) Third, in reviewing the pertinent e-mail exchange between SPLC and CoreCivic, it appears that SPLC was able to conduct a virtual legal visitation with its detained client at Stewart on March 30, 2020. ICE is sensitive to SPLC’s concerns about access to counsel and will make accommodations when appropriate, but maintains that health and safety are of paramount interest. Accordingly, until further notice, ICE will continue requiring attorneys to bring in their own PPE and undergo wellness screening should they decide to visit the facilities to minimize the risk of exposure to and/or spread of the virus.
Finally, ICE has discussed with the facilities SPLC’s six immediate action demands concerning access to counsel enumerated in your letter. The facilities’ responses are as follows:
1. Irwin and Stewart: VTC and telephone calls for attorney-client communications already are in place. LaSalle: There has been a delay in processing VTC and legal call requests because of the public health crisis, and GEO has agreed to temporarily extend the hours of service. Pine Prairie: No issues with scheduling VTC and telephone calls.
2. Irwin, LaSalle, Pine Prairie, and Stewart: The facilities agree to temporarily extend the hours for Skype use consistent with the security and orderly operation of the facility. Specifically, Irwin has agreed to extend Skype calls from 8:00 a.m. to 7:00 p.m., Tuesdays through Fridays, if needed, and ordered an additional laptop for the Skype unit. (Skype calls will continued to be scheduled from 8:00 a.m. to 5:00 p.m. on

Case 1:18-cv-00760-CKK-RMM Document 105-7 Filed 05/07/20 Page 28 of 35 Shalini Goel Agarwal, Esq. SPLC Page 3 of 4
Mondays because of staffing issues.) Stewart has agreed to extend Skype calls from 8:00 a.m. to 6:00 p.m., Mondays through Fridays. As discussed above, LaSalle has agreed to extend Skype calls from 7:00 a.m. to 7:00 p.m., Mondays through Fridays, and anticipates installing two additional Skype units by April 10, 2020. Pine Prairie has agreed to extend Skype calls from 8:00 a.m. to 7:00 p.m., Mondays through Fridays, and, at this time, has agreed to provide Skype service from 8:00 a.m. to 4:00 p.m., Saturdays and Sundays. Attorneys may set up three-way calling to include interpreters or experts using their portable electronic devices.
3. Irwin, LaSalle, Pine Prairie, and Stewart: Irwin, LaSalle, and Pine Prairie have agreed to temporarily extend the hours for legal calls consistent with the security and orderly operations of the facilities, but none of the facilities will agree to “confidential phone booths for calls to be available at any time by the request of detained individuals or attorneys”, SPLC Letter at 6 (emphasis in original), as this demand is unreasonable. Irwin has agreed to extend legal calls from 8:00 a.m. to 7:00 p.m., Tuesdays through Fridays, if needed, and Stewart will continue to provide for legal calls from 8 a.m. to 8:00 p.m., Mondays through Fridays. LaSalle has agreed to extend legal calls from 7:00 a.m. to 7:00 p.m., Mondays through Fridays, and Pine Prairie’s hours will remain the same because the facility continues the meet the needs of detainees and their attorneys for legal calls. As SPLC should be aware, SPLC is currently on the pro-bono call list that allows detainees to make unmonitored calls to SPLC at any time for free. Nevertheless, the facilities will make funds available for indigent detainees, to the extent necessary, to place telephone calls in accordance with the 2008 and 2011 Performance Based National Detention Standards (PBNDS). The facilities will also extend VTC availability within facility capabilities and staffing availabilities.
Attorneys may set up three-way calling to include interpreters or experts using their portable electronic devices. Irwin indicated that upon request, attorneys may set up unmonitored telephone calls from detained clients by way of the facility’s telephone system, and detainees may request making or receiving legal calls by way of the CoreCivic employees or kiosk. Stewart indicated that attorneys may set up unmonitored telephone calls from detained clients by way of the facility’s telephone system.
4. Irwin, LaSalle, Pine Prairie, and Stewart: The facilities’ unit managers and law library officers will continue to assist the detainees with their needs to exchange a hardcopy of legal documents with their attorneys, but will not retrieve facsimiles or download electronic copies of legal documents for detainees. Additionally, the facilities will not permit stamps into the facilities because they may be used for improper means, such as currency or barter; however, the facilities may permit metered and preaddressed envelopes.
5. Irwin, LaSalle, Pine Prairie, and Stewart: In accordance with 2008 PBNDS and 2011 PBNDS, the facilities will permit attorneys to conduct initial consultations without

Case 1:18-cv-00760-CKK-RMM Document 105-7 Filed 05/07/20 Page 29 of 35 Shalini Goel Agarwal, Esq. SPLC Page 4 of 4
executed G-28s, but cannot agree to waiving signature requirements for ICE privacy waivers.
6. Irwin, LaSalle, Pine Prairie, and Stewart: The facilities will permit confidential legal calls and VTC visits for quarantined detainees to the extent that such access can be provided in accordance with medical directives or guidelines, and without compromising the health or safety of the detainee population or detention employees. To the extent certain detainees are quarantined, the facilities will continue to appropriately schedule and permit such calls and/or VTC visits to occur. The facilities are further amenable to setting up unmonitored legal calls by way of detainee telephones.
Please contact Ruth Ann Mueller, James Walker, and David Byerley, Trial Attorneys, Office of Immigration Litigation (OIL), to discuss any additional concerns SPLC may have in reply to ICE’s response to this letter. ICE will continue to coordinate with the facilities its response to the global pandemic and will supplement this letter if necessary.
Sincerely,

cc: Ruth Ann Mueller, OIL James Walker, OIL David Byerley, OIL Brian Boyd, OPLA DCLD Julie Plavsic, ICE ERO

Jon Kaplan Associate Legal Advisor District Court Litigation Division

Case 1:18-cv-00760-CKK-RMM Document 105-7 Filed 05/07/20 Page 30 of 35
Exhibit C

4/20/2020 Case 1:18-cv-00760-CKK-RMM DoICcEumGueidnantc1e 0on5C-O7VIDF-1i9le|dICE05/07/20 Page 31 of 35
Official Website of the Department of Homeland Security

Report Crimes: Email or Call 1-866-DHS-2-ICE NOTICE Click here for the latest ICE guidance on COVID-19

ICE Guidance on COVID-19

Overview & FAQs

Confirmed Cases

Previous Statements

DETAINEES
220

There have been 220 confirmed cases of COVID-19 among those in ICE custody*.
8 detainees in Adams County Correctional Center (Natchez, MS)

2 detainees in Bergen County Jail (Hackensack, NJ)

45 detainees in Buffalo Federal Detention Facility (Batavia, NY)

1 detainee in Catahoula Correctional Center (Harrisonburg, LA)

13 detainees in Elizabeth Detention Center (Elizabeth, NJ)

4 detainees in El Paso Processing Center (El Paso, TX)

2 detainees in Essex County Correctional Facility (Newark, NJ)

9 detainees in Florence Detention Center (Florence, AZ)

8 detainees in Hudson County Jail (Kearny, NJ)

1 detainee in IAH Secure Adult Detention Facility (Livingston, TX)

1 detainee in Irwin County Detention Center (Ocilla, GA)

2 detainees in Krome Detention Center (Miami, FL)

13 detainees in La Palma Correctional Facility (Eloy, AZ)

2 detainees in LaSalle Correctional Center (Olla, LA)

1 detainee in LaSalle ICE Processing Center (Jena, LA)

1 detainee in Montgomery Processing Center (Conroe, TX)

20 detainees in Otay Mesa Detention Center (San Diego, CA)

1 detainee in Otero County Processing Center (Chaparral, NM)

24 detainees in Prairieland Detention Center (Alvarado, TX)

11 detainees in Pike County Correctional Facility (Hawley, PA)

9 detainees in Pine Prairie ICE Processing Center (Pine Prairie, LA)

6 detainees in Pulaski County Detention Center (Ullin, IL)

20 detainees in Richwood Correctional Center (Monroe, LA)

2 detainee in River Correctional Center (Ferriday, LA)

3 detainees in St. Clair County Jail (Huron, MI)

https://www.ice.gov/coronavirus

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Case 1:18-cv-00760-CKK-RMM DoICcEumGueidnantc1e 0on5C-O7VIDF-1i9le|dICE05/07/20 Page 32 of 35
9 detainees in Stewart Detention Center (Lumpkin, GA)
1 detainee in Winn Correctional Center (Winnfield, LA)
1 detainee in York County Prison (York, PA)

*Some detainees may no longer be in ICE custody.

Updated 04/20/2020 5:40pm

ICE EMPLOYEES
AT DETENTION
CENTERS
30

There have been 30 confirmed cases of COVID-19 among ICE employees working in ICE detention facilities.
13 at Alexandria Staging Facility (Alexandria, LA) 2 at Aurora Contract Detention Facility (Aurora, CO) 1 at Butler County Jail (Hamilton, OH) 2 at Elizabeth Contract Detention Facility (Elizabeth, NJ) 1 at Florence Correctional Center (Florence, AZ) 1 at Houston Contract Detention Facility (Houston, TX) 1 at Hudson County Jail (Kearny, NJ) 8 at Otay Mesa Detention Center (San Diego, CA) 1 at Stewart Detention Center (Lumpkin, GA)

Updated 04/20/2020 5:40pm

ICE EMPLOYEES
86

There have been 86 confirmed cases of COVID-19 among ICE employees not assigned to detention facilities.

Last Reviewed/Updated: 04/20/2020

Updated 04/20/2020 5:40pm

https://www.ice.gov/coronavirus

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Official Website of the Department of Homeland Security

Report Crimes: Email or Call 1-866-DHS-2-ICE NOTICE Click here for the latest ICE guidance on COVID-19

ICE Guidance on COVID-19

Overview & FAQs

Confirmed Cases

Previous Statements

Share

DETAINEES
360

There have been 360 confirmed cases of COVID-19 among those in ICE custody*.
12 detainees in Adams County Correctional Center (Natchez, MS)

2 detainees in Bergen County Jail (Hackensack, NJ)

1 detainee in Bluebonnet Detention Facility (Anson, TX)

49 detainees in Buffalo Federal Detention Facility (Batavia, NY)

2 detainees in Caroline Detention Facility (Bowling Green, VA)

3 detainees in Catahoula Correctional Center (Harrisonburg, LA)

7 detainees in El Paso Processing Center (El Paso, TX)

13 detainees in Elizabeth Detention Center (Elizabeth, NJ)

2 detainees in Essex County Correctional Facility (Newark, NJ)

10 detainees in Florence Detention Center (Florence, AZ)

8 detainees in Hudson County Jail (Kearny, NJ)

1 detainee in IAH Secure Adult Detention Facility (Livingston, TX)

2 detainees in Irwin County Detention Center (Ocilla, GA)

4 detainees in Krome Detention Center (Miami, FL)

23 detainees in La Palma Correctional Facility (Eloy, AZ)

20 detainees in LaSalle ICE Processing Center (Jena, LA)

3 detainees in Montgomery Processing Center (Conroe, TX)

1 detainee in Morrow County Correctional Facility (Mount Gilead, OH)

75 detainees in Otay Mesa Detention Center (San Diego, CA)

https://www.ice.gov/coronavirus

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Case 1:18-cv-00760-CKK-RMM DoICcEumGueidnantc1e 0on5C-O7VIDF-1i9le|dICE05/07/20 Page 34 of 35
2 detainees in Otero County Processing Center (Chaparral, NM) 14 detainees in Pike County Correctional Facility (Hawley, PA) 17 detainees in Pine Prairie ICE Processing Center (Pine Prairie, LA) 36 detainees in Prairieland Detention Center (Alvarado, TX) 9 detainees in Pulaski County Detention Center (Ullin, IL) 37 detainees in Richwood Correctional Center (Monroe, LA) 2 detainees in River Correctional Center (Ferriday, LA) 2 detainees in South Texas ICE Processing Center (Pearsall, TX) 5 detainees in St. Clair County Jail (Huron, MI) 9 detainees in Stewart Detention Center (Lumpkin, GA) 2 detainees in Winn Correctional Center (Winnfield, LA) 1 detainee in Wyatt Detention Center (Central Falls, RI) 1 detainee in York County Prison (York, PA)

*Some detainees may no longer be in ICE custody.

Updated 04/27/2020 5:45pm

ICE EMPLOYEES
AT DETENTION
CENTERS
35

There have been 35 confirmed cases of COVID-19 among ICE employees working in ICE detention facilities.
14 at Alexandria Staging Facility (Alexandria, LA) 2 at Aurora Contract Detention Facility (Aurora, CO) 1 in Bergen County Jail (Hackensack, NJ) 1 at Butler County Jail (Hamilton, OH) 2 at Elizabeth Contract Detention Facility (Elizabeth, NJ) 1 at Essex County Correctional Facility (Newark, NJ) 1 at Florence Correctional Center (Florence, AZ) 2 at Houston Contract Detention Facility (Houston, TX) 1 at Hudson County Jail (Kearny, NJ) 8 at Otay Mesa Detention Center (San Diego, CA) 1 at Stewart Detention Center (Lumpkin, GA)

Updated 04/24/2020 5:00pm

ICE EMPLOYEES
89

There have been 88 confirmed cases of COVID-19 among ICE employees not assigned to detention facilities.

Last Reviewed/Updated: 04/27/2020 https://www.ice.gov/coronavirus

Updated 04/24/2020 5:00pm
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Case 1:18-cv-00760-CKK-RMM Document 105-8 Filed 05/07/20 Page 1 of 7
DECLARATION OF LORILEI WILLIAMS I, Lorilei Williams, make the following declaration based on my personal knowledge and declare under the penalty of perjury pursuant to 28 U.S.C. § 1746 that the following is true and correct. Introduction
1. I am a senior staff attorney for the Southeast Immigrant Freedom Initiative (“SIFI”) of the Southern Poverty Law Center (“SPLC”). SIFI provides pro bono representation to detained immigrants in proceedings before the Executive Office for Immigration Review and U.S. Immigration and Customs and Enforcement (“ICE”). SIFI prioritizes representing detained individuals in seeking their release from ICE custody. SIFI also represents some individuals in the merits phase of their removal proceedings before the immigration courts and in appeals to Board of Immigration Appeals (“BIA”). In addition, SIFI provides pro se support to detained individuals in their custody and merits proceedings before ICE and the immigration courts.
2. SIFI represents individuals confined inside the following detention centers in Louisiana and Georgia: the LaSalle Detention Center (“LaSalle”) in Jena, Louisiana; the Pine Prairie ICE Processing Center (“Pine Prairie”) in Pine Prairie, Louisiana; the Irwin County Detention Center (“Irwin”) in Ocilla, Georgia; the Folkston ICE Processing Center (“Folkston”) in Folkston, Georgia; and the Stewart Detention Center (“Stewart”) in Lumpkin, Georgia.
3. I have worked at SPLC since September 2019. In my capacity as senior staff attorney, I provide SIFI staff with training, mentoring, and professional development support, and I contribute to the development of our pro se resources and participate in other projects and litigation relevant to our work. Additionally, I served as the Interim Lead Attorney for SIFI’s Ocilla office from September 2019 until March 2020.
4. Since early March 2020, SIFI has been acutely aware that the COVID-19 pandemic poses a grave threat to the health and safety of everyone connected to the immigration detention centers where we work. Given the grossly inadequate medical care, unsanitary conditions, and inability to accomplish social distancing at these facilities, we were
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concerned that COVID-19 would spread quickly among the detained population and the surrounding communities. Our concerns include the grave impacts COVID-19 outbreaks will have on the under-resourced, rural communities the detention centers we serve are a part of. It became clear and necessary for our staff to seek the immediate release of detained immigrants with certain medical conditions who are particularly vulnerable to complications arising of COVID-19. SPLC partnered with Asian Americans Advancing Justice-Atlanta and Kilpatrick, Townsend, & Stockton LLP (collectively, “Habeas Counsel”) to seek immediate release on behalf of numerous individuals with such conditions. I am a member of SPLC’s litigation team on these matters and an attorney of record for the matters referenced below.
5. On April 7, 2020, Habeas Counsel filed a Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief along with a Motion for Temporary Restraining Order on behalf of three petitioners detained at Stewart and five petitioners detained at Irwin. That case, Sanchez Martinez v. Donahue, Case No. 7:20-CV-62 (CDL), is pending in the Middle District Court of Georgia.
6. On April 8, 2020, Habeas Counsel filed a Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief along with a Motion for Temporary Restraining Order on behalf of three petitioners detained at Folkston. That case, Benavides vs. Gartland, Case No. 4:20-cv-00069-RSB-CLR, is pending in the Southern District Court of Georgia.
7. In our ongoing work on the above matters, Habeas Counsel have experienced extreme difficulty communicating with detained individuals at Stewart, Irwin, and Folkston through in-person visitation as well as by phone and video teleconference (legal phone calls and video-teleconferencing are hereinafter referenced as “remote legal visits”).
COVID19 Conditions at Stewart and Irwin that necessitated Habeas Filing 8. The conditions at Stewart and Irwin necessitated Habeas Counsel’s immediate action on behalf of the medically vulnerable individuals detained there. Individuals at these
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facilities are unable to adequately socially distance Sanchez Martinez, Case No. 7:20-CV62, Dkt. 1-12 ¶60, are not provided access to items necessary for personal hygiene (Id. at ¶63) and are forced to live in flagrantly unsanitary conditions. Id. at ¶61. The facilities are understaffed (Id. at ¶71) and provide inadequate medical care. Id. at ¶71.
9. Those conditions are still ongoing. In filing a Motion for Emergency Inspection and Expedited Preliminary Injunction Hearing on May 1, Habeas Counsel raised the following: Inadequate care and response to symptomatic individuals (regularly ignored or receive only Tylenol); failure to implement and maintain social distancing; inadequate cleaning, disinfecting, and hand hygiene; inadequate communication and education regarding COVID-19 prevention; inadequate use of PPE (inconsistent use by staff and detained people often do not receive PPE at all); inadequate pre-entry screening. Sanchez Martinez v. Donahue, Case No. 7:20-CV-62, Dkt.32 (CDL).
Preparing Habeas Petitions (and subsequent filings) during COVID-19 Pandemic
10. In order to litigate Habeas Counsel’s petitions, members of our team need to schedule remote legal visits with existing and potential petitioners to discuss the scope of representation; personal, medical, and legal history; and other relevant matters. Legal visits must be remote due to ICE’s personal protective equipment (PPE) requirement for attorney visitation, the applicable shelter-in-place and stay-at-home orders, restrictions on travel, and medical vulnerabilities of members of Habeas Counsel. Habeas Counsel must also be able to send and receive documentation from petitioners, such as retainers, releases, medical records and other legal documents. Due to the rapidly deteriorating health of petitioners and the particular danger they face, Habeas Counsel has rushed to expedite our filings, creating a critical need for quick, reliable access to our clients.
11. Remote legal visitation is requested at Irwin and Stewart in similar manners. Counsel may send a request via email to the designated scheduling contact for the detention center. The detention center typically schedules our request for a one-hour appointment one to three days after our original request. Generally, visitation is limited to one hour, even when an interpreter is needed for the remote legal visit. Third party interpretation
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must be coordinated and provided by Habeas Counsel. There is no ability to request a remote legal visit for the weekend or in the evening. There is also no ability to schedule an expedited remote legal visit for any reason.
12. In my experience, when Irwin finally responds to a request for a remote legal visit, Irwin routinely provides very short notice of the selected time and day and does not give Habeas Counsel any opportunity to reschedule due to conflicts. As exemplified below, Irwin often offers remote legal visits to attorneys on a take-it or leave-it basis, meaning that if the requesting attorney is unavailable to take the call at Irwin’s selected time, the request for a legal call is effectively denied.
13. Because of the difficulty of scheduling remote legal visits with petitioners, we have relied heavily on petitioners’ ability to call us using the same phones they use to call loved ones, which are located in open, shared spaces that do not allow for confidential conversations. On numerous occasions, petitioners have reported an inability to access these phones either because phones in their pods or units have been disconnected or because their ability to access phones located outside of their pods or units has been limited. Their inability to call us has greatly interfered with our ability to act expeditiously.
14. SPLC has requested that several phone numbers of SPLC staff who regularly provide legal assistance to detained individuals at Irwin and Stewart be placed on a do-notmonitor list. While we have received verbal confirmation that these phone numbers have been placed on a do-not-monitor list for detained individuals at Stewart, Warden Paulk has refused to confirm whether our calls with detained individuals at Irwin are unmonitored.
15. Additionally, at Irwin, if the library video-teleconference station is used for the remote legal visit, detention center staff frequently interrupt our visit by entering the library and answering calls on a phone placed just a few feet away from the detained individual.
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16. Petitioners who require the services of an interpreter to speak with Habeas Counsel generally require more than twice as many hours of legal visitation but are subject to the same time constraints discussed above.
17. Below are but a few of the additional barriers my co-counsel and I have encountered in trying to communicate effectively with clients and potential petitioners in this case.
18. On April 15, 2020, Victoria Mesa requested a remote legal visit with one of our petitioners detained at Irwin by emailing the designated contact at Irwin. Ms. Mesa sent several emails following up on this request. Irwin did not respond until April 17, 2020.
19. On April 15, 2020, Hillary Li also requested a remote legal visit with a potential plaintiff detained at Irwin by emailing the designated contact at Irwin. Ms. Li followed up multiple times on this request to which Irwin failed to adequately respond. Ultimately, this remote legal visit was never scheduled. As a result, Habeas Counsel was unable to interview this individual for potential inclusion in our litigation. Similar restrictions have negatively impacted the Habeas Team’s ability overall to identify, communicate with, and ultimately include potential petitioners at these facilities in our litigation.
20. On April 15, 2020, I requested remote legal visits for two of our petitioners detained at Irwin by emailing the designated contact at Irwin. I sent emails following up on this request on April 16 and 17. On April 17, I received an unexpected Skype call from one of the petitioners. Irwin had failed to confirm the date and time of this remote legal visit. While I was able to answer the call, I was unprepared for the visit and was unable to accomplish everything I had planned to address during our visit. On April 17, I sent an additional follow up email inquiring as to the status of the request for the second petitioner. This visit was scheduled for April 20, 2020, five days after the date of my original request.
21. On April 22, 2020 at 2 pm, Ms. Mesa was scheduled for a remote legal visit with one of our petitioners detained at Irwin. Irwin never presented our petitioner for the visit. Irwin
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represented to Ms. Mesa that our petitioner did not want to speak with her. Ms. Mesa subsequently spoke with our petitioner’s immigration counsel and family, who informed Ms. Mesa that our plaintiff was told that Ms. Mesa was an attorney trying to “poach” her. Irwin’s interference with Ms. Mesa’s remote legal visit was grossly inappropriate.
22. On approximately April 20 and 21, one of our petitioners detained at Irwin was taken to the hospital for stress tests and an MRI. When he came back to his cell, several items were missing. He had been working on a drawing of the layout and conditions of his pod to assist Habeas Counsel with this litigation. The drawing was not in his cell when he returned, and in his experience only guards take personal items away from detained people at Irwin without notice. On information and belief, guards or other staff at Irwin knew about Petitioner Thompson’s participation in this litigation. On information and belief, guards or other staff at Irwin confiscated the drawing.
23. In addition to the access issues related to remote legal visits, Habeas Counsel have been unable to exchange documents with petitioners in an expeditious manner. Before the pandemic, we typically exchanged documents and obtained signatures during in-person legal visits. Now, with in-person visitation effectively prohibited, the only means for documents exchange is postal mail, which is a slow and unreliable process. We are unable to include stamps in our written correspondence with petitioners because stamps are banned by the detention centers. This forces us to deposit funds into petitioners’ commissary accounts or break social distancing protocols and stay-at-home orders to obtain prepaid envelopes that can be used by petitioners to return documents to us.
24. Additionally, as far as I know, we are unable to send faxes to any of our detained petitioners at Stewart or Irwin. We are able to receive faxes from our petitioners detained at Irwin, but we are unable to receive faxes from our petitioners detained at Stewart.
Conclusion 25. Since the implementation of COVID-19 related restrictions on in-person legal visits, communication with clients and potential petitioners at Irwin, Stewart, and Folkston
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detention centers has been severely limited and rendered ineffective. Remote legal visitation is difficult and sometimes impossible to schedule. When it is scheduled, it often raises confidentiality issues, as our clients are not in private settings. Exchanging documents and obtaining client signatures—ordinary necessities in direct immigration representation—is also slow and unreliable at the facilities.
26. My co-counsel and I are deeply concerned for the lives of our petitioners as we witness detention center conditions deteriorate rapidly as they await completion of their civil immigration matters. We are very disappointed in ICE’s continued failure to respect the lives and dignity of detained migrants and callous disregard for the urgent humanitarian crisis unfolding before us as COVID-19 wreaks havoc throughout our society.
27. We are especially alarmed by ICE’s continued refusal to re-assess and release significant numbers of immigrants that is required to meet social distancing guidelines within these spaces of confinement; refusal to adequately educate and inform detained individuals on critical information relating to COVID-19; continued transfer of detained individuals who are medically vulnerable or who have been exposed to COVID-19; disturbing refusal to provide basic hygiene supplies for detained individuals; and, failure to provide treatment and testing to those exhibiting COVID-19 symptoms.
I declare under penalty of perjury pursuant to 28 U.S.C. § 1746 that the foregoing is true and correct to the best of my knowledge, memory, and belief. Executed on the 5th day of May, in the year 2020, in the city of Stone Mountain, Georgia.
____________________________________ Lorilei Williams Southeast Immigrant Freedom Initiative Southern Poverty Law Center T 404.858.2567 Lorilei.williams@splcenter.org
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SOUTHERN POVERTY LAW CENTER, Plaintiff,
v. U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants.

Civil Action No. 18-0760 (CKK)

DECLARATION OF SHALINI GOEL AGARWAL
I, Shalini Goel Agarwal, hereby declare as follows:
1. I am an attorney with the Southern Poverty Law Center (“SPLC”) and one of the counsel for Plaintiff in this action. I have personal knowledge of the facts in this declaration.
2. SPLC filed this action on April 4, 2018, on behalf of itself and its Southeast Immigrant Freedom Initiative (“SIFI”) clients who are detained at four immigration detention centers in the Southeast, including LaSalle ICE Processing Center (“LaSalle”) in Jena, Louisiana. SPLC alleges that Defendants’ policies, practices, and omissions create unconstitutional barriers for detained people to access and communicate with attorneys in violation of their Fifth Amendment right to access courts, right to counsel, and right to a full and fair hearing.
3. The parties reached a settlement as to Plaintiff’s Motion for a Preliminary Injunction with respect to SPLC’s request for additional legal visitation meeting space and remote interpretation services for in-person meetings at LaSalle. The agreement requires, among other things, that Defendants schedule remote legal visits by video teleconference (“VTC”) to take place the same day as a request by SIFI staff.
4. Under the terms of the agreement, Plaintiff should notify Defendants of noncompliance to be quickly remediated by Defendants. The usual recourse for Plaintiff is the Alternative Dispute Resolution (“ADR”) process. However, if SPLC’s clients will likely suffer an imminent and irreparable harm, injury, or loss due to the

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violation and ADR is not feasible or practicable, Plaintiff may apply to the court for relief.
5. Since the settlement, and before COVID-19-related restrictions on access to counsel at LaSalle, Plaintiff has twice sent formal notices of noncompliance to Defendants.
a. On December 13, 2019, Plaintiff sent a notice of noncompliance to Defendants regarding the malfunctioning phones in the attorney visitation rooms that impeded access to interpreters during legal visits. A copy of this correspondence is attached as Exhibit A.
b. Defendants responded to this notice on December 17, 2019, explaining that they conducted two 60-second test calls from each of the three phone lines and that the phones worked. A copy of this correspondence is attached as Exhibit B.
c. On February 20, 2020, Plaintiff sent a notice of noncompliance to Defendants again flagging problems with the phone lines for interpreters in the attorney visitation rooms that made attorney-client communications ineffective. A copy of this correspondence is attached as Exhibit C.
d. Defendants responded to this notice on February 24, 2020, explaining that they again tested the phone lines, found some problems that they corrected, and would continue to periodically test the phones. A copy of this correspondence is attached as Exhibit D.
6. After that, on March 25, Plaintiff sent Defendants a letter describing several of the increasingly onerous barriers to detained individuals’ access to counsel due to COVID-19-related restrictions. Among these were delays of up to six days between the time a VTC remote legal visit was requested to the time it was scheduled at LaSalle. The letter specifically demanded:
a. Both VTC and legal phone calls be available at each of the four facilities; b. Sufficient VTC consoles for free, confidential legal VTCs 8am-8pm, with
conference calling, available within 24 hours by request of attorney or detained person; c. Free unmonitored calls in a confidential booth with a sufficient number of booths and staffing so that they can be scheduled at any time by request of attorney or detained person;
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d. A mechanism for free and quick exchange of confidential legal documents by fax or electronically;
e. Directives to staff to permit signatures based on verbal authorization of detained people rather than signatures by their own hand, given the difficulty and delay of in-person visits and mail; and
f. A process for confidential legal calls and VTCs for those in quarantine.
A copy of this correspondence is attached as Exhibit E.
7. Defendants responded nine days later on April 3, 2020. In their response, Defendants conceded that there had been six-day delays at LaSalle between Plaintiff’s request for a legal VTC and when the remote visitation was actually scheduled. As a result, Defendants committed to extending VTC hours of operation at LaSalle. Despite this commitment, SIFI staff still report scheduling delays for VTC remote legal visits. A copy of this correspondence is attached as Exhibit F.
8. Also in this correspondence, Defendants asserted that they would continue to make legal phone calls and VTCs available at each facility, temporarily extend the hours when VTCs could be made, and temporarily extend the hours for legal calls at all of the Facilities except Pine Prairie, where they deemed access to be sufficient. Defendants refused to allow 24/7 access to legal phone calls. Defendants also refused to create a process for confidential legal documents to be exchanged by fax or electronically and refused to allow Plaintiff to send stamped envelopes to its clients.
9. Plaintiff sent a third notice of noncompliance on May 4, seeking a response on May 5, regarding the repeated delays in scheduling VTCs at LaSalle that continued even after Defendants’ response to the demand letter. A copy of this correspondence is attached as Exhibit G.
10. Defendants responded to this notice on May 6, asserting that additional VTC consoles were installed at LaSalle, that they functioned properly, and that Defendants would conduct follow-up inspections. A copy of this correspondence is attached as Exhibit H.
I declare under penalty of perjury that the foregoing is true and correct.
Executed in Tallahassee, Florida, on May 6, 2020.
___________________________________ Shalini Goel Agarwal (Fla. Bar No. 90843)
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Case 1:18-cv-00760-CKK-RMM Document 105-9 Filed 05/07/20 Page 4 of 33 Southern Poverty Law Center 106 East College Avenue, Suite 1010 Tallahassee, Florida 32302 Tel: (850) 521-3024 shalini.agarwal@splcenter.org
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Exhibit A

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December 13, 2019

Fighting Hate Teaching Tolerance Seeking Justice
Southern Poverty Law Center PO BOX 10788 Tallahassee, FL 32302-2788 T. 850.521.3000 F. 850.521.30001 Toll Free 877.751.6183 www.splcenter.org

VIA E-MAIL

Jon Kaplan Associate Legal Advisor District Court Litigation Division Office of the Principal Legal Advisor U.S. Immigration and Customs Enforcement 500 12th Street, S.W., Room 9060 Washington, D.C. 20536 Jonathan.L.Kaplan@ice.dhs.gov

Re: SPLC v. DHS, et al., No. 18-760-CKK (D.D.C.) (Notice of Non-Compliance)

Dear Mr. Kaplan:

Please consider this letter a Notice of Non-Compliance pursuant to paragraph 28 of the parties’ September 5, 2018 Settlement Agreement regarding the LaSalle ICE Processing Center (“LaSalle”) in the above-captioned matter. See ECF No. 42. Specifically, I write to notify you that DHS is not in compliance with Paragraph 19 of the Settlement Agreement.

Paragraph 19 of the parties’ Settlement Agreement requires, inter alia, each attorney visitation room to contain confidential three-way telephone lines to access outside interpretation services without interference or static. See Settlement Agreement ¶ 19. The phone lines Defendants ultimately installed are currently malfunctioning and, as a direct consequence, attorneys and legal representatives are unable to consistently access crucially needed interpreters to facilitate attorney-client communications. Frequently, the telephone lines either do not work at all or cut off unexpectedly in the middle of a visit. In addition, static and poor sound quality on the phone lines frequently impedes interpreters from hearing attorneys or clients or vice-versa, thereby requiring parties to repeat themselves and unnecessarily extending the amount of time for visits. Sometimes, the static is so loud or the sound quality so poor that the parties on the call cannot hear one another at all.

As a result of these technical problems, Plaintiff has been forced to forgo in-person legal visits with individuals who require an interpreter or otherwise been prevented from effective attorneyclient communications. This consequence further strains Plaintiff’s resources and impedes meaningful access to counsel for individuals imprisoned at LaSalle.

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We appreciate your prompt attention to this Notice of Non-Compliance and look forward to working with you over the next two business days to try to resolve this dispute.as provided in Section 29 of the Settlement Agreement.
Sincerely,

cc: Daniel Schaefer
Assistant United States Attorney 555 4th Street, N.W.
Washington, D.C. 20530
Daniel.Schaefer@usdoj.gov

Shalini Goel Agarwal Senior Supervising Attorney

Sheetul S. Wall Trial Attorney Department of Justice | Civil Division Office of Immigration Litigation - District Court Section P.O. Box 868 | Ben Franklin Station | Washington, DC 20044 Sheetul.S.Wall2@usdoj.gov

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Exhibit B

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Exhibit C

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February 20, 2010

Fighting Hate Teaching Tolerance Seeking Justice
Southern Poverty Law Center PO BOX 10788 Tallahassee, FL 32302-2788 T. 850.521.3000 F. 850.521.30001 Toll Free 877.751.6183 www.splcenter.org

VIA E-MAIL

Jon Kaplan Associate Legal Advisor District Court Litigation Division Office of the Principal Legal Advisor U.S. Immigration and Customs Enforcement 500 12th Street, S.W., Room 9060 Washington, D.C. 20536 Jonathan.L.Kaplan@ice.dhs.gov

Re: SPLC v. DHS, et al., No. 18-760-CKK (D.D.C.) (Notice of Non-Compliance)

Dear Mr. Kaplan:

Please consider this letter a Notice of Non-Compliance pursuant to paragraph 28 of the parties’ September 5, 2018 Settlement Agreement regarding the LaSalle ICE Processing Center (“LaSalle”) in the above-captioned matter. See ECF No. 42. Specifically, I write to notify you that DHS continues to be noncompliant with Paragraph 19 of the Settlement Agreement, which requires, inter alia, that each attorney visitation room contain confidential three-way telephone lines to access outside interpretation services without interference or static. See Settlement Agreement ¶ 19.

On December 13, 2019, Plaintiff informed Defendants that the LaSalle phone lines were malfunctioning and, as a result, attorneys and legal representatives were unable to reliably conduct legal visitation with individuals who require outside interpretation services. On December 17, 2019, Defendants informed us that they had conducted an on-site inspection; that the inspection revealed all but one of the phones to be working properly; and that a technician fixed a “muffling” sound on the one malfunctioning phone.

However, since Defendants’ inspection, technical problems with the language lines in all three visitation rooms persist. Most recently, on February 3, 2020, Plaintiff discovered that one of the phone lines, in the second visitation room from the entrance, did not work at all. When Plaintiff’s attorney attempted to use the phone in the first visitation room closest to the entrance instead, the attorney found that the remote interpreter could not hear the detained individual at all. The phone lines in both the first visitation room and the third visitation room farthest from the entrance cut in and out periodically so that the attorney and detained person are unable to hear the interpreter

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or vice versa. As a result of these continued technical problems, Plaintiff has been prevented from effective attorney-client communications.
Given the severe lack of interpreters near LaSalle, Plaintiff requires reliable access to functioning language lines in order to communicate with individuals who require interpreters. Consequently, reliable access to language lines is a key feature of the Settlement Agreement between the parties.
Accordingly, and consistent with the ADR procedures prescribed by the Settlement Agreement, Plaintiff requests that Defendants promptly resolve the ongoing technical problems with the language lines at LaSalle. To be sure, Plaintiff expects Defendants not only to ensure that the language lines are currently working but also to ensure that the language lines reliably work. Because Defendants’ December inspection did not ensure the phone lines reliably worked, Plaintiff expects that Defendants will need to go beyond a mere inspection to ensure reliable access to language lines. Plaintiff hopes to resolve these issues without intervention by mediators or the Court. However, if these issues persist and language-line access continues to be hampered, Plaintiff will be required to elevate this issue.
We appreciate your prompt attention to this Notice of Non-Compliance and look forward to working with you over the next two business days to try to resolve this dispute.as provided in Section 29 of the Settlement Agreement.
Sincerely,

cc: Daniel Schaefer Daniel.Schaefer@usdoj.gov Sheetul S. Wall Sheetul.S.Wall2@usdoj.gov Ruth Ann Mueller Ruth.A.Mueller@usdoj.gov James Walker James.Walker3@usdoj.gov Defendants’ Counsel

Shalini Goel Agarwal Senior Supervising Attorney

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Exhibit D

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Exhibit E

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VIA E-MAIL

March 25, 2020

Fighting Hate Teaching Tolerance Seeking Justice
Southern Poverty Law Center PO BOX 10788 Tallahassee, FL 32302-2788 T. 850.521.3000 F. 850.521.30001 Toll Free 877.751.6183 www.splcenter.org

Jon Kaplan Associate Legal Advisor District Court Litigation Division Office of the Principal Legal Advisor U.S. Immigration and Customs Enforcement 500 12th Street, S.W., Room 9060 Washington, D.C. 20536 Jonathan.L.Kaplan@ice.dhs.gov

Julie Plavsic Senior Policy Advisor Office of Legal Access Programs U.S. Immigration and Customs Enforcement
500 12th Street, S.W.
Washington, D.C. 20536 Julie.Plavsic@ice.dhs.gov

Re: SPLC v. DHS, et al., No. 18-760-CKK (D.D.C.) Ensuring Access to Counsel during COVID-19 Pandemic

Dear Mr. Kaplan and Ms. Plavsic:

We write to raise serious concerns regarding COVID-19 and the emergent situation at LaSalle ICE Processing Center (“LaSalle”); Pine Prairie ICE Processing Center (“Pine Prairie”); Irwin County Detention Center (“Irwin”); and Stewart Detention Center (“Stewart”).

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As you are aware, new coronavirus (COVID-19), a disease that has led to a global pandemic, presents an immediate and substantial threat to life.1 To date, there are over 59,502 confirmed cases of COVID-19 in the United States across all 50 states, and 804 deaths.2 As the number of diagnosed cases rises exponentially, the urgent need to combat the spread of this disease is clear. Medical experts and epidemiologists have called for alternatives to incarceration, noting the heightened danger to people in prisons and jails.3 In response, several jails and prisons have begun implementing plans to release individuals.4 The same is not true for immigrant detention centers, though they hold individuals in civil detention, which is legally required to be less punitive than criminal incarceration.5 Despite ICE’s knowledge of the heightened vulnerability of detained individuals, its documented failure to adequately respond to outbreaks of other diseases within detention centers,6 and its ultimate authority to release detainees,7 Defendants
1 World Health Organization, WHO Director-General’s opening remarks at the media briefing on COVID-19 (March 11, 2020), https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-mediabriefing-on-covid-19---11-march-2020. 2 Mitchell Smith, Coronavirus Map: U.S. Cases Surpass 10,000, N.Y. TIMES (Updated March 25, 2020, 12:03 P.M. E.T.), https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases html. The number of people who have tested positive has increased twelve-fold from 5,726 people as of last Tuesday, March 17, 2020. The number of deaths has almost doubled in the past two days, from 428 on Monday, March 23. Id. 3See Dr. Anne Spaulding, Coronavirus and the Correctional Facility: for Correctional Staff Leadership, at 15, Mar. 9, 2020, https://www.ncchc.org/filebin/news/COVID for CF Administrators 3.9.2020.pdf. (“Consider alternatives to incarceration, in order to keep stock population down (diversionary courts, community corrections). Consider measures other than detention (at-home electronic monitoring). Ask who you can release on their own recognizance?”); Dr. Amanda Klonsky, An Epicenter of the Pandemic Will Be Jails and Prisons, if Inaction Continues, N.Y. TIMES (March 16, 2020), https://www.nytimes.com/2020/03/16/opinion/coronavirus-in-jails html; Dr. Marc Stern, Washington State Jails Coronavirus Management Suggestions in 3 “Buckets,” Letter to Washington Jails (March 13, 2020), https://waspc memberclicks.net/assets/docs/suggestions%20for%20jails%20%203.5.20.pdf; Camilo MontoyaGalvez, "Powder kegs": Calls grow for ICE to release immigrants to avoid coronavirus outbreak, CBS NEWS (March 19, 2020), https://www.cbsnews.com/news/coronavirus-ice-release-immigrants-detention-outbreak/ (calling for release of immigrants from detention by infectious disease expert Dr. David Cennimo, among others); Open Letter to ICE from Medical Professionals Regarding COVID-19 (March 22, 2019), https://nylpi.org/wpcontent/uploads/2020/03/FINAL-LETTER-Open-Letter-to-ICE-From-Medical-Professionals-Regarding-COVID19.pdf (urging ICE to implement community-based alternatives; signed by over 3,000 medical professionals). 4 US jails begin releasing prisoners to stem Covid-19 infections, BBC NEWS (March 19, 2020), https://www.bbc.com/news/world-us-canada-51947802 (describing decarceration efforts in New York City, Los Angeles, and Cleveland, including release of 600 people by Los Angeles County Sheriff’s Department). See also Darwin Bond Graham, San Francisco Officials Push to Reduce Jail Population to Prevent Coronavirus Outbreak, THE APPEAL (March 11, 2020), https://theappeal.org/coronavirus-san-francisco-reduce-jail-population/; Jerry Ianelli, After Criticism, Miami-Dade State Attorney Pledges to Help Release Nonviolent Arrestees, MIAMI NEW TIMES (March 16, 2020), https://www miaminewtimes.com/news/miami-dade-jails-state-attorney-rundle-outlinescoronavirus-plan-11598148. 5 See Shaughnessy v. United States Ex Rel. Mezei, 345 U.S. 206 (1953). 6 Between October 2018 and August 2019, five cases of mumps in two ICE detention centers ballooned to 898 cases in 57 facilities, with 84% of patients exposed while in custody. “Mumps in Detention Facilities that House Detained Migrants — United States, September 2018–August 2019” Morbidity and Mortality Weekly Report, 68:34 (Aug. 20, 2019) pp.749-50. https://www.cdc.gov/mmwr/volumes/68/wr/pdfs/mm6834a4-H.pdf; See also Christina Potter, Outbreaks in Migrant Detention Facilities, OUTBREAK OBSERVATORY (July 11, 2019), https://www.outbreakobservatory.org/outbreakthursday-1/7/11/2019/outbreaks-in-migrant-detention-facilities
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have announced no plans to release individuals from immigrant detention, including at the four facilities at issue.8 This is true even though staffing has been reduced at some facilities, including at Stewart.
Defendants have likewise failed to present a sufficient plan for the prevention and management of COVID-19 for individuals in ICE custody, and instead have only published a brief guidance.9 This limited guidance is not even being followed in the facilities at issue. For example, during a March 20 legal visit to Pine Prairie, Plaintiff observed staff operating in the quarantined dorm without protective gear and bringing in transfers to the quarantined dorm. Further, detained individuals assigned to clean the quarantined dorm were doing so without masks, gloves, or other protective gear. To date, ICE has not taken enough proactive measures such as identifying high-
(noting multiple infectious disease outbreaks in CBP and ICE facilities in 2018 and 2019, facilitated by overcrowding, poor access to healthcare or sanitation, and improper use of isolation and quarantine). 7 Section 236(a)(2)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1226(a)(2)(B) (2006) authorizes the Department of Homeland Security (“DHS”) to release an immigrant on conditional parole, and section 212(d)(5)(A) of the Act, 8 U.S.C. § 1182(d)(5)(A) (2006), provides a different procedure for temporary parole, based on urgent humanitarian reasons or significant public benefit. See In re Castillo-Padilla, 25 I. & N. Dec. 257, 259 (B.I.A. June 18, 2010). Former Acting ICE Director John Sandweg has criticized ICE’s failure to release individuals amid Coronavirus, citing the Agency’s complete discretion. “Unlike the Federal Bureau of Prisons, ICE has complete control over the release of individuals. ICE is not carrying out the sentence imposed by a federal judge… It has 100% discretion.” Camilo Montoya-Galvez, "Powder kegs," supra note 4. 8 To the contrary, ICE has continued immigration arrests, even placing people in Aurora Detention Center, where at least ten people have been quarantined for possible exposure to the coronavirus. Alex Burness, ICE immigration arrests continuing in Denver despite coronavirus outbreak, THE DENVER POST (March 17, 2020), https://www.denverpost.com/2020/03/17/coronavirus-ice-immigration-arrest-colorado-denver/. And while the Federal Bureau of Prisons has suspended facility transfers for 30 days to reduce likelihood of exposure, ICE has continues facility-to-facility transfer of detained people, as recently as March 15, 2020. Compare Federal Bureau of Prisons COVID-19 Action Plan, BOP (March 13, 2020), https://www.bop.gov/resources/news/20200313 covid19.jsp with Hamed Aleaziz, A Local Sheriff Said No to More Immigrant Detainees Because of Coronavirus Fears, so ICE Transferred Them All to New Facilities, BUZZFEED NEWS (March 18, 2020), https://www.buzzfeednews.com/article/hamedaleaziz/wisconsin-sheriff-ice-detainees-coronavirus. ICE’s lack of a plan for release is troubling given the fact that an employee exhibiting symptoms of the virus in an immigrant detention facility continued to work in the medical ward and was diagnosed with Coronavirus. Emily Kassie, First ICE Employee Tests Positive for Coronavirus, THE MARSHALL PROJECT (March 19, 2020), https://www.themarshallproject.org/2020/03/19/first-ice-employee-tests-positive-for-coronavirus. The situation on Riker’s Island is instructive—on the night of March 18, one inmate tested positive, and by the next afternoon, four employees tested positive. Three More Correction Officers Test Positive, Officials say, The Coronavirus Outbreak, NYTIMES (updated on March 19, 2020), https://www.nytimes.com/2020/03/19/nyregion/coronavirus-new-yorkupdate html#link-1b054716. As ICE continues to make arrests and transfers without a release strategy, a similar exponential increase of COVID-19 in ICE facilities is also imminent. 9 ICE Guidance on COVID-19. U.S. IMMIGRATIONS AND CUSTOMS ENFORCEMENT. https://www.ice.gov/covid19. The “guidance” provides scant information about protective measures in detention. As to how ICE ensures that detained people are kept safe in this crisis, it notes only that ICE is cohorting detainees “as an alternative to selfmonitoring” and that staff uses “N95 masks, available respirators, and additional personal protective equipment.” Further, the guidance simply states that detainees who “require higher levels of care or monitoring” are transported to appropriate hospitals with no plan of action for detention centers in remote areas like those at issue here far from hospitals with requisite expertise. Finally, the guidance creates troubling loopholes—to wit, detainees who are asymptomatic but meet CDC criteria for epidemiological risk “are housed separately in a single cell, or as a group, depending on available space.” (emphasis added).
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risk populations, providing free and adequate hygiene products, or creating an emergency outbreak plan.
Furthermore, Defendants have done nothing to protect detained individuals’ due process rights in light of this public health crisis. This is especially concerning, given both the existing barriers to access to counsel in the four facilities,10 and EOIR’s announcement that all calendar hearings for detained individuals will proceed as scheduled.11 Just this week, on March 24, Plaintiff asked to set up video teleconference (“VTC”) calls with 5 clients at LaSalle and was given only one slot on March 30, six days later. Likewise, Plaintiff requested a VTC call with a client at Stewart on March 25 but was told no slots were available until the following week. The impact of Defendant’s failure to provide sufficient VTC access is compounded by its new requirement that attorneys bring their own Personal Protective Equipment (“PPE”) for all in-person visitations.12 Given the national shortage of PPE for healthcare providers, the practical effect of this new policy is to prohibit attorneys from visiting their clients in the various facilities. It is incumbent upon Defendants to guarantee that the COVID-19 pandemic does not result in a further strain on individuals’ access to counsel.
To be clear, releasing individuals from detention is the best way to ensure their health and access to counsel, insofar as released individuals will be able to call and correspond with their attorneys freely in support of their immigration cases while reducing the risks of transmission in the detention center in this rapidly evolving health crisis. Plaintiff’s ability to counsel its clients at the four facilities depends on its ability to enter the facilities and visit clients, a reality that is less likely to remain when COVID-19 enters and spreads rapidly in the facilities. Plaintiff has heard reports of confirmed cases of COVID-19 at Irwin, LaSalle, and Pine Prairie. We urge Defendants to take proactive measures, including releasing vulnerable individuals, as we have previously communicated to ICE,13 before it is too late.
We demand that Defendants take the following immediate actions to mitigate existing barriers to counsel at the four facilities in the face of this public health emergency:
10 Individuals detained at these four remote facilities continue to be impeded from meaningfully communicating with lawyers due to inadequate facilities, policies and practices, and failure of ICE and its agents to monitor or remediate resulting constitutional violations. These deficiencies, such as Pine Prairie’s sole VTC room, Stewart’s inability to set up set up pre-scheduled legal calls at an attorney’s request, Irwin’s VTC calendar coordination that requires 2-3 days advance notice, and LaSalle’s extremely limited daily VTC availability, are highlighted in the Complaint. 11 DOJ EOIR (@DOJ_EOIR), TWITTER (Mar 15, 2020, 10:49 PM), https://twitter.com/DOJ EOIR/status/1239383175882776576. 12 “ICE will require all legal visitors to provide and wear PPE (e.g., gloves, N-95 masks, and eye protection) while visiting with any client at any facility.” ICE Guidance on COVID-19, supra note 9. 13 See Letter to ICE Officials and Wardens Re: COVID-19 (March 13, 2020), https://www.splcenter.org/sites/default/files/ltr to ice and wardens re covid-19 - 2020.03 - final.pdf; see also Letter to ICE and EOIR Re: Legal Access in Immigration Detention and Immigration Courts During COVID-19 Pandemic (March 23, 2020), https://www.aila.org/advo-media/aila-correspondence/2020/aila-and-partners-sendletter-to-eoir-and-ice.
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1. Ensure that both VTC and phone calls are available at each detention center for attorneyclient communication.
2. Provide sufficient VTC consoles such that detained individuals can have free, confidential VTC with attorneys from 8:00 a.m. to 8:00 p.m. Such VTC calls must be available within 24 hours of request by detained individuals or attorneys and need to take place in private spaces to protect confidentiality. They must also allow for conference calling to include interpreters and experts in legal calls.
3. Ensure a process for free unmonitored legal calls at each facility and provide enough confidential phone booths for calls to be available at any time by the request of detained individuals or attorneys. Sufficient staff must be available to accommodate requests from attorneys to schedule legal calls. These calls must allow for conference calling for interpreters and experts to participate.
4. Provide a mechanism for attorneys and detained individuals to freely, quickly, and confidentially exchange legal documents, either electronically or via fax. In addition, enable detained individuals to send mail to attorneys for original documents, either by paying for the postage of detained individuals or by allowing attorneys to mail them selfaddressed stamped envelopes.
5. Issue directives to staff encouraging flexibility by ICE and facility staff to permit free attorney-client communication for the purpose of intake without signature on ordinarily required forms, including but not limited to the ICE privacy waiver and the G-28.
6. Employ processes that permit confidential legal calls and VTC visits for quarantined individuals.
We urge you to immediately take these actions to address Plaintiff’s concerns. Plaintiff otherwise reserves the right to take necessary steps to ensure that detained individuals at the facilities in question have effective access to counsel during this pandemic.
Sincerely,

cc: David Byerley David.Byerley@usdoj.gov Ruth Ann Mueller Ruth.A.Mueller@usdoj.gov Daniel Schaefer Daniel.Schaefer@usdoj.gov James Walker James.Walker3@usdoj.gov Defendants’ Counsel

Shalini Goel Agarwal

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Exhibit F

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Office of the Principal Legal Advisor
U.S. Department of Homeland Security 500 12tth Street SW, Room 9060 Washington, DC 20536
April 3, 2020
VIA E-MAIL
Shalini Goel Agarwal Senior Supervising Attorney Southern Poverty Law Center P.O. Box 10788 Tallahassee, FL 32302-2788
Re: SPLC Novel Corona Virus Outbreak
Dear Ms. Goel Agarwal:
I write in response to Southern Poverty Law Center’s (SPLC) March 25, 2020 letter concerning access to counsel during the novel coronavirus pandemic for aliens detained at Irwin County Detention Center (Irwin), LaSalle ICE Processing Center (LaSalle), Pine Prairie ICE Processing Center (Pine Prairie), and Stewart Detention Center (Stewart). This letter, however, does not address SPLC v. DHS, et al., No. 18-760 (D.D.C. SAC filed Aug. 28, 2019), which is before the United States District Court for the District of Columbia.
U.S. Immigration and Customs Enforcement (ICE) is reviewing its “at risk population” to include the elderly, pregnant detainees, and others with compromised immune systems to ensure that detention is appropriate given the extenuating circumstances. Custody determinations are made on a case-by-case basis at each detention facility and include, among other factors, the public safety risk that such release could create and the requirement to detain certain aliens under law. See Section 236 of the Immigration and Nationality Act, 8 U.S.C. § 1226. The agency will continue to review its “at risk population” at the four detention facilities in the days and weeks ahead when deciding whether any detainees should be released from custody.
Separately, ICE rejects SPLC’s assertion that, as of March 25, 2020, there were “confirmed cases of COVID-19 at Irwin, LaSalle, and Pine Prairie.” Letter from Shalini Goel Agarwal, Senior Supervisory Attorney, to Jon Kaplan, Associate Legal Advisor, Office of the Principal Legal Advisor, and Julie Plavsic, Senior Policy Advisor, Office of Legal Access Programs at 4 (Mar. 25, 2020) (SPLC Letter). At that time, all four locations had reported that there are no confirmed cases of COVID-19 at any of the facilities. On April 1, 2020, at 8:54 p.m., however, ICE received confirmation that an alien detained at Pine Prairie who transferred as an inmate from the Federal Bureau of Prisons in Oakdale, LA, tested positive for
www.ice.gov

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COVID-19. At the time, he was found to be asymptomatic. Since the detainee’s arrival at Pine Prairie, he has been kept in a negative pressure chamber in the facility and has not interacted with the general population in any manner. Additionally, in the exercise of caution, the detainee arrived at Pine Prairie wearing personal protective equipment (PPE). The detainee will remain in isolation until April 6, 2020, before he is placed in a general population pod at the facility. Notwithstanding this incident, ICE will continue to coordinate with medical professionals and monitor the facilities and detainees in an effort to minimize the chances of entry of COVID-19 into the facilities.
SPLC further raises three alleged incidents on March 20, 2020, at Pine Prairie, March 24, 2020, at LaSalle, and March 25, 2020, at Stewart relating to the facilities’ responses to the public health crisis. First, Pine Prairie rejects the allegation about the quarantined dorm incident because SPLC, like other visitors, are limited to the legal visitation area, which is adjacent to the front entrance and which does not provide visual access into the dorm area. Accordingly, please provide any evidence supporting SPLC’s allegations. Additionally, ICE encourages SPLC visitors to file complaints with the facility regarding any issues encountered during visits. Second, and upon initial investigation, LaSalle acknowledges that the six-day delay to set up video-teleconference (VTC) calls is likely accurate given the high demand to use Skype during the pandemic and the limited resources at the facility. To reduce the current backlog for access to VTC at LaSalle, GEO Group (GEO) has agreed to extend the hours from 7:00 a.m. to 7:00 p.m., Mondays through Fridays, and anticipates installing two additional Skype units by April 10, 2020. (Please note that LaSalle, like the other facilities, will continue to schedule VTC sessions on a first-come, first-serve basis.) Third, in reviewing the pertinent e-mail exchange between SPLC and CoreCivic, it appears that SPLC was able to conduct a virtual legal visitation with its detained client at Stewart on March 30, 2020. ICE is sensitive to SPLC’s concerns about access to counsel and will make accommodations when appropriate, but maintains that health and safety are of paramount interest. Accordingly, until further notice, ICE will continue requiring attorneys to bring in their own PPE and undergo wellness screening should they decide to visit the facilities to minimize the risk of exposure to and/or spread of the virus.
Finally, ICE has discussed with the facilities SPLC’s six immediate action demands concerning access to counsel enumerated in your letter. The facilities’ responses are as follows:
1. Irwin and Stewart: VTC and telephone calls for attorney-client communications already are in place. LaSalle: There has been a delay in processing VTC and legal call requests because of the public health crisis, and GEO has agreed to temporarily extend the hours of service. Pine Prairie: No issues with scheduling VTC and telephone calls.
2. Irwin, LaSalle, Pine Prairie, and Stewart: The facilities agree to temporarily extend the hours for Skype use consistent with the security and orderly operation of the facility. Specifically, Irwin has agreed to extend Skype calls from 8:00 a.m. to 7:00 p.m., Tuesdays through Fridays, if needed, and ordered an additional laptop for the Skype unit. (Skype calls will continued to be scheduled from 8:00 a.m. to 5:00 p.m. on

Case 1:18-cv-00760-CKK-RMM Document 105-9 Filed 05/07/20 Page 26 of 33 Shalini Goel Agarwal, Esq. SPLC Page 3 of 4
Mondays because of staffing issues.) Stewart has agreed to extend Skype calls from 8:00 a.m. to 6:00 p.m., Mondays through Fridays. As discussed above, LaSalle has agreed to extend Skype calls from 7:00 a.m. to 7:00 p.m., Mondays through Fridays, and anticipates installing two additional Skype units by April 10, 2020. Pine Prairie has agreed to extend Skype calls from 8:00 a.m. to 7:00 p.m., Mondays through Fridays, and, at this time, has agreed to provide Skype service from 8:00 a.m. to 4:00 p.m., Saturdays and Sundays. Attorneys may set up three-way calling to include interpreters or experts using their portable electronic devices.
3. Irwin, LaSalle, Pine Prairie, and Stewart: Irwin, LaSalle, and Pine Prairie have agreed to temporarily extend the hours for legal calls consistent with the security and orderly operations of the facilities, but none of the facilities will agree to “confidential phone booths for calls to be available at any time by the request of detained individuals or attorneys”, SPLC Letter at 6 (emphasis in original), as this demand is unreasonable. Irwin has agreed to extend legal calls from 8:00 a.m. to 7:00 p.m., Tuesdays through Fridays, if needed, and Stewart will continue to provide for legal calls from 8 a.m. to 8:00 p.m., Mondays through Fridays. LaSalle has agreed to extend legal calls from 7:00 a.m. to 7:00 p.m., Mondays through Fridays, and Pine Prairie’s hours will remain the same because the facility continues the meet the needs of detainees and their attorneys for legal calls. As SPLC should be aware, SPLC is currently on the pro-bono call list that allows detainees to make unmonitored calls to SPLC at any time for free. Nevertheless, the facilities will make funds available for indigent detainees, to the extent necessary, to place telephone calls in accordance with the 2008 and 2011 Performance Based National Detention Standards (PBNDS). The facilities will also extend VTC availability within facility capabilities and staffing availabilities.
Attorneys may set up three-way calling to include interpreters or experts using their portable electronic devices. Irwin indicated that upon request, attorneys may set up unmonitored telephone calls from detained clients by way of the facility’s telephone system, and detainees may request making or receiving legal calls by way of the CoreCivic employees or kiosk. Stewart indicated that attorneys may set up unmonitored telephone calls from detained clients by way of the facility’s telephone system.
4. Irwin, LaSalle, Pine Prairie, and Stewart: The facilities’ unit managers and law library officers will continue to assist the detainees with their needs to exchange a hardcopy of legal documents with their attorneys, but will not retrieve facsimiles or download electronic copies of legal documents for detainees. Additionally, the facilities will not permit stamps into the facilities because they may be used for improper means, such as currency or barter; however, the facilities may permit metered and preaddressed envelopes.
5. Irwin, LaSalle, Pine Prairie, and Stewart: In accordance with 2008 PBNDS and 2011 PBNDS, the facilities will permit attorneys to conduct initial consultations without

Case 1:18-cv-00760-CKK-RMM Document 105-9 Filed 05/07/20 Page 27 of 33 Shalini Goel Agarwal, Esq. SPLC Page 4 of 4
executed G-28s, but cannot agree to waiving signature requirements for ICE privacy waivers.
6. Irwin, LaSalle, Pine Prairie, and Stewart: The facilities will permit confidential legal calls and VTC visits for quarantined detainees to the extent that such access can be provided in accordance with medical directives or guidelines, and without compromising the health or safety of the detainee population or detention employees. To the extent certain detainees are quarantined, the facilities will continue to appropriately schedule and permit such calls and/or VTC visits to occur. The facilities are further amenable to setting up unmonitored legal calls by way of detainee telephones.
Please contact Ruth Ann Mueller, James Walker, and David Byerley, Trial Attorneys, Office of Immigration Litigation (OIL), to discuss any additional concerns SPLC may have in reply to ICE’s response to this letter. ICE will continue to coordinate with the facilities its response to the global pandemic and will supplement this letter if necessary.
Sincerely,

cc: Ruth Ann Mueller, OIL James Walker, OIL David Byerley, OIL Brian Boyd, OPLA DCLD Julie Plavsic, ICE ERO

Jon Kaplan Associate Legal Advisor District Court Litigation Division

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Exhibit G

Case 1:18-cv-00760-CKK-RMM Document 105-9 Filed 05/07/20 Page 29 of 33

May 4, 2020

Fighting Hate Teaching Tolerance Seeking Justice
Southern Poverty Law Center PO BOX 10788 Tallahassee, FL 32302-2788 T. 850.521.3000 F. 850.521.30001 Toll Free 877.751.6183 www.splcenter.org

VIA E-MAIL

Jon Kaplan Associate Legal Advisor District Court Litigation Division Office of the Principal Legal Advisor U.S. Immigration and Customs Enforcement 500 12th Street, S.W., Room 9060 Washington, D.C. 20536 Jonathan.L.Kaplan@ice.dhs.gov

Re: SPLC v. DHS, et al., No. 18-760-CKK (D.D.C.) (Notice of Non-Compliance)

Dear Mr. Kaplan:

Please consider this letter a Notice of Non-Compliance pursuant to Paragraph 28 of the parties’ September 5, 2018 Settlement Agreement (“Settlement Agreement”) regarding the LaSalle ICE Processing Center (“LaSalle”) in the above-captioned matter. See ECF No. 42. Because DHS’s non-compliance presents a threat of imminent and irreparable injury to SPLC’s clients, SPLC is invoking Paragraph 30 of the Settlement Agreement, requiring the parties meet and confer immediately and authorizing SPLC to make an application for relief to the Court if the parties cannot resolve the non-compliance by 5:00 PM Eastern Time, May 5, 2020.

Specifically, I write to notify you that DHS is not in compliance with Paragraph 22 of the Settlement Agreement. This paragraph requires, among other things, that DHS provide confidential legal visitation through video teleconferencing (“VTC”) software at LaSalle. These VTC calls shall be scheduled in accordance with Paragraph 18 of the Settlement Agreement, which requires the calls occur within twenty-four hours of SIFI’s request.

VTC calls at LaSalle have not been scheduled to occur within twenty-fours of SIFI’s request. On March 17, 2020, a SIFI attorney requested a VTC call with a client. LaSalle scheduled it for six days later. On March 24, 2020, a SIFI legal worker requested VTC calls with five people detained at LaSalle. The facility again responded that there were no VTC time slots for the next six days. On March 25, 2020, a SIFI legal worker requested a VTC call with a client medically vulnerable to COVID-19. LaSalle again responded that it did not have any time slots for the next six days. On April 6, 2020, a SIFI attorney requested a VTC call for the next day. LaSalle assigned her a time slot on April 8, 2020 instead.

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The spread of the novel coronavirus throughout DHS’s detention facilities has made the need for prompt VTC access only more critical, particularly in light of the many other barriers to access to counsel at the facilities, including at LaSalle. ICE’s restrictions on in-person visitation have forced SIFI to rely exclusively on VTC and confidential legal telephone calls, and the grave risk of infection at DHS’s facilities has increased the immediate need for SIFI attorneys to communicate with their clients as they seek parole and other forms of relief. Defendants’ repeated violations of the 24-hour notice requirement set forth in the Settlement Agreement has not only been detrimental to SIFI’s ability to meet with its clients in the past but means that SIFI cannot currently reliably depend on LaSalle to schedule calls at a time when the notice requirement is of utmost importance.
We appreciate your prompt attention to this urgent issue.
Sincerely,

cc:
Daniel Schaefer Daniel.Schaefer@usdoj.gov Ruth Ann Mueller Ruth.A.Mueller@usdoj.gov James Walker James.Walker3@usdoj.gov David Byerley David.Byerley@usdoj.gov
Defendants’ Counsel

Shalini Goel Agarwal Senior Supervising Attorney

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Exhibit H

Case 1:18-cv-00760-CKK-RMM Document 105-9 Filed 05/07/20 Page 32 of 33
Office of the Principal Legal Advisor
U.S. Department of Homeland Security 500 12tth Street SW, Room 9060 Washington, DC 20536
May 6, 2020
VIA E-MAIL
Shalini Goel Agarwal Senior Supervising Attorney Southern Poverty Law Center P.O. Box 10788 Tallahassee, FL 32302-2788
Re: SPLC v. DHS, No. 18-760-CKK (D.D.C.)
Dear Ms. Goel Agarwal:
I write in response to Southern Poverty Law Center’s (SPLC) May 4, 2020 Notice of Noncompliance (Notice) in which it alleges that U.S. Immigration and Customs Enforcement (ICE) is in noncompliance with the September 5, 2018 Settlement Agreement (Agreement), ECF No. 42. Specifically, SPLC alleges that on March 17, 2020, March 24, 2020, March 25, 2020, and April 6, 2020, Southeast Immigrant Freedom Initiative (SIFI) attorneys or legal workers requested to conduct confidential legal visitations via video teleconferencing (VTC) with aliens who were detained at the LaSalle ICE Processing Center (LaSalle) in Jena, LA, and were not given access within 24 hours as required by the Agreement. In three of the four incidents, the VTC calls were scheduled six days after the initial requests. See Letter from Shalini Goel Agarwal to Jon Kaplan, Associate Legal Advisor, ICE (May 4, 2020).
ICE has investigated SPLC’s allegations and has conferred with its Enforcement and Removal Operations (ERO) New Orleans (NOL) field office and the GEO Group, Inc. (GEO), which operates LaSalle, to confirm the accuracy of the allegations and whether corrective measures are necessary to ensure compliance with the Agreement. GEO has retrieved e-mails for three of the incidents, which are summarized as follows. On March 17, 2020, a SIFI legal fellow requested to conduct a Skype visit with her client on March 19. Unfortunately, the GEO employee informed her that that date was unavailable and the only dates available for the week of March 16 was either March 18 at 8:00 a.m. or March 20 at 4:00 p.m. The SIFI attorney then requested that the VTC legal visit be scheduled for the week of March 23, preferably on March 23 between 11:00 a.m. and 1:00 p.m., and her appointment was confirmed for March 23 at 11 a.m. On March 24, 2020, a SIFI legal project coordinator requested VTC visits with five detainees and was told that the next available appointment was March 30 at 3:00 p.m. On April 6, 2020, the project coordinator requested a VTC visit on April 7 and the GEO employee informed her that the next available appointment was April 8 at 8:00 a.m.,
www.ice.gov

Case 1:18-cv-00760-CKK-RMM Document 105-9 Filed 05/07/20 Page 33 of 33 Shalini Goel Agarwal, Esq. SPLC Page 2 of 2
which was confirmed. GEO has no records of SIFI’s March 25, 2020 request to conduct a VTC call with its client.
ICE agrees that Paragraph 18(c) of the Agreement reads that “Plaintiff will request legal in-person visits and legal telephone calls the day before, or, at the latest, the morning of, the scheduled visit or call”, and acknowledges that GEO scheduled the VTC legal visits beyond the one-day limit. On May 6, 2020, ERO NOL reminded GEO of the Agreement’s requirements, including the timely scheduling of VTC appointments, and has received assurances that these incidents won’t happen again. In fact, GEO since has installed three additional Skype units at LaSalle to facilitate communications between attorneys and their detained clients and promote the use of video technology to provide an alternate means of access to counsel. GEO indicated that it has tested the Skype units and they are working without any interference. ERO NOL will meet and confer with Shad Rice, who is the new GEO warden at LaSalle, and assistant warden and follow-up with inspections and visits to ensure that this deficiency has been remedied. Finally, GEO believes that it has been responsive to SIFI’s appointment requests and will continue to work with the organization in scheduling visits with its detained clients.
Thank you for bringing this matter to our attention. In the future, we respectfully request that SPLC provide more timely notice of alleged noncomplying conditions so that the agency may promptly identify and correct the confirmed deficiencies. Please contact Ruth Ann Mueller and James Walker, Trial Attorneys, Office of Immigration Litigation (OIL), to discuss any additional concerns SPLC may have in reply to ICE’s response to this Notice.
Sincerely,

cc: Ruth Ann Mueller James Walker Trial Attorneys, OIL

Jon Kaplan Associate Legal Advisor District Court Litigation Division

Case 1:18-cv-00760-CKK-RMM Document 105-10 Filed 05/07/20 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SOUTHERN POVERTY LAW CENTER, Plaintiff,
v. U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants.

Civil Action No. 18-0760 (CKK)

CERTIFICATE OF COUNSEL REQUIRED BY LOCAL RULE 65.1 Pursuant to Local Rule 65.1(a), the undersigned counsel for Plaintiff Southern Poverty
Law Center (“SPLC”) hereby certifies that actual notice was provided to opposing counsel.
Copies of SPLC’s motion for a temporary restraining order, memorandum of points and
authorities in support, supporting declarations, and proposed order were delivered to Defendants
by email addressed to Defendants’ counsel Mueller, Ruth A. (CIV)
(Ruth.A.Mueller@usdoj.gov); Walker, James (CIV) (James.Walker3@usdoj.gov); Davila,
Yamileth G (CIV) (Yamileth.G.Davila@usdoj.gov); Byerley, David (CIV)
(David.Byerley@usdoj.gov); Schaefer, Daniel (USADC) (Daniel.Schaefer@usdoj.gov), sent on
May 7, 2020 at 2:24 p.m. EST.
Dated: May 7, 2020
Respectfully submitted,
/s/ Shalini Goel Agarwal Shalini Goel Agarwal (Fla. Bar No. 90843)* Southern Poverty Law Center 106 East College Avenue, Suite 1010 Tallahassee, Florida 32302 Telephone: (850) 521-3024 shalini.agarwal@splcenter.org

Case 1:18-cv-00760-CKK-RMM Document 105-11 Filed 05/07/20 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SOUTHERN POVERTY LAW CENTER, Plaintiff,
v. U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants.

Civil Action No. 18-0760 (CKK)

[PROPOSED] ORDER GRANTING PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER
THIS MATTER comes before the Court on Plaintiff Southern Poverty Law Center’s (“SPLC”) Motion for a Temporary Restraining Order.
Having reviewed Plaintiff’s Motion, the Memorandum of Points and Authorities in Support thereof, the attached declarations, and Defendants’ opposition (if any), the Court, being fully apprised, will GRANT Plaintiff’s Motion.
It is hereby ORDERED that Plaintiff’s Motion a Temporary Restraining Order be GRANTED; and further ORDERED that at Pine Prairie ICE Processing Center, Irwin County Detention Center, and Stewart Detention Center Defendants shall:
1. Provide a ratio of at least one telephone or video telecommunication (“VTC”) console per ten detained persons in each facility, as required by PBNDS 5.6(V)(A)(1).
2. Provide privacy and confidentiality for telephone and VTC communications between detained persons and their attorneys (including attorney legal staff and their agents), as required by PBNDS 5.6(V)(F)(2).

Case 1:18-cv-00760-CKK-RMM Document 105-11 Filed 05/07/20 Page 2 of 3
3. Refrain from limiting the number and duration of legal phone or VTC calls between detained persons and attorneys (or their legal staff and agents), as required by PBNDS 5.6(V)(F)(1).
4. Make all legal telephone calls from detained persons free of charge, as required by PBNDS 5.6(V)(E).
5. Maintain their phone and VTC systems in proper working order, as required by PBNDS(V)(A)(3)–(4).
6. Designate persons authorized as points of contact at each facility to relay any issues with scheduling VTC or legal calls or to address issues concerning the quality and confidentiality of those call.
7. Create, implement, and advertise a process by which attorneys and detained immigrants may schedule confidential telephone calls and VTC within 24 hours of the request, to take place between 8:00 a.m. and 8:00 p.m. It is further ORDERED that at LaSalle ICE Processing Center, Pine Prairie ICE Processing
Center, Irwin County Detention Center, and Stewart Detention Center Defendants shall: 1. Implement a system that requires Deportation Officers to provide immigrants and their attorneys confirmation of receipt of any parole request or custody redetermination requests within 24 hours and to provide a final determination within seven (7) days. 2. Create, implement, and advertise a process by which attorneys and detained immigrants may exchange confidential documents electronically, whether via email or fax. 3. Advertise and maintain a schedule for cleaning the shared telephones, video teleconference rooms, law library, and library.
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4. Provide persons detained with sufficient gloves, masks, as well as antibacterial wipes and hand sanitizer, such that immigrants may safely access counsel through VTC or legal calls without further risk of exposure to the virus.
5. Make all of the above relief available to detained immigrants who are quarantined.

________________ Date

_________________________ COLLEEN KOLLAR-KOTELLY United States District Judge

3

 
 Case 1:18-cv-00760-CKK-RMM Document 112 Filed 05/17/20 Page 1 of 51

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SOUTHERN POVERTY LAW CENTER, Plaintiff,
v. U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants.

) ) ) ) ) Civil Action No. 1:18-cv-0760-CKK ) ) ) ) ) ) )

DEFENDANTS’ CORRECTED OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER

1

Case 1:18-cv-00760-CKK-RMM Document 112 Filed 05/17/20 Page 2 of 51
TABLE OF AUTHORITIES
Cases
A.S.M. v. Donahue, (CDL), 2020 U.S. Dist. LEXIS 65226 (M.D. Ga. Apr. 10, 2020) ......................................... 44
Alvarez v. Sessions, 338 F. Supp. 3d 1042 (N.D. Cal. 2018) .................................................................................. 35
Am. Immigration Lawyers Ass’n v. Reno (AILA), 199 F.3d 1352 (D.C. Cir. 2000) ......................................................................... 32, 33
Am. Soc’y for Prevention of Cruelty to Animals v. Feld Entm't, Inc., 659 F.3d 13 (D.C. Cir. 2011) .................................................................................................. 30
Arroyo v. DHS, 2019 WL 2912848 (C.D. Cal. June 20, 2019) ........................................................................ 35
Avilez v. Barr, 2020 WL 570987 (N.D. Cal. Feb. 5, 2020) ...................................................................... 35-36
Baz v. Dep’t of Homeland Sec., 2019 WL 5102827 (D.D.C. Oct. 11, 2019) ............................................................................ 30
*Biwot v. Gonzalez, 403 F.3d 1094 (9th Cir. 2005) ......................................................................................... passim
Block v. Community Nutrition Institute, 467 U.S. 340 (1984) ............................................................................................................... 37
Castro-O’Ryan v. U.S. Dep’t of Immigration and Naturalization, 847 F.2d 1307–13 (9th Cir. 1987) .......................................................................................... 39
CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738 (D.C. Cir. 1995) .................................................................................................. 29
Dearth v. Holder, 641 F.3d 499 (D.C. Cir. 2011) ................................................................................................ 30
Dia v. Ashcroft, 353 F.3d 228 (3d Cir. 2003) (en banc) ................................................................................... 38
Econ. Research Servs. v. Resolution Econ., LLC, 140 F. Supp. 3d 47 (D.D.C. 2015) .................................................................................... 49, 50
Erickson v. Pardus, 551 U.S. 89 (2007) ................................................................................................................. 51
Fifth Amendment. Brown v. Grabowski, 922 F.2d 1097 (3d Cir. 1990) ................................................................................................. 43
2

Case 1:18-cv-00760-CKK-RMM Document 112 Filed 05/17/20 Page 3 of 51
Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905 (D.C. Cir. 2015) ................................................................................................ 31
Gomez v. Kelly, 237 F. Supp. 3d 13 (D.D.C. 2017) .......................................................................................... 29
Gonzalez v. INS, 82 F.3d 903 (9th Cir. 1996) .................................................................................................... 38
Haitian Refugee Ctr. v. Gracey, 809 F.2d 794–10 (D.C. Cir. 1987) .......................................................................................... 33
In re U.S. Office of Pers. Mgmt. Data Sec. Breach Litig., 928 F.3d 42 (D.C. Cir. 2019) .................................................................................................. 30
INS v. Lopez- Mendoza, 468 U.S. 1032 (1984) ............................................................................................................. 38
J.E.F.M. v. Lynch, 837 F.3d 1026 (9th Cir. 2016) ...................................................................................... 8, 34, 35
*Jennings v. Rodriguez, 138 S. Ct. 830 (2018) .................................................................................................. 34, 36, 37
Koller By and Through Koller v. Richardson-Merrell, Inc., 737 F.2d 1038 (D.C. Cir. 1984) ........................................................................................ 37-38
Kowalski v. Tesmer, 543 U.S. 125 (2004) ......................................................................................................... 32, 33
*Lewis v. Casey, 518 U.S. 343 (1996) ......................................................................................................... 43, 45
Maldonado-Perez v. INS, 865 F.2d 328 (D.C. Cir. 1989) ................................................................................................ 38
Martinez v. Napolitano, 704 F.3d 620 (9th Cir. 2012) .................................................................................................. 35
Montes-Lopez v. Holder, 694 F.3d 1085–90 (9th Cir. 2012) .......................................................................................... 39
Movimiento Democracia, Inc. v. Johnson, 193 F. Supp. 3d 1353 (S.D. Fla. 2016) ................................................................................... 32
Munaf v. Geren, 553 U.S. 674 (2008) ............................................................................................................... 34
*National Immigration Project of National Lawyers Guild v. Executive Office of Immigration Review,
No. 20-082, 2020 WL 2026971 (D.D.C. Apr. 28, 2020) ............................................... passim
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Case 1:18-cv-00760-CKK-RMM Document 112 Filed 05/17/20 Page 4 of 51
Innovation Law Lab v. Nielsen 310 F. Supp. 3d 1150 (D. Or. 2018) ....................................................................................... 36
Oviedo v. Wash. Metro. Area Transit Auth., 948 F.3d 386 (D.C. Cir. 2020) ................................................................................................ 51
P.L. v. ICE, No. 19-cv-1336, 2019 WL 2568648 (S.D.N.Y. June 21, 2019) .................................................................. 35, 37
Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017) ............................................................................................................ 32
Skorusa v. Gonzales, 482 F.3d 939 (7th Cir. 2007) .................................................................................................. 38
Spann v. Colonial Vill., Inc., 899 F.2d 24 (D.C. Cir. 1990) ............................................................................................ 31-32
Swain v. Junior, --- F.3d --- .......................................................................................................................... 46, 48
Valentine v. Collier, No. 20-20207, 2020 U.S. App. LEXIS 12941 (5th Cir. Apr. 22, 2020) ................................................... 45-46
Vetcher v. Sessions, 316 F. Supp. 3d 70 (D.D.C. 2018) ...................................................................................... 8, 35
Williams v. Lew, 819 F.3d 466 (D.C. Cir. 2016) ................................................................................................ 30
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) ................................................................................................................... 29
Statutes 8 U.S.C. § 1226 ............................................................................................................................ 51 8 U.S.C. § 1252 ............................................................................................................ 8, 34, 36, 37 8 U.S.C. § 1362 ................................................................................................................ 35, 38, 42 8 U.S.C. § 1252 .................................................................................................................... passim
Other 8 C.F.R. § 236.1 ........................................................................................................................... 51 Fed. R. Civ. P. 65 ......................................................................................................................... 51
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INTRODUCTION The Court should deny Plaintiff Southern Poverty Law Center’s (“Plaintiff’s” or “SPLC’s”) extraordinary request for this Court to broadly interfere in and assume oversight over the immigration-detention system, despite the laws enacted by Congress. The federal government is responding expeditiously to address the challenges presented by COVID-19. That comprehensive response includes tailored and effective measures taken by Defendants the United States Department of Homeland Security (“DHS”) and United States Immigration and Customs Enforcement (“ICE”) over the four immigration detention facilities at issue in this litigation. ICE “is taking necessary and prompt measures” to curb the spread of COVID-19 while still permitting robust access to counsel and ensuring the safety of staff, detainees, and legal representatives. Exhibit COVID-19 Pandemic Response Requirements (ICE Pandemic Response) 1; Decl. of Russell Hott, Acting Asst. Director of ICE’s Custody Management Division ¶¶ 19–30. Federal Defendants have implemented COVID-19 protocols necessary to reduce the risk of spreading the virus, which include mandatory use of personal protective equipment (“PPE”) for attorney visits. (Bretz Decl. ¶ 17; First Washburn Decl. ¶¶ 20-22). Additionally, Defendants have expanded hours for video teleconferencing (“VTC”) attorney-client visits. E.g., Washburn Decl. ¶¶ 23. These necessary pandemic-related accommodations, among others, exist to protect ICE detainees, non-ICE inmates, governmental and contractor staff, visitors, and the public. Id. ¶ 6. The changes do not impermissibly interfere with access to counsel, but instead exceed the Performance-Based National Detention Standards (“PBNDS”) 2008 and 2011 (revised 2016) that apply to Service Processing Centers (“SPCs”), Contract Detention Facilities (“CDFs”) and
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state and local government facilities used by ICE Enforcement and Removal Operations (“ERO”) via Intergovernmental Service Agreements (“IGSAs”). Schriro Decl. ¶ 14.
As a threshold matter, the Court does not have jurisdiction to grant Plaintiff’s TRO. Plaintiff lacks a “legally protected interest” as an organization of members that have been impinged upon and that the relief it seeks is likely to redress its alleged injuries. Further, this Court lacks jurisdiction over all claims because the Immigration and Nationality Act (“INA”) requires “all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien from the United States” to be reviewed exclusively in federal courts of appeals—not district courts—after exhausting administrative proceedings, 8 U.S.C. §§ 1252(b)(9), 1252(a)(5), including Plaintiff’s “policies and practices challenges,” right-to-counsel claims, and procedural-due-process challenges, J.E.F.M. v. Lynch, 837 F.3d 1026, 1029, 1033, 1035 (9th Cir. 2016); National Immigration Project of National Lawyers Guild v. Executive Office of Immigration Review, No. 20-082, 2020 WL 2026971 (D.D.C. Apr. 28, 2020) (“NIPNLG”); Vetcher v. Sessions, 316 F. Supp. 3d 70, 76 (D.D.C. 2018). Further, Congress has prohibited this Court from granting Plaintiff’s requested injunctive relief against the operation of statutes governing removal proceedings and alien detention. See 8 U.S.C. § 1252(f)(1) (“Limit on Injunctive Relief”).
Even if this Court possesses jurisdiction, it should still deny a TRO because all injunctive factors favor the government. First, Plaintiff provides no basis to hamstring Defendants’ abilities to respond to the evolving public health crisis. Plaintiff fails to explain how ICE’s diseaseprevention or attorney-access protocols are “tantamount to denial of counsel.” Biwot v. Gonzalez, 403 F.3d 1094, 1098 (9th Cir. 2005). Plaintiff does not point to “the actual substance of the hearing[s],” Lara-Torres v. Ashcroft, 383 F.3d 968, 973 (9th Cir. 2004), to determine whether
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there was a prejudicial violation to detainee non-parties to this litigation. Second, Plaintiff’s speculative claims of future injury do not outweigh the public interest in retaining ICE’s flexibility to respond to changing circumstances. Consistent with the recent decision within this jurisdiction in NIPNLG, 2020 WL 2026971, at *1, Plaintiff cannot show that the four factors for an injunction weigh in its favor and the TRO should be denied.
FACTUAL BACKGROUND I. THE FACILITIES AND THE PBNDS
The PBNDS 2011 reflects ICE’s “ongoing effort to tailor the conditions of immigration detention to its unique purpose.” PBNDS Preface. Accordingly, the PBNDS 2011 are crafted to “improve medical and mental health services, increase access to legal services and religious opportunities, improve communication with detainees with no or limited English proficiency, improve the process for reporting and responding to complaints, and increase recreation and visitation.” Id. The PBNDS 2011 are also drafted to “include a range of compliance, from minimal to optimal,” in order to apply the standards widely and provide “the groundwork for future changes.” Id. To further these goals, the PBNDS covers a variety of topics including safety, security, care, activities, and justice. Id.
Concerning mail, the PBNDS requires each facility “shall have written policy and procedures concerning detainee correspondence and other mail.” PBNDS 5.1(V)(A). The quantity of correspondence a detainee may receive or send at his/her own expense shall not be limited pursuant to the PBNDS, and indigent detainees “shall” be permitted to post an unlimited amount of legal mail, at government expense. Id. 5.1(V)(B). The PBNDS further provides that Staff shall “neither read nor copy special correspondence or legal mail,” and its inspection shall be limited. Id. 5.1(V)(F)-(G).
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Regarding telephone access, the 2011 PBNDS provides that “each facility shall provide at least one operable telephone for every 25 detainees.” PBNDS 5.6(V)(A)(1). Further, facilities are strongly encouraged to operate “at the optimal level” with “at least one telephone is provided for every ten (10) detainees.” Id. Each facility is also required to maintain detainee telephones in proper working order, including designating facility staff to inspect the telephones daily, and promptly report out-of-order telephones to the repair service so that required repairs are completed quickly. Id. 5.6(I)-(II). Importantly, the PBNDS does not require facilities to provide wireless and/or internet based communications, but encourages facilities to explore the use of such technology. Id. 5.6(V)(A)(2). Additionally, each facility administrator shall establish and oversee “rules and procedures that provide detainees reasonable and equitable access to telephones during established facility ‘waking hours’ (excluding the hours between lights-out and the morning resumption of scheduled activities).” Id. 5.6(V)(D). In order to maximize access and meet detainee demand, the PBNDS permits facilities to implement “rules and procedures [that] may include, but are not limited to, reasonable limitations on the duration and the number of calls per detainee, the use of predetermined time-blocks and institution of an advanced sign-up system.” Id. 5.6(V)(D). Facilities, however, have the authority to limit or restrict telephone access to prevent interference with counts, meals, scheduled detainee movements, court schedules, or “other events constituting the orderly operation of the facility.” Id. 5.6(V)(D)(3).
Finally, concerning legal calls, the PBNDS provides a facility may neither restrict the number of calls a detainee places to legal representatives, “nor limit the duration of such calls by rule or automatic cut-off, unless necessary for security purposes or to maintain orderly and fair access to telephones.” PBNDS 5.6(V)(F)(1) (emphasis added). Specifically, if time limits are necessary for such calls, the PBNDS states “they shall be no shorter than 20 minutes, and the
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detainee shall be allowed to continue the call at the first available opportunity, if desired.” Id. A facility may also place reasonable restrictions on “the hours, frequency and duration of such direct and/or free calls” but may not otherwise limit a detainee’s attempt to obtain legal representation. Id.
In contracts post-dating the creation of the PBNDS, the PBNDS are incorporated by reference into the IGSAs with the individual facilities. In IGSAs pre-dating the PBNDS of 2011, the PBNDS of either 2008 or 2000 may be incorporated. In contracts pre-dating 2008, the National Detention Standards (“NDS”) of 2000 is incorporated. At a minimum, all facilities adhere to the NDS of 2000. Detention Management, U.S. Immigration & Customs Enforcement (last updated May 7, 2020) (https://www.ice.gov/detention-management) (“Through an aggressive inspections program, ICE ensures its facilities follow ICE’s National Detention Standards (NDS). ERO’s Detention Standards Compliance Unit ensures that detainees in ICE custody reside in safe, secure and humane environments and under appropriate conditions of confinement.”). ICE conducts annual compliance audits to ensure that the applicable standards are met. E.g., Fourth Washburn Decl. ¶ 4. The 2011 PBNDS apply at Stewart Detention Center (“Stewart” or “SDC”) in Lumpkin, Georgia, LaSalle Ice Processing Center (“LaSalle”) in Jena Louisiana, and Pine Prairie ICE Processing Center (“PPIPC”) in Pine Prairie, Louisiana, and the 2002 PBNDS, applies to Irwin County Detention Center (“Irwin” or ICDC”) in Ocilla, Georgia. E.g., Schriro Decl. ¶ 14. II. COVID-19 AND THE FACILITIES
President Trump declared the COVID-19 outbreak a national emergency on March 13, 2020, and his Coronavirus Task Force and the Centers for Disease Control and Prevention (CDC) have issued guidance to slow the spread of the disease. See Declaring a National
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Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak, Proclamation No. 9994, 85 Fed. Reg. 15,337, 15,337–38 (Mar. 13, 2020). In response to the global pandemic, Defendants instituted changes at the facilities to protect detainees, staff, and the public. A. Stewart Detention Center
Defendant ICE contracts with CoreCivic, Inc. (“CoreCivic”), which administers and manages Stewart. Fourth Declaration of Warden Washburn at ¶ 4 (“Fourth Washburn Decl.”).1 Stewart Detention Center is a dedicated IGSA facility, and is subject to annual compliance audits relating to its compliance with the 2011 PBNDS. Auditors who inspected Stewart in 2017, 2018, and 2019, found the facility met 39 of the standards, and that three additional standards, relating to transportation, escorted trips for non-medical emergencies, and medical care (women) have been rated “Not Applicable.” Fourth Washburn Decl. ¶ 6. No deficiencies have been noted with respect to the operation of the detainee telephone system, visitation, or legal access. Id.
ICE and CoreCivic personnel have taken numerous steps to protect those in custody, staff, visitors, and the public during the pandemic. First Washburn Decl. ¶ 6. This includes releasing a large percentage of detainees from custody. While Stewart has design capacity of 2,040 ICE detainees (Second Washburn Decl. ¶ 5), as of 9:00am on May 15, 2020, Stewart's detainee population is 1,129. This number is a decline from the 1,681detainees who were housed at Stewart on March 18, 2020, to promote social distancing and separation during the COVID-19 global pandemic. Moten Decl. ¶ 19; see also Sanchez Martinez Decl. ¶ 1 (noting release on April 16).
1 Defendants serialize the declarations of each individual chronologically for ease of reference throughout, regardless of whether first entered in this case or a separate litigation.
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Vulnerable detainees are placed in protective cohorts. First Washburn Decl. ¶ 11. The purpose of this protective cohort is to limit contact between these vulnerable detainees and the general population in the event that any detainee at SDC is infected by COVID-19. Id. ¶ 12. These restricted units are in a protective area, essentially the opposite of a containment area, with the express objective of keeping the space free of COVID-19 virus. Id. These units have a dedicated cadre of nurses, providers and security staff, which minimizes the risk of transmission of the virus from other parts of the facility into that protective area. Id.
Stewart has also implemented a daily COVID-19 checklist. Daily responsibilities are assigned to the Warden (or the Administrative Duty Officer); each Shift Supervisor (or designed Assistant Shift Supervisor); Unit Manager; Safety Manager; Health Services Administrator; contracted Food Service Manager; and Quality Assurance Manager. Id. ¶ 13. The purpose of this checklist is to make sure that each of those facility supervisors is timely aware of new developments; is speaking with staff and detainees about following appropriate precautions; encouraging staff and detainees to seek medical care if they feel ill or show signs of illness; monitoring staff and detainees for signs of illness; engaging in ongoing education efforts with staff and detainees; verifying ample supplies of appropriate materials; and, conducting sanitation inspections on a daily basis in their delegated area of responsibility. Id.
The inventory of Stewart sanitation supplies is checked and restocked daily to maintain a sufficient supply on hand, particularly if additional shortages occur in the public market. Id. ¶ 44. Hand sanitizer units have been installed in all units and throughout SDC. Id. ¶ 45. Sanitary wipes have been made available in all units and throughout SDC, and are available to detainees. Id. ¶ 46. During town hall meetings, detainees have been instructed how to safely sanitize common area surfaces they may come into contact with during the day—such as detainee
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telephones and kiosks—before and after use. Id. ¶ 47. Pump dispensers for HDQ Neutral, a multi-purpose disinfecting antibiotic and antiviral cleaning solution, have been installed in SDC areas for use by individual detainees as well as Voluntary Work Program participants. Id. ¶ 48. Sani-T-10 has been procured and issued to the kitchen for sanitation of areas where food contact may occur. Id. ¶ 49. SDC continues its practice of issuing hygiene products to detainees twice weekly. Issued hygiene products include soap, toothpaste, shampoo, lotion and toilet paper. While soap is now available throughout the day, if any detainee has a need for any of the other items between distributions, they may receive a replacement by exchanging their empty shampoo bottle, toothpaste tube, toilet paper roll, etc. for a full replacement. First Washburn Decl. ¶ 50.
All attorneys, as well as CoreCivic staff, facility contractors, ICE, immigration court personnel, and detainee intakes are screened for symptoms of COVID-19 prior to being permitted entrance to Stewart. Id. ¶ 16. That includes completion of a screening questionnaire and a temperature check in accordance with the CDC Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities. Id; see Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, U.S. Centers for Disease Control. The screening area has been set up outside of Stewart. First Washburn Decl. ¶ 17. If the initial health screening is inconclusive, medical staff is responsible for making any final determination on screening. Id. If screening shows an individual may be at risk, they are denied entry, and instructed either to remain at home for a specified quarantine period, or to consult and obtain clearance from their medical provider before they will be admitted to the facility. Id. ¶ 16-22. The medical screening questionnaire has been updated based on new and emerging guidance from the CDC. Fourth Washburn Decl. ¶ 29.
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Attorney visitors at Stewart are required to bring their own PPE (and may also bring sanitizing wipes) if making an in-person legal visit. Id. ¶ 31; First Washburn Decl. ¶ 20. However, if an attorney visitor does not have PPE, Stewart offers it to them free of charge. Fourth Washburn Decl. ¶ 32. In-person attorney visits at Stewart occur in secure visitation areas, with a secure divider between the detainee and attorney visitor. Id. ¶ 21. Visitation staff sanitizes legal visitation areas before and after each legal visit. Id. ¶ 33. This includes, but is not limited to, wiping down chairs, tables, phones, and other surfaces and equipment using disinfectant. Id.
If attorneys choose not to visit in person, they may have confidential communications with detainees either through the detainee telephone system or through the VTC systems. Id. ¶ 60. In late March 2020, the available hours were expanded and visits may now be scheduled between 8:00 am and 6:00 pm, on Monday through Friday. Id. at ¶ 62. This schedule permits up to 100 VTC legal visits to be conducted at Stewart each week. Id. Attorney VTC visits are scheduled on a first-come, first-served basis, in 60-minute blocks. Id. ¶ 62. Attorneys are not limited on the number of VTC appointments they can request, but no attorney is permitted more than one 60-minute appointment with any one detainee on any single calendar day. Id. ¶ 64. The purpose of the 60-minute per appointment slot is to ensure that attorneys and detainees with later appointments the same day, are permitted to begin on schedule. Id. This is consistent with the PBNDS’s instruction that limits may be imposed to “maintain orderly and fair access to” telecommunications. PBNDS 5.6(V)(F)(1). Attorneys who anticipate a need for longer consultation are permitted to schedule multiple visits with a single detainee on consecutive days. Fourth Washburn Decl. ¶ 64. Between March 30, 2020, and May 1, 2020, typically 25-30 VTC appointments were available but not reserved for an attorney visit in any given week. Id. ¶ 68. Stewart does not unilaterally cancel attorney VTC calls, but appointments may be frustrated
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include when a detainee refuses to attend the appointment, or when the detainee was discharged. Id.¶ 73. VTC equipment is not handled by detainees, but by staff. Id. ¶ 72. Staff-exclusive handling of the equipment helps ensure that the equipment remains in good working order, but also reduces a potential means of transmission of infectious diseases, such as COVID-19. Id.
Stewart has a total of 214 detainee telephones in the housing areas, which detainees may use to call counsel. Fourth Washburn Decl. ¶ 41. At capacity, the detainee-to-phone ratio is 9.53 detainees per telephone. Id. At Stewart’s current population of 1,060 as of May 11, 2020, the detainee-to-phone ratio is 4.95 detainees per telephone. Id. At the current rate, this is five times more access than what the PBNDS demands. PBNDS at 386 (“each facility shall provide at least one operable telephone for every 25 detainees”). At full capacity, Stewart’s ratio of 1 telephone to every 9.53 detainees is substantially compliant with the higher “optimal” standards, and far exceeds the minimum requirements of the PBNDS. Id. Detainees have been provided with instructions and sanitizing wipes, and are encouraged to sanitize each hard surface in common areas, including detainee telephones and kiosks. Fourth Washburn Decl. ¶ 50. This is in addition to the enhanced cleaning and sanitation that is occurring at Stewart, requires all housing units and common facility areas are cleaned with a bleach solution every other day. Id. ¶ 25.
Starting on April 24, 2020, Stewart also implemented a new process to facilitate legal calls between detainees and their counsel. Fourth Washburn Decl. ¶ 56. Under this procedure, the attorney contacts the facility, calling the Warden’s Secretary during normal business hours, 7:00 am to 3:00 pm, Monday-Friday, and schedule a time. Id. At the appointed time, the detainee is taken to the Unit Manager’s Office at the facility, and is placed on the phone with the attorney. Id. ¶ 57. Although detainees are neither heard nor recorded, they must be visually observed during the call to protect confidential records present in those offices. Id.
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Regarding legal mail that is clearly marked, it is delivered unopened by facility staff to the detainee. Id. ¶ 75. In the presence of the detainee, staff will open the envelope to ensure that it does not contain contraband, and give the communication to the detainee. Id. Detainees may similarly seal clearly marked legal mail and deposit it in the facility mail, where it will not be opened by facility staff. Id.
B. Irwin County Correctional Facility Irwin County Detention Facility is owned and operated by LaSalle Corrections
Management, LLC.2 Second Paulk Decl. ¶ 5. LaSalle Corrections Management, LLC is the service provider under an IGSA between Irwin County Detention Facility and ICE. Id. As of May 15, 2020, Irwin’s current ICE detained population is 497 detainees with a capacity of approximately 920 ICE detainees. Declaration of Patrick Musante (“Musante Decl.”) ¶ 18. This number is a decline from the 615 ICE detainees who were housed at Irwin on March 18, 2020, to promote social distancing and separation during the COVID-19 global pandemic. Id. Irwin’s management provides ongoing guidance and instruction to Irwin, in accordance with and consistent with recommendations of the CDC and its governmental partners, as well as state and local health authorities where its facilities are located. As additional recommendations are promulgated, and in consideration of local health conditions, practices to prevent the spread of COVID-19 while ensuring that detainees have adequate access to confidential communications with their attorneys at ICDC have evolved, and changes occur often to accommodate the developing situation. Id. ¶ 6.
2 Irwin County Detention Facility is managed by LaSalle Corrections Management LLC. Warden Paulk’s declaration uses the moniker “LaSalle” throughout his declaration, not to be confused with the LaSalle ICE Processing Facility. Defendants will refer only to Irwin for purposes of clarity, though Irwin takes instruction from the parent corporation.
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On April 13, 2020, pursuant to CDC guidelines and directives, Irwin temporarily prohibited in-person visitation to prevent the risk of COVID-19 introduction, with the exception of in-person attorney visitation. Id. ¶ 8. At that time, attorneys were to provide their own PPE. Id. Since April 14, 2020, pursuant to CDC guidelines, Irwin required that visits take place in a non-contact visitation room. Id. ¶¶ 8-9. Attorneys are required to use a mask during in-person visitation; if they do not bring their own, Irwin has provided one. Id. ¶ 9.
Non-contact visitation rooms—which are thoroughly cleaned and sanitized with disinfectant between each visitation, both on the visitor side and the detainee side (id. ¶ 15)—are separate, secure visitation rooms where attorneys and detainees are entirely separated by a divider, and there is no opportunity or potential for the two communicants to come into physical contact with one another. Id. ¶ 10. Irwin nonetheless provides a mask to any attorney who does not bring his/her own, while maintaining a sufficient supply on hand. Id. ¶¶ 10-11. Because it is impossible for the attorney and detainee to have physical contact in a non-contact visitation room, Irwin considers the use of a mask to be sufficient PPE for these encounters, per CDC guidelines. Id. ¶ 10. Additionally, all entrants are screened prior to entry to Irwin; this screening includes a temperature check and completion of a medical questionnaire, which is updated from time to time to account for evolutions in CDC guidance. Id. ¶ 12. This practice has been employed since the pandemic’s inception. Id. Irwin also employs social distancing recommendations, and Irwin staff who escort detainees to in-person attorney visits wear personal protective equipment, including masks and gloves. Id. ¶¶ 13-14.
Non-contact visitation rooms are each separate rooms with a closing door that allows for complete and total privacy between the visiting attorney and detainee. Id. ¶ 16. Irwin staff have been trained and instructed not to enter a non-visitation room during a visit unless summoned or
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to inquire as to whether the visit is ongoing. This instruction is enforced to ensure privacy and confidentiality for the attorney and detainee. Id. Cleaning of both sides of the non-contact rooms occurs between visits. Id. ¶ 15.
Irwin also provides for confidential communications with detainees through VTC devices. Id. ¶ 18. Irwin has worked to ensure that detainees have adequate access to these devices, and currently maintains four fully-operational VTC devices for the specific purpose of legal visitation. Each device is located in a secure, separate room with a closing door to ensure privacy for the VTC meeting, which are not recorded or monitored. Id. ¶ 17.
During the pandemic, Irwin’s VTC devices have remained fully-operational. Id. ¶ 19. Attorneys may make appointments for VTC calls with detainees by calling or emailing the Inmates’ Services Department. Id. ¶ 28. Irwin employs one full-time clerk to manage attorney scheduling for VTC calls, and maintains a separate email and phone line specifically for attorney communication requests. Id. Similarly, detainees may request a VTC appointment either by written request or via a tablet device. Id. ¶ 38. These requests are reviewed daily, and Irwin responds within twenty-four (24) hours to each detainee request and works to coordinate an appointment. Id. In the majority of circumstances, Irwin typically responds within twenty-four (24) hours to attorney appointment requests to schedule the appointment. Id. ¶ 28. While Irwin strives to meet an attorney’s first preference for appointment time, Irwin offers alternative appointments if the first preference is unavailable. Id. ¶ 29. An appointment-based system ensures equal access for detainees, and appointments are typically scheduled between 9:00 a.m.– 4:00 p.m., Monday through Friday, but this time can be and has been expanded when increased need arises. Id. ¶¶ 27-28. There is a one-hour time limitation, but requests for additional time are routinely accommodated. Id. ¶ 30. If an attorney notifies Irwin that an expedited or emergency
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VTC appointment with a detainee is necessary, Irwin works diligently to schedule that appointment, going so far as to schedule appointments for the same day as the request if necessary. Id. ¶ 35. Such emergency requests are routed to the attention of the Inmate Services Administrator, who quickly handles the accommodation of such requests. Id.
Detainees are escorted to their VTC calls by PPE-clad staff. Id. ¶ 22. Two full-time staff members oversee VTC communications, and are trained to rectify any technical, maintenance, or operational problems with VTC devices quickly. Id. ¶ 19, 21. Four court officers assist staff as necessary. Id. ¶ 19. As in Stewart (Fourth Washburn Decl. ¶ 72), Irwin has developed a touchfree system for these devices, and VTC devices are disinfected between each call by one of the two full-time staff members. Second Paulk Decl. ¶ 19-20. The VTC calls take place in a closed room, and only one detainee is allowed in the room during their scheduled call time and during the pendency of the call, ensuring confidentiality. Id. ¶ 22. An Irwin staff member is placed outside of the entrance to the VTC room to protect the privacy of the communications. Id.
ICDC receives many requests for attorney VTC calls, and it maintains a regimented schedule for calls so that all detainees can adequately experience confidential access to their attorney(s). Id. ¶ 23. While it is occasionally necessary for Irwin staff enter the VTC room for the limited purposed of inquiring whether the call is ongoing, Irwin staff are careful not to abruptly cut-off an ongoing legal call. Id. Further, Irwin offers additional guidance to make sure that detainees are fully informed about the process of exercising their legal rights by providing three Irwin full-time case managers who are available to detainees to answer questions regarding VTC communications. Id. ¶ 37. Two to three Irwin staff members also conduct walk-throughs of each housing unit once every week day. Id. Finally, an Irwin officer is stationed in each housing
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unit all day, every day. Id. These officers are fully trained and educated regarding confidential attorney communications, and they are available to detainees to answer questions. Id.
Telephones are also readily available at Irwin. There are 89 telephones available at Irwin: one in the library; forty among the ten open dormitory units, and forty-eight among the sixteen closed cell units. Id. ¶¶ 49-52. Telephones are available on Sunday through Thursday from 5:00a.m. to 11:00p.m., and on Friday and Saturday from 5:00a.m. to 1:00a.m. Id. ¶ 53.
Irwin works to ensure that detainees and attorneys can sufficiently communicate via mail sent through the U.S. Postal Services, FedEx, UPS, and other delivery services. Id. ¶ 54. Legal mail is taken directly to the detainee in his or her housing unit daily upon arrival. Id. The mail is then opened in front of the detainee, and the Irwin staff member completes a cursory check for contraband in front of the detainee, maintaining extreme care in protecting the confidentiality of the mail and in not examining the communications therein. Id. Detainees can send confidential legal mail to their attorney by securing postage supplies from the commissary, assembling mail, and providing it to Irwin’s outgoing mail service. Id. ¶ 55. Attorneys can send pre-stamped envelopes to detainees that detainees can use to provide information; this mail is treated like all other legal mail, and provided to the detainee in the housing unit daily upon arrival. Id. ¶ 57.
Irwin additionally works to ensure that detainees have adequate access to a facsimile machine to send documents and information to their attorneys. Id. ¶ 59. Irwin makes an announcement to the entire facility every day notifying detainees that ICDC staff will come to each housing unit to pick up materials to be faxed, and of the time that this collection will occur. Id. ¶ 59. Irwin staff have been fully trained and educated regarding the confidentiality of faxed materials to attorneys, and use extreme care in maintaining the confidentiality of such documents and in not examining the communications therein when taking documents to the facsimile
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machine. Id. ¶ 60. Documents gathered from detainees are faxed daily, after which an Irwin staff member delivers a fax confirmation receipt to the detainee after the fax transmits. Id. ¶ 61. Further, Irwin disseminated a specific, designated legal fax number for use by outside attorneys to fax information to detainees, and incoming faxes from attorneys are treated like legal mail and delivered to detainees daily upon receipt. Id. ¶ 62.
C. LaSalle ICE Processing Center The GEO Group, Inc. (“GEO”), administers and opperates LaSalle, an ICE processing
center that counts with onsite health care services provided by ICE Health Services Corps medical professionals. Declaration of Facility Administrator Shad Rice (“Rice Decl.”) ¶¶ 1-6. In coordination with ICE, LaSalle has informed staff and detainees how to recognize the symptoms of COVID-19, and how to respond if symptoms develop or are observed. Id. ¶ 9. In response to the pandemic, LaSalle is operating at 58% capacity, housing 769 detainees despite capacity for up to 1,335 and a contract with ICE to house 1,160. Id. ¶ 10; Declaration of Matthew Reaves (“Reaves Decl.”) ¶ 19.
LaSalle has held town hall meetings and posted signs describing symptoms and demonstrating hand hygiene instructions for detainees. Rice Decl. ¶ 13. Additional information is also delivered to the detainees via messaging with tablets. Id. Detainees have been asked to report symptoms to staff immediately so the appropriate medical response is provided. Id. Detainees are provided with soap and are issued supplies once a week. Id. ¶ 15.
LaSalle has also implemented intensified cleaning of surfaces and objects that are frequently touched such as tables, door knobs, phones, VTC equipment, and recreation equipment. Id. ¶¶ 17-18. GEO has instructed detainees and staff to clean and disinfect shared equipment and property with frequency. Id. ¶ 17. After each use, law library, telephones, visiting
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rooms, and VTC rooms are sanitized. Id. ¶ 36. Also, LaSalle has adopted social distancing strategies including reducing trips within the facility and moving in mass from location to location. Id. ¶ 21. LaSalle has taken the step of prohibiting visitors, with the exception of legal counsel who may visit in person and confer via glass enclosures. Id. ¶ 23.
Each detainee is provided with 3 masks per week, and may request more. Rice Decl. ¶ 11. LaSalle staff must also wear protective gear including masks. Id. ¶ 24. Attorney visitors must wear eye protection and face masks, however, if they do not have PPE LaSalle will provide it without charge. Id. In person legal visitation is available from 6:00 am through 11:00 pm every day to include weekends and holidays. Id. ¶ 31.
In response to the crisis, LaSalle has increased VTC rooms available for attorney meetings to three units. Rice Decl. ¶ 30. Additionally, VTC hours have been extended to 7:00 AM to 7:00 PM, seven (7) days a week. Id. ¶ 31. Additional reasonable accommodations will also be made upon request. Id. As a special accommodation to Plaintiff, LaSalle has agreed to a special two-hour block (5:00 pm to 7:00 pm) automatically dedicated VTC machine for SPLC. Id. ¶ 34. Moreover, SPLC has access to any other available time slots between 7:00 am and 7:00 pm on all VTC machines. Id. There is no limitation to the number or frequency of legal visits other than the availability of VTC machines. Id
A detainee and their legal representative may also communicate by legal mail. Legal mail from an attorney should be clearly marked, and will be delivered unopened by facility staff to the detainee. In the presence of the detainee, staff will open the envelope to ensure that it does not contain contraband, and give the communication to the detainee. Id. ¶43. All receipt of legal mail is signed for on delivery by the detainee. Id. Detainees may similarly seal clearly-marked legal
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mail and deposit it in the facility mail, where it will not be opened by facility staff. Id. LaSalle is unaware of any issues related to the receipt or sending of legal mail. Id. D. Pine Prairie ICE Processing Center
Pine Prairie ICE Processing Center employs the CDC’s Coronavirus Disease 2019 Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) In Correctional and Detention Facilities (CDC Guidance), to educate its personnel and detainees. Declaration of Facility Administrator Eric Staiger (“Decl. Staiger”) ¶ 7. PPIPC is operating significantly below capacity in response to the pandemic. Id. ¶ 8. As of May 15, 2020, PPIPC houses only 435, but has a capacity of 730. Chambarlain Decl. ¶ 18. This number is a decline from 471 on April 13, 2020, to promote social distancing and separation during the COVID-19 global pandemic. Id.
PPIPC has posted signage that identifies symptoms of COVID-19 in multiple languages and that provide hand hygiene instructions. Staiger Decl. ¶ 15. Facility staff have described symptoms and has demonstrated hand hygiene instructions in daily briefings referred to as “town hall” meetings with detainees and asked detainees to report symptoms to staff. Id. ¶ 35. Twice a week, each detainee is provided with shampoo/body wash, tissue paper along with other hygiene products, as required and followed by facility issuance schedule, above PBNDS requirements. Id. ¶ 17. Living areas are sanitized four times per shift, and additional hygiene products are available at all times if needed. Id. Soap is readily available and available on demand. Id. ¶ 35
All detainees and staff at Pine Praire have been issued masks to reduce the likelihood of COVID-19 transmission. Staiger Decl. ¶¶ 14, 26. Attorney visitors must wear masks and gloves; if an attorney does not have PPE, masks and gloves free of charge. Id. ¶ 40. Legal representatives for the SPLC continue meet with clients at PPIPC on a frequent basis. Id. ¶ 41.
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In response to COVID-19, PPIPC has doubled the number of visitation rooms and increased the daily visitation window for both in-person visits and VTC appointments. Staiger Decl. ¶ 29. VTC is now available from 8:00am through 7:00pm during the week, and 8:00am through 2:00pm on weekends. Id. No restrictions are placed on the number of visits, or how often a legal representative can communicate with a detainee client detainee. Id. Further, all video conferences and telephone calls between detainees and their legal counsel are private and confidential and comply with PBNDS 5.6 (Telephone Access). Id. ¶¶ 30, 31. VTC connection speed has a download of 96.51 Mbps and an upload of 54.13 Mbps. Chambarlain Decl. ¶ 44. All VTC units have been tested multiple times with successful results each time. The video receptions have been clear with strong connections, clear voices, and appropriate volume. Id. There has been no identifiable echoing effect or interruption when tested. Id. To reserve a room for VTC or phone calls, a legal representative calls or emails the facility and requests a time to speak with their client. Staiger Decl. ¶ 36. There are two employees who tasked with scheduling requests who ensure that all requests are filled. Id.
Additionally, as a result of COVID-19, Detainees are provided free minutes to use the telephone to confidentiality consult with their legal representatives. Id. ¶ 38. There is no restriction on their use and are available 24 hours a day, 7 days a week in the housing units. Staiger Decl. ¶ 38. Additionally, Detainees at PPIPC are also provided access to tablets in order to communicate with their legal representation by video. Id. ¶ 37. At present, PPIPC has 166 tablets available for detainees to reach their attorneys. Id. This is a rate of 1 tablet for every 2.62 detainees. Compare id and Chambarlain Decl. ¶ 18.
Legal mail from an attorney or legal representative should be clearly marked and will be delivered unopened by facility staff to the detainee. Chambarlain Decl. ¶ 44. In the presence of
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the detainee, staff will open the envelope to ensure that it does not contain contraband and give the communication to the detainee. Id. Detainees may also seal clearly marked legal mail and deposit it in the facility mail, where it will not be opened by facility staff. Id. III. PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION
In its motion, SPLC seeks measures that are permanent, affirmative, and are not limited to the 15-day period associated with a temporary restraining order. See generally Memo. SPLC requests that the Court order a litany of actions including, but not limited to: (1) improvements to ratios for telephone and VTC equipment; (2) provide greater privacy for counsel calls, enjoin any limitation on the number and duration of legal calls or VTC; (3) require all legal calls be free of charge; (4) provide confidential telephone calls and VTC within 24 hours of the request, between 8:00 a.m. and 8:00 p.m; and (5) create and implement a system by which parole requests or custody redeterminations are decided within 7 days. See Proposed Order at ECF No. 105-11.
A. Alleged In-Person Visit Difficulty SPLC alleges that they are likely to succeed on the merits of their preliminary injunction motion because the “restrictions and conditions on legal communications during the COVID-19 pandemic deprive SPLC’s clients of their fundamental right to access crucially needed counsel during this dangerous period.” Memo at 20-21. SPLC claims that “legal visits are functionally impossible during the COVID-19 pandemic due to a variety of factors, including the high-risk of infection and the national shortage of PPE.” Id. However, SPLC acknowledges that it has access to PPE. Rivera Decl. ¶ 19. None of the declarations attached to Plaintiff’s motion claim that SPLC attorneys do not have access to PPE. See Memo. Additionally, regardless of the quantity of PPE that SPLC possesses or could acquire, in “early March” SPLC set a corporate policy to “limit in-person visits to certain circumstances.” Rivera Decl. ¶ 17.
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B. Alleged VTC & Telephonic Difficulty SPLC also makes numerous complaints concerning VTC calls, specifically alleging that “inadequate safeguards to protect detained individuals from the virus during VTC calls have forced SIFI attorneys to think twice about proceeding with remote legal visits to avoid health risks to their clients.” Memo at 12. Additionally, SPLC claims that it is entitled to a preliminary injunction because “SIFI has experienced scheduling delays at all facilities at every step of the process: delays in receiving a response to a VTC request, delays between the date requested and the date made available, delays on the day of the appointment, as well as outright cancellations.” Memo at 10. SPLC claims that delays, fuzzy connections, and scheduling mishaps violate the rights of non-parties to this suit, and SPLC entitled to relief. Id. at 10-12. In regards to phone calls, SPLC alleges that their staff have had difficulty navigating the process of setting up legal phone calls, which SPLC admits has been expanded at Stewart and PPIPC in response to the pandemic. Id. at 13. SPLC further concedes that “a new process set up at Stewart, requiring the SIFI attorney to email the warden to request the call, and the warden to confirm the time and date and then provide the attorney with a phone number.” Id. at 14. SPLC claims that an unnamed SIFI attorney has not “successfully request[ed] a facility legal call” since she started in October 2018. Id. SPLC also cites to one example of an instance when an unnamed SIFI staff member was allegedly advised by unknown GeoGroup employee to attempt to use speaker-phone rather than using the receiver to fix a connectivity issue when speaking to an unnamed detainee. Id. (citing Rivera Decl. ¶ 43). Another anonymous SPLC attorney has relied on the phones in the housing units in relation to a separate case. Id. (citing Williams Decl. ¶ 14). SPLC further alleges that, “SIFI has asked Defendants to place SIFI staff’s phone numbers on a do-not-monitor list” and that Defendants “verbally confirmed that they were able to do this
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at only three of the facilities: Stewart, LaSalle, and Pine Prairie.” Memo at 15. At Irwin, SPLC alleges that Irwin has not yet responded to the request an unnamed attorney placed two days before filing the preliminary injunction motion. Id. Finally, SPLC claims that—despite having no first-hand knowledge—“detained clients are waiting in line to use the shared telephones, [] often extremely close to one another and, because they also lack protective equipment, they are exposing themselves to the virus.” Id. (citing Venters Decl. ¶ 36). Dr. Homer Venters is a physician located in New York, and does not claim to have visited or examined any of the Facilities at issue, nor does he offer any specific testimony concerning the four facilities at issue.3 The extent of his facility-specific testimony consists of publicly posted information from the ICE website. Venters Decl. ¶ 13.
C. Alleged Difficulties with Mail & Document Exchange SPLC claims “Defendants’ COVID-19 policies on document exchange are unreasonably restrictive and make SPLC’s ability to maintain necessary contact and move expeditiously on its clients’ cases extremely and needlessly difficult.” Memo at 16. Defendants allegedly imposed this difficulty through their unwillingness to “retrieve fax [legal] documents or download electronic [legal] documents for detained individuals at the Facilities[,]” and demands judicial creation of such a system. Memo at 16, 334; but see Second Paulk Decl. ¶¶ 58-62 (explaining that Irwin already has such as system). SPLC also complains that the prohibition on stamps forces them to “to deposit funds into their clients’ accounts or break stay-at-home orders to
3 Plaintiff has excluded Dr. Venters’ CV and statement of compensation from his report. Such attachments are necessary to determine Dr. Venters’ qualifications. 4 Plaintiff has inconsistently alleged that such a practice violates confidentiality. See Second Am. Complaint at ¶ 140 (“On occasion the guards will … offer to take confidential papers from one person and deliver them to the person on the other side of the partition.”). Stewart, PPIPC, and LaSalle will not offer such service specifically because of confidentiality concerns. Fourth Washburn Decl. ¶ 80; Staiger Decl. ¶ 46; Rice Decl. ¶ 48.
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obtain prepaid envelopes that they may have success sending to facility.” Id. (emphasis in original). Although Plaintiff does not allege it has attempted to use the mail since the pandemic and suffered harm, it expresses generalized distrust of the mail. Memo. at 17-18.
D. Extraneous Alleged Difficulties & Requests for Relief Against Third Parties SPLC contends that, “Defendants have restricted SPLC’s access to the ICE official who oversees their clients’ parole requests and Fraihat custody redeterminations.” Memo at 18 (citing Rivera Decl. ¶ 56). In support, SPLC points to an isolated instance when a SIFI attorney had to resubmit a humanitarian parole request, and the response took 13 days. Id.
LEGAL STANDARD “‘A temporary restraining order is an extraordinary remedy, one that should be granted only when the moving party, by a clear showing, carries the burden of persuasion.’” NIPNLG, 2020 WL 2026971, at *5 (quoting Sibley v. Obama, 810 F. Supp. 2d 309, 310 (D.D.C. 2011)). “The standard for obtaining injunctive relief through either a temporary restraining order or a preliminary injunction is well established.” Gomez v. Kelly, 237 F. Supp. 3d 13, 14 (D.D.C. 2017). A plaintiff must establish (1) that it is likely to succeed on the merits; (2) that it is likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in its favor; and (4) that the proposed relief is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The Court “must balance the strengths of the requesting party’s arguments in each of the four required areas.” CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995). “If the arguments for one factor are particularly strong, an injunction may issue even if the arguments in other areas are rather weak.” Id.
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ARGUMENT I. PLAINTIFF LACKS STANDING
Plaintiff SPLC is the sole plaintiff in this lawsuit. Accordingly, Plaintiff must show that it has standing to litigate for the relief sought. “‘The first component of the likelihood of success on the merits prong usually examines whether the plaintiffs have standing in a given case.’” NIPNLG, 2020 WL 2026971, at *5 (quoting Barton v. District of Columbia, 131 F. Supp. 2d 236, 243 n.6 (D.D.C. 2001)). “It is well established that the ‘irreducible constitutional minimum of standing contains three elements’: (1) injury in fact; (2) causation; and (3) redressability.” Baz v. Dep’t of Homeland Sec., No. 18-cv-01013, 2019 WL 5102827, at *3 (D.D.C. Oct. 11, 2019) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). The injury-in-fact element requires an injury that is “concrete and particularized and actual or imminent, not conjectural or hypothetical.” In re U.S. Office of Pers. Mgmt. Data Sec. Breach Litig., 928 F.3d 42, 54 (D.C. Cir. 2019) (quoting Spokeo, Inc. v. Robins, ––– U.S. ––––, 136 S. Ct. 1540, 1548 (2016)). And where plaintiffs seek only prospective relief, “past injuries alone are insufficient to establish standing.” Dearth v. Holder, 641 F.3d 499, 501 (D.C. Cir. 2011). Rather, they must “establish an ongoing or future injury that is ‘certainly impending.’ ” Williams v. Lew, 819 F.3d 466, 472 (D.C. Cir. 2016) (quoting Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015)). Causation requires “that the injury is fairly traceable to the defendant’s challenged conduct.” Am. Soc’y for Prevention of Cruelty to Animals v. Feld Entm't, Inc., 659 F.3d 13, 19 (D.C. Cir. 2011) (citing Lujan, 504 U.S. at 560–61). And redressability requires that the injury can be remedied “by a favorable decision.” Arpaio, 797 F.3d at 19 (quoting Lujan, 504 U.S. at 561).
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A. Plaintiff Lacks a Cognizable Injury As an organization, no member of SPLC is detained in any of the facilities at issue. The actual movants are not the beneficiaries of a right to counsel, nor fear the adverse consequences if conditions at the facilities interfere with that right, which form the basis for this motion and its requested relief. See Memo at 4. Throughout its Motion and Memo, SPLC does not claim that any of SPLC’s substantive rights that have been invaded by Defendants’ response to COVID-19. Instead, SPLC asserts claims entirely on behalf of the rights of hypothetical and/or unnamed non-party clients. E.g., Memo at 19 (“SPLC has a substantial likelihood of succeeding on the merits of its clients’ Fifth Amendment access claims.”); 24 (“SPLC has a substantial likelihood of succeeding on the merits of its clients’ substantive due process claims.”); 28 (“Defendants’ violation of SPLC’s clients’ constitutional rights causes irreparable harm.”); 30 (“The balance of equities and the public interest weigh in favor of restraining Defendants from violating SPLC’s clients’ constitutional rights.”). SPLC does not explain why its clients cannot litigate in first party standing. Though it does not do so, SPLC may assert standing on its own behalf, organizational standing requires SPLC, “like an individual plaintiff, to show actual or threatened injury in fact that is fairly traceable to the alleged illegal action and likely to be redressed by a favorable court decision.” Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 919 (D.C. Cir. 2015). “An organization must allege more than a frustration of its purpose because frustration of an organization's objectives ‘is the type of abstract concern that does not impart standing.’” Id. (quoting Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1433 (D.C. Cir. 1995)). SPLC’s various political platforms and litigation on behalf of non-parties is insufficient to confer standing. Spann v. Colonial Vill., Inc., 899 F.2d 24, 27 (D.C. Cir. 1990) (a “setback to the
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organization's abstract social interests” is insufficient to confer standing). Similar assertions of mission-centric standing theory have been roundly rejected. E.g., Movimiento Democracia, Inc. v. Johnson, 193 F. Supp. 3d 1353, 1367 (S.D. Fla. 2016) aff’d Movimiento Democracia, Inc. v. Sec’y Dep’t of Homeland Sec., 720 F. App’x 545, 547 (11th Cir. 2017) (“If analyzed, Movimiento's failure to adequately allege an injury in fact to itself or one of its members precludes finding organizational or associational standing[.]”). For the above reasons, SPLC lacks a cognizable injury, and therefore lacks standing to petition for the relief sought in the preliminary injunction motion. NIPNLG, 2020 WL 2026971, at *7 (“An organizational plaintiff must ‘show that they have 'at least one member' who has suffered, or imminently will suffer, an injury-in-fact.’”).
B. Plaintiff’s Third Party Claim of Standing Fails To the extent that SPLC is attempting to proceed on a third-party standing theory, this should fail. Plaintiff relies entirely on alleged harms to detained aliens to justify their own standing, “a party must assert his own legal rights and cannot rest his claim to relief on the legal rights of third parties.” Sessions v. Morales-Santana, 137 S. Ct. 1678, 1689 (2017). SPLC cannot assert third-party standing based on any purported right that detained aliens have to access counsel or to challenge the impact of ICE policies on aliens. See Am. Immigration Lawyers Ass’n v. Reno (AILA), 199 F.3d 1352, 1364 (D.C. Cir. 2000) (rejecting third-party standing “to raise claims, whether statutory or constitutional, on behalf of aliens,” noting “the judicial presumption against suits seeking relief for a large and diffuse group of individuals, none of whom are party to the lawsuit”). That is especially so where Plaintiff purports to speak on behalf of not only its own unnamed clients, but also as to “potential clients” (e.g., Memo at 13) and seeks relief on behalf of all detainees at the facilities. See Kowalski v. Tesmer, 543 U.S. 125, 134 (2004). In
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particular, an attorney’s putative “future attorney-client relationship with as yet unascertained” clients is not a permissible basis for standing. Id. at 130; see Cuban Am. Bar Ass’n, Inc. v.Christopher, 43 F.3d 1412, 1422–23 (11th Cir. 1995) (legal organization lacked standing to assert alleged injury to aliens it did not represent); Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 809–10 (D.C. Cir. 1987) (similar). Organizations cannot demonstrate third-party standing based on alleged injury to “the rights of some hypothetical claimant.” Kowalski, 543 U.S. at 134 n.5.
Further, if Plaintiff has an attorney-client relationship with any alien adversely affected by the challenged policies, they can represent the alien in a first-party challenge to the policies. As SPLC’s declarations make clear, they can and have done so. Williams Decl. ¶¶ 5-6. The only detainee declaration is from a former detainee who has not one, but two sets of counsel (including SPLC) in two federal lawsuits on opposite sides of the country. Id.; Sanchez Martinez Decl. ¶¶ 1-2. An individual alien—including the only one who submits a declaration here— plainly can “protect his or her own interests.” AILA, 199 F.3d at 1358, 1362; see Kowalski, 543 U.S. at 129 (party invoking third-party standing must show that “the party asserting the right ha[d] a ‘close’ relationship with the person who possesses the right,” and “there [was] a ‘hindrance’ to the possessor’s ability to protect his own interests”). SPLC cannot earnestly claim that the litigants detained at the facilities cannot litigate as first parties, when dozens of them are currently doing so nationwide. In fact, SPLC’s own declarations state that they can and have litigated such claims on behalf of aliens in their own names. E.g., Williams Decl. ¶¶ 5-6. II. SPLC HAS NOT ESTABLISHED A LIKELIHOOD OF SUCCESS ON LACK OF
SUBJECT MATTER JURISDICTION_____________________________________ Plaintiff argues that “SPLC’s clients are unable to reliably, adequately, and confidentially communicate with attorneys who can assist them in their removal cases[.]” Memo at 23. As to removal cases, the INA divests district courts of jurisdiction to review those claims because they
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“aris[e] from” removal proceedings. 8 U.S.C. § 1252(b)(9). Therefore, those claims cannot form the basis for a preliminary injunction. See Munaf v. Geren, 553 U.S. 674, 690 (2008).
The INA states that “a petition for review filed with an appropriate court of appeals in accordance with [8 U.S.C. § 1252] shall be the sole and exclusive means for judicial review of an order of removal.” 8 U.S.C. § 1252(a)(5). The same section permits “[j]udicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States ... only in judicial review of a final order.” Id. § 1252(b)(9) (emphasis added). Through § 1252, “Congress has clearly provided that all claims—whether statutory or constitutional—that ‘aris[e] from’ immigration removal proceedings can only be brought through the petition for review process in federal courts of appeals.” J.E.F.M., 837 F.3d at 1029. Section 1252(b)(9)’s channeling provisions are “breathtaking” in scope and “vise-like” in grip, swallowing up “virtually all claims that are tied to removal proceedings.” Id. at 1031 (quoting Aguilar v. ICE, 510 F.3d 1, 9 (1st Cir. 2007)). “Taken together, § 1252(a)(5) and § 1252(b)(9) mean that any issue—whether legal or factual—arising from any removal-related activity can be reviewed only through the PFR process.” Id.; see also Jennings v. Rodriguez, 138 S. Ct. 830, 840 (2018) (§ 1252(b)(9) is a “jurisdiction bar” to challenges to “any part of the process by which [an alien’s] removability will be determined”); id. at 841 n.3 (“the question is not whether [the challenged action] is an action taken to remove an alien but whether the legal questions in this case arise from such an action” (emphases in original)). These channeling provisions include “right-to-counsel claims” and “challenges to agency policies,” J.E.F.M., 837 F.3d at 1033 and 1035 (constitutional and statutory “policies-and-practices challenges” and “right-to-counsel claims must be raised through the PFR process because they “arise from” removal
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proceedings”); Vetcher, 316 F. Supp. 3d at 76 (similar). That includes Plaintiffs’ claims that ICE’s failure to expand its video-teleconference or telephonic-hearing policies violates their statutory or due-process rights in removal proceedings. P.L. v. ICE, No. 19-cv-1336, 2019 WL 2568648, at *3 (S.D.N.Y. June 21, 2019) (“Plaintiffs’ challenge to Defendants’ VTC policy arises from ‘proceeding[s] brought to remove [undocumented immigrants] from the United States.’”).
Section 1252(b)(9) channels the claims brought on behalf of third parties against EOIR into the courts of appeals. Plaintiff, as a third party, makes a challenge on behalf of all detainees’ concerning their ability to retain or consult with counsel. See, e.g., Mot. 8–20, 30–37. But the right to counsel exists only “[i]n any removal proceedings,” 8 U.S.C. § 1362, so any challenge based on the deprivation of that right (and its attendant procedural-due-process challenge), “however it is framed,” is reviewable only as part of the review of a final removal order. Martinez v. Napolitano, 704 F.3d 620, 623 (9th Cir. 2012); see J.E.F.M., 837 F.3d at 1035 (§ 1252(b)(9) bars constitutional and statutory “right-to-counsel claims”); Aguilar, 510 F.3d at 18 (right-to counsel and procedural-due-process claims, like claims involving “difficulties in calling witnesses and in presenting evidence at the removal proceedings,” are subject to § 1252(b)(9)); Alvarez v. Sessions, 338 F. Supp. 3d 1042, 1048 (N.D. Cal. 2018) (“Petitioners’ challenge based on the potential loss of counsel ‘arises from’ their removal proceedings and can only be raised through the PFR process, as required by § 1252(a)(5) and § 1252(b)(9).”).
Plaintiff cites Arroyo v. DHS, No. 19-cv-815, 2019 WL 2912848, at *12 (C.D. Cal. June 20, 2019), to claim that § 1252(b)(9) does not apply to claims regarding an existing attorneyclient relationship. Memo 20. Section 1252(b)(9), however, applies to existing and prospective attorney-client relationships. See Avilez v. Barr, No. 2020 WL 570987, at *3 (N.D. Cal. Feb. 5,
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2020) (following Alvarez instead of Arroyo because Arroyo is inconsistent with circuit precedent and “is not persuasive”). Likewise, Plaintiff’s reliance on Innovation Law Lab v. Nielsen, 310 F. Supp. 3d 1150, 1159 (D. Or. 2018), is unavailing. There, in holding the court had jurisdiction, the court emphasized that 8 U.S.C. § 1252(b)(9) only applies to removal proceedings and the detainees had never been placed in removal proceedings or served with Notices to Appear. Id. Here, Innovation Law Lab is factually distinguishable because all detainees at the facilities that SPLC represents are in removal proceedings. Second Amend Complaint ¶ 97.
Jennings, 138 S. Ct. at 841, supports the conclusion that the Court lacks jurisdiction. In Jennings, plaintiff on behalf of a class of similarly situated individuals brought, a writ of habeas corpus, as well as declaratory and injunctive relief concerning his detention during immigration proceedings for more than six months without a bond hearing. Id. at 838-39. Plaintiff asserted constitutional and statutory claims requiring individualized bond hearings. Id. at 841. In deciding the case was not subject to the jurisdictional bar, the Supreme Court noted that plaintiff was challenging the extent of detention authority and, “[i]f that challenge fails, [plaintiffs] are then contesting the constitutionality of the entire statutory scheme under the Fifth Amendment.” Id. Thus, because the extent of the government’s detention authority is not a matter of “discretionary judgment,” “action,” or “decision,” the Supreme Court had no difficulty concluding “the statutory framework that permits [plaintiffs] detention without bail,” falls outside of the scope of the INA’s jurisdictional bars. Id. Here, unlike Jennings, Plaintiff does not challenge the extent of Defendants’ authority or any statutory or regulatory framework as a whole. Jennings, 138 S. Ct. at 841. Rather, Plaintiff’s complaints are a challenge to operational choices regarding access to counsel capabilities at the facilities that allegedly impact the removal proceedings of individual detainees. SAC ¶ 102 (“Through SIFI, Plaintiff endeavors to provide effective and ethical
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removal defense to all their detained clients.”) and Memo 31 (“A TRO would serve the public interest by ensuring the protection of SPLC’s clients’ constitutional rights and upholding the integrity of removal proceedings during the COVID-19 pandemic.”). Accordingly, the Court lacks jurisdiction to consider these claims which may only be raised in removal proceedings.
Section 1252(b)(9) also divests this Court of jurisdiction over many of SPLC’s first-party claims. “[W]hen a statute provides a detailed mechanism for judicial consideration of particular issues at the behest of particular persons, judicial review of those issues at the behest of other persons may be found to be impliedly precluded.” Block v. Community Nutrition Institute, 467 U.S. 340, 349 (1984). Congress’s decision to consolidate review of claims “arising from” removal proceedings, 8 U.S.C. § 1252(b)(9), into review of the final removal order itself bars organizations from challenging practices in removal proceedings or right-to-counsel claims in those proceedings on an individual alien’s behalf. See, e.g., ASAP, 409 F. Supp. 3d at 227 (dismissing “action for declaratory and injunctive relief brought by organizational plaintiffs”); P.L., 2019 WL 2568648, at *1 (dismissing claims brought by “Organizational Plaintiffs” who “represent” “detained immigrants in removal proceedings”). Notably, in NIPNLG, at *8-9, the district court analyzed INA 242(a)(5), (b)(9) within the context of Jennings in finding that the court lacked jurisdiction because “Plaintiffs’ access-to-counsel and due process claims arise as a ‘part of the process by which removability will be determined.’ Jennings, 138 S. Ct. 841, and this Court thus lacks jurisdiction over them.” Id. at *9. The same is true here.
III. PLAINTIFF HAS NOT SHOWN A LIKELIHOOD OF SUCCESS OR ESTABLISHED AND INJURY-IN-FACT WHERE IT FAILED TO SHOW A VIOLATION OF THE CONSITUTIONAL RIGHTS OF THIRD PARTIES
It is well-established that “there is in a civil case no constitutional right to counsel.” Koller By and Through Koller v. Richardson-Merrell, Inc., 737 F.2d 1038, 1052 (D.C. Cir.
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1984), vacated on other grounds sub nom. Richardson-Merrell, Inc. v. Koller, 472 U.S. 424 (1985); INS v. Lopez- Mendoza, 468 U.S. 1032, 1038 (1984) (“Consistent with the civil nature of the proceeding, various protections that apply in the context of a criminal trial do not apply in a deportation hearing.”). Congress, however, has provided aliens a limited right to counsel in civil removal proceedings:
In any removal proceedings before an immigration judge and in any appeal proceedings before the Attorney General from any such removal proceedings, the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose. 8 U.S.C. § 1362. This statutory right that Congress has afforded aliens in removal proceedings exceeds the minimum due-process requirement that an alien receive “some form of meaningful or fair hearing.” Maldonado-Perez v. INS, 865 F.2d 328, 32 (D.C. Cir. 1989); Dia v. Ashcroft, 353 F.3d 228, 243 (3d Cir. 2003) (en banc) (“[a]liens only have those statutory rights granted by Congress”). The non-parties’ procedural-due-process claim is thus subsumed by the non-parties’ statutory right-to counsel claim: “[A]n immigration hearing that satisfies the statutory requirements of [the INA] also satisfies the requirements of the due process clause.” Skorusa v. Gonzales, 482 F.3d 939, 943 n.1 (7th Cir. 2007). Courts have held that the statutory right to counsel in immigration proceedings is violated only where conditions are “tantamount to denial of counsel.” Biwot, 403 F.3d at 1098. Whether a denial occurred requires a backward-looking inquiry into “the actual substance of the hearing,” Lara-Torres, 383 F.3d at 973, to determine whether the proceedings were “so fundamentally unfair that [the alien] was prevented from reasonably presenting his case,” Gonzalez v. INS, 82 F.3d 903, 908 (9th Cir. 1996). And, a violation of the statute alone may not violate due process
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absent a showing of prejudice. See Castro-O’Ryan v. U.S. Dep’t of Immigration and Naturalization, 847 F.2d 1307, 1312–13 (9th Cir. 1987).
Though Plaintiff alleges various grievances—such as using the postal service, occasionally poor VTC connectivity, scheduling difficulties, delays in email responses, and a PPE requirement due to COVID-19—these allegations are of a different kind and categorically less severe than the effective denial of counsel and forced self-representation that courts have recognized as a denial of the statutory right to counsel. See, e.g., Biwot, 403 F.3d at 1096 (finding a violation of the statutory right to counsel when an immigration judge allowed an alien, “who was incarcerated and diligently seeking representation, only five working days to obtain counsel”); Montes-Lopez v. Holder, 694 F.3d 1085, 1089–90 (9th Cir. 2012) (violation where, after learning at a hearing that an alien’s counsel had been suspended from the bar, immigration judge refused to grant the alien a continuance to secure new counsel and then denied the alien’s claims for relief). And it is impossible to foretell whether Plaintiff’s allegations will have any effect on the rights of non-parties, let alone result in “substantial prejudice,” before the conclusion of proceedings. Lara- Torres, 383 F.3d at 973 (quotation marks omitted). Such a determination can be made only by scrutinizing “the actual substance of the hearing” after the fact. See id.
In support of SPLC’s motion, it submits declarations from Laura Rivera, Director of the Southeast Immigrant Freedom Initiative of the Southern Poverty Law Center (Rivera Decl. ¶ 1) and two immigration attorneys who are unaffiliated with SPLC, Benjamin Osorio and Homero Lopez. Assuming arguendo that the Lopez and Osorio declarations could be considered evidence of harm to SPLC and SPLC’s clients, neither declaration establishes that SPLC’s clients have been substantially prejudiced by the minor setbacks and inconveniences cited. As to their own
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clients, neither Osorio nor Lopez suggest that any of their clients have been effectively denied access to counsel or that they have suffered an adverse outcome in immigration proceedings because of Defendants’ COVID-19 response. See generally Osorio Decl.; Lopez Decl. Similarly, the Rivera declaration does not disclose the existence of any occasion in which any alien’s access to counsel was restricted to a point “tantamount to denial of counsel.” Biwot v. Gonzales, 403 F.3d 1094, 1100 (9th Cir. 2005). Therefore, SPLC has not shown any constitutional violations of the rights of non-party clients.
1. Plaintiff’s own Filings Reveal No Injury Related to In-Person Visits, and No Likelihood of Success on the Merits that in-person Visitation has been Unconstitutionally Restricted
Far from establishing injury occasioned by constitutionally impermissible conduct, Plaintiff’s allegations illustrate that it is experiencing the same inconveniences and unsettling that the world is facing during this crisis. SPLC alleges that Defendants’ COVID-19 response have intentionally made “in-person legal visits [] functionally impossible during the COVID-19 pandemic due to a variety of factors, including the high-risk of infection and the national shortage of PPE.” Memo 20. Plaintiff alleges that Defendants’ policies result in a “virtual elimination of in-person visits due to Defendants’ COVID-19 restrictions” which includes, namely, a PPE requirement to protect detainees. Memo 19-23. Although Plaintiff complains about “the national shortage of PPE” (Memo 23), Laura Rivera’s declaration states that SPLC has access to PPE. Rivera Decl. ¶ 19 (“SIFI had the necessary personal protective equipment to fulfill the remaining requirements.”). SPLC complains of a national shortage without once claiming that the shortage is affecting SPLC. Additionally, the declarations of the unaffiliated lawyers neither claim that they themselves do not possess PPE in spite of the claimed shortage, nor do they claim to have even attempted in-person visitation. See Osorio Decl. ¶ 8 (“Because of
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a number of factors, including local and state directives on social distancing, ICE's requirements for attorneys to procure personal protective equipment (which is in short supply), and in order to limit exposure, I proceeded with preparation for this client's individual hearing via VTC.”); Lopez Decl. ¶ 12 (“… even when visitation is allowed, it is not in the interest of myself, my client, or the public health for me to conduct the visit in person.”). Indeed, as Defendants have shown, all of the facilities make PPE freely available to counsel visiting in person with clients. Fourth Washburn Decl. ¶¶ 30-32; Rice Decl. ¶ 41; Staiger Decl. ¶ 36; Second Paulk Decl. ¶ 9; MISSING. At PPIPC, PLC continues to perform in-person legal visits without issue. Staiger Decl. ¶ 37.
Second, SPLC omits from its argument that SPLC’s own policy has limited in-person visits to “certain circumstances” since “early March.” Rivera Decl. ¶ 17 (“In early March, as reports of confirmed COVID-19 cases spread across the country, SIFI adopted guidelines for inperson client visits consistent with public health experts’ advice. To reduce the risk of transmission between SIFI staff and clients, SIFI staff were required to follow certain safety precautions, and to limit in-person visits to certain circumstances.” (emphasis added)).
Third, in addition to SPLC’s corporate policy limiting in-person visitation, SPLC cannot earnestly claim that it does not conduct in-person visits solely because of ICE’s PPE requirement. Indeed, each declaration cites a number of reasons why they have not performed inperson visits, and any PPE requirement being the least compelling of all of them. Williams Decl. ¶ 10 (“Legal visits must be remote due to ICE’s personal protective equipment (PPE) requirement for attorney visitation, the applicable shelter-in-place and stay-at-home orders, restrictions on travel, and medical vulnerabilities of members of Habeas Counsel.”); Osorio Decl. ¶ 8 (“Because of a number of factors, including local and state directives on social
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distancing, ICE's requirements for attorneys to procure personal protective equipment (which is in short supply), and in order to limit exposure, I proceeded with preparation for this client's individual hearing via VTC.”); Rivera Decl. ¶ 20 (“The combination of ICE’s PPE requirements, local and state constraints on interpersonal interactions, including shelter-in-place orders, and the recorded COVID-19 outbreaks at the four facilities, has effectively paused in-person visitation to detention centers for the foreseeable future.”). Accordingly, SPLC is unable to establish any injury from ICE’s PPE requirement, much less that ICE’s PPE requirement somehow violates a third party’s constitutional rights.
Moreover, Defendants’ PPE requirements are not only sensible, but reflect a level of flexibility. For example, at Stewart, “[a]ttorneys have visited detainees at the facility wearing surgical-type or even homemade cloth masks” and “[n]o in-person attorney visitors has been turned away for failure to bring personal protective equipment.” Fourth Washburn Decl. ¶ 4. Decisively, however, all facilities provide free PPE to legal representatives who fail to bring their own. Rice Decl. ¶ 41; Staiger Decl. ¶ 36; Second Paulk Decl. ¶ 9; Fourth Washburn Decl. ¶ 32 (subject to inventory levels). It cannot go without comment that SPLC continues in-person visits to at least one of the facilities, and could verify that PPE is freely distributed. Staiger Decl. ¶ 41. Accordingly, Plaintiff has not established any unconstitutional restriction.
2. Plaintiff’s VTC & Telephone Related Complaints do not Warrant a Preliminary Injunction
As mentioned above, SPLC has not shown that the various alleged connectivity issues, scheduling delays, and appointment mishaps warrant a preliminary injunction because Plaintiff has not shown a violation of the statutory right to access counsel or the constitutional right of access to courts. As a preliminary matter, a claim concerning “access to courts” is of a different nature than a statutory “access to counsel” claim under 8 U.S.C. § 1362, to which a Fifth
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Amendment due process interest attaches. As contrasted from the statutory right of access to counsel, the constitutional right to access courts is not so expansive that a missed VTC appointment or phone call establishes constitutional liability. Lewis v. Casey, 518 U.S. 343, 351 (1996) (“an inmate cannot establish relevant actual injury simply by establishing that his prison's law library or legal assistance program is subpar in some theoretical sense…. ‘[M]eaningful access to the courts is the touchstone,’ … and the inmate therefore must go one step further and demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim.” (citations omitted)). SPLC’s claim for standing is as weak on an “access to courts” claim as it is on a statutory “access to counsel” claim. Id. Plaintiff’s allegations of various instances of coordination failure among the facilities, unnamed attorneys (some of whom are unaffiliated with SPLC), and unnamed detainees are not only unverifiable and based on hearsay, but do not establish prejudice to any particular detainee.
Additionally, Defendants have established they comply with and exceed PBNDS requirements. In any event, the PBNDS does not form the constitutional floor, as even state statutory rights do not become constitutionalized under the Fifth Amendment. Brown v. Grabowski, 922 F.2d 1097, 1100 (3d Cir. 1990) (“Ultimately, however, plaintiff's theory that defendants violated Evans' right of access to the civil courts by failing to provide her with the assistance required by New Jersey law is not constitutionally cognizable. The constitutional right of access to the civil courts simply is not expansive enough to encompass th[ose] state statutory rights….”). However, SPLC has not shown a violation of the PBNDS, much less the constitutional rights of any non-party.
For example, while Plaintiff alleges that Defendants’ COVID-19 response “impedes” the non-party clients’ ability to access the courts (Memo 23), the only declaration from any non-
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party alien, Aristoteles Sanchez Martinez, shows that Mr. Sanchez Martinez is successfully pursuing two federal lawsuits on opposite sides of the country. Sanchez Martinez Decl. ¶ 2 (“I am a named plaintiff in Fraihat v. ICE. I am also a petitioner in Sanchez Martinez v. Donahue.”). Though Sanchez Martinez states that he “faced many obstacles trying to speak to [his] attorneys in Fraihat … and Sanchez-Martinez v. Donohue”, it is clear that he has not been impeded from pursuing his legal claims to the level of a constitutional violation.
The only concrete example SPLC provides of some adverse impact is from the Williams declaration, in which she states that on April 15, an attorney was unable to interview an anonymous potential client for potential inclusion in Sanchez Martinez v. Donahue, No. 7:20-cv00062 (M.D. Ga.) due to Irwin personnel’s failure to immediately respond to an appointment request. Williams ¶ 19. However, this does not establish that this detainee’s constitutional right of access to courts was violated. In Sanchez Martinez, SPLC’s motion for a preliminary injunction—which requested immediate unconditional release—was denied. The district court concluded that “based upon the present record, the Court does not find that the only way to remedy Petitioners' alleged constitutional violations is to release them from custody.’” A.S.M. v. Donahue, No. 7:20-CV-62 (CDL), 2020 U.S. Dist. LEXIS 65226, at *5 (M.D. Ga. Apr. 10, 2020). No relief has been accorded in that case, which is still ongoing. Notably, the Sanchez Martinez petitioners added four additional detained petitioners via an amended complaint on April 24, 2020. Amended Petition (Dkt. 20), Sanchez Martinez v. Donahue, No. 7:20-cv-00068 (M.D. Ga.). Common to many of SPLC’s claims, because the Williams declaration is vague, Defendants cannot discern whether this “potential plaintiff” (i.e., non-client detainee) was ultimately included in the litigation, or was excluded from the litigation for unrelated reasons. See Williams Decl. ¶ 19. Regardless, the fact that SPLC added detained petitioners to the
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litigation midstream is, in and of itself, evidence that SPLC has had access to detainees during the pandemic.
SPLC’s remaining list of remaining grievances concerning VTC do not rise to the level of a constitutional violation, much less such a severe violation that it requires the extraordinary relief of a preliminary injunction. For example, SPLC demands a system that involves both appointments of unlimited time and duration (Request for Relief #3), but also a system that is free of delays. See Memo, passim; Rivera Decl. ¶ 24 (complaining of delays), ¶ 25 (complaining of the one-hour time limitation). The two are mutually incompatible – a system that requires Defendants permit all attorneys to take unlimited time inevitably creates backlogs, delays, and scheduling issues. Regardless of the impracticalities of SPLC’s requested relief, it is beyond the role of the Court to involve itself in the day-to-day operations of the facilities, “[i]t is the role of courts to provide relief to claimants, in individual or class actions, who have suffered, or will imminently suffer, actual harm; it is not the role of courts, but that of the political branches, to shape the institutions of government in such fashion as to comply with the laws and the Constitution.” Lewis v. Casey, 518 U.S. 343, 349 (1996). In this specific context, the Supreme Court has opined, “it is for the political branches of the State and Federal Governments to manage prisons in such fashion that official interference with the presentation of claims will not occur.” Id. Without exception, each one of Plaintiff’s preliminary injunction requests requires close supervision of each Facility by the Court. Over Defendants’ first-hand declarations contradicting the factual allegations contained in SPLC’s anonymous double-hearsay, SPLC demands that the Court engage in micromanagement of the facilities—all of which are located outside of this district—enforceable with contempt power upon any anonymized complaint of a dropped call, poor VTC connection, or scheduling misstep. See also Valentine v. Collier, No.
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20-20207, 2020 U.S. App. LEXIS 12941, at *19 (5th Cir. Apr. 22, 2020) (“[I]t’s hard to see how an injunction that prescribes both a prisonwide testing regime and a cleaning schedule down to the half-hour interval is ‘narrowly drawn’ or the ‘least intrusive means’ available. So too with the requirement that every single sink have a sign over it with COVID-19 information. These may be salutary health measures. But that level of micromanagement, enforced upon threat of contempt, does not reflect the principles of comity commanded by the PLRA.”) (citations omitted); Swain v. Junior, --- F.3d ---, 2020 WL 2161317, at *5 (judicial intervention of detention facilities constitute “assum[ing] the role of ‘super-warden’ that our decisions repeatedly condemn.”) (citations omitted) As Swain has instructed:
[A]n “injunction hamstrings . . . officials with years of experience running correctional facilities, and the elected officials they report to, from acting with dispatch to respond to this unprecedented pandemic. They cannot respond to the rapidly evolving circumstances on the ground without first seeking a permission slip from the district court.” Id. It would be plainly unreasonable to convert every video conference with poor picture quality, any dropped phone call, or a scheduling mishap into a federal lawsuit, which would be the precise effect of the requested injunction. Moreover, while SPLC claims oversight is needed to comply with the PBNDS, much of what Plaintiff seeks is either already provided at a level greater than required by the PBNDS, or is not a PBNDS requirement. For example, SPLC ignores that the PBNDS does not require any generalized access to VTC, only access to telephones. PBNDS 5.6(G). Further, Defendants have far exceeded the PBNDS minimum requirement of 25 phones and a minimum limit of 20 minutes per legal call. Supra Factual
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Background II(A)-(D). SPLC does not hide the ball on this point: the “relief SPLC seeks [] is beyond the mere enforcement of the PBNDS[.]” Memo 33. 5
Many of SPLC’s allegations lack first-hand knowledge. For example, SPLC claims “Stewart set a weekly cap on the number of VTC calls a SIFI attorney could have with the same client” because Stewart personnel “refus[ed] counsel’s request for a two-hour session” with the same client in a single day. Memo 11. However, Stewart only has a daily limit of one hour per attorney-client pairing (Fourth Washburn Decl. ¶ 64), which is reasonable under the PBNDS to ensure that all detainees have “orderly and fair” access. PBNDS 5.6(V)(F)(1); Fourth Washburn Decl., ¶ 82. Next, SPLC claims that Stewart has not extended its VTC hours because “SIFI staff at Stewart reported on April 24 and April 27 that they were offered the same hours for VTC slots as before [the pandemic]—9am-3pm.” Memo 10-11. However, SPLC was apparently offered those slots because the slots between 4:00 pm and 7:00 pm had simply been booked on the requested dates. Fourth Washburn Decl. ¶ 63. All SPLC’s evidence shows is that there were six free hours each on April 24 and April 27 in which detainees could make appointments to speak with their attorneys, and that SPLC was offered a large selection of appointment times. Memo 10-11. Likewise, SPLC claims a SIFI attorney on April 16, was unable to speak to one of four individuals inside Stewart with whom he had scheduled VTCs and “was forced to reschedule the [noon] meeting with that individual for six days later, April 22.” Yet, as the Washburn Decl. ¶
5 SPLC misapprehends the PBNDS. E.g., Compare Memo 31 (“All Facilities were always supposed to have, for example, … legal calls unlimited in number or duration …, but simply never have.” (citing PBNDS 5.6(V)(F)(1)), with PBNDS 5.6(V)(F)(1) (“A facility may neither restrict the number of calls a detainee places to his/her legal representatives, nor limit the duration of such calls by rule or automatic cut-off, unless necessary for security purposes or to maintain orderly and fair access to telephones. If time limits are necessary …, they shall be no shorter than 20 minutes…. A facility may place reasonable restrictions on the hours, frequency and duration of such direct and/or free calls but may not otherwise limit a detainee’s attempt to obtain legal representation.” (emphasis added)).
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67 shows, there were 24 open slots between April 13-17, and it is unknown why the SIFI attorney selected to reschedule six days later. None of these claims warrant a preliminary injunction.
Next, SPLC complains that “some SIFI staff at LaSalle have moved exclusively to using legal phone calls” and while it is within SPLC’s prerogative to make that choice, SPLC omits the fact that they are given special VTC treatment at LaSalle. Rice Decl. ¶ 34. This specialized treatment includes a daily exclusive two-hour VTC window from 5:00pm-7:00pm on one of LaSalle’s VTC consoles, provided SPLC invokes its monopoly over that time-slot by 10:00 am that morning. Id. Additionally, even by SPLC’s declarations, all of the facilities currently exceed the PBNDS’s minimum 1:25 ratio of telephones to detainees, and many exceed the “optimal” ratio of 1:10. Rivera Decl. ¶ 47 (“one client detained at Irwin was in a unit that was at capacity – with 32 detained individuals in 2-person cells, and three telephones in the common area for all of them to share.” (a 1:10.67 ratio)); id. (“Another detained individual at Irwin reported that in their unit, which is an open dorm with 40-50 bunk beds, there are 6 to 7 telephones for everyone to share.” (at worst, a 1:8.3 ratio)); id. (“one client reported on April 29 that their unit, which holds 92 people, has 9 telephones but only 7 that are working.” (at worst, a 1:13 ratio)); id. (“Another individual at Stewart is in a pod with about 60 people and 8 shared telephones.” (a 1:7.5 ratio)); id. (“On April 30, a client detained at LaSalle reported that there are 8 telephones in their unit that currently has about 56 individuals, but there have been up to 88 people at various points.” (at worst, a 1:11 ratio)); id. (“On April 30, a client detained at Pine Prairie provided that his unit, while it currently has 45 people, has had up to 56-57 people in the past and all share eight telephones.” (at worst, a 1:7.125 ratio)).
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Finally, Plaintiff notes that it has “set up an internal method to allow [SPLC] to pay for these collect calls from clients at the Facilities” because—based on the allegations of anonymous member attorneys—“access to such calls is so difficult to obtain.” Memo at 14. Defendants do not agree that legal calls are difficult to obtain. Rice Decl. ¶ 37, Staiger Decl. ¶ 36; Fourth Washburn Decl. ¶¶ 55-60; Second Paulk Decl. ¶¶ 39-40. However, regardless of this factual dispute, that SPLC has established a collect-call system cuts against their claim for a preliminary injunction. If SPLC’s clients have access to SPLC through this system, SPLC’s clients have suffered no harm. If SPLC simply takes issues with the costs of their hotline, SPLC’s harm is monetary in nature, and SPLC has not shown that the cost of their hotline is one from which SPLC will never recover. “‘Mere injuries, however substantial, in terms of money, time and energy’ are not enough to meet the threshold for irreparable harm, a preliminary injunction will only issue when the injury is utterly, and entirely, beyond compensatory relief.” Econ. Research Servs. v. Resolution Econ., LLC, 140 F. Supp. 3d 47, 52 (D.D.C. 2015) (quoting Sampson v. Murray, 415 U.S. 61, 88 (1974)). Therefore, SPLC is not entitled to a preliminary injunction— either on behalf of itself, or on behalf of non-parties.
3. Plaintiff does not Establish a Likelihood of Success on its Third Party Postal Mail and Document Transmission-Related Constitutional Claims
Plaintiff impliedly alleges that requiring the use of the postal service during the pandemic violates third party’s statutory access to counsel rights under the INA and Fifth Amendment right to access the courts. Memo at 16-18, 23. This is so because “[p]ost mail has proven unreliable to SIFI staff” and “Defendants’ policies requiring attorneys to rely on post mail to exchange legal documents and submit parole requests is also excessive relative to any justification that may be proffered.” Id. at 26. Plaintiff acknowledges that the PBNDS does not require that Defendants devise an alternative system to legal mail. Memo 33.
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First, Defendants note that the purpose behind requiring that legal documents be sent by post is to ensure confidentiality. E.g., Fourth Washburn Decl. ¶ 73. Plaintiff’s cannot demand that Defendants devise a system to provide “detained persons with documents through fax or email, for instance, at facilities where attorneys already communicate with staff through fax or email” (Memo 33) while SPLC is, in their Second Amended Complaint, attempting to hold Defendants’ liable for breaching confidentiality, specifically concerning document exchanges. SAC ¶ 140; id. ¶ 212 (“Defendants’ other agents have also inspected and commented on legal files held by attorneys and confiscated legal papers from detainees.”).
Second, Plaintiff incongruently demands that Defendants engage in the very conduct that it alleges infringes the rights of third parties. The practicalities of such a system render confidentiality an impossibility; as Warden Washburn points out (with whom Facility Administrators Rice and Staiger agree), SPLC’s proposed document-ferry system would likely require Defendants to inspect the documents for completeness, both when facsimiles or emails are sent and received. Fourth Washburn Decl. ¶ 73 (“Facility personnel would necessarily need to look at the documents to ensure that all pages printed correctly, or were scanned or sent...”); see SAC ¶ 140 (“On occasion the guards … offer to take confidential papers from one person and deliver them to the person on the other side of the partition. Guards who do so frequently search the documents.”). While Irwin has voluntarily created such a system (Second Paulk Decl. ¶¶ 59-62), it is understandable that the other facilities are hesitant to create a system that exposes itself to litigation when a constitutional, low-risk alternative is available. PBNDS at 357 (“Detainees shall be permitted to send special correspondence or legal mail to a specified class of persons and organizations, and incoming mail from these persons shall be opened only in the presence of the detainees (unless waived) to check for contraband (except when contamination is
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suspected).”). Thus, “Defendants’ policies requiring attorneys to rely on post mail to exchange legal documents and submit parole requests” (Memo 23) are plainly justified by the constitutional demands with regard to the confidentiality of legal mail.
4. Plaintiff’s Requests that the Court Order Expedited Timeframes on Humanitarian Parole Adjudications and Custody Redeterminations is Outside the Scope of Litigation
Plaintiff’s request that the Court order Defendants to devise “a system that requires Deportation Officers to provide immigrants and their attorneys confirmation of receipt of any parole request or custody redetermination requests within 24 hours and to provide a final determination within seven (7) days.” Proposed Order at 2. The Court should deny this request for the simple reason that SPLC has not given adequate notice of the claim and that it is not brought against the proper party. Even the most liberal construction of Plaintiff’s Second Amended Complaint does not reveal any claims concerning the pace at which humanitarian parole requests are adjudicated. See SAC; Erickson v. Pardus, 551 U.S. 89, 94 (2007); Oviedo v. Wash. Metro. Area Transit Auth., 948 F.3d 386, 392 (D.C. Cir. 2020). Notice pleading has limits. Defendants have had no notice of SPLC’s new claims concerning humanitarian parole.
Similarly, SPLC demands that custody redeterminations be adjudicated within seven days. Proposed Order at 3. Custody redetermination hearings are conducted before an immigration judge within the Executive Office of Immigration Review. 8 U.S.C. § 1226; 8 C.F.R. § 236.1(d)(1). As such, SPLC’s request improperly seeks an ex parte preliminary injunction against an agency which has had no notice. Fed. R. Civ. P. 65(d)(2). The Court should deny.
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Dated: May 15, 2020
Byerley 1617339)

Respectfully submitted,
JOSEPH H. HUNT Assistant Attorney General Civil Division
WILLIAM C. PEACHEY Director, Office of Immigration Litigation District Court Section
YAMILETH G. DAVILA Assistant Director
/s/David
David Byerley (D.C. Bar No. 1618599) Trial Attorney U.S. Department of Justice, Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Washington D.C. 20044
Ruth Ann Mueller (D.C. Bar No.
Trial Attorney U.S. Department of Justice, Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Washington D.C. 20044
James J. Walker (D.C. Bar No. 1032636) Trial Attorney U.S. Department of Justice, Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Washington D.C. 20044

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Case 1:18-cv-00760-CKK-RMM Document 112 Filed 05/17/20 Page 51 of 51 CERTIFICATE OF SERVICE
I hereby certify that on May 17, 2020, I served a copy of the foregoing Defendants’ Opposition to Plaintiff’s Motion for Temporary Restraining Order upon Plaintiff’s counsel of record via the Court’s CM/ECF filing system.
/s/ David Byerley Attorney for Defendants
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Preface


In keeping with our commitment to transform the immigration detention system, U.S. Immigration and Customs Enforcement (ICE) has revised its detention standards. These new standards, known as the Performance-Based National Detention Standards 2011 (PBNDS 2011), are an important step in detention reform.
ICE is charged with removing aliens who lack lawful status in the United States and focuses its resources on removing criminals, recent border entrants, immigration fugitives, and recidivists. Detention is an important and necessary part of immigration enforcement. Because ICE exercises significant authority when it detains people, ICE must do so in the most humane manner possible with a focus on providing sound conditions and care. ICE detains people for no purpose other than to secure their presence both for immigration proceedings and their removal, with a special focus on those who represent a risk to public safety, or for whom detention is mandatory by law.
The PBNDS 2011 reflect ICE's ongoing effort to tailor the conditions of immigration detention to its unique purpose. The PBNDS 2011 are crafted to improve medical and mental health services, increase access to legal services and religious opportunities, improve communication with detainees with no or

limited English proficiency, improve the process for reporting and responding to complaints, and increase recreation and visitation.
The PBNDS 2011 are also drafted to include a range of compliance, from minimal to optimal. As such, these standards can be implemented widely, while also forecasting our new direction and laying the groundwork for future changes.
In closing, I would like to thank the ICE employees and stakeholders who provided significant input and dedicated many hours to revising these standards. I appreciate the collaboration and support in this important mission - reforming the immigration detention system to ensure it comports with our national expectations. The PBNDS 2011 are an important step in a multiyear process and I look forward to continued collaboration within ICE, with state and local governments, nongovernmental organizations, Congress, and all of our stakeholders as we move forward in reforming our detention system.
John Morton Director

Preface

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5.1 Correspondence and
Other Mail
I. Purpose and Scope
This detention standard ensures that detainees shall be able to correspond with their families, the community, legal representatives, government offices and consular officials consistent with the safe and orderly operation of the facility.
This detention standard applies to the following types of facilities housing ICE/ERO detainees:
• Service Processing Centers (SPCs);
• Contract Detention Facilities (CDFs); and
• State or local government facilities used by ERO through Intergovernmental Service Agreements (IGSAs) to hold detainees for more than 72 hours.
Procedures in italics are specifically required for SPCs, CDFs, and Dedicated IGSA facilities. Nondedicated IGSA facilities must conform to these procedures or adopt, adapt or establish alternatives, provided they meet or exceed the intent represented by these procedures.
Various terms used in this standard may be defined in standard “7.5 Definitions.”
II. Expected Outcomes
The expected outcomes of this detention standard are as follows (specific requirements are defined in “V. Expected Practices”).
1. Detainees shall be able to correspond with their families, the community, legal representatives, government offices and consular officials.
2. Detainees shall be notified of the facility’s rules on correspondence and other mail through the detainee handbook, or supplement, provided to

each detainee upon admittance.
3. The amount and content of correspondence detainees send at their own expense shall not be limited, except to protect public safety or facility security and order.
4. Indigent detainees shall receive a specified postage allowance to maintain community ties and necessary postage for privileged correspondence.
5. Detainees shall have access to general interest publications.
6. Incoming and outgoing mail, with the exception of special correspondence or legal mail, shall be opened to inspect for contraband and to intercept cash, checks and money orders.
7. General correspondence shall be read or rejected only to protect the safe, secure and orderly operation of the facility, and detainees shall be notified in writing when correspondence is withheld in part or in full.
8. Detainees shall be permitted to send special correspondence or legal mail to a specified class of persons and organizations, and incoming mail from these persons shall be opened only in the presence of the detainees (unless waived) to check for contraband (except when contamination is suspected).
9. Incoming and outgoing letters shall be held for no more than 24 hours and packages no more than 48 hours before distribution, excluding weekends, holidays or exceptional circumstances.
10. Detainees in Special Management Units (SMU) shall have the same correspondence privileges as detainees in the general population.
11. The facility shall provide communication assistance to detainees with disabilities and detainees who are limited in their English proficiency (LEP). The facility will provide detainees with disabilities with effective communication, which may include the

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provision of auxiliary aids, such as readers, materials in Braille, audio recordings, telephone handset amplifiers, telephones compatible with hearing aids, telecommunications devices for deaf persons (TTYs), interpreters, and notetakers, as needed. The facility will also provide detainees who are LEP with language assistance, including bilingual staff or professional interpretation and translation services, to provide them with meaningful access to its programs and activities.
All written materials provided to detainees shall generally be translated into Spanish. Where practicable, provisions for written translation shall be made for other significant segments of the population with limited English proficiency.
Oral interpretation or assistance shall be provided to any detainee who speaks another language in which written material has not been translated or who is illiterate.
III. Standards Affected
This detention standard replaces “Correspondence and Other Mail” dated 12/2/2008.
VI. References
American Correctional Association 4th Edition, Standards for Adult Detention Facilities: 4-ALDF­ 5B-05, 5B-06, 5B-07, 5B-08, 5B-09, 5B-10, 2A-27, 2A-60, 6A-09.
V. Expected Practices
A. General
Each facility shall have written policy and procedures concerning detainee correspondence and other mail.
The quantity of correspondence a detainee may receive or send at his/her own expense shall not be limited. Facilities shall not limit detainees to postcards and shall allow envelope mailings. For reasons of safety, security and the orderly operation

of the facility, non-correspondence mail, such as packages and publications, shall be subject to certain restrictions.
B. Indigent Detainees
Ordinarily, a detainee is considered “indigent” if he/she has less than $15.00 in his/her account. Facilities shall make a timely determination as to whether a detainee is indigent.
Each facility shall have written procedures that explain how indigent detainees can request postage at government expense. Such procedures shall also be posted in a common area where all detainees can view them.
At government expense, as determined by ICE/ERO, indigent detainees shall be permitted to post a reasonable amount of mail each calendar week (see “J. Postage Costs”) below, including the following:
1. an unlimited amount of special correspondence or legal mail, within reason;
2. three pieces of general correspondence; and/or
3. packages as deemed necessary by ICE/ERO.
C. Detainee Notification
The facility shall notify detainees of its rules on correspondence and other mail through the detainee handbook, or supplement, provided to each detainee upon admittance. At a minimum, the notification shall specify:
1. That a detainee may receive mail, the mailing address of the facility, and instructions on how envelopes shall be addressed;
2. That a detainee may send mail, the procedure for sending mail, and instructions on how outgoing mail must be addressed;
3. That general correspondence and other mail addressed to detainees shall be opened and inspected in the detainee’s presence, unless the facility administrator authorizes inspection without the detainee’s presence for security

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reasons;
4. The definition of special correspondence or legal mail, including instructions on the proper labeling as “special correspondence” or “legal mail” to ensure that it is treated as privileged mail; the notification shall clearly state that it is the detainee’s responsibility to inform senders of the labeling requirement;
5. That incoming special correspondence or legal mail may only be opened in the detainee’s presence, and may be inspected for contraband, but not read, and that outgoing special correspondence or legal mail shall not be opened, inspected or read;
6. That packages may neither be sent nor received without advance arrangements approved by the facility administrator, as well as information regarding how to obtain such approval;
7. A description of mail which may be rejected by the facility and which the detainee shall not be permitted to keep in his/her possession;
8. That identity documents, such as passports, birth certificates, etc., in a detainee’s possession are contraband and may be used by ICE/ERO as evidence against the detainee or for other purposes authorized by law (however, upon request, the detainee shall be provided a copy of each document, certified by an ICE/ERO officer to be a true and correct copy; the facility shall consult ICE/ERO with any and all requests for identity documents);
9. The procedure to obtain writing implements, paper and envelopes; and
10. The procedure for purchasing postage (if any), and the rules for providing indigent and certain other detainees free postage.
The rules notification shall be posted in each housing area.
The facility shall provide key information to

detainees in languages spoken by any significant portion of the facility’s detainee population. Oral interpretation or assistance shall be provided to any detainee who speaks another language in which written material has not been translated or who is illiterate.
D. Processing
Detainee correspondence and other mail shall be delivered to the detainee and to the postal service on regular schedules.
1. Incoming correspondence shall be distributed to detainees within 24 hours (one business day) of receipt by the facility.
2. Outgoing correspondence shall be delivered to the postal service no later than the day after it is received by facility staff or placed by the detainee in a designated mail depository, excluding weekends and holidays.
3. An exception may be made for correspondence or other mail that requires special handling for security purposes. For example, in exceptional circumstances, special correspondence may be held for 48 hours, to verify the status of the addressee or sender.
As a routine matter, incoming mail shall be distributed to detainees on the day received by the facility. Incoming priority, overnight, certified mail and deliveries from a private package delivery service, etc., shall be recorded with detainee signatures in a logbook maintained by the facility.
E. Packages
Each facility shall implement policies and procedures concerning detainee packages.
Detainees shall not be allowed to receive or send packages without advance arrangements approved by the facility administrator. The detainee shall pay postage for packages and oversized or overweight mail.

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F. Inspection of Incoming Correspondence and Other Mail
1. General Correspondence and Other Mail
All facilities shall implement procedures for the inspection of all incoming general correspondence and other mail (including packages and publications) for contraband.
Staff shall open and inspect incoming general correspondence and other mail (including packages and publications) in the presence of the detainee unless otherwise authorized by the facility administrator. Incoming general correspondence may be read to the extent necessary to maintain security, as authorized by the facility administrator.
Inspection is generally for the purpose of detecting contraband. Reading of mail, which requires approval of the facility administrator, may be conducted at random. Mail may also be read when a specific security concern arises with respect to an individual detainee, including, but not limited to, for obtaining information such as escape plots, plans to commit illegal acts and plans to violate institution rules.
2. Special Correspondence or Legal Mail
“Special correspondence” or “legal mail” shall be defined as the term for detainees’ written communications to or from any of the following:
a. private attorneys and other legal representatives;
b. government attorneys;
c. judges and courts;
d. embassies and consulates;
e. the president and vice president of the United States;
f. members of Congress;
g. the Department of Justice (including the DOJ Office of the Inspector General);
h. the Department of Homeland Security (including

U.S. Immigration and Customs Enforcement, ICE Health Services Corps, the Office of Enforcement and Removal Operations, the DHS Office for Civil Rights and Civil Liberties, and the DHS Office of the Inspector General);
i. outside health care professionals;
j. administrators of grievance systems; and
k. representatives of the news media.
Correspondence shall only be treated as special correspondence or legal mail if the title and office of the sender (for incoming correspondence) or addressee (for outgoing correspondence) are unambiguously identified on the envelope, and the envelope is labeled “special correspondence” or “legal mail.”
All facilities shall implement procedures for inspecting for contraband, in the presence of the detainee, all special correspondence or legal mail. Detainees shall sign a logbook upon receipt of special correspondence and/or legal mail to verify that the special correspondence or legal mail was opened in their presence.
Staff shall neither read nor copy special correspondence or legal mail. The inspection shall be limited to the purposes of detecting physical contraband and confirming that any enclosures qualify as special correspondence or legal mail.
G. Inspection of Outgoing Correspondence and Other Mail
1. General Correspondence and Other Mail
Outgoing general correspondence and other mail may be inspected or read if:
a. the addressee is another detainee; or
b. there is evidence the item might present a threat to the facility’s secure or orderly operation, endanger the recipient or the public or facilitate criminal activity.
The detainee must be present when the

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correspondence or other mail, including packages, is inspected, unless otherwise authorized by the facility administrator.
2. Special Correspondence or Legal Mail
Staff shall neither read nor copy outgoing special correspondence or legal mail. The inspection shall be limited to the purposes of detecting physical contraband and confirming that any enclosures qualify as special correspondence or legal mail.
Staff shall treat outgoing correspondence as special correspondence or legal mail only if the name, title and office of the recipient are clearly identified on the envelope and the envelope is labeled “special correspondence” or “legal mail.”
H. Rejection of Incoming and Outgoing Mail
All facilities shall implement policies and procedures addressing acceptable and non-acceptable mail. Detainees may receive as correspondence any material reasonably necessary for the detainee to present his/her legal claim, in accordance with this standard.
Incoming and outgoing general correspondence and other mail may be rejected to protect the security, good order or discipline of the institution; to protect the public; or to deter criminal activity.
When incoming or outgoing mail is confiscated or withheld (in whole or in part), the detainee shall be notified and given a receipt.
The facility administrator shall ordinarily consult a religious authority before confiscation of a religious item that constitutes “soft” contraband.
Correspondence and publications that may be rejected include, but are not limited to, the following.
1. Material depicting activities that present a significant risk of physical violence or group disruption (e.g., material with subjects of self-

defense or survival, weaponry, armaments, explosives or incendiary devices); however, note that newspaper articles that depict or describe violence in a detainee’s country of origin may be relevant to a detainee’s legal case and should not automatically be considered contraband;
2. Information regarding escape plots, or plans to commit illegal activities, or to violate ICE/ERO rules or facility guidelines;
3. Information regarding the production of drugs or alcohol;
4. Sexually explicit material that is obscene or prurient in nature;
5. Threats, extortion, obscenity or gratuitous profanity;
6. Cryptographic or other surreptitious code that may be used as a form of communication; or
7. Other contraband (any package received without the facility administrator’s prior authorization is considered contraband).
Both sender and addressee shall be provided written notice, signed by the facility administrator, with explanation, when the facility rejects incoming or outgoing mail. Rejected mail shall be considered contraband and handled as detailed in the next section of this standard.
A detainee may appeal rejection of correspondence through the Detainee Grievance System.
I. Contraband Recording and Handling
When an officer finds an item that must be removed from a detainee’s mail, he/she shall make a written record that includes:
1. the detainee’s name and A-number;
2. the name of the sender and recipient;
3. a description of the mail in question;
4. a description of the action taken and the reason for it;

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5. the disposition of the item and the date of disposition; and
6. the officer’s signature.
Prohibited items discovered in the mail shall be handled as follows:
1. A receipt shall be issued to the detainee for all cash, which shall be safeguarded and credited to the detainee’s account in accordance with standard “2.5 Funds and Personal Property.”
2. Identity documents (e.g., passports, birth certificates) shall be placed in the detainee’s A-file and, upon request, the detainee shall be provided with a copy of the document, certified by an ICE/ERO officer to be a true and correct copy.
3. Other prohibited items found in the mail shall be handled in accordance with standard “2.3 Contraband”; however, at the discretion of the facility administrator, soft contraband may be returned to the sender.
4. The facility administrator shall ensure that facility records of the discovery and disposition of contraband are accurate and current.
J. Postage Costs
1. The facility shall not limit the amount of correspondence detainees may send at their own expense, except to protect public safety or facility security and order.
2. The facility shall provide a postage allowance at government expense under two circumstances:
a. to indigent detainees only; or
b. to all detainees, if the facility does not have a system for detainees to purchase stamps.
3. Free postage is generally limited to letters weighing one ounce or less, with exceptions allowed for special correspondence; however, in compelling circumstances, the facility may also provide free postage for general correspondence and other mail.

4. Detainees who qualify for a postage allowance as defined above shall be permitted to mail, at government expense, the following:
a. a reasonable amount of mail each week, 
 including at least three pieces of general
 correspondence;

b. an unlimited amount of correspondence related to a legal matter, within reason, including correspondence to a legal representative, free legal service provider, any court, opposing counsel or to a consulate, potential legal representative and any court, as determined by the facility administrator; and
c. packages containing personal property, when the facility administrator determines that storage space is limited and that mailing the property is in the government’s best interest. See standard “2.5 Funds and Personal Property” for detailed information.
K. Writing Implements, Paper and Envelopes
The facility shall provide writing paper, writing implements and standard sized envelopes at no cost to detainees. Special sized envelopes may be provided to detainees at their cost.
L. Detainees in Special Management Units (SMU)
All facilities shall have written policy and procedures regarding mail privileges for detainees housed in an SMU.
Detainees in administrative or disciplinary segregation shall have the same correspondence privileges as detainees in the general population.
M. Correspondence with Representative of the News Media
A detainee may use special correspondence to communicate with representatives of news media.

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A detainee may not receive compensation or anything of value for correspondence with news media, including, but not limited to, publishing under a byline. A detainee may not act as a reporter.
Representatives of news media may initiate correspondence with a detainee; however, such correspondence shall be treated as special correspondence only if the envelope is properly addressed with the name, title and office of the media representative and is clearly labeled “special correspondence.”
N. Notaries, Certified Mail and Miscellaneous Needs Associated With Legal Matters
If a detainee without legal representation requests

certain services in connection with a legal matter, such as notary public or certified mail, and has no family member, friend or community organization to provide assistance, the facility shall consult with ICE/ERO to provide the necessary services and shall assist the detainee in a timely manner.
If it is unclear whether the requested service is necessary in pursuit of a legal matter, the respective ICE Office of Chief Counsel shall be consulted.
O. Facsimile Communication
When timely communication through the mail is not possible, the facility administrator may in his/her discretion allow for a reasonable amount of communication by means of facsimile device between the detainee and his/her designated legal representatives.

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5.6 Telephone Access
I. Purpose and Scope
This detention standard ensures that detainees may maintain ties with their families and others in the community, legal representatives, consulates, courts and government agencies by providing them reasonable and equitable access to telephone services.
This detention standard applies to the following types of facilities housing ICE/ERO detainees:
• Service Processing Centers (SPCs);
• Contract Detention Facilities (CDFs); and
• State or local government facilities used by ERO through Intergovernmental Service Agreements (IGSAs) to hold detainees for more than 72 hours.
Procedures in italics are specifically required for SPCs, CDFs, and Dedicated IGSA facilities. Nondedicated IGSA facilities must conform to these procedures or adopt, adapt or establish alternatives, provided they meet or exceed the intent represented by these procedures.
For all types of facilities, procedures that appear in italics with a marked (**) on the page indicate optimum levels of compliance for this standard.
Various terms used in this standard may be defined in standard “7.5 Definitions.”
II. Expected Outcomes
The expected outcomes of this detention standard are as follows (specific requirements are defined in “V. Expected Practices”).
1. Detainees shall have reasonable and equitable access to reasonably priced telephone services.
2. Detainees with hearing or speech disabilities shall be granted reasonable accommodations to allow for equal access to telephone services.

3. Detainees in Special Management Units (SMU) shall have access to telephones, commensurate with facility security and good order.
4. Detainees and their legal counsel shall be able to communicate effectively with each other.
5. Privacy for detainee telephone calls regarding legal matters shall be ensured.
6. Telephone access procedures shall foster legal access and confidential communications with attorneys.
7. Detainees shall be able to make free calls to the ICE/ERO-provided list of free legal service providers for the purpose of obtaining initial legal representation, to consular officials, to the Department of Homeland Security (DHS) Office of the Inspector General (OIG), and to the ICE Office of Professional Responsibility (OPR) Joint Intake Center (JIC). Indigent detainees, who are representing themselves pro se, shall be permitted free calls on an as-needed basis to family or other individuals assisting with the detainee’s immigration proceedings.
8. Telephones shall be maintained in proper working order.
9. Facilities shall strive to reduce telephone costs, including through the use of emerging telecommunications, voiceover and Internet protocol technologies.
10. The facility shall provide communication assistance to detainees with disabilities and detainees who are limited in their English proficiency (LEP). The facility will provide detainees with disabilities with effective communication, which may include the provision of auxiliary aids, such as readers, materials in Braille, audio recordings, telephone handset amplifiers, telephones compatible with hearing aids, telecommunications devices for deaf persons (TTYs), interpreters, and notetakers, as needed. The facility will also provide

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detainees who are LEP with language assistance, including bilingual staff or professional interpretation and translation services, to provide them with meaningful access to its programs and activities.
All written materials provided to detainees shall generally be translated into Spanish. Where practicable, provisions for written translation shall be made for other significant segments of the population with limited English proficiency.
Oral interpretation or assistance shall be provided to any detainee who speaks another language in which written material has not been translated or who is illiterate.
III. Standards Affected
This detention standard replaces “Telephone Access” dated 12/2/2008.
IV. References
American Correctional Association, Performancebased Standards for Adult Local Detention Facilities, 4th Edition: 4-ALDF-2A-65, 2A-66, 5B­ 11, 5B-12, 6a-02, 6A-09.
ICE/ERO Performance-based National Detention Standards 2011: “2.13 Staff-Detainee Communication,” in regard to monitoring and documenting telephone serviceability.
V. Expected Practices
A. Telephones and Telephone Services
1. Number
To ensure sufficient access, each facility shall provide at least one operable telephone for every 25 detainees.
**Facilities shall be operating at the optimal level when at least one telephone is provided for every ten (10) detainees.
2. Cost

Generally, detainees or the persons they call shall be responsible for the costs of telephone calls; required exceptions are listed below.
Each facility shall provide detainees with access to reasonably priced telephone services. Contracts for such services shall comply with all applicable state and federal regulations and be based on rates and surcharges comparable to those charged to the general public. Any variations shall reflect actual costs associated with the provision of services in a detention setting. Contracts shall also provide the broadest range of calling options including, but not limited to, international calling, calling cards and collect telephone calls, determined by the facility administrator to be consistent with the requirements of sound detention facility management. Facilities shall post a list of card and calling rates in each housing unit. Facility administrators are encouraged to explore the use of new technologies which can facilitate the provision of cost effective means for enhancing detainees’ ability to communicate by telephone, such as, and not limited to, wireless and/or internet communications.
3. Maintenance
Each facility shall maintain detainee telephones in proper working order. Designated facility staff shall inspect the telephones daily, promptly report out-of­ order telephones to the repair service so that required repairs are completed quickly. This information shall be logged and maintained by each Field Office. Facility staff shall notify detainees and the ICE/ERO free legal service providers of procedures for reporting problems with telephones.
ICE/ERO headquarters shall maintain and provide Field Offices a list of telephone numbers for current free legal service providers, consulates and the Department of Homeland Security’s (DHS) Office of the Inspector General (OIG), as determined by ICE. All Field Offices are responsible for ensuring facilities which house ICE detainees under their jurisdiction are provided with current pro bono legal service

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information.
4. Monitoring Detainee Telephone Services
a. Facility Staff Requirements Facility staff members are responsible for ensuring on a daily basis that telephone systems are operational and that the free telephone number list is posted. After ensuring that each phone has a dial tone, when testing equipment the officers must be able to demonstrate that an individual has the ability to make calls using the free call platform. Any identified problems must immediately be logged and reported to the appropriate facility and ICE/ERO staff. ICE/ERO staff shall review and follow up on problems reported by detainees and others.
B. Monitoring of Detainee Telephone Calls
Each facility shall have a written policy on the monitoring of detainee telephone calls. If telephone calls are monitored, the facility shall:
1. include a recorded message on its phone system stating that all telephone calls are subject to monitoring;
2. notify detainees in the detainee handbook, or equivalent, provided upon admission; and
3. at each monitored telephone, place a notice that states the following:
a. that detainee calls are subject to monitoring; and
b. the procedure for obtaining an unmonitored call to a court, a legal representative or for the purposes of obtaining legal representation.
ICE/ERO and the facility shall coordinate in posting the notice in Spanish and in the language of significant segments of the population with limited English proficiency, where practicable.
A detainee’s call to a court, a legal representative, DHS OIG, DHS Civil Rights and Civil Liberties (CRCL) or for the purposes of obtaining legal

representation, may not be electronically monitored without a court order.
C. Detainee Notification
Each facility shall provide telephone access rules in writing to each detainee upon admission, and also shall post these rules where detainees may easily see them. ICE/ERO and the facility shall coordinate in posting these rules where practicable in Spanish and in the language of significant segments of the population with limited English proficiency.
Telephone access hours shall also be posted. Updated telephone and consulate lists shall be posted in detainee housing units. Translation and interpretation services shall be provided as needed.
D. Detainee Access
Each facility administrator shall establish and oversee rules and procedures that provide detainees reasonable and equitable access to telephones during established facility “waking hours” (excluding the hours between lights-out and the morning resumption of scheduled activities). Telephones shall be located in parts of the facility that are accessible to detainees. Telephone access hours shall be posted near the telephones.
Each facility shall provide detainees access to international telephone service.
Ordinarily, a facility may restrict the number and duration of general telephone calls only for the following reasons.
1. Availability
When required by the volume of detainee telephone demand, rules and procedures may include, but are not limited to, reasonable limitations on the duration and the number of calls per detainee, the use of predetermined time-blocks and institution of an advanced sign-up system.
2. Orderly Facility Operations
Calls may be restricted or limited if necessary to

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prevent interference with counts, meals, scheduled detainee movements, court schedules, or other events constituting the orderly operation of the facility.
3. Emergencies
Telephone access and use may be limited in the event of escapes, escape attempts, disturbances, fires, power outages, etc. Telephone privileges may be suspended entirely during an emergency, but only with the authorization of the facility administrator or designee and only for the briefest period necessary under the circumstances. If suspension of telephone access exceeds 12 hours, ICE/ERO should be notified.
E. Direct or Free Calls
Even if telephone service is generally limited to collect calls, each facility shall permit detainees to make direct or free calls to the offices and individuals listed below. The Field Office Director shall ensure that all information is kept current and is provided to each facility. Updated lists need to be posted in the detainee housing units. A facility may place reasonable restrictions on the hours, frequency and duration of such direct and/or free calls, but may not limit a detainee’s attempt to obtain legal representation. Full telephone access shall be granted in order for a detainee to contact the following:
• the Executive Office for Immigration Review or local immigration court;
• the Board of Immigration Appeals;
• federal and state courts where the detainee is or may become involved in a legal proceeding;
• consular officials;
• DHS/OIG;
• legal representatives, to obtain legal representation, or for consultation when subject to expedited removal (when a detainee is under an expedited removal order, his/her

ability to contact pro bono legal representatives shall not be restricted);
• legal service providers or organizations listed on the ICE/ERO free legal service provider list;
• United Nations High Commissioner for Refugees (UNHCR), from asylum-seekers and stateless individuals;
• federal, state or local government offices to 
 obtain documents relevant to his/her
 immigration case;

• immediate family or others for detainees in personal or family emergencies or who otherwise demonstrate a compelling need (to be interpreted liberally); or
• ICE/OPR Joint Intake Center (JIC).
1. Request Forms
Free and direct calls shall be easily accessible. If detainees are required to complete request forms to make direct or free calls, facility staff must assist them as needed, especially illiterate or non-English speaking detainees. The detainees should also be permitted to seek assistance from their legal representatives, family, or other detainees.
2. Time Requirements
Staff shall allow detainees to make such calls as soon as possible after submission of requests, factoring in the urgency stated by the detainee. Access shall be granted within 24 hours of the request, and ordinarily within eight facility-established “waking hours.” Staff must document and report to ICE/ERO any incident of delay beyond eight “waking hours.”
3. Indigent Detainees
Ordinarily, a detainee is considered “indigent” if he/she has less than $15.00 in his/her account for ten (10) days. A facility shall make a timely effort to determine indigence.
Indigent detainees are afforded the same telephone access and privileges as other detainees. Each facility

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shall enable all detainees to make calls to the ICE/ERO-provided list of free legal service providers and consulates at no charge to the detainee or the receiving party. The indigent detainee may request a call to immediate family or others in personal or family emergencies or on an as-needed basis.
4. Phone System Limitations
If the limitations of an existing phone system preclude meeting these requirements, the facility administrator must notify ICE/ERO so that a means of telephone access may be provided.
SPCs, CDFs, and dedicated IGSAs shall require its telephone service providers to program and keep current, the telephone system to permit detainees free calls to numbers on the official pro bono legal representation list and to consulates. Other facilities shall adopt equivalent procedures.
F. Legal Calls
1. Restrictions
A facility may neither restrict the number of calls a detainee places to his/her legal representatives, nor limit the duration of such calls by rule or automatic cut-off, unless necessary for security purposes or to maintain orderly and fair access to telephones. If time limits are necessary for such calls, they shall be no shorter than 20 minutes, and the detainee shall be allowed to continue the call at the first available opportunity, if desired.
A facility may place reasonable restrictions on the hours, frequency and duration of such direct and/or free calls but may not otherwise limit a detainee’s attempt to obtain legal representation.
2. Privacy
For detainee telephone calls regarding legal matters, each facility shall ensure privacy by providing a reasonable number of telephones on which detainees can make such calls without being overheard by staff or other detainees. Absent a court order, staff may not monitor phone calls made in reference to legal

matters.
The facility shall inform detainees to contact an officer if they have difficulty making a confidential call relating to a legal proceeding. If notified of such a difficulty, the officer shall take measures to ensure that the call can be made confidentially.
Privacy may be provided in a number of ways, including:
a. telephones with privacy panels (side partitions) that extend at least 18 inches to prevent conversations from being overheard;
b. telephones placed where conversations may not be readily overheard by others; or
c. office telephones on which detainees may be permitted to make such calls; and
d. detainees shall be supervised within eyeshot, but out of earshot
G. Telephone Access for Detainees with Disabilities
The facility shall provide a TTY device or Accessible Telephone (telephones equipped with volume control and telephones that are hearing-aid compatible for detainees who are deaf or hard of hearing). Detainees who are deaf or hard of hearing shall be provided access to the TTY on the same terms as hearing detainees are provided access to telephones. Except to the extent that there are time limitations, detainees using the TTY shall be granted additional time, consistent with safety and security concerns..
If an Accessible Telephone or TTY is not available in the same location as telephones used by other detainees, detainees shall be allotted additional time to walk to and from the Accessible Telephone or TTY location. Consistent with the order and safety of the facility, the facility shall ensure that the privacy of telephone calls by detainees using Accessible Telephones or TTY is the same as other detainees using telephones.

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** The facility shall maintain other equipment, such as video relay service and video phones, for detainees who are deaf or hard of hearing.
Accommodations shall also be made for detainees with speech disabilities.
Consistent with Standard 4.8 “Disability Identification, Assessment, and Accommodation,” the facility shall engage in an interactive and individualized process that considers whether a detainee with a disability needs any additional accommodation to access facility telephones.
H. Telephone Privileges in Special Management Units (SMU)
While there are differences in telephone access in SMU, depending on whether a detainee is in Administrative Segregation or Disciplinary Segregation, in general a detainee in either status may be reasonably restricted from using or having access to a phone for the following reasons.
• If that access is used for criminal purposes or would endanger any person, including that detainee.
• If the detainee damages the equipment 
 provided.

• For the safety, security and good order of the facility.
In such instances, staff must clearly document why such restrictions are necessary to preserve the safety, security and good order of the facility in the appropriate SMU log. Detainees and their legal counsel shall nevertheless be accommodated in order for them to be able to communicate effectively with each other. Telephone access for legal calls, courts, government offices (including the DHS OIG and the DHS JIC) and embassies or consulates shall not be denied.
1. Administrative Segregation
Generally, detainees in administrative segregation

should receive the same privileges available to detainees in the general population, subject to any existing safety and security considerations. This requirement applies to a detainee in Administrative Segregation pending a hearing because he/she has been charged with a rule violation, as well as a detainee in Administrative Segregation for other than disciplinary reasons, such as protective custody or suicide risk.
2. Disciplinary Segregation
Detainees in Disciplinary Segregation may be restricted from using telephones to make general calls as part of the disciplinary process. Even in Disciplinary Segregation, however, detainees shall have some access for special purposes. Ordinarily, staff shall permit detainees in Disciplinary Segregation to make direct and/or free and legal calls as previously described in above in sections V.E and V.F, except in the event of compelling and documented reasons of threats to the safety, security and good order of the facility.
I. Inter-facility Telephone Calls
Upon a detainee’s request, facility staff shall make special arrangements to permit the detainee to speak by telephone with an immediate family member detained in another facility. Immediate family members include spouses, common-law spouses, parents, stepparents, foster parents, brothers, sisters, natural or adopted children and stepchildren.
Reasonable limitations may be placed on the frequency and duration of such calls. Facility staff shall liberally grant such requests to discuss legal matters and shall afford the detainee privacy to the extent practicable, while maintaining adequate security.
J. Incoming Calls
The facility shall take and deliver telephone messages to detainees as promptly as possible.
When facility staff receives an emergency telephone

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call for a detainee, the caller’s name and telephone number shall be obtained and promptly given to the detainee. The detainee shall be permitted to promptly return an emergency call at their own cost

within the constraints of security and safety. The facility shall enable indigent detainees to make a free return emergency call.

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5.7 Visitation
I. Purpose and Scope
This detention standard ensures that detainees shall be able to maintain morale and ties through visitation with their families, the community, legal representatives and consular officials, within the constraints of the safety, security and good order of the facility.
This detention standard applies to the following types of facilities housing ICE/ERO detainees:
• Service Processing Centers (SPCs);
• Contract Detention Facilities (CDFs); and
• State or local government facilities used by ERO through Intergovernmental Service Agreements (IGSAs) to hold detainees for more than 72 hours.
Procedures in italics are specifically required for SPCs, CDFs, and Dedicated IGSA facilities. Nondedicated IGSA facilities must conform to these procedures or adopt, adapt or establish alternatives, provided they meet or exceed the intent represented by these procedures.
For all types of facilities, procedures that appear in italics with a marked (**) on the page indicate optimum levels of compliance for this standard.
Various terms used in this standard may be defined in standard “7.5 Definitions.”
News media interviews and tours are outlined in standard “7.2 Interviews and Tours.”
Conjugal visits for ICE/ERO detainees are prohibited.
II. Expected Outcomes
The expected outcomes of this detention standard are as follows (specific requirements are defined in “V. Expected Practices”).
1. Facilities are encouraged to allow detainees to

maintain ties to their family and friends in the community. Detainees shall be able to receive visits from legal representatives, consular officials and others in the community.
2. Visits between legal representatives and assistants and an individual detainee are confidential and shall not be subject to auditory supervision. Private consultation rooms shall be available for such meetings.
3. Detainees shall be advised of their right to contact their consular representatives and receive visits from their consulate officers.
4. Facilities are encouraged to provide opportunities for both contact and non-contact visitation with approved visitors during both day and evening hours.
5. Information about visiting policies and procedures shall be readily available to the public.
6. The number of visitors a detainee may receive and the length of visits shall be limited only by reasonable constraints of space, scheduling, staff availability, safety, security and good order. Generally visits should be for the maximum period practicable but not less than one hour with special consideration given to family circumstances and individuals who have traveled long distances.
7. Visitors shall be screened and approved upon arrival and shall be required to adequately identify themselves and register to be admitted into a facility, so that safety, security and good order can be maintained.
8. A background check shall be conducted on all new volunteers prior to their being approved to provide services to detainees.
9. Each new volunteer shall complete an appropriate, documented orientation program and sign an acknowledgement of his or her understanding of the applicable rules and procedures and agreement to comply with them.

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10. The facility shall provide communication assistance to detainees with disabilities and detainees who are limited in their English proficiency (LEP). The facility will provide detainees with disabilities with effective communication, which may include the provision of auxiliary aids, such as readers, materials in Braille, audio recordings, telephone handset amplifiers, telephones compatible with hearing aids, telecommunications devices for deaf persons (TTYs), interpreters, and notetakers, as needed. The facility will also provide detainees who are LEP with language assistance, including bilingual staff or professional interpretation and translation services, to provide them with meaningful access to its programs and activities.
All written materials provided to detainees shall generally be translated into Spanish. Where practicable, provisions for written translation shall be made for other significant segments of the population with limited English proficiency.
Oral interpretation or assistance shall be provided to any detainee who speaks another language in which written material has not been translated or who is illiterate.
III. Standards Affected
This detention standard replaces “Visitation” dated 12/2/2008.
IV. References
American Correctional Association, Performancebased Standards for Adult Local Detention Facilities, 4th Edition: 4-ALDF: 5B-01, 5B-02, 5B­ 03, 5B-04, 2A-21, 2A-27, 2A-61, 6A-06, 7B-03, 7C-02, 7F-05, 7F-06.
ICE/ERO Performance-based National Detention Standards 2011:
• “2.10 Searches of Detainees”;

• “3.1 Disciplinary System”; and
• “7.2 Interviews and Tours.”
V. Expected Practices
A. Overview
Facilities that house ICE/ERO detainees shall provide visiting procedures for detainees to maintain communication with persons in the community. Safety, security and good order are always primary considerations in a detention facility, and visitors must be properly identified and attired and are subject to search upon entering the facility and at any other time. Except as otherwise permitted herein, visitors may not give anything directly to a detainee, although it may be permissible for visitors to leave certain items and funds for a detainee with a staff member, at the discretion of the facility administrator. An itemized receipt that lists funds and property brought for the detainee shall be provided to the visitor.
Any violation of the visitation rules, by the detainee, may result in disciplinary action against the detainee and introduction of contraband or other criminal violations may lead to criminal prosecution of a visitor, detainee or both.
Differences in the various conditions of each visit, including who may visit, when they may visit, how they may be approved to visit and where in the facility they may visit, are detailed later in this standard and are dependent on the type of visitation, according to the following designations:
1. social visitation: family, relatives, friends and associates; minors may be subject to special restrictions (see “I. Visits by Family and Friends” in this standard);
2. legal visitation: attorneys, other legal representatives, legal assistants (see “J. Visits by Legal Representatives and Legal Assistants” in this standard);

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3. consultation visitation: for detainees subject to expedited removal (see “K. Consultation Visits for Detainees Subject to Expedited Removal” in this standard);
4. consular visitation: similar to legal visitation but with consular officials who have state department issued identification (see “L. Consular Visitation” in this standard);
5. community service organization visitation: representatives of civic, religious, cultural groups, etc. (see “M. Visits from Representatives of Community Service Organizations” in this standard); and
6. other special visitation (see “N. Other Special Visits” in this standard; for non-governmental organizations (NGO) please see standard “7.2 Interviews and Tours.”)
B. General
Each facility shall establish written visiting procedures, including a schedule and hours of visitation and make them available to the public.
Each facility administrator shall decide whether to permit contact visits, as appropriate for the facility’s physical plant and detainee population. Exceptions to this standard can be made by the facility administrator on a case-by-case basis when warranted by compelling circumstances or individual needs or conduct.
A facility administrator may temporarily restrict visiting when necessary to ensure the security and good order of the facility. Each restriction or denial of visits, including the duration of and reasons for the restriction, shall be documented in writing.
C. Notification of Visiting Rules and Hours
Each facility shall:
1. Provide written notification of visitation rules and hours in the detainee handbook or local supplement given each detainee upon admission,

and post those rules and hours where detainees can easily see them. Such information shall be posted in each housing unit.
2. Make the schedule and procedures available to the public, both in written form and telephonically. A live voice or recording shall provide telephone callers the rules and hours for all categories of visitation.
3. Post schedule, procedures and notification of visitation rules and hours in the visitor waiting area in English, Spanish and, where practicable, provisions for written translation shall be made for other significant segments of the population with limited English proficiency.
D. Visitor Logs
Each facility shall maintain a log of all general visitors, and a separate log of legal visitors. If the stated purpose of the visit is for Expedited Removal consultation, the visit shall be logged in the Legal Visitation Log. Staff shall record in the general visitors’ log:
1. the name and alien-registration number (Anumber) of the detainee visited;
2. the visitor’s name and address;
3. the visitor’s relationship to the detainee; and
4. the date, arrival time and departure time.
E. Incoming Property and Funds for Detainees
In accordance with standard “2.5 Funds and Personal Property,” each facility shall have written procedures regarding incoming property and money for detainees.
The facility administrator may permit a visitor to leave cash or a money order with a designated staff member for deposit in a detainee’s account; the staff member must provide the visitor a receipt for all money or property left at the facility. Under no circumstances may visitors give property or money

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directly to a detainee.
The shift supervisor must approve all items brought for detainees. The visiting room officer may not accept articles or gifts of any kind for a detainee, unless the facility administrator and/or shift supervisor has approved these items in advance.
Due to the relatively short length of stay and the fact that ICE/ERO provides all necessities, detainees may receive only minimal amounts of personal property, including:
1. small religious items;
2. religious and secular reading material (soft cover);
3. legal documents and papers;
4. pictures: 10 maximum, measuring 5” x 7” or smaller each;
5. prescription glasses;
6. dentures;
7. personal address book or pages;
8. correspondence;
9. wedding rings;
10. telephone calling cards; and
11. other items approved by the facility administrator.
F. Sanctions for Violation of Visitation and Contraband Rules
Any violation of the visitation rules by the detainee may result in disciplinary action against the detainee, including loss of visitation privileges, excluding legal and consular visits. Visiting privileges may be revoked only through the formal detainee disciplinary process. However, the facility administrator has the authority to restrict or suspend a detainee’s ordinary visiting privileges temporarily when there is reasonable suspicion that the detainee has acted in a manner constituting a threat to the

safety, security or good order of the facility. Each incident shall be documented, and the restriction or suspension shall be limited to the time required to investigate and complete the disciplinary process. Legal visitation shall be suspended only if necessary to maintain the safety or security of the facility.
A visitor’s failure to abide by visiting rules may result in immediate cancellation or termination of a visit and/or suspension of future visitation privileges.
Introduction of contraband or other criminal violations may lead to criminal prosecution of a visitor, a detainee or both.
G. Dress Codes for Visitors
If the facility establishes and maintains a dress code for visitors, it shall be made available to the public, e.g., posted on the facility’s website, telephone message and included in the detainee handbook.
H. Visiting Room Conditions
The facility’s visiting areas shall be appropriately furnished and arranged, and made as comfortable and pleasant as practicable. Also, as practicable, space shall be provided outside of the immediate visiting areas for the secure storage of visitors’ coats, handbags and other personal items.
The facility administrator shall provide adequate supervision of all visiting areas, and the visiting area officer shall ensure that all visits are conducted in an orderly and dignified manner.
I. Visits by Family and Friends
1. Hours and Time Limits
Each facility shall establish a visiting schedule based on the detainee population and the demand for visits. Visits shall be permitted during set hours on Saturdays, Sundays and holidays, and to the extent practicable, facilities shall also establish visiting hours on weekdays and during evening hours. The facility shall accommodate the scheduling needs of

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visitors for whom scheduled visiting hours pose a hardship, for example, authorizing special visits for family visitors.
To accommodate the volume of visitors within the limits of space and staff resources, and to ensure adequate security, the facility administrator may restrict visits (e.g., some or all detainees and visitors may be limited to visiting on Saturday or on Sunday, but not both days). ICE/ERO does not require a facility to permit every visitor to visit on both days of a weekend, nor to permit every detainee to have visits on both days of a weekend. However, to the extent practicable, ICE/ERO encourages the facility administrator to establish visiting hours for each detainee on both days of the weekend, and to try to accommodate visitors who can only visit on a specific weekend day.
The facility’s written rules shall specify time limits for visits, no less than one hour, under normal conditions.
ICE/ERO encourages more generous limits when possible, especially for family members traveling significant distances. In unforeseen circumstances, such as the number of visitors exceeding visiting room capacity, the facility administrator may modify visiting periods.
2. Persons Allowed to Visit
Individuals from the following categories shall be permitted to visit, unless they pose a threat to the security and good order of the facility:
a. Immediate Family: Immediate family may include mothers, fathers, stepparents, foster parents, brothers, sisters, stepbrothers, stepsisters, biological and adopted children, stepchildren, foster children and spouses, including commonlaw spouses.
Immediate family members detained at the same facility may visit with each other during normal visiting hours, regardless of gender, when practicable.

b. Minors: Facilities should have provisions to allow for contact or non-contact visitation with minor children, stepchildren and foster children. Facilities that allow visitations by minor children, stepchildren and foster children should try to facilitate contact visitation when possible. Facilities should allow detainees to see their minor children as soon as possible after admission. Generous time allotments for visitation with minor children are recommended.
At facilities where there is no provision for visits by minors, upon request, ICE/ERO shall arrange for a visit by children, stepchildren and foster children within the first 30 days. After that time, upon request, ICE/ERO shall consider a request for transfer, when possible, to a facility that shall allow such visitation. Upon request, ICE/ERO shall continue monthly visits, if transfer is not approved, or until an approved transfer can be effected.
At the supervisor’s discretion, a minor without positive identification may be admitted if the accompanying adult visitor vouches for his/her identity. Minors must remain under the direct supervision of an adult visitor so as not to disturb other visitors, and excessively disruptive conduct by minors may result in termination of the visit.
c. Others may include grandparents, uncles, aunts, in-laws, cousins, nieces, nephews, non-relatives and friends.
3. Visitor Identification and Search Procedures
Staff shall verify each adult visitor’s identity before admitting him/her to the facility. No adult visitor may be admitted without government-issued photo identification. All visitors shall be subject to identification and personal search in accordance with standard “2.4 Facility Security and Control.”
The facility administrator may establish a procedure for random criminal background and warrant checks for the purpose of ensuring facility safety, security

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and good order. Visitors shall not be precluded from visiting a detainee solely because of a past conviction. Facilities can exclude visitors based on an examination of the underlying conduct of the conviction.
Staff shall escort visitors to the visiting room only after completing identification and inspection as provided in the facility’s written procedures. All visitors are subject to a personal search, which may include a pat (“pat-down”) search as well as a visual inspection of purses, briefcases, packages and other containers. Written procedures shall be publicly available to inform visitors that they are subject to search procedures. Any person who refuses to be searched is prohibited from visiting a detainee.
In each facility, written procedures shall provide for the prevention, cancellation or termination of any visit that appears to pose a threat to safety, security or good order. Visiting area officers or other staff, who believe a situation poses such a threat, shall alert the shift supervisor or equivalent; the supervisor may then prevent, cancel or terminate the visit.
The inspecting officer may ask the visitor to open a purse, briefcase, package, and other container for visual inspection of its contents. If warranted, the officer may ask the visitor to remove the contents and place them on a table; however, the officer may not place his or her hands inside the container. Facilities shall provide and promote visitors' use of lockers or a secure area provided for safekeeping of personal belongings during visits.
Only an officer with the rank of supervisor or above may deny or cancel a visit. In those cases, the officer shall document his or her action in a memorandum sent through official channels to the facility administrator. The visiting room officer, with concurrence from the shift supervisor, may terminate visits involving inappropriate behavior.
Facilities shall not require approved visitor lists from ICE/ERO detainees.

4. Contact Visits
Written procedures shall detail the limits and conditions of contact visits in facilities that permit them. Ordinarily, within the bounds of propriety, handshaking, embracing and kissing are permitted only at the beginning and end of the visit; however, staff may limit physical contact to minimize opportunities for contraband introduction and to otherwise maintain the orderly operation of the visiting area.
Detainees receiving contact visits shall be given a thorough pat-down search prior to entering the visiting room. Upon exiting, searches of detainees shall be conducted in accordance with facility policy and procedures, which should be reflective of such factors as:
a. the nature of the facility;
b. whether the facility houses detainees pending trial for violent or drug-related crimes;
c. the availability of appropriate screening devices; monitoring technology; and/or
d. concern for contraband entering the facility.
A facility may only adopt a policy permitting strip searches after contact visits in the absence of reasonable suspicion if detainees have the right to choose non-contact visitation instead. Detainees must be fully informed of that option and the policy generally in a language or manner they understand. The facility must document all strip searches that are performed based on such policy.
5. Visits for Administrative and Disciplinary Segregation Detainees
While in administrative or disciplinary segregation status, a detainee ordinarily retains visiting privileges.
Segregated detainees may ordinarily use the visiting room during normal visiting hours. However, the facility may restrict or disallow visits for a detainee who violates visiting rules or whose behavior

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indicates that he/she may be a threat to the security or good order of the visiting room.
Under no circumstances may detainees be permitted to participate in visitation while in restraints. If the detainee’s behavior warrants restraints, the visit may not be granted under general population visiting conditions. Any restriction or denial of visits shall be documented in writing.
Detainees in protective custody, and violent and/or disruptive detainees, shall not use the visitation room during normal visitation hours. In cases in which a visit may present an unreasonable security risk, visits may be disallowed for a particular detainee.
J. Visits by Legal Representatives and Legal Assistants
1. General
In visits referred to as “legal visitation,” each detainee may meet privately with current or prospective legal representatives and their legal assistants. Legal visits may not be terminated for routine official counts.
2. Hours
Each facility shall permit legal visitation seven days a week, including holidays, for a minimum of eight hours per day on regular business days (Monday through Friday), and a minimum of four hours per day on weekends and holidays.
The facility shall provide notification of the rules and hours for legal visitation as specified above. This information shall be prominently posted in the waiting areas and visiting areas and in the housing units.
On regular business days, legal visitations may proceed through a scheduled meal period, and the detainee shall receive a tray or sack meal after the visit.
In emergency circumstances, facilities may consider

requests from legal representatives for extended visits or visits outside normal facility visiting hours.
3. Persons Allowed to Visit
Subject to the restrictions stated below, individuals in the following categories may visit detainees to discuss legal matters:
a. Attorneys and Other Legal Representatives: An attorney is any person who is a member in good standing of the bar of the highest court of any state, possession, territory, commonwealth or the District of Columbia, and is not under an order of any court suspending, enjoining, restraining, disbarring or otherwise restricting him/her in the practice of law.
A legal representative is an attorney or other person representing another in a matter of law, including: law students or law graduates not yet admitted to the bar under certain conditions; accredited representatives; and accredited officials and attorneys licensed outside the United States. See 8 C.F.R. § 292.1 for more detailed definitions of these terms.
b. Legal Assistants: Upon presentation of a letter of authorization from the legal representative under whose supervision he/she is working, an unaccompanied legal assistant may meet with a detainee during legal visitation hours. The letter shall state that the named legal assistant is working on behalf of the supervising legal representative for purposes of meeting with the ICE/ERO detainee(s).
c. Translators and Interpreters: The facility shall permit translators and interpreters to accompany legal representatives and legal assistants on legal visits, subject to “Visitor Identification and Search Procedures” detailed above.
d. Messengers: The facility shall permit messengers (who are not legal representatives or legal assistants) to deliver documents to and from the facility, but not to visit detainees.

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4. Identification of Legal Representatives and Legal Assistants
Prior to each visit, all legal representatives and assistants shall be required to provide appropriate identification, such as a bar card from any state, a document demonstrating partial or full accreditation from the U.S. Department of Justice (DOJ) Executive Office for Immigration Review (EOIR), or a letter of authorization from the legal representative or attorney under whose supervision the individual is working as detailed above.
Legal representatives and legal assistants shall not be asked to state the legal subject matter of the meeting.
Legal representatives and legal assistants are subject to a non-intrusive search—such as a pat-down search of the person or a search of the person’s belongings—at any time for the purpose of ascertaining the absence of contraband.
5. Identification of Detainee to Be Visited
While identification by A-number is preferable, a facility may not require legal representatives and assistants to submit a detainee’s A-number as a condition of visiting. Where the legal representative or assistant provides alternative information sufficient to reasonably identify the specific detainee, the facility shall make a good-faith effort to locate a detainee
6. Call-Ahead Inquiries
Each facility shall establish a written procedure to allow legal representatives and assistants to telephone the facility in advance of a visit to determine whether a particular individual is detained there. The request must be made to the on-site ICE/ERO staff or, where there is no resident staff, to the ICE/ERO office with jurisdiction over the facility.
7. Pre-Representation Meetings
During the regular hours for legal visitation, the facility shall permit detainees to meet with prospective legal representatives or legal assistants.

The facility shall document such “prerepresentation meetings” in the logbook for legal visitation.
To meet with a detainee, a legal service provider’s representative need not complete a Form G-28 (stating that he/she is legal representatives of the detainee) at the “pre-representation” stage.
8. Form G-28 and Attorney/Client Meetings
Attorneys representing detainees on legal matters unrelated to immigration are not required to complete a Form G-28.
Once an attorney-client relationship has been established, or if an attorney-client relationship already exists, the legal representative shall complete and submit a Form G-28, available in the legal visitation reception area. Staff shall collect completed forms and forward them to ICE/ERO.
9. Private Meeting Room and Interruption for Head Counts
Visits between legal representatives or legal assistants and an individual detainee are confidential and shall not be subject to auditory supervision. Private consultation rooms shall be available for such meetings.
Officers may terminate legal visits at the end of the allotted time or to maintain security, but not for routine official counts.
Staff shall not be present in the confidential area during the meeting unless the legal representative or legal assistant requests the presence of an officer; however, as long as staff cannot overhear the conversation, staff may observe such meetings visually through a window or camera, to the extent necessary to maintain security.
When a situation arises in which private conference rooms are in use and the attorney wishes to meet in a regular or alternate visiting room, the request shall be accommodated to the extent practicable. Such meetings shall be afforded the greatest possible degree of privacy under the circumstances.

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10. Materials Provided to Detainees by Legal Representatives
The facility’s written legal visitation procedures must provide for the exchange of documents between a detainee and the legal representative or assistant, even when contact visitation rooms are unavailable.
Documents or other written material provided to a detainee during a visit with a legal representative shall be inspected but not read. Detainees are entitled to retain legal material received for their personal use. Quantities of blank forms or self-help legal material in excess of those required for personal use may be held for the detainee with his/her property. The detainee shall be permitted access to these documents utilizing the established avenues of communication.
11. Administrative and Disciplinary Segregation
Detainees in administrative or disciplinary segregation shall be allowed legal visitation. If the facility administrator considers special security measures necessary, he/she shall notify the legal service provider of the security concerns prior to the meeting.
12. Group Legal Meetings
Upon request of a legal representative or assistant, the facility administrator may permit a confidential meeting (with no officer present) involving the requester and two or more detainees. This may occur for various purposes (e.g., pre-representational, representational, removal-related). The facility shall grant such requests to the greatest extent practicable, if it has the physical capacity and if the meeting shall not interfere with the safety, security and good order of the facility. Each facility administrator shall limit detainee attendance according to the practical concerns of the facility, or the security concerns associated with the meeting in question.
See also standard “6.4 Legal Rights Group Presentations.”
13. ICE/ERO-Provided List of Free Legal Service

Providers and Detainee Sign-Up
ICE/ERO shall provide each facility the official list of local free legal service providers, updated quarterly by the local DOJ Executive Office for Immigration Review. The facility shall promptly and prominently post the current list in detainee housing units and other appropriate areas.
Any legal organization or individual on the current list may write the facility administrator to request the posting and/or general circulation of a sign-up sheet.
The facility administrator shall then notify detainees of the availability of the sign-up sheet and according to established procedures, ensure coordination with the pro bono organization.
14. Legal Visitation Log
Staff shall maintain a separate log to record all legal visitors, including those denied access to the detainee. The log shall include the reason(s) for denying access.
Log entries shall include the following information:
a. date;
b. time of arrival;
c. visitor’s name;
d. visitor’s address;
e. supervising attorney’s name (if applicable);
f. detainee’s name and A-number;
g. whether the detainee currently has a G-28 on file;
h. time visit began; and
i. time visit ended.
Staff shall also record any important comments about the visit.
15. Availability of Legal Visitation Policy
The facility’s written legal visitation policy shall be available upon request. The site-specific policy shall specify visitation hours, procedures and standards

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and address, at a minimum, the following:
a. telephone inquiries;
b. dress code;
c. legal assistants working under the supervision of an attorney;
d. pre-representational meetings;
e. Form G-28 requirements;
f. identification and search of legal representatives;
g. identification of visitors;
h. materials provided to detainees by legal representatives;
i. confidential group legal meetings; and
j. detainee sign-up.
K. Consultation Visits for Detainees Subject to Expedited Removal
1. General
Detainees who are subject to expedited removal and who have been referred to an asylum officer are entitled by statute and regulation to consult with persons of the detainee’s choosing, both prior to the interview and while the asylum officer’s decision is under review. Such consultation visitation is for the general purpose of discussing immigration matters, not for purely social visits covered earlier.
a. The consultation visitation period begins before any interview with an asylum officer and continues while the asylum officer’s determination is under review by the supervisory asylum officer or immigration judge.
b. The consultation visitation period ends with the issuance of a Notice to Appear and once the detainee is placed in removal proceedings before an immigration judge; however, the detainee retains legal and other visitation privileges in accordance with this standard.
“Consultation visitation” may neither incur

government expense nor unduly delay the removal process.
2. Method of Consultation
Because expedited removal procedures occur within short time frames, each facility shall develop procedures that liberally allow for consultation visitation, to ensure compliance with statutory and regulatory requirements and to prevent delay in the expedited removal process. Given the time constraints, consultation by mail is highly discouraged.
Facility staff shall ensure that consultation, whether in person, by telephone or by electronic means, proceed without hindrance. Staff shall be sensitive to individual circumstances when resolving consultation-related issues.
Consultation visitation shall be allowed during legal visitation hours and during general visitation hours. If necessary to meet demand, the facility administrator shall increase consultation visiting hours.
3. Persons Allowed to Visit for Consultation Purposes
Detainees subject to expedited removal may consult whomever they choose, in person, by phone or by other electronic needs, at any time during the first 48 hours of detention. Consultants might include, but are not limited to, attorneys and other legal representatives, prospective legal representatives, legal assistants, members of non-governmental organizations (NGOs) and friends and family.
Consultants are subject to the same identification and security screening procedures as general visitors. If documented security concerns preclude an in-person visit with a particular individual, the facility administrator shall arrange for consultation by telephone or other electronic means. If security reasons also preclude consultation by telephone or other electronic means, the facility administrator, through the Field Office Director, shall consult the respective ICE Office of Chief Counsel.

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4. Privacy
Consultation visits, whether in person, by telephone or other electronic means, shall receive the same privacy as communications between legal representatives and detainees.
5. Admittance for Asylum Officer Interview
Detainees subject to expedited removal may bring and consult advisors during the asylum officer interview. The presence of persons to consult is also allowed during the Immigration Judge’s review of a negative credible fear determination, at the judge’s discretion.
6. Log
Staff shall record consultation visits in the legal visitation log.
7. Form G-28 for Consultation Visits
Visitors are not required to file a Form G-28 to participate in a consultation visit or provide consultation during an asylum officer interview or Immigration Judge’s review of a negative credible fear determination. This stipulation applies even if the visitor is an attorney or legal representative.
8. Other Considerations for Consultation Visits
The above procedures for “Visits by Legal Representatives and Legal Assistants” apply to other considerations in regard to consultation visits such as the following:
a. group consultations;
b. call-ahead inquiries;
c. searches;
d. detainee identification;
e. materials provided to detainees by the visitor;
f. consultation visits for detainees in administrative and disciplinary segregation;
g. pro-bono list and detainee sign-up; and
h. availability of consultation visitation policy.

L. Consular Visitation
According to international agreements and under regulation 8 C.F.R. § 236.1, detainees must be advised of their right to consular access and ICE/ERO shall facilitate the detainee’s access to consular officers. ICE/ERO policy and practice stipulate that all detained individuals be provided with notice, through the facility administrator, of their right to contact their consular representative(s) and receive visits from their consulate officer(s).
The facility administrator shall ensure that all detainees are notified of and afforded the right to contact and receive visits from their consular officers. The same hours, privacy and conditions that govern legal visitation apply to consular visitation. Consular visits may be permitted at additional times outside normal visitation hours, with the facility administrator’s prior authorization.
To conduct such visits, consular officers must present Department of State-issued identification.
M. Visits from Representatives of Community Service Organizations
The facility administrator may approve visits to one or more detainees by individuals or groups representing community service organizations, including civic, religious, cultural, therapeutic and other groups. Volunteers may provide a special religious, educational, therapeutic or recreational activity.
The facility administrator’s approval shall take into account such factors as:
1. safety and security considerations;
2. availability of detention personnel to supervise the activity; and
3. sufficient advance notification to the facility administrator.
Detainees’ immediate family and other relatives, friends and associates, as detailed above under

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“Persons Allowed to Visit,” may not serve as volunteers.
To inform the facility administrator’s decision, facility staff (such as chaplains and recreation specialists) shall verify the organization’s bona fide interests and qualifications for this kind of service.
Groups and/or individuals from those groups must:
1. Provide the facility with advance notification of the names, dates of birth and social security numbers or unexpired passport number of the group members who shall be visiting;
All volunteers, regardless of title or position, are subject to a background check that includes, but is not limited to, a criminal history check, verification of identity and occupation and verification of credentials for the type of activity involved;
2. Provide identification for individual members of the group upon arrival at the facility.
Standard “2.4 Facility Security and Control” details procedures for checking a visitor’s identity, issuing visitor passes and accounting for visitors while they are in the facility;
3. Comply with visitation rules: each approved volunteer shall receive an appropriate orientation to the facility, and shall acknowledge his/her understanding of rules and procedures by signing an agreement to comply with them, particularly in regard to permissible behavior and relationships with detainees. The orientation and signed agreement shall include at a minimum, the following functions:
a. specify lines of authority, responsibility and accountability for volunteers; and
b. prohibit volunteers from:

1) using their official positions to secure
 privileges for themselves or others;

2) engaging in activities that constitute a


conflict of interest; and
3) accepting any gift from or engaging in personal business transactions with a detainee or a detainee’s immediate family.
All volunteers shall be held accountable for compliance with the rules and procedures.
4. Read and sign a waiver of liability that releases ICE/ERO of all responsibility in case of injury during the visit before being admitted to any secure portion of the facility or location where detainees are present.
N. Other Special Visits
1. Independent Medical Service Providers and Experts
A detainee or his/her legal representative may seek an independent medical or mental health examination to develop information useful in administrative proceedings, in accordance with “EE. Examinations by Independent Medical Service Providers and Experts” found in standard 4.3 “Medical Care.” Once the Field Office Director has approved the request for an independent examination, the facility shall provide a location for the examination but no medical equipment or supplies and the examination must be arranged and conducted in a manner consistent with maintaining the security and good order of the facility.
2. Law Enforcement Officials’ Visits
Facility visitation procedures shall cover law enforcement officials requesting interviews with detainees. Facilities shall notify and seek approval from ICE/ERO of any proposed law enforcement officer visit with a detainee.
3. Visitation by Former Detainees or Aliens in Proceedings
Former ICE/ERO detainees, individuals with criminal records and individuals in deportation proceedings shall not be automatically excluded from visitation. Individuals in any of these categories

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must so notify the facility administrator before registering for visitation privileges. The facility administrator shall weigh the nature and extent of an individual’s criminal record and/or prior conduct against the benefits of visitation in determining visitation privileges. A potential visitor’s failure to disclose such matters may preclude visitation privileges.
4. Business Visitors
A detainee may not actively engage in business or professional interests or activities; however, in the event that a detainee must make a decision that shall substantially affect the assets or prospects of a

business, the facility administrator may permit a special visit.
ICE/ERO does not recognize or sanction any workrelease program.
5. Visiting Rules Regarding Animals
Each facility shall establish and disseminate a policy and implementing procedures governing whether and, if so, under what circumstances animals may accompany human visitors onto or into facility property.
However, service animals shall be permitted to accompany all persons with disabilities.

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Interim Guidance on Management of Coronavirus Disease
2019 (COVID-19) in Correctional and Detention Facilities

This interim guidance is based on what is currently known about the transmission and severity of coronavirus disease 2019 (COVID-19) as of March 23, 2020.
The US Centers for Disease Control and Prevention (CDC) will update this guidance as needed and as additional information becomes available. Please check the following CDC website periodically for updated interim guidance: https://www.cdc.gov/coronavirus/2019-ncov/index.html.
This document provides interim guidance specific for correctional facilities and detention centers during the outbreak of COVID-19, to ensure continuation of essential public services and protection of the health and safety of incarcerated and detained persons, staff, and visitors. Recommendations may need to be revised as more information becomes available.

In this guidance
• Who is the intended audience for this guidance?
• Why is this guidance being issued?
• What topics does this guidance include?
• Definitions of Commonly Used Terms
• Facilities with Limited Onsite Healthcare Services
• COVID-19 Guidance for Correctional Facilities
• Operational Preparedness
• Prevention
• Management
• Infection Control
• Clinical Care of COVID-19 Cases
• Recommended PPE and PPE Training for Staff and Incarcerated/Detained Persons
• Verbal Screening and Temperature Check Protocols for Incarcerated/ Detained Persons, Staff, and Visitors

Who is the intended audience for this guidance?
This document is intended to provide guiding principles for healthcare and non-healthcare administrators of correctional and detention facilities (including but not limited to federal and state prisons, local jails, and detention centers), law enforcement agencies that have custodial authority for detained populations (i.e., US Immigration and Customs Enforcement and US Marshals Service), and their respective health departments, to assist in preparing for potential introduction, spread, and mitigation of COVID-19 in their facilities. In general, the document uses terminology referring to correctional environments but can also be applied to civil and pre-trial detention settings.
This guidance will not necessarily address every possible custodial setting and may not use legal terminology specific to individual agencies’ authorities or processes. The guidance may need to be adapted based on individual facilities’ physical space, staffing, population, operations, and other resources and conditions. Facilities should contact CDC or their state, local, territorial, and/or tribal public health department if they need assistance in applying these principles or addressing topics that are not specifically covered in this guidance.

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Why is this guidance being issued?
Correctional and detention facilities can include custody, housing, education, recreation, healthcare, food service, and workplace components in a single physical setting. The integration of these components presents unique challenges for control of COVID-19 transmission among incarcerated/detained persons, staff, and visitors. Consistent application of specific preparation, prevention, and management measures can help reduce the risk of transmission and severe disease from COVID-19.
• Incarcerated/detained persons live, work, eat, study, and recreate within congregate environments, heightening the potential for COVID-19 to spread once introduced.
• In most cases, incarcerated/detained persons are not permitted to leave the facility.
• There are many opportunities for COVID-19 to be introduced into a correctional or detention facility, including daily staff ingress and egress; transfer of incarcerated/detained persons between facilities and systems, to court appearances, and to outside medical visits; and visits from family, legal representatives, and other community members. Some settings, particularly jails and detention centers, have high turnover, admitting new entrants daily who may have been exposed to COVID-19 in the surrounding community or other regions.
• Persons incarcerated/detained in a particular facility often come from a variety of locations, increasing the potential to introduce COVID-19 from different geographic areas.
• Options for medical isolation of COVID-19 cases are limited and vary depending on the type and size of facility, as well as the current level of available capacity, which is partly based on medical isolation needs for other conditions.
• Adequate levels of custody and healthcare staffing must be maintained to ensure safe operation of the facility, and options to practice social distancing through work alternatives such as working from home or reduced/alternate schedules are limited for many staff roles.
• Correctional and detention facilities can be complex, multi-employer settings that include government and private employers. Each is organizationally distinct and responsible for its own operational, personnel, and occupational health protocols and may be prohibited from issuing guidance or providing services to other employers or their staff within the same setting. Similarly, correctional and detention facilities may house individuals from multiple law enforcement agencies or jurisdictions subject to different policies and procedures.
• Incarcerated/detained persons and staff may have medical conditions that increase their risk of severe disease from COVID-19.
• Because limited outside information is available to many incarcerated/detained persons, unease and misinformation regarding the potential for COVID-19 spread may be high, potentially creating security and morale challenges.
• The ability of incarcerated/detained persons to exercise disease prevention measures (e.g., frequent handwashing) may be limited and is determined by the supplies provided in the facility and by security considerations. Many facilities restrict access to soap and paper towels and prohibit alcohol-based hand sanitizer and many disinfectants.
• Incarcerated persons may hesitate to report symptoms of COVID-19 or seek medical care due to co-pay requirements and fear of isolation.
CDC has issued separate COVID-19 guidance addressing healthcare infection control and clinical care of COVID-19 cases as well as close contacts of cases in community-based settings. Where relevant, community-focused guidance documents are referenced in this document and should be monitored regularly for updates, but they may require adaptation for correctional and detention settings.
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This guidance document provides additional recommended best practices specifically for correctional and detention facilities. At this time, different facility types (e.g., prison vs. jail) and sizes are not differentiated. Administrators and agencies should adapt these guiding principles to the specific needs of their facility.
What topics does this guidance include?
The guidance below includes detailed recommendations on the following topics related to COVID-19 in correctional and detention settings:
√ Operational and communications preparations for COVID-19
√ Enhanced cleaning/disinfecting and hygiene practices
√ Social distancing strategies to increase space between individuals in the facility
√ How to limit transmission from visitors
√ Infection control, including recommended personal protective equipment (PPE) and potential alternatives during PPE shortages
√ Verbal screening and temperature check protocols for incoming incarcerated/detained individuals, staff, and visitors
√ Medical isolation of confirmed and suspected cases and quarantine of contacts, including considerations for cohorting when individual spaces are limited
√ Healthcare evaluation for suspected cases, including testing for COVID-19
√ Clinical care for confirmed and suspected cases
√ Considerations for persons at higher risk of severe disease from COVID-19
Definitions of Commonly Used Terms
Close contact of a COVID-19 case—In the context of COVID-19, an individual is considered a close contact if they a) have been within approximately 6 feet of a COVID-19 case for a prolonged period of time or b) have had direct contact with infectious secretions from a COVID-19 case (e.g., have been coughed on). Close contact can occur while caring for, living with, visiting, or sharing a common space with a COVID-19 case. Data to inform the definition of close contact are limited. Considerations when assessing close contact include the duration of exposure (e.g., longer exposure time likely increases exposure risk) and the clinical symptoms of the person with COVID-19 (e.g., coughing likely increases exposure risk, as does exposure to a severely ill patient).
Cohorting—Cohorting refers to the practice of isolating multiple laboratory-confirmed COVID-19 cases together as a group, or quarantining close contacts of a particular case together as a group. Ideally, cases should be isolated individually, and close contacts should be quarantined individually. However, some correctional facilities and detention centers do not have enough individual cells to do so and must consider cohorting as an alternative. See Quarantine and Medical Isolation sections below for specific details about ways to implement cohorting to minimize the risk of disease spread and adverse health outcomes.
Community transmission of COVID-19—Community transmission of COVID-19 occurs when individuals acquire the disease through contact with someone in their local community, rather than through travel to an affected location. Once community transmission is identified in a particular area, correctional facilities and detention centers are more likely to start seeing cases inside their walls. Facilities should consult with local public health departments if assistance is needed in determining how to define “local community” in the context of COVID-19 spread. However, because all states have reported cases, all facilities should be vigilant for introduction into their populations.
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Confirmed vs. Suspected COVID-19 case—A confirmed case has received a positive result from a COVID-19 laboratory test, with or without symptoms. A suspected case shows symptoms of COVID-19 but either has not been tested or is awaiting test results. If test results are positive, a suspected case becomes a confirmed case.
Incarcerated/detained persons—For the purpose of this document, “incarcerated/detained persons” refers to persons held in a prison, jail, detention center, or other custodial setting where these guidelines are generally applicable. The term includes those who have been sentenced (i.e., in prisons) as well as those held for pre-trial (i.e., jails) or civil purposes (i.e, detention centers). Although this guidance does not specifically reference individuals in every type of custodial setting (e.g., juvenile facilities, community confinement facilities), facility administrators can adapt this guidance to apply to their specific circumstances as needed.
Medical Isolation—Medical isolation refers to confining a confirmed or suspected COVID-19 case (ideally to a single cell with solid walls and a solid door that closes), to prevent contact with others and to reduce the risk of transmission. Medical isolation ends when the individual meets pre-established clinical and/or testing criteria for release from isolation, in consultation with clinical providers and public health officials (detailed in guidance below). In this context, isolation does NOT refer to punitive isolation for behavioral infractions within the custodial setting. Staff are encouraged to use the term “medical isolation” to avoid confusion.
Quarantine—Quarantine refers to the practice of confining individuals who have had close contact with a COVID-19 case to determine whether they develop symptoms of the disease. Quarantine for COVID-19 should last for a period of 14 days. Ideally, each quarantined individual would be quarantined in a single cell with solid walls and a solid door that closes. If symptoms develop during the 14-day period, the individual should be placed under medical isolation and evaluated for COVID-19. If symptoms do not develop, movement restrictions can be lifted, and the individual can return to their previous residency status within the facility.
Social Distancing—Social distancing is the practice of increasing the space between individuals and decreasing the frequency of contact to reduce the risk of spreading a disease (ideally to maintain at least 6 feet between all individuals, even those who are asymptomatic). Social distancing strategies can be applied on an individual level (e.g., avoiding physical contact), a group level (e.g., canceling group activities where individuals will be in close contact), and an operational level (e.g., rearranging chairs in the dining hall to increase distance between them). Although social distancing is challenging to practice in correctional and detention environments, it is a cornerstone of reducing transmission of respiratory diseases such as COVID-19. Additional information about social distancing, including information on its use to reduce the spread of other viral illnesses, is available in this CDC publication.
Staff—In this document, “staff” refers to all public sector employees as well as those working for a private contractor within a correctional facility (e.g., private healthcare or food service). Except where noted, “staff” does not distinguish between healthcare, custody, and other types of staff including private facility operators.
Symptoms—Symptoms of COVID-19 include fever, cough, and shortness of breath. Like other respiratory infections, COVID-19 can vary in severity from mild to severe. When severe, pneumonia, respiratory failure, and death are possible. COVID-19 is a novel disease, therefore the full range of signs and symptoms, the clinical course of the disease, and the individuals and populations most at risk for disease and complications are not yet fully understood. Monitor the CDC website for updates on these topics.
Facilities with Limited Onsite Healthcare Services
Although many large facilities such as prisons and some jails usually employ onsite healthcare staff and have the capacity to evaluate incarcerated/detained persons for potential illness within a dedicated healthcare space, many smaller facilities do not. Some of these facilities have access to on-call healthcare staff or providers who visit the facility every few days. Others have neither onsite healthcare capacity nor onsite medical isolation/quarantine space and must transfer ill patients to other correctional or detention facilities or local hospitals for evaluation and care.
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The majority of the guidance below is designed to be applied to any correctional or detention facility, either as written or with modifications based on a facility’s individual structure and resources. However, topics related to healthcare evaluation and clinical care of confirmed and suspected COVID-19 cases and their close contacts may not apply directly to facilities with limited or no onsite healthcare services. It will be especially important for these types of facilities to coordinate closely with their state, local, tribal, and/or territorial health department when they encounter confirmed or suspected cases among incarcerated/detained persons or staff, in order to ensure effective medical isolation and quarantine, necessary medical evaluation and care, and medical transfer if needed. The guidance makes note of strategies tailored to facilities without onsite healthcare where possible.
Note that all staff in any sized facility, regardless of the presence of onsite healthcare services, should observe guidance on recommended PPE in order to ensure their own safety when interacting with confirmed and suspected COVID-19 cases. Facilities should make contingency plans for the likely event of PPE shortages during the COVID-19 pandemic.
COVID-19 Guidance for Correctional Facilities
Guidance for correctional and detention facilities is organized into 3 sections: Operational Preparedness, Prevention, and Management of COVID-19. Recommendations across these sections can be applied simultaneously based on the progress of the outbreak in a particular facility and the surrounding community.
• Operational Preparedness. This guidance is intended to help facilities prepare for potential COVID-19 transmission in the facility. Strategies focus on operational and communications planning and personnel practices.
• Prevention. This guidance is intended to help facilities prevent spread of COVID-19 from outside the facility to inside. Strategies focus on reinforcing hygiene practices, intensifying cleaning and disinfection of the facility, screening (new intakes, visitors, and staff), continued communication with incarcerated/ detained persons and staff, and social distancing measures (increasing distance between individuals).
• Management. This guidance is intended to help facilities clinically manage confirmed and suspected COVID-19 cases inside the facility and prevent further transmission. Strategies include medical isolation and care of incarcerated/detained persons with symptoms (including considerations for cohorting), quarantine of cases’ close contacts, restricting movement in and out of the facility, infection control practices for individuals interacting with cases and quarantined contacts or contaminated items, intensified social distancing, and cleaning and disinfecting areas visited by cases.
Operational Preparedness
Administrators can plan and prepare for COVID-19 by ensuring that all persons in the facility know the symptoms of COVID-19 and how to respond if they develop symptoms. Other essential actions include developing contingency plans for reduced workforces due to absences, coordinating with public health and correctional partners, and communicating clearly with staff and incarcerated/detained persons about these preparations and how they may temporarily alter daily life.
Communication & Coordination
√ Develop information-sharing systems with partners. ο Identify points of contact in relevant state, local, tribal, and/or territorial public health departments before cases develop. Actively engage with the health department to understand in advance which entity has jurisdiction to implement public health control measures for COVID-19 in a particular correctional or detention facility.
ο Create and test communications plans to disseminate critical information to incarcerated/detained persons, staff, contractors, vendors, and visitors as the pandemic progresses.
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ο Communicate with other correctional facilities in the same geographic area to share information including disease surveillance and absenteeism patterns among staff.
ο Where possible, put plans in place with other jurisdictions to prevent confirmed and suspected COVID-19 cases and their close contacts from being transferred between jurisdictions and facilities unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, or to prevent overcrowding.
ο Stay informed about updates to CDC guidance via the CDC COVID-19 website as more information becomes known.
√ Review existing pandemic flu, all-hazards, and disaster plans, and revise for COVID-19. ο Ensure that physical locations (dedicated housing areas and bathrooms) have been identified to isolate confirmed COVID-19 cases and individuals displaying COVID-19 symptoms, and to quarantine known close contacts of cases. (Medical isolation and quarantine locations should be separate). The plan should include contingencies for multiple locations if numerous cases and/ or contacts are identified and require medical isolation or quarantine simultaneously. See Medical Isolation and Quarantine sections below for details regarding individual medical isolation and quarantine locations (preferred) vs. cohorting. ο Facilities without onsite healthcare capacity should make a plan for how they will ensure that suspected COVID-19 cases will be isolated, evaluated, tested (if indicated), and provided necessary medical care. ο Make a list of possible social distancing strategies that could be implemented as needed at different stages of transmission intensity. ο Designate officials who will be authorized to make decisions about escalating or de-escalating response efforts as the epidemiologic context changes.
√ Coordinate with local law enforcement and court officials. ο Identify lawful alternatives to in-person court appearances, such as virtual court, as a social distancing measure to reduce the risk of COVID-19 transmission. ο Explore strategies to prevent over-crowding of correctional and detention facilities during a community outbreak.
√ Post signage throughout the facility communicating the following: ο For all: symptoms of COVID-19 and hand hygiene instructions ο For incarcerated/detained persons: report symptoms to staff ο For staff: stay at home when sick; if symptoms develop while on duty, leave the facility as soon as possible and follow CDC-recommended steps for persons who are ill with COVID-19 symptoms including self-isolating at home, contacting their healthcare provider as soon as possible to determine whether they need to be evaluated and tested, and contacting their supervisor. ο Ensure that signage is understandable for non-English speaking persons and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.
Personnel Practices
√ Review the sick leave policies of each employer that operates in the facility. ο Review policies to ensure that they actively encourage staff to stay home when sick. ο If these policies do not encourage staff to stay home when sick, discuss with the contract company. ο Determine which officials will have the authority to send symptomatic staff home.
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√ Identify staff whose duties would allow them to work from home. Where possible, allowing staff to work from home can be an effective social distancing strategy to reduce the risk of COVID-19 transmission. ο Discuss work from home options with these staff and determine whether they have the supplies and technological equipment required to do so. ο Put systems in place to implement work from home programs (e.g., time tracking, etc.).
√ Plan for staff absences. Staff should stay home when they are sick, or they may need to stay home to care for a sick household member or care for children in the event of school and childcare dismissals. ο Allow staff to work from home when possible, within the scope of their duties. ο Identify critical job functions and plan for alternative coverage by cross-training staff where possible. ο Determine minimum levels of staff in all categories required for the facility to function safely. If possible, develop a plan to secure additional staff if absenteeism due to COVID-19 threatens to bring staffing to minimum levels. ο Consider increasing keep on person (KOP) medication orders to cover 30 days in case of healthcare staff shortages.
√ Consider offering revised duties to staff who are at higher risk of severe illness with COVID-19. Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions including lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue. ο Facility administrators should consult with their occupational health providers to determine whether it would be allowable to reassign duties for specific staff members to reduce their likelihood of exposure to COVID-19.
√ Offer the seasonal influenza vaccine to all incarcerated/detained persons (existing population and new intakes) and staff throughout the influenza season. Symptoms of COVID-19 are similar to those of influenza. Preventing influenza cases in a facility can speed the detection of COVID-19 cases and reduce pressure on healthcare resources.
√ Reference the Occupational Safety and Health Administration website for recommendations regarding worker health.
√ Review CDC’s guidance for businesses and employers to identify any additional strategies the facility can use within its role as an employer.
Operations & Supplies
√ Ensure that sufficient stocks of hygiene supplies, cleaning supplies, PPE, and medical supplies (consistent with the healthcare capabilities of the facility) are on hand and available, and have a plan in place to restock as needed if COVID-19 transmission occurs within the facility. ο Standard medical supplies for daily clinic needs ο Tissues ο Liquid soap when possible. If bar soap must be used, ensure that it does not irritate the skin and thereby discourage frequent hand washing. ο Hand drying supplies ο Alcohol-based hand sanitizer containing at least 60% alcohol (where permissible based on security restrictions) ο Cleaning supplies, including EPA-registered disinfectants effective against the virus that causes COVID-19
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ο Recommended PPE (facemasks, N95 respirators, eye protection, disposable medical gloves, and disposable gowns/one-piece coveralls). See PPE section and Table 1 for more detailed information, including recommendations for extending the life of all PPE categories in the event of shortages, and when face masks are acceptable alternatives to N95s.
ο Sterile viral transport media and sterile swabs to collect nasopharyngeal specimens if COVID-19 testing is indicated
√ Make contingency plans for the probable event of PPE shortages during the COVID-19 pandemic, particularly for non-healthcare workers. ο See CDC guidance optimizing PPE supplies.
√ Consider relaxing restrictions on allowing alcohol-based hand sanitizer in the secure setting where security concerns allow. If soap and water are not available, CDC recommends cleaning hands with an alcohol-based hand sanitizer that contains at least 60% alcohol. Consider allowing staff to carry individual-sized bottles for their personal hand hygiene while on duty.
√ Provide a no-cost supply of soap to incarcerated/detained persons, sufficient to allow frequent hand washing. (See Hygiene section below for additional detail regarding recommended frequency and protocol for hand washing.) ο Provide liquid soap where possible. If bar soap must be used, ensure that it does not irritate the skin and thereby discourage frequent hand washing.
√ If not already in place, employers operating within the facility should establish a respiratory protection program as appropriate, to ensure that staff and incarcerated/detained persons are fit tested for any respiratory protection they will need within the scope of their responsibilities.
√ Ensure that staff and incarcerated/detained persons are trained to correctly don, doff, and dispose of PPE that they will need to use within the scope of their responsibilities. See Table 1 for recommended PPE for incarcerated/detained persons and staff with varying levels of contact with COVID-19 cases or their close contacts.
Prevention
Cases of COVID-19 have been documented in all 50 US states. Correctional and detention facilities can prevent introduction of COVID-19 from the community and reduce transmission if it is already inside by reinforcing good hygiene practices among incarcerated/detained persons, staff, and visitors (including increasing access to soap and paper towels), intensifying cleaning/disinfection practices, and implementing social distancing strategies.
Because many individuals infected with COVID-19 do not display symptoms, the virus could be present in facilities before cases are identified. Both good hygiene practices and social distancing are critical in preventing further transmission.
Operations
√ Stay in communication with partners about your facility’s current situation. ο State, local, territorial, and/or tribal health departments ο Other correctional facilities
√ Communicate with the public about any changes to facility operations, including visitation programs.
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√ Restrict transfers of incarcerated/detained persons to and from other jurisdictions and facilities unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, or to prevent overcrowding. ο Strongly consider postponing non-urgent outside medical visits. ο If a transfer is absolutely necessary, perform verbal screening and a temperature check as outlined in the Screening section below, before the individual leaves the facility. If an individual does not clear the screening process, delay the transfer and follow the protocol for a suspected COVID-19 case— including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing. If the transfer must still occur, ensure that the receiving facility has capacity to properly isolate the individual upon arrival. Ensure that staff transporting the individual wear recommended PPE (see Table 1) and that the transport vehicle is cleaned thoroughly after transport.
√ Implement lawful alternatives to in-person court appearances where permissible.
√ Where relevant, consider suspending co-pays for incarcerated/detained persons seeking medical evaluation for respiratory symptoms.
√ Limit the number of operational entrances and exits to the facility.
Cleaning and Disinfecting Practices
√ Even if COVID-19 cases have not yet been identified inside the facility or in the surrounding community, begin implementing intensified cleaning and disinfecting procedures according to the recommendations below. These measures may prevent spread of COVID-19 if introduced.
√ Adhere to CDC recommendations for cleaning and disinfection during the COVID-19 response. Monitor these recommendations for updates. ο Several times per day, clean and disinfect surfaces and objects that are frequently touched, especially in common areas. Such surfaces may include objects/surfaces not ordinarily cleaned daily (e.g., doorknobs, light switches, sink handles, countertops, toilets, toilet handles, recreation equipment, kiosks, and telephones). ο Staff should clean shared equipment several times per day and on a conclusion of use basis (e.g., radios, service weapons, keys, handcuffs). ο Use household cleaners and EPA-registered disinfectants effective against the virus that causes COVID-19 as appropriate for the surface, following label instructions. This may require lifting restrictions on undiluted disinfectants. ο Labels contain instructions for safe and effective use of the cleaning product, including precautions that should be taken when applying the product, such as wearing gloves and making sure there is good ventilation during use.
√ Consider increasing the number of staff and/or incarcerated/detained persons trained and responsible for cleaning common areas to ensure continual cleaning of these areas throughout the day.
√ Ensure adequate supplies to support intensified cleaning and disinfection practices, and have a plan in place to restock rapidly if needed.
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Hygiene
√ Reinforce healthy hygiene practices, and provide and continually restock hygiene supplies throughout the facility, including in bathrooms, food preparation and dining areas, intake areas, visitor entries and exits, visitation rooms and waiting rooms, common areas, medical, and staff-restricted areas (e.g., break rooms).
√ Encourage all persons in the facility to take the following actions to protect themselves and others from COVID-19. Post signage throughout the facility, and communicate this information verbally on a regular basis. Sample signage and other communications materials are available on the CDC website. Ensure that materials can be understood by non-English speakers and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.
ο Practice good cough etiquette: Cover your mouth and nose with your elbow (or ideally with a tissue) rather than with your hand when you cough or sneeze, and throw all tissues in the trash immediately after use.
ο Practice good hand hygiene: Regularly wash your hands with soap and water for at least 20 seconds, especially after coughing, sneezing, or blowing your nose; after using the bathroom; before eating or preparing food; before taking medication; and after touching garbage.
ο Avoid touching your eyes, nose, or mouth without cleaning your hands first. ο Avoid sharing eating utensils, dishes, and cups. ο Avoid non-essential physical contact.
√ Provide incarcerated/detained persons and staff no-cost access to: ο Soap—Provide liquid soap where possible. If bar soap must be used, ensure that it does not irritate the skin, as this would discourage frequent hand washing. ο Running water, and hand drying machines or disposable paper towels for hand washing ο Tissues and no-touch trash receptacles for disposal
√ Provide alcohol-based hand sanitizer with at least 60% alcohol where permissible based on security restrictions. Consider allowing staff to carry individual-sized bottles to maintain hand hygiene.
√ Communicate that sharing drugs and drug preparation equipment can spread COVID-19 due to potential contamination of shared items and close contact between individuals.
Prevention Practices for Incarcerated/Detained Persons
√ Perform pre-intake screening and temperature checks for all new entrants. Screening should take place in the sallyport, before beginning the intake process, in order to identify and immediately place individuals with symptoms under medical isolation. See Screening section below for the wording of screening questions and a recommended procedure to safely perform a temperature check. Staff performing temperature checks should wear recommended PPE (see PPE section below).
ο If an individual has symptoms of COVID-19 (fever, cough, shortness of breath):  Require the individual to wear a face mask.  Ensure that staff who have direct contact with the symptomatic individual wear recommended PPE.  Place the individual under medical isolation (ideally in a room near the screening location, rather than transporting the ill individual through the facility), and refer to healthcare staff for further evaluation. (See Infection Control and Clinical Care sections below.)  Facilities without onsite healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective medical isolation and necessary medical care.
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ο If an individual is a close contact of a known COVID-19 case (but has no COVID-19 symptoms):  Quarantine the individual and monitor for symptoms two times per day for 14 days. (See Quarantine section below.)  Facilities without onsite healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective quarantine and necessary medical care.
√ Implement social distancing strategies to increase the physical space between incarcerated/ detained persons (ideally 6 feet between all individuals, regardless of the presence of symptoms). Strategies will need to be tailored to the individual space in the facility and the needs of the population and staff. Not all strategies will be feasible in all facilities. Example strategies with varying levels of intensity include: ο Common areas:  Enforce increased space between individuals in holding cells, as well as in lines and waiting areas such as intake (e.g., remove every other chair in a waiting area) ο Recreation:  Choose recreation spaces where individuals can spread out  Stagger time in recreation spaces  Restrict recreation space usage to a single housing unit per space (where feasible) ο Meals:  Stagger meals  Rearrange seating in the dining hall so that there is more space between individuals (e.g., remove every other chair and use only one side of the table)  Provide meals inside housing units or cells ο Group activities:  Limit the size of group activities  Increase space between individuals during group activities  Suspend group programs where participants are likely to be in closer contact than they are in their housing environment  Consider alternatives to existing group activities, in outdoor areas or other areas where individuals can spread out ο Housing:  If space allows, reassign bunks to provide more space between individuals, ideally 6 feet or more in all directions. (Ensure that bunks are cleaned thoroughly if assigned to a new occupant.)  Arrange bunks so that individuals sleep head to foot to increase the distance between them  Rearrange scheduled movements to minimize mixing of individuals from different housing areas ο Medical:  If possible, designate a room near each housing unit to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit. If this is not feasible, consider staggering sick call.  Designate a room near the intake area to evaluate new entrants who are flagged by the intake screening process for COVID-19 symptoms or case contact, before they move to other parts of the facility.
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√ Communicate clearly and frequently with incarcerated/detained persons about changes to their daily routine and how they can contribute to risk reduction.
√ Note that if group activities are discontinued, it will be important to identify alternative forms of activity to support the mental health of incarcerated/detained persons.
√ Consider suspending work release programs and other programs that involve movement of incarcerated/detained individuals in and out of the facility.
√ Provide up-to-date information about COVID-19 to incarcerated/detained persons on a regular basis, including: ο Symptoms of COVID-19 and its health risks ο Reminders to report COVID-19 symptoms to staff at the first sign of illness
√ Consider having healthcare staff perform rounds on a regular basis to answer questions about COVID-19.
Prevention Practices for Staff
√ Remind staff to stay at home if they are sick. Ensure that staff are aware that they will not be able to enter the facility if they have symptoms of COVID-19, and that they will be expected to leave the facility as soon as possible if they develop symptoms while on duty.
√ Perform verbal screening (for COVID-19 symptoms and close contact with cases) and temperature checks for all staff daily on entry. See Screening section below for wording of screening questions and a recommended procedure to safely perform temperature checks. ο In very small facilities with only a few staff, consider self-monitoring or virtual monitoring (e.g., reporting to a central authority via phone). ο Send staff home who do not clear the screening process, and advise them to follow CDCrecommended steps for persons who are ill with COVID-19 symptoms.
√ Provide staff with up-to-date information about COVID-19 and about facility policies on a regular basis, including: ο Symptoms of COVID-19 and its health risks ο Employers’ sick leave policy ο If staff develop a fever, cough, or shortness of breath while at work: immediately put on a face mask, inform supervisor, leave the facility, and follow CDC-recommended steps for persons who are ill with COVID-19 symptoms. ο If staff test positive for COVID-19: inform workplace and personal contacts immediately, and do not return to work until a decision to discontinue home medical isolation precautions is made. Monitor CDC guidance on discontinuing home isolation regularly as circumstances evolve rapidly. ο If a staff member is identified as a close contact of a COVID-19 case (either within the facility or in the community): self-quarantine at home for 14 days and return to work if symptoms do not develop. If symptoms do develop, follow CDC-recommended steps for persons who are ill with COVID-19 symptoms.
√ If a staff member has a confirmed COVID-19 infection, the relevant employers should inform other staff about their possible exposure to COVID-19 in the workplace, but should maintain confidentiality as required by the Americans with Disabilities Act. ο Employees who are close contacts of the case should then self-monitor for symptoms (i.e., fever, cough, or shortness of breath).
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√ When feasible and consistent with security priorities, encourage staff to maintain a distance of 6 feet or more from an individual with respiratory symptoms while interviewing, escorting, or interacting in other ways.
√ Ask staff to keep interactions with individuals with respiratory symptoms as brief as possible.
Prevention Practices for Visitors
√ If possible, communicate with potential visitors to discourage contact visits in the interest of their own health and the health of their family members and friends inside the facility.
√ Perform verbal screening (for COVID-19 symptoms and close contact with cases) and temperature checks for all visitors and volunteers on entry. See Screening section below for wording of screening questions and a recommended procedure to safely perform temperature checks. ο Staff performing temperature checks should wear recommended PPE. ο Exclude visitors and volunteers who do not clear the screening process or who decline screening.
√ Provide alcohol-based hand sanitizer with at least 60% alcohol in visitor entrances, exits, and waiting areas.
√ Provide visitors and volunteers with information to prepare them for screening. ο Instruct visitors to postpone their visit if they have symptoms of respiratory illness. ο If possible, inform potential visitors and volunteers before they travel to the facility that they should expect to be screened for COVID-19 (including a temperature check), and will be unable to enter the facility if they do not clear the screening process or if they decline screening. ο Display signage outside visiting areas explaining the COVID-19 screening and temperature check process. Ensure that materials are understandable for non-English speakers and those with low literacy.
√ Promote non-contact visits: ο Encourage incarcerated/detained persons to limit contact visits in the interest of their own health and the health of their visitors. ο Consider reducing or temporarily eliminating the cost of phone calls for incarcerated/detained persons. ο Consider increasing incarcerated/detained persons’ telephone privileges to promote mental health and reduce exposure from direct contact with community visitors.
√ Consider suspending or modifying visitation programs, if legally permissible. For example, provide access to virtual visitation options where available. ο If moving to virtual visitation, clean electronic surfaces regularly. (See Cleaning guidance below for instructions on cleaning electronic surfaces.) ο Inform potential visitors of changes to, or suspension of, visitation programs. ο Clearly communicate any visitation program changes to incarcerated/detained persons, along with the reasons for them (including protecting their health and their family and community members’ health). ο If suspending contact visits, provide alternate means (e.g., phone or video visitation) for incarcerated/detained individuals to engage with legal representatives, clergy, and other individuals with whom they have legal right to consult.
NOTE: Suspending visitation would be done in the interest of incarcerated/detained persons’ physical health and the health of the general public. However, visitation is important to maintain mental health.
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If visitation is suspended, facilities should explore alternative ways for incarcerated/detained persons to communicate with their families, friends, and other visitors in a way that is not financially burdensome for them. See above suggestions for promoting non-contact visits.
√ Restrict non-essential vendors, volunteers, and tours from entering the facility.
Management
If there has been a suspected COVID-19 case inside the facility (among incarcerated/detained persons, staff, or visitors who have recently been inside), begin implementing Management strategies while test results are pending. Essential Management strategies include placing cases and individuals with symptoms under medical isolation, quarantining their close contacts, and facilitating necessary medical care, while observing relevant infection control and environmental disinfection protocols and wearing recommended PPE.
Operations
√ Implement alternate work arrangements deemed feasible in the Operational Preparedness section.
√ Suspend all transfers of incarcerated/detained persons to and from other jurisdictions and facilities (including work release where relevant), unless necessary for medical evaluation, medical isolation/quarantine, care, extenuating security concerns, or to prevent overcrowding. ο If a transfer is absolutely necessary, perform verbal screening and a temperature check as outlined in the Screening section below, before the individual leaves the facility. If an individual does not clear the screening process, delay the transfer and follow the protocol for a suspected COVID-19 case— including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing. If the transfer must still occur, ensure that the receiving facility has capacity to appropriately isolate the individual upon arrival. Ensure that staff transporting the individual wear recommended PPE (see Table 1) and that the transport vehicle is cleaned thoroughly after transport.
√ If possible, consider quarantining all new intakes for 14 days before they enter the facility’s general population (SEPARATELY from other individuals who are quarantined due to contact with a COVID-19 case). Subsequently in this document, this practice is referred to as routine intake quarantine.
√ When possible, arrange lawful alternatives to in-person court appearances.
√ Incorporate screening for COVID-19 symptoms and a temperature check into release planning. ο Screen all releasing individuals for COVID-19 symptoms and perform a temperature check. (See Screening section below.)  If an individual does not clear the screening process, follow the protocol for a suspected COVID-19 case—including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing.  If the individual is released before the recommended medical isolation period is complete, discuss release of the individual with state, local, tribal, and/or territorial health departments to ensure safe medical transport and continued shelter and medical care, as part of release planning. Make direct linkages to community resources to ensure proper medical isolation and access to medical care.  Before releasing an incarcerated/detained individual with COVID-19 symptoms to a communitybased facility, such as a homeless shelter, contact the facility’s staff to ensure adequate time for them to prepare to continue medical isolation, or contact local public health to explore alternate housing options.
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√ Coordinate with state, local, tribal, and/or territorial health departments. ο When a COVID-19 case is suspected, work with public health to determine action. See Medical Isolation section below. ο When a COVID-19 case is suspected or confirmed, work with public health to identify close contacts who should be placed under quarantine. See Quarantine section below. ο Facilities with limited onsite medical isolation, quarantine, and/or healthcare services should coordinate closely with state, local, tribal, and/or territorial health departments when they encounter a confirmed or suspected case, in order to ensure effective medical isolation or quarantine, necessary medical evaluation and care, and medical transfer if needed. See Facilities with Limited Onsite Healthcare Services section.
Hygiene
√ Continue to ensure that hand hygiene supplies are well-stocked in all areas of the facility. (See above.)
√ Continue to emphasize practicing good hand hygiene and cough etiquette. (See above.)
Cleaning and Disinfecting Practices
√ Continue adhering to recommended cleaning and disinfection procedures for the facility at large. (See above.)
√ Reference specific cleaning and disinfection procedures for areas where a COVID-19 case has spent time (below).
Medical Isolation of Confirmed or Suspected COVID-19 Cases
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities with Limited Onsite Healthcare Services, or without sufficient space to implement effective medical isolation, should coordinate with local public health officials to ensure that COVID-19 cases will be appropriately isolated, evaluated, tested (if indicated), and given care.
√ As soon as an individual develops symptoms of COVID-19, they should wear a face mask (if it does not restrict breathing) and should be immediately placed under medical isolation in a separate environment from other individuals.
√ Keep the individual’s movement outside the medical isolation space to an absolute minimum. ο Provide medical care to cases inside the medical isolation space. See Infection Control and Clinical Care sections for additional details. ο Serve meals to cases inside the medical isolation space. ο Exclude the individual from all group activities. ο Assign the isolated individual a dedicated bathroom when possible.
√ Ensure that the individual is wearing a face mask at all times when outside of the medical isolation space, and whenever another individual enters. Provide clean masks as needed. Masks should be changed at least daily, and when visibly soiled or wet.
√ Facilities should make every possible effort to place suspected and confirmed COVID-19 cases under medical isolation individually. Each isolated individual should be assigned their own housing space and bathroom where possible. Cohorting should only be practiced if there are no other available options.
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ο If cohorting is necessary:  Only individuals who are laboratory confirmed COVID-19 cases should be placed under medical isolation as a cohort. Do not cohort confirmed cases with suspected cases or case contacts.  Unless no other options exist, do not house COVID-19 cases with individuals who have an undiagnosed respiratory infection.  Ensure that cohorted cases wear face masks at all times.
√ In order of preference, individuals under medical isolation should be housed: ο Separately, in single cells with solid walls (i.e., not bars) and solid doors that close fully ο Separately, in single cells with solid walls but without solid doors ο As a cohort, in a large, well-ventilated cell with solid walls and a solid door that closes fully. Employ social distancing strategies related to housing in the Prevention section above. ο As a cohort, in a large, well-ventilated cell with solid walls but without a solid door. Employ social distancing strategies related to housing in the Prevention section above. ο As a cohort, in single cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. (Although individuals are in single cells in this scenario, the airflow between cells essentially makes it a cohort arrangement in the context of COVID-19.) ο As a cohort, in multi-person cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. Employ social distancing strategies related to housing in the Prevention section above. ο Safely transfer individual(s) to another facility with available medical isolation capacity in one of the above arrangements (NOTE—Transfer should be avoided due to the potential to introduce infection to another facility; proceed only if no other options are available.)
If the ideal choice does not exist in a facility, use the next best alternative.
√ If the number of confirmed cases exceeds the number of individual medical isolation spaces available in the facility, be especially mindful of cases who are at higher risk of severe illness from COVID-19. Ideally, they should not be cohorted with other infected individuals. If cohorting is unavoidable, make all possible accommodations to prevent transmission of other infectious diseases to the higher-risk individual. (For example, allocate more space for a higher-risk individual within a shared medical isolation space.) ο Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions such as lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue. ο Note that incarcerated/detained populations have higher prevalence of infectious and chronic diseases and are in poorer health than the general population, even at younger ages.
√ Custody staff should be designated to monitor these individuals exclusively where possible. These staff should wear recommended PPE as appropriate for their level of contact with the individual under medical isolation (see PPE section below) and should limit their own movement between different parts of the facility to the extent possible.
√ Minimize transfer of COVID-19 cases between spaces within the healthcare unit.
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√ Provide individuals under medical isolation with tissues and, if permissible, a lined no-touch trash receptacle. Instruct them to: ο Cover their mouth and nose with a tissue when they cough or sneeze ο Dispose of used tissues immediately in the lined trash receptacle ο Wash hands immediately with soap and water for at least 20 seconds. If soap and water are not available, clean hands with an alcohol-based hand sanitizer that contains at least 60% alcohol (where security concerns permit). Ensure that hand washing supplies are continually restocked.
√ Maintain medical isolation until all the following criteria have been met. Monitor the CDC website for updates to these criteria.
For individuals who will be tested to determine if they are still contagious:  The individual has been free from fever for at least 72 hours without the use of fever-reducing medications AND  The individual’s other symptoms have improved (e.g., cough, shortness of breath) AND  The individual has tested negative in at least two consecutive respiratory specimens collected at least 24 hours apart
For individuals who will NOT be tested to determine if they are still contagious:  The individual has been free from fever for at least 72 hours without the use of fever-reducing medications AND  The individual’s other symptoms have improved (e.g., cough, shortness of breath) AND  At least 7 days have passed since the first symptoms appeared
For individuals who had a confirmed positive COVID-19 test but never showed symptoms: ο At least 7 days have passed since the date of the individual’s first positive COVID-19 test AND ο The individual has had no subsequent illness
√ Restrict cases from leaving the facility while under medical isolation precautions, unless released from custody or if a transfer is necessary for medical care, infection control, lack of medical isolation space, or extenuating security concerns. ο If an incarcerated/detained individual who is a COVID-19 case is released from custody during their medical isolation period, contact public health to arrange for safe transport and continuation of necessary medical care and medical isolation as part of release planning.
Cleaning Spaces where COVID-19 Cases Spent Time
Thoroughly clean and disinfect all areas where the confirmed or suspected COVID-19 case spent time. Note—these protocols apply to suspected cases as well as confirmed cases, to ensure adequate disinfection in the event that the suspected case does, in fact, have COVID-19. Refer to the Definitions section for the distinction between confirmed and suspected cases.
ο Close off areas used by the infected individual. If possible, open outside doors and windows to increase air circulation in the area. Wait as long as practical, up to 24 hours under the poorest air exchange conditions (consult CDC Guidelines for Environmental Infection Control in Health-Care Facilities for wait time based on different ventilation conditions), before beginning to clean and disinfect, to minimize potential for exposure to respiratory droplets.
ο Clean and disinfect all areas (e.g., cells, bathrooms, and common areas) used by the infected individual, focusing especially on frequently touched surfaces (see list above in Prevention section).
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√ Hard (non-porous) surface cleaning and disinfection ο If surfaces are dirty, they should be cleaned using a detergent or soap and water prior to disinfection. ο For disinfection, most common EPA-registered household disinfectants should be effective. Choose cleaning products based on security requirements within the facility.  Consult a list of products that are EPA-approved for use against the virus that causes COVID-19. Follow the manufacturer’s instructions for all cleaning and disinfection products (e.g., concentration, application method and contact time, etc.).  Diluted household bleach solutions can be used if appropriate for the surface. Follow the manufacturer’s instructions for application and proper ventilation, and check to ensure the product is not past its expiration date. Never mix household bleach with ammonia or any other cleanser. Unexpired household bleach will be effective against coronaviruses when properly diluted. Prepare a bleach solution by mixing:
- 5 tablespoons (1/3rd cup) bleach per gallon of water or
- 4 teaspoons bleach per quart of water
√ Soft (porous) surface cleaning and disinfection ο For soft (porous) surfaces such as carpeted floors and rugs, remove visible contamination if present and clean with appropriate cleaners indicated for use on these surfaces. After cleaning:  If the items can be laundered, launder items in accordance with the manufacturer’s instructions using the warmest appropriate water setting for the items and then dry items completely.  Otherwise, use products that are EPA-approved for use against the virus that causes COVID-19 and are suitable for porous surfaces.
√ Electronics cleaning and disinfection ο For electronics such as tablets, touch screens, keyboards, and remote controls, remove visible contamination if present.  Follow the manufacturer’s instructions for all cleaning and disinfection products.  Consider use of wipeable covers for electronics.  If no manufacturer guidance is available, consider the use of alcohol-based wipes or spray containing at least 70% alcohol to disinfect touch screens. Dry surfaces thoroughly to avoid pooling of liquids.
Additional information on cleaning and disinfection of communal facilities such can be found on CDC’s website.
√ Ensure that staff and incarcerated/detained persons performing cleaning wear recommended PPE. (See PPE section below.)
√ Food service items. Cases under medical isolation should throw disposable food service items in the trash in their medical isolation room. Non-disposable food service items should be handled with gloves and washed with hot water or in a dishwasher. Individuals handling used food service items should clean their hands after removing gloves.
√ Laundry from a COVID-19 cases can be washed with other individuals’ laundry. ο Individuals handling laundry from COVID-19 cases should wear disposable gloves, discard after each use, and clean their hands after. ο Do not shake dirty laundry. This will minimize the possibility of dispersing virus through the air. ο Launder items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely.
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ο Clean and disinfect clothes hampers according to guidance above for surfaces. If permissible, consider using a bag liner that is either disposable or can be laundered.
√ Consult cleaning recommendations above to ensure that transport vehicles are thoroughly cleaned after carrying a confirmed or suspected COVID-19 case.
Quarantining Close Contacts of COVID-19 Cases
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities without onsite healthcare capacity, or without sufficient space to implement effective quarantine, should coordinate with local public health officials to ensure that close contacts of COVID-19 cases will be effectively quarantined and medically monitored.
√ Incarcerated/detained persons who are close contacts of a confirmed or suspected COVID-19 case (whether the case is another incarcerated/detained person, staff member, or visitor) should be placed under quarantine for 14 days (see CDC guidelines). ο If an individual is quarantined due to contact with a suspected case who is subsequently tested for COVID-19 and receives a negative result, the quarantined individual should be released from quarantine restrictions.
√ In the context of COVID-19, an individual (incarcerated/detained person or staff) is considered a close contact if they: ο Have been within approximately 6 feet of a COVID-19 case for a prolonged period of time OR ο Have had direct contact with infectious secretions of a COVID-19 case (e.g., have been coughed on)
Close contact can occur while caring for, living with, visiting, or sharing a common space with a COVID-19 case. Data to inform the definition of close contact are limited. Considerations when assessing close contact include the duration of exposure (e.g., longer exposure time likely increases exposure risk) and the clinical symptoms of the person with COVID-19 (e.g., coughing likely increases exposure risk, as does exposure to a severely ill patient).
√ Keep a quarantined individual’s movement outside the quarantine space to an absolute minimum. ο Provide medical evaluation and care inside or near the quarantine space when possible. ο Serve meals inside the quarantine space. ο Exclude the quarantined individual from all group activities. ο Assign the quarantined individual a dedicated bathroom when possible.
√ Facilities should make every possible effort to quarantine close contacts of COVID-19 cases individually. Cohorting multiple quarantined close contacts of a COVID-19 case could transmit COVID-19 from those who are infected to those who are uninfected. Cohorting should only be practiced if there are no other available options. ο If cohorting of close contacts under quarantine is absolutely necessary, symptoms of all individuals should be monitored closely, and individuals with symptoms of COVID-19 should be placed under medical isolation immediately. ο If an entire housing unit is under quarantine due to contact with a case from the same housing unit, the entire housing unit may need to be treated as a cohort and quarantine in place. ο Some facilities may choose to quarantine all new intakes for 14 days before moving them to the facility’s general population as a general rule (not because they were exposed to a COVID-19 case). Under this scenario, avoid mixing individuals quarantined due to exposure to a COVID-19 case with individuals undergoing routine intake quarantine.
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ο If at all possible, do not add more individuals to an existing quarantine cohort after the 14-day quarantine clock has started.
√ If the number of quarantined individuals exceeds the number of individual quarantine spaces available in the facility, be especially mindful of those who are at higher risk of severe illness from COVID-19. Ideally, they should not be cohorted with other quarantined individuals. If cohorting is unavoidable, make all possible accommodations to reduce exposure risk for the higher-risk individuals. (For example, intensify social distancing strategies for higher-risk individuals.)
√ In order of preference, multiple quarantined individuals should be housed: ο Separately, in single cells with solid walls (i.e., not bars) and solid doors that close fully ο Separately, in single cells with solid walls but without solid doors ο As a cohort, in a large, well-ventilated cell with solid walls, a solid door that closes fully, and at least 6 feet of personal space assigned to each individual in all directions ο As a cohort, in a large, well-ventilated cell with solid walls and at least 6 feet of personal space assigned to each individual in all directions, but without a solid door ο As a cohort, in single cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells creating at least 6 feet of space between individuals. (Although individuals are in single cells in this scenario, the airflow between cells essentially makes it a cohort arrangement in the context of COVID-19.) ο As a cohort, in multi-person cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. Employ social distancing strategies related to housing in the Prevention section to maintain at least 6 feet of space between individuals housed in the same cell. ο As a cohort, in individuals’ regularly assigned housing unit but with no movement outside the unit (if an entire housing unit has been exposed). Employ social distancing strategies related to housing in the Prevention section above to maintain at least 6 feet of space between individuals. ο Safely transfer to another facility with capacity to quarantine in one of the above arrangements
(NOTE—Transfer should be avoided due to the potential to introduce infection to another facility; proceed only if no other options are available.)
√ Quarantined individuals should wear face masks if feasible based on local supply, as source control, under the following circumstances (see PPE section and Table 1): ο If cohorted, quarantined individuals should wear face masks at all times (to prevent transmission from infected to uninfected individuals). ο If quarantined separately, individuals should wear face masks whenever a non-quarantined individual enters the quarantine space. ο All quarantined individuals should wear a face mask if they must leave the quarantine space for any reason. ο Asymptomatic individuals under routine intake quarantine (with no known exposure to a COVID-19 case) do not need to wear face masks.
√ Staff who have close contact with quarantined individuals should wear recommended PPE if feasible based on local supply, feasibility, and safety within the scope of their duties (see PPE section and Table 1). ο Staff supervising asymptomatic incarcerated/detained persons under routine intake quarantine (with no known exposure to a COVID-19 case) do not need to wear PPE.
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√ Quarantined individuals should be monitored for COVID-19 symptoms twice per day, including temperature checks. ο If an individual develops symptoms, they should be moved to medical isolation immediately and further evaluated. (See Medical Isolation section above.) ο See Screening section for a procedure to perform temperature checks safely on asymptomatic close contacts of COVID-19 cases.
√ If an individual who is part of a quarantined cohort becomes symptomatic: ο If the individual is tested for COVID-19 and tests positive: the 14-day quarantine clock for the remainder of the cohort must be reset to 0. ο If the individual is tested for COVID-19 and tests negative: the 14-day quarantine clock for this individual and the remainder of the cohort does not need to be reset. This individual can return from medical isolation to the quarantined cohort for the remainder of the quarantine period. ο If the individual is not tested for COVID-19: the 14-day quarantine clock for the remainder of the cohort must be reset to 0.
√ Restrict quarantined individuals from leaving the facility (including transfers to other facilities) during the 14-day quarantine period, unless released from custody or a transfer is necessary for medical care, infection control, lack of quarantine space, or extenuating security concerns.
√ Quarantined individuals can be released from quarantine restrictions if they have not developed symptoms during the 14-day quarantine period.
√ Meals should be provided to quarantined individuals in their quarantine spaces. Individuals under quarantine should throw disposable food service items in the trash. Non-disposable food service items should be handled with gloves and washed with hot water or in a dishwasher. Individuals handling used food service items should clean their hands after removing gloves.
√ Laundry from quarantined individuals can be washed with other individuals’ laundry. ο Individuals handling laundry from quarantined persons should wear disposable gloves, discard after each use, and clean their hands after. ο Do not shake dirty laundry. This will minimize the possibility of dispersing virus through the air. ο Launder items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely. ο Clean and disinfect clothes hampers according to guidance above for surfaces. If permissible, consider using a bag liner that is either disposable or can be laundered.
Management of Incarcerated/Detained Persons with COVID-19 Symptoms
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities without onsite healthcare capacity or without sufficient space for medical isolation should coordinate with local public health officials to ensure that suspected COVID-19 cases will be effectively isolated, evaluated, tested (if indicated), and given care.
√ If possible, designate a room near each housing unit for healthcare staff to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit.
√ Incarcerated/detained individuals with COVID-19 symptoms should wear a face mask and should be placed under medical isolation immediately. Discontinue the use of a face mask if it inhibits breathing. See Medical Isolation section above.
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√ Medical staff should evaluate symptomatic individuals to determine whether COVID-19 testing is indicated. Refer to CDC guidelines for information on evaluation and testing. See Infection Control and Clinical Care sections below as well.
√ If testing is indicated (or if medical staff need clarification on when testing is indicated), contact the state, local, tribal, and/or territorial health department. Work with public health or private labs as available to access testing supplies or services. ο If the COVID-19 test is positive, continue medical isolation. (See Medical Isolation section above.) ο If the COVID-19 test is negative, return the individual to their prior housing assignment unless they require further medical assessment or care.
Management Strategies for Incarcerated/Detained Persons without COVID-19 Symptoms
√ Provide clear information to incarcerated/detained persons about the presence of COVID-19 cases within the facility, and the need to increase social distancing and maintain hygiene precautions. ο Consider having healthcare staff perform regular rounds to answer questions about COVID-19. ο Ensure that information is provided in a manner that can be understood by non-English speaking individuals and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.
√ Implement daily temperature checks in housing units where COVID-19 cases have been identified, especially if there is concern that incarcerated/detained individuals are not notifying staff of symptoms. See Screening section for a procedure to safely perform a temperature check.
√ Consider additional options to intensify social distancing within the facility.
Management Strategies for Staff
√ Provide clear information to staff about the presence of COVID-19 cases within the facility, and the need to enforce social distancing and encourage hygiene precautions. ο Consider having healthcare staff perform regular rounds to answer questions about COVID-19 from staff.
√ Staff identified as close contacts of a COVID-19 case should self-quarantine at home for 14 days and may return to work if symptoms do not develop. ο See above for definition of a close contact. ο Refer to CDC guidelines for further recommendations regarding home quarantine for staff.
Infection Control
Infection control guidance below is applicable to all types of correctional facilities. Individual facilities should assess their unique needs based on the types of exposure staff and incarcerated/ detained persons may have with confirmed or suspected COVID-19 cases.
√ All individuals who have the potential for direct or indirect exposure to COVID-19 cases or infectious materials (including body substances; contaminated medical supplies, devices, and equipment; contaminated environmental surfaces; or contaminated air) should follow infection control practices outlined in the CDC Interim Infection Prevention and Control Recommendations for Patients with Suspected or Confirmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings. Monitor these guidelines regularly for updates.
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ο Implement the above guidance as fully as possible within the correctional/detention context. Some of the specific language may not apply directly to healthcare settings within correctional facilities and detention centers, or to facilities without onsite healthcare capacity, and may need to be adapted to reflect facility operations and custody needs.
ο Note that these recommendations apply to staff as well as to incarcerated/detained individuals who may come in contact with contaminated materials during the course of their work placement in the facility (e.g., cleaning).
√ Staff should exercise caution when in contact with individuals showing symptoms of a respiratory infection. Contact should be minimized to the extent possible until the infected individual is wearing a face mask. If COVID-19 is suspected, staff should wear recommended PPE (see PPE section).
√ Refer to PPE section to determine recommended PPE for individuals persons in contact with confirmed COVID-19 cases, contacts, and potentially contaminated items.
Clinical Care of COVID-19 Cases
√ Facilities should ensure that incarcerated/detained individuals receive medical evaluation and treatment at the first signs of COVID-19 symptoms. ο If a facility is not able to provide such evaluation and treatment, a plan should be in place to safely transfer the individual to another facility or local hospital. ο The initial medical evaluation should determine whether a symptomatic individual is at higher risk for severe illness from COVID-19. Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions such as lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue.
√ Staff evaluating and providing care for confirmed or suspected COVID-19 cases should follow the CDC Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19) and monitor the guidance website regularly for updates to these recommendations.
√ Healthcare staff should evaluate persons with respiratory symptoms or contact with a COVID-19 case in a separate room, with the door closed if possible, while wearing recommended PPE and ensuring that the suspected case is wearing a face mask. ο If possible, designate a room near each housing unit to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit.
√ Clinicians are strongly encouraged to test for other causes of respiratory illness (e.g., influenza).
√ The facility should have a plan in place to safely transfer persons with severe illness from COVID-19 to a local hospital if they require care beyond what the facility is able to provide.
√ When evaluating and treating persons with symptoms of COVID-19 who do not speak English, using a language line or provide a trained interpreter when possible.
Recommended PPE and PPE Training for Staff and Incarcerated/Detained Persons
√ Ensure that all staff (healthcare and non-healthcare) and incarcerated/detained persons who will have contact with infectious materials in their work placements have been trained to correctly don, doff, and dispose of PPE relevant to the level of contact they will have with confirmed and suspected COVID-19 cases.
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ο Ensure that staff and incarcerated/detained persons who require respiratory protection (e.g., N95s) for their work responsibilities have been medically cleared, trained, and fit-tested in the context of an employer’s respiratory protection program.
ο For PPE training materials and posters, please visit the CDC website on Protecting Healthcare Personnel.
√ Ensure that all staff are trained to perform hand hygiene after removing PPE.
√ If administrators anticipate that incarcerated/detained persons will request unnecessary PPE, consider providing training on the different types of PPE that are needed for differing degrees of contact with COVID-19 cases and contacts, and the reasons for those differences (see Table 1). Monitor linked CDC guidelines in Table 1 for updates to recommended PPE.
√ Keep recommended PPE near the spaces in the facility where it could be needed, to facilitate quick access in an emergency.
√ Recommended PPE for incarcerated/detained individuals and staff in a correctional facility will vary based on the type of contact they have with COVID-19 cases and their contacts (see Table 1). Each type of recommended PPE is defined below. As above, note that PPE shortages are anticipated in every category during the COVID-19 response. ο N95 respirator
See below for guidance on when face masks are acceptable alternatives for N95s. N95 respirators should be prioritized when staff anticipate contact with infectious aerosols from a COVID-19 case. ο Face mask ο Eye protection—goggles or disposable face shield that fully covers the front and sides of the face ο A single pair of disposable patient examination gloves
Gloves should be changed if they become torn or heavily contaminated. ο Disposable medical isolation gown or single-use/disposable coveralls, when feasible
 If custody staff are unable to wear a disposable gown or coveralls because it limits access to their duty belt and gear, ensure that duty belt and gear are disinfected after close contact with the individual. Clean and disinfect duty belt and gear prior to reuse using a household cleaning spray or wipe, according to the product label.
 If there are shortages of gowns, they should be prioritized for aerosol-generating procedures, care activities where splashes and sprays are anticipated, and high-contact patient care activities that provide opportunities for transfer of pathogens to the hands and clothing of staff.
√ Note that shortages of all PPE categories are anticipated during the COVID-19 response, particularly for non-healthcare workers. Guidance for optimizing the supply of each category can be found on CDC’s website: ο Guidance in the event of a shortage of N95 respirators  Based on local and regional situational analysis of PPE supplies, face masks are an acceptable alternative when the supply chain of respirators cannot meet the demand. During this time, available respirators should be prioritized for staff engaging in activities that would expose them to respiratory aerosols, which pose the highest exposure risk. ο Guidance in the event of a shortage of face masks ο Guidance in the event of a shortage of eye protection ο Guidance in the event of a shortage of gowns/coveralls
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Table 1. Recommended Personal Protective Equipment (PPE) for Incarcerated/Detained Persons and Staff in a Correctional Facility during the COVID-19 Response

Classification of Individual Wearing PPE

N95 respirator

Face mask

Eye Protection

Gloves

Gown/ Coveralls

Incarcerated/Detained Persons

Asymptomatic incarcerated/detained persons (under Apply face masks for source control as feasible based on local supply, quarantine as close contacts of a COVID-19 case*) especially if housed as a cohort

Incarcerated/detained persons who are confirmed or

suspected COVID-19 cases, or showing symptoms of

–



–

–

–

COVID-19

Incarcerated/detained persons in a work placement

handling laundry or used food service items from a

–

–

–





COVID-19 case or case contact

Incarcerated/detained persons in a work placement Additional PPE may be needed based on

cleaning areas where a COVID-19 case has spent time the product label. See CDC guidelines for





more details.

Staff

Staff having direct contact with asymptomatic incarcerated/detained persons under quarantine as close contacts of a COVID-19 case* (but not performing temperature checks or providing medical care)

–

Face mask, eye protection, and gloves as local supply and scope of duties allow.

–

Staff performing temperature checks on any group

of people (staff, visitors, or incarcerated/detained persons), or providing medical care to asymptomatic

–

quarantined persons









Staff having direct contact with (including transport)

or offering medical care to confirmed or suspected

**

COVID-19 cases (see CDC infection control guidelines)







Staff present during a procedure on a confirmed

or suspected COVID-19 case that may generate respiratory aerosols (see CDC infection control



–







guidelines)

Staff handling laundry or used food service items from a COVID-19 case or case contact

–

–

–





Staff cleaning an area where a COVID-19 case has

Additional PPE may be needed based on

spent time

the product label. See CDC guidelines for





more details.

* If a facility chooses to routinely quarantine all new intakes (without symptoms or known exposure to a COVID-19 case) before integrating into the facility’s general population, face masks are not necessary.
** A NIOSH-approved N95 is preferred. However, based on local and regional situational analysis of PPE supplies, face masks are an acceptable alternative when the supply chain of respirators cannot meet the demand. During this time, available respirators should be prioritized for procedures that are likely to generate respiratory aerosols, which would pose the highest exposure risk to staff.

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Verbal Screening and Temperature Check Protocols for Incarcerated/Detained Persons, Staff, and Visitors
The guidance above recommends verbal screening and temperature checks for incarcerated/detained persons, staff, volunteers, and visitors who enter correctional and detention facilities, as well as incarcerated/detained persons who are transferred to another facility or released from custody. Below, verbal screening questions for COVID-19 symptoms and contact with known cases, and a safe temperature check procedure are detailed. √ Verbal screening for symptoms of COVID-19 and contact with COVID-19 cases should include
the following questions: ο Today or in the past 24 hours, have you had any of the following symptoms?  Fever, felt feverish, or had chills?  Cough?  Difficulty breathing? ο In the past 14 days, have you had contact with a person known to be infected with the novel coronavirus (COVID-19)?
√ The following is a protocol to safely check an individual’s temperature: ο Perform hand hygiene ο Put on a face mask, eye protection (goggles or disposable face shield that fully covers the front and sides of the face), gown/coveralls, and a single pair of disposable gloves ο Check individual’s temperature ο If performing a temperature check on multiple individuals, ensure that a clean pair of gloves is used for each individual and that the thermometer has been thoroughly cleaned in between each check. If disposable or non-contact thermometers are used and the screener did not have physical contact with an individual, gloves do not need to be changed before the next check. If non-contact thermometers are used, they should be cleaned routinely as recommended by CDC for infection control. ο Remove and discard PPE ο Perform hand hygiene
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ERO
U.S. Immigration and Customs Enforcement Enforcement and Removal Operations
COVID-19 Pandemic Response Requirements

ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020)

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Table of Contents
PURPOSE AND SCOPE .......................................................................................................................... 3 INTRODUCTION ................................................................................................................................... 3 OBJECTIVES ........................................................................................................................................ 4 CONCEPT OF OPERATIONS................................................................................................................... 5
DEDICATED ICE DETENTION FACILITIES ........................................................................................ 5 NON-DEDICATED ICE DETENTION FACILITIES ............................................................................... 6 ALL FACILITIES HOUSING ICE DETAINEES ..................................................................................... 7
PREPAREDNESS ........................................................................................................................... 7 PREVENTION ............................................................................................................................. 11 MANAGEMENT .......................................................................................................................... 14 ATTACHMENTS ................................................................................................................................. 18

ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020)

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PURPOSE AND SCOPE
The U.S. Immigration and Customs Enforcement (ICE) Enforcement and Removal Operations (ERO) Coronavirus Disease 2019 (COVID-19) Pandemic Response Requirements (PRR) sets forth expectations and assists ICE detention facility operators to sustain detention operations, while mitigating risk to the safety and well-being of detainees, staff, contractors, visitors, and stakeholders due to COVID-19. Consistent with ICE’s overall adjustments to its immigration enforcement posture,1 the ERO PRR builds upon previously issued guidance and sets forth specific mandatory requirements expected to be adopted by all detention facilities housing ICE detainees, as well as best practices for such facilities, to ensure that detainees are appropriately housed and that available mitigation measures are implemented during this unprecedented public health crisis. The ERO PRR has been developed in consultation with the Centers for Disease Control and Prevention (CDC) and is a dynamic document that will be updated as additional/revised information and best practices become available.
INTRODUCTION
As the CDC has explained:
COVID-19 is a communicable disease caused by a novel (new) coronavirus, SARSCoV-2, that was first identified as the cause of an outbreak of respiratory illness that began in Wuhan Hubei Province, People’s Republic of China (China).
COVID-19 appears to spread easily and sustainably within communities. The virus is thought to transfer primarily by person-to-person contact through respiratory droplets produced when an infected person coughs or sneezes; it may transfer through contact with surfaces or objects contaminated with these droplets. There is also evidence of asymptomatic transmission, in which an individual infected with COVID-19 is capable of spreading the virus to others before exhibiting symptoms. The ease of transmission presents a risk of a surge in hospitalizations for COVID19, which would reduce available hospital capacity. Such a surge has been identified as a likely contributing factor to the high mortality rate for COVID-19 cases in Italy and China.
Symptoms include fever, cough, and shortness of breath, and typically appear 2-14 days after exposure. Manifestations of severe disease include severe pneumonia, acute respiratory distress syndrome (ARDS), septic shock, and multi-organ failure. According to the [World Health Organization], approximately 3.4% of reported COVID-19 cases have resulted in death globally. This mortality rate is higher among older adults or those with compromised immune systems. Older adults and people who have severe chronic medical conditions like heart, lung or kidney disease are also at higher risk for more serious COVID-19 illness. Early data suggest older people are twice as likely to have serious COVID-19 illness.

1 See, e.g., Attachment A, U.S. Immigration and Customs Enforcement, Updated ICE statement on COVID19 (Mar. 18, 2020), https://www.ice.gov/news/releases/updated-ice-statement-covid-19.

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Notice of Order Under Sections 362 and 365 of the Public Health Service Act Suspending Introduction of Certain Persons From Countries Where a Communicable Disease Exists, 85 Fed. Reg. 17060 (Mar. 26, 2020) (internal citations omitted).
Given the seriousness and pervasiveness of COVID-19, ICE is taking necessary and prompt measures in response. ICE is providing guidance on the minimum measures required for facilities housing ICE detainees to implement to ensure consistent practices throughout its detention operations and the provision of medical care across the full spectrum of detention facilities to mitigate the spread of COVID-19. The ICE detention standards applicable to all facilities used to house ICE detainees have long required that each such facility have written plans that address the management of infectious and communicable diseases, including, but not limited to, testing, isolation, prevention, treatment, and education. Those requirements include reporting and collaboration with local or state health departments in accordance with state and local laws and recommendations.2 The measures set forth in the PRR, allow ICE personnel and detention providers to properly discharge their obligations under those standards in light of the unique challenges posed by COVID-19.
OBJECTIVES
The ERO PRR is designed to establish consistency across ICE detention facilities by establishing mandatory requirements and best practices all detention facilities housing ICE detainees are expected to follow during the COVID-19 pandemic. Consistent with ICE detention standards, all facilities housing ICE detainees are required to have a COVID-19 mitigation plan that meets the following four objectives:
• To protect employees, contractors, detainees, visitors to the facility, and stakeholders from exposure to the virus;
• To maintain essential functions and services at the facility throughout the pendency of the pandemic;
• To reduce movement and limit interaction of detainees with others outside their assigned housing units, as well as staff and others, and to promote social distancing within housing units; and
• To establish means to monitor, cohort, quarantine, and isolate the sick from the well.3
2 See, e.g., Attachment B, ICE National Detention Standards 2019, Standard 4.3, Medical Care, at II.D.2 (p. 114), https://www.ice.gov/doclib/detention-standards/2019/4_3.pdf; Attachment C, 2011 ICE Performance-Based National Detention Standards (PBNDS), Revised 2016, Standard 4.3, Part V.C.1 (p. 261), https://www.ice.gov/doclib/detentionstandards/2011/4-3.pdf; Attachment D, 2008 ICE PBNDS, Standard 4-22, Medical Care, V.C.1 (pp. 5-6), https://www.ice.gov/doclib/dro/detention-standards/pdf/medical_care.pdf.
3 A cohort is a group of persons with a similar condition grouped or housed together for observation over a period of time. Isolation and quarantine are public health practices used to protect the public from exposure to individuals who have or may have a contagious disease. For purposes of this document, and as defined by the CDC, quarantine as the separation of a person or group of people reasonably believed to have been exposed to a communicable disease but not yet symptomatic, from others who have not been

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CONCEPT OF OPERATIONS
The ERO PRR is intended for use across ICE’s entire detention network, applying to all facilities housing ICE detainees, including ICE-owned Service Processing Centers, facilities operated by private vendors, and facilities operated by local government agencies that have mixed populations of which ICE detainees comprise only a small fraction.
DEDICATED ICE DETENTION FACILITIES
All ICE dedicated detention facilities4 must:
• Comply with the provisions of their relevant ICE contract or service agreement. • Comply with the ICE national detention standards applicable to the facility,
generally the Performance-Based National Detention Standards 2011 (PBNDS 2011). • Comply with the CDC’s Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (Attachment E). • Follow ICE’s March 27, 2020 Memorandum to Detention Wardens and Superintendents on COVID-19 Action Plan Revision 1, and subsequent updates (Attachment F). • Report all confirmed and suspected COVID-19 cases to the local ERO Field Office Director (or designee), Field Medical Coordinator, and local health department immediately. • Notify both the local ERO Field Office Director (or designee) and the Field Medical Coordinator as soon as practicable, but in no case more than 12 hours after identifying any detainee who meets the CDC’s identified populations potentially being at higher-risk for serious illness from COVID-19, including:
o People aged 65 and older o People of all ages with underlying medical conditions, particularly if not well
controlled, including: ▪ People with chronic lung disease or moderate to severe asthma ▪ People who have serious heart conditions ▪ People who are immunocompromised

exposed, to prevent the possible spread of the communicable disease. For purposes of this document, and as defined by the CDC, isolation as the separation of a person or group of people known or reasonably believed to be infected with a communicable disease and potentially infectious from others to prevent the spread of the communicable disease.
4 Dedicated detention facilities are facilities that house only ICE detainees. Dedicated facilities may be ICE-owned Service Processing Centers, privately owned Contract Detention Facilities, or facilities operated by state or local governments that hold no other detention populations except ICE detainees.

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• Many conditions can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications
▪ People with severe obesity (body mass index [BMI] of 40 or higher) ▪ People with diabetes ▪ People with chronic kidney disease undergoing dialysis ▪ People with liver disease
Notification shall be made via e-mail from the facility’s Health Services Administrator (HSA) (or equivalent) and contain the following subject line for ease of identification: “Notification of COVID-19 High Risk Detainee (A-Number).” At a minimum the HSA will provide the following information:
• Detainee name • Detention location • Current medical issues as well as medications currently prescribed • Facility medical Point of Contact (POC) and phone number
NON-DEDICATED ICE DETENTION FACILITIES
All non-dedicated detention facilities and local jails housing ICE detainees must:
• Comply with the provisions of their relevant ICE contract or service agreement.
• Comply with the ICE national detention standards applicable to the facility, generally PBNDS 2011.
• Comply with the CDC Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities.
• Report all confirmed and suspected COVID-19 cases to the local ERO Field Office Director (or designee), Field Medical Coordinator, and local health department immediately.
• Notify both the ERO Field Office Director (or designee) and Field Medical Coordinator as soon as practicable, but in no case more than 12 hours after identifying any detainee who meets the CDC’s identified populations potentially being at higher-risk for serious illness from COVID-19, including:
o People aged 65 and older
o People of all ages with underlying medical conditions, particularly if not well controlled, including: ▪ People with chronic lung disease or moderate to severe asthma ▪ People who have serious heart conditions ▪ People who are immunocompromised

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• Many conditions can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications
▪ People with severe obesity (body mass index [BMI] of 40 or higher) ▪ People with diabetes ▪ People with chronic kidney disease undergoing dialysis ▪ People with liver disease
Notification should be made via e-mail from the facility’s HSA (or equivalent) and should contain the following subject line for ease of identification: “Notification of COVID-19 High Risk Detainee (A-Number).” Other standardized means of communicating this information to ICE are acceptable. At a minimum the HSA will provide the following information:
• Detainee name • Detention location • Current medical issues as well as medications currently prescribed • Facility medical POC and phone number

ALL FACILITIES HOUSING ICE DETAINEES

In addition to the specific measures listed above, all detention facilities housing ICE detainees must also comply with the following:
PREPAREDNESS
Administrators can plan and prepare for COVID-19 by ensuring that all persons in the facility know the symptoms of COVID-19 and how to respond if they develop symptoms. Other essential actions include developing contingency plans for reduced workforces due to absences, coordinating with public health and correctional partners, and communicating clearly with staff and detainees about these preparations and how they may temporarily alter daily life.
➢ Develop information-sharing systems with partners.
• Identify points of contact in relevant state, local, tribal, and/or territorial public health department before cases develop.
• Communicate with other correctional and detention facilities in the same geographic area to share information including disease surveillance and absenteeism patterns among staff.
➢ Review existing pandemic, influenza, all-hazards, and disaster plans, and revise for COVID-19, and ensure that they meet the requirements of ICE’s detention standards.

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➢ Offer the seasonal influenza vaccine to all detained persons (existing populations and new intakes) and staff throughout the influenza season, where possible.
➢ Staffing
• Review sick leave policies to ensure that staff can stay home when sick and determine which officials will have the authority to send symptomatic staff home. Staff who report for work with symptoms of COVID-19 must be sent home and advised to follow CDC-recommended steps for persons exhibiting COVID-19 symptoms.
• Staff who test positive for COVID-19 must inform their workplace and personal contacts immediately. If a staff member has a confirmed COVID-19 infection, the relevant employers will inform other staff of their possible exposure to COVID-19 in the workplace consistent with any legal limitations on the sharing of such information. Exposed employees must then self-monitor for symptoms (i.e., fever, cough, or shortness of breath).
• Identify staff whose duties would allow them to work from home and allow them to work from home in order to promote social distancing and further reduce the risk of COVID-19 transmission.
• Determine minimum levels of staff in all categories required for the facility to function safely.
• Follow the Public Health Recommendations for Community-Related Exposure.5
➢ Supplies
• Ensure that sufficient stocks of hygiene supplies (soap, hand sanitizer, tissues), personal protective equipment (PPE) (to include facemasks, N95 respirators, eye protection, disposable medical gloves, and disposable gowns/one-piece coveralls), and medical supplies (consistent with the healthcare capabilities of the facility) are on hand, and have a plan in place to restock as needed if COVID-19 transmission occurs within the facility.
• Note that shortages of N95 respirators are anticipated during the COVID-19 response. Based on local and regional situational analysis of PPE supplies, face masks should be used when the supply chain of N95 respirators cannot meet the demand.
• Follow COVID-19: Strategies for Optimizing the Supply of PPE.6
• Soiled PPE items should be disposed in leak-proof plastic bags that are tied at the top and not re-opened. Bags can be disposed of in the regular solid waste stream.

5 Attachment G, Centers of Disease Control and Prevention, Public Health Recommendations for Community-Related Exposure, https://www.cdc.gov/coronavirus/2019-ncov/php/public-health-recommendations.html (last visited Apr. 9, 2020).
6 Attachment H, Centers for Disease Control and Prevention, Strategies to Optimize the Supply of PPE and Equipment, https://www.cdc.gov/coronavirus/2019-ncov/hcp/ppe-strategy/ (last visited Apr. 9, 2020).

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• Cloth face coverings should be worn by detainees and staff (when PPE supply is limited) to help slow the spread of COVID-19. Cloth face masks should:
• fit snugly but comfortably against the side of the face • be secured with ties or ear loops where possible or securely tied • include multiple layers of fabric • allow for breathing without restriction • be able to be laundered and machine dried without damage or change to shape.
➢ Hygiene
• Reinforce healthy hygiene practices and provide and restock hygiene supplies throughout the facility, including in bathrooms, food preparation and dining areas, intake areas, visitor entries and exits, visitation rooms, common areas, medical, and staff-restricted areas (e.g., break rooms).
• Require all persons within the facility to cover their mouth and nose with their elbow (or ideally with a tissue) rather than with their hand when they cough or sneeze, and to throw all tissues in the trash immediately after use. Provide detainees and staff no-cost access to tissues and no-touch receptacles for disposal.
• Require all persons within the facility to maintain good hand hygiene by regularly washing their hands with soap and water for at least 20 seconds, especially after coughing, sneezing, or blowing their nose; after using the bathroom; before eating or preparing food; before taking medication; and after touching garbage.
• Provide detainees and staff no-cost, unlimited access to supplies for hand cleansing, including liquid soap, running water, hand drying machines or disposable paper towels, and no-touch trash receptacles.
• Provide alcohol-based hand sanitizer with at least 60% alcohol where permissible based on security restrictions.
• Require all persons within the facility to avoid touching their eyes, nose, or mouth without cleaning their hands first.
• Post signage throughout the facility reminding detained persons and staff to practice good hand hygiene and cough etiquette (printable materials for community-based settings can be found on the CDC website). Signage must be in English and Spanish, as well as any other common languages for the detainee population at the facility.
• Prohibit sharing of eating utensils, dishes, and cups.
• Prohibit non-essential personal contact such as handshakes, hugs, and high-fives.
➢ Cleaning/Disinfecting Practices

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• Adhere to CDC recommendations for cleaning and disinfection during the COVID-19 response.7
• Several times a day using household cleaners and Environmental Protection Agency-registered disinfectants, clean and disinfect surfaces and objects that are frequently touched, especially in common areas (e.g., doorknobs, light switches, sink handles, countertops, toilets, toilet handles, recreation equipment). The Environmental Protection Agency’s (EPA) list of certified cleaning products is located here.
• Staff should clean shared equipment several times per day and on a conclusion of use basis (e.g., radios, service weapons, keys, handcuffs).
• Ensure that transport vehicles are thoroughly cleaned after carrying a confirmed or suspected COVID-19 case.
• Facility leadership will ensure that there is adequate oversight and supervision of all individuals responsible for cleaning and disinfecting these areas.
CDC Recommended Cleaning Tips
Hard (Non-porous) Surfaces
• If surfaces are dirty, they should be cleaned using a detergent or soap and water prior to disinfection.
• For disinfection, most common EPA-registered household disinfectants should be effective.
o A list of products that are EPA-approved for use against the virus that causes COVID-19 is available here. Follow the manufacturer’s instructions for all cleaning and disinfection products for concentration, application method and contact time, etc.
o Additionally, diluted household bleach solutions (at least 1000ppm sodium hypochlorite) can be used if appropriate for the surface. Follow manufacturer’s instructions for application, ensuring a contact time of at least 1 minute, and allowing proper ventilation during and after application. Check to ensure the product is not past its expiration date. Never mix household bleach with ammonia or any other cleanser. Unexpired household bleach will be effective against coronaviruses when properly diluted.
▪ Prepare a bleach solution by mixing:
• 5 tablespoons (1/3 cup) bleach per gallon of water or • 4 teaspoons bleach per quart of water
Soft (Porous) Surfaces

7 Attachment I, Centers for Disease Control and Prevention, Cleaning and Disinfection for Community Facilities, https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/cleaning-disinfection.html (last visited Apr. 9, 2020).

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• For soft (porous) surfaces such as carpeted floor, rugs, and drapes, remove visible contamination if present and clean with appropriate cleaners indicated for use on these surfaces. After cleaning:
o If the items can be laundered, launder items in accordance with the manufacturer’s instructions using the warmest appropriate water setting for the items and then dry items completely.
o Otherwise, use products that are EPA-approved for use against the virus that causes COVID-19 and that are suitable for porous surfaces.8
Electronics
• For electronics such as tablets, touch screens, keyboards, remote controls, and ATM machines, remove visible contamination if present.
o Follow the manufacturer’s instructions for all cleaning and disinfection products.
o Consider use of wipeable covers for electronics.
o If no manufacturer guidance is available, consider the use of alcohol-based wipes or sprays containing at least 70% alcohol to disinfect touch screens. Dry surfaces thoroughly to avoid pooling of liquids.
Linens, Clothing, and Other Items That Go in the Laundry
• In order to minimize the possibility of dispersing virus through the air, do not shake dirty laundry.
• Wash items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely. Dirty laundry that has been in contact with an ill person can be washed with other people’s items.
• Clean and disinfect hampers or other carts for transporting laundry according to guidance above for hard or soft surfaces.
PREVENTION
Detention facilities can prevent introduction of COVID-19 from the community and reduce transmission if it is already inside by reinforcing good hygiene practices among incarcerated/detained persons, staff, and visitors (including increasing access to soap and paper towels), intensifying cleaning/disinfection practices, and implementing social distancing strategies.
Because many individuals infected with COVID-19 do not display symptoms, the virus could be present in facilities before cases are identified. Both good hygiene practices and social distancing are critical in preventing further transmission.

8 Attachment J, U.S. Environmental Protection Agency, List N: Disinfectants for Use Against SARS-CoV-2, https://www.epa.gov/pesticide-registration/list-n-disinfectants-use-against-sars-cov-2 (last visited Apr. 9, 2020).

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➢ Perform pre-intake screening for all staff and new entrants for symptoms of COVID-19.
Screening should take place before staff and new intakes enter the facility or just inside the facility, where practicable. For new admissions, this should occur before beginning the intake process, in order to identify and immediately isolate any detainee with symptoms before the individual comingles with others or is placed in the general population. This should include temperature screening of all staff and new entrants, as well as a verbal symptoms check.
• Verbal screening for symptoms of COVID-19 and contact with COVID-19 cases should include the following questions based on Interim Guidance: Managing COVID-19 in Correctional/Detention Facilities:
o Today or in the past 24 hours, have you had any of the following symptoms?
▪ Fever, felt feverish, or had chills?
▪ Cough?
▪ Difficulty breathing?
o In the past 14 days, have you had contact with a person known to be infected with COVID-19 where you were not wearing the recommended proper PPE?
• If staff have symptoms of COVID-19 (fever, cough, shortness of breath): they must be denied access to the facility.
• If any new intake has symptoms of COVID-19:
o Require the individual to wear a face mask.
o Ensure that staff interacting with the symptomatic individual wears recommended PPE.
o Isolate the individual and refer to healthcare staff for further evaluation.
o Facilities without onsite healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective isolation and necessary medical care.
• If an individual is a close contact of a known COVID-19 case or has traveled to an affected area (but has no COVID-19 symptoms), quarantine the individual and monitor for symptoms two times per day for 14 days.
➢ Visitation
• During suspended (social) or modified (legal) visitation programs, provide access to virtual visitation options where available. When not possible, verbally screen all visitors on entry for symptoms of COVID-19 and perform temperature checks, when possible. ICE continues to explore opportunities to enhance attorney access while legal visits are being impacted. For facilities at which immigration hearings are conducted or where detainees are otherwise held who have cases pending immigration proceedings, this may include:

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o Adding all immigration attorneys of record to the Talton Pro-bono platform.
o Requiring facilities to establish a process for detainees/immigration attorneys to schedule appointments and facilitate the calls.
o Leveraging technology (e.g., tablets, smartphones) to facilitate attorney/client communication.
o Working with the various detention contractors and telephone service providers to ensure that all detainees receive some number of free calls per week.
• Communicate with the public about any changes to facility operations, including visitation programs. Facilities are encouraged to prohibit or, at a minimum, significantly adopt restricted visitation programs, and to suspend all volunteer work assignments for detainees assigned to food service, and other assignments where applicable.
➢ Where possible, restrict transfers of detained non-ICE populations to and from other jurisdictions and facilities unless necessary for medical evaluation, isolation/quarantine, clinical care, or extenuating security concerns.
➢ Consider suspending work release programs for inmates at shared facilities to reduce overall risk of introduction and transmission of COVID-19 into the facility.
➢ When feasible and consistent with security priorities, encourage staff to maintain a distance greater than six feet from an individual that appears feverish or ill and/or with respiratory symptoms while interviewing, escorting, or interacting in other ways, unless wearing PPE.
➢ Additional Measures to Facilitate Social Distancing
• Although strict social distancing may not be possible in congregate settings such as detention facilities, all facilities housing ICE detainees should implement the following measures to the extent practicable:
o Efforts should be made to reduce the population to approximately 75% of capacity.
o Where detainee populations are such that such cells are available, to the extent possible, house detainees in individual rooms.
o Recommend that detainees sharing sleeping quarters sleep “head-to-foot.”
o Extend recreation, law library, and meal hours and stagger detainee access to the same in order to limit the number of interactions between detainees from other housing units.
o Staff and detainees should be directed to avoid congregating in groups of 10 or more, employing social distancing strategies at all times.

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o Whenever possible, all staff and detainees should maintain a distance of six feet from one another.
o If practicable, beds in housing units should be rearranged to allow for sufficient separation during sleeping hours.
MANAGEMENT
If there has been a suspected COVID-19 case inside the facility (among incarcerated/detained persons, staff, or visitors who have recently been inside), begin implementing Management strategies while test results are pending. Essential Management strategies include placing cases and individuals with symptoms under medical isolation, quarantining their close contacts, and facilitating necessary medical care, while observing relevant infection control and environmental disinfection protocols and wearing recommended PPE.
ICE Custody Review for Potentially High-Risk Detainees
Upon being informed of a detainee who may potentially be at higher risk for serious illness from exposure to COVID-19, ERO will review the case to determine whether continued detention is appropriate.9 ICE will make such custody determinations on a case-by-case basis, pursuant to the applicable legal standards, with due consideration of the public health considerations implicated.
➢ Considerable effort should be made to quarantine all new entrants for 14 days before they enter the general population.
• To do this, facilities should consider cohorting daily intakes; two days of new intakes, or multiple days on new intakes, in designated areas prior to placement into the general population. Given the significant variance in facility attributes and characteristics, cohorting options and capabilities will differ across the various detention facilities housing ICE detainees. ICE encourages all facilities to adopt the most effective cohorting methods practicable based on the individual facility characteristics taking into account the number new intakes anticipated per day.
➢ For suspected or confirmed COVID-19 cases:
• Isolate the individual immediately in a separate environment from other individuals. Facilities should make every possible effort to isolate persons individually. Each isolated individual should be assigned his or her own housing space and bathroom where possible. Cohorting should only be practiced if there are no other available options. Only individuals who are laboratory-confirmed COVID-19 cases should be isolated as a cohort. Do not cohort confirmed cases with suspected cases or case contacts.
• Ensure that the individual is always wearing a face mask (if it does not restrict breathing) when outside of the isolation space, and whenever another individual
9 Attachment K, Assistant Director Peter Berg, Enforcement and Removal Operations, Updated Guidance: COVID-19 Detained Docket Review (Apr. 4, 2020).

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enters the isolation room. Masks should be changed at least daily, and when visibly soiled or wet.
• If the number of confirmed cases exceeds the number of individual isolation spaces available in the facility, then ICE must be promptly notified so that transfer to other facilities, transfers to hospitals, or release can be coordinated immediately. Until such time as transfer or release is arranged, the facility must be especially mindful of cases that are at higher risk of severe illness from COVID-19. Ideally, ill detainees should not be cohorted with other infected individuals. If cohorting of ill detainees is unavoidable, make all possible accommodations until transfer occurs to prevent transmission of other infectious diseases to the higher-risk individual (For example, allocate more space for a higher-risk individual within a shared isolation room).
• Review the CDC’s preferred method of medically isolating COVID-19 cases here depending on the space available in a particular facility. In order of preference, individuals under medical isolation should be housed:
o Separately, in single cells with solid walls (i.e., not bars) and solid doors that close fully.
o Separately, in single cells with solid walls but without solid doors.
o As a cohort, in a large, well-ventilated cell with solid walls and a solid door that closes fully. Employ social distancing strategies related to housing in the Prevention section above.
o As a cohort, in a large, well-ventilated cell with solid walls but without a solid door. Employ social distancing strategies related to housing in the Prevention section above.
o As a cohort, in single cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. (Although individuals are in single cells in this scenario, the airflow between cells essentially makes it a cohort arrangement in the context of COVID-19.)
o As a cohort, in multi-person cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. Employ social distancing strategies related to housing in the Prevention section above.
• Maintain isolation until all the CDC criteria have been met:
o The individual has been free from fever for 72 hours without the use of fever-reducing medications.
o The individual’s other symptoms have improved (e.g., cough, shortness of breath).
o The individual has tested negative in at least two consecutive respiratory specimens collected at least 24 hours apart.

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o At least 7 days have passed since the date of the individual’s first positive COVID-19 test and he or she has had no subsequent illness.
• Meals should be provided to COVID-19 cases in their isolation rooms. Isolated cases should throw disposable food service items in the trash in their isolation room. Non-disposable food service items should be handled with gloves and washed with hot water or in a dishwasher. Individuals handling used food service items must clean their hands after removing gloves.
• Laundry from a COVID-19 case can be washed with other individuals’ laundry.
o Individuals handling laundry from COVID-19 cases should wear disposable gloves, discard gloves after each use, and clean their hands after handling.
o Do not shake dirty laundry. This will minimize the possibility of dispersing the virus through the air.
o Launder items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely.
o Clean and disinfect clothes hampers according to guidance above for surfaces. If permissible, consider using a bag liner that is either disposable or can be laundered.

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ATTACHMENT LETTER A B C D
E
F
G
H
I

ATTACHMENTS
DOCUMENT NAME AND CITATION
U.S. Immigration and Customs Enforcement, Updated ICE statement on COVID-19 (Mar. 18, 2020), https://www.ice.gov/news/releases/updated-ice-statement-covid-19.
ICE National Detention Standards 2019, Standard 4.3, Medical Care, https://www.ice.gov/doclib/detention-standards/2019/4_3.pdf.
2011 ICE Performance-Based National Detention Standards, Revised 2016, Standard 4.3, https://www.ice.gov/doclib/detentionstandards/2011/4-3.pdf.
2008 ICE Performance-Based National Detention Standards, Standard 4-22, Medical Care, https://www.ice.gov/doclib/dro/detentionstandards/pdf/medical_care.pdf.
Centers of Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidancecorrectional-detention.pdf.
Memorandum from Executive Associate Director Enrique Lucero, Enforcement and Removal Operations, Memorandum on Coronavirus 2019 (COVID-19) Action Plan, Revision 1 (Mar. 27. 2020).
Centers of Disease Control and Prevention, Public Health Recommendations for Community-Related Exposure, https://www.cdc.gov/coronavirus/2019-ncov/php/public-healthrecommendations.html (last visited Apr. 9, 2020).
Centers for Disease Control and Prevention, Strategies to Optimize the Supply of PPE and Equipment, https://www.cdc.gov/coronavirus/2019-ncov/hcp/ppe-strategy/ (last visited Apr. 9, 2020).
Centers for Disease Control and Prevention, Cleaning and Disinfection for Community Facilities, https://www.cdc.gov/coronavirus/2019ncov/community/organizations/cleaning-disinfection.html (last visited Apr. 9, 2020).

ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020)

17

Case 1:18-cv-00760-CKK-RMM Document 112-6 Filed 05/17/20 Page 18 of 18

J

U.S. Environmental Protection Agency, List N: Disinfectants for Use

Against SARS-CoV-2, https://www.epa.gov/pesticide-registration/list-

n-disinfectants-use-against-sars-cov-2 (last visited Apr. 9, 2020).

K

Assistant Director Peter Berg, Enforcement and Removal

Operations, Updated Guidance: COVID-19 Detained Docket Review

(Apr. 4, 2020).

ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020)

18

CCaassee17:1:280-c-cvv-0-000706602-C-CKDKL-R-MMSMH DDooccuummeenntt 11122-1-7 FFilieledd0045/0/197/2/200 PPaaggee11oof f44

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICTMOF GEORGIA

MARTINEZ et. al. on their own behalf and on behalf of others similarly situated,
Petitioners-Plaintiffs, v. MICHAEL DONAHUE, warden Stewart Detention Center; MATTHEW ALBENCE, in his official capacity as the Acting Director for U.S. Immigration and Customs Enforcement; UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT; CHAD WOLF, in his official capacity as Secretary of the U.S. Department of Homeland Security; UNITED STATES DEPARTMENT OF HOMELAND SECURITY;
Respondents-Defendants.

Case No. 7:20-cv-00062

DECLARATION OF OFFICER IN CHARGE JOHN BRETZ I, John Bretz, make the following statements under oath and subject to the penalty of perjury:

1. I am employed by U.S. Department of Homeland Security, Immigration and Customs Enforcement (ICE), and currently serve as the Officer in Charge. I have held this position since 2019.
2. I provide this declaration based on my personal knowledge, belief, reasonable inquiry, and information obtained from various records, systems, databases, other DHS employees, employees of DHS contract facilities, and information portals maintained and relied upon by DHS in the regular course of business.
3. In my current position, I am an Officer in Charge at the Stewart Detention Center, at the Atlanta Field Office, employed by the U.S. Department of Homeland Security (DHS), U.S. Immigration and Customs Enforcement (ICE), Enforcement and Removal Operations (ERO). In this capacity, I manage ERO personnel and provide oversight over ERO’s operations at the Stewart Detention Center. I have been employed by the former Immigration and Naturalization Service (INS) and ICE since 1995.

1

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4. ICE Health Service Corps (IHSC) provides direct medical, dental, and mental health patient care to approximately 13,500 detainees housed at 20 IHSC-staffed facilities throughout the nation.
5. IHSC’s FMCs ensure that the provision of medical care by contractors to the ICE detainees within the IGSA facilities meets detention standards, as required by the IGSA contract. The FMCs do not provide hands-on care or direct the care within the IGSAs but monitor the medical care and services provided by the contract facilities. Medical staff at the contract facilities are directly responsible for medical care at the facility.
6. IHSC comprises a multidisciplinary workforce that consists of U.S. Public Health Service Commissioned Corps (USPHS) officers, federal civil servants, and contract health professionals.
7. Since the onset of reports of Coronavirus Disease 2019 (COVID-19), ICE epidemiologists have been tracking the outbreak, regularly updating infection prevention and control protocols, and issuing guidance to field staff on screening and management of potential exposure among detainees.
8. In testing for COVID-19, IHSC is also following guidance issued by the Centers for Disease Control (CDC) to safeguard those in its custody and care.
9. Each detainee is screened for disabilities upon admission by a qualified healthcare professional. Identified disabilities are further evaluated and reasonable accommodations are provided as medically appropriate.
10. At the facility, during intake medical screenings, detainees are assessed for fever and respiratory illness, are asked to confirm if they have had close contact with a person with laboratory-confirmed COVID-19 in the past 14 days, and whether they have traveled from or through area(s) with sustained community transmission in the past two weeks.
11. The detainee’s responses and the results of these assessments will dictate whether to monitor or isolate the detainee. Those detainees who present symptoms compatible with COVID-19 will be placed in isolation, where they will be tested. If testing is positive, they will remain isolated and treated. In case of any clinical deterioration, they will be referred to a local hospital.
12. In cases of known exposure to a person with confirmed COVID-19, asymptomatic detainees are placed in cohorts with restricted movement for the duration of the most recent incubation period (14 days after most recent exposure to an ill detainee) and are monitored daily for fever and symptoms of respiratory illness. Cohorting is an infectionprevention strategy which involves housing detainees together who were exposed to a person with an infectious organism but are asymptomatic. This practice lasts for the duration of the incubation period of 14 days, because individuals with these and other communicable diseases can be contagious before they develop symptoms and can serve as undetected source patients. Those that show onset of fever and/or respiratory illness are referred to a medical provider for evaluation. Cohorting is discontinued when the 14day incubation period completes with no new cases. Per ICE policy, detainees diagnosed
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with any communicable disease who require isolation are place in an appropriate setting in accordance with CDC or state and local health department guidelines.
13. Stewart Detention Center has the following medical capabilities:
o The facility, which manages males only, provides daily access to sick calls in a clinical setting, and infirmary and access to specialty services and hospital care.
14. As of 1:00 p.m. on April 9, 2020, IHSC has the following information:
a. There are 30 ICE detainee suspected cases of COVID-19 in the facility who are on medical observation per CDC guidelines.
b. There are 5 confirmed cases of COVID-19 among ICE detainees in the facility. The 5 confirmed cases are isolated and receiving medical treatment consistent with CDC guidelines.
15. The facility has populations within their approved capacities and are not overcrowded.
16. The facility has increased sanitation frequency and provides sanitation supplies as follows:
o The facility provides 24-hour access to sanitation supplies including, disinfectants, hand sanitizer, and soap in every housing unit at the facility. The administration is encouraging both staff and the jail general population to use these tools often and liberally.
17. The facility has suspended in person social visitation and facility tours. Noncontact legal visitation is still permitted provided the visitor provides their own personal protective equipment and submits to screening prior to entering the facility.
18. The facility is screening all staff and vendors when they enter the facilities including body temperatures.
19. The facility is screening all detainee intakes when they enter the facilities including travel histories, medical histories and checking body temperatures and have procedures to continue monitoring the populations’ health.
20. The facility provides education on COVID-19 to staff and detainees to include the importance of hand washing and hand hygiene, covering coughs with the elbow instead of with hands, and requesting to seek medical care if they feel ill. The facilities provide detainees daily access to sick call.
21. The facility has identified housing units for the quarantine of patients who are suspected of or test positive for COVID-19 infection to be addressed as set forth in paragraphs 8, 9 and 10, supra.
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22. ICE has reviewed its detained “at risk population” as identified by the CDC guidelines to determine if detention remains appropriate, considering the detainee’s health, public safety and mandatory detention requirements, and adjusted custody conditions, when appropriate, to protect health, safety and well-being of its detainees.
I declare, under penalty of perjury under 28 U.S.C. § 1746, that the foregoing is true and correct to the best of my knowledge and based on information obtained from other individuals employed by ICE. DATED: April 9, 2020 _____________________________________
________________________________ Enforcement and Removal Operations U.S. Immigration and Customs Enforcement
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,

Plaintiffs,

v.

Civil Action No. 1:20-cv-00852-CJN

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, et al.,

Defendants.

EXHIBIT 4

CasCea1s:1e81-:c2v0-0-c0v7-6000-8C5K2-KC-RJNMMDoDcuomcuemnte1n9t -1512-F9iledFi0le4d/1035/2/107/2P0agPea2goef214of 14

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al. on their own behalf andon behalf of others similarly situated,

Case No. 1:20-cv-00852

Petitioners-Plaintiffs,
v.
EXECUTIVE OFFICE OF IMMIGRATION REVIEW, et al.

Respondents-Defendants. _________________________________________________
DECLARATION OF RUSSELL HOTT
I, Russell Hott, declare the following under 28 U.S.C. § 1746, and state that under penalty of perjury the following is true and correct to the best of my knowledge and belief:
I. Personal Background 1. I am currently employed by the U.S. Department of Homeland Security (DHS),
U.S. Immigration and Customs Enforcement (ICE), Enforcement and Removal Operations (ERO) as the Acting Assistant Director for the Custody Management Division (CMD). I have held this position since February 2020. CMD provides policy and oversight for the administrative custody of ICE’s highly transient and diverse population of immigration detainees. CMD is composed of three divisions led by three Deputy Assistant Directors under my direct supervision: (1) the Alternatives to Detention Division; (2) the Detention Management Division; and (3) the Custody Programs Division.
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2. As the Acting Assistant Director, I am responsible for the effective and proficient performance of these three Divisions and their various units, including the oversight of compliance with ICE’s detention standards and conditions of confinement at ICE detention facilities generally. I am further responsible for managing ICE detention operations efficiently and effectively to provide for the safety, security, and care of an average of about 40,000 detainees daily and roughly 500,000 detainees annually, at approximately 250 facilities nationwide, including three family residential shelters located in Texas and Pennsylvania.
3. From May 2017 to February 2020, I served as the Field Office Director for the Washington, DC ERO Field Office, responsible for the District of Colombia and Virginia. In my role as Field Office Director, I provided operational and policy oversight for ERO’s interior enforcement efforts within the local area of responsibility, spanning 43,000 square miles, three district courts, a cadre of nearly 200 employees, and 1,400 detention beds.
4. I began my career with the U.S. Government as a detention enforcement officer with the former Immigration and Naturalization Service in New York, NY. I advanced through a variety of positions including Immigration Enforcement Agent, Deportation Officer, Instructor at the Federal Law Enforcement Training Center, Supervisory Detention and Deportation Officer, acting Assistant Field Office Director, National Program Manager, Unit Chief, Acting Deputy Chief of Staff for ERO, Chief of Staff for the ICE Deputy Director, Deputy Field Office Director for both the Boston and Washington field offices, Field Office Director, and Acting Deputy Assistant Director.
2

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II. Overview of ICE ERO 5. ICE is charged with the enforcement of more than 400 federal statutes, and its
mission is to protect the United States from the cross-border crime and illegal immigration that threaten national security and public safety through enforcement of the federal laws governing border control, customs, trade, and immigration. To carry out this mission, ICE focuses on enforcing federal immigration laws, preventing terrorism, and combating transnational criminal threats. As an operational program of ICE, ERO is responsible for the planning, management, and direction of broad programs relating to the supervision, detention, and removal of aliens who are removable from the United States under the U.S. immigration laws.
6. ERO’s mission is to identify, arrest, and remove aliens who present a danger to national security or are a risk to public safety, as well as those who enter the United States illegally or otherwise undermine the integrity of our immigration laws and our border control efforts. CMD is one of six headquarters Divisions. The other five are: Enforcement, Removal, Field Operations, the ICE Health Service Corps (IHSC), and Operations Support.
7. CMD provides policy and oversight for the administrative custody of one of the most highly transient and diverse populations of any correctional or detention system in the world. CMD manages ICE detention operations efficiently and effectively to provide for the safety, security, and care of aliens detained in ICE custody.
8. As a part of my official duties, I am familiar with a complaint filed in National Immigration Project of the National Lawyers Guild. v. Executive Office of Immigration Review, No. 1:20-cv-00852 (D.D.C. filed Mar. 30, 2020),1 in which Plaintiffs seek an order suspending
1 The correct name of the first named Defendant agency is the “Executive Office for Immigration Review.” See www.justice.gov/eoir (accessed April 10, 2020) (emphasis added).
3

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in-person immigration hearings for detained individuals for the duration of the COVID-19 2 pandemic, providing “robust access alternatives for detained individuals who wish to proceed with their hearings,” guaranteeing “secure and reliable remote communication” between detainees and counsel, and requiring, if personal protective equipment (PPE) is mandated to be worn by detainees and visitors, that the government provide such equipment. I understand that Plaintiffs are also arguing for temporary release from custody in the alternative, should detainees have “inadequate access to alternative means of remote communication” with counsel. I submit this declaration to explain the extensive and continuing actions ICE is already taking to protect detainees in response to this unprecedented pandemic. The information in this declaration is based upon my personal knowledge and experience as a law enforcement officer and on information provided to me in my official capacity. Due to the constantly evolving nature of this crisis, operational realities are fluid with new decisions being required on a regular basis. The information in this declaration is current and accurate as of the time I signed below.
III. ICE Detention Facilities and Practices Nationwide 9. As an operational program of ICE, ERO is responsible for the planning,
management, and direction of broad programs relating to the supervision, detention, and removal of aliens from the United States under the U.S. immigration laws. ERO’s statutory responsibilities include detention of aliens during the pendency of proceedings to determine whether they will be removed from the United States, as well as aliens subject to an administratively final removal order, pending their removal from the United States. The
2 According to the Centers for DiseaseControl and Prevention (CDC), on February 11, 2020 theWorld Health Organization announced an official name for the diseasethat is causing the2019 novel coronavirus outbreak, first identified in Wuhan, China. The new name of this disease is coronavirus disease 2019, abbreviated as COVID-19. In COVID-19, ‘CO’ stands for ‘corona,’ ‘VI’ for ‘virus,’ and ‘D’ for disease. Formerly, this disease was referred to as “2019 novel coronavirus”or “2019-nCoV”. See https://www.cdc.gov/coronavirus/2019ncov/faq.html#Coronavirus-Disease-2019-Basics (accessed April 10, 2020).
4

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immigration laws also mandate detention of certain categories of aliens, including “arriving aliens” and certain categories of criminal and terrorist aliens.
10. The length of an individual alien’s detention depends on a number of factors, including whether the alien is subject to mandatory detention under the U.S. immigration laws, the duration of any removal proceedings before the Department of Justice’s Executive Office for Immigration Review (EOIR), appeals before the federal courts of appeals, and issues regarding execution of a final removal order. ERO also transfers aliens in its custody for a number of legal and operational purposes such as attendance at immigration court hearings, to facilitate removal, provide for appropriate medical care, and transfers between facilities for other reasons. In Fiscal Year 2019, ICE housed an average daily population of 50,165 aliens nationwide. In Fiscal Year 2020, through April 4, 2020, ICE housed an average daily population of 42,738 nationwide.
11. ICE coordinates the acquisition of detention bed space for removable adult aliens through: (1) Service Processing Centers (SPCs); (2) Contract Detention Facilities (CDFs); and (3) Intergovernmental Service Agreement (IGSA) facilities (collectively, “immigration detention facilities”). SPCs are owned by ICE and staffed by a combination of federal and contract employees. CDFs are owned by private companies that contract directly with the government and are predominantly staffed by contract employees. Dedicated IGSAs can be public facilities or privately owned and can be operated by local governments or private companies operating under contracts with local governments.
12. Many IGSAs house a very small ICE population compared to the local inmate population, while others are almost exclusively committed to housing ICE detainees. Other facilities used by ICE under various contractual arrangements include: facilities used by ICE through a contract awarded by the U.S. Marshals Service (USMS), facilities operated by the
5

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Federal Bureau of Prisons (BOP), staging facilities for transportation, holding facilities for temporary detention, and hospitals for emergency care, among other types of facilities.
13. ICE used about 30 dedicated (or largely dedicated) immigration detention facilities throughout the United States in Fiscal Year 2019. Of these facilities, 13 were privately operated CDFs that are typically privately owned, housing an average daily population of 9,387 alien detainees; five were SPCs owned by the federal government and privately operated through contractors, housing an average daily population of 3,799 alien detainees; and 14 were dedicated (or largely dedicated) IGSAs, housing an average daily population of 12,635 alien detainees. 3
14. All immigration detention facilities are bound by strict detention standards to ensure that detainees in ICE custody reside in safe, secure and humane environments and under appropriate conditions of confinement. The first of these standards, the National Detention Standards (NDS), was issued in September 2000, to facilitate consistent conditions of confinement, access to legal representation and safe and secure operations across the detention system. In particular, NDS required facilities to allow detainees to meet privately with current or prospective legal representatives and their assistants, as well as with consular representatives.4 The standards established consistency of program operations and management expectations, accountability for compliance and a culture of professionalism.
15. In 2008, ICE revised NDS to more clearly delineate the results or outcomes to be accomplished by adherence to their requirements. The Performance-Based National Detention Standards (PBNDS 2008), developed in coordination with agency stakeholders, prescribe both the expected outcomes of each detention standard and the expected practices required to achieve
3 The remaining averagedaily population (approximately 24,344 alien detainees) was housed in other facilities that are not entirely dedicated to immigration detention, namely: 143 non-dedicated IGSA facilities, 121 facilities under intergovernmental agreements with other federal agencies, and 20 other facilities, such as BOP facilities. 4 https://www.ice.gov/doclib/dro/detention-standards/pdf/visit.pdf (accessed April 10, 2020).
6

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them. PBNDS 2008 was also designed to improve safety, security and conditions of confinement for detainees. Regarding visitation, PBNDS 2008 maintained and expanded on the provisions in NDS, requiring each facility to permit legal visitation 7 days a week, including holidays, for a minimum of eight hours per day on weekdays and a minimum of four hours per day on weekends and holidays.5 In addition to legal representatives and assistants, interpreters and messengers are also permitted. PBNDS 2008 also expanded and clarified confidentiality provisions, added a requirement for private meeting rooms and confidential exchange of documents, and provides for group legal meetings.
16. The PBNDS was revised in 2011, reflecting ICE's ongoing effort to tailor the conditions of immigration detention to its unique purpose while maintaining a safe and secure detention environment for staff and detainees. In developing the revised standards, ICE incorporated the input of many agency employees and stakeholders, including the perspectives of nongovernmental organizations and ICE field offices. PBNDS 2011 is crafted to improve medical and mental health services, increase access to legal services and religious opportunities, improve communication with detainees with limited English proficiency, improve the process for reporting and responding to complaints, and increase recreation and visitation. PBNDS 2011 was revised in 2016 to ensure consistency with federal legal and regulatory requirements as well as prior ICE policies and policy statements. PBNDS 2011 contains the same visitation policies as PBNDS 2008.6
17. In 2019, ICE issued new National Detention Standards (NDS 2019) for nondedicated facilities which supersede the NDS. These updated, modernized standards focus on ICE’s essential requirements, encourage greater communication between facilities and their local
5 https://www.ice.gov/doclib/dro/detention-standards/pdf/visitation.pdf (accessed April 10, 2020). 6 https://www.ice.gov/doclib/detention-standards/2011/5-7.pdf (accessed April 10, 2020).
7

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ICE field offices, and provide a comprehensive list of circumstances in which such communication is required. Based on ICE’s experience with its state and local law enforcement partners, and the understanding that local practice appropriately covers many requirements that were explicitly enumerated in NDS, NDS 2019 streamlines several prior standards. NDS 2019 also incorporates substantive additions, addressing topics such as medical care, segregation, disability access, sexual assault and abuse prevention and intervention, and language access. NDS 2019 will apply to the approximately 45 IGSA facilities currently operating under the NDS, approximately 35 USMS facilities used by ICE and which ICE inspects against the NDS, as well as approximately 60 facilities (both IGSA and USMS) which do not reach the threshold for ICE annual inspections – generally those with an Average Daily Population of less than 10. These are facilities across the country where ICE’s state and local law enforcement partners successfully manage their own populations under federal, state, and local regulations, and assist ICE with housing immigration detainees to enforce immigration laws and improve national safety and security. Importantly, with this superseding NDS, the visitation requirements applicable to facilities covered by PBNDS 2008 and PBNDS 2011 are now applicable to all facilities.7
18. In addition to adult-only immigration detention facilities, ICE also utilizes three Family Residential Centers (FRCs) located in Texas and Pennsylvania. Visitation standards applicable to these facilities are substantively similar to those referenced above for adult immigration detention facilities.8
IV. NATIONWIDE ICE EFFORTS IN RESPONSE TO COVID-19 19. The health, welfare and safety of ICE detainees is one of the agency’s highest
priorities. Since the initial reports of COVID-19, ICE epidemiologists have been tracking the
7 https://www.ice.gov/doclib/detention-standards/2019/5_5.pdf (accessed April 10, 2020). 8 https://www.ice.gov/doclib/dro/family-residential/pdf/rs_visitation.pdf (accessed April 10, 2020).
8

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outbreak, regularly updating infection prevention and control protocols, and issuing guidance to staff for the screening and management of potential exposure among detainees.
20. ICE continues to adapt and, through daily monitoring of the Centers for Disease Control and Prevention (CDC) website,9 incorporate in its procedures any updates to the CDC’s COVID-19 guidance, which is built upon well-established infectious disease monitoring and management protocols already in use by the agency.
21. On March 13, 2020, social visitation at all immigration detention facilities was suspended indefinitely in order to mitigate the potential transmission of COVID-19. However, legal visitation was permitted to continue, subject to facility-specific determinations that such visitation poses a threat to the safety and security of any given facility. Due to the highly contagious nature of COVID-19, ICE has been encouraging the use of communication services such as teleconferencing, video visitation (e.g. Skype, FaceTime), email, and/or the use of tablets, where possible, in lieu of in-person visitation. Recognizing that the unique nature of some legal consultations requires in-person communication, ICE recommends non-contact visitation to the maximum extent possible. Where requested, and where local conditions allow, contact visitation has been permitted if requested.
22. On March 20, 2020, as the COVID-19 situation continued to evolve, ICE revised the temporary limitation on visitation to add a requirement that all visitors provide and wear PPE when entering any facility, for the protection of detainees, staff, and visitors alike. ICE further announced that legal representatives seeking to enter any immigration detention facility may be subject to additional, enhanced screening procedures. Specific measures taken to prevent the
9 Specifically, ICEclosely follows the CDC’s Interim Guidanceon Management of Coronavirus 2019 (COVID-19) in Correctional and Detention Facilities at https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctional-detention.html, and its general public guidance at https://www.cdc.gov/coronavirus/2019-ncov/index.html.
9

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spread of COVID-19 to residents, staff, and/or visitors may differ from facility to facility, based on varying local conditions and contractual requirements.
23. The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) requires employers to provide PPE to employees who could be exposed to infectious individuals or materials. An ICE-wide acquisition plan is underway to obtain bulk purchases of PPE and coordinate distribution of equipment to agency staff and, as inventory allows, assist medical units in ICE detention facilities that are experiencing a critical reduction in supply. ICE does not have a requirement or expectation to source PPE to the public, including private attorneys or other visitors who have been retained to provide legal services to detainees. While the use of alternate supply chains is being continually explored to obtain PPE, at this time, ICE does not have on hand enough inventory to offer PPE to the public. Due to the global shortage of PPE caused by the crisis,10 ICE must be judicious in utilizing this limited resource. As noted by the CDC, PPE are “critical supplies that must continue to be reserved for healthcare workers and other medical first responders, as recommended by current CDC guidance.”11
24. ICE has been, and will continue to be, committed to ensuring that detainees are always able to communicate with legal representatives. Facilities have been instructed that, should it become necessary to suspend in-person legal visitation, they must ensure detainee communication with legal representatives continues unimpeded by leveraging all available forms of video technology, email, and messaging. ICE will also take steps to facilitate such
10 See https://www.who.int/news-room/detail/03-03-2020-shortage-of-personal-protective-equipment-endangeringhealth-workers-worldwide (accessed April 13, 2020); https://www.fda.gov/medical-devices/personal-protectiveequipment-infection-control/faqs-shortages-surgical-masks-and-gowns (accessed April 13, 2020). 11 https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover.html (accessed April 13, 2020).
10

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communication, in the absence of visitation, through extended access to telephones and other reasonable means.
25. At the onset of COVID-19, ICE consulted with telecommunications service providers to expand access to electronic and phone services during diminished contact visitation. The service providers agreed to provide increased access to telecommunications equipment, free phone and video services, and extended hours where possible. Further, the service providers agreed to provide indigent aliens with regular, unfettered phone access. ERO expounded on the commitments of the service providers and agreed to double the amount of free access to all detainees and purchase additional telecommunications equipment such as mobile tablets enabled with videoconferencing and texting services, where available.
26. Since March 2020, ICE has participated in discussions with service providers and pro bono attorneys to identify possible solutions to increase attorney accessibility through other communication methods. ICE has experienced an outpouring of support from service providers to further expand and build upon existing capabilities. Existing ICE practices, consistent with most other detention and corrections systems, incorporate time limitations to ensure equal access. Beginning on March 27, the ICE detainee telephone system (DTS), provided by Talton Communications at certain dedicated facilities, committed to expanding system capabilities and access, including some free international capabilities that were previously unavailable. This includes providing detainees with a free 15-minute video call or two free 5-minute calls per week. To further enhance accessibility, ICE committed additional funds to double this access, so that detainees have up to two free 15-minute video calls and four free 5-minute voice calls per week. Although specific rules vary by facility, in general if no other detainees are waiting to utilize the equipment (i.e. phone, tablet, or kiosk), the detainee may be permitted to participate in
11

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a cumulative call. Detainees at facilities with DTS may opt to use free calls to speak with their attorneys privately, without monitoring. They may also call families and friends free of charge. Additionally, as of the week of April 12, ICE began providing free 30-minute calls through the DTS to detainees with pending court actions. This access is in addition to the existing pro bono platform. Furthermore, ICE has been working with Talton Communications to install an additional 200 tablets across facilities by April 30, with the possibility of adding another 350 tablets shortly thereafter, to further facilitate all forms of electronic communication. For other facilities, such as non-dedicated IGSAs that have other phone contractors or operations, ICE has been working with those other service providers to provide the same or similar services as those made available on the DTS platform.
27. ICE continues to explore opportunities to enhance attorney access while legal visits are being impacted. For facilities at which immigration hearings are conducted or where detainees are otherwise held who have immigration proceedings pending, this may include options such as adding immigration attorneys to the pro bono communications platform, requiring facilities to establish a process for detainees and/or attorneys to schedule appointments and facilitate the calls, further leveraging the use of technology, and working with the various detention contractors and communications service providers to ensure that all detainees receive a number of free calls per week.
28. With respect to immigration court hearings, on March 18, 2020, ICE requested that EOIR suspend the in-person requirements for detainee appearance before immigration judges in removal proceedings. EOIR committed to considering individual, case-by-case motions for telephonic appearances. As of April 7, 2020, most immigration judges nationwide have standing orders permitting telephonic appearance of the parties, while a few others continue
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to consider requests on a case-by-case basis. Additionally, EOIR has made electronic filing available for parties before the immigration courts.12
29. On April 10, 2020, ERO issued COVID-19 Pandemic Response Requirements (PRR), developed in consultation with the CDC, which sets forth expectations and assists ICE detention facility operators to sustain detention operations, while mitigating risk to the safety and well-being of detainees, staff, contractors, visitors, and stakeholders due to COVID-19.13 The PRR builds upon previously-issued guidance and sets forth specific mandatory requirements and best practices on a number of issues, including visitation, for all immigration detention facilities.
30. The continually-evolving nature of the COVID-19 emergency requires ongoing review and frequent adaptation of agency policy. ICE continues to explore all available options to ensure the health and safety of its diverse detained population while also safeguarding important detainee legal rights.
This declaration is based upon my personal and professional knowledge, information obtained from other individuals employed by ICE, and information obtained from various records and systems maintained by DHS. I provide this declaration based on the best of my knowledge, information, belief, and reasonable inquiry for the above captioned case.
Signed on this 13th day of April 2020.
____________________ Russell Hott Acting Assistant Director Custody Management Division ICE Enforcement and Removal Operations
12 https://www.justice.gov/eoir/filing-email (accessed April 10, 2020). 13 https://www.ice.gov/sites/default/files/documents/Document/2020/eroCOVID19responseReqsCleanFacilities.pdf (accessed April 13, 2020).
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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION

ARISTOTELES SANCHEZ

:

MARTINEZ, et al.

:

:

Petitioner,

:

v.

:

:

WARDEN, Stewart County Detention :

Center, et al.

:

:

Respondents.

:

__________________________________ :

Case No. 7:20-CV-62-CDL-MSH 28 U.S.C. § 2241

RESPONDENTS’ OPPOSITION TO PETITIONERS’ MOTION FOR A TEMPORARY RESTRAINING ORDER

The COVID-19 pandemic is currently threatening all individuals within the United States,

to include those in custody and those in the community at large. U.S. Immigration and Customs

Enforcement (ICE) is committed to reduce the risk for immigration detainees, including reducing

detainee populations, increasing sanitation, adding screening, limiting visitors, providing testing,

and creating isolation protocols. However, the Petitioners’ fear of contracting COVID-19 while

detained does not provide a legal basis for their release. The Petitioners are either subject to

mandatory detention or have been found to be a danger to the community and/or a flight risk, and

the current pandemic does not change that legal detention status. Moreover, this is not a situation

where COVID-19 is spreading in the detention facilities, but not among the general public;

COVID-19 has been rapidly spreading nationwide. In light of this pandemic, ICE has been

exercising its discretion to reduce the population at the Stewart Detention Center and Irwin County

Detention Center, and Petitioners have given this Court no basis to substitute their self-selection

for the discretion vested in ICE by statute and regulation.

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FACTUAL BACKGROUND The facts represented below have been compiled on an extremely short timeline. Further, because of the nature of COVID-19, the circumstances are changing rapidly. As a result, the United States represents that the facts below have been compiled based on a series of communications with representatives of SDC and ICDC, and these facts are supported generally by the attached declarations submitted to the Court for review.1 I. The Facilities Pursuant to contracts with ICE, SDC and ICDC both house immigration detainees, including Petitioners, and are managed by CoreCivic and LaSalle, respectively. The clinical health care services provided at SDC and ICDC are overseen by field medical coordinators who work for the ICE Health Service Corps (IHSC). IHSC provides direct medical, dental, and mental health patient care to approximately 13,500 detainees housed at 20 IHSC-staffed facilities throughout the nation. IHSC’s field medical coordinators ensure that the provision of medical care by contractors to the ICE detainees within SDC and ICDC, as well as other detention facilities, meet detention standards. The field medical coordinators do not provide hands-on care or direct the care within the facilities but monitor the medical care and services provided by the contract facilities. Medical staff at the contract facilities are directly responsible for medical care at the facilities. Since the onset of reports of Coronavirus Disease 2019 (COVID-19), ICE epidemiologists have been tracking the outbreak, regularly updating infection prevention and control protocols, and issuing guidance to field staff on screening and management of potential exposure among
1 The declaration of Russell Washburn is submitted without signature. Respondents will file the signed copy as soon as possible.
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detainees. In testing for COVID-19, IHSC is also following guidance issued by the Centers for Disease Control (CDC) to safeguard those in its custody and care.
A. Stewart Detention Center (SDC) As of 1:00 pm on April 9, 2020, IHSC has confirmed that there are five confirmed cases of COVID-19 among ICE detainees at SDC. These five detainees have been isolated and are receiving medical treatment consistent with CDC guidelines. There are 30 additional ICE detainees who are suspected to have COVID-19, and those individuals are under medical observation per the CDC guidelines.
1. Affirmative Steps Taken at SDC in light of COVID-19 As outlined more fully below, in response to the COVID-19 pandemic, ICE has taken a number of steps to combat the spread of COVID-19 at SDC. Identify high-risk population. ICE has proactively worked to reduce the overall number of immigration detainees at SDC by reconsidering custody determinations and parole requests, and issuing orders of supervision on release for those aliens who are not subject to mandatory custody, do not pose a danger to the community or flight risk, or there is no significant likelihood of removal in the foreseeable future. Specifically, several weeks ago, SDC medical personnel, at the request of ICE, generated a list of detainees at SDC with certain underlying medical conditions or who are over the age of 60. The list of high-risk detainees is continuing to be updated and is being reviewed on a regular basis. Increased screening. All attorneys, as well as CoreCivic staff, facility contractors, ICE, immigration court personnel, and detainee intakes are screened for symptoms of COVID-19 prior to being permitted entrance to SDC. That includes completion of a screening questionnaire and a temperature check in accordance with the CDC Interim Guidance on Management of Coronavirus
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Disease 2019 (COVID-19) in Correctional and Detention Facilities. The screening area has been set up outside of SDC. If the initial health screening is inconclusive, medical staff is responsible for making any final determination on screening. If screening shows that an individual may be at risk, they are denied entry to the facility, and instructed either to remain at home for a specified quarantine period, or to consult and obtain clearance from their medical provider before they will be admitted to the facility.
Enhanced sanitization practices. As has long been the case at SDC, staff have been educated and reminded to follow universal precautions to prevent the spread of any pathogen. Signs are posted throughout SDC advising and providing instruction on how to stop the spread of germs; handwashing practices; and what to do if you are sick. In addition, there have been several town hall meetings for the SDC detainee population, where guidance was provided on personal hygiene, as well as cleaning and disinfecting individual living areas. Flyers related to the prevention of COVID-19 have been distributed throughout the facility as a reminder of preventative measures. Detainees also have 24-hour access to sanitation supplies and materials to clean and disinfect their individual living areas, as well as to disinfect telephones or kiosks prior to use. SDC has increased its inventory of cleaning chemicals and supplies and has installed hand sanitizer units throughout the facility.
SDC is also continuing its practice of issuing hygiene products to detainees twice a week, including but not limited to soap, toothpaste, shampoo, lotion, and toilet paper. If any detainee has need for additional supplies between the scheduled distribution times, they may, consistent with past practices, ask for additional supplies. In addition, since the outbreak of COVID-19, disinfecting wipes have been made available for detainee use in each of the housing areas at SDC,
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and additional disinfectants, hand sanitizer, soap, and masks are made readily available for staff and detainee use.
Additional protective measures for legal visitors. Social visits have been discontinued entirely. As to visits by legal counsel, SDC’s procedures require that facility staff use personal protective equipment during all detainee escorts to reduce the risk of exposure to potential pathogens. Attorneys are now also required to bring in their own personal protective equipment and may bring sanitizing wipes for use during legal visits. Legal visitation areas are being sanitized before and after each legal visit, including wiping down chairs, tables, phones, and VTC equipment with a disinfectant. Social distancing practices are also being used with visitors.
Encouraging social distancing. SDC has taken several steps to ensure that detainees are not in groups larger than ten when outside of their housing pod. SDC has also taken steps to limit the interactions of detainees for separate housing areas by using satellite feeding in housing pods, removing contact sports like basketball and soccer from the recreation program, and eliminating crews of detainees participating in the voluntary work program. Further, SDC is at 70% of design capacity to encourage distance between detainees where possible.
2. Medical Care at SDC SDC is equipped with the medical capabilities necessary to provide daily access to sick calls in a clinical setting for its detainees and also, when necessary, to provide access to specialty services and hospital care. With respect to medical care in the specific context of COVID-19, SDC has the capacity to effectively quarantine and medically isolate any detainee who is confirmed, presumed, or suspected positive for COVID-19. In cases of known exposure to a person with confirmed COVID-19, asymptomatic detainees are placed in cohorts with restricted movement for the duration of the most recent incubation period (i.e., 14 days after most recent
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exposure to an ill detainee) and are monitored daily for fever and symptoms of respiratory illness. Cohorting is an infection-prevention strategy which involves housing detainees together who were exposed to a person with an infectious organism but are asymptomatic. This practice lasts for the duration of the incubation period of 14 days. Those that show onset of fever or respiratory illness are referred to a medical provider for evaluation. Cohorting is discontinued when the 14-day incubation period completes with no new cases. SDC has identified specific housing units for the quarantine of patients who are suspected or test positive for COVID-19, consistent with the cohort policies set forth above.
In the unlikely event that cases should grow beyond the number that can safely be treated by the medical personnel at SDC, SDC has memoranda of understanding with three regional hospitals (specifically, hospitals in Cuthbert, GA; Columbus, GA; and Albany, GA). If necessary, detainees can be transported to those facilities if they require higher levels of care or monitoring than can be appropriately provided at the facility.
B. Irwin County Detention Center (ICDC) As of 12:30 p.m. on April 9, 2020, there is one confirmed case of COVID-19 at ICDC. The one detainee with a confirmed case has been isolated and is receiving medical treatment consistent with CDC guidelines.
1. Affirmative Steps Taken at ICDC in light of COVID-19 As outlined more fully below, in response to the COVID-19 pandemic, ICE has taken a number of steps to affirmatively combat the spread of COVID-19 at ICDC. Identify high-risk population. ICE, in conjunction with ICDC medical supervisors, maintains a current record of ICDC detainees with chronic medical conditions. Based on that list and related medical input, ICE has planned for and executed the release of a number of ICDC
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inmates determined to be particularly vulnerable to serious illness or death if infected by COVID19. ICDC houses those detainees whom it has determined to be particularly vulnerable to serious illness or death if infected by COVID-19 (but who are not eligible for release based on their offenses) in units with fewer detainees to create maximum social distancing opportunities. Moreover, ICDC unit counts overall have been reduced to facilitate social distancing.
Increased screening. ICDC has put a process in place that requires mandatory temperature checks and the successful completion of a questionnaire prior to entry into the facility by staff or visitors, including any newly arriving detainees. If any question on the questionnaire receives an affirmative response, or if a temperature of 100.4 or higher is recorded, then the visitor will be assessed by medical staff and must be cleared by the Medical Director before entering ICDC. Otherwise, access will be denied.
Enhanced sanitization practices. In addition to the standard cleaning procedures at ICDC, ICDC has ensured that there is increased access to disinfectants, and has ordered multiple cleanings of all housing units and common areas each day with disinfecting agents. Additionally, gloves are provided for cleaning detail usage, and all staff have been provided masks to wear while in the facility. Showers in group housing units are pressured washed daily and sanitized regularly. Shared equipment, like keyboards, is sanitized between uses, and transportation vehicles and equipment are likewise sanitized between each use. ICDC has provided and continues to provide education on COVID-19 to staff and detainees, including the importance of hand washing and hand hygiene, covering coughs with the elbow instead of with hands, and requesting to seek medical care if they feel ill. Hygiene products are distributed regularly to detainees.
Additional protective measures for legal visitation. While social visits have been discontinued, ICDC’s legal access procedures have not been significantly modified, aside from, as
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noted above, the requirement that anyone attempting to enter the ICDC facility take a required temperature check and complete a questionnaire before gaining access. As to visitation by legal counsel, specifically, ICDC has had a program in place to allow for attorney phone calls and skype, and that protocol remains in place. ICDC is presently looking into ways to further expand its skype capabilities. When visits with legal counsel must occur in person, any equipment used for attorney access (i.e., monitors, iPads, phones, etc.) or meeting areas where detainees and their attorneys may meet are disinfected between uses with disinfecting wipes and spray, as well as a bulk chemical cleaner verified by the CDC on their list of approved products used to kill COVID-19. Per ICE, all visiting attorneys are required to bring their own personal protective equipment (PPE).
2. Medical Care at ICDC If a detainee is presumed or confirmed to have COVID-19, that individual will be placed in isolation in a negative pressure cell, which is a room with a specialized ventilation system that removes air from the cell and releases it away from the rest of the unit. In the event of an outbreak, ICDC will immediately quarantine the affected unit(s). ICDC has reviewed and plans to follow established guidelines provided by the CDC, under the guidance and supervision of the medical director. There are four hospitals within an approximate twenty-mile radius of ICDC that are equipped to handle medical emergencies. ICDC officials have been and continue to work with these facilities to establish appropriate protocols, and determine the availability of isolation rooms and any necessary equipment at these hospitals, in case a need arises. In critical situations, emergency medical technicians are stationed less than 150 yards away from ICDC and are able to transport detainees to local hospitals. Additionally, Life Flight helicopters are able to arrive and depart directly from ICDC grounds.
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II. Petitioners Petitioners are immigration detainees housed at SDC and ICDC. Each Petitioner is
discussed individually in more detail below. A. SDC Petitioners Aristoteles Sanchez Martinez. Mr. Martinez is housed at SDC. He is a 47-year-old with a
history of recent hernia surgery, Type II diabetes, hypertension, neuropathy, avascular necrosis, non-palpable pulses in his lower extremities, and venous insufficiencies. He was previously convicted of giving a false statement and aggravated identity theft. His requests for parole have been twice denied, and he has not filed a bond motion.
Michael Robinson. Mr. Robinson, who is housed at SDC, is a 53-year-old male with hypertension, asthma, cardiac murmur, high blood pressure, and benign prostatic hyperplasia. He has been in custody for 76 days pursuant to 8 U.S.C. § 1225. He was previously denied bond and has not requested parole.
Peter Owusu. Mr. Owusu is a 40-year-old male who is housed at SDC. He has no known history of pre-existing conditions. Mr. Owusu withdrew a previous bond request in April 2019, and had his parole request denied in July 2019.
B. ICDC Petitioners Joseph Lloyd Thompson. Mr. Thompson is a 49-year-old male who is housed at ICDC with blood pressure issues, a prior aortic aneurysm, and diabetes. A cardiologist reviewed his case and determined that surgery is unnecessary to treat his aneurysm. As to allegations regarding his diabetes medication, Mr. Thompson previously kept his medication in his room, but it was discovered that he was not taking it. As a result, he was required to obtain the medication from ICE staff each day, which he has failed to do. Mr. Thompson has a prior conviction for family
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violence battery in violation of O.C.G.A. § 1-5-23.1, which is an aggravated felony crime of violence and also a crime of domestic abuse, and he is detained under 8 U.S.C. § 1226(c), which requires mandatory detention of criminal aliens. Mr. Thompson applied for bond, which was denied on November 29, 2019, and submitted a parole request as recently as February 14, 2020.
Ansumana Jammeh. Mr. Jammeh is a 43-year-old male with diabetes and hemorrhoids who is housed at ICDC. He was convicted of forgery offenses including false statements, which renders him an aggravated felon. As such, he is detained under 8 U.S.C. § 1226(c), which requires mandatory detention of criminal aliens. Bond was denied for Mr. Jammeh at a hearing on May 13, 2019.
Karen Lopez. Ms. Lopez is a 42-year-old female who has a pacemaker and also has multiple sclerosis. She is housed at ICDC, where she has been in custody for 38 days. She was convicted of conspiracy to violate the Georgia Controlled Substances Act and is therefore detained under 8 U.S.C. § 1226(c), which requires mandatory detention of criminal aliens. She has not filed any bond motions or made any parole requests.
Nilson Fernando Barahona Marriaga. A 38-year-old male, Mr. Marriaga has diabetes and hypertension. He is housed at ICDC and has been in custody for 55 days. He has multiple arrests on his record, including drugs, probation violations, and a pending DUI, and he is detained under 8 U.S.C. § 1226(a). Bond was recently denied at a February 4, 2020 hearing, and a parole request was denied on March 26, 2020.
Shelley Dingus. Ms. Dingus is a 52-year-old woman housed at ICDC, who reports a medical history of asthma, chronic obstructive pulmonary disease, migraine headaches, depression, anxiety, and eczema. Ms. Dingus was convicted of distribution of a controlled substance. She has been in custody for 78 days pursuant to 8 U.S.C. § 1226(c), which requires
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mandatory detention of criminal aliens. Ms. Dingus’s parole request was denied based on her criminal convictions on April 7, 2020, and she has not filed a bond motion.
ARGUMENT This Court should deny Petitioners motion for a temporary restraining order. Initially, the Court lacks jurisdiction over Petitioners’ claims. If the Court finds that it has jurisdiction, Petitioners motion must still be denied because Petitioners fail to meet their heavy burden of establishing that they are entitled to a temporary restraining order. I. This Court lacks jurisdiction over Petitioners’ claims. “Article III of the U.S. Constitution limits the judicial power of the federal courts so that they may only exercise jurisdiction over “Cases” and “Controversies.” L.M.P. ex rel. E.P. v. Sch. Bd. of Broward Cty., 879 F.3d 1274, 1280 (11th Cir. 2018). “Accordingly, subject matter jurisdiction requires a justiciable case or controversy within the meaning of Article III.” Id. Article III similarly “limits the jurisdiction of the federal courts to cases and controversies of sufficient concreteness to evidence a ripeness for review. Digital Props., Inc. v. City of Plantation, 121 F.3d 586, 589 (11th Cir. 1997). Petitioners lack standing and present claims that have not matured. This Court thus lacks jurisdiction, the case should be dismissed, and Petitioners motion for a TRO should be denied. A. Petitioners lack standing. “Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy. The doctrine developed in our case law to ensure that federal courts do not exceed their authority as it has been traditionally understood.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citation omitted). The “irreducible constitutional minimum of standing contains three elements.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). First, a plaintiff must
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have suffered an “injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Id. (internal quotations omitted). Second, “the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the Court.” Id. (internal quotation and alterations omitted). “Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. at 560-61 (internal quotations omitted). Petitioners do not raise a cognizable injury and the alleged injury is not redressable by this Court.
1. Petitioners lack an injury in fact. Injury in fact is a “constitutional requirement” and is the “first and foremost of standing’s three elements.” Spokeo, 136 S. Ct. at 1547 (quotation and internal alteration omitted). To establish injury in fact, a plaintiff must show that he or she suffered “an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical.” Id. at 1548 (internal quotation omitted). “A concrete injury must be de facto; that is, it must actually exist,” be “real,” and not “abstract.” Id. (internal quotation omitted). While the risk of harm may, in some circumstances, be sufficiently concrete, “imminence . . . cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes—that the injury is certainly impending.” Lujan, 504 U.S. at 564 n.2 (internal quotation omitted) (emphasis in original). Petitioners assert that, because of their age and/or medical conditions, they have elevated risk of serious, adverse outcomes if they contract COVID-19. Because of their alleged high risk status, they then assume that they will necessarily get COVID-19 if they remain detained. This assertion is purely speculative. SDC and ICDC have implemented procedures and protocols to
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protect the detainees in its care—they have introduced screening procedures, increased cleaning
and sanitation, and reduced detainee and unit population to allow for social distancing. Even
assuming a concentrated detainee population, crowding in and of itself does not cause COVID-19 infection.2
Petitioners’ claims of future injury are hypothetical; they are not entitled to release from
detention based on a conjectural injury that they have not suffered and are not immediately threatened with.3 An injunction is “unavailable absent a showing of irreparable injury, a
requirement that cannot be met where there is no showing of any real or immediate threat that the
plaintiff will be wronged . . .—a likelihood of substantial and immediate irreparable injury.” Los
Angeles v. Lyons, 461 U.S. 95, 111 (1983) (internal quotation omitted).
Moreover, Petitioners cannot show that Respondents are unprepared to respond to COVID-
19. ICE, CoreCivic, and LaSalle have expended extensive resources and efforts to address the
very issues that Petitioners have identified, and are prepared to address the challenges posed by
COVID-19. In light of the efforts ICE has made to contain and protect detainees from COVID-
19, Petitioners cannot show that there is a “likelihood of substantial and immediate irreparable
injury.” Lyons, 461 U.S. at 111; see Clapper v. Amnesty Int’l USA, 568 U.S. 398, 416 (2013)
2 COVID-19, however, is spreading rapidly in the communities into which Petitioners seek to be released. For example, multiple Petitioners assert that, if released, they would return to the Atlanta area, which has a much greater outbreak of COVID-19 than either Stewart or Irwin Counties. See, e.g., Georgia Department of Health COVID-19 Daily Status Report, https://dph.georgia.gov/covid-19-daily-status-report (reporting four COVID-19 cases in Stewart County and eleven in Irwin County versus over 3000 cases in the direct Atlanta area as of 9:30 pm on April 8, 2020). Of more concern, two Petitioners ask for release and state that they would return to New York—specifically Queens and Long Island or Brooklyn—which contains the most severe outbreak of COVID-19 in the nation. See Sanchez Martinez Decl. ¶ 28, ECF No. 5-15; Robinson Decl. ¶ 28, ECF No. 5-16; CDC Coronavirus Cases in the U.S., https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last visited Apr. 8, 2020). 3 Although there are now confirmed cases of COVID-19 in the detainee population at SDC, there are none in the two units which Petitioners are detained. Regardless, SDC has implemented the policies discussed herein to contain and prevent COVID-19 spread.
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(finding standing based on fear, even one that is reasonable, “improperly waters down the fundamental requirements of Article III”).
2. Petitioners’ alleged injury is not redressable by release. Petitioners’ alleged injury—that they are subject to a heightened risk of death or serious illness if they contract COVID-19—will not be redressed by ordering their release. For purposes of standing, a plaintiff’s injury is redressable where there is “a substantial likelihood that the requested relief will remedy the alleged injury.” Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 771 (2000) (internal quotation omitted). “[I]t must be the effect of the court’s judgment on the defendant . . . that redresses the plaintiff’s injury, whether directly or indirectly.” Lewis v. Gov of Ala., 944 F.3d 1287, 1301 (11th Cir. 2019). Petitioners’ requested relief will not ameliorate or diminish their claimed heightened risk of injury or death resulting from COVID-19, nor can a court order requiring release prevent Petitioners from contracting COVID-19. Petitioners do not explain how release from the facilities at issue will reduce their risk of injury; it certainly cannot eliminate it. Because of their detention, Petitioners actually have greater access to medical care than many in the general public.4 Ordering their release could leave them without their present access to health care and put them at greater risk of serious complications in the event that any of them contract COVID-19. There is little evidence in the record about Petitioners’ travel plans or housing conditions if released, such as whether they also involve people living in close quarters, and living with individuals who present a risk of exposure. Given the
4 In an apparent attempt to preemptively address this argument, Petitioners assert that SDC and ICDC are “geographically isolated from appropriate levels of medical care to treat COVID-19.” Mem. in Supp. of Mot. for TRO 7. There are multiple hospitals in the areas surrounding SDC and ICDC. CoreCivic and LaSalle have relationships with those hospitals to ensure care for ICE detainees. This argument is wholly without merit.
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current community spread of COVID-19, it is not unlikely that Petitioners will be exposed to COVID-19 through community transmission over the coming months if released. Indeed, it is conceivable that Defendant’s risk of exposure is lower in detention, because the facilities at issue strictly control outsiders’ access, and have taken extensive measures to avoid the spread of COVID-19.
B. Petitioners’ claims are not ripe. “The ripeness doctrine protects federal courts from engaging in speculation or wasting their resources through the review of potential or abstract disputes.” Digital Props., 121 F.3d at 589. It “seeks to avoid entangling courts in the hazards of premature adjudication.” Id. “Ripeness analysis involves the evaluation of two factors: the hardship that a plaintiff might suffer without court redress and the fitness of the case for judicial decision.” Elend v. Basham, 471 F.3d 1199, 1211 (11th Cir. 2006). “The fitness prong is typically concerned with questions of finality, definiteness, and the extent to which resolution of the challenge depends upon facts that may not yet be sufficiently developed.” Harrell v. The Fla. Bar, 608 F.3d 1241, 1258 (11th Cir. 2010) (internal quotation marks and citation omitted). “The hardship prong asks about the costs to the complaining party of delaying review until conditions for deciding the controversy are idea.” Id. Petitioners’ claims are premature. Petitioners state: “If Petitioners contract COVID-19,” they are at high-risk for needing critical care and may face serious illness. Memo. in Supp. of Mot. for TRO 1, ECF No. 5-1 (emphasis added). Petitioners do not currently have COVID-19, nor is there evidence that they have been directly exposed to it. Other courts, in addressing requests for relief in light of the COVID-19 pandemic, have held that “[t]he ‘possibility’ of harm is insufficient to warrant the extraordinary relief of a TRO.” Dawson v. Asher, No. C20-0409JLR-MAT, 2020 WL 1304557, at *3 (W.D. Wash. Mar. 19, 2020) (quoting Winter, 555 U.S. at 22); Francisco v.
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Decker, Case 2:20-CV-02176-CCC at pgs. 3-4 (D.N.J. March 25, 2020) (“Although he expresses his fear of the coronavirus which is presently afflicting the United States, two cases of which have occurred at the jail in which he is housed, Petitioner himself does not allege that he has contracted or been directly exposed to the virus, and his fears of contracting it at this point are speculative.”). Likewise, Petitioners here have brought this claim before any real harm exists, let alone has been suffered.5 The Petition and TRO should therefore be denied and dismissed. II. Assuming The Court Has Jurisdiction, Petitioners Do Not Satisfy The Requirements
For a TRO. Petitioners ask this Court to grant an emergency request for release from legal custody. In order to obtain preliminary injunctive relief, a movant must establish each of the following four factors: 1) likelihood of prevailing on the merits; 2) irreparable injury unless an injunction issues; 3) the balance of equities tips in the movant’s favor; 4) an injunction is in the public interest. Winter v. Natural Res. Defense Council, 555 U.S. 7, 20 (2008). “The preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant ‘clearly carries the burden of persuasion’ as to the four prerequisites.” Zardui-Quintana v. Richard, 768 F.2d 1213, 1216 (11th Cir. 1985) (citations omitted). “In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.” Winter, 555 U.S. at 24. A. Petitioners are unlikely to succeed on the merits. Petitioners are unlikely to succeed on the merits for several reasons. First, they are not entitled to habeas relief because they are legally detained. Second, Petitioners’ conditions of
5 Additionally, several of Petitioners’ claims are not ripe because, as explained in the factual background section, those Petitioners failed to avail themselves of the administrative remedies available to them to obtain release—either through a request for bond or discretionary parole.
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confinement claims are not cognizable in a habeas action. Third, if this Court reaches Petitioners’ constitutional claim, it is likewise meritless. Finally, release from custody is not an appropriate remedy for Petitioners’ claims.
1. Petitioners are legally detained. Petitioners here are detained under several different provisions—pre-final order of removal under 8 U.S.C. § 1226(a) and § 1226(c), and post-final order of removal under § 1225(b) and § 1231. Congress has expressly prohibited release for individuals detained under §§ 1226(c) or 1231.6 An immigration detainee held under certain detention statutes may be granted a discretionary grant of parole for “urgent humanitarian reasons or significant public benefit” under 8 U.S.C. § 1182(d)(5)(A); see also 8 C.F.R. §§ 212.5(b), 235.3. Additionally, detainees held under § 1226(a) can ask for a bond hearing and appeal that decision. Petitioners do not contend that they are illegally held pursuant to any immigration statute such that they should be entitled to habeas relief. They likewise do not allege that they have all pursued bond or parole to the fullest extent and that those decisions should be reviewed or overturned. Regardless, to the extent that Petitioners have requested parole or bond, this Court is without jurisdiction to review those decision under 8 U.S.C. § 1226(e) and § 1252(a)(2)(B)(ii). The statutory provisions strip the Court of jurisdiction to review a discretionary bond or parole decision.7 See United States v. Velasquez Velasquez, 524 F.3d 1248, 1252 (11th Cir. 2008) (explaining that the district court “lacked authority” to review and overturn “the IJ’s decision to
6 For aliens who have final administrative removal orders, custody is generally mandatory during the removal period under 8 U.S.C. § 1231(a)(2). Once the removal period has expired, custody becomes discretionary under 8 U.S.C. § 1231(a)(6), and release on supervision may be appropriate if there is no significant likelihood of removal in the foreseeable future. 7 The statute refers to the Attorney General rather than the Secretary of Homeland Security. On March 1, 2003, the Department of Homeland Security assumed this responsibility, and the discretion formerly vested in the Attorney General was conferred on the Secretary of Homeland Security. See 6 U.S.C. § 271(b); 6 U.S.C. § 551(d).
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release Velasquez on bond pending his immigration proceedings”). Moreover, the Eleventh Circuit has determined that there is no due process interest in immigration parole. See, e.g., Tefel v. Reno, 180 F.3d 1286, 1300-01 (11th Cir. 1999) (explaining that “aliens lacked a liberty interest in being paroled[]” because of the “Executive’s complete discretion to make parole decisions”).
2. Petitioners cannot challenge their conditions of confinement in a habeas petition.
“Petitioner[s’] § 2241 petition is not the appropriate vehicle for raising an inadequate medical care claim, as such a claim challenges the conditions of confinement, not the fact or duration of that confinement.” Vaz v. Skinner, 634 F. App’x 778, 781 (11th Cir. 2015); see also, e.g., Daker v. McLaughlin, No. 5:18-cv-171, 2018 WL 5304115, at *2 (M.D. Ga. Oct. 25 2018) (“The Eleventh Circuit has since determined that habeas is not the appropriate vehicle for raising claims which challenge the conditions of a prisoner’s confinement.”) Although not as widely discussed in the context of a § 2241 habeas, this principle is firmly established in the Eleventh Circuit regarding habeas claims under 28 U.S.C. § 2254 and civil rights claims under § 1983. Claims where a detainee “seeks injunctive relief challenging the fact of his conviction or the duration of his sentence . . . fall within the ‘core’ of habeas corpus and are thus not cognizable when brought pursuant to § 1983.” Nelson v. Campbell, 541 U.S. 637, 643 (2004). On the other hand, “constitutional claims that merely challenge the conditions of a prisoner’s confinement . . . fall outside of that core and may be brought pursuant to § 1983 in the first instance.” Id. “These avenues are mutually exclusive[.]” Hutcherson v. Riley, 468 F.3d 750, 754 (2006). “When an inmate challenges the ‘circumstances of his confinement’ but not the validity of his conviction and/or sentence, then the claim is properly raised in a civil rights action[.]” Id.
Petitioners here do not challenge the validity of their detention or its duration. They attempt to contort their claims into a habeas action by calling their detention “illegal,” Pet’rs’ Suppl.
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Memo. 1-5, but they are not challenging the legality of their immigration detention under the Immigration and Nationality Act, 8 U.S.C. §§ 1225, 1226, or 1231. They similarly do not challenge the duration of their detention under Zadvydas v. Davis, 533 U.S. 678 (2001). Instead, they challenge the conditions of their confinement—claiming a lack of proper cleaning supplies, personal protective equipment, or ability to social distance. These claims are not properly asserted in a habeas action.
3. Petitioners have not established that the conditions of their confinement violate the Fifth Amendment.
Under the Fifth Amendment Due Process Clause, “a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.” Bell v. Wolfish, 441 U.S. 520, 535 (1979). For conditions of confinement to constitute “punishment,” the Petitioners must show either (1) “an expressed intent to punish on the part of detention facility officials,” or an implied intent to punish through a condition or restriction that a “is not reasonably related to a legitimate goal—if it is arbitrary or purposeless[.]” Id. at 538-39. “Thus, if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to ‘punishment.’ Id. at 539.
Petitioners fail to show that their detention is not proportionately related to the government’s non-punitive responsibilities and administrative purposes. While civil detainees retain greater liberty protections than individuals convicted of crimes, see, e.g., Youngberg v. Romeo, 457 U.S. 307, 321-22 (1982), the continued immigration detention of Petitioners pending removal cannot be described as punitive or excessive in relation to the legitimate government purpose of protecting the public and ensuring their removal. See, e.g., Demore v. Kim, 538 U.S. 510, 523 (2003) (“[T]his Court has recognized detention during deportation proceedings as a constitutionally valid aspect of the deportation process.”); Dawson v. Asher, No. 20-cv-0409-JLR-MAT, 2020 WL 1304557, at *2 (W.D.
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Wash. Mar. 19, 2020). The COVID-19 outbreak does not change this analysis or weaken the government’s legitimate interest in Petitioners’ detention pending removal. Id.
In denying a request for release from immigration detention in the Western District of Washington last month, when Seattle was the epicenter of the COVID-19 outbreak in this country, the court noted that “Plaintiffs do not cite to authority, and the court is aware of none, under which the fact of detention itself becomes an ‘excessive’ condition solely due to the risk of a communicable disease outbreak—even one as serious as COVID-19.” Dawson, 2020 WL 1304557, at *2. As in Dawson, Petitioners here have not established that their conditions of detention are unconstitutional. ICE and its contractors are undertaking appropriate measures to prevent the spread of the disease, which unfortunately is found throughout our country and is certainly not unique to detention facilities. See Dawson, 2020 WL 1304557, at *2.
To the extent Petitioners are arguing that the facilities’ populations should be reduced, ICE has already taken steps to do so, and will continue to evaluate cases that may be at high risk for COVID-19. The detainee population at both SDC and ICDC have been greatly reduced. Each facility is currently operating under capacity. That these Petitioners have not been beneficiaries of this exercise of ICE’s discretion does not constitute a due process violation.
Petitioners cannot plausibly argue that Respondents are subjecting them to punishment. ICE has implemented procedures and protocols to protect the detainees in its care, including at the facilities at issue in this case, and has also exercised its discretion to reduce the detainee populations at those facilities. These precautions taken at the two facilities at issue carry far more weight than the generalized opinions expressed in the various declarations submitted by Petitioner’s proffered experts about populations in immigration detention centers in general and other detention and institutional settings.
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Unlike in the cases cited by Petitioners, the present situation is not one where a detainee is being exposed because of his detention—for example, where a communicable disease is spreading within the detention centers, while the general public remains unaffected. See, e.g., Helling v. McKinney, 509 U.S. 25, 28, 32-35 (finding that an inmate can assert constitutional claim for exposure to environmental tobacco smoke where he was assigned to cell with another inmate who smokes five packs of cigarettes per day); Gates v. Collier, 501 F.2d 1291, 1300 (5th Cir. 1974) (constitutional violations at state penitentiary included, inter alia, water contaminated by sewage, leading to the spread of infectious disease, and permitting infected prisoners to mingle with the general population); see also Hutto v. Finney, 437 U.S. 678, 682-83 (1978) (constitutional violations in state prison system’s punitive isolation cells due to, inter alia, a practice of sharing mattresses with prisoners who “suffered from infectious diseases such as hepatitis and venereal disease”). Instead, the disease is spreading in the general population of Georgia and the United States. Petitioners’ argument that continued detention amounts to a constitutional violation simply lacks merit.
4. Petitioners are not entitled to release from custody. Assuming that Petitioners could show that they were likely to prevail on their habeas claim that the conditions of their detention violate the Due Process Clause, they cannot establish that they are entitled to immediate release “as opposed to injunctive relief that would leave [them] detained while ameliorating any alleged violative conditions within the facility.” Dawson, 2020 WL 1304557, at *2.8 This type of relief is explicitly preferred in the Eleventh Circuit—“even if a prisoner proves an allegation of mistreatment in prison that amounts to cruel and unusual
8 Petitioners have not sought any changed conditions in the facilities, let alone met their burden to show that they would be entitled to mandatory injunctive relief.
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punishment, he is not entitled to release.” Gomez v. United States, 899 F. 2d 1124, 1126 (11th Cir. 1990). “The appropriate Eleventh Circuit relief from prison conditions that violate the Eighth Amendment during legal incarceration is to require the discontinuance of any improper practices, or to require correction of any condition causing cruel and unusual punishment.” Id; see also Vaz, 634 F. App’x at 781 (“[E]ven if Petitioner established a constitutional violation, he would not be entitled to the relief he seeks because release from imprisonment is not an available remedy for a conditions-of-confinement claim.”).
Petitioners, however, do not ask this Court to order any different medical treatment or sanitation practices for detainees at SDC and ICDC. Instead, Petitioners argue that the facilities must reduce their detainee populations in order to address the COVID-19 situation. They urge this Court to ignore ICE’s statutory and regulatory authority and discretion regarding detainee release, and instead agree with Petitioners’ self-selection as the detainees to be released. This Court should not oblige them.
Petitioners have not shown that they are likely to succeed on the merits and their motion for a TRO should be denied.
B. Petitioners have not shown irreparable harm. Petitioners have not demonstrated that they will suffer irreparable injury absent the mandatory injunctive relief they seek. “The injury must be neither remote nor speculative, but actual and imminent.” Ne. Fla. Chapter of the Ass’n of Gen. Contractors of Am. v. City of Jacksonville, 896 F.2d 1283, 1285 (11th Cir. 1990) (internal quotation marks and citation omitted). Merely showing a “possibility” of irreparable harm is insufficient. See Winter, 555 U.S. at 22. Moreover, mandatory injunctions are not granted unless extreme or very serious damage will result. Marlyn Nutraceuticals, Inc., 571 F.3d at 879 (internal citation omitted). “Issuing a
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preliminary injunction based only on a possibility of irreparable harm is inconsistent with [the Supreme Court’s] characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22.
Petitioners claim that release from detention will spare them the heightened risk of adverse consequences from COVID-19. This is not only speculative, it is unlikely, given that COVID-19 is spreading throughout the country. Indeed, as set forth above, certain petitioners seek to be released into communities where the percentage of COVID-19 infections are significantly higher than in their current situation. See, e.g., Sanchez Martinez Decl. ¶ 28; Robinson Decl. ¶ 28. Fundamentally, as in Dawson, “[t]here is no evidence . . . that Defendants’ precautionary measures are inadequate to contain such an outbreak or properly provide medical care should it occur.” 2020 WL 1304557, at *3.
Petitioners have not shown irreparable harm and their motion for a TRO should be denied. C. The balance of equities and public interest favors Respondents. It is well settled that the public interest in enforcement of United States’ immigration laws is significant. See, e.g., United States v. Martinez-Fuerte, 428 U.S. 543, 556-58 (1976); Blackie’s House of Beef, Inc. v. Castillo, 659 F.2d 1211, 1221 (D.C. Cir. 1981) (“The Supreme Court has recognized that the public interest in enforcement of the immigration laws is significant.”) (citing cases); see also Nken v. Holder, 556 U.S. 418, 435 (2009) (“There is always a public interest in prompt execution of removal orders: The continued presence of an alien lawfully deemed removable undermines the streamlined removal proceedings IIRIRA established, and permits and prolongs a continuing violation of United States law.”) (internal quotation omitted). Petitioners ask the Court to declare their detention unconstitutional, despite Respondents’
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valid statutory bases for detaining them. The implications of such an order, were it followed by other courts in this and other jurisdictions, would be far-reaching. ICE detains—and provides the medical care for—many individuals who fall into the categories considered vulnerable to COVID19. The disruptive effect of an order releasing Petitioners could long survive the COVID-19 pandemic, and could serve as precedent for releasing many non-citizens slated for removal. This type of burden and attendant harm, and its potential impact on ICE operations nationwide, is too great to be permissible at this preliminary stage. Moreover, the public interest is best served by allowing immigration facilities to follow the orderly medical processes and protocols implemented by government professionals, as ICE and its contractors have been doing. Youngberg, 457 U.S. at 322-23 (urging judicial deference and finding presumption of validity regarding decisions of government professionals concerning conditions of confinement).
Petitioners have not shown that the balance of hardships and public interest tips in their favor and their motion for TRO should be denied.
CONCLUSION For all of the foregoing reasons, Petitioners have not satisfied their high burden of establishing entitlement to mandatory injunctive relief, and their Motion for a Temporary Restraining Order (ECF No. 5) should be denied.
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Respectfully submitted this 9th day of April, 2020. CHARLES E. PEELER UNITED STATES ATTORNEY
BY: s/ Amelia G. Helmick AMELIA G. HELMICK ASSISTANT UNITED STATES ATTORNEY Georgia Bar No. 142673 BERNARD SNELL Assistant United States Attorney Georgia Bar No. 665692 E. BOWEN REICHERT SHOEMAKER United States Attorney’s Office Middle District of Georgia P.O. Box 2568 Columbus, Georgia 31902 Phone: (706) 649-7731
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UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICTMOF GEORGIA

MARTINEZ et. al. on their own behalf and on behalf of others similarly situated,
Petitioners-Plaintiffs, v. MICHAEL DONAHUE, warden Stewart Detention Center; MATTHEW ALBENCE, in his official capacity as the Acting Director for U.S. Immigration and Customs Enforcement; UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT; CHAD WOLF, in his official capacity as Secretary of the U.S. Department of Homeland Security; UNITED STATES DEPARTMENT OF HOMELAND SECURITY;
Respondents-Defendants.

Case No. 7:20-cv-00062

DECLARATION OF OFFICER IN CHARGE JOHN BRETZ I, John Bretz, make the following statements under oath and subject to the penalty of perjury:

1. I am employed by U.S. Department of Homeland Security, Immigration and Customs Enforcement (ICE), and currently serve as the Officer in Charge. I have held this position since 2019.
2. I provide this declaration based on my personal knowledge, belief, reasonable inquiry, and information obtained from various records, systems, databases, other DHS employees, employees of DHS contract facilities, and information portals maintained and relied upon by DHS in the regular course of business.
3. In my current position, I am an Officer in Charge at the Stewart Detention Center, at the Atlanta Field Office, employed by the U.S. Department of Homeland Security (DHS), U.S. Immigration and Customs Enforcement (ICE), Enforcement and Removal Operations (ERO). In this capacity, I manage ERO personnel and provide oversight over ERO’s operations at the Stewart Detention Center. I have been employed by the former Immigration and Naturalization Service (INS) and ICE since 1995.

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4. ICE Health Service Corps (IHSC) provides direct medical, dental, and mental health patient care to approximately 13,500 detainees housed at 20 IHSC-staffed facilities throughout the nation.
5. IHSC’s FMCs ensure that the provision of medical care by contractors to the ICE detainees within the IGSA facilities meets detention standards, as required by the IGSA contract. The FMCs do not provide hands-on care or direct the care within the IGSAs but monitor the medical care and services provided by the contract facilities. Medical staff at the contract facilities are directly responsible for medical care at the facility.
6. IHSC comprises a multidisciplinary workforce that consists of U.S. Public Health Service Commissioned Corps (USPHS) officers, federal civil servants, and contract health professionals.
7. Since the onset of reports of Coronavirus Disease 2019 (COVID-19), ICE epidemiologists have been tracking the outbreak, regularly updating infection prevention and control protocols, and issuing guidance to field staff on screening and management of potential exposure among detainees.
8. In testing for COVID-19, IHSC is also following guidance issued by the Centers for Disease Control (CDC) to safeguard those in its custody and care.
9. Each detainee is screened for disabilities upon admission by a qualified healthcare professional. Identified disabilities are further evaluated and reasonable accommodations are provided as medically appropriate.
10. At the facility, during intake medical screenings, detainees are assessed for fever and respiratory illness, are asked to confirm if they have had close contact with a person with laboratory-confirmed COVID-19 in the past 14 days, and whether they have traveled from or through area(s) with sustained community transmission in the past two weeks.
11. The detainee’s responses and the results of these assessments will dictate whether to monitor or isolate the detainee. Those detainees who present symptoms compatible with COVID-19 will be placed in isolation, where they will be tested. If testing is positive, they will remain isolated and treated. In case of any clinical deterioration, they will be referred to a local hospital.
12. In cases of known exposure to a person with confirmed COVID-19, asymptomatic detainees are placed in cohorts with restricted movement for the duration of the most recent incubation period (14 days after most recent exposure to an ill detainee) and are monitored daily for fever and symptoms of respiratory illness. Cohorting is an infectionprevention strategy which involves housing detainees together who were exposed to a person with an infectious organism but are asymptomatic. This practice lasts for the duration of the incubation period of 14 days, because individuals with these and other communicable diseases can be contagious before they develop symptoms and can serve as undetected source patients. Those that show onset of fever and/or respiratory illness are referred to a medical provider for evaluation. Cohorting is discontinued when the 14day incubation period completes with no new cases. Per ICE policy, detainees diagnosed
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with any communicable disease who require isolation are place in an appropriate setting in accordance with CDC or state and local health department guidelines.
13. Stewart Detention Center has the following medical capabilities:
o The facility, which manages males only, provides daily access to sick calls in a clinical setting, and infirmary and access to specialty services and hospital care.
14. As of 1:00 p.m. on April 9, 2020, IHSC has the following information:
a. There are 30 ICE detainee suspected cases of COVID-19 in the facility who are on medical observation per CDC guidelines.
b. There are 5 confirmed cases of COVID-19 among ICE detainees in the facility. The 5 confirmed cases are isolated and receiving medical treatment consistent with CDC guidelines.
15. The facility has populations within their approved capacities and are not overcrowded.
16. The facility has increased sanitation frequency and provides sanitation supplies as follows:
o The facility provides 24-hour access to sanitation supplies including, disinfectants, hand sanitizer, and soap in every housing unit at the facility. The administration is encouraging both staff and the jail general population to use these tools often and liberally.
17. The facility has suspended in person social visitation and facility tours. Noncontact legal visitation is still permitted provided the visitor provides their own personal protective equipment and submits to screening prior to entering the facility.
18. The facility is screening all staff and vendors when they enter the facilities including body temperatures.
19. The facility is screening all detainee intakes when they enter the facilities including travel histories, medical histories and checking body temperatures and have procedures to continue monitoring the populations’ health.
20. The facility provides education on COVID-19 to staff and detainees to include the importance of hand washing and hand hygiene, covering coughs with the elbow instead of with hands, and requesting to seek medical care if they feel ill. The facilities provide detainees daily access to sick call.
21. The facility has identified housing units for the quarantine of patients who are suspected of or test positive for COVID-19 infection to be addressed as set forth in paragraphs 8, 9 and 10, supra.
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22. ICE has reviewed its detained “at risk population” as identified by the CDC guidelines to determine if detention remains appropriate, considering the detainee’s health, public safety and mandatory detention requirements, and adjusted custody conditions, when appropriate, to protect health, safety and well-being of its detainees.
I declare, under penalty of perjury under 28 U.S.C. § 1746, that the foregoing is true and correct to the best of my knowledge and based on information obtained from other individuals employed by ICE. DATED: April 9, 2020 _____________________________________
________________________________ Enforcement and Removal Operations U.S. Immigration and Customs Enforcement
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UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA

THOMPSON, et. al. on theirown behalfand on behalfof others similarly situated,
Petitioners-Plaintiffs,
v.
PHIL BICKHAM, warden Irwin County Detention Center; MATTHEW ALBENCE, in hisofficial capacity as the Acting Director for U.S. Immigration and Customs Enforcement; UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT; CHAD WOLF, in his official capacity as Secretary of the U.S. Department of Homeland Security; UNITED STATES DEPARTMENT OF HOMELAND SECURITY;
Respondents-Defendants.

Case No. 7:20-cv-00062

DECLARATION OF ASSISTANT FIELD OFFICE DIRECTOR PATRICK MUSANTE
I, Patrick Musante, make the following statements under oath and subject to the penalty of perjury:

1. I am employed by U.S. Department of Homeland Security, Immigration and Customs Enforcement (ICE), and currently serve as the Assistant Field Office Director. I have held this position since March 29, 2020.
2. I provide this declaration based on my personal knowledge, belief, reasonable inquiry, and information obtained from various records, systems, databases, other OHS employees, employees of DHS contract facilities, and information portals maintained and relied upon by OHS in the regular course ofbusiness.
3. In my current position, I am an Assistant Field Office Director, Atlanta Field Office, employed by the U.S. Department of Homeland Security (DHS), U.S. Immigration and Customs Enforcement (ICE), Enforcement and Removal Operations (ERO). In this capacity, I manage ERO personnel and provide oversight over many of ERO's operations in the Atlanta Field Office. I also provide oversight over a number of detention facilities within the Atlanta Field Office, including the Irwin County Detention Center. I have been employed by the former Immigration and Naturalization Service (INS) and ICE since May 15, 2000.

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4. ICE Health Service Corps (IHSC) provides direct medical, dental, and mental health patient care to approximately 13,500 detainees housed at 20 IHSC-staffed facilities throughout the nation.
5. IHSC's FMCs ensure that the provision of medical care by contractors to the ICE detainees within the IGSA facilities meets detention standards, as required by the IGSA contract. The FMCs do not provide hands-on care or direct the care within the IGSAs but monitor the medical care and services provided by the contract facilities. Medical staff at the contract facilities are directly responsible for medical care at the facility.
6. IHSC comprises a multidisciplinary workforce that consists of U.S. Public Health Service Commissioned Corps (USPHS) officers, federal civil servants, and contract health professionals.
7. Since the onset of reports ofCoronavirus Disease 2019 (COVID-19), ICE epidemiologists have been tracking the outbreak, regularly updating infection prevention and control protocols, and issuing guidance to field staffon screening and management of potential exposure among detainees.
8. In testing for COVID-19, IHSC is also following guidance issued by the Centers for Disease Control (CDC) to safeguard those in its custody and care.
9. Each detainee is screened for disabilities upon admission by medical professional. Identified disabilities are further evaluated and reasonable accommodations are provided as medically appropriate.
10. At the facility, during intake the following medical screening are assessed: vital signs, medical and mental health history, disability screening, TB screening, women health screening and social screening. Detainees are also assessed for fever and respiratory illness, are asked to confirm ifthey have had close contact with a person with laboratoryconfirmed COVID-19 in the past 14 days, and whether they have traveled from or through area(s) with sustained community transmission in the past two weeks.
11. The detainee's responses and the results of these assessments will dictate whether to monitor or isolate the detainee. Those detainees who present symptoms compatible with COVID-19 will be placed in isolation, and transferred to the hospital for testing. If testing is positive, they will remain isolated and treated. In case of any clinical deterioration, they will be referred to a local hospital.
12. In cases of known exposure to a person with confirmed COVID-19, asymptomatic detainees are placed in cohorts with restricted movement for the duration ofthe most recent incubation period (14 days after most recent exposure to an ill detainee) and are monitored daily for fever and symptoms of respiratory illness. Cohorting is an infectionprevention strategy which involves housing detainees together who were exposed to a person with an infectious organism but are asymptomatic. This practice lasts for the duration of the incubation period of 14 days, because individuals with these and other communicable diseases can be contagious before they develop symptoms and can serve as undetected source patients. Those that show onset offever and/or respiratory illness are referred to a medical provider for evaluation. Cohorting is discontinued when the 14-
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day incubation period completes with no new cases. Per ICE policy, detainees diagnosed with any communicable disease who require isolation are placed in an appropriate setting in accordance with CDC or state and local health department guidelines.
13. Irwin County Detention Center has the following medical capabilities: o The facility which manages both males and females, provides daily access to sick calls in a clinical setting and access to specialty services via referral as well as hospital care. The facility is also equipped with a 6 bed observation unit with 2 negative pressure rooms.
14. As of 12:30 p.m. on April 9, 2020, IHSC has the following information:
a. There is 1 confirmed case of COVID-19 in the facility. The 1 confirmed case is isolated and receiving medical treatment consistent with CDC guidelines.
b. The facility has populations within their approved capacities and are not overcrowded.
c. The facility has increased sanitation frequency and provide sanitation supplies as follows:
o The facility provides cleaning products to each housing unit daily. Hand cleaner dispensers have been installed in all units and are regularly filled. Hygiene products are handed out regularly and commissary products are available as well.
o Housing units and common areas are sanitized multiple times each day. Showers in group housing units are pressure washed daily and sanitized regularly. Shared keyboards and equipment are sanitized between uses.
d. The facility has suspended in person social visitation and facility tours. Professional visits are permitted without contact and can be conducted via Skype.
e. The facility is screening all staff and vendors when they enter the facilities including body temperatures.
f. The facility is screening all detainee intakes when they enter the facilities including travel histories, medical histories and checking body temperatures and have procedures to continue monitoring the populations' health.
g. The facility provides education on COVID-19 to staff and detainees to include the importance ofhand washing and hand hygiene, covering coughs with the elbow instead of with hands, and requesting to seek medical care if they feel ill. The facilities provide detainees daily access to sick call.
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h. The facility has identified housing units for the quarantine ofpatients who are suspected of or test positive for COVID-19 infection to be addressed as set forth in paragraphs 8, 9 and 10, supra.
1. ICE has reviewed its detained "at risk population" as identified by the CDC guidelines to determine ifdetention remains appropriate, considering the detainee's health, public safety and mandatory detention requirements, and adjusted custody conditions, when appropriate, to protect health, safety and well-being of its detainees.

I declare, under penalty of perjury under 28 U.S.C. § 1746, that the foregoing is true and

correct to the best of my knowledge and based on information obtained from other individuals

employed by ICE.

- ~ ~~:~

DATED:April9,2020

_

~

R+ti ~k.

Enforcement and Removal Operations U.S. Immigration and Customs Enforcement

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UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA

ARISTOTELES SANCHEZ MARTINEZ MICHAEL ROBINSON PETER OWUSU Stewart County Detention Center 146 CCA Road Lumpkin, GA 31815

and

JOSEPH LLOYD THOMPSON ANSUMANA JAMMEH KAREN LOPEZ NILSON FERNANDO BARAHONA MARRIAGA SHELLEY DINGUS Irwin County Detention Center 132 Cotton Drive Ocilla, GA 31774

Petitioners/Plaintiffs,
V.

Case No.

MICHAEL DONAHUE Warden, Stewart Detention Center 146 CCARoad P.O. Box 248 Lumpkin, GA 31815;

and

DAVID PAULK Warden, Irwin County Detention Center 132 Cotton Drive Ocilla, GA 31774;

and

THOMAS GILES Field Office Director U.S. Immigration and Customs Enforcement Atlanta Field Office, 180 Ted Turner Drive, SW, Suite 522 Atlanta, GA 30303;

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MATTHEW T. ALBENCE Deputy Director and Senior Official Performing the Duties of the Director U.S. Immigration and Customs Enforcement 500 12th Street, SW Washington, D.C. 20536;
and
CHAD WOLF Acting Secretary Depmiment of Homeland Security, 3801 Nebraska Avenue, NW Washington, D.C. 20016;
and
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT 500 12th Street, SW Washington, D.C. 20536; Respondents/Defendants.
DECLARATION OF DAVID PAULK
My name is David Paulk and I serve as the Warden at Irwin County Detention Center. I am an adult resident of Georgia, I am over 21 years of age, and I am competent to testify and have personal knowledge regarding the matters set forth in this Declaration.
Introduction
1. I am presently employed as the Warden of Irwin County Detention Center (ICDC). My duties and responsibilities include oversight and management of all !CDC's operations. This includes the steps recently taken to maintain the health of all staff and detainees and prevent the spread of COVID-19, as further described below.
2. ICDC takes the health and safety of its staff and detainees seriously. As such, it takes all requisite measures to adhere to standards required to ensure humane conditions. In addition to the usual cleaning and sanitizing measures already in place, ICDC has instituted additional measures to ensure the health of its staff and detainees in light of the spread of COVID-19.
3. To date, no confirmed cases of COVID-19 have occurred within ICDC internal security staff. One outside transportation officer tested positive for COVID-19. In response, all CDC guidelines were immediately implemented and all staff who had contact with this individual were tested and sent home until the results become available. No detainees came into direct contact with this officer. One detainee has tested positive for COVID-19; however, this
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detainee was just recently transported to ICDC. T he detainee was transp01ied in required PPE gear and kept in isolation due to ICDC being notified that there was a very high risk he had been exposed prior to arrival. This detainee was then transferred to medical isolation for testing, and at no point was this detainee in contact with any other detainee or security staff member.
Enhanced Intake Procedure
4. Upon entrance into the facility, every individual, including staff and new inmates, once processed into the facility, is advised to stand six feet apart from one another; no crowding or grouping is allowed throughout the facility. At processing, all inmates must complete a temperature check and a questionnaire designed to determine whether anyone is at risk of having contracted COVID-19. If an inmate has temperature over 100.4 degrees, or a positive response to any of the health risk questions, that individual is sent to be assessed by the facility's medical staff to determine appropriate action. The individual will not be released into the facility's general population until clearance is provided by the Medical Director.
Enhanced Cleaning Regimen
5. In addition to the usual cleaning procedures in place, the facility now implements additional, mandatory sanitization checklists and policies. For example, ICDC has purchased chemical cleaners on the list of approved products issued by the CDC to use to kill the vims. All units are required to undergo sanitization procedures throughout the dorms and common areas multiple times each day, including bathrooms, air vents, kitchens, and dining areas. Food caiis and food prep areas are sanitized on a regular basis and are monitored daily by staff and by the local health depmiment.
6. Likewise, all equipment used by detainees for attorney access (monitors, iPads, phones, etc.) are wiped down and sprayed with Lysol and/or CDC approved equivalents between each and every use. Given the shortage of available hand sanitizer, additional handwashing signs and hand soap dispensers have also been installed in every unit. Gloves are provided to all staffand detainees assigned to clean these areas. Fmiher, all staff have been provided masks to wear while in the facility and directed to wear them.
7. All group showers are pressure washed daily, and CDC-approved chemicals are available for detainees to clean showers on an intermittent basis in 2-4 person cells. Additionally, approved sanitizer is sprayed in the shower units multiple times daily. Damaged or non-cleanable cmiains are replaced upon detainee request and as is otherwise needed.
8. All ICDC transp01iation vehicles and equipment are sanitized in between each use. The transportation staff have been provided with and employ all proper PPE materials.
9. Detainees are allowed to purchase hygiene items from the commissary whenever they wish. Additionally, detainees are provided daily access at no charge to soap, shampoo, lotions, etc. as mandated under Performance-Based National Detention Standards (P.B.N.D.S.).
Enhanced Social Distancing and Critical Inmate Release
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10. A number of ICDC inmates whom I understand were determined to be paiticularly vulnerable to serious illness or death if infected by COVID-19 have already been removed from the facility.
11. ICDC houses other detainees whom it has dete1mined to be paiticularly vulnerable to serious illness or death if infected by COVID-19 but whom I understand are not eligible for release based on their offenses have been placed in units with fewer detainees in order to create maximal social distancing opportunities. Moreover, all ICDC unit counts have been reduced to the greatest extent possible to facilitate social distancing among inmates.
12. ICDC has been able to accomplish this because it is not currently at maximum capacity. Unfortunately, while detainees have been afforded every opp01tunity and are repeatedly advised by staff to practice social distancing measures in addition to CDC recommended handwashing procedures, detainees often choose not to follow this protocol.
Medical Emergency Protocol
13. ICDC is staffed with all necessary medical personnel with any additional needs or projected shortage filled via multiple established contracts with professional nursing agencies in the region. Any detainee may request a medical appointment via the provided Detainee Request Form, verbally through their daily interaction with an assigned Case Manager, via an iPad in units so equipped, or they may submit a Detainee Request Worksheet to immigration. Additionally, detainees may use the preexisting grievance system via Detainee Request Forms and/or iPads. Administrative personnel conduct daily inspections and walk throughs five days a week, and detainees have access to those individuals in order to voice any complaints for follow-up by staff. The medical staff respond to all requests for medical attention within the time frames mandated by P.B.N.D.S. or sooner in order to triage and treat detainees. If a complaint is rep01ted to be critical, it is expedited on the facility's daily sick call roster, and the detainee will be seen the same day or immediately, if necessary.
14. Should a medical emergency occur, detainees notify a staff member, who then initiates a preexisting protocol to provide assistance. Medical staff are trained to respond to such calls in minutes and to provide immediate treatment. In critical situations, Emergency Medical Technicians are stationed less than 150 yards away from the facility to transp01t detainees to local hospitals. Additionally, Life Flight Helicopters are able to arrive and depart directly from ICDC grounds.
15. There are four (4) hospitals within an approximate 20-mile radius of the facility: Irwin County Hospital, Tiff Regional Medical Center, Dorminy Medical Center, and Coffey Regional Medical Center. To the best of my knowledge and based on my experience, each is fully equipped to handle medical emergencies.
16. ICDC is a non-narcotic facility. Detainees arriving with narcotics or alleging that they were taking narcotics previously ai·e processed through the facility physician, at which point an alternative medication is ordered consistent with established facility policy. Otherwise, detainee
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complaints in reference to medication are reviewed by the appropriate medical staff. All facility medical staffmust adhere to a list of approved medications provided by ICE medical staff.

17. Based on the inf01mation provided herein and my knowledge of the people trained to undertake these protocols, I believe ICDC is and will remain capable of taking all adequate safeguards to protect staff and the inmate population from a COVID-19 outbreak at the facility.

JD.t< I declare under penalty of pe1jury that the foregoing is hue and correct.

q,/b. Executed this the

day ofApril, 2020

David Paulk

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IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF GEORGIA
ARISTOTELES SANCHEZ MARTINEZ, et al., Petitioners/Plaintiffs, No. 7:20-CV-00062-CDL-MSH
v. MICHAEL DONAHUE, et al.,
Respondents/Defendants.
DECLARATION OF RUSSELL WASHBURN I, Russell Washburn, hereby state the following based upon my personal knowledge, make the following Declaration: 1. I am over the age of 18 years and competent to testify to the matters set forth in this Declaration. 2. I have personal knowledge of the facts set forth in this Declaration, and if called as a witness, could competently testify to these facts. 3. I have been employed by CoreCivic, Inc. since 1996. For the past 12 years, I have held the position of Warden at several CoreCivic facilities. 4. Effective April 1, 2020, I became Warden of the Stewart Detention Center (“SDC”), in Lumpkin, GA. SDC is owned and operated by CoreCivic, Inc. CoreCivic is the service provider for an Intergovernmental Service Agreement between Stewart County, Georgia and U.S. Immigration and Customs Enforcement. 5. While SDC has design capacity of 2,266 ICE detainees, on April 9, 2020, the facility was operating at approximately 55% of that capacity, with only 1,248 ICE detainees present at the facility.

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6. CoreCivic recognizes the unique and exceptional nature of the current COVID-19 pandemic, and takes seriously its responsibility to protect the safety and security of the detainees and inmates in its facilities, its staff, its contractors’ employees, its governmental partners’ employees, and the public as a whole.
7. CoreCivic’s Facility Support Center is providing ongoing guidance and instruction to its facilities, in accordance with and consistent with recommendations of the CDC and its governmental partners, as well as state and local health authorities where its facilities are located. As additional recommendations are made, and in consideration of localized health conditions, practices to prevent the spread of COVID-19 at SDC have evolved, with changes occurring sometimes on a daily basis.
8. While I understand that several declarations submitted in support of Petitioners’ Motion for Temporary Restraining Order describe past events and conditions, or relate the concerns of unidentified third-parties, this Declaration focuses on the current situation, procedures and practices in place at SDC as of the time of its execution.
9. As an initial matter, several weeks ago, SDC medical staff began, at the request of ICE to generate a list of detainees with certain medical conditions or who were over the age of 60, for consideration for potential release. Dr. Owusu reviewed that list, along with the medical records of all listed detainees, and initially identified 78 with heightened COVID-19 risk-factors. Those lists were provided to ICE, and ICE has made decisions to release certain of those detainees on its list. 43 of those detainees remained at SDC as of March 30, 2020.
10. ICE subsequently requested that SDC provide expanded lists, including detainees with additional underlying medical conditions, for additional release consideration. On April 6, 2020, SDC provided ICE with a list of all 150 detainees at SDC who providers identified during
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intake as having a chronic cardiac, insulin, immunodeficiency, pulmonary, and/or seizure condition, for consideration.
11. The 43 remaining detainees identified by Dr. Owusu identified as being higherrisk, were moved to a protective cohort, in two housing units at SDC, to prevent the mixing of high and low custody ICE detainees. Thirteen (13) of those detainees have been released from SDC. Currently 30 detainees are housed in these two units.
12. The purpose of this protective cohort is to limit contact between these vulnerable detainees and the general population in the event that any detainee at SDC is infected by COVID-19. These two restricted units are in a protective area, essentially the opposite of a containment area, with the express objective of keeping the space free of COVID-19 virus. These units are staffed with a dedicated cadre of nurses, providers and security staff, which minimizes the risk of transmission of the virus from other parts of the facility or free world into that protective area. All personnel entering these units wear protective garments (paper isolation gowns, shoe covers, latex or nitrile gloves, and N-95 masks) to ensure staff are clean upon entering the area, for the safety of the detainees. All meal, medical services, and programming services are provided to these detainees in the protective cohort units. For those detainees, nonemergency and optical services which cannot be provided on the unit have been suspended.
13. SDC, has implemented a daily COVID-19 checklist. Daily responsibilities are assigned to the Warden (or the Administrative Duty Officer); each Shift Supervisor (or designed Assistant Shift Supervisor); Unit Manager; Safety Manager; Health Services Administrator; contracted Food Service Manager; and, Quality Assurance Manager. The purpose of this checklist is to make sure that each of those facility supervisors is timely aware of new developments; is speaking with staff and detainees about following appropriate precautions;
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encouraging staff and detainees to seek medical care if they feel ill or show signs of illness; monitoring staff and detainees for signs of illness; engaging in ongoing education efforts with staff and detainees; verifying ample supplies of appropriate materials; and, conducting sanitation inspections on a daily basis in their delegated area of responsibility.
Efforts to Mitigate Risk of Introduction of COVID-19 at SDC 14. Initially SDC took steps to focus on preventing the introduction of COVID-19 into the facility. The following steps remain in place at SDC. 15. Social visitation (both contact and non-contact), has been suspended. 16. All persons entering the facility (whether a CoreCivic employee, contractor, federal employee, or attorney visitor) are subject to health screening, as a pre-requisite to entrance to the facility. Consistent with the CDC Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (“CDC Interim Guidance”), that screening consists of a screening questionnaire and temperature check. 17. A screening area has been set up outside of the facility. Attachment A is a true and correct copy of photographs taken on April 9, 2020 depicting the facility entrance. In particular, the photographs demonstrate the placement of orange cones, where individuals who are waiting to be screened are to stand, to ensure that recommended physical distancing is maintained. 18. If the health screening is inconclusive, medical staff responds to make any final determination on screening. Where screening shows that an individual may be at risk, they are denied entry to the facility, and instructed either to remain at home for a specified quarantine period, or to consult and obtain clearance from their medical provider, before they will be admitted to the facility.
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19. Following health screening, individuals permitted to access to the facility, are still required to completed standard security screening. Like most airport security screenings, items carried by, or to be removed from, a person screened are placed on bins and sent through a scanner. At SDC, the practice of the Detention Officers managing the scanner, is to disinfect the bins each time following the screened persons’ removal of items they initially placed in the bin. Those Detention Officers wear gloves, so that the only people who make ungloved contact with the disinfected bin is the individual whose items are scanned.
20. Attorney visitors at SDC are not only permitted, but required to bring their own Personal Protective Equipment (“PPE”) (and may also bring sanitizing wipes) if making an inperson legal visit. However, attorney visitors are not permitted to provide PPE or wipes to the detainee population. Such items would need to be physically inspected for potential contraband (including metal pieces which could be broken off and fashioned into weapons or tools to facilitate an escape) prior to exchange, and may have any sterility compromised by that inspection.
21. In-person attorney visits at SDC occur in secure visitation areas, with a secure divider between the detainee and attorney visitor. Social distancing practices are followed with any in-person attorney visitor at SDC. Visitation staff sanitizes legal visitation areas before and after each legal visit. This includes, but is not limited to, wiping down chairs, tables, phones, and other surfaces and equipment using HDQ Neutral disinfectant.
22. In addition, SDC staff who escort detainees to in-person legal visits, are also wearing Personal Protective Equipment, to reduce the risk of exposure to any potential pathogen, including COVID-19.
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23. If attorneys do not wish to visit in person, they may have confidential communications with detainees either through the detainee telephone system or through the Video Teleconference System. SDC has begun providing expanded hours for VTC appointments, and further has placed additional VTC equipment in the facility, significantly expanding the number of available VTC appointments. These VTC units are also available for use in lieu of detainee physical appearances in immigration court.
24. Newly received detainees at SDC, as well as those returning to the facility from any outside transport, are similarly screened at intake in accordance with the CDC Interim Guidance. Any detainee who is symptomatic or otherwise does not pass health screening, is immediately referred to medical personnel for further examination, diagnosis and potential testing.
25. SDC does not want its employees who may have come into contact with anyone infected with COVID-19 to enter the facility. Out of an abundance of caution, such employees are instructed to remain home, but will be paid for the 14-day self-quarantine period, without that time being charged against their leave balance. This is designed to eliminate any “incentive” for a potentially infected employee to “tough it out” and attempt to report to work.
26. As of April 8, 2020 four employees at SDC had tested positive for COVID-19, none of those four have been present at the facility since March 27, 2020 or earlier. On April 9, 2020, SDC received word that a fifth facility employee had tested positive for COVID-19. That employee had recently worked on April 4th and 5th, 2020 in a housing unit which was under cohort quarantine at that time. No infected staff member has been assigned to work in any of the protective cohort facilities.
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Staff and Detainee Education 27. SDC has a long track record of training its staff with respect to potential exposure to pathogens and following appropriate universal precautions. 28. For SDC staff, there is an on-demand recorded COVID-19 briefing from facility administration and medical staff providing information on prevention; sanitization instruction; symptoms of COVID-19 exposure and infection; directions for access to testing and care; and, encouraging employees to stay home if ill. This briefing is updated at least weekly, if not more frequently based upon interim changes in official guidance. 29. In accordance with the CDC Interim Guidelines, educational materials have been posted throughout the facility and in all housing units, regarding COVID-19 symptoms, what to do if you are sick, and steps to be taken to reduce the risk of exposure. Attachment B is a true and correct copy of photographs taken on April 9, 2020 detailing some of those postings in place in detainee areas at SDC. 30. Medical personnel, including Dr. Owusu, and SDC Safety Manager Laboy have conducted multiple town hall meetings in each housing unit to educate detainees on proper sanitation, personal hygiene, sanitation etiquette, prevention practices, and instructions to clean and disinfect individual living areas.
Maintaining Physical Distancing Among the Detainee Population 31. Although it is challenging to maintain six feet of physical distance in a custodial setting, at SDC several practices have been implemented to promote physical distancing. 32. In particular, SDC has taken several steps to ensure that detainees are not in groups larger than ten (10), when outside their housing pod. For example, Attachment C is a
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photograph of posted signs on facility gates instructing detainees to limit numbers when attempting to move to the recreation area.
33. While detainees at SDC typically receive their meals in a large chow hall, SDC is currently using Satellite Feeding in all housing pods. Under the Satellite Feeding program, detainees receive their meal trays and eat them in their housing areas, rather than going to the chow hall, where they would mix with detainees from other housing areas and typically be seated less than six feet from another detainee during the meal periods.
34. All contact-type sports, including soccer and basketball have been removed from the SDC recreation program, to promote social distancing among detainees.
35. Detail crews of detainees participating in the Voluntary Work Program have been eliminated entirely or reduced in size, to limit potential exposure.
36. Because the current facility population is approximately 55% of design capacity, detainees are distanced where possible. In particular, where detainees are housed in a dormitorystyle unit, rather than individual two-person cells, detainees are being spread out, particularly those detainees who are in a protective cohort. Of the protective cohort areas being used for atrisk detainees identified by Dr. Owusu, one is an 89-bed pod, which is being used to house only 23 detainees, and the other is a 66-bed pod which is currently housing only 7 detainees. Use and Issuance of Personal Protective Equipment
37. SDC personnel have long been issued protective gloves, to reduce the risk of exposure to or transmission of any pathogen. The use of masks by staff working outside of the protective and/or cohort areas, are optional. Staff are permitted to bring their own masks, or may request replacement masks.
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38. SDC has ordered additional Personal Protective Equipment, including gloves and appropriate face masks, for use by staff and detainees.
39. Gloves and masks are provided to detainee participants in the Voluntary Work Program who work as pod porters, as well as those working details in other parts of the facility where the physical plant design prevents effective social distancing. If any detainee or staff is working in any area which has been under cohort, they are also provided with protective gowns and face coverings, in accordance with CDC guidelines.
40. Gloves and masks are also provided to certain other categories detainees at SDC, based upon direction from ICE, such as detainees who are being transported outside of the facility.
41. SDC’s current plan is to issue a mask to every detainee at the facility, upon receipt of masks in sufficient quantity, those have not yet been received. During the interim, SDC facility staff have not been instructed to tell detainees that they cannot use unaltered towels or items of clothing as a face mask. However, detainees are not permitted to alter or destroy facility materials to fashion their own masks, and must uncover their face at appropriate times, so that staff may confirm and verify the detainee’s identity.
Enhanced Sanitation Practices 42. SDC has recently undertaken enhanced practices to promote sanitation throughout the facility. 43. In recognition of the potential future shortage of sanitation supplies, SDC increased its inventory of cleaning chemicals and supplies. That inventory is checked and restocked daily, to maintain a sufficient supply on hand, particularly if additional shortages occur in the public market.
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44. SDC’s facility housekeeping plan was reviewed, updated and enhanced to comply with the CDC Interim Guidelines. In particular instructions were included pertaining to the safe and recommend use of antiviral cleaning agents, as well as appropriate use of Personal Protective Equipment in areas where the COVID-19 virus may be present.
45. Hand sanitizer units have been installed in all units and throughout SDC. 46. Sanitary wipes have been made available in all units and throughout SDC, and are available to detainees. During town hall meetings, detainees have been instructed how to safely sanitize common area surfaces they may come into contact with during the day—such as detainee telephones and kiosks—before and after use. 47. Detainees are permitted access to facility-approved chemicals, soap, and hand sanitizer for personal hygiene and to clean their immediate living areas. Such access is available 24-hours a day, seven days a week. 48. Pump dispensers for HDQ Neutral, a multi-purpose disinfecting antibiotic and antiviral cleaning solution, have been installed in SDC areas for use by individual detainees as well as Voluntary Work Program participants. 49. Sani-T-10 has been procured and issued to the kitchen for sanitation of areas where food contact may occur. 50. SDC continues its practice of issuing hygiene products to detainees twice a week. Issued hygiene products include soap, toothpaste, shampoo, lotion and toilet paper. While soap is now available 24/7, if any detainee has a need for any of the other items between distributions, they may receive a replacement from facility staff by exchanging their empty shampoo bottle, toothpaste tube, toilet paper roll, etc. for a full replacement. That one-for-one exchange serves to
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prevent the stockpiling by detainees of materials which can be used in larger quantities to create safety and security risks to staff and other detainees.
51. Facility vehicles used at SDC are also subject to enhanced cleaning and disinfecting procedures, with recommended antiviral cleaning agents before and after each transport. While certain detainees at SDC have asked for bleach to be made available to them 24/7, due to safety and security risks, it is not being provided for general population use. Detainee pod porters, who have been trained in the proper and safe use of bleach, are instructed and supervised in its use it to clean showers and other appropriate areas of each housing unit.
Access to Detainee Health Care and Plans in the Event of Detainee Infection 52. Since CoreCivic employees have begun providing health care services at SDC, detainees requesting medical assistance submit a sick call request in the secure box in their housing unit. Medical staff collect those requests once each day, triage them, and schedule the detainee for follow-up care. 53. If a detainee believes that he is experiencing an urgent or medical condition, which cannot await the sick call process, the detainee should notify their the CoreCivic Detention Officer stationed in that area, who will notify the nursing staff of the medical problem, and nursing will respond appropriately. Trained staff is available to administer emergency first aid and life saving techniques. If after normal provider hours at the facility, providers are available on an on-call basis at all times. 54. If a detainee returns from an outside medical appointment, including from any hospital, they are given the same health screening as all new detainee intakes. In particular any detainee who is returning to SDC from an outside hospital visit, is also assessed by a medical
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provider who reviews their medical status and will determine medically appropriate actions for care and housing, prior to the detainee returning to their assigned housing local.
55. If a staff member observes and suspects that any detainee at SDC may be symptomatic of potential COVID-19 infection, staff immediately refers those detainees to medical for screening. Any detainee who exhibits such symptoms, including a fever is isolated in the medical area pending the results of any provider reported testing.
56. At the time a detainee is referred to medical and subject to testing, the original housing unit is placed on cohort status, pending results of the testing for the suspected detainee. Detainees in such cohorted housing units are restricted to their units and subject to daily medical monitoring for fever and symptoms of respiratory illness. Any that show signs of fever and/or respiratory illness will be referred to medical. Cohorting will be discontinued following a 14day period with no new cases, following the last positive test result.
57. As of April 8, 2020, there were no positive COVID-19 test results, although results were pending for 8 detainees.
58. On April 9, 2020, SDC received results that five detainees had tested positive for COVID-19. Each unit where those detainees resided had previously been put on cohort status, and the detainee transferred to medical. None of those detainees had been present in the protective cohort area for at-risk detainees identified by Dr. Owusu.
59. SDC has developed and is constantly reviewing its contingency plans for confirmed or presumptive COVID-19 positive detainees.
60. SDC has highly security-sensitive and confidential emergency plans for a Medical Emergency (including specifically COVID-19) and Pandemic Flu Preparedness, as part of its Emergency Response Policy. The disclosure of the specific details of those plans poses an
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unreasonable safety and security risk should they be communicated to the detainee population or any member of the public.
61. SDC conducts quarterly and annual Emergency Response training exercises for staff regarding, which include both function and full-scale exercises.
62. SDC has capacity to effectively quarantine and medically isolate any detainee who is confirmed, presumed, or suspected positive for COVID-19. There are the four negative air pressure cells located in the SDC medical unit, which would be the first use for any confirmed or presumed positive detainee. The SDC medical unit has three additional observation cells. SDC has four additional observation cells in other areas of the facility, where detainees can be medically isolated from the detainee population and most facility staff, while still receiving appropriate medical care.
63. Should additional space be needed, SDC has the ability to clear detainees from a housing area, and dedicate that housing area as a cohort or quarantine to limit the potential for exposure to other detainees or staff.
64. In the exceptional event that the number of cases of COVID-19 reach levels beyond those, CoreCivic can provide additional support, supplies or personnel to SDC, and also make additional unutilized bed space at other CoreCivic facilities available on short notice.
65. Should a detainee require higher levels of care or monitoring than SDC can provide, SDC has agreements with hospital facilities in Cuthbert, Columbus, and Albany where detainees can be transferred to receive higher levels of care or monitoring.
RESPONSE TO ADDITIONAL ALLEGATIONS 66. I understand that several other allegations relating to SDC have been asserted in the Declarations supporting Petitioners’ Motion for Temporary Restraining Order. While
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sufficient detail was not provided to investigate each one in this short time period, I do provide the following responses.
67. There was no death of a detainee at SDC on April 6, 2020 from complication of COVID-19.
68. On April 6, 2020, three detainees were transported for outside medical evaluation. None of these were for COVID-19 symptoms. Once detainee was transported due to abdominal pains and was treated by an outside provider for reflux. A second detainee was diagnosed with anxiety. A third detainee who complained of chest pains and shortness of breath, was diagnosed as being asthmatic.
69. There was a recent use of force incident involving OC on Unit 4 in the hallway. No detainee in any of the housing pods was directly exposed to OC spray. In accordance with SDC practice, exhaust fans are used to ventilate any area where OC spray is used and the area is decontaminated to remove any trace of over-spray from areas where it may be used.
70. While detainee Aristoteles Sanchez Martinez does use a wheelchair, I have personally watched video of him self-propelling his wheelchair across the dayroom in the protective cohort housing area where he has been housed at SDC since March 30th, without any apparent difficulty.
71. As SDC Detainees “Michael Robinson” and “Peter Owusu” are proceeding under a pseudonym, I do not know their identify and cannot comment on other specific individual allegations, such as “Peter Owusu”’s claim that he was denied access to his CPAP machine, or “Michael Robinson”’s claim that he has not received his medical records or was personally exposed to OC spray.
I declare under the penalty of perjury that the foregoing is true and correct.
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CCasaese1:71:82-0c-vc-v0-00706006-2C-CKDK-LR-MMSMH DDooccuummeennt t11122--411 FiFleilded040/50/91/72/020 PaPgaege1553ofo2f 765 Executed this __ day of April, 2020 in Lumpkin, Georgia. Russell Washburn
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UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA

ARISTOTELES SANCHEZ MARTINEZ MICHAEL ROBINSON PETER OWUSU Stewart County Detention Center 146 CCA Road Lumpkin, GA 31815

and

JOSEPH LLOYD THOMPSON ANSUMANA JAMMEH KAREN LOPEZ NILSON FERNANDO BARAHONA MARRIAGA SHELLEY DINGUS Irwin County Detention Center 132 Cotton Drive Ocilla, GA 31774

Petitioners/Plaintiffs,
V.

Case No.

MICHAEL DONAHUE Warden, Stewart Detention Center 146 CCARoad P.O. Box 248 Lumpkin, GA 31815;

and

DAVID PAULK Warden, Irwin County Detention Center 132 Cotton Drive Ocilla, GA 31774;

and

THOMAS GILES Field Office Director U.S. Immigration and Customs Enforcement Atlanta Field Office, 180 Ted Turner Drive, SW, Suite 522 Atlanta, GA 30303;

1

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MATTHEW T. ALBENCE Deputy Director and Senior Official Performing the Duties of the Director U.S. Immigration and Customs Enforcement 500 12th Street, SW Washington, D.C. 20536;
and
CHAD WOLF Acting Secretary Depmiment of Homeland Security, 3801 Nebraska Avenue, NW Washington, D.C. 20016;
and
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT 500 12th Street, SW Washington, D.C. 20536; Respondents/Defendants.
DECLARATION OF DAVID PAULK
My name is David Paulk and I serve as the Warden at Irwin County Detention Center. I am an adult resident of Georgia, I am over 21 years of age, and I am competent to testify and have personal knowledge regarding the matters set forth in this Declaration.
Introduction
1. I am presently employed as the Warden of Irwin County Detention Center (ICDC). My duties and responsibilities include oversight and management of all !CDC's operations. This includes the steps recently taken to maintain the health of all staff and detainees and prevent the spread of COVID-19, as further described below.
2. ICDC takes the health and safety of its staff and detainees seriously. As such, it takes all requisite measures to adhere to standards required to ensure humane conditions. In addition to the usual cleaning and sanitizing measures already in place, ICDC has instituted additional measures to ensure the health of its staff and detainees in light of the spread of COVID-19.
3. To date, no confirmed cases of COVID-19 have occurred within ICDC internal security staff. One outside transportation officer tested positive for COVID-19. In response, all CDC guidelines were immediately implemented and all staff who had contact with this individual were tested and sent home until the results become available. No detainees came into direct contact with this officer. One detainee has tested positive for COVID-19; however, this
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detainee was just recently transported to ICDC. T he detainee was transp01ied in required PPE gear and kept in isolation due to ICDC being notified that there was a very high risk he had been exposed prior to arrival. This detainee was then transferred to medical isolation for testing, and at no point was this detainee in contact with any other detainee or security staff member.
Enhanced Intake Procedure
4. Upon entrance into the facility, every individual, including staff and new inmates, once processed into the facility, is advised to stand six feet apart from one another; no crowding or grouping is allowed throughout the facility. At processing, all inmates must complete a temperature check and a questionnaire designed to determine whether anyone is at risk of having contracted COVID-19. If an inmate has temperature over 100.4 degrees, or a positive response to any of the health risk questions, that individual is sent to be assessed by the facility's medical staff to determine appropriate action. The individual will not be released into the facility's general population until clearance is provided by the Medical Director.
Enhanced Cleaning Regimen
5. In addition to the usual cleaning procedures in place, the facility now implements additional, mandatory sanitization checklists and policies. For example, ICDC has purchased chemical cleaners on the list of approved products issued by the CDC to use to kill the vims. All units are required to undergo sanitization procedures throughout the dorms and common areas multiple times each day, including bathrooms, air vents, kitchens, and dining areas. Food caiis and food prep areas are sanitized on a regular basis and are monitored daily by staff and by the local health depmiment.
6. Likewise, all equipment used by detainees for attorney access (monitors, iPads, phones, etc.) are wiped down and sprayed with Lysol and/or CDC approved equivalents between each and every use. Given the shortage of available hand sanitizer, additional handwashing signs and hand soap dispensers have also been installed in every unit. Gloves are provided to all staffand detainees assigned to clean these areas. Fmiher, all staff have been provided masks to wear while in the facility and directed to wear them.
7. All group showers are pressure washed daily, and CDC-approved chemicals are available for detainees to clean showers on an intermittent basis in 2-4 person cells. Additionally, approved sanitizer is sprayed in the shower units multiple times daily. Damaged or non-cleanable cmiains are replaced upon detainee request and as is otherwise needed.
8. All ICDC transp01iation vehicles and equipment are sanitized in between each use. The transportation staff have been provided with and employ all proper PPE materials.
9. Detainees are allowed to purchase hygiene items from the commissary whenever they wish. Additionally, detainees are provided daily access at no charge to soap, shampoo, lotions, etc. as mandated under Performance-Based National Detention Standards (P.B.N.D.S.).
Enhanced Social Distancing and Critical Inmate Release
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10. A number of ICDC inmates whom I understand were determined to be paiticularly vulnerable to serious illness or death if infected by COVID-19 have already been removed from the facility.
11. ICDC houses other detainees whom it has dete1mined to be paiticularly vulnerable to serious illness or death if infected by COVID-19 but whom I understand are not eligible for release based on their offenses have been placed in units with fewer detainees in order to create maximal social distancing opportunities. Moreover, all ICDC unit counts have been reduced to the greatest extent possible to facilitate social distancing among inmates.
12. ICDC has been able to accomplish this because it is not currently at maximum capacity. Unfortunately, while detainees have been afforded every opp01tunity and are repeatedly advised by staff to practice social distancing measures in addition to CDC recommended handwashing procedures, detainees often choose not to follow this protocol.
Medical Emergency Protocol
13. ICDC is staffed with all necessary medical personnel with any additional needs or projected shortage filled via multiple established contracts with professional nursing agencies in the region. Any detainee may request a medical appointment via the provided Detainee Request Form, verbally through their daily interaction with an assigned Case Manager, via an iPad in units so equipped, or they may submit a Detainee Request Worksheet to immigration. Additionally, detainees may use the preexisting grievance system via Detainee Request Forms and/or iPads. Administrative personnel conduct daily inspections and walk throughs five days a week, and detainees have access to those individuals in order to voice any complaints for follow-up by staff. The medical staff respond to all requests for medical attention within the time frames mandated by P.B.N.D.S. or sooner in order to triage and treat detainees. If a complaint is rep01ted to be critical, it is expedited on the facility's daily sick call roster, and the detainee will be seen the same day or immediately, if necessary.
14. Should a medical emergency occur, detainees notify a staff member, who then initiates a preexisting protocol to provide assistance. Medical staff are trained to respond to such calls in minutes and to provide immediate treatment. In critical situations, Emergency Medical Technicians are stationed less than 150 yards away from the facility to transp01t detainees to local hospitals. Additionally, Life Flight Helicopters are able to arrive and depart directly from ICDC grounds.
15. There are four (4) hospitals within an approximate 20-mile radius of the facility: Irwin County Hospital, Tiff Regional Medical Center, Dorminy Medical Center, and Coffey Regional Medical Center. To the best of my knowledge and based on my experience, each is fully equipped to handle medical emergencies.
16. ICDC is a non-narcotic facility. Detainees arriving with narcotics or alleging that they were taking narcotics previously ai·e processed through the facility physician, at which point an alternative medication is ordered consistent with established facility policy. Otherwise, detainee
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complaints in reference to medication are reviewed by the appropriate medical staff. All facility medical staffmust adhere to a list of approved medications provided by ICE medical staff.

17. Based on the inf01mation provided herein and my knowledge of the people trained to undertake these protocols, I believe ICDC is and will remain capable of taking all adequate safeguards to protect staff and the inmate population from a COVID-19 outbreak at the facility.

JD.t< I declare under penalty of pe1jury that the foregoing is hue and correct.

q,/b. Executed this the

day ofApril, 2020

David Paulk

5

Case 1:18-cv-00760-CKK-RMM Document 112-14 Filed 05/17/20 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SOUTHERN POVERTY LAW CENTER,
Plaintiff, v.
U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants.

Civil Action No. 18-0760 (CKK)

DECLARATION OF DAVID PAULK I, David Paulk, hereby state the following based upon my personal knowledge, and make the following Declaration: 1. I am over the age of 18 years and competent to testify to the matters set forth in this Declaration. 2. I have personal knowledge of the facts set forth in this Declaration, and if called as a witness, could competently testify to these facts. 3. I am presently employed as the Warden of Irwin County Detention Center (“ICDC”). I have worked at ICDC for approximately fifteen (15) years, and during that time have served as Sergeant, Lieutenant, Captain, Major, Deputy Warden, and Warden. I have held the position of Warden of ICDC since September 16, 2018. My duties and responsibilities include oversight and management of all of ICDC’s operations. This includes the steps taken to maintain the health of all staff and detainees, prevent the spread of COVID-19, and ensure that detainees have adequate means to communicate and share information with legal counsel.

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Case 1:18-cv-00760-CKK-RMM Document 112-14 Filed 05/17/20 Page 2 of 21
4. ICDC is owned and operated by LaSalle Corrections Management LLC (“LaSalle”). LaSalle is the service provider for an Intergovernmental Service Agreement between ICDC and U.S. Immigration and Customs Enforcement.
5. ICDC recognizes the unique and exceptional nature of the current COVID-19 pandemic, and it takes seriously its responsibility to protect the safety and security of the detainees housed in its facility, particularly recognizing the importance of adequate and confidential attorney-client communications and information exchange.
6. LaSalle, as the corporate manager of ICDC, provides ongoing guidance and instruction to its facilities, in accordance with and consistent with recommendations of the CDC and its governmental partners, as well as state and local health authorities where its facilities are located. As additional recommendations are promulgated, and in consideration of local health conditions, practices to prevent the spread of COVID-19 while ensuring that detainees have adequate access to confidential communications with their attorneys at ICDC have evolved, with changes occurring sometimes on a daily basis.
7. While I understand that several declarations submitted in support of Petitioners’ Motion for Temporary Restraining Order describe past events and conditions, or relate the concerns of unidentified third parties, this Declaration focuses on the current procedures and practices in place at ICDC as of the time of its execution.
8. As an initial matter, on April 13, 2020, pursuant to CDC guidelines and directives, LaSalle required of its facilities that all in-person visitation be temporarily prohibited to prevent the risk of COVID-19 entering and spreading through its facilities, with the exception of in-person attorney visitation. At that time, attorneys were to provide their own personal protective equipment (“PPE”). ICDC implemented this policy on the following day, April 14, 2020.
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Case 1:18-cv-00760-CKK-RMM Document 112-14 Filed 05/17/20 Page 3 of 21
9. Subsequently, on April 14, 2020, pursuant to applicable guidelines, LaSalle required of its facilities that although personal visitation be suspended, attorney visitation would continue to be permitted but all such visits would take place in a non-contact visitation room. Per LaSalle’s directive, attorneys are to use a mask during in-person visitation, but if they do not bring their own mask, ICDC is to provide them with one. ICDC has made masks available for visiting attorneys that did not have one since April 14, 2020.
10. Non-contact visitation rooms are separate, secure visitation rooms where attorneys and detainees are entirely separated by a secure divider, and there is no opportunity or potential for the two communicants to come into physical contact with one another. ICDC nevertheless implements LaSalle’s policy and provides a mask to any attorney who does not bring his/her own. Because it is impossible for the attorney and detainee to have physical contact in a non-contact visitation room, LaSalle and ICDC consider the use of a mask to be sufficient PPE for these encounters, per CDC guidelines.
11. ICDC has a sufficient supply of masks to provide to attorneys making in-person visits, and ICDC has ensured that it has an avenue to purchase additional masks if its current supply is depleted. Additionally, LaSalle maintains a sufficient supply of PPE for its facilities from which ICDC can obtain additional masks at any time.
12. All attorneys, in addition to all entrants, who have visited ICDC since the inception of the COVID-19 pandemic are screened at the facility’s entry. This screening involves taking the individual’s temperature, along with requiring that the individual complete a COVID-19 questionnaire to determine if s/he has been exposed to COVID-19 or has experienced any related symptoms. This screening questionnaire was developed pursuant to CDC guidelines. A true and correct copy of the screening questionnaire is attached hereto as Exhibit A.
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13. Social distancing practices are followed with all in-person visitors at ICDC. 14. In addition, ICDC staff who escort detainees to in-person attorney visits wear personal protective equipment, including masks and gloves, to reduce the risk of exposure to any pathogen, including COVID-19. 15. All non-contact visitation rooms are thoroughly cleaned and sanitized between each visitation, both on the visitor side and the detainee side. This includes, but is not limited to, wiping down chairs, tables, phones, and other surfaces and equipment using CDC recommended disinfectant or another disinfectant of similar strength and efficacy. 16. Non-contact visitation rooms are each separate rooms with a closing door that allows for complete and total privacy between the visiting attorney and detainee. ICDC staff have been trained and instructed not to enter a non-visitation room during a visit unless summoned or to inquire as to whether the visit is ongoing. This policy is enforced, and staff do not enter nonvisitation rooms while a meeting is taking place, thus ensuring privacy and confidentiality for the attorney and detainee. 17. In-person attorney visits are available from 8:00 AM – 5:00 PM, seven (7) days a week at ICDC. However, attorneys arriving after 5:00 PM are not turned away as long as ICDC has sufficient security staff to escort and monitor in-person meetings. 18. Additionally, if attorneys do not wish to visit in person, they may participate in confidential communications with detainees through video telecommunication (“VTC”) devices. ICDC has worked to ensure that detainees have adequate access to VTC devices with which to conduct confidential communications with attorneys. ICDC currently maintains four (4) fully operational VTC devices for this specific purpose. Each device is located in a secure, separate
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room with a closing door to ensure full privacy for the VTC meeting. VTC calls are not recorded, nor are they monitored in any way.
19. All VTC devices have maintained full functionality during the COVID-19 pandemic. Two (2) full-time staff members oversee VTC communications, with the assistance of four (4) court officers as necessary. These staff members are trained to rectify any technical, maintenance, or operational problems with VTC devices quickly upon notice of a deficiency.
20. ICDC has phased-out the use of headsets to conduct VTC communications, allowing detainees to use VTC devices without the need to touch those devices. When detainees use VTC devices, their call is already set up on the device, so detainees simply need to speak into the computer’s microphone to communicate with their attorney without touching the device.
21. Additionally, all VTC devices are thoroughly cleaned and sanitized between each call. This includes, but is not limited to, wiping down all surfaces and equipment using CDC recommended disinfectant or another disinfectant of similar strength and efficacy. This is handled by the two (2) ICDC staff members who oversee VTC communications and the four (4) court officers referenced above.
22. In addition, ICDC staff who escort detainees to VTC calls also wear personal protective equipment, including masks and gloves, to reduce the risk of exposure to any pathogen, including COVID-19.
23. VTC calls each take place in a separate room with a closing door. Only one detainee is allowed in the room during his or her scheduled call time and during the pendency of the call, ensuring confidentiality of the call. An ICDC staff member is placed outside of the entrance to the VTC room to ensure that there are no entrants and to protect the privacy of the communications.
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24. ICDC staff have been trained and instructed not to enter a VTC room during an attorney call unless summoned or to inquire as to whether a visit is ongoing. ICDC receives many requests for attorney VTC calls, and it maintains a regimented schedule for calls so that all detainees can adequately experience confidential access to their attorney(s). To adhere to this schedule, it is occasionally necessary for ICDC staff enter the VTC room for the limited purposed of inquiring whether the call is ongoing. While it is necessary to adhere to the VTC call schedule to ensure equal access to VTC equipment, ICDC staff are careful not to abruptly cut-off a detainee’s call with his or her attorney(s) when a call is ongoing. This policy is enforced, and staff do not enter VTC calls rooms while a meeting is taking place, thus ensuring privacy and confidentiality for the attorney and detainee.
25. During VTC calls, an ICDC officer sits in the hallway monitoring the detainee from the outside. It is necessary that the officer maintain visual contact with the detainee for security reasons. The VTC device is situated against the wall with the camera facing outwards toward the hallway.
26. During VTC court sessions, an ICDC officer is stationed in the back of the courtroom or conference room. This is standard procedure for all court appearances held at ICDC unless specified by the judge who is presiding.
27. Because of the increased need for attorney VTC communications, and to ensure that all detainees have equal access to confidential communications with their attorneys, VTC calls are scheduled by appointment. Appointments are typically scheduled between 9:00 a.m. – 4:00 p.m., Monday through Friday, but this availability time can be and has been expanded when increased need arises.
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28. Attorneys may make appointments for VTC calls with detainees by calling or emailing the Inmates’ Services Department. ICDC employs one full-time clerk to manage attorney scheduling for VTC calls. ICDC maintains a separate email account and phone line specifically for attorney communication requests.
29. When an attorney contacts ICDC via email to request an appointment, ICDC typically responds within twenty-four (24) hours to this appointment request to schedule the appointment. An attorney may not receive a response within twenty-four hours is if the request is made on a Friday, or the day before, or on, a holiday. When an attorney calls ICDC to make an appointment, all resulting voicemail messages are checked twice a day. ICDC also provides a response to requests made via telephone typically within twenty-four (24) hours, barring requests made on Friday, or the day before, or on, a holiday.
30. Because of the increased need for VTC appointments, appointments are typically allotted a one-hour timeframe; however, attorneys may request a longer meeting when making the appointment, whether more time is needed because of the need for an interpreter or for any other reason. Maintaining the one-hour time structure for calls is necessary to ensure that all detainees have equal access to confidential VTC calls with their attorneys. Attorneys are advised when making VTC appointments about the one-hour time frame, and they are advised to request additional time if necessary.
31. Requests for additional time beyond the one-hour allotment are routinely granted and arranged. It is ICDC’s experience that the majority of attorneys and detainees utilizing VTC communications do not use the full allotted one-hour time for appointments, and attorneys have at times spoken with more than one detainee during that time frame.
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32. When attorneys request a VTC appointment with ICDC, attorneys are asked to provide their availability and preference for a call time.
33. ICDC makes every effort to schedule the VTC appointment during the requesting attorney’s preferred time. Because there are many requests for VTC appointments and the schedule is constantly changing, if the attorney’s preferred date and time are not available, ICDC provides available time slots to attorneys who then select their preference. ICDC works to schedule attorney appointments for the available date and time closest to their preferred appointment time.
34. Attorneys are informed of their appointment time when their request is addressed. Attorneys are provided with the date and time of their VTC appointment either via email addressing their request, or in the telephone call responding to their request. VTC appointments are not scheduled for detainees without the date and time for the appointment having been communicated to the attorney in advance. Attorney VTC appointments are scheduled sufficiently ahead of the appointment so as to provide the attorney with adequate time for preparation, subject to the attorney’s preference for appointment time. As stated, in the vast majority of circumstances, attorneys select their own appointment time. However, ICDC works diligently with attorneys to reschedule their VTC appointment time if a conflict arises.
35. If an attorney notifies ICDC that s/he needs an expedited or emergency VTC appointment with a detainee, ICDC works diligently to schedule that appointment, going so far as to schedule appointments for the same day as the request if necessary and possible to complete. Such emergency requests are routed to the attention of the Inmate Services Administrator, who quickly handles the accommodation of such requests.
36. ICDC has posted in several locations around the facility information for detainees providing instructions as to how they can access attorney communications via VTC. Information
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regarding access to attorney communications is also provided in the ICDC Handbook which is available to all detainees. True and correct copies of the relevant sections of the ICDC Handbook and the ICE flyer explaining how VTC communications take place at ICDC is attached hereto as Exhibit B.
37. Additionally, as stated, ICDC employs two (2) full-time staff members to oversee administration of the VTC communications process who are available to detainees to answer questions about confidential attorney access. Further, ICDC employs three (3) full-time case managers who are available to detainees to answer questions regarding VTC communications. Two to three (2-3) ICDC staff members also conduct walk-throughs of each housing unit once every week day. These staff members are fully trained and educated regarding confidential attorney communications, and they are available to detainees to answer questions regarding the same. Finally, an ICDC officer is stationed in each housing unit all day, every day. These officers are fully trained and educated regarding confidential attorney communications, and they are available to detainees to answer questions regarding the same.
38. Detainees may request an appointment for a VTC call either by making a written request or via a tablet device. These requests are collected and reviewed every day, and ICDC responds within twenty-four (24) hours to each such request and works to coordinate an appointment.
39. Attorneys wishing to speak to a detainee via telephone are advised that phone calls are recorded and monitored, and attorneys are recommended to schedule a VTC appointment to speak to detainees for full confidentiality.
40. Attorneys requesting to have a confidential conversation with a detainee via detainee telephones are instructed and provided information on how to set up a PPC account with
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Correct Solutions Group, ICDC’s telephone vendor. This will allow the detainee to call a specific number for which the cost of the call can be pre-paid by the attorney. Using this system, Correct Solutions Group can facilitate a three-way call between detainees, their attorney, and an interpreter if necessary. Calls that are set up in this way are not monitored or recorded. Instructions for setting up such a call are provided in the ICDC Handbook and are posted in several areas around the facility, including above the housing unit telephones.
41. Other than via a PPC account with Correct Solutions Group, collect calls are not permitted from housing unit phones, and detainees will be charged for all calls. Additionally, calls that are not previously established with Correct Solutions Group are not confidential and are generally limited to fifteen (15) minutes. Attorneys and detainees are informed of this by the disclaimer at the beginning of the phone call, in the ICDC Handbook, and through information provided by ICDC and posted above the housing unit telephones.
42. All telephones are thoroughly cleaned and sanitized between each call. This includes, but is not limited to, wiping down all surfaces and equipment using a CDC recommended disinfectant or another disinfectant of similar strength and efficacy.
43. Detainees can place phone calls from either the phones in their housing units, or they can request to make a call from a community phone located in the library and available to the entire facility. Requests to use the library phone can be made either by making a written request or via a tablet device. These requests are collected and reviewed every day, and ICDC responds within twenty-four (24) hours to such requests and works to coordinate an appointment.
44. When a detainee makes a phone call using the library phone, s/he is escorted to the phone area two (2) at a time to maintain social distancing guidelines per the CDC. There is a bench outside of the library where one detainee waits while the other detainee is able to place the call in
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the library. ICDC staff who escort detainees to library phone calls are also wearing personal protective equipment, including masks and gloves, to reduce the risk of exposure to any pathogen, including COVID-19.
45. The library phone is located in a secured, separate room with a closing door. When a detainee uses the library phone, the detainee is in the room alone and can close the door, ensuring privacy and confidentiality from others in the facility. Calls from the library phone are not subject to monitoring and recording.
46. Telephones located in housing units are in an open area that allows for social distancing. Social distancing has been consistently and repeatedly encouraged in these areas. ICDC has not experienced an issue with overcrowding or detainees being close together while waiting in these areas. There is sufficient space for detainees to wait to use these phones separate from other detainees, including tables set up near the phone banks. It is ICDC’s experience that detainees mostly separate themselves from other detainees and sit at these tables while waiting to use the phone.
47. Additionally, all detainees have been provided with two (2) cloth face masks, and additional masks are available for replacement purposes. Per CDC guidelines detainees are consistently encouraged to wear face masks while in community areas around other detainees, including in and around the housing unit.
48. Each housing unit telephone is separated by a partition. Detainees are informed that calls placed from the housing units are monitored and recorded in the disclaimer at the beginning of each phone call, in the ICDC Handbook, and in information posted around the facility including above the telephones, and they are also informed that such calls are not confidential unless their attorney has previously set up a secure line with Correct Solutions Group per Paragraph 40 above.
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49. ICDC has the following types of housing units: 16 units with closed cells that can house 32 individuals apiece, 6 open dormitory units that can house 100 individuals apiece, and 4 open dormitory units that can house 24 individuals apiece.
50. There are three (3) telephones in each of the closed-cell units. In total, there are forty-eight (48) telephones available for use in closed-cell units.
51. There are four (4) telephones in each of the open dormitory units. In total, there are forty (40) telephones available for use in open dormitory units.
52. With the library telephone, there are eighty-nine (89) telephones available for use at ICDC.
53. Telephones are available for use on Sunday through Thursday from 5:00 AM – 11:00 PM, and on Friday and Saturday from 5:00 AM – 1:00 AM.
54. ICDC works to ensure that detainees and attorneys can sufficiently communicate via mail sent through the U.S. Postal Services, FedEx, UPS, and other delivery services. Standard mail received at ICDC is opened and examined for contraband in the mailroom and then distributed to detainees. However, legal mail is taken directly to the detainee in his or her housing unit daily upon arrival. The mail is then opened in front of the detainee, and the ICDC staff member completes a cursory check for contraband in front of the detainee, maintaining extreme care in protecting the confidentiality of the mail and in not examining the communications therein.
55. Detainees can send confidential legal mail to their attorney by securing postage supplies from the commissary, assembling mail, and providing it to ICDC’s outgoing mail service.
56. Attorneys can send pre-stamped envelopes to detainees that detainees can use to provide information. This mail is treated like all other legal mail and provided to the detainee in his or her housing unit daily upon arrival. The detainee must then follow the attorney’s instructions
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within the mail to assemble the necessary mailing package and return it to ICDC’s outgoing mail service, which will send it out. ICDC collects and sends outgoing mail from detainees daily.
57. ICDC provides stamps for sale in the commissary. These stamps are obtained from a verified vendor so that ICDC can ensure that they do not contain contraband. ICDC currently does not allow outside stamps to be mailed to detainees in the facility. As outside stamps are not verified or sourced, this poses a risk of contraband coming into the facility.
58. ICDC does not share a post office box with any other person or entity, and its receipt of mail is secure. Mail directed to ICDC is sorted at the U.S. Post Office in Ocilla, Georgia, and brought directly to ICDC.
59. ICDC additionally works to ensure that detainees have adequate access to a facsimile machine to send documents and information to their attorneys. ICDC makes an announcement to the entire facility every day notifying detainees that ICDC staff will come to each housing unit to pick up materials to be faxed, and of the time that this collection will occur.
60. ICDC staff have been fully trained and educated regarding the confidentiality of faxed materials to attorneys. ICDC staff members use extreme care in maintaining the confidentiality of such documents and in not examining the communications therein when taking documents to the facsimile machine.
61. Documents gathered from detainees are faxed daily, after which an ICDC staff member delivers a fax confirmation receipt to the detainee after the fax transmits.
62. Further, ICDC maintains a specific, designated legal fax number for use by outside attorneys to fax information to detainees. This number is disseminated to attorneys. Incoming faxes from attorneys are treated like legal mail and delivered to detainees daily upon receipt.
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RESPONSE TO ADDITIONAL ALLEGATIONS 63. I understand that several allegations related to ICDC were asserted in the Declarations supporting Petitioners’ Motion for Temporary Restraining Order. While sufficient detail was not provided to investigate each one in this short time period, I provide the following responses. 64. On April 15, 2020, Victoria Mesa emailed a request for a VTC appointment with the timestamp showing 6:03 PM. This email was received after the monitoring clerk had left ICDC for the day. Ms. Mesa requested April 16, the following day, as the date for her appointment, and she requested appointment times that were already scheduled for another detainee or attorney. ICDC responded on April 17 providing available dates and times. 65. On April 15, 2020, Hillary Li emailed a request for a VTC appointment with the timestamp showing 2:38 PM. Ms. Li requested a VTC appointment for the following day, April 16. On April 15, ICDC emailed a response to Ms. Li advising that there were no appointments available for April 16. 66. On April 17, 2020, Loreili Williams sent an email to ICDC at 8:40 AM requesting an urgent VTC appointment and stating that she needed to speak to her clients any time that day except between 2:00 – 3:00 PM. To accommodate the urgency of this request, her clients were scheduled for VTC appointment at 10:00 AM. 67. On April 15, 2020, Benjamin Osorio emailed ICDC to request a VTC appointment. ICDC responded to this request on April 15, scheduling an appointment for April 17 with his client. At this time, appointments were also scheduled for his client for April 20 and 21.
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EXHIBIT A

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EXHIBIT B

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VIDEO TELECONFERENCING TECHNOLOGY

for ATTORNEY/CLIENT MEETINGS at Irwin County Detention Center

VTC

VIDEO TELECONFERENCING PILOT
U.S. Immigration and Customs Enforcement (ICE) detention standards require that detainees in ICE facilities be allowed confidential contact with ATTORNEYS and their authorized representatives in person, on the telephone, and through correspondence. ICE is committed to ensuring that individuals detained in ICE facilities are allowed confidential contact with their attorneys and authorized representatives.
Irwin County Detention Center is piloting video teleconferencing (VTC) via the free Skype internet application to facilitate virtual attorney/client meetings.
VTC IMPLEMENTATION:
• Private areas have been set aside to accommodate VTC meetings.
• Computers loaded with the free Skype internet application will be available in the VTC meeting rooms.
• A camera and video monitor will allow the client to see and speak with his or her legal representative.
• Attorney/client VTC meetings will be confidential.

Irwin will begin accepting requests for virtual legal visits
by email @ Irwinice@irwincdc.com
For additional questions about this process, please contact
Irwin County Detention Center
at (229) 468-4121 ext. 252

PROCESS FOR REQUESTING A VIRTUAL LEGAL VISIT AT IRWIN:
• Attorneys and accredited representatives may request virtual meetings with their clients 24 hours prior to the requested meeting time by email at Irwinice@irwincdc.com.
• Visits will be scheduled for 60 minutes and will automatically terminate.
• Legal representatives will be required to show appropriate identification, such as a bar card from any state, or other available documentation demonstrating bar membership, as is required for in-person visits. Additionally, attorneys will be required to provide government issued identification.

ERO | CPD

| THIS SERVICE IS FOR ATTORNEYS ONLY |

JAN 2017

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CCasaese1:71:82-0c-vc-v0-00706006-2C-CKKD-LR-MMSMH DDooccuummeennt t11122--418 FiFleilded040/50/91/72/020 PaPgaege1 1ofo2f 727
IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF GEORGIA
ARISTOTELES SANCHEZ MARTINEZ, et al., Petitioners/Plaintiffs, No. 7:20-CV-00062-CDL-MSH
v. MICHAEL DONAHUE, et al.,
Respondents/Defendants.
DECLARATION OF RUSSELL WASHBURN I, Russell Washburn, hereby state the following based upon my personal knowledge, make the following Declaration: 1. I am over the age of 18 years and competent to testify to the matters set forth in this Declaration. 2. I have personal knowledge of the facts set forth in this Declaration, and if called as a witness, could competently testify to these facts. 3. I have been employed by CoreCivic, Inc. since 1996. For the past 12 years, I have held the position of Warden at several CoreCivic facilities. 4. Effective April 1, 2020, I became Warden of the Stewart Detention Center (“SDC”), in Lumpkin, GA. SDC is owned and operated by CoreCivic, Inc. CoreCivic is the service provider for an Intergovernmental Service Agreement between Stewart County, Georgia and U.S. Immigration and Customs Enforcement. 5. While SDC has design capacity of 2,266 ICE detainees, on April 9, 2020, the facility was operating at approximately 55% of that capacity, with only 1,248 ICE detainees present at the facility.

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6. CoreCivic recognizes the unique and exceptional nature of the current COVID-19 pandemic, and takes seriously its responsibility to protect the safety and security of the detainees and inmates in its facilities, its staff, its contractors’ employees, its governmental partners’ employees, and the public as a whole.
7. CoreCivic’s Facility Support Center is providing ongoing guidance and instruction to its facilities, in accordance with and consistent with recommendations of the CDC and its governmental partners, as well as state and local health authorities where its facilities are located. As additional recommendations are made, and in consideration of localized health conditions, practices to prevent the spread of COVID-19 at SDC have evolved, with changes occurring sometimes on a daily basis.
8. While I understand that several declarations submitted in support of Petitioners’ Motion for Temporary Restraining Order describe past events and conditions, or relate the concerns of unidentified third-parties, this Declaration focuses on the current situation, procedures and practices in place at SDC as of the time of its execution.
9. As an initial matter, several weeks ago, SDC medical staff began, at the request of ICE to generate a list of detainees with certain medical conditions or who were over the age of 60, for consideration for potential release. Dr. Owusu reviewed that list, along with the medical records of all listed detainees, and initially identified 78 with heightened COVID-19 risk-factors. Those lists were provided to ICE, and ICE has made decisions to release certain of those detainees on its list. 43 of those detainees remained at SDC as of March 30, 2020.
10. ICE subsequently requested that SDC provide expanded lists, including detainees with additional underlying medical conditions, for additional release consideration. On April 6, 2020, SDC provided ICE with a list of all 150 detainees at SDC who providers identified during
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intake as having a chronic cardiac, insulin, immunodeficiency, pulmonary, and/or seizure condition, for consideration.
11. The 43 remaining detainees identified by Dr. Owusu identified as being higherrisk, were moved to a protective cohort, in two housing units at SDC, to prevent the mixing of high and low custody ICE detainees. Thirteen (13) of those detainees have been released from SDC. Currently 30 detainees are housed in these two units.
12. The purpose of this protective cohort is to limit contact between these vulnerable detainees and the general population in the event that any detainee at SDC is infected by COVID-19. These two restricted units are in a protective area, essentially the opposite of a containment area, with the express objective of keeping the space free of COVID-19 virus. These units are staffed with a dedicated cadre of nurses, providers and security staff, which minimizes the risk of transmission of the virus from other parts of the facility or free world into that protective area. All personnel entering these units wear protective garments (paper isolation gowns, shoe covers, latex or nitrile gloves, and N-95 masks) to ensure staff are clean upon entering the area, for the safety of the detainees. All meal, medical services, and programming services are provided to these detainees in the protective cohort units. For those detainees, nonemergency and optical services which cannot be provided on the unit have been suspended.
13. SDC, has implemented a daily COVID-19 checklist. Daily responsibilities are assigned to the Warden (or the Administrative Duty Officer); each Shift Supervisor (or designed Assistant Shift Supervisor); Unit Manager; Safety Manager; Health Services Administrator; contracted Food Service Manager; and, Quality Assurance Manager. The purpose of this checklist is to make sure that each of those facility supervisors is timely aware of new developments; is speaking with staff and detainees about following appropriate precautions;
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encouraging staff and detainees to seek medical care if they feel ill or show signs of illness; monitoring staff and detainees for signs of illness; engaging in ongoing education efforts with staff and detainees; verifying ample supplies of appropriate materials; and, conducting sanitation inspections on a daily basis in their delegated area of responsibility.
Efforts to Mitigate Risk of Introduction of COVID-19 at SDC 14. Initially SDC took steps to focus on preventing the introduction of COVID-19 into the facility. The following steps remain in place at SDC. 15. Social visitation (both contact and non-contact), has been suspended. 16. All persons entering the facility (whether a CoreCivic employee, contractor, federal employee, or attorney visitor) are subject to health screening, as a pre-requisite to entrance to the facility. Consistent with the CDC Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (“CDC Interim Guidance”), that screening consists of a screening questionnaire and temperature check. 17. A screening area has been set up outside of the facility. Attachment A is a true and correct copy of photographs taken on April 9, 2020 depicting the facility entrance. In particular, the photographs demonstrate the placement of orange cones, where individuals who are waiting to be screened are to stand, to ensure that recommended physical distancing is maintained. 18. If the health screening is inconclusive, medical staff responds to make any final determination on screening. Where screening shows that an individual may be at risk, they are denied entry to the facility, and instructed either to remain at home for a specified quarantine period, or to consult and obtain clearance from their medical provider, before they will be admitted to the facility.
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19. Following health screening, individuals permitted to access to the facility, are still required to completed standard security screening. Like most airport security screenings, items carried by, or to be removed from, a person screened are placed on bins and sent through a scanner. At SDC, the practice of the Detention Officers managing the scanner, is to disinfect the bins each time following the screened persons’ removal of items they initially placed in the bin. Those Detention Officers wear gloves, so that the only people who make ungloved contact with the disinfected bin is the individual whose items are scanned.
20. Attorney visitors at SDC are not only permitted, but required to bring their own Personal Protective Equipment (“PPE”) (and may also bring sanitizing wipes) if making an inperson legal visit. However, attorney visitors are not permitted to provide PPE or wipes to the detainee population. Such items would need to be physically inspected for potential contraband (including metal pieces which could be broken off and fashioned into weapons or tools to facilitate an escape) prior to exchange, and may have any sterility compromised by that inspection.
21. In-person attorney visits at SDC occur in secure visitation areas, with a secure divider between the detainee and attorney visitor. Social distancing practices are followed with any in-person attorney visitor at SDC. Visitation staff sanitizes legal visitation areas before and after each legal visit. This includes, but is not limited to, wiping down chairs, tables, phones, and other surfaces and equipment using HDQ Neutral disinfectant.
22. In addition, SDC staff who escort detainees to in-person legal visits, are also wearing Personal Protective Equipment, to reduce the risk of exposure to any potential pathogen, including COVID-19.
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23. If attorneys do not wish to visit in person, they may have confidential communications with detainees either through the detainee telephone system or through the Video Teleconference System. SDC has begun providing expanded hours for VTC appointments, and further has placed additional VTC equipment in the facility, significantly expanding the number of available VTC appointments. These VTC units are also available for use in lieu of detainee physical appearances in immigration court.
24. Newly received detainees at SDC, as well as those returning to the facility from any outside transport, are similarly screened at intake in accordance with the CDC Interim Guidance. Any detainee who is symptomatic or otherwise does not pass health screening, is immediately referred to medical personnel for further examination, diagnosis and potential testing.
25. SDC does not want its employees who may have come into contact with anyone infected with COVID-19 to enter the facility. Out of an abundance of caution, such employees are instructed to remain home, but will be paid for the 14-day self-quarantine period, without that time being charged against their leave balance. This is designed to eliminate any “incentive” for a potentially infected employee to “tough it out” and attempt to report to work.
26. As of April 8, 2020 four employees at SDC had tested positive for COVID-19, none of those four have been present at the facility since March 27, 2020 or earlier. On April 9, 2020, SDC received word that a fifth facility employee had tested positive for COVID-19. That employee had recently worked on April 4th and 5th, 2020 in a housing unit which was under cohort quarantine at that time. No infected staff member has been assigned to work in any of the protective cohort facilities.
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Staff and Detainee Education 27. SDC has a long track record of training its staff with respect to potential exposure to pathogens and following appropriate universal precautions. 28. For SDC staff, there is an on-demand recorded COVID-19 briefing from facility administration and medical staff providing information on prevention; sanitization instruction; symptoms of COVID-19 exposure and infection; directions for access to testing and care; and, encouraging employees to stay home if ill. This briefing is updated at least weekly, if not more frequently based upon interim changes in official guidance. 29. In accordance with the CDC Interim Guidelines, educational materials have been posted throughout the facility and in all housing units, regarding COVID-19 symptoms, what to do if you are sick, and steps to be taken to reduce the risk of exposure. Attachment B is a true and correct copy of photographs taken on April 9, 2020 detailing some of those postings in place in detainee areas at SDC. 30. Medical personnel, including Dr. Owusu, and SDC Safety Manager Laboy have conducted multiple town hall meetings in each housing unit to educate detainees on proper sanitation, personal hygiene, sanitation etiquette, prevention practices, and instructions to clean and disinfect individual living areas.
Maintaining Physical Distancing Among the Detainee Population 31. Although it is challenging to maintain six feet of physical distance in a custodial setting, at SDC several practices have been implemented to promote physical distancing. 32. In particular, SDC has taken several steps to ensure that detainees are not in groups larger than ten (10), when outside their housing pod. For example, Attachment C is a
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photograph of posted signs on facility gates instructing detainees to limit numbers when attempting to move to the recreation area.
33. While detainees at SDC typically receive their meals in a large chow hall, SDC is currently using Satellite Feeding in all housing pods. Under the Satellite Feeding program, detainees receive their meal trays and eat them in their housing areas, rather than going to the chow hall, where they would mix with detainees from other housing areas and typically be seated less than six feet from another detainee during the meal periods.
34. All contact-type sports, including soccer and basketball have been removed from the SDC recreation program, to promote social distancing among detainees.
35. Detail crews of detainees participating in the Voluntary Work Program have been eliminated entirely or reduced in size, to limit potential exposure.
36. Because the current facility population is approximately 55% of design capacity, detainees are distanced where possible. In particular, where detainees are housed in a dormitorystyle unit, rather than individual two-person cells, detainees are being spread out, particularly those detainees who are in a protective cohort. Of the protective cohort areas being used for atrisk detainees identified by Dr. Owusu, one is an 89-bed pod, which is being used to house only 23 detainees, and the other is a 66-bed pod which is currently housing only 7 detainees. Use and Issuance of Personal Protective Equipment
37. SDC personnel have long been issued protective gloves, to reduce the risk of exposure to or transmission of any pathogen. The use of masks by staff working outside of the protective and/or cohort areas, are optional. Staff are permitted to bring their own masks, or may request replacement masks.
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38. SDC has ordered additional Personal Protective Equipment, including gloves and appropriate face masks, for use by staff and detainees.
39. Gloves and masks are provided to detainee participants in the Voluntary Work Program who work as pod porters, as well as those working details in other parts of the facility where the physical plant design prevents effective social distancing. If any detainee or staff is working in any area which has been under cohort, they are also provided with protective gowns and face coverings, in accordance with CDC guidelines.
40. Gloves and masks are also provided to certain other categories detainees at SDC, based upon direction from ICE, such as detainees who are being transported outside of the facility.
41. SDC’s current plan is to issue a mask to every detainee at the facility, upon receipt of masks in sufficient quantity, those have not yet been received. During the interim, SDC facility staff have not been instructed to tell detainees that they cannot use unaltered towels or items of clothing as a face mask. However, detainees are not permitted to alter or destroy facility materials to fashion their own masks, and must uncover their face at appropriate times, so that staff may confirm and verify the detainee’s identity.
Enhanced Sanitation Practices 42. SDC has recently undertaken enhanced practices to promote sanitation throughout the facility. 43. In recognition of the potential future shortage of sanitation supplies, SDC increased its inventory of cleaning chemicals and supplies. That inventory is checked and restocked daily, to maintain a sufficient supply on hand, particularly if additional shortages occur in the public market.
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44. SDC’s facility housekeeping plan was reviewed, updated and enhanced to comply with the CDC Interim Guidelines. In particular instructions were included pertaining to the safe and recommend use of antiviral cleaning agents, as well as appropriate use of Personal Protective Equipment in areas where the COVID-19 virus may be present.
45. Hand sanitizer units have been installed in all units and throughout SDC. 46. Sanitary wipes have been made available in all units and throughout SDC, and are available to detainees. During town hall meetings, detainees have been instructed how to safely sanitize common area surfaces they may come into contact with during the day—such as detainee telephones and kiosks—before and after use. 47. Detainees are permitted access to facility-approved chemicals, soap, and hand sanitizer for personal hygiene and to clean their immediate living areas. Such access is available 24-hours a day, seven days a week. 48. Pump dispensers for HDQ Neutral, a multi-purpose disinfecting antibiotic and antiviral cleaning solution, have been installed in SDC areas for use by individual detainees as well as Voluntary Work Program participants. 49. Sani-T-10 has been procured and issued to the kitchen for sanitation of areas where food contact may occur. 50. SDC continues its practice of issuing hygiene products to detainees twice a week. Issued hygiene products include soap, toothpaste, shampoo, lotion and toilet paper. While soap is now available 24/7, if any detainee has a need for any of the other items between distributions, they may receive a replacement from facility staff by exchanging their empty shampoo bottle, toothpaste tube, toilet paper roll, etc. for a full replacement. That one-for-one exchange serves to
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prevent the stockpiling by detainees of materials which can be used in larger quantities to create safety and security risks to staff and other detainees.
51. Facility vehicles used at SDC are also subject to enhanced cleaning and disinfecting procedures, with recommended antiviral cleaning agents before and after each transport. While certain detainees at SDC have asked for bleach to be made available to them 24/7, due to safety and security risks, it is not being provided for general population use. Detainee pod porters, who have been trained in the proper and safe use of bleach, are instructed and supervised in its use it to clean showers and other appropriate areas of each housing unit.
Access to Detainee Health Care and Plans in the Event of Detainee Infection 52. Since CoreCivic employees have begun providing health care services at SDC, detainees requesting medical assistance submit a sick call request in the secure box in their housing unit. Medical staff collect those requests once each day, triage them, and schedule the detainee for follow-up care. 53. If a detainee believes that he is experiencing an urgent or medical condition, which cannot await the sick call process, the detainee should notify their the CoreCivic Detention Officer stationed in that area, who will notify the nursing staff of the medical problem, and nursing will respond appropriately. Trained staff is available to administer emergency first aid and life saving techniques. If after normal provider hours at the facility, providers are available on an on-call basis at all times. 54. If a detainee returns from an outside medical appointment, including from any hospital, they are given the same health screening as all new detainee intakes. In particular any detainee who is returning to SDC from an outside hospital visit, is also assessed by a medical
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provider who reviews their medical status and will determine medically appropriate actions for care and housing, prior to the detainee returning to their assigned housing local.
55. If a staff member observes and suspects that any detainee at SDC may be symptomatic of potential COVID-19 infection, staff immediately refers those detainees to medical for screening. Any detainee who exhibits such symptoms, including a fever is isolated in the medical area pending the results of any provider reported testing.
56. At the time a detainee is referred to medical and subject to testing, the original housing unit is placed on cohort status, pending results of the testing for the suspected detainee. Detainees in such cohorted housing units are restricted to their units and subject to daily medical monitoring for fever and symptoms of respiratory illness. Any that show signs of fever and/or respiratory illness will be referred to medical. Cohorting will be discontinued following a 14day period with no new cases, following the last positive test result.
57. As of April 8, 2020, there were no positive COVID-19 test results, although results were pending for 8 detainees.
58. On April 9, 2020, SDC received results that five detainees had tested positive for COVID-19. Each unit where those detainees resided had previously been put on cohort status, and the detainee transferred to medical. None of those detainees had been present in the protective cohort area for at-risk detainees identified by Dr. Owusu.
59. SDC has developed and is constantly reviewing its contingency plans for confirmed or presumptive COVID-19 positive detainees.
60. SDC has highly security-sensitive and confidential emergency plans for a Medical Emergency (including specifically COVID-19) and Pandemic Flu Preparedness, as part of its Emergency Response Policy. The disclosure of the specific details of those plans poses an
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unreasonable safety and security risk should they be communicated to the detainee population or any member of the public.
61. SDC conducts quarterly and annual Emergency Response training exercises for staff regarding, which include both function and full-scale exercises.
62. SDC has capacity to effectively quarantine and medically isolate any detainee who is confirmed, presumed, or suspected positive for COVID-19. There are the four negative air pressure cells located in the SDC medical unit, which would be the first use for any confirmed or presumed positive detainee. The SDC medical unit has three additional observation cells. SDC has four additional observation cells in other areas of the facility, where detainees can be medically isolated from the detainee population and most facility staff, while still receiving appropriate medical care.
63. Should additional space be needed, SDC has the ability to clear detainees from a housing area, and dedicate that housing area as a cohort or quarantine to limit the potential for exposure to other detainees or staff.
64. In the exceptional event that the number of cases of COVID-19 reach levels beyond those, CoreCivic can provide additional support, supplies or personnel to SDC, and also make additional unutilized bed space at other CoreCivic facilities available on short notice.
65. Should a detainee require higher levels of care or monitoring than SDC can provide, SDC has agreements with hospital facilities in Cuthbert, Columbus, and Albany where detainees can be transferred to receive higher levels of care or monitoring.
RESPONSE TO ADDITIONAL ALLEGATIONS 66. I understand that several other allegations relating to SDC have been asserted in the Declarations supporting Petitioners’ Motion for Temporary Restraining Order. While
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sufficient detail was not provided to investigate each one in this short time period, I do provide the following responses.
67. There was no death of a detainee at SDC on April 6, 2020 from complication of COVID-19.
68. On April 6, 2020, three detainees were transported for outside medical evaluation. None of these were for COVID-19 symptoms. Once detainee was transported due to abdominal pains and was treated by an outside provider for reflux. A second detainee was diagnosed with anxiety. A third detainee who complained of chest pains and shortness of breath, was diagnosed as being asthmatic.
69. There was a recent use of force incident involving OC on Unit 4 in the hallway. No detainee in any of the housing pods was directly exposed to OC spray. In accordance with SDC practice, exhaust fans are used to ventilate any area where OC spray is used and the area is decontaminated to remove any trace of over-spray from areas where it may be used.
70. While detainee Aristoteles Sanchez Martinez does use a wheelchair, I have personally watched video of him self-propelling his wheelchair across the dayroom in the protective cohort housing area where he has been housed at SDC since March 30th, without any apparent difficulty.
71. As SDC Detainees “Michael Robinson” and “Peter Owusu” are proceeding under a pseudonym, I do not know their identify and cannot comment on other specific individual allegations, such as “Peter Owusu”’s claim that he was denied access to his CPAP machine, or “Michael Robinson”’s claim that he has not received his medical records or was personally exposed to OC spray.
I declare under the penalty of perjury that the foregoing is true and correct.
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ATTACHMENT A
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IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF GEORGIA
ARISTOTELES SANCHEZ MARTINEZ, et al., Petitioners/Plaintiffs, No. 7:20-CV-00062-CDL-MSH
v. MICHAEL DONAHUE, et al.,
Respondents/Defendants.
THIRD DECLARATION OF RUSSELL WASHBURN I, Russell Washburn, hereby state the following based upon my personal knowledge, make the following Second Declaration: 1. I am over the age of 18 years and competent to testify to the matters set forth in this Declaration. 2. I have personal knowledge of the facts set forth in this Declaration, and if called as a witness, could competently testify to these facts. 3. I have been employed by CoreCivic, Inc. since 1996. For the past 12 years, I have held the position of Warden at several CoreCivic facilities. 4. Effective April 1, 2020, I became Warden of the Stewart Detention Center (“SDC”), in Lumpkin, GA. SDC is owned and operated by CoreCivic, Inc. CoreCivic is the service provider for an Intergovernmental Service Agreement between Stewart County, Georgia and U.S. Immigration and Customs Enforcement. 5. All of the COVID-19 protocols and practices that were described in my April 10, 2020 Declaration, and about which I provided testimony to the Court on April 10, 2020 are still

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in place at the Stewart Detention Center, and have been supplemented by additional protocols and practices described here.
6. While SDC has current capacity of 2,040 ICE detainees, on May 5, 2020, the facility was operating at approximately 53% of that capacity, with only 1,088 ICE detainees present at the facility.
7. As of May 5, 2020, only twelve detainees at Stewart Detention Center have tested positive for COVID-19. Of those, eight have fully recovered, and been cleared by medical to return to general population. Three detainees have returned from an outside hospital, and are continuing their recovery in the facility medical isolation area. One ICE detainee remains hospitalized for COVID-19. The most recent positive detainee test result was on April 30, 2020.
8. As of May 5, 2020, 44 Stewart Detention Center employees have tested positive for COVID-19. 15 of them have fully recovered, and been cleared to return to work. Most of those who are positive, are expected to have fully recovered and be cleared to return to work by the end of this week. The most recent positive employee test result was on April 29, 2020.
9. Two pods, 2B and 4C, are “protective cohort” areas to house the most medically vulnerable detainees in an environment to limit potential exposure to COVID-19 infection. While 67 detainees were originally slated for movement into those units, following ongoing release decisions by ICE, those units currently house a total of 4 and 20 detainees1, respectively, based upon custody level. Pod 2B has a capacity of 66 beds, and is currently at approximately 6% occupancy. Pod 4C has a capacity of 88 beds, and is currently at less than 23% capacity. No
1 This corrects an error in my Second Declaration which inadvertently switched the reported population of the two units.
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detainee assigned to the protective cohort areas in pods 2B or 4C has tested positive for COVID19.
10. When detainees at SDC appear symptomatic, they were moved to medical isolation pending COVID-19, and their housing area was placed on cohort/quarantine status, to reduce the possibility for cross-pod infection of other detainees. Medical personnel have been approving the release of a unit from cohort/quarantine status after a fourteen consecutive day period of no additional symptomatic detainees.
11. Effective April 30, 2020 Stewart medical providers authorized the release of all housing areas, except the protective cohort areas, off of cohort/quarantine status.
12. ICE stopped sending new detainees to the facility approximately 3 weeks ago. While no new detainees have been admitted to Stewart, detainees continue to be transported out of the facility.
13. On the evening of May 4, 2020, three detainees who were not symptomatic and had been cleared by medical for transfer to the Alexandria Staging Facility, were returned to Stewart Detention Center due purportedly positive rapid COVID-19 test results. I am personally aware of significant inaccuracies involving both false positives and false negatives with the use of these tests, and requested that much more accurate nasal-swab COVID-19 tests be administered upon their return to Stewart. These detainees have been medically isolated at Stewart pending results of their tests, and the three housing units where were housed prior to transport, have returned to cohort/quarantine status pending the results of those tests.
14. Medical personnel report that they have also seen a significant decline in the number of detainees reporting to sick call with symptoms of COVID-19.
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15. Effective April 10, 2020, I issued a directive making it mandatory for all detainees and Stewart personnel to wear protective masks. Masks have been issued to detainees on several occasions, and are also available for replacement upon request of any unit personnel.
16. Additional practices have changed at Stewart Detention Center to promote social distancing. For example, in accordance with CDC guidelines, detainees assigned to bunk-beds have been instructed to lay in a “criss-cross” fashion, with one detainees head at one end of the bunk, and the other detainees head at the other end of the bunk, to create more distance should a detainee sneeze or cough. Additionally, detainee housing assignments have been adjusted to place as much physical space as possible between detainees, considering other factors relating to security level and other medical and mental health needs.
17. Staff are directed to remind detainees to practice social distancing practices in the dayroom and recreation areas. While Stewart Detention Center is required to follow the ICE Disciplinary Policy set forth in the current Performance Based National Detention Standards, I am not aware of any detainee receiving a disciplinary report for violating social distancing guidelines.
18. As housing units have come off of cohort/quarantine status, movement practices in the facility have been altered to promote social distancing. For example, movement of detainees through doors and sally ports is controlled by staff to ensure that detainees do not move through those narrow points in groups, but wait until the previous detainee has cleared the area by at least six feet.
19. Detainees who live in a pod which is on cohort/quarantine status, including those in the protective cohort pods, are not permitted to work in any off-unit Voluntary Work Program position, including in the kitchen. For a brief time while all meals were prepared by CoreCivic
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security staff working in conjunction with Trinity food serve staff, and served on Styrofoam trays delivered to the unit, I heard reports from detainees that the presentation of food served, was not as good as the meals served fresh off the line in the chow hall.
20. Since pods housing the detainee kitchen workers at Stewart, who are housed in the same unit, have come off cohort/quarantine status, detainees have begun returning to the kitchen to prepare meals. Before arriving to the kitchen, each detainee kitchen worker is provided a new mask.
21. Beginning on April 27, 2020, as detainee housing units came off of cohort/quarantine status, the chow hall has been used. Tape stripes has been placed on the floor to promote social distancing between detainees waiting in line to receive their meals. Detainees are to sit no more than two to a table. Further, meals are staggered, to keep housing units together and separate during meals, so that potential exposure between housing units do not occur if another detainee has COVID-19. The Stewart Detention Center chow hall has two clusters of tables separated by approximately ten feet of space, and detainees from different housing units are seated so as not to intermix with detainees from other units.
22. Upon arriving at the chow hall, detainees are required to use hand sanitizer before entering the chow hall, and again upon leaving. Detainees are permitted to remove their masks only to eat in the chow halls. Once detainees finish their meal, the tables, stools, and other hard surfaces where detainee contact is likely are cleaned and sanitized.
23. Hand sanitizing stations are also located near the door to each of the housing pods at Stewart Detention Center, and detainees are permitted to use hand sanitizer before entering and existing their housing area.
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24. Additional cleaning and sanitation is also occurring at Stewart. While not normally used widely in a secure detention setting, due to security and safety risks, all housing units and common facility areas are cleaned with a bleach solution every other day.
25. On May 4, 2020, with assistance from the Georgia Department of Corrections and National Guard, Stewart was given a deep floor-to-ceiling sanitization in all areas of the facility, except for food and medication storage areas. Staff and detainees have been advised ahead of time, were universally receptive to that cleaning being done, and were removed from the areas to other spaces in the recreation yard, hallways, or empty housing areas, while the cleaning occurred.
26. In addition, ICE personnel at Stewart have discontinued going into multiple housing areas on a daily basis to speak with detainees. When they desire to speak to a detainee, a CoreCivic staff member escorts the detainee to a telephone where they can speak with the ICE employee.
27. In accordance with ICE guidelines, all social visits, tours, contract inspections, and in-person visits by religious volunteers have been suspended. In addition, limitations have been placed on the number of Legal Orientation Program (“LOP”) participants at the facility, and non-LOP legal rights group presentations offered by volunteers have been suspended until further notice, to protect the health and welfare of detainees and facility personnel.
28. While the current trend of downward COVID-19 cases gives us encouragement that we are making strong movement in the right direction, with respect to this pandemic, I am deeply concerned that any change would put the facility back at a positive risk for heightened COVID-19 infections. In particular, any inspection of the facility which involves outside parties (particularly anyone who utilizes air travel to get to Lumpkin, Georgia), entering multiple
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 Case 1:18-cv-00760-CKK-RMM Document 113 Filed 05/18/20 Page 1 of 30

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SOUTHERN POVERTY LAW CENTER, Plaintiff,
v. U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants.

Civil Action No. 18-0760 (CKK)

PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR A TEMPORARY RESTRAINING ORDER

Shalini Goel Agarwal (Fla. Bar No. 90843) Southern Poverty Law Center 106 East College Avenue, Suite 1010 Tallahassee, Florida 32302 Tel: (850) 521-3024
Lisa Graybill (Tx. Bar No. 24054454) Jared Davidson (La. Bar No. 37093) Conor Gaffney (La. Bar No. 38225) Southern Poverty Law Center 201 St. Charles Avenue, Suite 2000 New Orleans, LA 70170 (504) 486-8982

William E. Dorris (Ga. Bar No. 225987) Susan W. Pangborn (Ga Bar. No. 735027) Jeffrey Fisher (Ga. Bar No. 981575) Kilpatrick Townsend & Stockton LLP 1100 Peachtree Street NE, Suite 2800 Atlanta, GA 30309 (404) 815-6104
John T. Bergin (DC Bar No. 448975) Kilpatrick Townsend & Stockton LLP 607 14th Street NW, Suite 900 Washington, DC 20005 (202) 481-9942

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TABLE OF CONTENTS INTRODUCTION....................................................................................................................1 ARGUMENT ...........................................................................................................................2 I. SPLC Has Third-Party Standing to Assert Its Clients’ Constitutional Rights. ...................2 II. This Court Maintains Subject-Matter Jurisdiction to Adjudicate and Remediate
Plaintiff’s Claims that Conditions in the Facilities Violate the Constitution. ....................7 A. The Supreme Court Has Made Clear that Section 1252 Does Not Apply
to Claims Alleging Unconstitutional Conditions of Confinement. ........................8 B. The District Court’s Decision in NIPNLG is Distinguishable and Non-
Binding. ........................................................................................................... 10 C. The Constitutional Avoidance Doctrine Dictates that Section 1252 Not
Be Construed to Deprive this Court of Jurisdiction to Adjudicate Plaintiff’s Claims. ............................................................................................12 III. SPLC Is Likely to Succeed on the Merits of Its Access-To-Counsel Claim ....................13 A. Defendants Mischaracterize the Nature of Plaintiff’s Access-to-Counsel Claim and Misapply the Standard for Reviewing a Constitutional Violat ion.......................................................................................................... 13 B. The Evidence Shows that the Totality of Conditions in the Facilities Unreasonably Impede Adequate and Reliable Access to Counsel. ......................15 C. Defendants’ Other Arguments Are Meritless. ....................................................19 IV. SPLC Is Likely to Succeed on the Merits of the Substantive Due Process Claim............20 V. SPLC’s Requests for Relief are Appropriate and Narrowly Tailored .............................21 CONCLUSION ...................................................................................................................... 24
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TABLE OF AUTHORITIES
Cas e s Aid for Women v. Foulston,
441 F.3d 1101 (10th Cir. 2006) ............................................................................................ 6 AILA v. Reno,
199 F.3d 1352 (D.C. Cir. 2000) ............................................................................................ 5 Al Odah v. United States,
346 F. Supp. 2d 1 (D.D.C. 2004) .......................................................................................... 7 ANA Int'l, Inc. v. Way,
393 F.3d 886 (9th Cir. 2004) ...............................................................................................12 Arroyo v. DHS,
No. SACV 19-815 JGB (SHKx), 2019 WL 2912848 (C.D. Cal. June 20, 2019) ..................... 9 Banks v. Booth,
No. 1:20-CV-849, 2020 WL 1914896 (D.D.C. Apr. 19, 2020) .................................. 10, 20, 21 Benjamin v. Fraser,
264 F.3d 175 (2d Cir. 2001) ................................................................................................14 Biwot v. Gonzales,
403 F.3d 1094 (9th Cir. 2005) .............................................................................................13 Calcano-Martinez v. I.N.S.,
533 U.S. 348 (2001)............................................................................................................12 Camreta v. Greene,
563 U.S. 692 (2011)...........................................................................................................12 Caplin & Drysdale, Chartered v. United States,
491 U.S. 617 (1989)..........................................................................................................4, 5 Comm. on Oversight & Gov't Reform, United States House of Representatives v. Sessions ,
344 F. Supp. 3d 1 (D.D.C. 2018) .........................................................................................12 Dakane v. U.S. Attorney General,
399 F.3d 1269 (11th Cir. 2005) ............................................................................................ 5 Eisenstadt v. Baird,
405 U.S. 438 (1972)............................................................................................................. 2
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Exodus Refugee Immigration, Inc. v. Pence, 165 F. Supp. 3d 718 (S.D. Ind. 2016).................................................................................5, 6
Farmer v. Brennan, 511 U.S. 825 (1994)............................................................................................................19
Guild v. Securus Techs., Inc., No. 1:14-CV-366-LY, 2015 WL 10818584 (W.D. Tex. Feb. 4, 2015) .................................... 4
Haitian Refugee Ctr. v. Baker, 789 F. Supp. 1552 (S.D. Fla. 1991)....................................................................................... 3
Haitian Refugee Ctr. v. Gracey, 809 F.2d 794 (D.C. Cir. 1987) .............................................................................................. 2
Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982)..........................................................................................................2, 7
Holiday CVS, L.L.C. v. Holder, 839 F. Supp. 2d 145 (D.D.C. 2012) .....................................................................................19
I.N.S. v. St. Cyr, 533 U.S. 289 (2001)............................................................................................................12
Innovation Law Lab v. Nielsen, 342 F. Supp. 3d 1067 (D. Or. 2018)...................................................................................... 9
J.E.F.M. v. Lynch, 837 F.3d 1026 (9th Cir. 2016) ..................................................................................... 8, 9, 11
Jennings v. Rodriguez, 138 S.Ct. 830 (2018) ....................................................................................................passim
Kowalski v. Tesmer, 543 U.S. 125 (2004)..........................................................................................................4, 5
Lara-Torres v. Ashcroft, 383 F.3d 968 (9th Cir. 2004) ...............................................................................................14
Lepelletier v. FDIC, 164 F.3d 37 (D.C. Cir. 1999)................................................................................................ 5
Louis v. Meissner, 530 F. Supp. 924 (S.D. Fla. 1981) .......................................................................................15
Meixing Ren v. Phoenix Satellite Television, Inc., No. 13-cv-1110, 2014 WL 12792707 (D.D.C. 2014) ............................................................20
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Nasir v. Morgan, 350 F.3d 366 (3d Cir. 2003) ................................................................................................. 4
National Immigration Project of the National Lawyers Guild v. EOIR, No. 1:20-cv-00852, 2020 WL 2026971 (D.D.C. Apr. 28, 2020) ................................ 10, 11, 12
Nunez v. Boldin, 537 F. Supp. 578 (S.D. Tex. 1982) ......................................................................................15
Orantes-Hernandez v. Thornburgh, 919 F.2d 549 (9th Cir. 1990) ...............................................................................................15
P.L. v. ICE, 1:19-cv-01336, 2019 WL 2568648 (S.D.N.Y. June 21, 2019) ...........................................9, 10
Penn. Psychiatric Soc’y v. Green Spring Health Servs., Inc., 280 F.3d 278 (3d Cir. 2002) ................................................................................................. 6
PETA v. USDA, 797 F.3d 1087 (D.C. Cir. 2015) .........................................................................................4, 7
Powers v. Ohio, 499 U.S. 400 (1991)......................................................................................................2, 4, 6
Procunier v. Martinez, 416 U.S. 396 (1974)............................................................................................................15
Reese Bros., Inc. v. U.S. Postal Serv., 531 F. Supp. 2d 64 (D.D.C. 2008) ........................................................................................ 4
Schneider v. Kissinger, 412 F.3d 190 (D.C. Cir. 2005) .............................................................................................20
Singleton v. Wulff, 428 U.S. 106 (1976)............................................................................................................. 6
Torres v. DHS, 411 F. Supp.3d 1036 (C.D. Cal. 2019) ....................................................................... 9, 10, 20
Torres v. U.S. Dep’t of Homeland Sec., No. 5:18-CV-2604 (C.D. Cal. Apr. 11, 2010).......................................................................21
Ukrainian-Am. Bar Ass’n v. Baker, 893 F.2d 1374 (D.C. Cir. 1990) ............................................................................................ 2
Webster v. Doe, 486 U.S. 592 (1988)......................................................................................................12, 13
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Case 1:18-cv-00760-CKK-RMM Document 113 Filed 05/18/20 Page 6 of 30 Statute s 8 U.S.C. § 1252 ...............................................................................................................passim 8 U.S.C. 1252(a)(5) ................................................................................................................. 8 8 U.S.C. 1252(b)(9) ................................................................................................................. 8 8 U.S.C. 1252(f)(1).................................................................................................................. 8 Rules & Regulations Fed. R. Civ. P. 26(a)(1)(A)......................................................................................................18
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INTRODUCTION Never in the history of this country’s modern immigration detention system have detained immigrants more urgently needed access to their lawyers. Nearly 1,000 detained immigrants are known to be infected with COVID-19—nearly 50 percent of those tested—and that number is indisputably much higher given that Defendants have tested a mere 7% of people in its custody. See ICE Guidance on COVID-19, http://ice.gov/coronavirus (last visited May 17, 2020 7:36pm EST). To avoid the perils of this deadly disease, detained immigrants need adequate and reliable access to their lawyers in order to obtain release on bond, parole and habeas, to advocate for better conditions, and to defend them at the merits stage of their ongoing removal proceedings. Defendants do not contest that access to counsel is necessary during these dangerous circumstances nor do Defendants follow this Court’s clear instruction1 to identify which measures it agrees should reasonably be implemented to facilitate access. Instead, Defendants invoke—over two years after this case was filed—unsupportable standing and jurisdictional arguments in an effort to forever close the courthouse doors to SPLC and its clients. As set forth below, these procedural arguments ignore controlling Supreme Court precedents and, if accepted, would deprive detained immigrants of any forum whatsoever to remediate unconstitutional conditions of confinement that impede access to counsel. Defendants’ arguments on the merits fare no better. Defendants fundamentally mischaracterize the nature of Plaintiff’s access-to-counsel claim and, in so doing, respond to a different claim altogether. And Defendants not only fail to respond to respond to Plaintiff’s substantive due process claim (conceding the claim for purposes of the TRO) but also submit evidence that further supports that claim. Plaintiff’s motion for temporary restraining order therefore should be granted.
1 See Transcript of May 12, 2020 Hearing (“Transcript”) at 22:1-5.
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ARGUMENT I. SPLC Has Third-Party Standing to Assert Its Clients’ Constitutional Rights.
SPLC has third-party standing to assert violations of its clients’ Fifth Amendment rights, as it satisfies the three requirements: (1) “injury in fact,”; (2) “a close relation to the third party”; and (3) “some hindrance to the third party’s ability to protect his or her own interests.” Powers v. Ohio, 499 U.S. 400, 411 (1991); Eisenstadt v. Baird, 405 U.S. 438, 444-46 (1972).
First, SPLC has suffered an injury because Defendants’ conduct has frustrated its organizational mission and forced it to divert its resources. Legal services organizations suffer an “injury in fact” where defendants’ conduct has “thwarted” their “organizational purpose.” See Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 799 (D.C. Cir. 1987) (holding legal services organization had suffered injury sufficient for standing where it alleged that its mission to provide legal representation to refugees had been thwarted); Ukrainian-Am. Bar Ass’n v. Baker, 893 F.2d 1374, 1378 (D.C. Cir. 1990). Likewise, where a defendant’s conduct has impaired an organization’s ability to provide services and thereby caused a drain on its resources, “there can be no question that the organization has suffered the requisite injury in fact.” Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982).
Here, Defendants’ obstructive conduct has injured SPLC by thwarting its institutional purpose of “provid[ing] desperately needed legal representation to indigent immigrants detained in remote locations in the Southeast,” “seeking clients’ release from ICE custody,” and pursuing “advocacy regarding the conditions of confinement” in immigration detention. Second Am. Compl. (“SAC”), ECF No. 70, at ¶ 15, 97; Rivera Decl. ¶ 2, ECF No. 105-7; Williams Decl. ¶ 1, ECF No. 105-8. With the onset of the pandemic, SPLC is especially focused on release of its clients from custody, as continued detention in the Facilities greatly magnifies its clients’ risk of exposure to COVID-19. Venters Decl. ¶¶ 7, 9-13, ECF No. 105-5. SPLC represents clients
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desperately seeking release through bond, parole, or petitions for habeas, in addition to representing clients at their merits hearings and conducting conditions advocacy. Rivera Decl. ¶¶ 2, 4, 13; Williams Decl. ¶ 4-7. Defendants’ failure to ensure that SPLC and its clients can reliably, timely, and effectively conduct remote legal visits and can timely exchange confidential documents, particularly during the pandemic, has frustrated SPLC’s ability to fulfill its mission by limiting its ability to represent clients and secure their release. For these reasons alone, SPLC has suffered an “injury in fact.” Haitian Refugee Ctr. v. Bak er, 789 F. Supp. 1552, 1558-60 (S.D. Fla. 1991) (holding that legal services organization had suffered injury due to Defendants’ “denial of access to [a] particular group of [ ] refugees” and the organization’s “corresponding inability to fulfill its organizational mandate”).
Defendants’ obstructive conduct has also injured SPLC by forcing it to divert institutional resources from its core mission. Even before COVID-19, chronic delays and limitations on inperson visits, VTC and phone calls, and mail at the Facilities frustrated SPLC’s ability to zealously represent its clients. Rivera Decl. ¶ 6. The pandemic has only exacerbated these injuries. Rivera Decl. ¶ 60. SPLC staff must spend unnecessary and inordinate time scheduling and rescheduling remote legal visits at the Facilities because of delays, id. ¶ 27, 38-41, arbitrary cancellations, id. ¶ 25, and poor connectivity, id. ¶ 43. See also Williams Decl. ¶¶ 18-21 (documenting delays in scheduling, failure to set up remote legal calls, and an active attempt to frustrate legal calls). Time wasted on scheduling and visits where SPLC attorneys cannot effectively communicate with clients is time that the attorneys cannot do other necessary legal work. See Rivera Second Supp. Dec at ¶ 14. Had SPLC not had to endure these delays and cancellations and conduct follow-up visits to compensate, it could have represented additional people in detention and engaged in other advocacy. Id.; Williams Decl. ¶ 19 (noting SPLC’s inability to represent retained client at Irwin as
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plaintiff in habeas case because of Defendants’ failure to ensure scheduling of remote legal visits). Under these circumstances, the injury requirement for standing is easily met. See PETA v. USDA, 797 F.3d 1087, 1093-96 (D.C. Cir. 2015) (holding that organization had suffered injury sufficient to satisfy standing where it had diverted resources in response to challenged conduct); Guild v. Securus Techs., Inc., No. 1:14-CV-366-LY, 2015 WL 10818584, *4-5 (W.D. Tex. Feb. 4, 2015) (holding that plaintiffs alleged sufficient injury where defendants’ conduct of recording attorneyclient jail calls compelled attorneys to travel to jail and conduct in-person visits to protect the confidentiality of communications with their clients).
Second, SPLC’s interests are sufficiently aligned with those of its detained clients to satisfy the “close relationship” requirement for third-party standing. Such a relationship must “allow the third-party plaintiff to operate fully, or very nearly, as effective a proponent of the potential plaintiff’s rights as would the plaintiff himself.” Nasir v. Morgan, 350 F.3d 366, 376 (3d Cir. 2003) (internal quotations and citations omitted); see also Reese Bros., Inc. v. U.S. Postal Serv., 531 F. Supp. 2d 64, 67 (D.D.C. 2008) (quoting Powers, 499 U.S. at 411). The attorney-client relationship is sufficient to confer third-party standing. See Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 623 n.3 (1989) (granting third-party standing to attorney seeking to assert rights of existing clients).
There can be no serious dispute that SPLC shares a “close relationship” with its clients detained in the Facilities. Contrary to Defendants’ characterization, Defs.’ Opp’n at 30-31, SPLC asserts third-party standing on behalf of its current clients. As such SPLC’s relationship with its clients is not “hypothetical,” see Kowalski v. Tesmer, 543 U.S. 125, 131 (2004),2 but instead
2 Defendants’ invocation of Kowalski is misplaced, as that case involved two individual attorneys arguing for third-party standing on behalf of all indigent defendants across the state who might seek counsel on appeal. 543 U.S. at 130-31. Here, by contrast, SPLC seeks to represent only its
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indisputably close and of “special consequence,” see Caplin, 491 U.S. at 623 n.3. Nor is there, as
Defendants erroneously suggest, Defs.’ Opp. at 30, any bar to third-party standing on behalf of
detained immigrants, who have a “well established” due process right to counsel.3 Dakane v. U.S.
Attorney General, 399 F.3d 1269, 1273 (11th Cir. 2005). SPLC’s very mission is to protect the
constitutional rights of its existing clients by providing them with ethical and effective
representation and to secure their release. Rivera Decl. ¶ 2; see Exodus Refugee Immigration, Inc.
v. Pence, 165 F. Supp. 3d 718, 732 (S.D. Ind. 2016) (refugee resettlement organization had
sufficiently close relationship with its refugee clients because “its entire purpose and mission is to
resettle refugees escaping dire circumstances”). Accordingly, SPLC and its clients share an
“identity of interests” in ensuring that people imprisoned in the Facilities obtain meaningful access
to counsel, such that SPLC will act as “an effective advocate of [its clients’] interests.” Lepelletier
v. FDIC, 164 F.3d 37, 44 (D.C. Cir. 1999).
Third, SPLC’s detained clients are “hindered” from protecting the interests that SPLC
seeks to vindicate on their behalf. Although Defendants observe that some SPLC clients have filed
own clients. And even if SPLC did seek to represent the interests of potential clients at the Facilities, SPLC has a much closer relationship than the attorneys in Kowalski, insofar as SPLC is dedicated to working with detained immigrants at the four Facilities in this litigation by setting up offices near the detention centers to provide legal services; is on the EOIR referral list for the Facilities; is frequently the only legal organization with a daily presence at the Facilities; and gives limited legal assistance to individuals whom it screens but does not take on as clients. 3 Although Defendants selectively quote AILA v. Reno, 199 F.3d 1352 (D.C. Cir. 2000) to suggest this, the case does not support their suggestion. AILA involved organizational plaintiffs seeking to file suit on behalf all immigrants who would be subject to expedited removal provisions. The court concluded that AILA, which—unlike SPLC—did not represent individual immigrants at particular facilities and did not raise access to counsel claims, did not have third party standing “on behalf of aliens subjected to expedited removal system” to represent all immigrants who have tried or will try to enter the country. 199 F.3d at 1359, 1364. Moreover, AILA affirmatively supports SPLC’s standing on behalf of its clients, as it observes that the Supreme Court has recognized third party standing where “the right being asserted . . . was a right protecting the [third party’s] access to [the litigant].” Id. at 1361 (in the context of doctors asserting Roe v. Wade right on behalf of patients). That is precisely the situation here, as SPLC asserts its clients’ due process rights of access to their attorneys.
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petitions for habeas relief, Defs.’ Opp’n at 31, the hindrance requirement “does not require an absolute bar” or “insurmountable barriers,” but only “‘some hindrance to the third party’s ability to protect his or her own interests.’” Penn. Psychiatric Soc’y v. Green Spring Health Servs., Inc., 280 F.3d 278, 290 (3d Cir. 2002) (quoting Powers, 499 U.S. at 411 (emphasis added)); accord Singleton v. Wulff, 428 U.S. 106, 117-18 (1976). The hindrance requirement “presents a relatively low threshold.” Exodus Refugee Immigration, Inc., 165 F. Supp. 3d at 732. Various obstacles may warrant third-party standing, such as “imminent mootness,” or where the nature of the constitutional right at stake presents inherent obstacles for the right holder to assert the right. See, e.g., Singleton, 428 U.S. at 117; Aid for Women v. Foulston, 441 F.3d 1101, 1114 (10th Cir. 2006).
Here, the barriers preventing SPLC’s clients from protecting their own rights are legion. First, as in Singleton, where women were hindered from protecting their rights to privacy because filing suit would vitiate that very privacy, 428 U.S. at 117, SPLC’s clients are substantially hindered from protecting their interests because filing suit on their own behalf would have the perverse effect of impairing those very interests. Specifically, SPLC’s clients need to have their rights to access counsel vindicated so that they can have meaningful access to and communication with their lawyers to secure release from detention and in their removal proceedings. But if SPLC clients filed a civil lawsuit to vindicate those rights, the necessary attorney-client communications necessary would hinder them from preparing for bond proceedings, parole requests, potential habeas claims, and removal proceedings. Every hour of a remote legal visit using the Facilities’ limited phone and VTC stations to discuss the access to counsel suit would be an hour the clients could not spend speaking with their attorneys about release options or their removal cases. In this way, the very nature of the constitutional injury at stake—deprivation of access to counsel—
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hinders the ability of SPLC’s clients to vindicate their rights. See Aid for Women, 441 F.3d at 1114.
Moreover, most of SPLC’s clients do not speak fluent English, have limited knowledge of the U.S. legal system, and have no access to legal resources but for those provided by SPLC, see SAC ¶ 19. SPLC’s clients therefore would be severely—if not entirely—hampered from protecting their own constitutional interests. See Al Odah v. United States, 346 F. Supp. 2d 1, 8 (D.D.C. 2004) (Kollar-Kotelly, J.) (recognizing “it is simply impossible to expect [Guantanamo detainees] to grapple with the complexities of a foreign legal system and present their claims to this Court without legal representation”). The imminent mootness of SPLC’s clients’ claims likewise constitutes a substantial hindrance. By the time SPLC’s clients could go through the lengthy process of litigating their constitutional claims in federal court, their removal cases would almost certainly be complete.
For these reasons, there can be no serious dispute that SPLC maintains third-party standing to assert its clients’ rights in this litigation.4
II. This Court Maintains Subject-Matter Jurisdiction to Adjudicate and Remediate Plaintiff’s Claims that Conditions in the Facilities Violate the Constitution. More than two years after this case was filed, Defendants now erroneously argue that 8
U.S.C. § 1252 divests federal district courts of any jurisdiction to adjudicate and remediate Plaintiff’s constitutional claims regarding conditions of confinement inside ICE prisons. Defendants’ argument not only ignores Supreme Court precedent to the contrary but also—if 4 Defendants’ restrictions on remote and in-person legal visitation, mail, and the exchange of confidential documents also constitute a sufficient injury to SPLC to assert organizational standing in its own right as to the denial of Fifth Amendment rights and infringement on attorney-client communications. See PETA, 797 F. 3d at 1094 (requiring “a concrete and demonstrable injury to an organization’s activities—with the consequent drain on the organization’s resources”) (citing Havens, 455 U.S. at 379). The Court, however, need not decide whether SPLC has organizational standing because SPLC clearly has third-party standing for the reasons set forth above.
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accepted—would deprive people in ICE prisons of any forum whatsoever in which to seek injunctive relief to remediate unconstitutional detention conditions.
A. The Supreme Court Has Made Clear that Section 1252 Does Not Apply to Claims Alleging Unconstitutional Conditions of Confinement.
Defendants’ argument that Sections 1252(a)(5), (b)(9), and (f)(1) divest this Court of jurisdiction over Plaintiff’s constitutional conditions claim is insupportably overbroad and ignores—and fails to cite—dispositive language from Jennings v. Rodriguez, 138 S.Ct. 830, 840 (2018) that expressly carves out detention conditions claims, such as those here, from the jurisdictional bar.
Section 1252 channels review of claims arising from an immigrant’s removal proceedings through an administrative process. “[A] petition for review filed with an appropriate court of appeals . . . shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter, . . . ,” 8 U.S.C. 1252(a)(5), and “judicial review of all questions of law and fact . . . arising from any action taken or any proceeding brought to remove an alien from the United States . . . shall be available only in judicial review of a final order,” id. 1252(b)(9). But Section 1252 does not apply to “claims that are independent of or collateral to the removal process.” J.E.F.M. v. Lynch, 837 F.3d 1026, 1032 (9th Cir. 2016); accord Jennings, 138 S.Ct. at 841 (Section 1252 covers only challenges to a removal order, the decision to detain an immigrant, or the process by which an immigrant’s removability will be decided). Defendants’ brief altogether ignores Justice Alito’s conclusion in Jennings that detained noncitizens’ claims challenging “conditions of confinement” are not subject to Section 1252 because it would be “absurd” to “cram[] judicial review” of such claims into review of a final order of removal. 138 S. Ct. at 840. As Justice Alito observed, such an expansive reading of Section 1252 would render detained immigrants’ conditions-of-confinement claims “effectively
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unreviewable,” because immigration judges have no authority to issue injunctions ordering ICE to remediate unconstitutional conditions. Id. at 840.
Following Jennings, courts have recognized that Section 1252 does not divest district courts of jurisdiction to adjudicate and remediate claims of unconstitutional conditions of confinement in ICE facilities, including access-to-counsel and substantive due process claims. See, e.g., Torres v. DHS, 411 F. Supp.3d 1036, 1047-50 (C.D. Cal. 2019) (holding Section 1252 did not bar court from issuing an injunction to remediate conditions in ICE facility that impeded access to counsel and that were unconstitutionally excessive and punitive); Innovation Law Lab v. Nielsen, 342 F. Supp. 3d 1067, 1075-78 (D. Or. 2018) (holding Section 1252 did not bar access-to-counsel claim by people in ICE custody where conditions of confinement impeded access to counsel); accord Arroyo v. DHS, No. SACV 19-815 JGB (SHKx), 2019 WL 2912848 (C.D. Cal. June 20, 2019) (Section 1252 did not bar jurisdiction over claims that ICE’s decision to transfer represented people unconstitutionally interfered with existing attorney-client relationships in violation of due process). Jennings compels the same result in this case.
Section 1252 does not bar Plaintiff’s claim that conditions in Defendants’ facilities impede access to counsel in violation of due process because unlike Plaintiff’s claims, the access -tocounsel claims in both J.E.F.M. and P.L. were not “collateral to” but rather “bound up in and an inextricable part” of the actual removal proceedings, meaning their claims could meaningfully be reviewed and remediated through the removal process itself. J.E.F.M., 837 F.3d at 1033. Plaintiff’s claims, in contrast, focus exclusively on conditions and practices within ICE facilities that impede access to counsel. Plaintiff is not challenging processes occurring within removal hearings, which is the focus of Section 1252. In J.E.F.M., for example, plaintiffs affirmatively sought the appointment of counsel at removal proceedings; it was not a conditions case. Id. at
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1029. Similarly, in P.L. v. ICE, the plaintiffs challenged barriers to in-person communications with counsel during the removal proceeding itself ; they did not challenge conditions inside detention facilities impeding communications with counsel during detention. P.L. v. ICE, 1:19-cv-01336, 2019 WL 2568648, *1 (S.D.N.Y. June 21, 2019). Here, in sharp contrast, immigration judges cannot issue an injunction to remediate conditions in the Facilities that impede Plaintiff’s clients’ access to counsel. Applying Section 1252 therefore would deprive people in detention any “meaningful chance for judicial review” of their access-to-counsel claims.
Nor does Section 1252 bar Plaintiff’s substantive due process claim. The Fifth Amendment prohibits Defendants from subjecting people in immigration detention to conditions and restrictions that are so excessive and restrictive as to constitute punishment. See Torres, 411 F. Supp at 1064; accord Banks v. Booth, No. 1:20-CV-849, 2020 WL 1914896, *6 (D.D.C. Apr. 19, 2020). The legal inquiry at the heart of this claim is wholly independent from any question at issue in a removal case, and this claim could not be meaningfully remediated in a removal proceeding because immigration judges cannot issue an order to remedy punitive conditions. See e.g., Torres, 411 F. Supp at 1049 (“the Court has little difficulty determining that it also has jurisdiction over the . . . substantive Due Process claim regarding lack of telephone access, barriers to legal visits, and interference with legal mail”).
Finally, as to SPLC’s claims on behalf of itself, it would be especially “absurd” to apply Section 1252 because SPLC is not a party to removal proceedings and therefore cannot seek a remedy for its injuries through the removal process. See Jennings, 138 S. Ct. at 840.
B. The District Court’s Decision in NIPNLG is Distinguishable and NonBinding.
Defendants contend that National Immigration Project of the National Lawyers Guild v. EOIR, No. 1:20-cv-00852, 2020 WL 2026971 (D.D.C. Apr. 28, 2020) (“NIPNLG”) supports their
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argument that Section 1252 divests this Court of jurisdiction over Plaintiff’s conditions claims. Defendants, however, ignore crucial distinctions between this case and NIPNLG, which are fatal to Defendants’ jurisdictional arguments.
First, in NIPNLG, plaintiffs also sought injunctive relief against EOIR (the administrator of immigration courts) and expressly sought to enjoin certain practices in removal hearings themselves.5 Thus, unlike the exclusive conditions claims at issue here, the NIPNLG plaintiffs sought relief that was “bound up in” removal hearings. See J.E.F.M., 837 F.3d at 1033.
Second, although the NIPNLG plaintiffs brought access-to-counsel claims, they styled their claims as procedural due process claims impacting the merits of hearings rather than claims that conditions impeded access to counsel generally. The NIPNLG plaintiffs also did not assert substantive due process claims, which pivot on whether or not conditions and restrictions in detention are so excessive as to constitute punishment.
Third, the NIPNLG plaintiffs’ access claims focused on barriers that impacted plaintiffs’ access to counsel only as they related to the “merits” removal hearing. See, e.g., NIPNLG, 2020 WL 2026971, at *8. In addition to challenging barriers that impede access to attorneys for assistance with clients’ merits cases, SPLC also challenges barriers that impede access to counsel for other purposes, such as release on bond, parole, habeas, and conditions advocacy. On this point, the Court’s decision in Jennings is particularly instructive: “Interpreting ‘arising from’ in this extreme way would make claims [by detained immigrants] effectively unreviewable. By the time a final order of removal was eventually entered, the allegedly [unlawful] detention would have already taken place. And of course, it is possible that no such order would ever be entered in
5 For example, in sharp contrast to Plaintiff’s claims, the NIPNLG plaintiffs sought to require EOIR to postpone in-person detained hearings and to provide for the automatic adjournment of any scheduled removal hearings or court deadlines. See NIPNLG, 2020 WL 2026971, at *4.
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a particular case, depriving that detainee of any meaningful chance for judicial review.” Jennings, 138 S.Ct at 840. So too here. By the time SPLC’s clients were able to seek review of their barriers to communicating with counsel for purposes of release on bond, parole, or unconstitutional conditions, the unlawful “detention would have already taken place.”6
C. The Constitutional Avoidance Doctrine Dictates that Section 1252 Not Be Construed to Deprive this Court of Jurisdiction to Adjudicate Plaintiff’s Claims .
Although Jennings itself makes clear that Section 1252 does not apply to Plaintiff’s constitutional conditions claims, well-established rules of statutory construction and constitutional avoidance further demonstrate why this Court retains jurisdiction.
“[W]here Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear.” Webster v. Doe, 486 U.S. 592, 603 (1988) (requiring a “heightened showing” of Congressional intent to divest courts of jurisdiction to hear constitutional claims); ANA Int’l, Inc. v. Way, 393 F.3d 886, 894 (9th Cir. 2004) (“the general rule to resolve any ambiguities in a jurisdiction-stripping statute [is] in favor of the narrower interpretation”). The Supreme Court has repeatedly applied this principle to limit the reach of Section 1252. See I.N.S. v. St. Cyr, 533 U.S. 289, 314 (2001); Calcano-Martinez v. INS, 533 U.S. 348, 351-52 (2001). The Supreme Court has made clear that adopting the broad construction of Section 1252 that Defendants propose here “would raise serious constitutional concerns” by depriving immigrants of any meaningful forum to have their constitutional claims adjudicated and remediated. Id. Such a construction would likewise raise serious “separation of powers” concerns. See Ramos v. Nielsen, 321 F. Supp.3d
6 Finally, in addition to being distinguishable, the decision in NIPNLG is not precedent and this court is not bound to follow it. Camreta v. Greene, 563 U.S. 692, 709, n.7 (2011) (“A decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case.”); Comm. on Oversight & Gov't Reform, U.S. House of Representatives v. Sessions, 344 F. Supp. 3d 1, 15 (D.D.C. 2018) (same).
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1083, 1102 (N.D. Cal. 2018). For all these reasons, Defendants cannot satisfy their “heightened” burden to demonstrate that, through Section 1252, Congress intended to deprive district courts of their longstanding power to adjudicate constitutional conditions claims—particularly where such a construction would deprive detained immigrants of any ability whatsoever to obtain an injunction to remediate those conditions. See Webster, 486 U.S. at 603. III. SPLC Is Likely to Succeed on the Merits of Its Access-To-Counsel Claim
Defendants erroneously contend that SPLC cannot prevail on its access-to-counsel claim because SPLC has not shown that access barriers resulted in an adverse outcome or “forced selfrepresentation” at a client’s immigration hearing, Defs.’ Opp’n at 36–37, and because each access barrier, considered in isolation, does “not rise to the level of a constitutional violation,” Defs.’ Opp’n at 43. These arguments are premised on fundamental misunderstandings of the nature of Plaintiff’s claims. Applying the proper framework, the evidence shows that, whether or not Defendants’ standards are adequate as written, Defendants are failing to conduct oversight to ensure consistent implementation. As a result, the totality of barriers deprive SPLC’s clients of adequate and reliable access to counsel.
A. Defendants Mischaracterize the Nature of Plaintiff’s Access -to-Counsel Claim and Misapply the Standard for Re vie wing a Constitutional Violation.
First, by arguing that Plaintiff must prove prejudice in SPLC’s clients’ cases to obtain an injunction to remediate barriers to accessing counsel, Defendants altogether mischaracterize Plaintiff’s access-to-counsel claims. See Defs.’ Opp’n 36–37 (denial of counsel “may not violate due process absent a showing of prejudice”). Unlike those cases on which Defendants rely, SPLC is not alleging that an immigration judge denied its clients due process, and SPLC is not seeking to set aside its clients’ removal orders as a result of barriers to being represented by an attorney at a removal proceeding, or as result of counsel’s ineffectiveness. See, e.g., Biwot v. Gonzales, 403
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F.3d 1094, 1098 (9th Cir. 2005) (immigrant sought to set aside removal order as a result of immigration judge’s refusal to grant continuance to find legal representation); Lara-Torres v. Ashcroft, 383 F.3d 968 (9th Cir. 2004) (immigrant sought to set aside removal order as a result of ineffective assistance of counsel in removal proceedings). Indeed, in contrast to the cases that Defendants cite, this case does not concern IJ rulings, EOIR hearing procedures, or BIA appeals. Rather, SPLC challenges conditions of confinement that, in their totality, impede meaningful and reliable access to attorneys, and the only remedy Plaintiff seeks is an injunction to remediate those restrictive conditions. SPLC need not prove prejudice in such a case. Cf. Benjamin v. Fraser, 264 F.3d 175, 186 (2d Cir. 2001) (holding that pre-trial detainees did not need to prove prejudice to enjoin barriers to accessing counsel). In fact, if such a showing were required, then a detained immigrant could never obtain prospective relief to remediate unlawful conditions that impede access to counsel because the detained immigrant would need to complete her removal proceeding without adequate (or possibly any) assistance of counsel before having proof of actual prejudice to obtain prospective relief. By then, such prospective relief would be hollow. Accord Jennings, 138 S. Ct. at 840 (“By the time a final order of removal was eventually entered, the allegedly [unconstitutional] detention would have already taken place.”).
Moreover, Defendants’ “backward-looking inquiry into the actual substance of the hearing” wholly ignores that detained immigrants require access to counsel for purposes other than removal proceedings, such as seeking release (e.g., via bond, parole, or habeas) or advocating for improved conditions. Indeed, SPLC represents many clients at the facilities exclusively for purposes other than the merits phase of removal hearings. See, e.g., Rivera Decl. ¶¶ 2, 4, ECF No. 105-7; see also SAC ¶ 97.
Defendants also erroneously describe the controlling standard for showing a violation of
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the right to counsel. Specifically, Defendants focus on whether each challenged access barrier, viewed in isolation, is so severe to be tantamount to the denial of counsel. See, e.g., Defs.’ Opp’n at 47 (inquiring whether barriers to communicating via mail during COVID-19 alone constitute a constitutional violation). The proper inquiry is whether the totality of circumstances has the “cumulative effect” of denying a detained persons adequate and meaningful access to counsel. Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 565 (9th Cir. 1990); see also Nunez v. Boldin, 537 F. Supp. 578, 582 (S.D. Tex. 1982) (examining combination of access barriers in considering whether restrictions impeded access to counsel); Louis v. Meissner, 530 F. Supp. 924, 927 (S.D. Fla. 1981) (finding that combination of facility’s lack of legal services information, lack of telephones, and remote location denied immigrants access to counsel).
B. The Evidence Shows that the Totality of Conditions in the Facilities Unreasonably Impede s Adequate and Reliable Access to Counsel.
Applying the proper standard, SPLC has shown that the totality of conditions “unjustifiably obstruct” adequate and reliable access to counsel at the Facilities during the COVID-19 pandemic. See Procunier v. Martinez, 416 U.S. 396, 419 (1974). The evidence shows the Facilities fail to ensure that there are sufficient means of conducting confidential attorney-client communications (whether by VTC or legal call) (Pl.’s Mem. of P. & A. 12, 15, 21); that VTC and legal calls can be promptly scheduled (Id. at 10–11, 13–14); that such calls can be scheduled for a sufficient period of time to cover necessary topics (Id. at 11–12, 14); that such remote communications are confidential (Id. at 21); and that calls are not undermined by sound-quality and connectivity issues (Id. at 14); amongst other necessary measures. The evidence further shows that these issues are ongoing since Plaintiff initially filed this TRO. See generally Rivera Second Supp. Dec.
Defendants do not rebut SPLC’s evidence of what is actually occurring in practice at the Facilities. Nor do Defendants apparently disagree that detention standards concerning access to
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counsel should be followed. And in any event, Defendants concede (and SPLC agrees) that “the PBNDS does not form the constitutional floor.”7 Defs.’ Opp’n at 41. Instead, and contrary to the Court’s express direction, Defendants devote the majority of their opposition and evidentiary submissions to arguing that the Facilities already have policies in place concerning access to counsel. But that is not the question before the Court. Rather, the key questions are (1) whether those policies and practices are constitutionally adequate and (2) if so, whether they are actually being followed in practice. The evidence firmly establishes that the answer to both of these question is no.
For example, with respect to VTCs, Defendants assert that the Facilities have extended VTC hours, but the evidence shows that Defendants’ VTC restrictions are themselves unreasonably restrictive. Pine Prairie limits VTCs to 30 minutes and Stewart mechanically imposes a 1-hour limitation notwithstanding a significant number of available VTCs. Rivera Decl. ¶¶ 8, 3031; Defs.’ Opp’n at 13. These arbitrary time restrictions prevent SPLC from meaningfully engaging with its clients. See Rivera Decl. ¶ 25 (describing a SIFI attorney’s inability to adequately prepare their client the day before their final asylum hearing because of this limitation). And even assuming those VTC hours are sufficient (and they are not), the evidence nevertheless shows that—in practice—access to VTCs remains unreasonably restricted, unreliable, and that quality issues impede meaningful communications. See, e.g., Rivera Second Supp. Dec. at ¶¶ 5-6, 10-12.8 To provide but one example, at Irwin, Defendants agreed to extend VTC hours one month
7 And thus, to the extent Defendants contend that any remedies sought by Plaintiff go beyond the PBNDS, that is because those remedies are necessary to cure the ongoing constitutiona l violations during the pandemic. 8 Defendants argue that, at LaSalle, Defendants have made one of the three VTC consoles available for SPLC’s exclusive use for two hours a day. Defs.’ Opp’n 46. Defendants neglect to mention that this ad hoc remedy was offered only six days ago in response to a non-compliance notice sent by SPLC, and in fact provides no additional access beyond what the parties already
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ago due to the pandemic, see Rivera Decl. ¶ 38 Ex. B. (April 3rd letter extending hours from 8:00 a.m to 7:00 p.m, Tuesday through Friday), yet SIFI legal staff at Irwin have continued to experience delays and cancellations. Rivera Decl. ¶ 27; Rivera Second Supp. Decl. ¶¶ 5-6.
Likewise, Defendants emphasize that reductions in the detained populations have increased phone ratios in the Facilities to “optimal levels,” but Defendants wholly ignore the fact that, in reality, these telephones are not confidential and therefore not a proper mechanism for SPLC to engage with its clients about highly confidential legal matters. See, e.g., Second Paulk Decl., Warden of Irwin, ¶ 39, ECF No. 110-12 (“Attorneys wishing to speak to a detainee [at Irwin] via telephone are advised that phone calls are recorded and monitored, and attorneys are recommended to schedule a VTC appointment to speak to detainees for full confidentiality”); see also Rivera Decl. ¶ 38 (“One SIFI attorney who has been working with people detained at [Pine Prairie] since October 2018 states that no client of hers has ever been able to successfully request a facility legal call.”). And even for those meager opportunities for confidential legal calls at the Facilities, SIFI staff continues to have confidentiality issues. See Rivera Second Supp. Dec. ¶ 7 (describing instances wherein guards remain in the room). Evidence shows that these breaches are commonplace: for example, Defendants concede that Irwin staff enter and exit the room during VTC appointments; see also Defs.’ Opp’n at 14, 18.
Critically, these barriers to adequate and reliable access in the Facilities flow directly and foreseeably from Defendants’ longstanding and ongoing failures to ensure that Facilities comply with ICE’s own standards and constitutional dictates. Tellingly, Defendants do not submit a single declaration that adequately describes how Defendants are ensuring that the Facilities comply with
negotiated in a prior settlement agreement at that facility. See Agarwal Supp. Decl. Ex. D, ECF No. 108-1. Nor does this offer provide any kind of systemic “fix” for the ongoing connectivity issues that have made VTCs wholly unreliable at LaSalle. Rivera Decl. at ¶ 24.
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standards and minimal constitutional requirements for accessing counsel. The closest Defendants come is a general and conclusory affidavit by Russell Hott (that was originally filed in a wholly different case and that Defendants submitted in this case two days after their deadline), which fails to address the Facilities altogether and does not discuss uniform mandates to ensure access to counsel. See Hott Decl. at ¶ 24.9 Mr. Hott’s declaration further makes clear that, far from conducting adequate monitoring of Facilities’ compliance with standards, Defendants are reflexively relying upon ICE’s already broken oversight system that DHS’s own Inspector General has repeatedly criticized. See, e.g., Office of Inspector Gen., U.S. Dep’t of Homeland Sec., OIG19-18: ICE Does Not Fully Use Contracting Tools to Hold Detention Facility Contractors Accountable for Failing to Meet Performance Standards, at 7 (Jan. 29, 2019), https://www.oig.dhs.gov/sites/default/files/assets/2019-02/OIG-19-18-Jan19.pdf; Office of Inspector Gen., U.S. Dep’t of Homeland Sec., OIG-18-47: ICE’s Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or Systemic Improvements, at 14-15 (Jun. 26, 2018), https://www.oig.dhs.gov/sites/default/files/assets/2018-06/OIG-18-67-Jun18.pdf. Critically, Defendants’ not only fail to adequately address how they are conducting meaningful oversight of the Facilities but Defendants also dangerously resist oversight altogether. Defendants cavalierly characterize this Court’s well-established power to remediate constitutional violations as “micromanagement,” as though conditions in detention are immune from judicial scrutiny. And rather than ensuring that Facilities comply with constitutional dictates, Defendants’ opposition
9 Defendants failed to disclose eight of the ten declarants they rely on in their initial disclosures, submitted October 7, 2019. Indeed, Defendants’ initial disclosures do not even identify the positions held by five of the eight undisclosed declarants. Since the declarants are providing information that goes to the merits of SPLC’s claims and possible defenses, Defendants appear to have violated their ongoing duty to disclose these persons’ identities to SPLC under Rule 26(a)(1)(A) .
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reflects an alarming willingness to permit contractors to tell Defendants what conditions should be implemented. See, e.g., Rice Decl. ¶ 47, ECF No. 110-14 (describing that it would be “ill-advised” to install confidential legal phones); Staiger Decl. ¶45, ECF No. 110-15 (same). Contrary to Defendants’ dangerous approach, “having stripped [detained immigrants] of virtually every means of self-protection . . . [Defendants] are not free to let the state of nature take its course” in its Facilities. See Farmer v. Brennan, 511 U.S. 825, 833 (1994). Yet, the evidence shows that is exactly what Defendants are permitting the Facilities to do with respect to detained immigrants constitutiona l rights to access to counsel.
C. Defendants’ Other Arguments Are Meritless. In addition to failing to rebut SPLC’s evidence of access barriers, Defendants also make numerous frivolous arguments. Defendants, for example, argue that SPLC has not shown that Defendants’ PPE requirement “somehow violates a third party’s constitutional rights.” Defs.’ Opp. at 40. But as SPLC has repeatedly explained, Plaintiff is “in no way” challenging the PPE requirement. See Transcript of May 12, 2020 Hearing at 13:25-14:1. Defendants also claim that the mere fact that SPLC has engaged new clients at the Facilities “is, in and of itself, evidence that SPLC has had access to detainees during the pandemic.” Defs.’ Opp’n at 42. This argument is a non-sequitur. The PBNDS do not measure access to counsel by the existence or non-existence of a retainer. They measure it by phone ratios, confidentiality, frequency of communication, and timeliness of scheduling—they very things SPLC has shown in detail are seriously deficient at the Facilities. The fact that SPLC is able to engage a client says nothing about whether it can meaningfully and reliably communicate with that client. Finally, Defendants’ objections to the “double hearsay” in SPLC’s sworn declarations fail to address the actual content of those allegations while also ignoring that evidence need not be
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admissible to be considered in a TRO application. See Holiday CVS, L.L.C. v. Holder, 839 F. Supp. 2d 145, 155 (D.D.C. 2012)). IV. SPLC Is Like ly to Succe e d on the Merits of the Substantive Due Process Claim.
As an initial matter, Defendants’ opposition focuses exclusively on Plaintiff’s access-tocounsel claims and nowhere meaningfully addresses Plaintiff’s substantive due process claim. Defendants therefore have “conceded” the merits of Plaintiff’s claim that conditions in the facility restricting legal communications are excessive and therefore punitive in violation of the Fifth Amendment’s substantive due process protections. See Meixing Ren v. Phoenix Satellite Television, Inc., No. 13-cv-1110, 2014 WL 12792707, *2 (D.D.C. 2014); see also Schneider v. Kissinger, 412 F.3d 190, 200 (D.C. Cir. 2005) (“It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work, create the ossature for the argument, and put flesh on its bones.”).
Nor could Defendants seriously dispute that the challenged conditions are unnecessarily restrictive and therefore unconstitutiona lly punitive in light of SPLC’s evidence and Defendants’ own admissions. For example, even assuming that Defendants’ standards were themselves constitutionally adequate—Defendants have failed to ensure that those standards are consistently implemented at the facilities, as described above. See ECF 105-1 at 29-32. The evidence further establishes that conditions at the facilities both fail to comply with CDC guidance on legal communications and are more restrictive than conditions in prisons. ECF 105-1 at 31-32. This evidence shows that the challenged restrictions are excessive. See Torres, 411 F. Supp.3d at 1065. But there is more.
Far from rebutting Plaintiff’s substantive due process claims, Defendants’ evidence further supports a finding that conditions impeding legal communications at the facilities are “excessive” in relation to any proffered justification. See Banks, 2020 WL 1914896, at *5. For example,
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although all the facilities utilize fax for exchange of medical records, only Irwin allows detained individuals to send faxes to their attorneys. Rivera Decl. ¶ 12. Defs.’ Opp’n at 19. There is also a designated legal fax number for attorneys to send faxes to their clients. “[I]ncoming faxes from attorneys are treated like legal mail and delivered to the detainees daily upon request.” Id. at 20. Irwin also allows detained individuals to request that legal or case sensitive documents be emailed. Second Musante Decl. ¶35 ECF No. 110-10.10 Stewart states that, while it does not accept faxes or emails for detained individuals, they may “communicate with attorneys via email” by using the 27 kiosks at the facility. Moten Decl. ¶39 ECF No. 110-8. But Defendants fail to provide evidence that these kiosks are unmonitored and that their use is free of charge. Id. The PBNDS explicitly contemplates use of fax or email, and Courts have found this may be warranted for documents that require prompt signature or delivery. Torres v. U.S. Dep’t of Homeland Sec., No. 5:18-CV-2604 (C.D. Cal. Apr. 11, 2010), ECF No. 144 citing PBNDS 5.1 (V)(O). V. SPLC’s Requests for Relief are Appropriate and Narrowly Tailored
SPLC’s requested relief is narrowly and reasonably tailored to facilitate access to counsel during the pendency of the pandemic; is consistent with many of Defendants’ pre-existing policies; and builds logically upon some of its pre-existing practices in specific ICE facilities. Torres, No. 5:18-CV-2604, ECF No. 144 (granting TRO to expand remote attorney communications during COVID-19). Plaintiffs’ requests are also not unduly intrusive, even if they impose a set of conditions. Banks, 2020 WL 1914896, at *12.
Plaintiffs’ requests seeking to expand access to remote legal visitation are crucial during this period when in-person visitation can threaten the lives of attorneys, their clients, and Facility
10 Defendants present a false dichotomy wherein the only option for facilitating fax or email system is to violate confidentiality. This cannot be true, unless Defendants are providing an admission that staff at Irwin are currently violating confidentiality.
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staff; indeed, the CDC itself recommends limiting in-person attorney visits and expanding access to remote communications. Yet, as detailed above, the evidence shows that Defendants allow Facilities to impose unnecessary restrictions on remote legal communications (e.g., by placing strict limits on the number of calls that can take place and by placing unreasonable limits on when calls can occur) and also fail to ensure that phones and VTCs are confidential and in proper working order. For example, while Pine Prairie does not refrain from limiting the number of legal phone calls or VTC at Pine Prairie, Defs.’ Opp’n at 23, Stewart mechanically limits the number of calls—despite evidence that the facility often has 30% unreserved appointments on any given week, id. at 13. Moreover, given the evidence that Defendants fail to ensure confidential phones and VTC are in working order, it is reasonable for the Facilities to designate points of contact for SPLC and SPLC’s clients to be able to relay technical issues that impede remote legal communications. For these reasons, Plaintiff’s request to expand reliable access to confidential legal communications and for Defendants to provide points of contact for technical issues are narrowly and reasonably tailored to remediate the ongoing violations during the pandemic.
Defendants also contest Plaintiff’s request that Defendants implement a process for confirming receipt of parole requests and providing timely parole determinations. Defs.’ Opp’n. at 49. But contrary to Defendants’ argument, Plaintiff’s Second Amended Complaint expressly addresses the importance of access to counsel for purposes of obtaining release on parole, which is entirely within ICE’s discretion (and not an aspect of the removal proceeding itself). SAC, ECF 70 at ¶¶ 40, 47, 96, 100, 116, 318. Plaintiff’s TRO includes specific evidence detailing how Defendants have failed to ensure that SPLC and its clients have reliable access to Deportation
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Officers who are responsible for facilitating parole determinations. ECF 105-1 at 23.11 Further, when Deportation Officers do not confirm receipt of a parole request, it delays an attorneys’ ability to remediate any errors that relate to postal mail. Id.
Finally, Defendants have failed to rebut the reasonableness and necessity of SPLC’s requests that Defendants permit the confidential exchange of documents electronically, that Defendants ensure phones and VTC equipment are disinfected, and that clients are provided with necessary PPE during visits where they may be at risk of exposure. For example, Defendants do not provide any evidence undermining the crucial need for the exchange of documents electronically besides conclusory allegations that ensuring confidentiality may be difficult to achieve. Staiger Decl. at ¶ 46. But Defendants admit they already provide this precise kind of quick inspection of legal mail (Defs. Opp. at 15, 19) and, in any event, confidentiality could be ensured by fax cover sheets and clear email subjects, as is presumably already done at Irwin (where attorneys can send faxes). Defendants’ evidence further shows that Facility staff wear masks and gloves when facilitating in-person legal visits, thus supporting the reasonableness of Plaintiff’s request that its clients be provided PPE during legal calls and visitation. See Defs.’ Opp’n at 16. Similarly, Defendants’ evidence showing that detained people are “encouraged to sanitize” telephones and kiosks likewise demonstrates the reasonableness of Plaintiff’s request that Defendants ensure these areas are disinfected between use to reduce transmission of this deadly disease. Id. at 14.
11 Defendants misleadingly refer to custody redetermination hearings, as though they are conducted before an immigration judge. Defs.’ Opp’n at 49. They are not. As detailed herein, Plaintiff’s request for relief does not relate to removal hearings. Rather, parole requests and Fraihat custody redetermination requests are submitted directly to the AFOD and the Deportation Officer. These ICE officials are also tasked with granting or denying such requests. See, e.g., Rivera Decl. ¶¶55-56. See also, Chamberlain Decl. ¶ 6 (describing the AFOD’s duty to supervise Deportation Officers). Denials of these requests cannot be challenged in the removal hearing.
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CONCLUSION For these reasons, and all those assigned in its moving brief and argument, SPLC’s motion

for temporary restraining should be granted.

Dated: May 18, 2020

Respectfully submitted,

/s/ Shalini Goel Agarwal Shalini Goel Agarwal (Fla. Bar No. 90843)* Southern Poverty Law Center 106 East College Avenue, Suite 1010 Tallahassee, Florida 32302 Tel: (850) 521-3024 shalini.agarwal@splcenter.org
/s/ Lisa Graybill Lisa Graybill (Tx. Bar No. 24054454)* Jared Davidson (La. Bar No. 37093)* Conor Gaffney (La. Bar No. 38225)* Southern Poverty Law Center 201 St. Charles Avenue, Suite 2000 New Orleans, LA 70170 (504) 486-8982 lisa.graybill@splcenter.org jared.davidson@splcenter.org conor.gaffney@splcenter.org

/s/ William E. Dorris William E. Dorris (Ga. Bar No. 225987)* Susan W. Pangborn (Ga Bar. No. 735027)* Jeffrey Fisher (Ga. Bar No. 981575)* Kilpatrick Townsend & Stockton LLP 1100 Peachtree Street NE, Suite 2800 Atlanta, GA 30309 (404) 815-6104 bdorris@kilpatr icktow nsend.com spangborn@kilpatr icktow nsend.com jfisher@kilpatr ic ktow nsend.com
/s/ Jon T. Bergin John T. Bergin (DC Bar #448975) Kilpatrick Townsend & Stockton LLP 607 14th Street NW, Suite 900 Washington, DC 20005 (202) 481-9942 jbergin@kilpatr icktow nsend.com *Admitted Pro Hac Vice

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SOUTHERN POVERTY LAW CENTER, Plaintiff,
v. U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants.

Civil Action No. 18-0760 (CKK)
Second Supplemental Declaration of Laura Rivera in Support of Plaintiffs’ Reply Brief in Support of Motion for a Temporary Restraining Order

SECOND SUPPLEMENTAL DECLARATION OF LAURA G. RIVERA, ESQ.
I, Laura G. Rivera, hereby declare as follows:
1. I serve as the Director of the Southeast Immigrant Freedom Initiative of the Southern Poverty Law Center (“SIFI”). I have worked at SIFI since its launch in early 2017, serving variously as Deputy Director and Advocacy Attorney. I became the Director in September 2019.
2. SIFI provides pro bono representation to detained immigrants in proceedings before the Executive Office for Immigration Review, U.S. Immigration and Customs and Enforcement (“ICE”), and the Board of Immigration Appeals (“BIA”). SIFI focuses on seeking clients’ release from ICE custody. SIFI also represents some individuals in merits proceedings before EOIR and the BIA, and provides pro se support to some custody clients in their merits proceedings.
3. SIFI represents individuals confined inside the LaSalle ICE Processing Center (“LaSalle”) in Jena, Louisiana; the Pine Prairie ICE Processing Center (“Pine Prairie”) in Pine Prairie, Louisiana; the Irwin County Detention Center (“Irwin”) in Ocilla, Georgia; the Folkston ICE Processing Center (“Folkston”) in Folkston, Georgia; and the Stewart Detention Center (“Stewart”) in Lumpkin, Georgia. The facilities at issue in this litigation (LaSalle, Pine Prairie, Irwin, and Stewart) will hereinafter be referenced collectively as “the four facilities.”
4. Below are a few of the barriers that SIFI legal staff and SIFI pro bono volunteers have encountered in trying to communicate effectively with clients at the four facilities in the past two weeks. These barriers involve video-teleconference (“VTC”) calls, free legal
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phone calls coordinated through facility staff and conducted in a private space (“facility legal calls”); and paid phone calls initiated by detained people through phones available in housing units and common areas (“paid calls”). SIFI has set up accounts to have the paid phone calls be charged to SIFI and not to the detained clients.
5. On May 6, a client detained at Irwin did not call the SIFI attorney at their scheduled VTC appointment. The SIFI attorney followed up with Irwin staff via email during the scheduled time to ask about the client’s whereabouts but did not receive a response. At the attorney’s next scheduled VTC appointment that day with a different client, Irwin staff verbally stated that the previous client did not call because the client was at a dentist appointment in the medical unit. It is unclear what type of dentist appointment this was or why it was not scheduled so as not to conflict with the remote legal visit.. The VTC with this client had to be rescheduled and occurred on May 14.
6. On May 8, a SIFI attorney had two VTC appointments with two different clients who are detained at Irwin. The first client did not call at the scheduled time and the SIFI attorney was not given any reason for the no-show. The SIFI attorney then emailed Irwin staff to ask that this client instead be brought at the scheduled time for the second client that day, because this appointment was more time sensitive. The VTC with the second client had to be rescheduled and occurred on May 15.
7. While SIFI staff at Stewart are finally able to schedule facility legal calls, after communicating with CoreCivic several times about a system that ICE had indicated already exists, they have had multiple experiences that give them concerns about the confidentiality of those calls. On May 11, CoreCivic staff breached the confidentiality of a facility legal call at Stewart by remaining in the room during the call. The SIFI legal worker was conducting an in-depth screening, which is a follow-up to the detained individual’s intake call to the SIFI hotline. She learned that the individual was uncomfortable sharing sensitive details because the guard was in the room. On several occasions, most recently on May 15, SIFI attorneys conducting facility legal calls at Stewart could hear voices talking in the background. One client told the SIFI attorney that during these calls, no other detainees could hear him but the guards are able to hear.
8. SIFI staff at Pine Prairie continue to experience connectivity issues when dialing necessary third parties, such as another SIFI attorney, expert, or an interpreter, into facility legal calls. On or about May 11, a third party who was dialed into a facility legal call was unable to hear anything the detained individual was saying, but the detained individual was able to hear the third party.
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9. On May 15, a SIFI attorney received a call from a detained client at Pine Prairie. This call was made using a phone in the client’s unit and indicated that it was a free ten-minute call. The sound quality was awful and the SIFI attorney could barely hear the client. Because of this, the SIFI attorney was unable to receive all of the information about the client’s medical conditions, which slowed down the preparation of the client’s release application.
10. On May 11, a SIFI pro bono volunteer was denied a VTC with a client in isolation at Pine Prairie. The volunteer had a VTC scheduled that morning. An hour after the scheduled time, the volunteer received a call from the facility and was told that because this client had been placed in isolation, he was not allowed to have a VTC and was only allowed to make a phone call. The volunteer inquired further as to why the client was put in isolation but was not given any answers.
11. Contrary to Defendants’ representations regarding extended VTC hours in its April 3rd letter, Rivera Decl. Ex. B, ECF No. 105-7, SIFI attorneys at Stewart have never been able to schedule VTCs outside of the 9 a.m. to 3 p.m. time frame. SIFI attorneys at Irwin have never been able to schedule VTCs after 4 p.m.
12. A SIFI attorney at Irwin spoke to their client via the shared telephones in the client’s unit on Sunday, May 17. The client relayed the following information, which they have allowed the attorney to share: The shared telephones in the unit do not have any type of physical dividers between them, such as a partition. The telephones are about one meter apart. This client’s unit does not have access to any tablets, nor is the client aware of any mechanism wherein they may place a request for a VTC appointment with their attorney. Detained women clean this client’s unit. The client has never received disinfectant wipes. The client has never been advised by staff at Irwin to clean the shared telephone before or after she uses it.
13. As of May 18, SIFI staff at Irwin still have not received a response from the warden regarding placing SIFI’s phone numbers on the do not monitor list for paid phone calls. See Rivera Decl. ¶45.
14. As a result of barriers to communicating with clients, SIFI has been substantially thwarted in its mission to conduct advocacy for detained people, including working for their release from custody and advocating for better conditions. SIFI has also had to divert significant resources because of these barriers. For example, when SIFI staff are impeded from meaningful communication with a client on one occasion, they must reschedule that visit, which prevents them from visiting with other clients or representing other individuals. This occurs when Facilities cancel visits, fail to bring clients to VTC calls, and when connectivity issues prevent calls. Also, due to Defendants’ inadequate
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