U.S. District Court [LIVE AREA] Middle District of Georgia (Valdosta) CIVIL DOCKET FOR CASE #: 7:20-cv-00062-CDL-MSH

MARTINEZ et al v. DONAHUE et al Assigned to: US DISTRICT JUDGE CLAY D LAND Referred to: US MAGISTRATE JUDGE STEPHEN HYLES Cause: 28:2241 Petition for Writ of Habeas Corpus (federa

Date Filed: 04/07/2020 Date Terminated: 10/16/2020 Jury Demand: None Nature of Suit: 463 Habeas Corpus Alien Detainee Jurisdiction: U.S. Government Defendant

Petitioner
ARISTOTELES SANCHEZ MARTINEZ

represented by AMANDA BROUILLETTE 1100 PEACHTREE ST NE STE 2800 ATLANTA, GA 30309 404-815-6006 Email: abrouilette@kilpatricktownsend.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

CAITLIN JOY SANDLEY 400 WASHINGTON AVE MONTGOMERY, AL 36104 334-956-8471 Email: cj.sandley@splcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

GRACIE WILLIS 150 E PONCE DE LEON AVE STE 340 DECATUR, GA 30030 404-221-4050 Email: gracie.willis@splcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

HILLARY LI 5680 OAKBROOK PKWY STE 148 NORCROSS, GA 30093

404-435-8226 Email: hli@advancingjusticeatlanta.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
KATHRYN ISTED 1100 PEACHTREE ST NE STE 2800 ATLANTA, GA 30309 404-532-6946 Email: kisted@kilpatricktownsend.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
LORILEI WILLIAMS SOUTHERN POVERTY LAW CENTER PO Box 1287 DECATUR, GA 30031 404-858-2567 Email: lorilei.williams@splcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELISSA CROW 1101 17TH STREET NW STE 705 WASHINGTON DC 20036 Email: melissa.crow@splcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
PAUL CHAVEZ 2 S BISCAYNE BLVD STE 3750 MIAMI, FL 33131 786-682-5258 Fax: 786-237-2949 Email: paul.chavez@splcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
PHI NGUYEN Asian Americans Advancing Justice Atlanta

5680 Oakbrook Parkway Suite 148 NORCROSS, GA 30093 770-818-6147 Fax: 404-890-5690 Email: pnguyen@advancingjusticeatlanta.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
REBECCA CASSLER 150 E PONCE DE LEON AVE STE 340 DECATUR, GA 30030 404-521-6700 Fax: 404-221-5857 Email: rebecca.cassler@splcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
TAMARA SERWER CALDAS 1100 PEACHTREE ST NE STE 2800 ATLANTA, GA 30309 404-815-6500 Email: tcaldas@kilpatricktownsend.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
TAYAH WOODARD 1100 PEACHTREE ST NE STE 2800 ATLANTA, GA 30309 404-815-6652 Email: twoodard@kilpatricktownsend.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
VICTORIA MESA-ESTRADA 2 S BISCAYNE BLVD 32ND FL MIAMI, FL 33131 786-347-2056 Email: victoria.mesa@splcenter.org

Petitioner MICHAEL ROBINSON

LEAD ATTORNEY ATTORNEY TO BE NOTICED
DOUG GILFILLAN 1100 PEACHTREE ST NE STE 2800 ATLANTA, GA 30309 404-815-6500 Email: dgilfillan@kilpatricktownsend.com ATTORNEY TO BE NOTICED
MELISSA CROW 1101 17TH ST NW STE 705 WASHINGTON, DC 20036 202-355-4471 Email: melissa.crow@splcenter.org ATTORNEY TO BE NOTICED
AMANDA N BROUILLETTE 1100 PEACHTREE ST STE 2800 ATLANTA, GA 30309 404-815-6500 Fax: 404-815-6555 Email: abrouillette@kilpatricktownsend.com ATTORNEY TO BE NOTICED
represented by AMANDA BROUILLETTE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
CAITLIN JOY SANDLEY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
GRACIE WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

HILLARY LI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
KATHRYN ISTED (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
LORILEI WILLIAMS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELISSA CROW (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
PAUL CHAVEZ (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
PHI NGUYEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
REBECCA CASSLER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
TAMARA SERWER CALDAS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
TAYAH WOODARD (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
VICTORIA MESA-ESTRADA

Petitioner PETER OWUSU

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DOUG GILFILLAN (See above for address) ATTORNEY TO BE NOTICED
MELISSA CROW (See above for address) ATTORNEY TO BE NOTICED
AMANDA N BROUILLETTE (See above for address) ATTORNEY TO BE NOTICED
represented by AMANDA BROUILLETTE 1100 PEACHTREE ST NE STE 2800 ATLANTA, GA 30309 404-815-6006 Email: abrouillette@kilpatricktownsend.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
CAITLIN JOY SANDLEY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
GRACIE WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
HILLARY LI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
KATHRYN ISTED (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

LORILEI WILLIAMS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELISSA CROW (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
PAUL CHAVEZ (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
PHI NGUYEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
REBECCA CASSLER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
TAMARA SERWER CALDAS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
TAYAH WOODARD (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
VICTORIA MESA-ESTRADA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DOUG GILFILLAN (See above for address) ATTORNEY TO BE NOTICED
MELISSA CROW

Petitioner JOSEPH LLOYD THOMPSON

(See above for address) ATTORNEY TO BE NOTICED
AMANDA N BROUILLETTE (See above for address) ATTORNEY TO BE NOTICED
represented by AMANDA BROUILLETTE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
CAITLIN JOY SANDLEY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
GRACIE WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
HILLARY LI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
KATHRYN ISTED (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
LORILEI WILLIAMS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELISSA CROW (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
PAUL CHAVEZ (See above for address) LEAD ATTORNEY

Petitioner ANSUMANA JAMMEH

ATTORNEY TO BE NOTICED
PHI NGUYEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
REBECCA CASSLER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
TAMARA SERWER CALDAS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
TAYAH WOODARD (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
VICTORIA MESA-ESTRADA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DOUG GILFILLAN (See above for address) ATTORNEY TO BE NOTICED
MELISSA CROW (See above for address) ATTORNEY TO BE NOTICED
AMANDA N BROUILLETTE (See above for address) ATTORNEY TO BE NOTICED
represented by AMANDA BROUILLETTE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
CAITLIN JOY SANDLEY

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
GRACIE WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
HILLARY LI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
KATHRYN ISTED (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
LORILEI WILLIAMS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELISSA CROW (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
PAUL CHAVEZ (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
PHI NGUYEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
REBECCA CASSLER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
TAMARA SERWER CALDAS (See above for address)

Petitioner KAREN LOPEZ

LEAD ATTORNEY ATTORNEY TO BE NOTICED
TAYAH WOODARD (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
VICTORIA MESA-ESTRADA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DOUG GILFILLAN (See above for address) ATTORNEY TO BE NOTICED
MELISSA CROW (See above for address) ATTORNEY TO BE NOTICED
AMANDA N BROUILLETTE (See above for address) ATTORNEY TO BE NOTICED
represented by AMANDA BROUILLETTE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
CAITLIN JOY SANDLEY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
GRACIE WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
HILLARY LI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

KATHRYN ISTED (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
LORILEI WILLIAMS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELISSA CROW (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
PAUL CHAVEZ (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
PHI NGUYEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
REBECCA CASSLER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
TAMARA SERWER CALDAS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
TAYAH WOODARD (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
VICTORIA MESA-ESTRADA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DOUG GILFILLAN

Petitioner
NILSON FERNANDO BARAHONA MARRIAGA

(See above for address) ATTORNEY TO BE NOTICED
MELISSA CROW (See above for address) ATTORNEY TO BE NOTICED
AMANDA N BROUILLETTE (See above for address) ATTORNEY TO BE NOTICED
represented by AMANDA BROUILLETTE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
CAITLIN JOY SANDLEY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
GRACIE WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
HILLARY LI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
KATHRYN ISTED (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
LORILEI WILLIAMS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELISSA CROW (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Petitioner SHELLEY DINGUS

PAUL CHAVEZ (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
PHI NGUYEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
REBECCA CASSLER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
TAMARA SERWER CALDAS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
TAYAH WOODARD (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
VICTORIA MESA-ESTRADA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DOUG GILFILLAN (See above for address) ATTORNEY TO BE NOTICED
MELISSA CROW (See above for address) ATTORNEY TO BE NOTICED
AMANDA N BROUILLETTE (See above for address) ATTORNEY TO BE NOTICED
represented by AMANDA BROUILLETTE (See above for address)

LEAD ATTORNEY ATTORNEY TO BE NOTICED
CAITLIN JOY SANDLEY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
GRACIE WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
HILLARY LI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
KATHRYN ISTED (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
LORILEI WILLIAMS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELISSA CROW (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
PAUL CHAVEZ (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
PHI NGUYEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
REBECCA CASSLER (See above for address) LEAD ATTORNEY

Petitioner KIMBERLY SALAZAR

ATTORNEY TO BE NOTICED
TAMARA SERWER CALDAS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
TAYAH WOODARD (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
VICTORIA MESA-ESTRADA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DOUG GILFILLAN (See above for address) ATTORNEY TO BE NOTICED
MELISSA CROW (See above for address) ATTORNEY TO BE NOTICED
AMANDA N BROUILLETTE (See above for address) ATTORNEY TO BE NOTICED
represented by CAITLIN JOY SANDLEY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DOUG GILFILLAN (See above for address) ATTORNEY TO BE NOTICED
HILLARY LI (See above for address) ATTORNEY TO BE NOTICED
LORILEI WILLIAMS (See above for address) ATTORNEY TO BE NOTICED

Petitioner SONIA CABRERA BENITEZ
Petitioner

MELISSA CROW (See above for address) ATTORNEY TO BE NOTICED
PAUL CHAVEZ (See above for address) ATTORNEY TO BE NOTICED
AMANDA N BROUILLETTE (See above for address) ATTORNEY TO BE NOTICED
represented by CAITLIN JOY SANDLEY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DOUG GILFILLAN (See above for address) ATTORNEY TO BE NOTICED
HILLARY LI (See above for address) ATTORNEY TO BE NOTICED
LORILEI WILLIAMS (See above for address) ATTORNEY TO BE NOTICED
MELISSA CROW (See above for address) ATTORNEY TO BE NOTICED
PAUL CHAVEZ (See above for address) ATTORNEY TO BE NOTICED
AMANDA N BROUILLETTE (See above for address) ATTORNEY TO BE NOTICED

HUGH TINARWO
Petitioner SHEHZA KHAN

represented by CAITLIN JOY SANDLEY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DOUG GILFILLAN (See above for address) ATTORNEY TO BE NOTICED
HILLARY LI (See above for address) ATTORNEY TO BE NOTICED
LORILEI WILLIAMS (See above for address) ATTORNEY TO BE NOTICED
MELISSA CROW (See above for address) ATTORNEY TO BE NOTICED
PAUL CHAVEZ (See above for address) ATTORNEY TO BE NOTICED
AMANDA N BROUILLETTE (See above for address) ATTORNEY TO BE NOTICED
represented by CAITLIN JOY SANDLEY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DOUG GILFILLAN (See above for address) ATTORNEY TO BE NOTICED
HILLARY LI (See above for address) ATTORNEY TO BE NOTICED
LORILEI WILLIAMS (See above for address) ATTORNEY TO BE NOTICED

V.
Respondent
WARDEN MICHAEL DONAHUE

MELISSA CROW (See above for address) ATTORNEY TO BE NOTICED
PAUL CHAVEZ (See above for address) ATTORNEY TO BE NOTICED
AMANDA N BROUILLETTE (See above for address) ATTORNEY TO BE NOTICED
represented by AMELIA G HELMICK United States Attorney's Office PO BOX 2568 COLUMBUS, GA 31902 706-649-7700 Email: amy.helmick@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
BERNARD SNELL US ATTORNEY'S OFFICE PO BOX 1702 MACON, GA 31202-1702 478-752-3511 Email: bernard.snell@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
BOWEN REICHERT SHOEMAKER US ATTORNEY'S OFFICE PO BOX 1702 MACON, GA 31202 478-752-3511 Email: bowen.shoemaker@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
LANCE SIMON

Respondent DAVID PAULK
Respondent THOMAS GILES

US ATTORNEY'S OFFICE PO BOX 1702 MACON, GA 31202 478-621-2663 Email: lance.simon@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by AMELIA G HELMICK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BERNARD SNELL (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BOWEN REICHERT SHOEMAKER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
LANCE SIMON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by AMELIA G HELMICK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BERNARD SNELL (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BOWEN REICHERT SHOEMAKER (See above for address) LEAD ATTORNEY

Respondent MATTHEW T ALBENCE
Respondent CHAD WOLF

ATTORNEY TO BE NOTICED
LANCE SIMON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by AMELIA G HELMICK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BERNARD SNELL (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BOWEN REICHERT SHOEMAKER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
LANCE SIMON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by AMELIA G HELMICK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BERNARD SNELL (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BOWEN REICHERT SHOEMAKER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent ICE IMMIGRATION AND CUSTOM ENFORCEMENT
Respondent Warden RUSSELL WASHBURN

LANCE SIMON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by AMELIA G HELMICK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BERNARD SNELL (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BOWEN REICHERT SHOEMAKER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
LANCE SIMON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by BOWEN REICHERT SHOEMAKER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
LANCE SIMON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
AMELIA G HELMICK (See above for address) ATTORNEY TO BE NOTICED
DANIEL P STRUCK

Notice
UNITED STATES OF AMERICA (NOTICE)

STRUCK LOVE BAJANOWSKI & ACEDO 3100 W RAY RD #300 CHANDLER, AZ 85226 480-420-1600 Email: dstruck@strucklove.com ATTORNEY TO BE NOTICED
represented by AMELIA G HELMICK (See above for address) ATTORNEY TO BE NOTICED

Date Filed 04/07/2020

# Docket Text
1 PETITION FOR WRIT OF HABEAS CORPUSagainst
All Defendants Fee paid: Receipt # AGAMDC-3436448, $5 filed by All Plaintiffs (Attachments: # 1 Civil Cover Sheet Civil Cover Sheet, # 2 Required Form Certificate of Interested Persons, # 3 Summons Chad Wolf Summons, # 4 Summons Charles E. Peeler (US Attorney - MDGA) Summons, # 5 Summons David Paulk Summons, # 6 Summons ICE Summons, # 7 Summons Matthew Albence Summons, # 8 Summons Michael Donahue Summons, # 9 Summons Thomas Giles Summons, # 10 Summons US Attorney General Summons, # 11 Required Form Motion for Temporary Restraining Order and Emergency Writ of Habeas Corpus, # 12 Memorandum in Support Memo ISO Motion for Temporary Restraining Order and Emergency Writ of Habeas Corpus, # 13 Affidavit Declaration of Hillary Li, # 14 Exhibit Ex. 1 Greifinger Declaration, # 15 Exhibit Ex. 2 Cummings Declaration, # 16 Exhibit Ex. 3 Zeidan Declaration, # 17 Exhibit Ex. 4 Sandweg Declaration, # 18 Exhibit Ex. 5 Murillo Declaration, # 19 Exhibit Ex. 6 Ruiz Declaration, # 20 Exhibit Ex. 7 Rivera Declaration, # 21 Exhibit Ex. 8 Thompson Declaration, # 22 Exhibit Ex. 9 A. Jammeh Declaration, # 23 Exhibit Ex. 10 Karen Lopez Declaration, # 24 Exhibit Ex. 11 Nilson Barahona Marriaga Declaration, # 25 Exhibit Ex. 12 Shelley Dingus Declaration, # 26 Exhibit Ex. 13 Aristoteles Sanchez Martinez Declaration, # 27 Exhibit Ex. 14 Michael Robinson Declaration, # 28 Exhibit Ex. 15 Peter Owusu Declaration, # 29 Exhibit Ex. 16 Martin Rosenbluth Declaration, # 30 Exhibit Ex. 17 Alison Ganem Declaration, # 31 Proposed Order Proposed Order, # 32 Required Form Motion for Leave to Proceed Under Pseudonyms and For a Protective Order, # 33 Memorandum in Support Memo ISO

04/07/2020 04/08/2020 04/08/2020 04/08/2020
04/08/2020 04/08/2020 04/08/2020 04/08/2020

Motion for Leave to Proceed Under Pseudonyms and For a Protective Order, # 34 Proposed Order Proposed Order)(LI, HILLARY) (Entered: 04/07/2020)
Case REASSIGNED to US DISTRICT JUDGE CLAY D LAND. US DISTRICT JUDGE W LOUIS SANDS no longer assigned to the case. (dwb) (Entered: 04/07/2020)
Notice of Deficiency (related document(s): 1 Petition for Writ of Habeas Corpus ); All motions attached to the petition should be filed as separate documents not a part of the petition. PLEASE REFILE ALL MOTIONS AS MOTIONS.(rlw) (Entered: 04/08/2020)
NOTICE OF SETTING Telephone Conference set for 4/8/2020 10:00 AM in Columbus before US DISTRICT JUDGE CLAY D LAND. Counsel will receive an email with the dial in information. Do not use speakerphone or Bluetooth. Please state you NAME each time you speak on the record.(glg) (Entered: 04/08/2020)
NOTICE TO COUNSEL LORILEI WILLIAMS, PAUL CHAVEZ, VICTORIA MESA-ESTRADA, MELISSA CROW, KATHRYN E ISTED, AMANDA BROUILLETTE - Counsel is notified that they do not show in the court records that they meet the required attorney admissions policies of this court. If within 14 days of this notice all requirements, including the payment of Pro Hac Vice or admissions fees, have not been met, a show cause hearing will be scheduled. (rlw) (Entered: 04/08/2020)
2 ORDER REFERRING CASE to Magistrate Judge issued at the
direction of the Court. (rlw) (Entered: 04/08/2020)
3 Consent Form (28 USC 636(c)(1)) sent to NILSON FERNANDO BARAHONA MARRIAGA, SHELLEY DINGUS, ANSUMANA JAMMEH, KAREN LOPEZ, ARISTOTELES SANCHEZ MARTINEZ, PETER OWUSU, MICHAEL ROBINSON, JOSEPH LLOYD THOMPSON (rlw) (Entered: 04/08/2020)
4 Summons Issued as to United States Attorney General. (Attachments: # 1 Summons issued for Matthew T. Albence, # 2 Summons issued for Michael Donahue, # 3 Summons issued for Thomas Giles, # 4 Summons issued for ICE, # 5 Summons issued for David Paulk, # 6 Summons issued for Charles E. Peeler, # 7 Summons issued for Chad Wolf)(rlw) (Entered: 04/08/2020)
5 EMERGENCY MOTION for Temporary Restraining Order by NILSON FERNANDO BARAHONA MARRIAGA, SHELLEY

04/08/2020 04/08/2020 04/08/2020 04/08/2020

DINGUS, ANSUMANA JAMMEH, KAREN LOPEZ, ARISTOTELES SANCHEZ MARTINEZ, PETER OWUSU, MICHAEL ROBINSON, JOSEPH LLOYD THOMPSON filed by HILLARY LI. (Attachments: # 1 Memorandum in Support Memo ISO Motion for Temporary Restraining Order and Emergency Writ of Habeas Corpus, # 2 Affidavit Declaration of Hillary Li, # 3 Exhibit EX. 1 Greifinger Declaration, # 4 Exhibit EX. 2 Cummings Declaration, # 5 Exhibit EX. 3 Zeidan Declaration, # 6 Exhibit EX. 4 Sandweg Declaration, # 7 Exhibit EX. 5 Murillo Declaration, # 8 Exhibit EX. 6 Ruiz Declaration, # 9 Exhibit EX. 7 Rivera Declaration, # 10 Exhibit EX. 8 Thompson Declaration, # 11 Exhibit EX. 9 Ansumannah Jammeh Declaration, # 12 Exhibit EX. 10 Karen Lopez Declaration, # 13 Exhibit EX. 11 Nilson Barahona Marriaga Declaration, # 14 Exhibit EX. 12 Shelley Dingus Declaration, # 15 Exhibit EX. 13 Aristoteles Sanchez Martinez Declaration, # 16 Exhibit EX. 14 Michael Robinson Declaration, # 17 Exhibit EX. 15 Peter Owusu Declaration, # 18 Exhibit EX. 16 Martin Rosenbluth Declaration, # 19 Exhibit EX. 17 Alison Ganem Declaration, # 20 Proposed Order Proposed Order for TRO). Motion(s) referred to STEPHEN HYLES.(LI, HILLARY) (Entered: 04/08/2020)
6 MOTION for Leave to File to Proceed Under Pseudonyms and for a Protective Order by KAREN LOPEZ, PETER OWUSU, MICHAEL ROBINSON filed by HILLARY LI. (Attachments: # 1 Memorandum in Support Memo ISO Motion for Leave to Proceed Under Pseudonyms and For a Protective Order, # 2 Proposed Order Proposed Order). Motion(s) referred to STEPHEN HYLES.(LI, HILLARY) (Entered: 04/08/2020)
7 AFFIDAVIT re 5 MOTION for Temporary Restraining Order Correcting Declaration of Laura Rivera by NILSON FERNANDO BARAHONA MARRIAGA, SHELLEY DINGUS, ANSUMANA JAMMEH, KAREN LOPEZ, ARISTOTELES SANCHEZ MARTINEZ, PETER OWUSU, MICHAEL ROBINSON, JOSEPH LLOYD THOMPSON (LI, HILLARY) (Entered: 04/08/2020)
8 Minute Entry for proceedings held before US DISTRICT JUDGE CLAY D LAND: Telephone Conference held on 4/8/2020. Court Reporter: Betsy Peterson. (glg) (Entered: 04/08/2020)
NOTICE OF SETTING (TELEPHONE CONFERENCE) HEARING ON MOTION re 5 MOTION for Temporary Restraining Order : Motion Hearing set for 4/10/2020 10:30 AM in Columbus before US DISTRICT JUDGE CLAY D LAND.

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04/10/2020 04/10/2020

Telephone conference Dial-in information 1-888-684-8852 Participant Access Code -- 8469390 Security Code You may bypass the Security code. The dial-in information is being included in this filing at the direction of the Court. It will NOT be emailed to Counsel.(glg) (Entered: 04/08/2020)
9 MEMORANDUM in Support filed by NILSON FERNANDO BARAHONA MARRIAGA, SHELLEY DINGUS, ANSUMANA JAMMEH, KAREN LOPEZ, ARISTOTELES SANCHEZ MARTINEZ, PETER OWUSU, MICHAEL ROBINSON, JOSEPH LLOYD THOMPSON re: 5 MOTION for Temporary Restraining Order (Attachments: # 1 Attachment to Supplemental Memorandum)(LI, HILLARY) (Entered: 04/08/2020)
10 MOTION for Leave to File Excess Pages for for Brief in Opposition to Petitioners' Motion for Temporary Restraining Order by MATTHEW T ALBENCE, MICHAEL DONAHUE, THOMAS GILES, ICE IMMIGRATION AND CUSTOM ENFORCEMENT, DAVID PAULK, CHAD WOLF filed by AMELIA G HELMICK.. Motion(s) referred to STEPHEN HYLES.(HELMICK, AMELIA) (Entered: 04/09/2020)
11 This is a text only entry; no document
issued. ORDER granting 10 Motion for Leave to File Excess
Pages. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 4-9-20. (jdl) (Entered: 04/09/2020)
12 RESPONSE filed by MATTHEW T ALBENCE, MICHAEL DONAHUE, THOMAS GILES, ICE IMMIGRATION AND CUSTOM ENFORCEMENT, DAVID PAULK, UNITED STATES OF AMERICA (NOTICE), CHAD WOLF re 5 MOTION for Temporary Restraining Order (Attachments: # 1 Affidavit Bretz Declaration, # 2 Affidavit Musante Declaration, # 3 Affidavit Paulk Declaration, # 4 Affidavit Washburn Declaration and Exhibits)(HELMICK, AMELIA) (Entered: 04/09/2020)
13 NOTICE Filing Executed Washburn Declaration by MATTHEW T ALBENCE, MICHAEL DONAHUE, THOMAS GILES, ICE IMMIGRATION AND CUSTOM ENFORCEMENT, DAVID PAULK re 12 Response to Motion, (HELMICK, AMELIA) (Entered: 04/10/2020)
14 ORDER denying 5 Motion for TRO. Ordered by US DISTRICT
JUDGE CLAY D LAND on 4/10/2020. (sbd) (Entered: 04/10/2020)

04/10/2020 04/13/2020
04/23/2020 04/23/2020
04/23/2020 04/23/2020

16 Minute Entry for proceedings held before US DISTRICT JUDGE CLAY D LAND: Telephone Conference held on 4/10/2020 Court Reporter: Betsy Peterson. (glg) (Entered: 04/14/2020)
15 This is a text only entry; no document
issued. ORDER granting 6 Motion for Leave to Proceed under
Pseudonyms. Doe Petitioners may proceed in this action under pseudonyms and the Respondents/Defendants are required to maintain the confidentiality of the Doe Petitioners identities by using only pseudonyms in all of their filings, including in all exhibits in which the Doe Petitioners names appear. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 4-13-20 (jdl) (Entered: 04/13/2020)
SECOND NOTICE TO COUNSEL LORILEI WILLIAMS, PAUL CHAVEZ, VICTORIA MESA-ESTRADA, MELISSA CROW, KATHRYN E ISTED, AMANDA BROUILLETTE Counsel is notified that they do not show in the court records that they meet the required attorney admissions policies of this court. If within 14 days of this notice all requirements, including the payment of Pro Hac Vice or admissions fees, have not been met, a show cause hearing will be scheduled. (rlw) (Entered: 04/23/2020)
17 PETITION TO THE CLERK FOR ADMISSION TO PLEAD AND PRACTICE PRO HAC VICE by NILSON FERNANDO BARAHONA MARRIAGA, SHELLEY DINGUS, ANSUMANA JAMMEH, KAREN LOPEZ, ARISTOTELES SANCHEZ MARTINEZ, PETER OWUSU, MICHAEL ROBINSON, JOSEPH LLOYD THOMPSON Attorney Admission Fee (Pro Hac Vice) paid by Receipt # AGAMDC-3449377, $100. LOCAL COUNSEL Name and Georgia Bar #: Hillary Li GA Bar #898375. (Attachments: # 1 Certificate of Good Standing Certificate of Good Standing from USDC SDFL)(MESA-ESTRADA, VICTORIA) (Entered: 04/23/2020)
18 Order granting Petition for Admission Pro Hac Vice (Petition Attached); Attorney Admission Fee Met by VICTORIA MESAESTRADA (nop) (Entered: 04/23/2020)
19 TRANSCRIPT of Proceedings held on 4/10/2020, before Judge Clay D. Land. Court Reporter/Transcriber Betsy Peterson. Volume Number: I of I. The transcript may be inspected at the court or purchased through the court reporter for a period of 90 days. After 90 days, the transcript may be obtained via PACER. REDACTION OF TRANSCRIPTS: Complete redaction policy

04/24/2020
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04/28/2020 04/28/2020

available on the courts website. (Peterson, Betsy) (Entered: 04/23/2020)
20 AMENDED 1 Petition for Writ of Habeas Corpus,,,,,,, against MATTHEW T ALBENCE, MICHAEL DONAHUE, THOMAS GILES, ICE IMMIGRATION AND CUSTOM ENFORCEMENT, DAVID PAULK, CHAD WOLF, RUSSELL WASHBURN by NILSON FERNANDO BARAHONA MARRIAGA, MICHAEL ROBINSON, ARISTOTELES SANCHEZ MARTINEZ, KAREN LOPEZ, PETER OWUSU, SHELLEY DINGUS, JOSEPH LLOYD THOMPSON, ANSUMANA JAMMEH, KIMBERLY SALAZAR, SONIA CABRERA BENITEZ, RUSSELL WASHBURN, HUGH TINARWO, SHEHZA KHAN (Attachments: # 1 Summons Summons - Washburn)(BROUILLETTE, AMANDA) (Entered: 04/24/2020)
21 Summons Issued as to RUSSELL WASHBURN. (rlw) (Entered: 04/27/2020)
22 ORDER setting deadline for filing of answer/response
to 20 Amended Petition/Complaint. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 4-27-20. (jdl) (Entered: 04/27/2020)
23 PETITION TO THE CLERK FOR ADMISSION TO PLEAD AND PRACTICE PRO HAC VICE by NILSON FERNANDO BARAHONA MARRIAGA, SONIA CABRERA BENITEZ, SHELLEY DINGUS, ANSUMANA JAMMEH, SHEHZA KHAN, KAREN LOPEZ, ARISTOTELES SANCHEZ MARTINEZ, PETER OWUSU, MICHAEL ROBINSON, KIMBERLY SALAZAR, JOSEPH LLOYD THOMPSON, HUGH TINARWO Attorney Admission Fee (Pro Hac Vice) paid by Receipt # AGAMDC-3452021, $100. LOCAL COUNSEL Name and Georgia Bar #: Gracie Willis GA Bar# 851021. (Attachments: # 1 Certificate of Good Standing Certificate of Good Standing)(WILLIAMS, LORILEI) (Entered: 04/28/2020)
24 Order granting Petition for Admission Pro Hac Vice (Petition Attached); Attorney Admission Fee Met by LORILEI WILLIAMS (nop) (Entered: 04/28/2020)
25 Order granting Petition for Admission Pro Hac Vice (Petition Attached); Attorney Admission Fee Met by VICTORIA MESAESTRADA (nop) (Entered: 04/28/2020)

04/28/2020 04/28/2020 04/30/2020
04/30/2020 04/30/2020

26 UNOPPOSED MOTION for Leave to File Excess Pages for to Exceed Page Limitation for Memo ISO Motion for Preliminary Injunction by NILSON FERNANDO BARAHONA MARRIAGA, SONIA CABRERA BENITEZ, SHELLEY DINGUS, ANSUMANA JAMMEH, SHEHZA KHAN, KAREN LOPEZ, ARISTOTELES SANCHEZ MARTINEZ, PETER OWUSU, MICHAEL ROBINSON, KIMBERLY SALAZAR, JOSEPH LLOYD THOMPSON, HUGH TINARWO filed by AMANDA N BROUILLETTE.. Motion(s) referred to STEPHEN HYLES.(BROUILLETTE, AMANDA) (Entered: 04/28/2020)
27 This is a text only entry; no document
issued. ORDER granting 26 Motion for Leave to File Excess
Pages. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 4-28-20. (jdl) (Entered: 04/28/2020)
28 MOTION for Preliminary Injunction by NILSON FERNANDO BARAHONA MARRIAGA, SONIA CABRERA BENITEZ, SHELLEY DINGUS, ANSUMANA JAMMEH, SHEHZA KHAN, KAREN LOPEZ, ARISTOTELES SANCHEZ MARTINEZ, PETER OWUSU, MICHAEL ROBINSON, KIMBERLY SALAZAR, JOSEPH LLOYD THOMPSON, HUGH TINARWO filed by AMANDA N BROUILLETTE. (Attachments: # 1 Memorandum in Support Memorandum of Law ISO Motion for Preliminary Injunction and Emergency Writ of Habeas Corpus, # 2 Affidavit Declaration of Amanda Brouillette, Esq., # 3 Exhibit Ex 1 Hugh Tinarwo Declaration, # 4 Exhibit Ex 2 Shehza Khan Declaration, # 5 Exhibit Ex 3 Kimberly Salazar Declaration, # 6 Exhibit Ex 4 Sonia Cabrera Benitez Declaration, # 7 Exhibit Ex 5 Peter Owusu Supplemental Dec, # 8 Exhibit Ex 6 Joseph Thompson Supplemental Dec, # 9 Exhibit Ex 7 Nilson Barahona Marriaga Supplemental Dec, # 10 Exhibit Ex 8 Shelley Dingus Supplemental Dec, # 11 Exhibit Ex 9 Karen Lopez Supplemental Dec, # 12 Exhibit Ex 10 Erin Argueta Declaration, # 13 Exhibit Ex 11 Homer Venters Declaration, # 14 Exhibit Ex 12 Modeling for COVID-19, # 15 Exhibit Ex 13 Ansumannah Jammeh Supplemental Dec). Motion(s) referred to STEPHEN HYLES.(BROUILLETTE, AMANDA) (Entered: 04/30/2020)
29 UNOPPOSED MOTION For Leave to Proceed Under Pseudonym and For a Protective Order by KIMBERLY SALAZAR filed by AMANDA N BROUILLETTE.. Motion(s) referred to STEPHEN HYLES.(BROUILLETTE, AMANDA) (Entered: 04/30/2020)
30 This is a text only entry; no document
issued. ORDER granting 29 Motion for Leave to Proceed Under

04/30/2020 05/01/2020 05/01/2020

Pseudonym. Doe Petitioners may proceed in this action under pseudonyms and the Respondents/Defendants are required to maintain the confidentiality of the Doe Petitioners identities by using only pseudonyms in all of their filings, including in all exhibits in which the Doe Petitioners names appear. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 4-30-20. (jdl) (Entered: 04/30/2020)
31 This is a text only entry; no document issued.ORDER The Court
directs Respondents to respond to Petitioners' most recent Motion for Preliminary Injunction and Emergency Writ of Habeas Corpus (ECF No. 28) by May 21, 2020. Ordered by US DISTRICT JUDGE CLAY D LAND on 4/30/2020. (hmb) (Entered: 04/30/2020)
NOTICE OF SETTING TELEPHONE CONFERENCE/STATUS CONFERENCE set for 5/4/2020 10:00 AM in Columbus before US DISTRICT JUDGE CLAY D LAND. Counsel will be emailed the dial-in information. Interested parties may email Columbus.ecf@gamd.uscourts.gov for dial-in information. (glg) Modified on 5/1/2020 (glg). (Entered: 05/01/2020)
32 MOTION for Emergency Inspection and Expedited Preliminary Injunction Hearing re 28 MOTION for Preliminary Injunction by NILSON FERNANDO BARAHONA MARRIAGA, SONIA CABRERA BENITEZ, SHELLEY DINGUS, ANSUMANA JAMMEH, SHEHZA KHAN, KAREN LOPEZ, ARISTOTELES SANCHEZ MARTINEZ, PETER OWUSU, MICHAEL ROBINSON, KIMBERLY SALAZAR, JOSEPH LLOYD THOMPSON, HUGH TINARWO filed by AMANDA N BROUILLETTE. (Attachments: # 1 Memorandum in Support Memorandum ISO Petitioner/Plaintiff's Motion for Emergency Inspection and Expedited Preliminary Injunction Hearing, # 2 Affidavit Declaration of Gracie Willis, # 3 Exhibit Ex. 1 Petitioners' Notice of Entry on Land with copy of Dr. Homer Venters' CV, # 4 Exhibit Ex. 2 Dkt 43 Chunn v. Edge (20-cv01590 EDNY), # 5 Exhibit Ex. 3 Dkt 45 Chunn v. Edge (20-cv01590 EDNY), # 6 Exhibit Ex. 4 Dkt 53 Malam v. Adducci (20cv-10829 EDMI), # 7 Exhibit Ex. 5 Dkt 34 Banks v. Booth (20cv-00849 DDC), # 8 Exhibit Ex. 6 Dkt 53 Zepeda-Rivas v. Jennings (20-cv-02731 NDCA), # 9 Exhibit Ex. 7 Supplemental Declaration of Homer Venters, M.D., # 10 Affidavit Declaration of Lorilei Williams, # 11 Proposed Order Proposed Order). Motion(s) referred to STEPHEN HYLES.(BROUILLETTE, AMANDA) (Entered: 05/01/2020)

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05/04/2020 05/04/2020 05/04/2020 05/05/2020

33 STATUS REPORT by MATTHEW T ALBENCE, MICHAEL DONAHUE, THOMAS GILES, ICE IMMIGRATION AND CUSTOM ENFORCEMENT, DAVID PAULK, RUSSELL WASHBURN (Attachments: # 1 Affidavit Second Washburn Declaration)(HELMICK, AMELIA) (Entered: 05/03/2020)
34 EXHIBIT(S) Declarations of Russell Washburn, David Paulk, and Patrick Musante by MATTHEW T ALBENCE, MICHAEL DONAHUE, THOMAS GILES, ICE IMMIGRATION AND CUSTOM ENFORCEMENT, DAVID PAULK, RUSSELL WASHBURN, CHAD WOLF re 33 Status Report (Attachments: # 1 Declaration of David Paulk, Warden, Irwin County Detention Center, # 2 Declaration of Patrick Musante, Assistant Field Office Director)(HELMICK, AMELIA) (Entered: 05/04/2020)
35 EXHIBIT(S) A - Fraihat Pl Order & Exhibit B - Fraihat Order re Class Certification by MATTHEW T ALBENCE, MICHAEL DONAHUE, THOMAS GILES, ICE IMMIGRATION AND CUSTOM ENFORCEMENT, DAVID PAULK, RUSSELL WASHBURN, CHAD WOLF re 33 Status Report (Attachments: # 1 Exhibit B - Order granting class certification)(HELMICK, AMELIA) (Entered: 05/04/2020)
NOTICE OF SETTING Status Conference/Telephone Conference set for 5/7/2020 10:00 AM in Columbus before US DISTRICT JUDGE CLAY D LAND. Dial-in information 1-888-684-8852/ Participant Access Code -- 8469390 Security Code -- 050720 Interested parties are reminded to MUTE you phone during the call.(glg) Modified on 5/4/2020--to add call in information (glg). (Entered: 05/04/2020)
36 Minute Entry (content for administrative purposes only) for proceedings held before US DISTRICT JUDGE CLAY D LAND: Status Conference held on 5/4/2020 Court Reporter: Betsy Peterson. (glg) (Entered: 05/04/2020)
37 PETITION TO THE CLERK FOR ADMISSION TO PLEAD AND PRACTICE PRO HAC VICE by NILSON FERNANDO BARAHONA MARRIAGA, SONIA CABRERA BENITEZ, SHELLEY DINGUS, ANSUMANA JAMMEH, SHEHZA KHAN, KAREN LOPEZ, ARISTOTELES SANCHEZ MARTINEZ, PETER OWUSU, MICHAEL ROBINSON, KIMBERLY SALAZAR, JOSEPH LLOYD THOMPSON, HUGH TINARWO Attorney Admission Fee (Pro Hac Vice) paid by Receipt # AGAMDC-3457689, $100. LOCAL COUNSEL Name and Georgia Bar #: Gracie Willis GA Bar #851021.

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(Attachments: # 1 Certificate of Good Standing Certificate of Good Standing)(CHAVEZ, PAUL) (Entered: 05/05/2020)
38 Order granting Petition for Admission Pro Hac Vice (Petition Attached); Attorney Admission Fee Met by PAUL CHAVEZ (nop) (Entered: 05/05/2020)
39 PETITION TO THE CLERK FOR ADMISSION TO PLEAD AND PRACTICE PRO HAC VICE by RUSSELL WASHBURN Attorney Admission Fee (Pro Hac Vice) paid by Receipt # AGAMDC-3458620, $100. (STRUCK, DANIEL) (Entered: 05/05/2020)
40 Order granting Petition for Admission Pro Hac Vice (Petition Attached); Attorney Admission Fee Met by DANIEL P STRUCK (nop) (Additional attachment(s) added on 5/14/2020: # 1 Certificate of Good Standing) (nop). (Entered: 05/06/2020)
41 RESPONSE filed by MATTHEW T ALBENCE, MICHAEL DONAHUE, THOMAS GILES, ICE IMMIGRATION AND CUSTOM ENFORCEMENT, DAVID PAULK, RUSSELL WASHBURN, CHAD WOLF re 32 MOTION for Emergency Inspection and Expedited Preliminary Injunction Hearing re 28 MOTION for Preliminary Injunction (SHOEMAKER, BOWEN) (Entered: 05/06/2020)
42 NOTICE of Filing by MATTHEW T ALBENCE, MICHAEL DONAHUE, THOMAS GILES, ICE IMMIGRATION AND CUSTOM ENFORCEMENT, DAVID PAULK, RUSSELL WASHBURN, CHAD WOLF re 32 MOTION for Emergency Inspection and Expedited Preliminary Injunction Hearing re 28 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit ICDC Objections and Response to 32 Motion for Emergency Inspection)(HELMICK, AMELIA) (Entered: 05/06/2020)
43 NOTICE Respondent Warden Washburn's Separate Objection to Petitioners' Notice of Entry Upon Land by RUSSELL WASHBURN re 32 MOTION for Emergency Inspection and Expedited Preliminary Injunction Hearing re 28 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit A - Third Declaration of Warden Washburn)(STRUCK, DANIEL) (Entered: 05/06/2020)
44 NOTICE filing of Petitioners-Plaintiffs' Supplemental Briefing In Support of Motions for Preliminary Injunction and Emergency Inspection by NILSON FERNANDO BARAHONA

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05/06/2020 05/07/2020

MARRIAGA, SONIA CABRERA BENITEZ, SHELLEY DINGUS, ANSUMANA JAMMEH, SHEHZA KHAN, KAREN LOPEZ, ARISTOTELES SANCHEZ MARTINEZ, PETER OWUSU, MICHAEL ROBINSON, KIMBERLY SALAZAR, JOSEPH LLOYD THOMPSON, HUGH TINARWO re 32 MOTION for Emergency Inspection and Expedited Preliminary Injunction Hearing re 28 MOTION for Preliminary Injunction (Attachments: # 1 Affidavit Declaration of Rebecca Cassler, # 2 Exhibit Ex. 1 Email of May 5, 2020, # 3 Exhibit Ex. 2 Alcantara v. Archambeault (Dkt. 41; 20-cv00756))(BROUILLETTE, AMANDA) (Entered: 05/06/2020)
45 Georgia Attorney Admission Fee Met by KATHRYN ISTED (nop) (Entered: 05/06/2020)
Georgia Attorney Admission Fee Met by AMANDA N BROUILLETTE (nop) (Entered: 05/06/2020)
46 NOTICE filing of Supplemental Brief In Support of Petitioners' Motion for Emergency Inspection by NILSON FERNANDO BARAHONA MARRIAGA, SONIA CABRERA BENITEZ, SHELLEY DINGUS, ANSUMANA JAMMEH, SHEHZA KHAN, KAREN LOPEZ, ARISTOTELES SANCHEZ MARTINEZ, PETER OWUSU, MICHAEL ROBINSON, KIMBERLY SALAZAR, JOSEPH LLOYD THOMPSON, HUGH TINARWO re 32 MOTION for Emergency Inspection and Expedited Preliminary Injunction Hearing re 28 MOTION for Preliminary Injunction (Attachments: # 1 Affidavit Declaration of Gracie Willis, Esq., # 2 Exhibit Ex. 1 Swain v. Miami-Dade County (Dkt. 52; 20-cv-21457 SDFL), # 3 Exhibit Ex. 2 Seth v. McDonough (Dkt. 53; 20-cv-01028 DCMD), # 4 Exhibit Ex. 3 Cameron v. Bouchard (Dkt. 2720-cv-10949 SDMI), # 5 Exhibit Ex. 4 Chunn v. Edge (Dkt. 53; 20-cv-01590 EDNY), # 6 Exhibit Ex. 5 Chunn v. Edge (Dkt. 72-1; 20-01590 EDNY), # 7 Affidavit Declaration of Lorilei Williams, Esq.)(BROUILLETTE, AMANDA) (Entered: 05/06/2020)
47 NOTICE Supplemental Authority by RUSSELL WASHBURN re 43 Notice (Other), (Attachments: # 1 Exhibit 1 - Order Granting in Part and Denying in Part Warden LaRose's Emergency Ex Party Motion for Reconsideration in Alcantara v. Archambeault)(STRUCK, DANIEL) (Entered: 05/06/2020)
48 Minute Entry (content for administrative purposes only) for proceedings held before US DISTRICT JUDGE CLAY D LAND:

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05/07/2020 05/11/2020

Status Conference held on 5/7/2020. Court Reporter: Betsy Peterson. (glg) (Entered: 05/07/2020)

NOTICE OF SETTING Telephone Conference set for 5/28/2020 10:00 AM in Columbus before US DISTRICT JUDGE CLAY D LAND. COUNSEL MUST STATE YOUR NAME EACH TIME YOU SPEAK. Public dial-in information-- 1-888-6848852 /// Access Code 2405111 This number will allow the PUBLIC to listen (only) to the conference. COUNSEL will use the dial-in information supplied to them in an email from the Courtroom Deputy.(glg) (Entered: 05/07/2020)

49 NOTICE of Supplemental Authority in Support of Motions for Emergency Inspection by NILSON FERNANDO BARAHONA MARRIAGA, SONIA CABRERA BENITEZ, SHELLEY DINGUS, ANSUMANA JAMMEH, SHEHZA KHAN, KAREN LOPEZ, ARISTOTELES SANCHEZ MARTINEZ, PETER OWUSU, MICHAEL ROBINSON, KIMBERLY SALAZAR, JOSEPH LLOYD THOMPSON, HUGH TINARWO re 32 MOTION for Emergency Inspection and Expedited Preliminary Injunction Hearing re 28 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit Ex. 1 Order entered by Honorable Judge Weigle on Oct. 20, 2017 in Gumm v. Sellers (15cv-00041) 2017 WL 5885315 (MDGA), # 2 Exhibit Ex. 2 Transcript of Discovery Hearing held Oct. 19, 2017, Gumm v. Sellers (15-cv-0041, MDGA) Dkt. 153, # 3 Exhibit Ex. 3 Expert Report, Dkt 159, Gumm v. Sellers (15-cv-0041, MDGA))(BROUILLETTE, AMANDA) (Entered: 05/07/2020)

ORDER granting in part and denying in part 32 Motion for

50

Emergency Inspection and Expedited Discovery. Petitioners shall

be permitted to depose via telephone or videoconference up to

seven detainees in each detention facility on or before May 18,

2020; prior to May 18, 2020, Respondents shall arrange for a

virtual tour of the facilities that will include Petitioners' and

Respondents' counsel and experts. A hearing shall be held on

motion for preliminary injunctive relief at 10:00 A.M. on May 28,

2020. Petitioners' brief in support of its motion for preliminary

injunctive relief shall be filed by 5:00 P.M. on May 21, 2020 and

Respondents' response shall be filed by 12:00 Noon on May 27,

2020. Ordered by US DISTRICT JUDGE CLAY D LAND on

5/7/2020. (rlw) (Entered: 05/07/2020)

51 MOTION for Leave to File a Second Amended Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief by NILSON FERNANDO BARAHONA MARRIAGA,

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05/15/2020
05/18/2020

SONIA CABRERA BENITEZ, SHELLEY DINGUS, ANSUMANA JAMMEH, SHEHZA KHAN, KAREN LOPEZ, ARISTOTELES SANCHEZ MARTINEZ, PETER OWUSU, MICHAEL ROBINSON, KIMBERLY SALAZAR, JOSEPH LLOYD THOMPSON, HUGH TINARWO filed by AMANDA N BROUILLETTE. (Attachments: # 1 Exhibit 1 - Second Amended Petition CLEAN, # 2 Exhibit 2 - Second Amended Petition REDLINE). Motion(s) referred to STEPHEN HYLES.(BROUILLETTE, AMANDA) (Entered: 05/11/2020)
52 NOTICE of Attorney Appearance by CAITLIN JOY SANDLEY on behalf of All Plaintiffs (SANDLEY, CAITLIN) (Entered: 05/14/2020)
53 NOTICE of Attorney Appearance by LANCE SIMON on behalf of All Defendants (SIMON, LANCE) (Entered: 05/14/2020)
54 RESPONSE filed by MATTHEW T ALBENCE, MICHAEL DONAHUE, THOMAS GILES, ICE IMMIGRATION AND CUSTOM ENFORCEMENT, DAVID PAULK, RUSSELL WASHBURN, CHAD WOLF re 51 MOTION for Leave to File a Second Amended Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief (HELMICK, AMELIA) (Entered: 05/15/2020)
55 NOTICE Joinder in Respondents' Opposition to Petitioners' Motion for Leave to File a Second Amended Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief by RUSSELL WASHBURN re 51 MOTION for Leave to File a Second Amended Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief, 54 Response to Motion, (STRUCK, DANIEL) (Entered: 05/15/2020)
56 This is a text only entry; no document
issued. ORDER granting 51 Motion for Leave to File Second
Amended Complaint. Notwithstanding serious doubts about the legal viability of Plaintiffs' proposed amendments to their complaint, the Court nevertheless does not find them futile at this time. Upon further more careful reflection, the Court may reconsider and find the new claims subject to dismissal. But in light of the imminent hearing on Petitioners' motion for emergency preliminary injunctive relief, the Court permits Petitioners to assert these additional claims in support of the relief they seek. Accordingly, Petitioners shall file their Second Amended Complaint by 5:00 P.M. on May 19, 2020. Ordered by US

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DISTRICT JUDGE CLAY D LAND on May 18, 2020 (CDL) (Entered: 05/18/2020)

57 AMENDED 1 Petition for Writ of Habeas Corpus,,,,,,, against MATTHEW T ALBENCE, MICHAEL DONAHUE, THOMAS GILES, ICE IMMIGRATION AND CUSTOM ENFORCEMENT, DAVID PAULK, RUSSELL WASHBURN, CHAD WOLF by HUGH TINARWO, NILSON FERNANDO BARAHONA MARRIAGA, MICHAEL ROBINSON, KIMBERLY SALAZAR, ARISTOTELES SANCHEZ MARTINEZ, SHEHZA KHAN, SONIA CABRERA BENITEZ, KAREN LOPEZ, PETER OWUSU, SHELLEY DINGUS, JOSEPH LLOYD THOMPSON, ANSUMANA JAMMEH (BROUILLETTE, AMANDA) (Entered: 05/18/2020)

58 JOINT MOTION for Protective Order by MATTHEW T ALBENCE, MICHAEL DONAHUE, THOMAS GILES, ICE IMMIGRATION AND CUSTOM ENFORCEMENT, DAVID PAULK, RUSSELL WASHBURN, CHAD WOLF filed by BOWEN REICHERT SHOEMAKER. (Attachments: # 1 Exhibit A - Proposed Protective Order). Motion(s) referred to STEPHEN HYLES.(SHOEMAKER, BOWEN) (Entered: 05/18/2020)

ORDER granting 58 Motion for Protective Order. Ordered by

59

US DISTRICT JUDGE CLAY D LAND on 5/19/2020. (rlw)

(Entered: 05/19/2020)

60 PETITION TO THE CLERK FOR ADMISSION TO PLEAD AND PRACTICE PRO HAC VICE by NILSON FERNANDO BARAHONA MARRIAGA, SONIA CABRERA BENITEZ, SHELLEY DINGUS, ANSUMANA JAMMEH, SHEHZA KHAN, KAREN LOPEZ, ARISTOTELES SANCHEZ MARTINEZ, PETER OWUSU, MICHAEL ROBINSON, KIMBERLY SALAZAR, JOSEPH LLOYD THOMPSON, HUGH TINARWO Attorney Admission Fee (Pro Hac Vice) paid by Receipt # AGAMDC-3468340, $100. LOCAL COUNSEL Name and Georgia Bar #: Tayah Woodard GA Bar #312548. (Attachments: # 1 Certificate of Good Standing Certificate of Good Standing)(CROW, MELISSA) (Entered: 05/19/2020)

61 Order granting Petition for Admission Pro Hac Vice (Petition Attached); Attorney Admission Fee Met by MELISSA CROW (nop) (Entered: 05/19/2020)

62 UNOPPOSED MOTION for Leave to File Excess Pages for Brief in Support of Preliminary Injunction Motion by NILSON

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FERNANDO BARAHONA MARRIAGA, SONIA CABRERA BENITEZ, SHELLEY DINGUS, ANSUMANA JAMMEH, SHEHZA KHAN, KAREN LOPEZ, ARISTOTELES SANCHEZ MARTINEZ, PETER OWUSU, MICHAEL ROBINSON, KIMBERLY SALAZAR, JOSEPH LLOYD THOMPSON, HUGH TINARWO filed by AMANDA N BROUILLETTE.. Motion(s) referred to STEPHEN HYLES.(BROUILLETTE, AMANDA) (Entered: 05/20/2020)
63 MOTION for Leave to File Under Seal by NILSON FERNANDO BARAHONA MARRIAGA, SONIA CABRERA BENITEZ, SHELLEY DINGUS, ANSUMANA JAMMEH, SHEHZA KHAN, KAREN LOPEZ, ARISTOTELES SANCHEZ MARTINEZ, PETER OWUSU, MICHAEL ROBINSON, KIMBERLY SALAZAR, JOSEPH LLOYD THOMPSON, HUGH TINARWO filed by AMANDA N BROUILLETTE.. Motion(s) referred to STEPHEN HYLES.(BROUILLETTE, AMANDA) (Entered: 05/20/2020)
64 This is a text only entry; no document
issued. ORDER granting 62 Motion for Leave to File Excess
Pages; granting 63 Motion for Leave to File Under Seal. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 5-20-20. (jdl) (Entered: 05/20/2020)
65 AFFIDAVIT Declaration of Kathryn Isted, Esq. by NILSON FERNANDO BARAHONA MARRIAGA, SONIA CABRERA BENITEZ, SHELLEY DINGUS, ANSUMANA JAMMEH, SHEHZA KHAN, KAREN LOPEZ, ARISTOTELES SANCHEZ MARTINEZ, PETER OWUSU, MICHAEL ROBINSON, KIMBERLY SALAZAR, JOSEPH LLOYD THOMPSON, HUGH TINARWO (Attachments: # 1 Exhibit 1 - Supplemental Declaration of Petitioner Hugh Tinarwo, # 2 Exhibit 2 - Second Supplemental Declaration of Joseph Thompson, # 3 Exhibit 3 Second Supplemental Declaration of Karen Lopez, # 4 Exhibit 4 Second Supplemental Declaration of Shelley Dingus, # 5 Exhibit 5 - Supplemental Declaration of Kimberly Salazar., # 6 Exhibit 6 Supplemental Declaration of Sonia Cabrera Benitez, # 7 Exhibit 19 - Centers for Disease Control and Prevention Interim Guidance on Management of COVID-19 in Correctional and Detention Facilities, # 8 Exhibit 24 - CE Enforcement and Removal Operations, # 9 Exhibit 25 - ICE ERO Memorandum on Coronavirus Disease 2019 Action Plan, # 10 Exhibit 26 - CDC Guidance on Testing for COVID-19., # 11 Exhibit 43 - ICE/DRO Detention Standard for Medical Care, dated December 2, 2008, # 12 Exhibit 44 - ICE Performance- Based National Detention

05/22/2020 05/22/2020 05/22/2020

Standards 2011, # 13 Exhibit 57 - photographs taken by Stewart Detention Center staff, # 14 Exhibit 58 - Supplemental Declaration of Laura Rivera)(BROUILLETTE, AMANDA) (Entered: 05/21/2020)
66 MOTION for Leave to File Brief in Support of Motion for a Preliminary Injunction Under Seal by NILSON FERNANDO BARAHONA MARRIAGA, SONIA CABRERA BENITEZ, SHELLEY DINGUS, ANSUMANA JAMMEH, SHEHZA KHAN, KAREN LOPEZ, ARISTOTELES SANCHEZ MARTINEZ, PETER OWUSU, MICHAEL ROBINSON, KIMBERLY SALAZAR, JOSEPH LLOYD THOMPSON, HUGH TINARWO filed by AMANDA N BROUILLETTE.. Motion(s) referred to STEPHEN HYLES.(BROUILLETTE, AMANDA) (Entered: 05/22/2020)
67 Certificate of Need to File Discovery by NILSON FERNANDO BARAHONA MARRIAGA, SONIA CABRERA BENITEZ, SHELLEY DINGUS, ANSUMANA JAMMEH, SHEHZA KHAN, KAREN LOPEZ, ARISTOTELES SANCHEZ MARTINEZ, PETER OWUSU, MICHAEL ROBINSON, KIMBERLY SALAZAR, JOSEPH LLOYD THOMPSON, HUGH TINARWO. Related document: 28 MOTION for Preliminary Injunction filed by SHEHZA KHAN, KIMBERLY SALAZAR, ANSUMANA JAMMEH, PETER OWUSU, MICHAEL ROBINSON, ARISTOTELES SANCHEZ MARTINEZ, KAREN LOPEZ, SHELLEY DINGUS, NILSON FERNANDO BARAHONA MARRIAGA, JOSEPH LLOYD THOMPSON, SONIA CABRERA BENITEZ, HUGH TINARWO.(BROUILLETTE, AMANDA) (Entered: 05/22/2020)
68 SEALED DOCUMENT - EXHIBITS - Exh. 7 (Attachments: # 1 Exh. 8, # 2 Exh. 9, # 3 Exh. 10, # 4 Exh. 11, # 5 Exh. 12, # 6 Exh. 13, # 7 Exh. 14, # 8 Exh. 15, # 9 Exh. 16, # 10 Exh. 17, # 11 Exh. 18, # 12 Exh. 20, # 13 Exh. 21, # 14 Exh. 22, # 15 Exh. 23, # 16 Exh. 27, # 17 Exh. 28, # 18 Exh. 29, # 19 Exh. 30, # 20 Exh. 31 - Part 1, # 21 Exh. 31 - Part 2, # 22 Exh. 32, # 23 Exh. 33, # 24 Exh. 34, # 25 Exh. 35, # 26 Exh. 36, # 27 Exh. 37, # 28 Exh. 38, # 29 Exh. 39, # 30 Exh. 40, # 31 Exh. 41, # 32 Exh. 42, # 33 Exh. 45, # 34 Exh. 46, # 35 Exh. 47, # 36 Exh. 48, # 37 Exh. 49, # 38 Exh. 50, # 39 Exh. 51, # 40 Exh. 52, # 41 Exh. 53, # 42 Exh. 54, # 43 Exh. 55, # 44 Exh. 56)(sbd) Modified on 5/22/2020 to connect to 65 (deb). (Entered: 05/22/2020)

05/22/2020 05/22/2020 05/26/2020

69 ORDER granting 66 Motion for Leave to File Brief Under Seal.
Petitioners' brief in support of their motion for preliminary injunction shall be filed so that access is restricted to the parties, their counsel, and court personnel. By the date of the hearing on the motion, Petitioners shall file on the public docket a redacted copy of their brief, which redacts portions that may be deemed confidential pursuant to the previously entered confidentiality/protective order. Ordered by US DISTRICT JUDGE CLAY D LAND on May 22, 2020 (CDL) (Entered: 05/22/2020)
70 Supplemental MEMORANDUM in Support filed by NILSON FERNANDO BARAHONA MARRIAGA, SONIA CABRERA BENITEZ, SHELLEY DINGUS, ANSUMANA JAMMEH, SHEHZA KHAN, KAREN LOPEZ, ARISTOTELES SANCHEZ MARTINEZ, PETER OWUSU, MICHAEL ROBINSON, KIMBERLY SALAZAR, JOSEPH LLOYD THOMPSON, HUGH TINARWO re: 28 MOTION for Preliminary Injunction, ***RESTRICTED to Case Attorneys of Record and Court Users***. (sbd) (Entered: 05/22/2020)
71 NOTICE of Attorney Appearance by DOUG GILFILLAN on behalf of NILSON FERNANDO BARAHONA MARRIAGA, SONIA CABRERA BENITEZ, SHELLEY DINGUS, ANSUMANA JAMMEH, SHEHZA KHAN, KAREN LOPEZ, ARISTOTELES SANCHEZ MARTINEZ, PETER OWUSU, MICHAEL ROBINSON, KIMBERLY SALAZAR, JOSEPH LLOYD THOMPSON, HUGH TINARWO Attorney DOUG GILFILLAN added to party NILSON FERNANDO BARAHONA MARRIAGA(pty:pet), Attorney DOUG GILFILLAN added to party SONIA CABRERA BENITEZ(pty:pet), Attorney DOUG GILFILLAN added to party SHELLEY DINGUS(pty:pet), Attorney DOUG GILFILLAN added to party ANSUMANA JAMMEH(pty:pet), Attorney DOUG GILFILLAN added to party SHEHZA KHAN(pty:pet), Attorney DOUG GILFILLAN added to party KAREN LOPEZ(pty:pet), Attorney DOUG GILFILLAN added to party ARISTOTELES SANCHEZ MARTINEZ(pty:pet), Attorney DOUG GILFILLAN added to party PETER OWUSU(pty:pet), Attorney DOUG GILFILLAN added to party MICHAEL ROBINSON(pty:pet), Attorney DOUG GILFILLAN added to party KIMBERLY SALAZAR(pty:pet), Attorney DOUG GILFILLAN added to party JOSEPH LLOYD THOMPSON(pty:pet), Attorney DOUG GILFILLAN added to party HUGH TINARWO(pty:pet) (GILFILLAN, DOUG) (Entered: 05/26/2020)

05/26/2020 05/26/2020 05/26/2020 05/27/2020 05/27/2020 05/27/2020

72 MOTION for Leave to File Excess Pages, MOTION to Seal Document(s) (, ) by MATTHEW T ALBENCE, MICHAEL DONAHUE, THOMAS GILES, ICE IMMIGRATION AND CUSTOM ENFORCEMENT, DAVID PAULK, RUSSELL WASHBURN, CHAD WOLF filed by AMELIA G HELMICK.. Motion(s) referred to STEPHEN HYLES.(HELMICK, AMELIA) (Entered: 05/26/2020)
73 NOTICE of Ex Parte Filing by MATTHEW T ALBENCE, MICHAEL DONAHUE, THOMAS GILES, ICE IMMIGRATION AND CUSTOM ENFORCEMENT, DAVID PAULK, RUSSELL WASHBURN, CHAD WOLF (SHOEMAKER, BOWEN) (Entered: 05/26/2020)
74 This is a text only entry; no document
issued. ORDER granting 72 Motion for Leave to File Excess
Pages; granting 72 Motion to Seal Document. Although skeptical that Defendants need 25 additional pages to concisely argue their points, the Court nevertheless grants the request given the short deadline for preparing the response. Ordered by US DISTRICT JUDGE CLAY D LAND on May 26, 2020 (CDL) (Entered: 05/26/2020)
75 RESPONSE filed by MATTHEW T ALBENCE, MICHAEL DONAHUE, THOMAS GILES, ICE IMMIGRATION AND CUSTOM ENFORCEMENT, DAVID PAULK, RUSSELL WASHBURN, CHAD WOLF re 28 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit Murray Expert Report, # 2 Exhibit Murray CV, # 3 Exhibit CDC Guidance, # 4 Affidavit Musante Declaration, # 5 Affidavit Moten Declaration, # 6 Affidavit Washburn Declaration, # 7 Affidavit Paulk Declaration)(HELMICK, AMELIA) (Entered: 05/27/2020)
76 AFFIDAVIT re 75 Response to Motion, Musante Declaration with Exhibits by MATTHEW T ALBENCE, MICHAEL DONAHUE, THOMAS GILES, ICE IMMIGRATION AND CUSTOM ENFORCEMENT, DAVID PAULK, RUSSELL WASHBURN, CHAD WOLF (Attachments: # 1 Exhibit Jammeh Exhibits, # 2 Exhibit Thompson Exhibits, # 3 Exhibit Benitez Exhibits, # 4 Exhibit Dingus Exhibits, # 5 Exhibit Marriaga Exhibits)(HELMICK, AMELIA) (Entered: 05/27/2020)
77 AFFIDAVIT re 75 Response to Motion, Moten Declaration with Exhibits by MATTHEW T ALBENCE, MICHAEL DONAHUE, THOMAS GILES, ICE IMMIGRATION AND CUSTOM ENFORCEMENT, DAVID PAULK, RUSSELL WASHBURN,

05/27/2020 05/27/2020
05/27/2020 05/27/2020 05/27/2020 05/27/2020

CHAD WOLF (Attachments: # 1 Exhibit Tinarwo Exhibits, # 2 Exhibit Khan Exhibits, # 3 Exhibit Sanchez-Martinez Exhibits)(HELMICK, AMELIA) (Entered: 05/27/2020)
78 AFFIDAVIT re 75 Response to Motion, Paulk Declaration with Exhibits by MATTHEW T ALBENCE, MICHAEL DONAHUE, THOMAS GILES, ICE IMMIGRATION AND CUSTOM ENFORCEMENT, DAVID PAULK, RUSSELL WASHBURN, CHAD WOLF (Attachments: # 1 Exhibit ICDC Photos)(HELMICK, AMELIA) (Entered: 05/27/2020)
79 AFFIDAVIT re 75 Response to Motion, Washburn Declaration with Exhibits by MATTHEW T ALBENCE, MICHAEL DONAHUE, THOMAS GILES, ICE IMMIGRATION AND CUSTOM ENFORCEMENT, DAVID PAULK, RUSSELL WASHBURN, CHAD WOLF (Attachments: # 1 Exhibit CoreCivic COVID Prevention Statement, # 2 Exhibit CDC Strategies, # 3 Exhibit Social Distancing Poster, # 4 Exhibit CoreCivic COVID Info (English), # 5 Exhibit CoreCivic COVID Info (Spanish), # 6 Exhibit CDC Guidance Slides, # 7 Exhibit GA DPH Summary, # 8 Exhibit GA DPH Guidance, # 9 Exhibit GA DPH FAQs, # 10 Exhibit COVID Prevention Posters, # 11 Exhibit Housing Unit Postings, # 12 Exhibit Unit 1 Town Hall, # 13 Exhibit Pod 3C Town Hall, # 14 Exhibit Unit 4 Town Hall, # 15 Exhibit Unit 6 Town Hall, # 16 Exhibit Entry and Lobby Photos, # 17 Exhibit Sanitizing Supplies, # 18 Exhibit Handwashing Station Photo, # 19 Exhibit Hand Sanitizer Photo)(HELMICK, AMELIA) (Entered: 05/27/2020)
80 SEALED DOCUMENT - Exhibits A-D1 Exhibits to Musante Declaration 76 . (Attachments: # 1 Exhibits E-M, # 2 Exhibit W, # 3 Exhibit YY, # 4 Exhibit EEE)(rlw) (Entered: 05/27/2020)
81 SEALED DOCUMENT - Exhibits to Moten Declaration 77 Exhibits A-N1. (Attachments: # 1 Exhibits O-X1, # 2 Exhibits II-1, # 3 Exhibit SS-1)(rlw) (Entered: 05/27/2020)
82 SEALED DOCUMENT Exhibits to Washburn Declaration 79 - Attachment 1. (Attachments: # 1 Attachment 3, # 2 Attachment 4, # 3 Attachment 5, # 4 Attachment 6, # 5 Attachment 7, # 6 Attachment 9, # 7 Attachment 11, # 8 Attachment 12, # 9 Attachment 13, # 10 Attachment 14, # 11 Attachment 15, # 12 Attachment 16, # 13 Attachment 19 Part 1, # 14 Attachment 19 - Part 2)(rlw) (Entered: 05/27/2020)
83 SEALED DOCUMENT - Exhibits to Washburn Declaration 79 - Attachment 20. (Attachments: # 1 Attachment

05/27/2020
05/28/2020 05/28/2020 05/28/2020 05/28/2020

22, # 2 Attachment 23, # 3 Attachment 24, # 4 Attachment 25, # 5 Attachment 26, # 6 Attachment 29, # 7 Attachment 31, # 8 Attachment 32, # 9 Attachment 39, # 10 Attachment 40, # 11 Attachment 41, # 12 Attachment 42, # 13 Attachment 43, # 14 Attachment 47, # 15 Attachment 48, # 16 Attachment 49, # 17 Attachment 50)(rlw) (Entered: 05/27/2020)
84 MOTION for Leave to File Supplemental Evidence by NILSON FERNANDO BARAHONA MARRIAGA, SONIA CABRERA BENITEZ, SHELLEY DINGUS, ANSUMANA JAMMEH, SHEHZA KHAN, KAREN LOPEZ, ARISTOTELES SANCHEZ MARTINEZ, PETER OWUSU, MICHAEL ROBINSON, KIMBERLY SALAZAR, JOSEPH LLOYD THOMPSON, HUGH TINARWO filed by HILLARY LI. (Attachments: # 1 Affidavit of Nilson Barahona Marriaga, # 2 Exhibit Recent Article, # 3 Proposed Order Granting Petitioners' Motion for Leave to File Supplemental Evidence). Motion(s) referred to STEPHEN HYLES.(LI, HILLARY) (Entered: 05/27/2020)
85 This is a text only entry; no document
issued. ORDER granting 84 Motion for Leave to File. Petitioners
may file their additional evidence in this case. Ordered by US DISTRICT JUDGE CLAY D LAND on 5/28/2020 (hmb) (Entered: 05/28/2020)
86 MEMORANDUM in Support filed by NILSON FERNANDO BARAHONA MARRIAGA, SONIA CABRERA BENITEZ, SHELLEY DINGUS, ANSUMANA JAMMEH, SHEHZA KHAN, KAREN LOPEZ, ARISTOTELES SANCHEZ MARTINEZ, PETER OWUSU, MICHAEL ROBINSON, KIMBERLY SALAZAR, JOSEPH LLOYD THOMPSON, HUGH TINARWO re: 28 MOTION for Preliminary Injunction (BROUILLETTE, AMANDA) (Entered: 05/28/2020)
87 NOTICE of Supplemental Evidence by NILSON FERNANDO BARAHONA MARRIAGA, SONIA CABRERA BENITEZ, SHELLEY DINGUS, ANSUMANA JAMMEH, SHEHZA KHAN, KAREN LOPEZ, ARISTOTELES SANCHEZ MARTINEZ, PETER OWUSU, MICHAEL ROBINSON, KIMBERLY SALAZAR, JOSEPH LLOYD THOMPSON, HUGH TINARWO re 28 MOTION for Preliminary Injunction (Attachments: # 1 Affidavit of Nilson Barahona Marriaga, # 2 Exhibit Recent Article)(LI, HILLARY) (Entered: 05/28/2020)
88 Minute Entry (content for administrative purposes only) for proceedings held before US DISTRICT JUDGE CLAY D LAND:

06/01/2020 06/01/2020 06/01/2020 06/01/2020
06/01/2020

Telephone Conference held on 5/28/2020 Court Reporter: Betsy Peterson. (glg) (Entered: 05/28/2020)
89 MOTION to Seal Document(s) by MATTHEW T ALBENCE, MICHAEL DONAHUE, THOMAS GILES, ICE IMMIGRATION AND CUSTOM ENFORCEMENT, DAVID PAULK, RUSSELL WASHBURN, CHAD WOLF filed by AMELIA G HELMICK.. Motion(s) referred to STEPHEN HYLES.(HELMICK, AMELIA) (Entered: 06/01/2020)
90 This is a text only entry; no document
issued. ORDER granting 89 Motion to Seal Document.
Respondents' motion is granted to the extent access shall be restricted to counsel for the parties and court personnel. Ordered by US DISTRICT JUDGE CLAY D LAND on 6/1/2020 (hmb) (Entered: 06/01/2020)
91 SEALED DOCUMENT NOTICE OF SUPPLEMENTAL EVIDENCE BY RESPONDENTS (Attachments: # 1 Exhibit 1, # 2 Exhibit 1A) # 3 Exhibit 1B, # 4 Exhibit 1C, # 5 Exhibit 2, # 6 Exhibit 2A, # 7 Exhibit 2A - Part 2) (rlw). Modified on 6/2/2020 (rlw). ***RESTRICTED to Case Attorneys of Record and Court Users per Order 90 ***. (Entered: 06/01/2020)
92 MEMORANDUM in Support filed by NILSON FERNANDO BARAHONA MARRIAGA, SONIA CABRERA BENITEZ, SHELLEY DINGUS, ANSUMANA JAMMEH, SHEHZA KHAN, KAREN LOPEZ, ARISTOTELES SANCHEZ MARTINEZ, PETER OWUSU, MICHAEL ROBINSON, KIMBERLY SALAZAR, JOSEPH LLOYD THOMPSON, HUGH TINARWO re: 28 MOTION for Preliminary Injunction (Attachments: # 1 Declaration of Caitlin J. Sandley, Esq., # 2 Exhibit 1 - Supplement to Inspection Reports of Irwin County Detention Center and Stewart Detention Center by Dr. Homer Venters, M.D.)(BROUILLETTE, AMANDA) (Entered: 06/01/2020)
93 SEALED DOCUMENT EXHIBITS to 91 (Attachments: # 1 Exhibit 2C, # 2 Exhibit 2D, # 3 Exhibit 2E, # 4 Exhibit 2F, # 5 Exhibit 2G, # 6 Exhibit 2H, # 7 Exhibit 3, # 8 Exhibit 4, # 9 Exhibit 5, # 10 Exhibit 6, # 11 Exhibit 6A)(rlw) Modified on 6/2/2020 (rlw).***RESTRICTED to Case Attorneys of Record and Court Users per Order 90 ***. (Entered: 06/02/2020)

06/03/2020 06/09/2020 06/17/2020 06/18/2020 06/19/2020
06/19/2020

ORDER denying 28 Motion for Preliminary Injunction. Ordered

94

by US DISTRICT JUDGE CLAY D LAND on 6/3/2020. (rlw)

(Entered: 06/03/2020)

95 ***RESTRICTED to Case Attorneys of Record and Court Users***, COMPUTER DISK - VIRTUAL TOUR OF STEWART AND IRWIN DETENTION FACILITIES re 28 MOTION for Preliminary Injunction. Disk is being maintained in vault in Clerk's Office, Valdosta, GA. (rlw) (Entered: 06/09/2020)

96 MOTION for Extension of Time to File Answer by MATTHEW T ALBENCE, MICHAEL DONAHUE, THOMAS GILES, ICE IMMIGRATION AND CUSTOM ENFORCEMENT, DAVID PAULK, RUSSELL WASHBURN, CHAD WOLF filed by BOWEN REICHERT SHOEMAKER.. Motion(s) referred to STEPHEN HYLES.(SHOEMAKER, BOWEN) (Entered: 06/17/2020)

97 NOTICE Intent to Respond by NILSON FERNANDO BARAHONA MARRIAGA, SONIA CABRERA BENITEZ, SHELLEY DINGUS, ANSUMANA JAMMEH, SHEHZA KHAN, KAREN LOPEZ, ARISTOTELES SANCHEZ MARTINEZ, PETER OWUSU, MICHAEL ROBINSON, KIMBERLY SALAZAR, JOSEPH LLOYD THOMPSON, HUGH TINARWO re 96 MOTION for Extension of Time to File Answer (SANDLEY, CAITLIN) (Entered: 06/18/2020)

98 RESPONSE filed by NILSON FERNANDO BARAHONA MARRIAGA, SONIA CABRERA BENITEZ, SHELLEY DINGUS, ANSUMANA JAMMEH, SHEHZA KHAN, KAREN LOPEZ, ARISTOTELES SANCHEZ MARTINEZ, PETER OWUSU, MICHAEL ROBINSON, KIMBERLY SALAZAR, JOSEPH LLOYD THOMPSON, HUGH TINARWO re 96 MOTION for Extension of Time to File Answer (Attachments: # 1 Declaration of Caitlin J. Sandley, Esq., # 2 Exhibit Ex. 1 - Third Supp. Dec. of Hugh Tinarwo, # 3 Exhibit Ex. 2 - Third Supp. Dec. of Nilson Barahona Marriaga)(SANDLEY, CAITLIN) (Entered: 06/19/2020)

99 This is a text only entry; no document issued. ORDER granting
in part and denying in part 96 Motion for Extension of Time to Answer. Respondents shall have through and including July 6, 2020, to file a response to 57 Petitioners' Second Amended Petition. Respondents need not respond to 20 Petitioners' First

07/06/2020 07/06/2020 07/06/2020
07/07/2020 07/21/2020

Amended Petition. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 6-19-20. (jdl) (Entered: 06/19/2020)
100 MOTION to Dismiss Petition for Habeas Relief by MATTHEW T ALBENCE, MICHAEL DONAHUE, THOMAS GILES, ICE IMMIGRATION AND CUSTOM ENFORCEMENT, DAVID PAULK, RUSSELL WASHBURN, CHAD WOLF filed by AMELIA G HELMICK. (Attachments: # 1 Exhibit A -- Owusu Form I-830). Motion(s) referred to STEPHEN HYLES.(HELMICK, AMELIA) (Entered: 07/06/2020)
101 MOTION to Stay Discovery by MATTHEW T ALBENCE, MICHAEL DONAHUE, THOMAS GILES, ICE IMMIGRATION AND CUSTOM ENFORCEMENT, DAVID PAULK, RUSSELL WASHBURN, CHAD WOLF filed by BOWEN REICHERT SHOEMAKER.. Motion(s) referred to STEPHEN HYLES.(SHOEMAKER, BOWEN) (Entered: 07/06/2020)
102 MOTION for Reconsideration re 94 Order on Motion for Preliminary Injunction by NILSON FERNANDO BARAHONA MARRIAGA, SONIA CABRERA BENITEZ, SHELLEY DINGUS, ANSUMANA JAMMEH, SHEHZA KHAN, KAREN LOPEZ, ARISTOTELES SANCHEZ MARTINEZ, PETER OWUSU, MICHAEL ROBINSON, KIMBERLY SALAZAR, JOSEPH LLOYD THOMPSON, HUGH TINARWO filed by HILLARY LI. (Attachments: # 1 Memorandum in Support of Motion for Reconsideration, # 2 Affidavit of Hillary Li, # 3 Exhibit Supplemental Declaration of Michael Robinson, # 4 Exhibit Supplemental Declaration of Joseph Thompson)(LI, HILLARY) (Entered: 07/06/2020)
103 This is a text only entry; no document
issued.ORDER Respondents shall file their brief in response to
Petitioners' motion for reconsideration (ECF No. 102) by July 21, 2020. Ordered by District Judge CLAY D LAND on 7/7/2020. (hmb) (Entered: 07/07/2020)
104 RESPONSE filed by MATTHEW T ALBENCE, MICHAEL DONAHUE, THOMAS GILES, ICE IMMIGRATION AND CUSTOM ENFORCEMENT, DAVID PAULK, RUSSELL WASHBURN, CHAD WOLF re 102 MOTION for
Reconsideration re 94 Order on Motion for Preliminary Injunction (Attachments: # 1 Exhibit A - Declaration of Owusu,

# 2 Exhibit B - Declaration of McMahan)(SHOEMAKER, BOWEN) (Entered: 07/21/2020)

07/21/2020

105 NOTICE Joinder in Respondents' Response to Motion for Reconsideration by RUSSELL WASHBURN re 104 Response to Motion, (STRUCK, DANIEL) (Entered: 07/21/2020)

07/21/2020

106 MOTION to Seal Document(s) by MATTHEW T ALBENCE, MICHAEL DONAHUE, THOMAS GILES, ICE IMMIGRATION AND CUSTOM ENFORCEMENT, DAVID PAULK, RUSSELL WASHBURN, CHAD WOLF filed by BOWEN REICHERT SHOEMAKER.. Motion(s) referred to STEPHEN HYLES.(SHOEMAKER, BOWEN) (Entered: 07/21/2020)

07/22/2020

107 This is a text only entry; no document
issued. ORDER granting 106 Motion to Seal Document. Ordered
by US MAGISTRATE JUDGE STEPHEN HYLES on 7-22-20. (jdl) (Entered: 07/22/2020)

07/22/2020

108 SEALED DOCUMENT re: 104 Response to 102 Motion for Reconsideration.(rlw) (Entered: 07/22/2020)

07/23/2020 109

ORDER denying 102 Motion for Reconsideration. Ordered by
US DISTRICT JUDGE CLAY D LAND on 7/23/2020. (rlw) (Entered: 07/23/2020)

07/24/2020

110 NOTICE of Filing Warrant of Removal by MATTHEW T ALBENCE, MICHAEL DONAHUE, THOMAS GILES, ICE IMMIGRATION AND CUSTOM ENFORCEMENT, DAVID PAULK, RUSSELL WASHBURN, CHAD WOLF re 100 MOTION to Dismiss Petition for Habeas Relief (Attachments: # 1 Exhibit A -- Salazar Form I-205)(HELMICK, AMELIA) (Entered: 07/24/2020)

07/27/2020

111 RESPONSE filed by NILSON FERNANDO BARAHONA MARRIAGA, SONIA CABRERA BENITEZ, SHELLEY DINGUS, ANSUMANA JAMMEH, SHEHZA KHAN, KAREN LOPEZ, ARISTOTELES SANCHEZ MARTINEZ, PETER OWUSU, MICHAEL ROBINSON, KIMBERLY SALAZAR, JOSEPH LLOYD THOMPSON, HUGH TINARWO re 100 MOTION to Dismiss Petition for Habeas Relief (SANDLEY, CAITLIN) (Entered: 07/27/2020)

07/27/2020

112 RESPONSE filed by NILSON FERNANDO BARAHONA MARRIAGA, SONIA CABRERA BENITEZ, SHELLEY DINGUS, ANSUMANA JAMMEH, SHEHZA KHAN, KAREN

LOPEZ, ARISTOTELES SANCHEZ MARTINEZ, PETER OWUSU, MICHAEL ROBINSON, KIMBERLY SALAZAR, JOSEPH LLOYD THOMPSON, HUGH TINARWO re 101 MOTION to Stay Discovery (SANDLEY, CAITLIN) (Entered: 07/27/2020)

07/28/2020 113

ORDER granting 101 Motion to Stay Discovery. Ordered by US
MAGISTRATE JUDGE STEPHEN HYLES on 7-28-20. (jdl) (Entered: 07/28/2020)

08/03/2020

114 NOTICE of filing Warrant of Removal by MATTHEW T ALBENCE, MICHAEL DONAHUE, THOMAS GILES, ICE IMMIGRATION AND CUSTOM ENFORCEMENT, DAVID PAULK, RUSSELL WASHBURN, CHAD WOLF (Attachments: # 1 Exhibit A - Form I-205, Warrant of Removal)(HELMICK, AMELIA) (Entered: 08/03/2020)

08/10/2020

115 REPLY to Response filed by MATTHEW T ALBENCE, MICHAEL DONAHUE, THOMAS GILES, ICE IMMIGRATION AND CUSTOM ENFORCEMENT, DAVID PAULK, RUSSELL WASHBURN, CHAD WOLF re 100 MOTION to Dismiss Petition for Habeas Relief (HELMICK, AMELIA) (Entered: 08/10/2020)

08/17/2020

116 NOTICE of Voluntary Dismissal by HUGH TINARWO, NILSON FERNANDO BARAHONA MARRIAGA, MICHAEL ROBINSON, KIMBERLY SALAZAR, ARISTOTELES SANCHEZ MARTINEZ, SHEHZA KHAN, SONIA CABRERA BENITEZ, KAREN LOPEZ, PETER OWUSU, SHELLEY DINGUS, JOSEPH LLOYD THOMPSON, ANSUMANA JAMMEH as to MATTHEW T ALBENCE, MICHAEL DONAHUE, THOMAS GILES, ICE IMMIGRATION AND CUSTOM ENFORCEMENT, DAVID PAULK, RUSSELL WASHBURN, CHAD WOLF(SANDLEY, CAITLIN) (Entered: 08/17/2020)

08/17/2020

117 NOTICE of Voluntary Dismissal by HUGH TINARWO, NILSON FERNANDO BARAHONA MARRIAGA, MICHAEL ROBINSON, KIMBERLY SALAZAR, ARISTOTELES SANCHEZ MARTINEZ, SHEHZA KHAN, SONIA CABRERA BENITEZ, KAREN LOPEZ, PETER OWUSU, SHELLEY DINGUS, JOSEPH LLOYD THOMPSON, ANSUMANA JAMMEH as to MATTHEW T ALBENCE, MICHAEL DONAHUE, THOMAS GILES, ICE IMMIGRATION AND CUSTOM ENFORCEMENT, DAVID PAULK, RUSSELL

WASHBURN, CHAD WOLF(SANDLEY, CAITLIN) (Entered: 08/17/2020)

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 Case 7:20-cv-00062-CDL-MSH Document 1 Filed 04/07/20 Page 1 of 50

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.
MICHAEL DONAHUE Warden, Stewart Detention Center 146 CCA Road 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;
and

Case No.: HEARING REQUESTED

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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 Department 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.
PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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TABLE OF CONTENTS
I. INTRODUCTION ...............................................................................................................1
II. PARTIES .............................................................................................................................3
III. JURISDICTION AND VENUE ..........................................................................................7
IV. EXHAUSTION OF ADMINISTRATIVE REMEDIES .....................................................7
V. STATEMENT OF FACTS ..................................................................................................8
A. COVID-19 Is a Global Pandemic that Poses a Significant Risk of Death or Serious Illness to Petitioners....................................................................................8
i. Transmission of COVID-19.......................................................................10
ii. Symptoms of COVID-19, Underlying Risks Factors, and LongTerm Effects...............................................................................................11
iii. Prevention of COVID-19 Transmission ....................................................12
B. COVID-19 Will Likely Ravage Jails, Prisons, and Detention Centers .................14
C. Stewart and Irwin Detention Centers Are Primed for COVID-19 Exposure and Severe Outbreaks ............................................................................................19
i. Existing Conditions at Stewart and Irwin Will Further Enable COVID-19 Transmission ...........................................................................19
ii. Stewart and Irwin Detention Centers Have a Dismal Medical Care Track Record and Are Currently Ignoring Reported Flu-like Symptoms Among the Detained Population..............................................21
iii. It Is Only a Matter of Time Before COVID-19 Reaches Stewart and Irwin Detention Centers ......................................................................25
D. The Lack of Hospital Resources Near the Georgia Detention Centers Will Put Petitioners at Even Greater Risk......................................................................28
E. ICE’s Actions to Address the Pandemic Thus Far Have Been Woefully Inadequate, and Release is the Only Adequate Response to Protect Petitioners ..............................................................................................................30
F. Petitioners Are Particularly Vulnerable to Serious Illness or Death if Infected by COVID-19 and Should Be Released from Detention. ........................33
VI. LEGAL FRAMEWORK ...................................................................................................38
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Case 7:20-cv-00062-CDL-MSH Document 1 Filed 04/07/20 Page 4 of 50 A. Petitioners Have a Constitutional Right to Reasonable Safety in Custody ...........38 B. This Court Has Authority to Order Petitioners’ Release to Vindicate Their
Fifth Amendment Rights, and Such Relief Is Necessary Here. .............................40 C. Habeas Is a Broad, Flexible Remedy That Authorizes Courts to Order
Release from Unlawful Detention Conditions as Law and Equity Requires.........42 VII. CLAIM FOR RELIEF .......................................................................................................43
A. Violation of Fifth Amendment Right to Substantive Due Process (Unlawful Punishment; Freedom from Cruel Treatment and Conditions of Confinement) .........................................................................................................43
VIII. PRAYER FOR RELIEF ....................................................................................................44
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I. INTRODUCTION 1. The COVID-19 pandemic is wreaking havoc throughout the world. The United
States has now surpassed every other country in number of confirmed cases, and over 10,000 Americans have died. Experts estimate that the coronavirus will ultimately infect between 160 and 214 million people and taken the lives of up to 1.7 million people in the United States alone.
2. There is no vaccine against COVID-19 and no known cure. Currently, the only recognized strategies to reduce the risk of exposure to COVID-19 are social distancing and scrupulous hygiene, which have led to unprecedented public health measures around the world.
3. In light of the devastation COVID-19 has already caused and the extreme difficulty in stopping its transmission, the President has declared a national emergency; forty-eight U.S. states—including Georgia—have declared states of emergency; and numerous states and localities—including Georgia and many of its cities and counties—have issued “shelter-in-place” orders requiring residents to stay in their homes. These extreme measures all seek to reduce the spread of the virus and, ultimately, save lives.
4. Unfortunately, U.S. Immigration and Customs Enforcement (ICE), who detains immigrants who may be subject to removal from the United States, has failed to follow suit. Despite warnings from thousands of medical and public health professionals that releasing detained immigrants is the only viable option to avert an imminent public health threat, the agency has generally refused to do so in the absence of court intervention.
5. Federal judges across the country have ordered the urgent release of numerous immigrants, explaining the pressing health risks created by ICE detention and other types of
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imprisonment.1 6. In immigration detention facilities—including Stewart Detention Center
(“Stewart”) in Lumpkin, Georgia and Irwin County Detention Center (“Irwin”) in Ocilla, Georgia, where Plaintiffs-Petitioners (“Petitioners”) are imprisoned—social distancing is virtually impossible. In these congregate environments, hundreds or thousands of people live, eat, and sleep together in close quarters, and contact with other detainees and ICE personnel is a fact of life. ICE detention facilities are also notorious for their unsanitary conditions and meager provision of hygiene products. Under these circumstances, an outbreak of COVID-19 will “spread like wildfire,” according to a former high-level ICE official.
7. Due to their underlying medical conditions, Petitioners are particularly vulnerable to serious cases of COVID-19. If they contract the virus, there is a high risk they will require critical care—largely unavailable in southern Georgia where the facilities are located—and face serious illness and death.
8. Petitioners bring this action to remedy ICE’s violations of their constitutional rights and to protect themselves—as well as others detained or employed at Stewart and Irwin or living
1See, e.g., Xochihua-Jaimes v. Barr, 2020 WL 1429877 (9th Cir. Mar. 24, 2020); Hope v. Doll, Case No. 1:20-cv-00562-JEJ (M.D. Pa. Apr. 7, 2020), ECF No. 11; Martin Munoz v. Wolf, Case No. 20-cv-00625-TJH-SHK (C.D. Cal. Apr. 2, 2020), ECF No. 14; Robles Rodriguez v. Wolf, 20-cv-00627-TJH-GJS (C.D. Cal. Apr. 2, 2020), ECF No. 37; Hernandez v. Wolf, CV 20-60017TJH (KSx)(C.D. Cal. Apr. 1, 2020), ECF No. 17; Arana v. Barr, 2020 WL 1502039 (S.D.N.Y. Mar. 27, 2020); Xuyue Zhang v. Barr, 2020 WL 1502607 (C.D. Cal. March 27, 2020); Basank v. Decker, 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020); Castillo v. Barr, 2020 WL 1502864 (C.D. Cal. March 27, 2020); Thakker v. Doll, No. 1:20-cv-00480-JEJ (M.D. Pa. Mar. 31, 2020), ECF No. 47; Coronel v. Decker, 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020); Fraihat v. Wolf, No. ED CV 20-00590 TJH (KSx) (C.D. Cal. Mar. 30, 2020); Calderon Jimenez v. Wolf, No. 18 Civ. 10225 (D. Mass. Mar. 26, 2020), ECF No. 507; United States v. Stephens, 2020 WL 1295155, at *2 (S.D. N.Y. Mar. 19, 2020); Matter of Extradition of Toledo Manrique, 2020 WL 1307109, at *1 (N.D. Cal. Mar. 19, 2020).
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in the surrounding communities—from the imminent harm that will result from their continued detention. II. PARTIES
9. Petitioner Aristoteles Sanchez Martinez is a 47-year-old citizen of Venezuela who is currently detained by ICE at Stewart. His family lives in Queens, New York. He has been in ICE custody since approximately September 2018. The BIA denied his appeal of his removal order in November 2019, but he is unlikely to be removed to Venezuela. Mr. Martinez suffers from Type II diabetes, hypertension, neuropathy, avascular necrosis, non-palpable pulses in the lower extremities, and venous insufficiency, among other conditions. He is currently in a wheelchair due to his conditions. He is also recovering from a recent hernia repair surgery after which he was brought back to Stewart within a day instead of remaining in intensive care. As a consequence of his health conditions, he is at high risk for severe illness or death if he contracts COVID-19.
10. Petitioner Michael Robinson2 is a 54-year-old citizen of Jamaica, who has been at Stewart since around February 2020. He has six U.S. citizen children, and has family in both Florida and New York. He is seeking asylum, Withholding of Removal, and protection under the Convention Against Torture, based on persecution he experienced as a bisexual man. Mr. Robinson suffers from hypertension, asthma, cardiac murmur, high blood pressure, and benign prostatic hyperplasia. As a consequence of his health conditions, he is at high risk for severe illness or death if he contracts COVID-19.
11. Petitioner Peter Owusu is a 40-year-old citizen of Ghana who been detained at Stewart since January 2020. He is seeking asylum, Withholding of Removal, and protection under the Convention Against Torture based on persecution he experienced in Ghana. Mr. Owusu has
2 Petitioners Michael Robinson, Peter Owusu, and Karen Lopez have filed this action using pseudonyms. They seek leave to proceed pseudonymously in a concurrently filed motion.
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difficulty breathing due to a stab wound he suffered prior to fleeing from Ghana. He received a breathing machine at a previous detention center but has not been able to access it at Stewart. The wound he sustained also led to other complications, including improperly healed stitches, ongoing stomach pain, digestion issues, dizziness, headaches, and heart issues. As a consequence of his health conditions, he is at high risk for severe illness or death if he contracts COVID-19. Mr. Owusu is a 40-year-old citizen of Ghana. He is seeking asylum, Withholding of Removal, and protection under the Convention Against Torture based on persecution he experienced in Ghana.
12. Petitioner Joseph Lloyd Thompson is a 49-year-old citizen of Jamaica. lawful permanent resident of the United States, and long-term resident of Georgia. He is currently detained at Irwin and has been in ICE custody since approximately January 2018. He suffers from diabetes, hypertension, depression, and a severe aortic aneurysm requiring surgery that ICE repeatedly refuses to facilitate. He has a history of hospitalization for pneumonia and cardiac issues. As a consequence of his health conditions, he is at high risk for severe illness or death if he contracts COVID-19. He has two sons who are 5 and 22 years old. He is extremely passionate about cooking; before he was detained, he worked at a country club as a sous chef. He is working with his immigration attorneys to apply for Cancellation of Removal.
13. Petitioner Ansumana Jammeh is a 43-year-old citizen of Gambia who has been detained at Irwin since March 2019. His Board of Immigration Appeals (BIA) appeal of his removal order is currently pending. He suffers from diabetes and severe hemorrhoids that have required surgery and cause him extreme pain. He was also hospitalized in December 2019 for inflammation in his intestine. As a consequence of his health conditions, he is at high risk for severe illness or death if he contracts COVID-19.
14. Petitioner Karen Lopez is a 42-year-old citizen of Honduras who has been held at
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Irwin since March 2020. She has a partner and five children, ages 13 to 27 years old; prior to detention they all lived together in Atlanta, Georgia. She is pursuing deferral of removal under the Convention Against Torture and is also eligible for U-visa. has a pacemaker due to a heart condition that also caused her to suffer a stroke. She additionally suffers from multiple sclerosis, which causes severe chronic pain, along with problems with her vision, balance, muscle control, and other bodily functions. As a consequence of her health conditions, she is at high risk for severe illness or death if she contracts COVID-19.
15. Petitioner Nilson Fernando Barahona Marriaga is a 38-year-old citizen of Honduras who has been detained at Irwin since October 2019. He has lived in the U.S. for more than ten years and been married to a U.S. citizen for over six years. They have a six-year-old son. He also has a U.S. Citizen father, a mother who is a lawful permanent resident, and two U.S. Citizen sisters. Mr. Barahona Marriaga is eligible for adjustment of status through a pending I-130, Petition for Alien Relative. He has also applied for Non-LPR Cancellation of Removal, and may be eligible for a U-Visa based on a kidnapping in 2011. An attorney helped him apply for parole and bond, but they were denied. Mr. Barahona Marriaga suffers from diabetes and hypertension, both of which he has struggled to manage while in detention. His condition has deteriorated since he has been detained, and many of his requests for medical services have been ignored. As a consequence of his health conditions, he is at high risk for severe illness or death if he contracts COVID-19.
16. Petitioner Shelley Dingus is a 52-year-old citizen of England who is currently detained at Irwin. She has lived in the U.S. for over nine years and has been married for 21 years to a U.S. citizen who is a U.S. Air Force veteran. She has five children, ages 17 to 28 years old. Prior to detention, she lived in Norton, Virginia and worked as a senior healthcare specialist. Ms. Dingus suffers from asthma, chronic obstructive pulmonary disease, severe migraines, depression,
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anxiety, and eczema that causes severe skin allergies and open wounds that are easily infected. As a consequence of her health conditions, she is at high risk for severe illness or death if she contracts COVID-19.
17. Respondent-Defendant (“Respondent”) Michael Donahue is the Warden of Stewart County Detention Center. Pursuant to a contract with ICE, Mr. Donahue is responsible for the operation of Stewart, where Mr. Sanchez Martinez, Mr. Robinson, and Mr. Owusu are detained.
18. Respondent David Paulk is the Warden of Irwin County Detention Center. Pursuant to a contract with ICE, Mr. Paulk is responsible for the operation of Irwin, where Mr. Thompson, Mr. Jammeh, Ms. Lopez, Mr. Barahona Marriaga, and Ms. Dingus are detained.
19. Respondent Thomas Giles is the Field Office Director for the ICE Atlanta Field Office. The ICE Atlanta Field Office has complete control over the admission and release of noncitizens detained at Stewart and Irwin. Respondent Giles is a legal custodian of Petitioners. He is sued in his official capacity.
20. Respondent Matthew T. Albence is the Deputy Director and Senior Official Performing the Duties of the Director of ICE. Respondent Albence is responsible for ICE’s policies, practices, and procedures, including those relating to the detention of immigrants. He is sued in his official capacity.
21. Respondent Chad Wolf is the Acting Secretary of the United States Department of Homeland Security (DHS). In this capacity, he is responsible for the implementation and enforcement of immigration laws and oversees ICE. He is sued in his official capacity.
22. Respondent ICE is a federal law enforcement agency within DHS. ICE is responsible for the criminal and civil enforcement of the immigration laws, including the detention and removal of immigrants.
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III. JURISDICTION AND VENUE 23. This Court has subject matter jurisdiction over this matter under 28 U.S.C. § 1331
(federal question), 28 U.S.C. § 1346 (United States as defendant), 28 U.S.C. § 2241 (habeas jurisdiction), 28 U.S.C. § 1651 (All Writs Act), Article I, Section 9, clause 2 of the U.S. Constitution (the Suspension Clause), and the Due Process Clause of the Fifth Amendment to the U.S. Constitution.
24. The district courts have jurisdiction to hear habeas corpus claims by noncitizens challenging the lawfulness of their detention. Jennings v. Rodriguez, 138 S. Ct. 830 (2018); Demore v. Kim, 538 U.S. 510, 516-17 (2003); Zadvydas v. Davis, 533 U.S. 678, 687 (2001).
25. Venue is proper in the Middle District of Georgia pursuant to 28 U.S.C. § 1391(e) because Respondents are federal officers sued in their official capacity; Respondents Paulk and Donahue reside in this District; Petitioners are currently detained in this District; and a substantial part of the events or omissions giving rise to this action occurred in this District. Venue is also proper under 28 U.S.C. § 2241 because Respondents exercise control over Petitioners. IV. EXHAUSTION OF ADMINISTRATIVE REMEDIES
26. Petitioners have no administrative remedies to exhaust because no administrative process exists to raise a constitutional challenge to their detention. “[A] petitioner need not exhaust his administrative remedies where the administrative remedy will not provide relief commensurate with the claim.” Boz v. United States, 248 F.3d 1299, 1300 (11th Cir. 2001). Thus, “[b]ecause the BIA does not have the power to decide constitutional claims—like the validity of a federal statute—[certain constitutional] need not be administratively exhausted.” Warsame v. U.S. Attorney Gen., 796 Fed. Appx. 993, 1006 (11th Cir. 2020). See also Haitian Refugee Ctr., Inc. v. Nelson, 872 F.2d 1555, 1561 (11th Cir. 1989), aff’d sub nom. McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479 (1991) (exhaustion had “no bearing” where petitioner sought to make a
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constitutional challenge to procedures adopted by the INS).
V. STATEMENT OF FACTS
A. COVID-19 Is a Global Pandemic that Poses a Significant Risk of Death or Serious Illness to Petitioners
27. Coronavirus disease 2019 (“COVID-19”) is a highly contagious respiratory disease
caused by a newly discovered coronavirus. Since the first case was reported in December 2019,
the transmission of COVID-19 has been growing exponentially. The number of reported cases
climbed from 1 to 100,000 in 67 days; from 100,000 to 200,000 in only 11 days; and from 200,000
to 300,000 in just 4 days.3
28. On March 11, 2020, the World Health Organization (“WHO”) declared the
outbreak a global pandemic,4 and COVID-19 has now touched nearly every country on the planet..5
As of April 6, 2020, the number of confirmed cases worldwide has surpassed one million,
including over 367,004 people in the United States. Over 74,697 people have died as a result of
COVID-19 worldwide, including at least 10,871 in the United States.6
29. Nationally, projections by the Centers for Disease Control and Prevention (“CDC”)
indicate that over 200 million people in the United States could be infected with COVID-19 over
3 Berkeley Lovelace Jr., et al., CNBC, Coronavirus pandemic is accelerating as cases eclipse 350,000, WHO says (last updated Mar. 23, 2020), https://www.cnbc.com/2020/03/23/coronavirus-pandemic-is-accelerating-as-cases-eclipse350000-who-says.html 4 Tedros Adhanom Ghebreyesus, WHO Director-General’s opening remarks at the media briefing on COVID-19 – 11 March 2020 (Mar. 11, 2020), https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-mediabriefing-on-covid-19---11-march-2020 5 Coronavirus disease 2019 (COVID-19) Situation Report – 73, World Health Organization (April 2, 2020), https://www.who.int/docs/default-source/coronaviruse/situationreports/20200402-sitrep-73-covid-19.pdf?sfvrsn=5ae25bc7_4https://www.who.int/docs/defaultsource/coronaviruse/situation-reports/20200330-sitrep-70-covid-19.pdf?sfvrsn=7e0fe3f8_2 6 Worldometer: Coronavirus, https://www.worldometers.info/coronavirus/#countries (last accessed Apr. 6, 2020).
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the course of the pandemic without effective public health intervention, with as many as 1.7 million
deaths in the most severe projections.7 On March 23, 2020, the WHO warned that the United States
could become the next epicenter of the pandemic.8 And indeed on March 26, 2020, the United
States surpassed every other country in the world in number of confirmed COVID-19 cases.9
30. In the state of Georgia, transmission of COVID-19 has also been rampant. On
March 14, 2020, Governor Brian Kemp declared a public health state of emergency, describing
the spread of COVID-19 as an “unprecedented public health threat.”10 At the time, there were 64
diagnosed COVID-19 cases spread across 15 counties.11 As of April 6, 2020, less than 30 days
later, the number of reported cases had jumped to 7,558 with 154 counties now affected.12 The
number of reported deaths from COVID-19 is 294, making Georgia the state with the twelfth
highest number of COVID-19-related deaths in the United States.13 Governor Kemp issued a
shelter in place order for the state of Georgia on April 3, 2020.14
7 Sheri Fink, Worst-Case Estimates for U.S. Coronavirus Deaths, The New York Times (last updated Mar. 18, 2020), https://www.nytimes.com/2020/03/13/us/coronavirus-deathsestimate.html 8 Sarah Boseley, US may become next centre of coronavirus pandemic, says WHO, The Guardian (Mar. 24, 2020), https://www.theguardian.com/world/2020/mar/24/us-may-become-centre-ofcoronavirus-pandemic-who-says 9 U.S. Now Leads the World in Confirmed Cases, The New York Times (last updated Apr. 1, 2020), https://www.nytimes.com/2020/03/26/world/coronavirusnews.htmlhttps://www.nytimes.com/2020/03/26/world/coronavirus-news.html 10 Governor Brian P. Kemp, Kemp Declares Public Health State of Emergency, Office of the Governor (Mar. 16, 2020), https://gov.georgia.gov/press-releases/2020-03-16/kemp-declarespublic-health-state-emergency 11 Id. 12 Georgia Department of Public Health COVID-19 Daily Status Report (Apr. 2, 2020), https://dph.georgia.gov/covid-19-daily-status-report 13 Listing of United States Total Coronavirus Cases (last updated Apr. 6, 2020), https://www.worldometers.info/coronavirus/country/us/ 14 Governor Brian P. Kemp, Governor Kemp Issues Shelter in Place Order, Office of the Governor (Apr. 2, 2020), https://gov.georgia.gov/press-releases/2020-04-02/governor-kempissues-shelter-place-order
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31. The risk of serious illness or death from COVID-19 is greater in Georgia than in
other parts of the United States because the population is overall much less healthy. Georgia has
among the highest incidence of diabetes, hypertension, obesity and strokes in the country, particularly in areas with high poverty rates.15
32. Due to the lack of widespread testing available in most countries, including the
United States, the number of confirmed cases is likely but a fraction of the true number of COVID-
19 cases worldwide. As of April 6, 2020, approximately 1,917,095 tests have been administered in the entire United States; in Georgia, only 40,012.16 Because of the shortage of tests in the United States—admitted to be a “failing” by top infectious disease expert Dr. Anthony Fauci17—the CDC
currently recommends prioritizing testing for symptomatic healthcare providers and hospitalized patients18—which means that the number of diagnosed COVID-19 cases may be only the tip of a very large iceberg.19
i. Transmission of COVID-19 33. COVID-19 easily spreads through respiratory droplets that an infected person
expels when they cough, sneeze, speak, or breathe. Transmission occurs if these virus-carrying
15 Alan Judd, In hard-hit Georgia, virus expected to linger, The Atlanta Journal-Constitution (Mar. 26, 2020), https://www.ajc.com/news/hard-hit-georgia-virus-expectedlinger/AYMvVN9SIq8A0RUgUzIt5O/ 16 The COVID Tracking Project, Our most up-to date data and annotations (last updated Apr. 6, 2020), https://covidtracking.com/data/ 17 Elizabeth Chuck, ‘It is a failing. Let’s admit,’ Fauci says of coronavirus testing capacity NBC News (Mar. 12, 2020), https://www.nbcnews.com/health/health-news/it-failing-let-s-admit-itfauci-says-coronavirus-testing-n1157036 18 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19), Evaluating and Testing Persons for Coronavirus Disease 2019 (COVID-19) (last updated Mar. 24, 2020), https://www.cdc.gov/coronavirus/2019-nCoV/hcp/clinical-criteria.html 19 George Citroner, How Many People in the United States Actually Have COVID-19?, Healthline (Mar. 18, 2020), https://www.healthline.com/health-news/how-many-coronaviruscases-are-there
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droplets land directly on a nearby person’s nose or mouth. It can also occur when a person inhales these droplets or touches a contaminated surfaced and then touches their mouth, nose, or eyes.20 The coronavirus can survive up to three hours in the air, four hours on copper, 24 hours on cardboard, and two to three days on plastic and stainless steel.21
34. Many people with COVID-19 remain completely asymptomatic and may never realize that they are infected, yet can still spread the disease. Likewise, infected people who may eventually develop symptoms are contagious even when they are pre-symptomatic and may account for 50% of transmissions. Interventions that isolate or quarantine only symptomatic individuals, therefore, cannot effectively contain transmission.
ii. Symptoms of COVID-19, Underlying Risks Factors, and Long-Term Effects
35. Even though it causes only mild symptoms or no symptoms at all for some, COVID-19 can, for others, result in more serious injury, including respiratory failure, kidney failure, and death.
36. Older individuals and those with certain medical conditions are at particularly high risk for serious illness or death from COVID-19.
37. Medical conditions that increase the risk of severe illness or death from COVID-19 for individuals of any age include blood disorders, chronic kidney or liver disease, compromised immune system, diabetes and other endocrine disorders, metabolic disorders, heart and lung disease, neurological and neurodevelopmental conditions, and current or recent pregnancy.
20 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19), How Coronavirus Spreads (last reviewed Mar. 4, 2020), https://www.cdc.gov/coronavirus/2019ncov/prevent-getting-sick/how-covid-spreads.html 21 Harvard Health Publishing, As coronavirus spreads, many questions and some answers Harvard Medical School, Coronavirus Resource Center (last updated Apr. 1, 2020), https://www.health.harvard.edu/diseases-and-conditions/coronavirus-resource-center
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38. Infected individuals can face prolonged treatment and recovery periods, requiring intensive hospital care and ventilators that are in increasingly short supply. Those who do not die can suffer serious damage to the lungs, heart, liver, or other organs.22
39. Complications from COVID-19 can manifest at an alarming pace. Patients can go from being medically stable with no need for supplemental oxygen to requiring intubation and ventilator-assisted breathing within 24 hours. Various studies estimate that the average length of time from onset of symptoms to hospitalization or the development of severe symptoms is only 79 days.
iii. Prevention of COVID-19 Transmission 40. There is currently no vaccine against COVID-19. Nor are there any known prophylactic medications that will prevent or reduce the risk of a COVID-19 infection. Therefore, the only effective way to protect people against the risk of serious illness or death from COVID19 is to limit their exposure to the virus through social distancing—i.e., physical separation of at least six feet from all others—and vigilant hygiene, including frequent and thorough handwashing with soap and water.23 41. The high incidence of asymptomatic transmission, alongside the nationwide dearth of diagnostic tests to identify and isolate infected individuals, necessitate strict social distancing measures to interrupt transmission. 42. Social distancing reduces the average number of contacts between people, which
22 Lisa Maragakis, M.D., M.P.H., I’ve been diagnosed with the new coronavirus disease, COVID-19. What should I expect? Johns Hopkins Medicine, https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus/diagnosed-withcovid-19-what-to-expect 23 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19), How to Protect Yourself (last reviewed Apr. 1, 2020), https://www.cdc.gov/coronavirus/2019ncov/prevent-getting-sick/prevention.html
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lowers every individual’s risk both for acquiring COVID-19 and transmitting it to another person. 43. Strict social distancing measures have proven effective in reducing the transmission
of COVID-19. On January 23, 2020, the Chinese government instituted a complete lockdown of Wuhan, China, where the COVID-19 outbreak began, to attempt to fight the spread of the virus. They shut down all schools, offices, and factories and banned private vehicles from city streets. This lockdown expanded to other cities in Hubei province in the next several days, extending to 60 million people in China.24 Following the lockdown, Wuhan saw a sustained decrease in transmission of COVID-19, and two months later, the daily number of reported cases dropped to zero.25
44. Throughout the world, other countries have also implemented drastic social distancing measures in an effort to control the COVID-19 pandemic and protect people’s health and lives. France, for example, imposed a strict nationwide lockdown, prohibiting gatherings of any size and ordering all residents to stay at home.26 Overall, countries encompassing an estimated one third of the world’s population have enacted similar restrictions.27 Across the United States, cities and states are imposing increasingly stringent measures to effectuate social distancing. As of April 2, 2020, at least 38 states, 48 counties, and 14 cities, and had ordered their residents to
24 Amy Gunia, China’s Draconian Lockdown Is Getting Credit for Slowing Coronavirus. Would It Work Anywhere Else?, Time Magazine (Mar. 13, 2020), https://time.com/5796425/chinacoronavirus-lockdown/ 25 Id. 26 Bryan Pietsch, ‘We are at war’: France’s president just announced a 15-day lockdown, banning public gatherings and walks outdoors, Business Insider (Mar. 16, 2020), https://www.businessinsider.com/coronavirus-france-president-macron-announces-15-daylockdown-2020-3 27 Juliana Kaplan, Lauren Frias, & Morgan McFall-Johnson, A Third of the Global Population Is On Coronavirus Lockdown, Business Insider (last updated Apr. 6, 2020) https://www.businessinsider.com/countries-on-lockdown-coronavirus-italy-2020-3
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“shelter in place” or stay at home.28
B. COVID-19 Will Likely Ravage Jails, Prisons, and Detention Centers 45. Imprisoned populations, including those in ICE detention facilities, are at higher
risk for infectious disease, as compared to the general population. Factors that heighten their risk
include poor sanitation, high population density, and “a higher prevalence of infectious and chronic diseases and . . . poorer health than the general population, even at younger ages.”29
46. Dr. Scott Allen and Dr. Josiah Rich, experts in the fields of detention health,
infectious disease, and public health who advise DHS’s Office of Civil Rights and Civil Liberties,
have urged Congress to take immediate actions to slow the spread of COVID-19 in ICE detention
centers, including releasing immigrants to facilitate social distancing—which, they say, is an “oxymoron” in congregate settings.30
47. In March 2020, over 3,000 medical professionals across the United States also
urged ICE to release individuals and families from detention “to prevent the spread of COVID-19 and mitigate the harm of an outbreak” to detained individuals, as well as to facility staff.31 They
warned that social distancing measures recommended by the CDC are nearly impossible in
immigration detention and that large-scale quarantines may be unfeasible at ICE facilities that are
28 Sarah Mervosh, Denise Lu, and Vanessa Swales, See Which States and Cities Have Told Residents to Stay at Home, The New York Times (last updated Apr. 3, 2020) https://www.nytimes.com/interactive/2020/us/coronavirus-stay-at-home-order.html 29 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19), Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (last reviewed Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html 30 Scott A. Allen, MD, FACP and Josiah Rich, MD, MPH Letter to Congress (Mar. 19, 2020) https://assets.documentcloud.org/documents/6816336/032020-Letter-From-Drs-Allen-Rich-toCongress-Re.pdf 31 Janus Rose, Thousands of Doctors Deman ICE Release Detainees to Stop a COVID-19 Disaster, Vice.com (Mar. 18, 2020), https://www.vice.com/en_us/article/4agp4w/thousands-ofdoctors-demand-ice-release-detainees-to-stop-a-covid-19-disaster
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already at maximum capacity. They also expressed concern that “isolation may be misused and place individuals at higher risk of neglect and death.”
48. Like these and other experts, 32 Drs. Allen and Rich also warned of the dire consequences that a COVID-19 outbreak within an ICE detention facility would have on the community outside the facility. They describe a “tinderbox” scenario where a rapid outbreak inside a facility would result in the hospitalization of multiple detained people in a short period of time, which would then spread the virus to the surrounding community and create a demand for ventilators far exceeding the supply.
49. Once a disease is introduced into a jail, prison, or detention facility, it spreads faster than under most other circumstances due to overcrowding, poor sanitation and hygiene, and lack of access to adequate medical services. For these same reasons, the outbreak is harder to control.33 The severe outbreaks of COVID-19 in congregate environments, such as cruise ships and nursing homes, illustrate just how rapidly and widely COVID-19 would rip through an ICE detention facility. On the Diamond Princess cruise ship, for example, approximately 700 passengers and crew on board were infected over the course of three weeks despite the initiation of quarantine protocols.
50. Good hygiene is also critical to reducing exposure to COVID-19, but the notoriously unsanitary conditions in detention centers and ICE’s meager provision of hygiene and
32 See, e.g., Rich Schapiro, Coronavirus could ‘wreak havoc’ on U.S. jails, experts warn, NBC News (Mar. 12, 2020), https://www.nbcnews.com/news/us-news/coronavirus-could-wreakhavoc-u-s-jails-experts-warn-n1156586 (“An outbreak of the deadly virus inside the walls of a U.S. prison or jail is now a question of when, not if, according to health experts.”). 33 Christina Potter, Outbreaks in Migrant Detention Facilities, Outbreak Observatory (Jul. 11, 2019), https://www.outbreakobservatory.org/outbreakthursday-1/7/11/2019/outbreaks-inmigrant-detention-facilities
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cleaning products rob detained individuals of the ability to practice good hygiene.
51. Despite the global pandemic and shelter-in-place orders across the country, ICE
continues to bring new people into detention centers and to transfer previously detained people
between facilities.34 Some detained people have staged public protests, including initiating hunger
strikes and threatening suicide, to express their outrage at being housed with newly arriving
individuals who may have been exposed to COVID-19.35
52. Correctional staff is also an especially dangerous vector for a COVID-19 outbreak
within a detention center since they regularly travel back and forth between the outside world and
the detention facilities where they work.
53. ICE’s past inept handling of infectious disease outbreaks in detention centers
foreshadows the impact once COVID-19 hits these facilities. In 2019, a mumps outbreak across
57 immigration detention facilities throughout the country—including Stewart—led to almost 900
cases of mumps contracted inside the facilities36 before the outbreak spread to surrounding
34 U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, ICE Guidance on COVID-19 (last reviewed/updated Apr. 2, 2020), https://www.ice.gov/covid19 (“ . . . our law enforcement officers and agents continue daily enforcement operations to make criminal and civil arrests.”); see Richard Hall, Coronavirus: ICE Crackdown Stokes Fears for Safety of Undocumented Immigrants During Pandemic, Independent (Mar. 15, 2020) (noting that “[i]n New York, immigration advocates have noted a marked increase in ICE activity in recent months, which has not slowed as the coronavirus outbreak has worsened.”). On March 18, 2020, ICE announced it would “temporarily adjust” its enforcement practices during the COVID-19 outbreak,” but declined to say it would stop arresting people altogether. See Rebecca Klar, ICE Pausing Most Enforcement During Coronavirus Crisis, The Hill (Mar. 18, 2020), https://thehill.com/latino/488362-ice-pausing-most-immigration-enforcement-duringcoronavirus-crisis 35 Ice detainees threaten suicide, stage protests over coronavirus fears, The Washington Post (Mar. 25, 2020) https://www.washingtonpost.com/video/national/ice-detainees-threaten-suicidestage-protests-over-coronavirus-fears/2020/03/25/8232738e-0b1e-4fdb-8538456e269a8eb7_video.html 36 Leung J, Elson D, Sanders K, et al. Notes from the Field: Mumps in Detention Facilities that House Detained Migrants—United States, September 2018–August 2019, MMWR Morb Mortal
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communities.37 ICE and CBP facilities have also been sites of other infectious outbreaks in recent
years,38 as have other prisons and jails.39
54. COVID-19 has indeed already started to spread inside U.S. prisons and jails across
the United States, including in Georgia 40and New York City.41
55. ICE has publicly reported 13 cases of COVID-19 among its detained population as
of April 6, 2020, and identified 56 additional cases among its personnel, including seven
employees who work at an ICE detention facility.42 In addition, according to a leaked internal
report, ICE has placed at least nine detainees in medical isolation and is monitoring 24 more in ten
different detention facilities—all likely due to suspicion of COVID-19.43
Wkly, 749–50 (Aug. 30, 2019), https://www.cdc.gov/mmwr/volumes/68/wr/pdfs/mm6834a4H.pdf; Roxanne Scott, Stewart Detention Center Watches For New Cases Of Mumps, WABE (Mar. 8, 2019), https://www.wabe.org/stewart-detention-center-watches-for-new-cases-ofmumps/ 37 See Terrence McDonald, Bergen County Won’t Say if Mumps Outbreak Affects Only Immigrant Detainees, Northjersey.com (Jun. 13, 2019), https://www.northjersey.com/story/news/bergen/2019/06/13/bergen-county-nj-wont-say-if-jailmumps-outbreak-hit-only-ice-inmates/1448708001. In addition, in 2019, thousands of individuals in 39 immigration detention centers across the country were exposed to chickenpox. See Emma Ockerman, Migrant Detention Centers Are Getting Slammed with Mumps and Chickenpox, Vice News (Jun. 14, 2020), https://www.vice.com/en_us/article/mb8k5q/migrantdetention-centers-are-getting-slammed-with-mumps-and-chicken-pox. 38 Christina Potter, Outbreak Observatory supra n. 33, (describing outbreaks of acute respiratory illnesses like influenza, and other diseases like scabies and chickenpox). 39 J. O’Grady, et al., Tuberculosis in prisons: anatomy of global neglect, European Respiratory Journal (2011), https://erj.ersjournals.com/content/38/4/752.short (stating that tuberculosis prevalence among prisoners worldwide can be up to 50 times higher than national averages). 40 Joshua Sharpe and Christian Boone, Ga. Inmate dies from COVID-19 as virus hits more prisons, The Atlanta Journal-Constitution (Mar. 27, 2020), https://www.ajc.com/news/local/breaking-inmate-dies-from-covid-outbreak-worsensprison/TzQZL4uXfK4GzH9ebSFNQN/ 41 Emma Grey Ellis, Covid-19 Poses a Heightened Threat in jails and Prisons, wired.com (Mar. 24, 2020), https://www.wired.com/story/coronavirus-covid-19-jails-prisons/ 42 ICE Guidance on COVID-19, supra n. 34 43 Ken Klippenstein, Exclusive: ICE Detainees Are Being Quarantined, A leaked document about the Department of Homeland Security’s Covid-19 response suggests that the crisis has made its
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56. Nationally and internationally, governments and jail and prison staff have already
recognized the threat posed by COVID-19. Authorities in Iran,44 Ethiopia,45 and the state of
Texas46 have all begun to release people to mitigate the harm that the impending spread of COVID-
s19 will cause. Some jails in Georgia have done the same,47 including Dougherty County Detention
Center in Albany, which is suffering from one of the most severe outbreaks in the state.48 The
Federal Bureau of Prisons has also instructed prison directors to prioritize releasing federal inmates
to home confinement, taking into consideration factors including “[t]he age and vulnerability of
the inmate to COVID-19, in accordance with the [CDC] guidelines.”49
57. Still, ICE continues to detain even the most medically vulnerable noncitizens
despite the grave risk of serious illness or death.
way to border detention facilities, The Nation (Mar. 24, 2020), https://www.thenation.com/article/society/corona-covid-immigration-detention/ 44 Babk Dehghanpisheh and Stephanie Nebehay, Iran Temporarily Releases 70,000 Prisoners as Coronavirus Cases Surge, Reuters (Mar. 9, 2020), https://www.reuters.com/article/us-healthcoronavirus-iran/iran-temporarily-releases-70000-prisoners-as-coronavirus-cases-surgeidUSKBN20W1E5 45 Bukola Adebayo, Ethiopia pardons more than 4,000 prisoners to help prevent coronavirus spread, CNN (Mar. 26, 2020), https://www.cnn.com/2020/03/26/africa/ethiopia-pardons-4000prisoners-over-coronavirus/index.html 46 Dillon Collier, Bexar County jail population down more than 500 inmates after release of nonviolent offenders, KSAT.com (last updated Mar. 25, 2020), https://www.ksat.com/news/local/2020/03/25/bexar-county-jail-population-down-more-than500-inmates-after-release-of-nonviolent-offenders/ 47 Christian Boone, Hall, Fulton counties releasing nonviolent offenders early as virus looms, The Atlanta Journal-Constitution (Mar. 23, 2020), https://www.ajc.com/news/crime--law/hallfulton-counties-releasing-nonviolent-offenders-early-virus-looms/lOZTaZ9lVSwoy38Cp6XJIP/; 48 Stanley Dunlap, Georgia jailers cope with COVID-19; release inmates, quarantine arrivals, Georgia Recorder (Mar. 30, 2020), https://georgiarecorder.com/2020/03/30/georgia-jailers-copewith-covid-19-release-inmates-quarantine-arrivals/ 49 Office of the Attorney General, Washington, DC, Memorandum for Director of Bureau Prisons, Prioritization of Home Confinement As Appropriate in Response to COVID-19 Pandemic (Mar. 26, 2020), https://www.politico.com/f/?id=00000171-1826-d4a1-ad77fda671420000
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C. Stewart and Irwin Detention Centers Are Primed for COVID-19 Exposure and Severe Outbreaks

i.

Existing Conditions at Stewart and Irwin Will Further Enable COVID-19

Transmission

58. The ICE Atlanta Field Office currently detains an estimated 3,000 noncitizens at

Stewart and Irwin.

59. Preventing the spread of COVID-19 inside Stewart and Irwin is impossible. The

design of these facilities requires detained individuals to remain in close contact with one

another—the opposite of the social distancing recommended for stopping the spread of lethal

coronavirus.

60. Both Stewart and Irwin house people in very close quarters, making social

distancing and the recommended hygiene measures effectively impossible. Most people sleep in

bunk rooms housing dozens of immigrants—where beds are feet apart from each other—and use

shared toilets and showers. The facilities also have some smaller cells housing 2-4 people with

shared bathrooms. People eat together in shared cafeterias and regularly congregate in common areas of their housing units.50 A man at Stewart reported to advocates on March 26, 2020, that a

staff member told detained individuals that social distancing “doesn’t apply” to them because they

“are in detention.”

61. The conditions at Stewart and Irwin are also flagrantly unsanitary and dangerous to

the health of detained individuals. Private contractors operate Stewart and Irwin, and the DHS

Office of Inspector General has repeatedly concluded that ICE fails to hold detention facility

50 Project South, Center for Immigrants’ Rights Clinic, Imprisoned Justice: Inside Two Georgia Immigrant Detention Centers (May 2017), available at https://projectsouth.org/wpcontent/uploads/2017/06/Imprisoned_Justice_Report-1.pdf at 31, 43 [hereinafter Imprisoned Justice];
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contractors accountable for meeting performance standards required to ensure humane
conditions.51
62. The bathrooms in these facilities are often unsanitary, poorly maintained, or lack
hot or cold water. For example, at Irwin, detained individuals have reported that water from the
showers is so hot that it has caused hair to fall out after washing and that the “moldy infection-
riddled bathrooms” are “consistently dirty.”52
63. Access to items necessary for personal hygiene, such as soap, clean clothing, and
cleaning supplies, is insufficient at both Stewart and Irwin. 53 In a pending class-action lawsuit,
people detained at Stewart allege that they are forced to work in the facility for cents an hour in
order to buy additional hygiene supplies like soap and toilet paper at the commissary.54 Detained
people in Irwin have reported that bleach is only used “on special occasions” and that detained
51 See U.S. Department of Homeland Security, Office of the Inspector General, OIG-19-18, ICE Does Not Fully Use Contracting Tools to Hold Detention Facility Contractors Accountable for Failing to Meet Performance Standards, 1 (Jan. 29, 2019), https://www.oig.dhs.gov/sites/default/files/assets/2019-02/OIG-19-18-Jan19.pdf; U.S. Department of Homeland Security, Office of the Inspector General, OIG-18-67, ICE’s Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or Systemic Improvements, 1 (Jun. 26, 2018), https://www.oig.dhs.gov/sites/default/files/assets/20//18-06/OIG-18-67-Jun18.pdf; see also U.S. Department of Homeland Security, Office of Inspector General, Office of Inspections & Evaluations, Adult Detention Oversight, 16-047-ISP-ICE (Feb. 2017), https://www.oig.dhs.gov/sites/default/files/assets/FOIA/OIG_FOIA_Stewart-Detention-CenterWork-Papers.pdf [hereinafter OIG Stewart Work Papers] 52 U.S. Department of Homeland Security, Office of Inspector General, OIG-18-32, Concerns about ICE Detainee Treatment and Care at Detention Facilities (Dec. 11, 2017), https://www.oig.dhs.gov/sites/default/files/assets/2017-12/OIG-18-32-Dec17.pdf at 7 [hereinafter Concerns about ICE Detainee Treatment]; Imprisoned Justice at 31, 43-44 53 Imprisoned Justice at 30, 33, 42-45; OIG Stewart Work Papers; Concerns about ICE Detainee Treatment at 7. 54 Wilhen Hill Barrientos, et al. v. Corecivic, Inc., No. 18-cv-00070-CDL (M.D. Ga. Apr. 17, 2018) Dkt. 1 Complaint for Declaratory and Injunctive Relief and Damages, https://projectsouth.org/wp-content/uploads/2018/04/Complaint-Barrientos-v.-Core-Civic.pdf
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people are forced to wear the same pair of shoes in the moldy showers as they do around the rest
of their housing unit.55
64. Reports indicate that the water quality at Stewart is shockingly poor. Detained
individuals have reported boiling water in their cells before drinking it; developing rashes after
showers; water turning their white clothes green; and getting headaches or long bouts of diarrhea
after drinking the water. One attorney visiting Stewart reported to an advocacy group that a
sympathetic guard urged the attorney not to drink water out of the drinking fountain.56
65. At both facilities, food preparation and service are communal with little opportunity
for surface disinfection. Detained people, overseen by food service contractors, staff the kitchens.
People detained in these facilities have for years reported being served food that is undercooked,
rotten, or rancid and that contains hair and foreign objects such as rocks, insects, mice, plastic, a
tooth, and a nail.57
ii. Stewart and Irwin Detention Centers Have a Dismal Medical Care Track Record and Are Currently Ignoring Reported Flu-like Symptoms Among the Detained Population
66. Respondents have consistently failed to provide even minimally adequate medical
care to individuals detained at Stewart and Irwin.58 They cannot possibly be trusted to protect those
in their custody from a potentially lethal infectious disease outbreak that has overwhelmed
55 Imprisoned Justice at 32, 45 56 Imprisoned Justice at 32; Southern Poverty Law Center, Shadow Prisons: Immigrant Detention in the South (Nov. 21, 2016), https://www.splcenter.org/20161121/shadow-prisonsimmigrant-detention-south [hereinafter Shadow Prisons] at 16, 42 57 Imprisoned Justice at 30, 44, 47; Shadow Prisons at 16, 26, 42; OIG Stewart Work Papers 58 U.S. Department of Homeland Security, Immigration and Customs Enforcement, Office of Professional Responsibility, Inspections and Detention Oversight Division, Compliance Inspection, Enforcement and Removal Operations, ERO Atlanta Field Office, Stewart County Detention Center, Lumpkin, Georgia (Aug. 21-23, 2012), https://www.ice.gov/doclib/foia/odocompliance-inspections/2012stewart_detntn_cntr_lumpkin_GA_aug21-23-2012.pdf; Concerns about ICE Detainee Treatment; Shadow Prisons at14-15, 17, 23-25, 40-41; Imprisoned Justice at 46-49
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healthcare systems around the world. 67. At both detention centers, critical medical care is routinely delayed—sometimes
for months—or denied outright. 68. At Irwin, requests for medical attention have been met with punishment, such as
placement in solitary confinement. One man at Irwin reported that a guard told him “medical staff would only take [him] to the hospital if they see [him] dying.” Others detained at Irwin reported that the facility lacks a medical alert system to notify guards of an emergency, leaving detained people helpless in the event of a medical emergency in the living area. An inspection at Irwin in 2017 found that its medical unit cells were so dirty that “floors needed to be mopped, walls wiped down, toilets cleaned, and trash and refuse removed.”59
69. Accessing medical care at Stewart is also incredibly difficult. In 2018, there was no way for an individual to even request medical attention in writing. During a stakeholder tour of the facility in 2018, a detained man in the waiting room of the medical unit said to the tour participants, “nos están tratando mal,” or they’re mistreating us.
70. When detained people at Stewart and Irwin do manage to get the attention of a medical provider, they are often given the wrong diagnostic tests, medication, or dosage, or prescribed only painkillers, regardless of the source of their complaints.60
59 U.S. Department of Homeland Security, Immigration and Customs Enforcement, Office of Professional Responsibility, Inspections and Detention Oversight Division, Compliance Inspection, Enforcement and Removal Operations, ERO Atlanta Field Office, Irwin County Detention Center, Ocilla, Georgia (Mar. 7-9, 2017), https://www.ice.gov/doclib/foia/odocompliance-inspections/2017IrwinCountyGA.pdf at 6 60 Imprisoned Justice at 35-36; Shadow Prisons at 40; DHS Office for Civil Rights and Civil Liberties, Formal Complaint – Stewart Detention Center, Lumpkin, GA (Oct. 11, 2019), https://www.detentionwatchnetwork.org/sites/default/files/CRCL%20complaint%20%20SDC%20-%20Oct%2011%20-%20translation_Redacted.pdf; Project South, Institute for the Elimination of Poverty & Genocide, Letter to Members of the Georgia Delegation to the 116th
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71. The facilities also face consistent understaffing, including “chronic shortages of
almost all medical staff positions.”61
72. Detained individuals with diabetes—a condition that the CDC considers a risk
factor for severe COVID-19, “particularly if not well controlled”62—have reported diets that are
inadequate given their medical needs, consisting largely of potatoes, white rice, and bread.63
73. Failing to address people’s medical needs has had deadly consequences at Stewart
and Irwin. Four people detained at Stewart have died since spring 2017.64 One man died from
complications of pneumonia, despite being a healthy 33-year-old before entering detention.65
According to ICE’s own records, facility staff failed to properly monitor the man’s documented
symptoms of hypertension (a condition that increases the risk of a serious case of COVID-19),
failed to immediately authorize emergency medical services after a provider ordered them to do
so, and failed to suspend the man’s food service work duties even though he had symptoms that
could “potentially transmit[ ] contagious illnesses.”66
United States Congress Re: Requesting an Investigation of the Stewart Detention Center (Oct. 17, 2019), https://projectsouth.org/wp-content/uploads/2019/10/10.17.2019-Letter-to-GeorgiaCongressional-Delegates-.pdf; Concerns about ICE Detainee Treatment at 7 61 Imprisoned Justice at 35; OIG Stewart Work Papers 62 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19), People who are at higher risk for severe illness (last reviewed Mar. 31, 2020), https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/people-at-higher-risk.html 63 Imprisoned Justice at 22-23, 32; Shadow Prisons at 17, 42. 64 José Olivares, How Solitary Confinement Kills: Torture and Stunning Neglect End in Suicide at Privately Run ICE Prison, The Intercept (Aug. 29, 2019), https://theintercept.com/2019/08/29/ice-solitary-mental-health-corecivic/ 65 Jeremy Redmon, Brother: Cuban was healthy before dying of pneumonia in ICE custody, The Atlanta Journal-Constitution (Feb. 20, 2018), https://www.ajc.com/news/state--regional-govt-politics/brother-cuban-was-healthy-before-dying-pneumonia-icecustody/9TNpiI95CYQPyiGPoSyzmJ/ 66 U.S. Department of Homeland Security, Immigration and Customs Enforcement, Report of Investigation, Case No. 201803734, Castro-Garrido, Yulio/non-employee/0109 Detainee/Alien – Death (Known Cause – Terminal Illness)/Jacksonville, Duval, FL (Jan. 31, 2018), available at
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74. A whistleblower within the ICE Health Service Corps (IHSC) alleged in 2018 that medical staff at Stewart delayed a critically ill man’s care after receiving a lab report that should have resulted in immediate intervention. Even though IHCS determined that medical staff’s actions “may have caused harm that could have resulted in fatality,” IHSC leadership “failed to take appropriate action.”67
75. In the context of the COVID-19 pandemic, early reports indicate that ICE is using the same playbook—ignoring pleas for help, threatening those who seek medical care with punishment, and waiting until it may be too late.
76. For example, on March 23, 2020, a man detained at Stewart reported to advocates that people detained there are afraid to report their symptoms for fear of being placed in segregation—in a 6-by-9-foot cell—where a number of detained people have died by suicide.
77. Reportedly, individuals at Stewart sometimes choose not to request medical appointments because they do not believe they will receive proper care. One man at Stewart, who reported to advocates on March 26, 2020, that he was experiencing a sore throat, dizziness, and diarrhea, shared his observation that people who seek medical care for a cough are returned to the general population, rather than isolated, after their appointments.
78. Preliminary data suggests that a person with COVID-19 is most infectious during
https://projectsouth.org/wp-content/uploads/2019/06/OPR-Release-of-2019-ICLI-00033.pdf at 12. 67 U.S. Department of Homeland Security, Office for Civil Right and Civil Liberties, Memorandum for Ronald Vitiello, Deputy Director and Senior Official (ICE), From Cameron P. Quinn, Officer for Civil Rights and Civil Liberties and Marc Pachon, Attorney Advisor – Legal Division, Office of General Counsel, Subject: ICE Health Service Corps (IHSC) Medical/Mental Care and Oversight (Mar. 20, 2019), available at https://www.documentcloud.org/documents/6575024-ICE-Whistleblower-Report.html
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the early stage of the disease.68 Early, proactive action is necessary to prevent the virus’s spread.
The well-documented failure to provide adequate and timely medical care at Stewart and Irwin is
the mark of a system that cannot possibly cope with the spread of COVID-19.
iii. It Is Only a Matter of Time Before COVID-19 Reaches Stewart and Irwin Detention Centers
79. COVID-19 is bound to reach Stewart and Irwin, if it has not already. Detained
people at Stewart and Irwin have reported to advocates that there are cases of COVID-19 within
their facilities, including one possible COVID-19-related death at Stewart, though ICE has not
confirmed any of these reports. In addition, two guards at Stewart have now tested positive for
COVID-19.69 The total number of confirmed cases in Stewart County is three.70
80. Many cities and counties surrounding Lumpkin also have confirmed cases of
COVID-19.71 Lumpkin is only about 50 miles from Albany, which, as of March 26, 2020, had the
fourth highest number of COVID-19 cases per capita and the third highest number of COVID-19
deaths per capita in the entire world.72 Phoebe Putney Memorial Hospital, located in Albany, has
68 Helen Branswell, People ‘shed’ high levels of coronavirus, study finds, but most are likely not infectious after recovery begins, statnews.com (Mar. 9, 2020), https://www.statnews.com/2020/03/09/people-shed-high-levels-of-coronavirus-study-finds-butmost-are-likely-not-infectious-after-recovery-begins/ 69 Alex Jones, Second Stewart Detention Center employee tests positive for COVID-19, WTVM (last updated April 6, 2020) https://www.wtvm.com/2020/04/06/second-stewart-detentioncenter-employee-tests-positive-covid-/ 70 Georgia Department of Public Health COVID-19 Daily Status Report (Apr. 6, 2020), https://dph.georgia.gov/covid-19-daily-status-report 71 Georgia Department of Public Health COVID-19 Daily Status Report (Apr. 6, 2020), https://dph.georgia.gov/covid-19-daily-status-report – specifically Randolph County, plus (not directly bordering) Muscogee County, Terrell County, Sumter County. As well as Russell County, GA: COVID-19 map of Alabama: latest coronavirus cases by county, wvtm13.com (last updated Apr. 1, 2020), https://www.wvtm13.com/article/coronavirus-map-alabama/31919956# 72 Nate Cohn, et al., Some U.S. Cities Could Have Coronavirus Outbreaks Worse Than Wuhan’s, The New York Times (Mar. 27, 2020), https://www.nytimes.com/interactive/2020/03/27/upshot/coronavirus-new-york-comparison.html
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filed all three of its ICUs with critically ill COVID-19 patients, after having opened a fourth ICU
for patients not infected with COVID-19.73 As of April 6, 2020, Dougherty County, which
encompasses Albany, had the second highest number of reported COVID-19 diagnoses—722—
and COVID-19-related deaths—44—among all 159 counties in Georgia.74 Lumpkin is also about
50 miles from another COVID-19 “hot spot”—Lee County, Alabama, had 118 confirmed cases as
of April 6, 2020.75
81. There were seven confirmed cases of COVID-19 in Irwin County as of April 6,
2020, with confirmed cases in all bordering counties as well.76 Like Lumpkin, Ocilla is only
roughly 60 miles from Albany, where there is sustained community spread of the virus.
82. There is great risk that people traveling in and out of Stewart and Irwin will expose
Petitioners to COVID-19. Indeed, two of the three known cases in Stewart County are staff at
Stewart Detention Center.
83. Staff at Stewart and Irwin arrive and leave on a shift basis, and there is limited
ability to adequately screen incoming staff for new, asymptomatic infection.
84. Staff often need to crowd into small spaces to enter and exit detention centers. On
73 Christina Maxouris and Angela Barajas, Georgia’s hardest-hit hospital says its intensive care units are filled with ‘critically ill’ coronavirus patients, CNN (last updated Mar. 26, 2020), https://www.cnn.com/2020/03/26/us/southwest-georgia-icu-units-full/index.html 74 Georgia Department of Public Health COVID-19 Daily Status Report (last reviewed Apr. 6, 2020), https://dph.georgia.gov/covid-19-daily-status-report 75 COVID-19 map of Alabama: latest coronavirus cases by county, wvtm13.com (last updated Apr. 6, 2020), https://www.wvtm13.com/article/coronavirus-map-alabama/31919956#; Paul Gattis, Alabama’s new coronavirus ‘hot spot’: Auburn area, al.com (Mar. 25, 2020), https://www.al.com/news/2020/03/alabamas-new-coronavirus-hotspot-lee-county.html; Alabama Department of Public Health, Division of Infectious Diseases & Outbreaks, Alabama’s COVID19 Data and Surveillance Dashboard (last updated Apr. 2, 2020) https://alpublichealth.maps.arcgis.com/apps/opsdashboard/index.html#/6d2771faa9da4a2786a50 9d82c8cf0f7 76Georgia Department of Public Health COVID-19 Daily Status Report (Apr. 2, 2020), https://dph.georgia.gov/covid-19-daily-status-report
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March 24, 2020, an immigration attorney visiting Stewart observed a shift change in which a group of 15-20 staff was waiting in a small hallway for a gate to open, all crowded within several inches of each other. Over the course of multiple visits during the same week, she did not see any staff at Stewart wearing gloves, masks, or other personal protective equipment (PPE); one officer at the entrance to the Stewart immigration court without any PPE was “coughing continually.” Similarly, an attorney visiting Irwin on March 22, 2020, observed no use of PPE by facility staff, other than a guard who put on gloves before taking her temperature, and took them off right afterwards.
85. Attorneys continue to visit their detained clients in Stewart and Irwin because most immigration court hearings are still proceeding and many filing deadlines still apply. Since the pandemic began, ICE has permitted attorneys to enter these facilities without taking adequate precautions to limit exposure in the event that a visiting attorney is a COVID-19 carrier. At Irwin and Stewart, attorneys were permitted to enter for legal visits in late March without wearing any PPE. They merely had to submit to temperature checks and answer a brief set of questions about whether they had traveled recently or had contact with a confirmed case of COVID-19.
86. As recently as March 23, 2020, Stewart—which houses an immigration court—was holding hearings with more than ten people inside a court room. At least one such hearing included a live interpreter who, according to the judge, had traveled from the New York court where a judge had a presumed positive case of COVID-19. After the hearing, the attorney went to visit her client and was permitted to enter the visitation lobby at Stewart without any PPE. When she visited her client in the legal visitation rooms at Stewart, the client did not have gloves, a mask, or hand sanitizer.
87. Another immigration attorney reported that, as recently as April 6, 2020, no guards or other court staff wore any PPE during a hearing at Stewart Immigration Court. ICE also refused
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to let him supply his clients with PPE. Later that day, the same attorney was permitted to visit clients at Stewart without being screened for symptoms or his potential exposure to COVID-19.
88. There are myriad ways in which COVID-19 is likely to enter or has already entered Stewart and Irwin, none of which Respondents can meaningfully address without blanket testing of every individual who enters. However, testing shortages make such a measure impossible.
89. Once the virus appears in these facilities—if it has not already—it will be effectively impossible for Petitioners to protect themselves from infection through social distancing and vigilant hygiene—the only known mitigation measures. If they do contract COVID19, Petitioners—who are already at particularly high risk of serious illness and death—are unlikely to receive the medical care they need.
D. The Lack of Hospital Resources Near the Georgia Detention Centers Will Put Petitioners at Even Greater Risk
90. The local and regional hospitals near Stewart and Irwin are ill-equipped to handle a COVID-19 outbreak within these facilities, increasing the life-threatening risks to Petitioners.
91. An outbreak of COVID-19 at Stewart or Irwin would put at risk not only detained populations but also the thousands of ICE officers, medical personnel, contract workers, and many others who work in these facilities, diverting crucial and limited medical resources.
92. Patients who are hospitalized for COVID-19 commonly require intensive care and a ventilator to assist breathing. Even some younger and healthier individuals who contract COVID19 may require supportive care.77 And those who develop serious complications will need advanced support, including highly specialized equipment that is in limited supply and an entire
77 Fei Zhou, MD, et al., Clinical course and risk factors for mortality of adults in patients with COVID-19 in Wuhan, china: a retrospective cohort study, The Lancet, vol. 395, issue 10229 (Mar. 11, 2020), available at https://www.thelancet.com/journals/lancet/article/PIIS01406736(20)30566-3/fulltext
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team of care providers. This level of support is especially difficult to provide to detained individuals because ICE detention facilities lack adequate medical care infrastructure.
93. Stewart and Irwin are geographically isolated from appropriate levels of medical care to treat COVID-19. The disease requires an intensive care unit with appropriate medical equipment and staff. The closest hospitals to these facilities are either critical access hospitals without the necessary facilities or regional hospitals that serve many counties and are already overwhelmed or will quickly become overwhelmed if there are outbreaks within these detention centers.
94. Critical access hospitals are generally located in rural areas where the access to nearby hospitals is extremely limited. They have fewer than 25 beds and are designed to care for patients who will require fewer than 96 hours of care. Importantly, even if some have ICU-type beds, they do not have capacity for the type of long-term treatment required for COVID-19 patients. Critical access hospitals are not designed to care for critically ill patients; they are designed to stabilize and transfer them.
95. Stewart is at least one hour away from two facilities where the necessary level of care could be provided, one of which—Phoebe Putney in Albany—is already completely overwhelmed with COVID-19 patients. A hospital closer to Stewart—Southwest Georgia Regional Medical Center in Cuthbert, Georgia—has no long-term ICU beds.
96. The nearest hospital to Irwin with ICU capabilities is Tift Regional Medical Center, approximately 18 miles away. Tift Medical Center has 181 hospital beds, including 20 ICU beds. As a regional hospital, it serves 12 counties. A coronavirus outbreak in any of these counties would overwhelm the hospital and its ICU beds.
97. With the increasing shortage of PPE, healthcare providers, hospital capacity, and
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ICU resources like ventilators, it is impossible to know when specific hospitals in Georgia will run out of any of these requisite resources. However, predictions suggest that Georgia currently has an ICU bed shortage of 755 beds and 1,075 ventilators and that all state hospital resources will be used by April 22, 2020.
E. ICE’s Actions to Address the Pandemic Thus Far Have Been Woefully Inadequate, and Release is the Only Adequate Response to Protect Petitioners
98. ICE’s failure to recognize the inevitability of outbreaks at Stewart and Irwin and to take adequate precautions, including releasing people, demonstrates its complete disregard for the lives of detained immigrant, including Petitioners.
99. Instead of releasing Petitioners and other vulnerable people, ICE has issued guidance reflecting certain changes to its operations. These changes fail to adequately protect those in ICE’s custody, especially Petitioners, who are particularly vulnerable to infection and illness. Indeed, given the realities of detention, no conditions of confinement can possibly protect Petitioners from the risk of COVID-19.
100. Moreover, many of the changes ICE claims to have implemented at Stewart and Irwin are either patently ineffective or contradicted by reports from individuals with first-hand experience in the detention centers.
101. Reports from Petitioners and other detained immigrants belie ICE’s assertions that it has implemented “[c]omprehensive protocols” for the protection of staff and patients, including the appropriate use of [PPE].” Detained immigrants and visiting attorneys have not observed ICE staff routinely using PPE, even during close interactions, or regularly washing their hands since the start of the COVID-19 outbreak. Due to national shortages, some of the top trauma centers and hospitals in the state of Georgia have had difficulty obtaining sufficient PPE and other medical supplies, and ICE is presumably dealing with the same issues. Indeed, some guards at Stewart have
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told detainees that they have had to purchase their own PPE. 102. Individuals detained at Stewart also report that, despite the CDC’s recent
recommendation that everyone wear a mask, guards have forced them to remove makeshift masks that they fashioned from towels.
103. Several Petitioners and other detained immigrants at Irwin and Stewart have indicated that ICE personnel never informed them of COVID-19 or advised them on recommended hygiene or social distancing practices. A few individuals have reported seeing notices about COVID-19 posted on a bulletin board but not receiving any additional information. Petitioner Nilson Fernando Barahona Marriaga reported that the only precaution he and other kitchen workers were instructed to take was to replace plastic ware with disposable plates.
104. Detained immigrants also report a severe lack of access to hygiene supplies. Petitioner Robinson described receiving soap for personal use once a week and being expected to make it last until the next distribution. He often uses less soap than he needs because he is worried about running out. This would be an unacceptable hygiene practice even before the COVID-19 pandemic; now, it is egregious.78
105. Other measures ICE claims to have taken, including temporarily suspending social visitation in detention and screening new detained immigrants and arriving visitors for certain symptoms of COVID-19, are insufficient to curb the risk of infection within the detention centers. Moreover, ICE’s screening procedures for visitors, which are limited to temperature checks and a questionnaire, will no doubt fail to identify some infected individuals. Many COVID-19 patients
78 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19), 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 (about providing soap supply)
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may be asymptomatic or have only mild or less common symptoms that do not include fever or respiratory symptoms. As symptoms of COVID-19 can present anywhere from 2 to 14 days after exposure, people who pass ICE’s screenings can expose detained individuals, as well as detention center staff.
106. Moreover, reports from immigration attorney indicate that staff at Stewart has been inconsistent with even performing the minimal screening that ICE purports it has implemented.
107. The limited options available to ICE to mitigate the risk of COVID-19, like solitary confinement for all medically vulnerable people, are problematic and unsafe. Placing an individual with significant medical needs in solitary confinement not only exacerbates underlying medical conditions, including any mental health issues, but also creates significant, life-threatening risks. This is particularly true given the rapid and severe progression of COVID-19 and the need for responsive medical observation. Stewart and Irwin do not have the space or staff to safely care for patients for this period of time.
108. Locking any detained person, with or without underlying medical conditions, in a jail cell for extended periods of time, is psychologically damaging and could lead to a spike in severe depression, suicides, and other medical emergencies. In the context of an infectious disease outbreak, where onsite medical staff are operating at or over capacity, these problems will only accelerate. Isolation also increases the amount of physical contact between detention center staff and detained people due to increased handcuffing, escorting individuals to and from the showers, and increased use of force due to the increased psychological stress of isolation.
109. Experts believe release from custody is both the most effective public health measure to curb transmission of COVID-19 and the only meaningful and ethical strategy to protect medically vulnerable people like Petitioners from further harm. ICE’s response to COVID-19 has
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made abundantly clear that they do not plan to establish special protections for high-risk patients, instead waiting for them to become symptomatic. This puts not only Petitioners but ICE’s own personnel and the larger community at risk of a preventable disaster.
F. Petitioners Are Particularly Vulnerable to Serious Illness or Death if Infected by COVID-19 and Should Be Released from Detention.
110. Petitioners in this case are particularly vulnerable to serious illness or death if infected by COVID-19 and are currently detained at Stewart and Irwin.
111. Aristoteles Sanchez Martinez. Mr. Sanchez Martinez is detained by ICE at Stewart and has been in ICE custody since approximately September 2018. Before Stewart, he was detained at the Houston Contract Detention Facility in Houston, Texas, and at Folkston. Mr. Sanchez Martinez has Type II diabetes, hypertension, neuropathy, avascular necrosis, nonpalpable pulses in the lower extremities, and venous insufficiency, among other conditions. His sugar levels have at times been dangerously high while in ICE custody. He is currently in a wheelchair due to his conditions. He is also currently recovering from a hernia repair surgery after which he was brought back to Stewart within a day instead of remaining in intensive care. He still experiences pain, weakness, and inflammation from the surgery. ICE has neglected to care for Mr. Sanchez Martinez’s health—he has only received Tylenol to treat his severe pain and ICE often fails to check his sugar levels.
112. Mr. Sanchez Martinez is critically vulnerable to COVID-19 because of his significant health problems. Upon his release, he plans to self-quarantine with his family in Queens with the support of a Lutheran Church in Brooklyn, New York.
113. Michael Robinson. Mr. Robinson has been detained by ICE at Stewart since February 2020. Mr. Robinson suffers from hypertension, asthma, cardiac murmur, high blood pressure, and benign prostatic hyperplasia. He was recently told by a doctor that the “left side of
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[his] heart is swollen.” He also recently experienced an incident during which he was exposed to pepper spray, which made him cough blood. His medical condition has been deteriorating since being detained. New medication in detention has led to severe side effects including constant headaches, numbness in his mouth, and uncontrollable shaking. The medical staff at Stewart have not responded to his requests for his medical records. At Stewart, he lives in very close quarters, is not provided enough soap, and is fearful of the confirmed case of COVID-19 at the facility.
114. Mr. Robinson is critically vulnerable to COVID-19 because of his age and his significant health problems. Upon his release, he plans to self-quarantine with either his family in Florida, sister in Long Island, New York, or mother in Brooklyn, New York.
115. Peter Owusu. Mr. Owusu has been detained at Stewart since January 2020. Before he fled Ghana, he suffered a stab wound that causes him difficulty breathing. At a previous detention center, he received a breathing machine, but he has not been able to access it at Stewart. He has trouble breathing without the machine, particularly at night and when it is cold. Without the machine, he cannot sleep well. The wound he sustained also led to other complications, including improperly healed stitches, ongoing stomach pain, digestion issues, dizziness, headaches, and heart issues. Mr. Owusu requested to see a doctor, but ICE has not taken him to see one, and instead told him to take a painkiller.
116. Mr. Owusu is critically vulnerable to COVID-19 because of his significant health problems. Upon his release, he plans to self-quarantine with his uncle in Houston, Texas.
117. Joseph Lloyd Thompson. Mr. Thompson is a 49-year-old man who is currently detained at Irwin. Mr. Thompson has diabetes, hypertension, depression, and a severe heart aneurysm that requires a surgery that ICE has repeatedly refused to facilitate. He has been hospitalized three times for pneumonia, and many times for his heart problems. During his time in
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ICE custody, Mr. Thompson has been hospitalized on at least ten occasions. His attorneys have submitted two parole requests with details about his medical problems, but ICE denied both.
118. While in ICE custody, including at Irwin, Mr. Thompson has consistently been denied adequate medical care. While detained in North Carolina, he was assaulted by ICE and detention officers, to the point that he could not swallow and that he still has nerve damage in his right hand from being handcuffed so violently. He did not receive any treatment for his hand. While detained at Folkston, he did not receive adequate care for chest pain from his aneurysm. He was transferred to several other facilities, but instead of approving necessary operations to address his aneurysm, ICE continues to only medicate his symptoms.
119. At Irwin, ICE has repeatedly delayed Mr. Thompson’s care as well, including not even providing him with his required medications for nearly two weeks in March 2020. He is also forced to live in unsanitary conditions and drink unhygienic water.
120. Mr. Thompson is critically vulnerable to COVID-19 because of his significant health problems. Upon his release, he will self-quarantine at his U.S. Citizen sister’s home in Snellville, Georgia.
121. Ansumana Jammeh. Mr. Jammeh is a 43-year-old citizen of Gambia. He has been detained by ICE at Irwin since March 2019. Mr. Jammeh suffers from diabetes for which he requires insulin pills and blood sugar checks, as well as a special diabetic diet that he is not provided at Irwin. He also has severe hemorrhoids that developed while in ICE custody, cause him extreme pain, and recently required surgery in March 2020.
122. He was prescribed antibiotics after the surgery but has not received them, instead receiving only prescription pain medication and Ibuprofen, which have not managed his pain. He will likely require a second surgery to treat other hemorrhoids. In December 2019, he was taken
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to the emergency room for severe abdominal pain caused by inflammation in his intestines. When he returned to Irwin, ICE similarly failed to provide most of the medications prescribed by the doctor.
123. At Irwin, in addition to repeatedly struggling to obtain the medications and medical services that he requires, Mr. Jammeh is also not provided with enough hygiene products each week, including soap, and was told by staff that he had to clean his own room while he was bedridden from the hemorrhoids surgery.
124. Due to his significant health problems, Mr. Jammeh is critically vulnerable to COVID-19. Upon his release, he plans to self-quarantine at the home of a close friend in Atlanta, Georgia. He also has two cousins in Marietta, Georgia who are willing to take him in as well.
125. Karen Lopez. Ms. Lopez has been detained by ICE at Irwin since March 2020. She has a pacemaker due to a heart condition that also caused her to suffer a stroke about six years ago. Her heart condition makes it difficult for her to even climb in and out of a top bunk bed. She also suffers from multiple sclerosis (MS), which causes her severe chronic pain along with problems with her vision, balance, muscle control, and other bodily functions. Three weeks ago, ICE forced her to have a mammogram against her wishes, which, because of her pacemaker, made her feel very sick and weak for several days only to be taken to the emergency room before stabilizing. Ms. Lopez also may have a stomach ulcer. Despite all of her serious medical conditions, ICE has not provided her with the medications and medical services she needs. She has only been given Ibuprofen and aspirin for her pain, and not a specialized medication or diet for her MS.
126. Ms. Lopez is critically vulnerable to COVID-19 because of her significant health problems. Upon her release, she plans to return home and self-quarantine with her partner and
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children in Atlanta, Georgia, who eagerly await her return. 127. Nilson Barahona Marriaga. Mr. Barahona Marriaga has been detained by ICE at
Irwin since approximately October 2019. He has diabetes and hypertension, both of which he struggles to manage while in detention. ICE does not provide the necessary diet and access to exercise that he needs to manage his diabetes, so his condition has deteriorated and many of his requests for medical services have been ignored. He is also forced to remain in very crowded, unsanitary quarters, and is fearful of COVID-19 because he knows there are detained people in quarantine at Irwin.
128. Mr. Barahona Marriaga is critically vulnerable to COVID-19 because of his significant health problems. Upon his release, he would self-quarantine in his home in Lawrenceville, Georgia, where his wife and child eagerly await his return.
129. Shelley Dingus. Ms. Dingus is currently detained by ICE at Irwin, and has been in ICE custody since January 2020. She suffers from asthma, chronic obstructive pulmonary disease, severe migraines, depression, anxiety, and eczema that causes severe skin allergies and open wounds that are easily infected. She requires an inhaler and other medicines for her asthma every day. She also requires lotion and cream for her skin condition, medication for her migraines, antidepressants, and hormone replacement tablets due to a full hysterectomy. ICE does not consistently provide her with her medications, or provides her with improper medications. Her requests for medical care are also often ignored or delayed, and she is not provided enough hygiene products.
130. Ms. Dingus is critically vulnerable to COVID-19 because of her age and her significant health problems. Her husband and two younger sons await her return; upon her release, she plans self-quarantine at their home in Virginia.
131. Public health experts with experience in immigration detention and correctional
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settings have unequivocally concluded that vulnerable people, like Petitioners, will be safer if they are released from custody.
132. ICE has a longstanding practice of exercising its authority to release from custody particularly vulnerable immigrants with significant medical or humanitarian needs, including on bond, parole, or under other conditions including highly effective alternatives to detention (“ATD”) such as GPS monitoring and telephone check-ins. See, e.g., 8 C.F.R. § 212.5(b)(1); 8 U.S.C. § 1182(d)(5)(a); 8 C.F.R. § 235.3(b)(1)(iii); 8 C.F.R. § 235.3(b)(4)(ii); 8 C.F.R. § 241.4. VI. LEGAL FRAMEWORK
A. Petitioners Have a Constitutional Right to Reasonable Safety in Custody 133. All noncitizens who are in ICE, even those with prior criminal convictions, are civil detainees held pursuant to civil immigration laws. Zadvydas, 533 U.S. at 690. Their constitutional protections while in civil custody are thus derived from the due process clause of the Fifth Amendment. Id. 134. The Fifth Amendment Due Process Clause, which mirrors the Fourteenth Amendment, prohibits punishment of people in civil custody. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979); Magluta v. Samples, 375 F.3d 1269, 1273 (11th Cir. 2004); Hamm v. Dekalb County, 774 F.2d 1567, 1572 (11th Cir. 1985) (citing Ingraham v. Wright, 430 U.S. 651, 671 n. 40 (1977)). (1989). 135. Civilly detained people “are generally ‘entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.” Marsh v. Fla. Dep’t of Corrections, 330 F. App’x 179 (11th Cir. 2009) (quoting Youngberg v. Romeo, 457 U.S. 307, 322 (1982)); accord Heyer v. U.S. Bureau of Prisons, 849 F.3d 202, 209 n.5 (4th Cir. 2017). 136. To establish that a particular condition or restriction of detention constitutes
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impermissible punishment, a petitioner must show either (1) an expressed intent to punish; or (2) lack of a reasonable relationship to a legitimate governmental purpose, from which an intent to punish may be inferred. See Wolfish, 441 U.S. at 538. Absent an explicit intention to punish, a court must apply a two-part test: “First, a court must ask whether any ‘legitimate goal’ was served by the prison conditions. Second, it must ask whether the conditions are ‘reasonably related’ to that goal.” Jacoby v. Baldwin County, 835 F.3d 1338, 1345 (11th Cir. 2016). “[I]f conditions are so extreme that less harsh alternatives are easily available, those conditions constitute ‘punishment.’” Telfair v. Gilberg, 868 F. Supp. 1396, 1412 (S.D. Ga. 1994) (citing Wolfish, 441 U.S. at 538-39 n.20).
137. “[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.” DeShaney v. Winnebago Cty. Dep’t. of Soc. Servs., 489 U.S. 189, 199-200 (1989). The government must provide detained individuals with basic necessities, such as adequate medical care, food, clothing, and shelter; the failure to provide these necessities violates due process. Hamm, 774 F.2d at 1573; Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cty., 402 F.3d 1092, 1115 (11th Cir. 2005).
138. At a minimum, the Fifth Amendment Due Process Clause prohibits Respondents’ deliberate indifference to a substantial risk of serious harm that would rise to the level of an Eighth Amendment violation in the post-conviction criminal context. Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244, (1983) (“[T]he due process rights of a [detainee] are at least as great as the Eighth Amendment protections available to a convicted prisoner.”); see also Hale v. Tallapoosa County, 50 F. 3d 1579, 1582 n.4 (11th Cir. 1995).
139. In order to show that Respondents are acting with deliberate indifference,
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Petitioners must show exposure to a substantial risk of serious harm of which Respondents are aware and have disregarded. Farmer v. Brennan, 511 U.S. 825, 834, 837-38 (1994); Marbury v. Warden, 936 F.3d 1227, 1233 (11th Cir. 2019); Hale v. Tallapoosa Cty., 50 F.3d 1579, 1582 (11th Cir. 1995).
140. The government may violate the Eighth Amendment when it “ignore[s] a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year,” including “exposure of inmates to a serious, communicable disease,” even when “the complaining inmate shows no serious current symptoms.” Helling, 509 U.S. at 33; see also id. at 34 (citing with approval Gates v. Collier, 501 F.2d 1291, 1300 (5th Cir. 1974), which held that prisoners were entitled to relief under the Eighth Amendment when they showed, inter alia, the mingling of “inmates with serious contagious diseases” with other prison inmates).
141. Thus, the harm that Petitioners fear—i.e., that their confinement will result in a COVID-19 infection that will seriously injure and possibly kill them—need not become a reality to establish a violation of their constitutional rights. Courts do not require a plaintiff to “await a tragic event” before seeking relief from a condition of confinement that unconstitutionally endangers them. See Helling, 509 U.S. at 33 (holding prisoner’s Eight Amendment claim could be based upon possible future harm to health, as well as present harm).
142. “Nor does it matter that some inmates may not be affected by the condition, and that the harm is thus, in a sense, only potential harm. The Court has found an Eighth Amendment violation ‘even though it was not alleged that the likely harm would occur immediately and even though the possible infection might not affect all of those exposed.’” Tittle v. Jefferson Cty. Comm’n, 10 F.3d 1535, 1543 (11th Cir. 1994) (quoting Helling, 509 U.S. at 33).
B. This Court Has Authority to Order Petitioners’ Release to Vindicate Their Fifth Amendment Rights, and Such Relief Is Necessary Here.
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143. Courts have broad power to fashion equitable remedies to address constitutional violations in prisons, Hutto v. Finney, 437 U.S. 678, 687 n.9 (1978), and “[w]hen necessary to ensure compliance with a constitutional mandate, courts may enter orders placing limits on a prison’s population.” Brown v. Plata, 563 U.S. 493, 511 (2011); see also Stone v. City & County of San Francisco, 968 F.2d 850, 861 (9th Cir. 1992) (“Federal courts possess whatever powers are necessary to remedy constitutional violations because they are charged with protecting these rights.”)
144. This authority extends to “placing limits on a prison’s population” when necessary to ensure compliance with the Constitution. Brown, 563 U.S. at 511; see also Duran v. Elrod, 713 F.2d 292, 297-98 (7th Cir. 1983), cert. denied, 465 U.S. 1108 (1984) (concluding that court did not exceed its authority in directing release of low-bond pretrial detainees as necessary to reach a population cap).
145. The same principle applies here. As the constitutional principles and public health experts make clear, releasing Petitioners is the only viable remedy to ensure their safety from the threat to their health that COVID-19 poses. Petitioners are older adults and/or people with medical conditions who are at particularly grave risk of severe illness or death if they contract COVID-19.
146. In the face of this great threat, social distancing and hygiene measures are Petitioners’ only defense against COVID-19. Those protective measures are impossible in the environment of an immigration detention center, where Petitioners sleep in close quarters; share toilets, sinks, and showers; eat in communal spaces, and are regularly in close contact with the many other detained people and officers around them. These conditions pose a particularly high risk of exposure to COVID-19, and as a result, Petitioners face unreasonable harm from continued detention and should be released immediately.
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C. Habeas Is a Broad, Flexible Remedy That Authorizes Courts to Order Release from Unlawful Detention Conditions as Law and Equity Requires.
147. Petitioner also seek relief under the federal habeas statute, 28 U.S.C. § 2241, which is itself infused with long-standing common law equitable principles. See 28 U.S.C.§ 2241(c)(3) (the writ extends to those prisoners “in custody in violation of the Constitution or laws or treaties of the United States”). “Habeas is at its core a remedy for unlawful executive detention.” Munaf v. Geren, 553 U.S. 674, 693 (2008).
148. Habeas invests in federal courts broad, equitable authority to “dispose of the matter as law and justice require,” 28 U.S.C. § 2243, as the “very nature of the writ demands that it be administered with the initiative and flexibility.” Harris v. Nelson, 394 U.S. 286, 291 (1969); see Boumediene v. Bush, 553 U.S. 723, 780 (2008) (“Habeas is not ‘a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose.’”) (quoting Jones v. Cunningham, 371 U.S. 236, 243 (1963)).
149. Accordingly, the illegality of custody under the “Constitution or laws . . . of the United States” may stem from the fact of detention and the duration of detention—what is often referred to as the historical core of habeas—and for unlawful placement or conditions of detention. See Wilwording v. Swenson, 404 U.S. 249, 251 (1971) (habeas challenging “living conditions and disciplinary measures” is “cognizable in federal habeas corpus”); Johnson v. Avery, 393 U.S. 483 (1969) (permitting federal habeas challenge to legality of prison regulation prohibiting provision of legal assistance to other prisoners). See also Aamer v. Obama, 742 F.3d 1023, 1031-38 (D.C. Cir. 2014) (surveying history, purpose and Supreme Court jurisprudence and “the weight of the reasoned precedent in the federal Courts of Appeal” relating to habeas and concluding “habeas corpus tests not only the fact but also the form of detention” (citation omitted)).
150. A court is fully empowered to remediate the particular illegality here—an outbreak
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of lethal and unavoidable virus that threatens Petitioners and violates their constitutional rights to be free from arbitrary and punitive detention—by ordering their release. Habeas corpus is, “above all, an adaptable remedy,” Boumediene, 553 U.S. at 779, and federal courts retain “broad discretion in conditioning a judgment granting habeas relief . . . ‘as law and justice require.’” Hilton v. Braunskill, 481 U.S. 770, 775 (1987) (quoting 28 U.S.C. § 2243). That authority includes an order of release, Boumediene, 553 U.S. at 779, so as “to insure that miscarriages of justice within [the writ’s] reach are surfaced and corrected.” Harris, 395 U.S. at 291. VII. CLAIM FOR RELIEF
A. Violation of Fifth Amendment Right to Substantive Due Process (Unlawful Punishment; Freedom from Cruel Treatment and Conditions of Confinement)
151. Petitioners reallege and incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein.
152. The Fifth Amendment to the U.S. Constitution guarantees individuals in immigration detention the right to be free from punishment. The government violates this guarantee when conditions of confinement lack a reasonable relationship to any legitimate governmental purpose, i.e. when a custodian’s actions are excessive in relation to their purpose.
153. Respondents’ continued detention of Petitioners during the COVID-19 pandemic is excessive in relation to any legitimate governmental purpose. Less harsh measures are available to satisfy any government interest in continuing to detain Plaintiffs, including release with conditions. Under these circumstances, Respondents’ detention of Petitioners amount to impermissible punishment.
154. Conditions of confinement for individuals in immigration detention also violate the Fifth Amendment when the government fails, with deliberate indifference, to safeguard the health and safety of those in custody. The government acts with deliberate indifference when it knowingly
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exposes an individual in its custody to a substantial risk of serious harm. 155. Respondents have subjected Petitioners to conditions of confinement that create a
substantial risk of contracting a serious case of COVID-19, for which there is no known vaccine, treatment, or cure. Respondents know or should be aware of the fact that Petitioners’ underlying conditions render them especially vulnerable to severe illness or even death if they contract COVID-19. Respondents are therefore knowingly subjecting Petitioners to an unreasonable risk of serious harm, in violation of constitutional due process.
156. Respondents’ continued detention of Petitioners fails to adequately protect Petitioners from the risks of contracting COVID-19.
157. Petitioners’ ongoing confinement lacks a reasonable relationship to any legitimate governmental purpose and is excessive in relation to their purpose.
158. Respondents have exposed Petitioners to a substantial risk of serious harm. 159. Respondents have known of or disregarded the substantial risk of harm to Petitioners’ health and safety. 160. Respondents have acted with deliberate indifference to Petitioners’ health and safety. 161. Respondents’ continued detention of Petitioners violates the Due Process Clause of the Fifth Amendment. VIII. PRAYER FOR RELIEF WHEREFORE Petitioners request that the Court grant the following relief: a. Issue a Writ of Habeas Corpus on the ground that Respondents’ continued detention of Petitioners violates the Due Process Clause and order Petitioners’ immediate release, with appropriate precautionary public health measures; b. In the alternative, issue injunctive relief ordering Respondents to immediately
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release Petitioners, with appropriate precautionary public health measures, on the grounds that

continued detention violates Petitioners’ constitutional due process rights;

c. Issue a declaration that Respondents’ continued detention of individuals at

increased risk for severe illness, including all people fifty-five and older and persons of any age

with underlying medical conditions that may increase the risk of serious COVID-19, violates the

Due Process Clause;

d. Award Petitioners their costs and reasonable attorneys’ fees in this action under the

Equal Access to Justice Act (“EAJA”), as amended, 5 U.S.C. § 504 and 28 U.S.C. § 2412, and on

any other basis justified under law; and

e. Grant any other and further relief that this Court may deem fit and proper.

Dated: April 7, 2020

Respectfully submitted,

SOUTHERN POVERTY LAW CENTER

ASIAN AMERICANS ADVANCING JUSTICEATLANTA

By: /s/ Gracie Willis Gracie Willis (GA Bar #851021) Rebecca Cassler (GA Bar #487886) Lorilei Williams* (NY Bar #5302617) 150 E. Ponce de Leon Ave., Ste. 340 Decatur, GA 30030 Tel: (404) 521-6700 Fax: (404) 221-5857 gracie.willis@splcenter.org rebecca.cassler@splcenter.org

By: /s/ Hillary Li Hillary Li (GA Bar #898375) Phi Nguyen (Ga Bar #578019) 5680 Oakbrook Pkwy, Ste. 148 Norcross, GA 30093 Tel: (404) 585-8466 Fax: (404) 890-5690 hli@advancingjustice-atlanta.org pnguyen@advancingjustice-atlanta.org

Paul Chavez* (FL Bar #1021395) Victoria Mesa-Estrada*(FL Bar #076569) 2 S. Biscayne Blvd., Ste. 3200 Miami, FL 33101 Tel: (786) 347-2056 paul.chavez@splcenter.org victoria.mesa@splcenter.org
Melissa Crow* (DC Bar #453487) 1101 17th Street, NW, Ste. 705

KILPATRICK TOWNSEND & STOCKTON LLP
By: /s/ Tayah Woodard Tayah Woodard (GA Bar #312548) Tamara Serwer Caldas* (GA Bar #617053) Kathryn E. Isted* (GA Bar #908030) Amanda Brouillette* (GA Bar #880528) 1100 Peachtree St., NE, Ste. 2800 Atlanta, GA 30309 Tel: (404) 815-6006

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Washington, DC 20036 Tel: (202) 355-4471 Fax: (404) 221-5857 melissa.crow@splcenter.org
*pro hac vice motions forthcoming

Fax: (404) 541-4754 twoodard@kilpatricktownsend.com tcaldas@kilpatricktownsend.com kisted@kilpatricktownsend.com abrouillette@kilpatricktownsend.com

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 Case 7:20-cv-00062-CDL-MSH Document 12 Filed 04/09/20 Page 1 of 25

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
25

 
 Case 7:20-cv-00062-CDL-MSH Document 5-1 Filed 04/08/20 Page 1 of 26

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA

ARISTOTELES SANCHEZ MARTINEZ, et al.,

Petitioners/Plaintiffs, v. MICHAEL DONAHUE, et al.,
Respondents/Defendants.

Case No.: HEARING REQUESTED

MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND EMERGENCY WRIT OF HABEAS CORPUS

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TABLE OF CONTENTS
I. FACTUAL BACKGROUND ..............................................................................................1
A. Petitioners Are Detained Individuals in Georgia at High Risk of Serious Injury or Death from COVID-19 .............................................................................2
B. Because They Are Detained in South Georgia, Petitioners Are at High Risk of COVID-19 Exposure...................................................................................3
1. People Enter and Exit These Facilities on a Daily Basis .............................3
2. Hygiene and Sanitation Materials Are Lacking...........................................4
3. Social Distancing Is Impossible...................................................................5
4. COVID-19 Introduction to the Facilities Is Imminent.................................5
C. Stewart and Irwin Detention Centers and the Rural Hospital Infrastructure in South Georgia Are Incapable of Safely Handling Detention Center Outbreaks .................................................................................................................6
D. Releasing Petitioners Would Reduce the Devastating Public Health Impact of COVID-19 on Georgia ........................................................................................8
II. ARGUMENT .......................................................................................................................9
A. Petitioners are Likely to Succeed on the Merits of Their Due Process Claim ......................................................................................................................10
1. Petitioners’ Continued Detention During the COVID-19 Pandemic Constitutes Impermissible Punishment......................................................11
2. By Continuing to Detain Petitioners During the COVID-19 Pandemic, Respondents Are Knowingly Subjecting Them to a Substantial Risk of Serious Harm ..............................................................12
a. Substantial Risk of Serious Harm ..................................................13
b. Knowing Disregard of the Substantial Risk...................................14
B. Petitioners Face an Imminent and Substantial Threat of Irreparable Harm from COVID-19.....................................................................................................15
C. The Balance of Equities and Public Interest Weigh Heavily in Petitioners’ Favor ......................................................................................................................17
D. The Court Should Not Require Petitioners to Provide Security Prior to Issuing a Temporary Restraining Order.................................................................18
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TABLE OF AUTHORITIES
Cases
Ancata v. Prison Health Servs., Inc., 769 F.2d 700 (11th Cir. 1985) .................................................................................................. 13
Basank v. Decker, 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020).......................................................................... 16
Bell v. Wolfish, 441 U.S. 520 (1979) ................................................................................................................. 11
BellSouth Telecomms., Inc. v. MCImetro Access Transmission Servs., LLC, 425 F.3d 964 (11th Cir. 2005) .................................................................................................. 18
Boumediene v. Bush, 553 U.S. 723 (2008) ................................................................................................................... 9
Brown v. Hughes, 894 F.2d 1533 (11 Cir. 1990) ................................................................................................... 13
Brown v. Plata, 563 U.S. 493 (2011) ................................................................................................................. 10
Campos v. I.N.S., 70 F. Supp. 2d 1296 (S.D. Fla. 1998)....................................................................................... 18
Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cty., 402 F.3d 1092 (11th Cir. 2005) ................................................................................................ 12
Coronel v. Decker, 2020 WL 1487274 (S.D.N.Y. March 27, 2020)....................................................................... 16
Cunningham v. Adams, 808 F.2d 815 (11th Cir. 1987) ............................................................................................ 15, 16
Darnell v. Pineiro, 849 F.3d 17 (2d Cir. 2017) ....................................................................................................... 12
DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189 (1989) ................................................................................................................. 12
Duran v. Elrod, 713 F.2d 292 (7th Cir. 1983) .................................................................................................... 10
Farmer v. Brennan, 511 U.S. 825 (1994) ........................................................................................................... 12, 14
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Farrow v. West, 320 F.3d 1235 (11th Cir. 2003) ................................................................................................ 13
Fraihat v. Wolf, (M.D. Pa. March 30, 2020) ...................................................................................................... 16
Friedenberg v. Sch. Bd. of Palm Beach Cty., 911 F.3d 1084 (11th Cir. 2018) ................................................................................................ 10
Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974) .................................................................................................. 13
Gordon v. County of Orange, 888 F.3d 1118 (9th Cir. 2018) .................................................................................................. 12
Grand River Enters. Six Nations, Ltd. v. Pryor, 425 F.3d 158 (2d Cir. 2005) ..................................................................................................... 17
Hale v. Tallapoosa County, 50 F. 3d 1579 (11th Cir. 1995) ................................................................................................. 12
Hamm v. DeKalb County, 774 F.2d 1567 (11th Cir. 1985) ................................................................................................ 12
Harris v. Nelson, 394 U.S. 286 (1969) ................................................................................................................... 9
Helling v. McKinney, 509 U.S. 25 (1993) ................................................................................................................... 13
Hilton v. Braunskill, 481 U.S. 770 (1987) ................................................................................................................... 9
Hutto v. Finney, 437 U.S. 678 (1978) ................................................................................................................. 10
In re Extradition of Alejandro Toledo Manrique, 2020 WL 1307109 (N.D. Cal. Mar. 19, 2020) ........................................................................... 3
J.M. v. Crittendon, No. 1:18-CV-568-AT, 2018 WL 7079177 (N.D. Ga. May 21, 2018) ..................................... 15
Jacoby v. Baldwin County, 835 F.3d 1338 (11th Cir. 2016) ................................................................................................ 11
Jennings v. Rodriguez, No. 15-1204, 2016 WL 6276890 (Oct. 24, 2016) .................................................................... 18
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Jones v. Governor of Fla., 950 F.3d 795 (11th Cir. 2020) .................................................................................................. 17
KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261 (11th Cir. 2006) ................................................................................................ 17
Levi Strauss & Co. v. Sunrise Int’l Trading Inc., 51 F.3d 982 (11th Cir. 1995) .................................................................................................... 10
Magluta v. Samples, 375 F.3d 1269 (11th Cir. 2004) ................................................................................................ 11
Marbury v. Warden, 936 F.3d 1227 (11th Cir. 2019) ................................................................................................ 12
Marsh v. Fla. Dep’t of Corrections, 330 F. App’x 179 (11th Cir. 2009)........................................................................................... 11
McElligott v. Foley, 182 F.3d 1248 (11th Cir. 1999) ................................................................................................ 13
Munaf v. Geren, 553 U.S. 674 (2008) ................................................................................................................... 9
Nken v. Holder, 556 U.S. 418 (2009) ................................................................................................................. 17
Odebrecht Constr., Inc. v. Sec'y, Fla. Dep’t of Transp., 715 F.3d 1268 (11th Cir. 2013) ................................................................................................ 15
Revere v. Mass. Gen. Hosp., 463 U.S. 239 (1983) ................................................................................................................. 12
Rodriguez v. Sec’y for Dep’t of Corr., 508 F.3d 611 (11th Cir. 2007) .................................................................................................. 14
Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1289 (11th Cir. 2005) ................................................................................................ 10
Schultz v. Alabama, 330 F. Supp. 3d 1344 (N.D. Ala. 2018) ................................................................................... 18
Telfair v. Gilberg, 868 F. Supp. 1396 (S.D. Ga. 1994) .......................................................................................... 11
Thakker v. Doll, No. 1:20-cv-00480-JEJ (M.D. Pa. Mar. 31, 2020)................................................................... 16
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Case 7:20-cv-00062-CDL-MSH Document 5-1 Filed 04/08/20 Page 7 of 26 Wilwording v. Swenson,
404 U.S. 249 (1971) ................................................................................................................... 9 Youngberg v. Romeo,
457 U.S. 307 (1982) ................................................................................................................. 11 Zadvydas v. Davis,
533 U.S. 678 (2001) ................................................................................................................. 10 Statutes 28 U.S.C. § 2243............................................................................................................................. 9 Rules and Regulations Fed. R. Civ. P. 65(c) ..................................................................................................................... 18
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Petitioners1 are detained in ICE custody at Stewart Detention Center (“Stewart”) and Irwin County Detention Center (“Irwin”), both in rural southern Georgia. Due to their medical conditions, Petitioners are vulnerable to serious cases of COVID-19. If Petitioners contract COVID-19, there is a high risk they will require critical care—largely unavailable in southern Georgia—and face serious illness or death. In detention, it is impossible for Petitioners to practice the only known methods to avoid COVID-19—social distancing and diligent hand hygiene. It is all but inevitable that they will be exposed to the virus and face serious harm, possibly including death, absent an immediate order from this court releasing them from detention. Indeed, at least two employees at Stewart have already tested positive for COVID-19, and there is now a report of one COVID-19-related death at Stewart, though ICE has not confirmed this yet. Ex. 17 ¶ 4.
I. FACTUAL BACKGROUND As of the evening of April 6, 2020, the COVID-19 pandemic has infected over one million people and taken at least 74,697 lives globally, with 367,004 confirmed cases and 10,871 deaths in the United States, including 7,558 cases and 294 deaths in Georgia.2 Compl. ¶¶ 28, 30. COVID19 can require hospitalization and the use of a ventilator and may result in long-term organ damage or death.3 Ex. 1 ¶ 7; Ex. 2 ¶ 6. There is no known vaccine or cure for COVID-19. Ex. 1 ¶ 5; Ex. 2 ¶ 10. COVID-19 is highly contagious and is transmitted between people who are within about six feet of each other through respiratory droplets from coughing or sneezing.4 Ex. 2 ¶ 7; see also Ex.
1 Petitioners-Plaintiffs Karen Lopez, Michael Robinson, and Peter Owusu have filed this action using pseudonyms. They seek leave to proceed pseudonymously in a concurrently filed motion. 2The number of cases is likely an underestimate “due to lack of availability of testing” in the United States. Ex. 1 ¶ 3. 3All exhibits cited in this motion are exhibits attached to the Declaration of Hillary Li, which is attached to this motion. 4Breaking research suggests that COVID-19 may also spread when people merely talk or breathe. See Elizabeth Cohen, Experts Tell White House Coronavirus Can Spread Through Talking or Even Just Breathing, CNN, https://cnn.it/349RUeI.
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1 ¶ 11; Ex. 3 ¶ 11. Scrupulous hand hygiene and social distancing—staying at least six feet away from all other people—are the only known ways to avoid the illness. Ex. 1 ¶¶ 5, 9, 11; Ex. 2 ¶ 11; Ex. 3 ¶¶ 11, 22. A. Petitioners Are Detained Individuals in Georgia at High Risk of Serious Injury or
Death from COVID-19 Advanced age and certain underlying medical conditions, including compromised immune system, diabetes and other endocrine disorders, metabolic disorders, heart and lung disease, and neurological and neurodevelopmental conditions, greatly increase the likelihood of contracting a serious case of COVID-19 that requires hospitalization and support from a ventilator. Ex. 1 ¶¶ 6, 8; Ex. 2 ¶¶ 4-5; see also Ex. 3 ¶ 5. According to preliminary data from China, 20% of people in these high-risk categories who contract COVID-19 have died. Ex. 1 ¶ 6. Petitioners are individuals detained at Stewart and Irwin who all have underlying medical conditions that put them at high risk for life-threatening cases of COVID-19. Ex. 8-15. Petitioners have safe places to live where they can practice social distancing and hand hygiene upon release. They will comply with all conditions of release including attending immigration court hearings.5 Ex. 8 ¶¶ 28-29; Ex. 9 ¶¶ 23-24; Ex. 10 ¶¶ 22-23; Ex. 11 ¶¶ 17-18; Ex. 12 ¶¶ 23-24; Ex. 13 ¶¶ 2728; Ex. 14 ¶¶ 26, 28; Ex. 15 ¶¶ 12-13.
5ICE regularly releases individuals using various alternatives to detention with documented success. For example, an evaluation of ICE’s conditional supervision program, ISAP, reported a 99% attendance rate at all immigration court hearings. See U.S. Gov’t Accountability Office, GAO-15-26, Alternatives to Detention: Improved Data Collection and Analyses Needed to Better Assess Program Effectiveness 10-11 (Nov. 2014).
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B. Because They Are Detained in South Georgia, Petitioners Are at High Risk of COVID-19 Exposure. 1. People Enter and Exit These Facilities on a Daily Basis Detention center staff, ICE officers, contractors, vendors, and legal visitors enter and exit
Stewart and Irwin on a daily basis. See Ex 1. ¶ 11, 15; see generally Ex. 5; Ex. 6; Ex. 7 ¶ 13. Stewart also houses an immigration court, requiring judges, court staff, interpreters, and witnesses to do the same. See Ex. 5 ¶¶ 4, 9; Ex. 16 ¶ 3. Neither ICE nor the corporations that manage the detention centers mandate that staff or legal visitors use personal protective equipment (“PPE”). Ex. 5 ¶¶ 7, 10, 14; Ex. 6 ¶ 3; Ex. 8 ¶ 13; Ex. 9 ¶¶ 13, 17; Ex. 10 ¶ 16; Ex. 11 ¶ 13; Ex. 12 ¶¶ 15, 17; Ex. 14 ¶¶ 17-18; Ex. 15 ¶ 11; Ex. 16 ¶¶ 7, 14. One Petitioner reported seeing ICE personnel maintaining close contact with detainees without wearing face masks or gloves. Ex. 11 ¶ 13. ICE’s guidance on PPE fails to account for the ongoing nationwide shortage. Ex. 3 ¶¶ 10-11, 22. ICE continues to arrest and bring new people into detention facilities, while also moving currently detained immigrants in and out of facilities and transferring them between different facilities.6 Ex. 9 ¶ 18; Ex. 10 ¶ 18; Ex. 12 ¶ 20; Ex. 13 ¶¶ 2, 11-16, 24. For example, around March 23, 2020, Petitioner Sanchez Martinez was transferred from the Houston Contract Detention Facility to Stewart. Ex. 13 ¶¶ 2, 11-16.
Every person who enters the detention centers is a potential source of COVID-19 exposure. ICE may be sporadically screening people for symptoms or contacts with known cases, but such screening is not an effective way to avoid exposure, given the known risk of asymptomatic and pre-symptomatic carriers. Ex. 1 ¶¶ 4, 14; Ex. 2 ¶ 18; Ex. 3 ¶¶ 6, 18, 22; see also In re Extradition of Alejandro Toledo Manrique, 2020 WL 1307109, at *1 (N.D. Cal. Mar. 19, 2020). The only
6Miriam Magaña Lopez & Seth M. Holmes, Ice Agents Are Still Performing Raids – And Using Precious N95 Masks to Do So, The Guardian (Mar. 31, 2020), https://bit.ly/2UEiEkr.
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effective screening tool to prevent transmission of COVID-19 into Stewart and Irwin is a COVID19 test. But testing every detained individual, as well as every staff member, contractor, or legal visitor on their entry into the detention center, is impossible because of the severe shortage of testing available in the United States. Ex. 3 ¶¶18, 22.
2. Hygiene and Sanitation Materials Are Lacking A person can contract COVID-19 by touching a surface or object that an infected person has touched and then touching their own face. Ex. 2 ¶ 7. Both Stewart and Irwin have shared living, eating, and recreation spaces with poor sanitation where thorough hygiene practices are not possible. Ex. 1 ¶ 12; Ex. 2 ¶ 13; Ex. 3 ¶ 19. Individuals in detention share bathrooms, showers, and sinks with little opportunity for adequate disinfection between uses. Ex. 1 ¶ 12; Ex. 8 ¶¶ 7-12; Ex. 9 ¶ 10; Ex. 10 ¶¶ 7, 9, 14-15; Ex. 11 ¶¶ 8-11; Ex. 12 ¶¶ 13-14; Ex. 13 ¶¶ 19-20; Ex. 14 ¶¶ 6-7, 1011; Ex. 15 ¶¶ 8-10. Detained people at both detention centers also report that they have not been provided with any PPE to protect themselves, including face masks and gloves. Ex. 8 ¶ 11; Ex. 11 ¶ 11; Ex. 12 ¶ 16; Ex. 13 ¶ 13; Ex. 14 ¶ 14; Ex. 16 ¶ 13. See also Ex. 16 ¶¶ 4, 6-7 (immigration attorney appearing in immigration court at Stewart reporting that detention center staff prevented him from providing his client with a face mask and gloves). Petitioners report a lack of access to soap and cleaning materials, preventing compliance with the Centers for Disease Control’s recommended hand hygiene and sanitation measures. Ex. 8 ¶¶ 11-13; Ex. 9 ¶¶ 11-12, 15-16; Ex. 10 ¶¶ 13, 15; Ex. 11 ¶¶ 9-11; Ex. 13 ¶¶ 13-14, 22-23; Ex. 14 ¶¶ 13-14. Some Petitioners report receiving some cleaning materials that exacerbate asthma, causing many detained people to cough and have difficulty breathing. Ex. 12 ¶ 16. Petitioner Robinson described receiving soap for personal use once a week and being expected to make it last until the next distribution. He “often use[s] less soap then [he] need[s] because [he is] worried
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about running out.” Ex. 14 ¶ 13. During an infectious disease outbreak, failing to provide sufficient soap is egregious. See id; Ex. 2 ¶ 16; Ex. 3 ¶ 11.
3. Social Distancing Is Impossible Detention centers are particularly susceptible to rapid spread due to the congregate nature of detention centers and overcrowding. Ex. 1 ¶¶ 11, 12, 20; Ex. 3 ¶¶ 20, 23; Ex. 4 ¶ 5 (“The design of these facilities requires inmates to remain in close contact with one another.”). There is no way to practice social distancing at Stewart or Irwin. Ex. 8 ¶¶ 7-8; Ex. 9 ¶ 10; Ex. 10 ¶ 9; Ex. 11 ¶¶ 8-9; Ex. 12 ¶¶ 13-14; Ex. 13 ¶¶ 15, 19; Ex. 14 ¶¶ 10-11; Ex. 15 ¶¶ 8-10. At these facilities, detained people live in extremely close quarters, often in shared dorms with dozens of people sleeping feet apart from each other, or in small shared cells. E.g. Ex. 8 ¶¶ 7-8; Ex. 9 ¶ 10; Ex. 11 ¶¶ 8-9; Ex. 12 ¶¶ 13-14; Ex. 14 ¶¶ 10-11; Ex. 15 ¶ 8. Petitioners have observed very few if any changes within their facilities over the last several weeks in response to the pandemic. See, e.g., Ex. 8 ¶ 13; Ex. 10 ¶ 17; Ex. 11 ¶ 12; Ex. 12 ¶ 18 (noting that ICE has not provided information about symptoms of coronavirus or how to prevent it from spreading, so detained people are forced to educate each other based on what they hear from their families or the news); Ex. 13 ¶ 23; Ex. 15 ¶¶ 10-11. 4. COVID-19 Introduction to the Facilities Is Imminent Petitioners seek emergency relief from this Court at a time when COVID-19 has already begun to ravage Georgia. There are confirmed cases in the counties where Stewart and Irwin are located.7 Albany, Georgia—which has some of the closest ICU beds to Stewart and Irwin—has among the highest per capita rates of COVID-19 infection and death in the world.8 Reports from
7Georgia Dep’t of Public Health COVID-19 Daily Status Report, https://bit.ly/3aGfOBf (last visited Apr. 3 12:46 pm). 8Tanya Lewis, Map Reveals Hidden U.S. Hotspots of Coronavirus Infection, Scientific American (Apr. 2, 2020), https://bit.ly/2wZqiNp.
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detained people inside Stewart and Irwin indicate that there may already be confirmed COVID-19 cases inside the facilities and that reports of symptoms associated with COVID-19 are going ignored. Ex. 7 ¶¶ 15, 23, 25-26; Ex. 10 ¶ 18; Ex. 11 ¶ 16; Ex. 12 ¶ 21; Ex. 13 ¶ 24; Ex. 14 ¶¶ 9, 16; Ex. 15 ¶ 8. One detained person at Stewart reported that he developed symptoms of COVID19, including “intense pain in his lungs,” while at a hospital in Albany, and was transferred to the floor of the hospital where patients with confirmed cases of COVID-19 were being treated. Ex. 7 ¶ 10. He was then transferred back to Stewart, where he has not been tested for COVID-19 and is simply being held in medical segregation and given acetaminophen. Id. People detained in Stewart and Irwin face punitive consequences for reporting their own or other detained people’s symptoms, suggesting reports of COVID-19-like symptoms or cases in these facilities may be artificially depressed. Ex. 7 ¶ 15 (detainees with symptoms in Stewart afraid to report them out of fear of being placed in segregation); ¶ 23 (women detained at Irwin raised concerns with facility officials about other people with fever and cough waiting days for a medical appointment and were threatened with “lockdown”). ICE confirmed on April 6, 2020, that two Stewart employees have tested positive.9 There is also now a report of one COVID-19-related death at Stewart, though ICE has not confirmed this yet. Ex. 17 ¶ 4. Indeed, if the virus has not yet reached people detained inside these facilities, it is only a matter of time. See Ex. 1 ¶ 10; Ex. 2 ¶ 19. C. Stewart and Irwin Detention Centers and the Rural Hospital Infrastructure in South
Georgia Are Incapable of Safely Handling Detention Center Outbreaks. The threat posed by COVID-19—a harrowing and highly contagious illness that spreads like wildfire in crowded spaces—is unlike anything ICE has ever managed. Stewart and Irwin are
9Alex Jones, Second Stewart Detention Center Employee Tests Positive for COVID-19, Jeremy Redmon, Georgia Immigration Detention Employee Tests Positive for Coronavirus, WTVM (Apr. 6, 2020), https://bit.ly/3b0rzCR; Jeremy Redmon, Georgia Immigration Detention Employee Tests Positive for Coronavirus, AJC.com (Mar. 31, 2010), https://bit.ly/2Xh5LOX.
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ill-equipped to address medical emergencies and disease outbreaks. See Ex. 7 ¶¶ 7, 12 (reporting having witnessed a single holding cell used to contain detained individuals seeking medical care at Stewart), 17; Compl. ¶ 53 (describing previous outbreaks at Stewart). At both Stewart and Irwin, ICE has long been unable to provide even basic medical care to detained people, resulting in needless deaths and other medical emergencies. Ex. 7 ¶¶ 7, 22; Ex. 8 ¶¶ 14-26; Ex. 9 ¶¶ 4-6, 8-10, 19-20; Ex. 10 ¶¶ 8, 10-12; Ex. 11 ¶¶ 6-8, 14-15; Ex. 12 ¶¶ 7, 9-12, 16; Ex. 13 ¶¶ 5, 13, 18, 25; Ex. 14 ¶¶ 20, 23-25; Ex. 15 ¶ 7; Compl. ¶¶ 66-77 (collecting sources). When ICE has consistently demonstrated that it is incapable of managing the health and medical care of those in its custody during ordinary times, it is a foregone conclusion that ICE cannot protect the medically vulnerable in the face of a pandemic that has overwhelmed health systems the world over. See Ex. 1 ¶ 13, 16; Ex. 3 ¶ 21; Ex. 4 ¶ 6.
The minimal steps ICE has taken to address the pandemic, as well as the limited additional steps—short of release—that they can feasibly take, will necessarily be ineffective in curbing the virus’s spread in detention centers. See Ex. 1 ¶¶ 18-23; Ex. 3 ¶¶ 22-23. ICE cannot dramatically expand its infrastructure overnight to make space for social distancing. Cf. Ex. 1 ¶ 20e; Ex. 4 ¶ 5. DHS has issued guidance to isolate, quarantine, and cohort (segregate as a group from others in the facility) to attempt to mitigate spread, yet these will make matters worse. Ex. 1 ¶ 22 (describing mental health risks and increased physical contact in isolation); Ex. 2 ¶ 20 (“Isolation of symptomatic individuals within detention settings similarly will not stop transmission before symptom onset.”); Ex. 3 ¶¶ 8 (describing medical isolation as an “unacceptable and potentially deadly form of quarantine”).
Furthermore, Stewart and Irwin are geographically isolated from appropriate levels of medical care to treat COVID-19. Ex. 3 ¶¶ 12-14. The time it will take to transport infected individuals to hospitals could make the difference between life and death. Id. ¶ 16.
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D. Releasing Petitioners Would Reduce the Devastating Public Health Impact of COVID-19 on Georgia Petitioners’ continued detention not only threatens their own health and wellbeing but also
subjects all other detained individuals and staff at Stewart and Irwin to an increased risk of illness or death. See Ex. 1 ¶¶ 12, 20a, 25; Ex. 4 ¶ 7; Ex. 3 ¶¶ 19, 21. The release of vulnerable individuals mitigates the overall risk of a COVID-19 outbreak in any detention facility because it reduces the total number of detained individuals, thereby permitting greater social distancing and reducing the staff’s workload. Ex. 4 ¶ 9; Ex. 1 ¶¶ 17, 24-27; Ex. 3 ¶ 22.10
An outbreak of COVID-19 at Stewart or Irwin would likely overwhelm the local health infrastructure in the surrounding communities. Ex. 3 ¶¶ 14-15 (explaining impact of a detention center outbreak on regional hospitals that serve large swaths of south Georgia). The closest hospitals to these facilities that are equipped to manage serious cases of COVID-19 serve many counties that are already overwhelmed with COVID-19 cases or will quickly become so if there are outbreaks in these facilities. Ex. 3 ¶ 15 (citing predictions that all Georgia hospital resources will be in use by April 22, 2020). Phoebe Putney Memorial Hospital in Albany—a town only 53 miles from Stewart—has filled three ICUs to capacity with COVID-19 patients. Compl. ¶ 80. If particularly vulnerable detained individuals like Petitioners fall critically ill from COVID-19, their need for intensive medical care would even further strain local hospitals that are already stretched to capacity. Compl. ¶¶ 90-97; Ex. 1 ¶ 25; Ex. 2 ¶ 5 (fatality rates increase as hospitals become overburdened); Ex. 3 ¶¶14-15.
Petitioners filed a habeas petition and complaint for declaratory and injunctive relief on April 7, 2020, alleging that their detention during the pandemic violates the Fifth Amendment Due
10Already prisons and detention centers in other countries and many U.S. states have begun releasing people from custody or reducing new arrests. See, e.g., Compl. ¶ 56.
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Process Clause. The emergency nature of this situation cannot be overstated: because they are detained at Stewart and Irwin, Petitioners are at imminent near-certain risk of exposure to an illness from which they have a 20% chance of dying. If they remain detained in southern Georgia, where hospitals are wholly unprepared to treat the impending volume of COVID-19 patients, there is also an unreasonably high risk that Petitioners will be unable to access life-saving medical treatment. Civil detention with such odds of grave harm cannot be constitutional. Petitioners implore the Court to save their lives and order their immediate release.
II. ARGUMENT Petitioners seek emergency release through a writ of habeas corpus or, alternatively, through injunctive relief under Rule 65. “Habeas is at its core a remedy for unlawful executive detention.” Munaf v. Geren, 553 U.S. 674, 693 (2008). Habeas vests in federal courts broad, equitable authority to “dispose of the matter as law and justice require,” 28 U.S.C. § 2243; the “very nature of the writ demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice . . . are surfaced and corrected.” Harris v. Nelson, 394 U.S. 286, 291 (1969). Habeas corpus is, “above all, an adaptable remedy,” Boumediene v. Bush, 553 U.S. 723, 779 (2008), conferring “broad discretion” on courts to right wrongs, Hilton v. Braunskill, 481 U.S. 770, 775 (1987). Accordingly, the illegality of custody under the “Constitution or laws . . . of the United States” may stem from the fact of detention and the duration of detention—what is often referred to as the historical core of habeas—or from unlawful placement or conditions of detention. See Wilwording v. Swenson, 404 U.S. 249, 249, 251 (1971) (habeas challenging “living conditions and disciplinary measures” is “cognizable in federal habeas corpus”). The Court is fully empowered to remediate through habeas the particular illegality here—an outbreak of lethal and unavoidable virus that threatens Petitioners and violates their constitutional rights—by ordering Petitioners’ release. See Boumediene, 553 U.S. at 779.
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Courts have similarly broad power under Rule 65 to fashion equitable remedies to address constitutional violations in prisons. Hutto v. Finney, 437 U.S. 678, 687 n.9 (1978); see, e.g., Brown v. Plata, 563 U.S. 493, 511 (2011) (recognizing authority to “plac[e] limits on a prison’s population” when necessary to ensure constitutional compliance); Duran v. Elrod, 713 F.2d 292, 297-98 (7th Cir. 1983), cert. denied, 465 U.S. 1108 (1984) (court had authority to direct release of low-bond pretrial detainees as necessary to reach a population cap).
A TRO is warranted when the movant demonstrates: (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury unless the order issues; (3) the threatened injury to the movant outweighs any harm the injunction may cause the opposing party; and (4) the injunction would not undermine the public interest. Levi Strauss & Co. v. Sunrise Int’l Trading Inc., 51 F.3d 982, 985 (11th Cir. 1995); accord Friedenberg v. Sch. Bd. of Palm Beach Cty., 911 F.3d 1084, 1090 (11th Cir. 2018). “Where, as here, the ‘balance of the equities weighs heavily in favor of granting the [injunction]’ the Plaintiffs need only show a ‘substantial case on the merits.’” Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1289, 1298 (11th Cir. 2005). Petitioners easily satisfy all four factors. A. Petitioners are Likely to Succeed on the Merits of Their Due Process Claim.
All immigration detainees, even those with prior criminal convictions, are civil detainees held pursuant to immigration laws and protected by the Fifth Amendment Due Process Clause. Zadvydas v. Davis, 533 U.S. 678, 690 (2001). Petitioners are likely to succeed on the merits of their Due Process claim for two independent reasons: continuing to detain Petitioners in Stewart and Irwin during the COVID-19 global pandemic (1) constitutes impermissible punishment and (2) amounts to deliberate indifference to a substantial risk of harm.
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1. Petitioners’ Continued Detention During the COVID-19 Pandemic Constitutes Impermissible Punishment.
The Fifth Amendment Due Process Clause, like the Fourteenth Amendment, prohibits punishment of people in civil custody. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979); Magluta v. Samples, 375 F.3d 1269, 1273 (11th Cir. 2004). Civilly detained people “are generally ‘entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.’” Marsh v. Fla. Dep’t of Corrections, 330 F. App’x 179 (11th Cir. 2009) (quoting Youngberg v. Romeo, 457 U.S. 307, 322 (1982)).
To establish that a particular condition or restriction of detention constitutes impermissible punishment, a petitioner must show either (1) an expressed intent to punish; or (2) lack of a reasonable relationship to a legitimate governmental purpose, from which an intent to punish may be inferred. See Wolfish, 441 U.S. at 538. Absent explicit intent, courts must ask first “whether any ‘legitimate goal’ was served by the prison conditions” and second, “whether the conditions are ‘reasonably related’ to that goal.” Jacoby v. Baldwin County, 835 F.3d 1338, 1345 (11th Cir. 2016). “[I]f conditions are so extreme that less harsh alternatives are easily available, those conditions constitute ‘punishment.’” Telfair v. Gilberg, 868 F. Supp. 1396, 1412 (S.D. Ga. 1994) (citing Wolfish, 441 U.S. at 538-39 n.20).
The threat of serious illness and death from COVID-19 is not reasonably related to, and vastly outweighs, any purported government interest in Petitioners’ civil confinement. As set forth previously, supra I.A., Petitioners’ underlying health conditions make them especially susceptible to severe illness, life-altering complications, or death if they contract COVID-19. The measures required to prevent Petitioners from contracting COVID-19 are impossible in Stewart and Irwin, and the medical resources needed to treat even a moderate volume of critical care patients are unavailable in south Georgia. Supra I.C. Under these circumstances, the government’s detention
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of Petitioners is clearly excessive in relation to any countervailing government interest. And any government interest in detaining Petitioners can be satisfied with less harsh alternatives. See supra n.5.
2. By Continuing to Detain Petitioners During the COVID-19 Pandemic, Respondents Are Knowingly Subjecting Them to a Substantial Risk of Serious Harm
When Respondents “take[] a person into its custody and hold[] him there against his will, the Constitution imposes . . . a corresponding duty to assume some responsibility for his safety and general well-being.” DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 199-200 (1989). Failure to provide detained individuals with basic necessities, such as adequate medical care, violates due process. Hamm v. DeKalb County, 774 F.2d 1567, at 1573 (11th Cir. 1985); Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cty., 402 F.3d 1092, 1115 (11th Cir. 2005). At a minimum, due process prohibits Respondents’ deliberate indifference to a substantial risk of serious harm that would rise to the level of an Eighth Amendment violation in the post-conviction context.11 Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983); Hale v. Tallapoosa County, 50 F. 3d 1579, 1582 n.4 (11th Cir. 1995). To show that Respondents are acting with deliberate indifference, Petitioners must show they were exposed to a substantial risk of serious harm, and Respondents knew or should have known of the risk but disregarded it. Farmer v. Brennan, 511 U.S. 825, 834, 837–38 (1994); Marbury v. Warden, 936 F.3d 1227, 1233 (11th Cir. 2019).
11Civil immigration detainees should not have to satisfy the Eighth Amendment’s requirement that a prison official had subjective knowledge of a substantial risk in order to establish a Fifth Amendment violation related to conditions of confinement. The Eleventh Circuit has not yet directly addressed this issue. Other courts have held that an objective deliberate indifference standard should apply to individuals in this context. See Gordon v. County of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018), cert. denied, 139 S. Ct. 794 (2019); Darnell v. Pineiro, 849 F.3d 17, 32-36 (2d Cir. 2017). But the court need not address this issue because the evidence is clear that ICE is aware of the substantial risk of serious harm to Petitioners.
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The government may violate the Eighth Amendment when it “ignore[s] a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year,” including “exposure of inmates to a serious, communicable disease,” even when “the complaining inmate shows no serious current symptoms.” Helling v. McKinney, 509 U.S. 25, 33 (1993); see also Gates v. Collier, 501 F.2d 1291, 1300-01 (5th Cir. 1974) (Eighth Amendment violation due to the mingling of “inmates with serious contagious diseases” with other inmates). Courts do not require a plaintiff to “await a tragic event” before seeking relief from unconstitutionally dangerous conditions. Helling, 509 U.S. at 33. “It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them.” Id.
Thus, the harm Petitioners fear—that their confinement will result in a COVID-19 infection that will seriously injure and possibly kill them—need not become a reality to establish a constitutional violation.
a. Substantial Risk of Serious Harm By continuing to detain Petitioners, who have medical conditions that render them particularly vulnerable to COVID-19, Respondents are jeopardizing their health and possibly their lives. See supra I.A. Petitioners have a 20% risk of death if they contract the disease and an even higher risk of suffering severe complications requiring hospitalization, including intubation and the use of a ventilator, and long-term organ damage. Yet if Petitioners remain detained in south Georgia, there may not be even one critical care bed available to them in the event of serious infection. Cf. Farrow v. West, 320 F.3d 1235, 1247 (11th Cir. 2003) (denial or delay in access to needed medical care may amount to deliberate indifference); accord McElligott v. Foley, 182 F.3d 1248 (11th Cir. 1999); Brown v. Hughes, 894 F.2d 1533 (11 Cir. 1990); Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 704 (11th Cir. 1985). These risks constitute the most serious of harms.
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b. Knowing Disregard of the Substantial Risk Respondents have “subjective knowledge of a substantial risk of serious harm” to Petitioners but are “disregard[ing] that known risk by failing to respond to it in an (objectively) reasonable manner.” Rodriguez v. Sec’y for Dep’t of Corr., 508 F.3d 611, 617, 619 n.15 (11th Cir. 2007); see also Farmer, 511 U.S. at 842. Where a risk is obvious, such as the threat posed to medically vulnerable people during a highly contagious and deadly disease outbreak, courts can presume that government officials are aware of the risk. See, e.g., id. There is no question that ICE has actual knowledge of the excessive risk of harm that the coronavirus presents to individuals in ICE custody with underlying medical conditions, including Petitioners. DHS whistleblowers raised the alarm as early as February 25, 2020, recommending release of most detained immigrants due to the specific risks that COVID-19 poses to them.12 In the last several weeks, ICE has received numerous letters from advocates, medical professionals, and members of Congress emphasizing these same risks, including letters specifically addressing Stewart and Irwin.13 There have also been many news articles highlighting the risk of coronavirus outbreaks in ICE facilities.14 The federal government itself has issued warnings about the particular risk of COVID-19 for people with high-risk medical conditions.15 It has also issued guidance to the public that social distancing and proper hand hygiene—measures which Petitioners cannot possibly practice in
12See, e.g., Letter from Dr. Scott Allen and Dr. Josiah Rich, Medical Experts for DHS, to House Comm. on Homeland Sec. (Mar. 19, 2020), https://bit.ly/3dQxP1J. 13 See e.g., Ex. 7 ¶ 30; Letter from 763 non-governmental organizations to Matthew T. Albence, ICE Acting Director (Mar. 19, 2020), https://bit.ly/2UUKtUG. 14See, e.g., Abigail Hauslohner, Nick Miroff & Matt Zapotosky, Coronavirus Could Pose Serious Concern in ICE Jails, Immigration Courts, The Washington Post (Mar. 12, 2020), https://wapo.st/2X5BxOY. 15Are You at Higher Risk for Severe Illness?, Centers for Disease Control and Prevention (accessed Mar. 23, 2020), https://bit.ly/3bPkxkk.
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immigration detention—are effective ways to reduce the risk of exposure to COVID-19. Despite ICE’s awareness of the heightened risk faced by Petitioners, the agency continues to detain them under conditions where there is no effective way to protect them from exposure.
Courts across the United States have recognized that urgent release of medically vulnerable individuals from immigration detention is the only appropriate course of action in the face of a highly contagious disease with a death toll that continues to rises daily. See Compl. ¶ 5 n.1 (collecting cases).
For the foregoing reasons, Petitioners are likely to succeed on the merits of their claim that their continued detention violates their Fifth Amendment due process right to reasonable safety and freedom from punishment in government custody. B. Petitioners Face an Imminent and Substantial Threat of Irreparable Harm from
COVID-19 An injury is irreparable when a plaintiff cannot obtain adequate compensatory or corrective relief through the ordinary course of litigation. Cunningham v. Adams, 808 F.2d 815, 821 (11th Cir. 1987). The injury must be “actual and imminent, not remote or speculative.” Odebrecht Constr., Inc. v. Sec'y, Fla. Dep’t of Transp., 715 F.3d 1268, 1288 (11th Cir. 2013). Absent a TRO, Petitioners face the most fundamental kind of irreparable harm—imminent and substantial risk of serious, lasting illness or death. “There can be no injury more irreparable.” Memorandum and Order at 9, Thakker, No. 1:20-cv-00480-JEJ; see also J.M. v. Crittendon, No. 1:18-CV-568-AT, 2018 WL 7079177, at *7 (N.D. Ga. May 21, 2018). Petitioners are highly likely to contract COVID-19 if they remain in ICE detention, where their sole defenses against the risk of a coronavirus infection—social distancing and scrupulous hygiene—are simply impossible for the reasons stated above. See supra I.B.2, 3. “[I]t is not a matter of if COVID-19 will enter . . . prisons, but when it is finally detected therein.” Memorandum
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and Order at 8, Thakker v. Doll, No. 1:20-cv-00480-JEJ (M.D. Pa. Mar. 31, 2020). Further exacerbating the risk of injury to Petitioners is their lack of access to adequate medical care in the event of a serious COVID-19 infection. See supra I.C. The closest hospitals that can provide critical care services are far away and will quickly become overwhelmed if there are outbreaks in these detention centers.
As the COVID-19 pandemic continues to ravage communities in the United States, courts across the country have begun to acknowledge, in no uncertain terms, the gravity of the danger medically vulnerable individuals like Petitioners face in ICE detention. See, e.g., Temporary Restraining Order and Order to Show Cause at 11, Temporary Restraining Order and Order to Show Cause at 11, Fraihat v. Wolf (M.D. Pa. March 30, 2020) (recognizing the risk of spread from staff ingress and egress); Memorandum and Order at 24, Thakker, No. 1:20-cv-00480-JEJ (stating that ICE’s facilities were “plainly not equipped” to protect petitioners from a potentially fatal exposure to COVID-19 and that failure to urgently release petitioners would be an “unconscionable and possibly barbaric result”); Coronel v. Decker, 2020 WL 1487274 (S.D.N.Y. March 27, 2020); Memorandum and Order at 3-4, Basank v. Decker, 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020) (“The risk that Petitioners will face a severe, and quite possibly fatal, infection if they remain in immigration detention constitutes irreparable harm . . . ”).
Additionally, continuing to detain Petitioners—when their medical conditions put them at grave risk of severe illness or death if they contract COVID-19—violates due process under the Fifth Amendment. Deprivations of constitutional rights that cannot be compensated monetarily generally amount to irreparable injury as a matter of law. See Cunningham v. Adams, 808 F.2d 815, 822 (11th Cir. 1987). As public health experts make clear, Respondents cannot ameliorate the life-threatening risk to Petitioners through any means other than immediate release. Release is the sole remedy that can effectively protect Petitioners against the grave and imminent threat that
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COVID-19 poses to their health, as well as redress Respondents’ violations of their due process rights. C. The Balance of Equities and Public Interest Weigh Heavily in Petitioners’ Favor.
The final two factors of the TRO inquiry “merge when the Government is the opposing party.” Nken v. Holder, 556 U.S. 418, 435 (2009). In contrast to Petitioners’ significant risk of serious illness or death, see supra I.A, Respondents will not be injured by an injunction. Indeed, it is in both the Respondents’ and the broader public interest to release medically vulnerable individuals from custody, rather than needlessly jeopardizing their health and lives. Moreover, “the public interest is served when constitutional rights are protected.” Jones v. Governor of Fla., 950 F.3d 795, 830 (11th Cir. 2020) (citation omitted); KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1272 (11th Cir. 2006).
ICE has an interest in preventing any potential spread of COVID-19 in its detention facilities in order to maintain the health and safety of everyone who has contact with the facilities. The release of people most vulnerable to COVID-19—which would permit greater social distancing and decrease staff workloads—reduces the overall health risk for detained individuals and facility staff alike at Stewart and Irwin, as well as for surrounding communities. Far from harming the government, Petitioners’ release would further ICE’s interests in maintaining a healthy and orderly environment at Stewart and Irwin.
Releasing Petitioners is unquestionably in the public interest. Ex. 4 ¶ 6. See, e.g., Grand River Enters. Six Nations, Ltd. v. Pryor, 425 F.3d 158, 169 (2d Cir. 2005) (referring to “public health” as a “significant public interest[]”); see also Allen & Rich Ltr., supra n. 13 (“[I]t is essential to consider releasing all detainees who do not pose an immediate risk to public safety”). In the unprecedented and rapidly evolving circumstances of the COVID-19 crisis, continued civil detention of aging or ill individuals does not serve the public’s interest. An outbreak of COVID-
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19 at Stewart or Irwin would further strain both local and state health infrastructure and contribute

to more massive community spread and more deaths. The health and safety of the public would

thus be best served by rapidly decreasing the number of individuals detained in confined, unsafe

conditions. Ex. 4 ¶ 9. By releasing such individuals now, ICE would reduce the spread and severity

of infection inside Stewart and Irwin. This, in turn, would reduce the number of people who will

become ill enough to require hospitalization and thereby decrease the health and economic burden

on local communities. Ex. 1 ¶ 26.

To the extent the equities weigh in favor of some restraint of Petitioners’ liberty, that can

be achieved through fashioning reasonable release conditions that ICE already uses and that have

demonstrated success. See supra n.5; Brief of Amicus Curiae at 36-37, Jennings v. Rodriguez, No.

15-1204, 2016 WL 6276890 (Oct. 24, 2016).

D. The Court Should Not Require Petitioners to Provide Security Prior to Issuing a Temporary Restraining Order.

Courts have discretion to waive the requirement in Federal Rule of Civil Procedure 65(c)

that a movant provide a security upon the issuance of a preliminary injunction or TRO. BellSouth

Telecomms., Inc. v. MCImetro Access Transmission Servs., LLC, 425 F.3d 964, 971 (11th Cir.

2005). District courts in this Circuit often exercise this discretion to require no security in cases

brought by indigent and/or incarcerated people. See, e.g., Schultz v. Alabama, 330 F. Supp. 3d

1344, 1376 (N.D. Ala. 2018) (county prisoners); Campos v. I.N.S., 70 F. Supp. 2d 1296, 1310

(S.D. Fla. 1998) (indigent immigrants). This Court should do the same here.

III. CONCLUSION

For the foregoing reasons, Petitioners’ motion for a temporary restraining order should be

granted.

Dated: April 7, 2020

Respectfully submitted,

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Case 7:20-cv-00062-CDL-MSH Document 5-1 Filed 04/08/20 Page 26 of 26

SOUTHERN POVERTY LAW CENTER
By: /s/ Gracie Willis Gracie Willis (GA Bar #851021) Rebecca Cassler (GA Bar #487886) Lorilei Williams* (NY Bar #5302617) 150 E. Ponce de Leon Ave., Ste. 340 Decatur, GA 30030 Tel: (404) 521-6700 Fax: (404) 221-5857
rebecca.cassler@splcenter.org
Paul R. Chavez* (FL Bar #1021395) Victoria Mesa-Estrada*(FL Bar #076569) 2 S. Biscayne Blvd., Ste. 3200 Miami, FL 33101 Tel: (786) 347-2056 paul.chavez@splcenter.org victoria.mesa@splcenter.org
Melissa Crow* (DC Bar #453487) 1101 17th Street, NW, Ste. 705 Washington, DC 20036 Tel: (202) 355-4471 Fax: (404) 221-5857 melissa.crow@splcenter.org
*pro hac vice motions forthcoming

ASIAN AMERICANS ADVANCING JUSTICEATLANTA
By: /s/ Hillary Li Hillary Li (GA Bar #898375) Phi Nguyen (Ga Bar #578019) 5680 Oakbrook Pkwy, Ste. 148 Norcross, GA 30093 Tel: (404) 585-8466 Fax: (404) 890-5690 hli@advancingjustice-atlanta.org pnguyen@advancingjustice-atlanta.org
KILPATRICK TOWNSEND & STOCKTON LLP
By: /s/ Tayah Woodard Tayah Woodard (GA Bar #312548) Tamara Serwer Caldas* (GA Bar #617053) Kathryn E. Isted* (GA Bar #908030) Amanda Brouillette* (GA Bar #880528) 1100 Peachtree St., NE, Ste. 2800 Atlanta, GA 30309 Tel: (404) 815-6006 Fax: (404) 541-4754 twoodard@kilpatricktownsend.com tcaldas@kilpatricktownsend.com kisted@kilpatricktownsend.com abrouillette@kilpatricktownsend.com

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 Case 7:20-cv-00062-CDL-MSH Document 9 Filed 04/08/20 Page 1 of 15

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA

ARISTOTELES SANCHEZ MARTINEZ, et al.,

Petitioners/Plaintiffs, v. MICHAEL DONAHUE, et al.,
Respondents/Defendants.

HEARING REQUESTED Case No.:7:20-cv-00062-WLS-MSH

SUPPLEMENTAL MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND EMERGENCY WRIT OF HABEAS CORPUS

Case 7:20-cv-00062-CDL-MSH Document 9 Filed 04/08/20 Page 2 of 15
Petitioners file this Supplemental Memorandum of Law in Support of their Motion for Temporary Restraining Order and Emergency Habeas Relief in response to the Court’s request made at the telephonic scheduling conference on April 8, 2020. (ECF No. 8). As explained below, the emergency relief Petitioners request is well within the Court’s power, either through a Writ of Habeas Corpus, or alternatively, through an implied constitutional cause of action. Furthermore, Petitioners’ claims are ripe and irreparable harm is imminent absent an order from the Court directing their release; any alterations to conditions of confinement will not ameliorate the constitutional violations here. Finally, Petitioners have included a chart at the end of this brief listing similar district court cases from around the country and the relief ordered, for the purpose of allowing the parties and the Court to proceed quickly in this emergency matter.
I. HABEAS IS THE PROPER VEHICLE FOR GRANTING THE REQUESTED
RELIEF Petitioners challenge the fact of their detention in violation of the Fifth Amendment Due Process Clause and seek immediate release, under conditions the Court deems proper. The writ of habeas corpus under 28 U.S.C. § 2241 is an appropriate vehicle for granting this relief. The writ extends to people “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). “Habeas is at its core a remedy for unlawful executive detention.” Munaf v. Geren, 553 U.S. 674, 693 (2008). Habeas vests in federal courts broad, equitable authority to “dispose of the matter as law and justice require,” 28 U.S.C. § 2243, as the “very nature of the writ demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice within [the writ’s] reach are surfaced and corrected.” Harris v. Nelson, 394 U.S. 286, 291 (1969); see Boumediene v. Bush, 553 U.S. 723, 780 (2008) (“Habeas is not ‘a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose.’”) (quoting Jones v. Cunningham, 371
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U.S. 236, 243 (1963)). Habeas corpus is, “above all, an adaptable remedy,” Boumediene, 553 U.S. at 779, and federal courts retain “broad discretion in conditioning a judgment granting habeas relief . . . ‘as law and justice require.’” Hilton v. Braunskill, 481 U.S. 770, 775 (1987) (quoting 28 U.S.C. § 2243).
Petitioners’ request for release based on their challenge to the fact of detention is clearly cognizable in habeas. See, e.g., Chin Yow v. United States, 208 U.S. 8, 13 (1908); Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) (noting that a “traditional function of the writ is to secure release from illegal custody”). This Court is fully empowered to remediate the particular illegality here—an outbreak of a lethal, highly contagious virus that threatens Petitioners’ lives and violates their constitutional rights to be free from arbitrary and punitive detention—by ordering their release through habeas. Boumediene v. Bush, 553 U.S. 723, 779 (2008) (“[T]he habeas court must have the power to order the conditional release of an individual unlawfully detained[.]”). Ordering Petitioners’ release will serve the interest of justice.
Petitioners are medically vulnerable to severe cases of COVID-19, their exposure to COVID-19 is imminent, and preliminary data suggests they have a 20% chance of dying if they contract COVID-19. Op. Br. Ex. 1 ¶ 6.1 Petitioners were not convicted of a crime and sentenced to death. They are civilly detained, and therefore may not be lawfully punished. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979). There are less harsh alternatives available, see infra Part IV, and continuing to detain them at this time is punishment, pure and simple. See Telfair v. Gilberg, 868 F. Supp. 1396, 1412 (S.D. Ga. 1994). (“[I]f conditions are so extreme that less harsh alternatives are easily available, those conditions constitute ‘punishment.’”). Ordering release through habeas
1All exhibits labeled “Op. Br. Ex.” are attached to the Declaration of Hillary Li (ECF 5-2) filed on April 7, 2020, in support of Petitioners’ Motion for Temporary Restraining Order.
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because detention amounts to unlawful punishment is a traditional exercise of courts’ habeas power to put an end to the fact of unlawful detention. See Boumediene, 553 U.S. at 779.
In addition Petitioners’ detention is also unconstitutional because the Fifth Amendment Due Process Clause incorporates, at a minimum, the Eighth Amendment deliberate indifference standard.2 Under that theory, Petitioners may not be subjected to deliberate indifference of a substantial risk of serious harm. Farmer v. Brennan, 511 U.S. 825, 834, 837–38 (1994); Marbury v. Warden, 936 F.3d 1227, 1233 (11th Cir. 2019). The risk of harm here is so high that, based on the unique factual circumstances of this case, release is the only remedy that could possibly ameliorate the constitutional violation here. See infra Part IV.
Whether habeas is a proper vehicle for litigating issues related to conditions of confinement is an open question. See Wilwording v. Swenson, 404 U.S. 249, 251 (1971) (habeas challenging “living conditions and disciplinary measures” is “cognizable in federal habeas corpus”); Johnson v. Avery, 393 U.S. 483 (1969) (permitting federal habeas challenge to legality of prison regulation prohibiting provision of legal assistance to other prisoners); see also Preiser v. Rodriguez, 411 U.S. 475, 499-500 (1973) (explicitly leaving this question open in the context of a habeas petition by a state prisoner); Aamer v. Obama, 742 F.3d 1023, 1031-38 (D.C. Cir. 2014) (surveying history,
2 The Eleventh Circuit has not articulated the specific standard applicable to people in civil immigration detention under the Fifth Amendment when it comes to unlawful conditions of confinement, though it is clear that at a minimum, conduct amounting to deliberate indifference under the Eighth Amendment would violate the Fifth Amendment in this context. See Hale v. Tallapoosa County, 50 F.3d 1579, 1582 n.4 (11th Cir. 1995) (pretrial detainees). Civil immigration detainees should not have to satisfy the Eighth Amendment’s requirement that a prison official had subjective knowledge of a substantial risk in order to establish a Fifth Amendment violation related to conditions of confinement. The Eleventh Circuit has not yet directly addressed this issue. Other courts have held that an objective deliberate indifference standard should apply to individuals in this context. See Gordon v. County of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018), cert. denied, 139 S. Ct. 794 (2019); Darnell v. Pineiro, 849 F.3d 17, 32-36 (2d Cir. 2017).
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purpose and Supreme Court jurisprudence and “the weight of the reasoned precedent in the federal Courts of Appeal” relating to habeas and concluding “habeas corpus tests not only the fact but also the form of detention” (citation omitted)).
Federal courts of appeals are split on the question of whether conditions of confinement claims are cognizable in habeas, and the Eleventh Circuit has never issued a published decision weighing in. Thus, there is no binding authority precluding this Court from deciding that even runof-the-mill challenges to conditions of confinement are cognizable in habeas. Compare Aamer, 742 F.3d at 1036 (D.C. Cir. 2014) (holding that prisoners can challenge the form of detention under habeas), Jiminian v. Nash, 245 F.3d 144, 146–47 (2d Cir. 2001) (allowing prisoners to challenge “prison disciplinary actions, prison transfers, type of detention and prison conditions” as “challenges [to] the execution of a federal prisoner’s sentence” under § 2241), and Miller v. United States, 564 F.2d 103, 105 (1st Cir. 1977) (holding conditions-of-confinement claims are cognizable under § 2241) with Nettles v. Grounds, 830 F.3d 922, 933–34 (9th Cir. 2016) (holding the opposite), Spencer v. Haynes, 774 F.3d 467, 469–70 (8th Cir. 2014) (same), Cardona v. Bledsoe, 681 F.3d 533, 537 (3d Cir. 2012) (same), Davis v. Fechtel, 150 F.3d 486, 490 (5th Cir. 1998) (same), McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 811–12 (10th Cir. 1997) (same), Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991) (same), and Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004) (same). However, this is not a run-of-the-mill conditions case, and historically speaking, the emergency circumstances present here are unique. The Court need not decide whether the ordinary conditions case—which seeks a court order for amelioration of conditions or monetary damages—is cognizable in habeas. “For over 100 years, habeas corpus has been recognized as the vehicle through which noncitizens may challenge the fact of their detention. See Chin Yow v. U.S.¸ 208 U.S. 8, 13 (1908) (“Habeas corpus is the usual remedy for unlawful
4

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imprisonment.”) (emphasis added). Here, petitioners are not challenging the conditions of their confinement, rather the fact of their confinement. Based on the distinctive nature of the unprecedented global COVID-19 pandemic, the only adequate remedy is release. See infra Part IV; see also Malam v. Adducci, Case No. 2:20-cv-10829-JEL-APP (E.D. Mich. Apr. 5, 2020), ECF No. 22 (“Petitioner may nonetheless bring her claim under 28 U.S.C. § 2241 because she seeks immediate release from confinement as a result of there being no conditions of confinement sufficient to prevent irreparable constitutional injury under the facts of her case.”)
Petitioners acknowledge that the Eleventh Circuit has held that a prisoner who proves an Eighth Amendment violation is not entitled to release. Gomez v. United States, 899 F.2d 1124, 1126 (11th Cir. 1990). However, the Eleventh Circuit has never opined on whether a person in civil immigration detention is entitled to release under the Fifth Amendment when all steps short of release would fail to ameliorate a substantial risk of harm. Here, that risk amounts to, essentially, a 20% chance of death. Release through a writ of habeas corpus is appropriate under existing habeas jurisprudence, which recognizes broad equitable powers to release a petitioner when release is required to remedy a constitutional violation. See, e.g., Malam v. Adducci, No. 20-10829, 2020 WL 1672662, at *4 (E.D. Mich. Apr. 4, 2020), as amended (Apr. 6, 2020) (“On its face, the application appears to concern petitioner’s conditions of confinement . . . But Petitioner may nonetheless bring her claim under 28 U.S.C. § 2241 because she seeks immediate release from confinement as a result of there being no conditions of confinement sufficient to prevent irreparable constitutional injury under the facts of her case.”); Castillo v. Barr, --- F. Supp. 3d ---, 2020 WL 1502864, at *5-6 (C.D. Cal. Mar. 27, 2020) (concluding that conditions of confinement violated the Fifth Amendment due to the COVID-19 pandemic and ordering release from immigration detention).
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II. THIS COURT ALSO HAS INHERENT POWER TO ISSUE INJUNCTIVE
RELIEF TO REMEDY CONSTITUTIONAL VIOLATIONS
As explained above, the writ of habeas corpus provides an independent basis for the Court to grant the relief Petitioners seek. In the alternative, federal courts have long recognized an implicit private right of action under the Constitution “as a general matter” to issue prospective injunctive relief barring unlawful government action. Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 491 n.2 (2010); accord Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001) (equitable relief “has long been recognized as the proper means for preventing entities from acting unconstitutionally”); Bolling v. Sharpe, 347 U.S. 497, 500 (1954) (holding that the Fifth Amendment and 29 U.S.C. § 1331 created a remedy for unconstitutional racial discrimination in public schools); Bell v. Hood, 327 U.S. 678, 684 (1946) (“[I]t is established practice for this Court to sustain the jurisdiction of federal courts to issue injunctions to protect rights safeguarded by the Constitution”). Indeed, “federal courts have broad equitable powers to remedy proven constitutional violations.” See Gibson v. Firestone, 741 F.2d 1268, 1273 (11th Cir. 1984); see also Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 16 (1971) (similar); People Who Care v. Rockford Bd. of Educ., Sch. Dist. No. 205, 111 F.3d 528, 533 (7th Cir. 1997) (similar).
Thus, there is both jurisdiction under 28 U.S.C. § 1331 and a cause of action under the Fifth Amendment to enjoin the Defendants’ unconstitutional actions. See Malam v., 2020 WL 1672662, at *4 (E.D. Mich. Apr. 4, 2020), as amended (Apr. 6, 2020) (explaining that apart from habeas, “the Fifth Amendment provides Petitioner with an implied cause of action, and accordingly 28 U.S.C. 1331 would vest the Court with jurisdiction”); cf. Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1231-32 (10th Cir. 2005) (implied cause of action under Eighth Amendment to enjoin unconstitutional prison conditions).
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As part of the implied constitutional cause of action that exists here, courts may rely on their traditionally broad equitable powers to fashion equitable remedies to address constitutional violations in custodial settings. See Hutto v. Finney, 437 U.S. 678, 687 n.9 (1978). “When necessary to ensure compliance with a constitutional mandate, courts may enter orders placing limits on a prison’s population.” Brown v. Plata, 563 U.S. 493, 511 (2011); Duran v. Elrod, 713 F.2d 292, 297-98 (7th Cir. 1983), cert. denied, 465 U.S. 1108 (1984) (concluding that court did not exceed its authority in directing release of low-bond pretrial detainees as necessary to reach a population cap).
Furthermore, sovereign immunity poses no bar to Plaintiffs’ challenge. First, Plaintiffs are suing for injunctive relief against federal officers in their official capacity. “The ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England.” Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 327 (2015). Second, under Section 702 of the Administrative Procedures Act, 5 U.S.C. § 702, “sovereign immunity is waived in actions against federal government agencies seeking nonmonetary relief if the agency conduct is itself subject to judicial review.” Panola Land Buyers Ass’n v. Shuman, 762 F.2d 1550, 1555 (11th Cir. 1985); see also FPL Food, LLC v. U.S. Dept. of Agric., 671 F. Supp. 2d 1339, 1346 (S.D. Ga. 2009) (similar); Malam, 2020 WL 1672662, at *5 (similar).
III. PETITIONERS’ CLAIMS ARE RIPE, AND IRREPARABLE INJURY IS
IMMINENT As a threshold matter, Petitioners’ claim before this Court is ripe. For the controversy to be ripe, the complained-of injury must be immediate or imminently threatened. Wilderness Soc'y v. Alcock, 83 F.3d 386, 390 (11th Cir. 1996). Similarly, to warrant a TRO, Petitioners must show “a substantial threat of irreparable injury unless the order issues.” Levi Strauss & Co. v. Sunrise
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Int’l Trading Inc., 51 F.3d 982, 985 (11th Cir. 1995); accord Friedenberg v. Sch. Bd. of Palm Beach Cty., 911 F.3d 1084, 1090 (11th Cir. 2018). The injury must be “actual and imminent, not remote or speculative.” Odebrecht Constr., Inc. v. Sec'y, Fla. Dep’t of Transp., 715 F.3d 1268, 1288 (11th Cir. 2013).
That Petitioners have not yet suffered the harm that they fear—serious injury or death because of a COVID-19 infection—does not make their motion for TRO, or underlying claim, inappropriate for judicial review. Courts do not require plaintiffs to “await a tragic event” before they can ask this Court to redress governmental detention that unconstitutionally endangers them. Helling v. McKinney, 509 U.S. 25, 33 (1993); see also Castillo v. Barr, 2020 U.S. Dist. LEXIS 54425 (C.D. Cal. Mar. 27, 2020) (applying Helling to release from immigration detention individuals at high risk of severe illness or death from COVID-19). Rather, the Supreme Court has held that a plaintiff can challenge the constitutionality of a condition of their confinement based on a substantial risk of future harm, including “exposure . . . to a serious, communicable disease,” regardless of whether that harm is likely to occur “the next week or month or year.” Id. Indeed, “[i]t would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them.” Id.
Petitioners face an imminent and substantial risk of serious, lasting illness or death if they remain in detention during the rapidly evolving COVID-19 pandemic. Petitioners are highly likely to contract COVID-19 due to the highly contagious nature of the disease; the even greater risk of infectious disease spread in carceral settings; the impossibility of implementing critical protective measures in ICE detention; and the proximity of confirmed cases to Petitioners. There are already two confirmed cases of COVID-19 among ICE employees at Stewart, as well as cases in the counties where Stewart and Irwin are located. There are also reports from detained people inside
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Stewart and Irwin indicating that there may already be confirmed COVID-19 cases inside the facilities, and that reports of symptoms associated with COVID-19 are going ignored. “[I]t is not a matter of if COVID-19 will enter . . . prisons, but when it is finally detected therein.” Thakker v. Doll, 2020 U.S. Dist. LEXIS 59459, at *9-10 (M.D. Pa. Mar. 31, 2020). And if Petitioners do contract COVID-19, their serious underlying medical conditions make the disease potentially lethal. “There can be no injury more irreparable.” Thakker v. Doll, 2020 U.S. Dist. LEXIS 59459, at *10 (M.D. Pa. Mar. 31, 2020); see also J.M. v. Crittendon, No. 1:18-CV-568-AT, 2018 WL 7079177, at *7 (N.D. Ga. May 21, 2018).
Indeed, several courts have recognized the necessity of emergency relief to prevent the severe, irreparable harm that COVID-19 poses to medically vulnerable individuals—such as Petitioners—in the immigration detention setting. See, e.g., Castillo, 2020 U.S. Dist. LEXIS 54425, at *13 (granting motion for temporary restraining order despite no confirmed cases yet at detention center itself, because “[t]he Government, here, cannot say, with any degree of certainty, that no one — staff or detainee — at Adelanto has not been, or will not be, infected with the coronavirus. The science is well established — infected, asymptomatic carriers of the coronavirus are highly contagious.”); Temporary Restraining Order and Order to Show Cause at 10-11, Fraihat v. Wolf (M.D. Pa. March 30, 2020) (“[The Government] cannot be deliberately indifferent to the potential exposure of civil detainees to a serious, communicable disease on the ground that the complaining detainee shows no serious current symptoms, or ignore a condition of confinement that is more than very likely to cause a serious illness.”); Thakker, 2020 U.S. Dist. LEXIS 59459, at *21 (court found TRO necessary to protect high-risk individuals from “catastrophic results” that could ensue from ICE’s inability to protect petitioners from contraction of COVID-19); Coronel v. Decker, 2020 U.S. Dist. LEXIS 53954, at *7-8 (S.D.N.Y. Mar. 27, 2020) (finding a satisfactory
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showing of imminent, irreparable harm in the absence of a TRO where petitioners faced “a risk of severe, irreparable harm if they contract COVID-19” because of their underlying medical conditions); Basank v. Decker, 2020 U.S. Dist. LEXIS 53191 (S.D.N.Y. Mar. 26, 2020) (“The risk that [p]etitioners will face a severe, and quite possibly fatal, infection if they remain in immigration detention constitutes irreparable harm.”); Malam, 2020 WL 1672662 at *11 (“By the time a case is confirmed, it will almost certainly be too late to protect Petitioner’s constitutional rights.”); Hope v. Doll, Case No. 1:20-cv-00562-JEJ at 7 (M.D. Pa. Apr. 7, 2020), ECF No. 11 (quoting Thakker); c.f. Sacal Micha v. Longoria, 2020 WL 1518861 *3 n. 3 (S.D. Tex. Mar. 27, 2020) (stating that the petitioner “need not await an actual injury (or illness, in this case) before bringing suit”).
IV. THERE IS NO CHANGE IN CONDITIONS THAT RESPONDENTS COULD
MAKE THAT WOULD REMEDY DEFENDANTS’ DUE PROCESS VIOLATION There are no steps ICE can take, short of release, to alleviate the risk of serious harm or death to Petitioners. As John Sandweg, the former Acting Director of ICE and former Acting General Counsel of DHS, has indicated, “ICE detention centers are extremely susceptible to outbreaks of infectious diseases,” and “[t]he design of these facilities requires inmates to remain in close contact with one another—the opposite of the social distancing now recommended for stopping the spread of the lethal coronavirus.” Op. Br. Ex. 4 ¶ 5. The U.S. Government itself, through Attorney General William Barr, has recognized the grave risk posed to vulnerable inmates in confinement. In a memorandum to the Director of the Bureau of Prisons dated April 3, 2020, A.G. Barr stated, “[w]e have to move with dispatch in using home confinement, where appropriate, to move vulnerable inmates out of” facilities affected by COVID-19.” See Memo. To Director of Bureau of Prisons (“Barr Memo”), available at https://www.politico.com/f/?id=00000171-4255-
d6b1-a3f1-c6d51b810000, at 1. A.G. Barr further made a finding of emergency conditions under
the CARES Act in order to “expand the cohort of inmates who can be considered for home 10

Case 7:20-cv-00062-CDL-MSH Document 9 Filed 04/08/20 Page 12 of 15
release.” Id. In doing so, he explicitly directed that the review of individuals for release “include all at-risk inmates—not just those who were previously eligible for transfer.” Id. at 2.
ICE cannot dramatically expand its infrastructure overnight to make space for social distancing. Cf. Op. Br. Ex. 1, ¶ 20e; Op. Br. Ex. 4, ¶ 5. DHS has issued guidance to isolate, quarantine, and cohort (segregate as a group from others in the facility) to attempt to mitigate spread, yet these measures will only make matters worse. Op. Br. Ex. 1, ¶ 22 (describing mental health risks and increased physical contact in isolation); Op. Br. Ex. 2, ¶ 20 (“Isolation of symptomatic individuals within detention settings similarly will not stop transmission before symptom onset.”); Op. Br. Ex. 3 , ¶ 8 (describing medical isolation as an “unacceptable and potentially deadly form of quarantine”). Additionally, the memorandum from A.G. Barr further recognized that the “extensive precautions” taken by BOP “have not been perfectly successful,” and “therefore direct[ed the BOP] to immediately review all inmates who have COVID-19 risk factors” for home release. Barr Memo, at 2. This order of immediate review for home release acknowledges the inability to properly protect at-risk individuals in confinement.
Petitioners’ continued detention also subjects all other detained individuals and staff at Stewart and Irwin to an increased risk of illness or death. See Op. Br. Ex. 1, ¶¶ 12, 20a, 25; Op. Br. Ex. 4, ¶ 7; Op. Br. Ex. 3, ¶¶ 19, 21. Other courts have agreed. See, e.g., Memorandum and Order at 24, Thakker, No. 1:20-cv-00480-JEJ (stating that ICE’s facilities were “plainly not equipped” to protect petitioners from a potentially fatal exposure to COVID-19 and that failure to urgently release petitioners would be an “unconscionable and possibly barbaric result”). This threat can be mitigated in any ICE detention facility only through release of detainees, which would reduce the total number of detained individuals, thereby permitting greater social distancing and
11

Case 7:20-cv-00062-CDL-MSH Document 9 Filed 04/08/20 Page 13 of 15
decreasing the staff’s workload. See Op. Br. Ex. 4 ¶ 9; Op. Br. Ex. 1, ¶¶ 17, 24-27; Op. Br. Ex. 3, ¶ 22.
The necessity of release is particularly acute here, as Stewart and Irwin are geographically isolated from appropriate levels of medical care to treat COVID-19. Op. Br. Ex. 3, ¶¶ 12-14. An outbreak of COVID-19 at Stewart or Irwin would likely overwhelm the local health infrastructure in the surrounding communities, and the time it will take to transport infected individuals to other hospitals could make the difference between life and death. Op. Br. Ex. 3, ¶¶ 14-16 (explaining impact of a detention center outbreak on regional hospitals that serve large swaths of South Georgia). The closest hospitals to these facilities that are equipped to manage serious cases of COVID-19 serve many counties that are already overwhelmed with COVID-19 cases or will quickly become so if there are outbreaks in these facilities. Op. Br. Ex. 3, ¶ 15 (citing predictions that all Georgia hospital resources will be in use by April 22, 2020). Phoebe Putney Memorial Hospital in Albany—a town only 53 miles from Stewart—has filled three ICUs to capacity with COVID-19 patients. Compl. ¶ 80. If particularly vulnerable detained individuals like Petitioners fall critically ill from COVID-19, their need for intensive medical care would even further strain local hospitals that are already stretched to capacity. Compl. ¶¶ 90-97; Op. Br. Ex. 1, ¶ 25; Op. Br. Ex. 2, ¶ 5 (fatality rates increase as hospitals become overburdened); Op. Br. Ex. 3, ¶¶14-15.
For the foregoing reasons, Petitioners are highly likely to contract COVID-19 if they remain in ICE detention, where their sole defenses against the risk of a coronavirus infection— social distancing and scrupulous hygiene—are simply impossible. The added lack of access to adequate medical care in the area surrounding Stewart and Irwin Detention Centers renders the risk of serious injury or death to these Petitioners exponentially higher if they are forced to remain
12

Case 7:20-cv-00062-CDL-MSH Document 9 Filed 04/08/20 Page 14 of 15

in detention. Release is the sole remedy that can effectively protect Petitioners against the grave and imminent threat that COVID-19 poses to their health.

V. IN SIMILAR CASES, COURTS ACROSS THE COUNTRY HAVE ISSUED THE
RELIEF PETITIONERS REQUEST HERE
Please see the attached case chart for information about relief ordered in similar cases

around the country.

VI. CONCLUSION
For the foregoing reasons and those articulated in Petitioners’ Memorandum in Support of

Motion for Temporary Restraining Order (ECF No. 5-1), Petitioners’ motion for temporary

restraining order should be granted.

Dated: April 8, 2020

Respectfully submitted,

SOUTHERN POVERTY LAW CENTER

ASIAN AMERICANS ADVANCING JUSTICEATLANTA

By: /s/ Gracie Willis Gracie Willis (GA Bar #851021) Rebecca Cassler (GA Bar #487886) Lorilei Williams* (NY Bar #5302617) 150 E. Ponce de Leon Ave., Ste. 340 Decatur, GA 30030 Tel: (404) 521-6700 Fax: (404) 221-5857
mailto:gracie.willis@splcenter.org
rebecca.cassler@splcenter.org
Paul R. Chavez* (FL Bar #1021395) Victoria Mesa-Estrada*(FL Bar #076569) 2 S. Biscayne Blvd., Ste. 3200 Miami, FL 33101 Tel: (786) 347-2056 paul.chavez@splcenter.org victoria.mesa@splcenter.org
Melissa Crow* (DC Bar #453487) 1101 17th Street, NW, Ste. 705 Washington, DC 20036

By: /s/ Hillary Li Hillary Li (GA Bar #898375) Phi Nguyen (Ga Bar #578019) 5680 Oakbrook Pkwy, Ste. 148 Norcross, GA 30093 Tel: (404) 585-8466 Fax: (404) 890-5690 hli@advancingjustice-atlanta.org pnguyen@advancingjustice-atlanta.org
KILPATRICK TOWNSEND & STOCKTON LLP By: /s/ Tayah Woodward Tayah Woodward (GA Bar #312548)
Tamara Serwer Caldas* (GA Bar #617053) Kathryn E. Isted* (GA Bar #908030) Amanda Brouillette* (GA Bar #880528) 1100 Peachtree St., NE, Ste. 2800 Atlanta, GA 30309 Tel: (404) 815-6006 Fax: (404) 541-4754
13

Case 7:20-cv-00062-CDL-MSH Document 9 Filed 04/08/20 Page 15 of 15

Tel: (202) 355-4471 Fax: (404) 221-5857 melissa.crow@splcenter.org
*pro hac vice motions forthcoming

twoodward@kilpatricktownsend.com tcaldas@kilpatricktownsend.com kisted@kilpatricktownsend.com abrouillette@kilpatricktownsend.com

14

Case 7:20-cv-00062-CDL-MSH Document 9-1 Filed 04/08/20 Page 1 of 8

ATTACHMENT TO SUPPLEMENTAL MEMORANDUM OF LAW IN SUPPORT OF
MOTION FOR TEMPORARY RESTRAINING ORDER AND EMERGENCY WRIT OF HABEAS CORPUS

Case Hope v. Doll, Case No. 1:20-cv-00562JEJ (M.D. Pa. Apr. 7, 2020), ECF No. 11
Malam v. Adducci, Case No. 2:20-cv10829-JEL-APP (E.D. Mich. Apr. 5, 2020), ECF No. 22

Relief granted?
TRO granted: “TRO shall be granted, and the Respondents shall be directed to immediately release Petitioners today on their own recognizance.” See p.1
TRO granted in part: Petitioner will be subject to the following restrictions: Petitioner is subject to fourteen days of home quarantine; Petitioner must comply with all Michigan Executive Orders; and Petitioner must appear at all hearings pertaining to her removal proceedings.

Discussed appropriateness of habeas to claims? No.
Court explained: “For over 100 years, habeas corpus has been recognized as the vehicle through which noncitizens may challenge the fact of their detention. See Chin Yow v. U.S.¸ 208 U.S. 8, 13 (1908) (“Habeas corpus is the usual remedy for unlawful imprisonment.”) (emphasis added).

Ordered alternative conditions for safer detention? No.
The Court did state, however, “we note that ICE has a plethora of means other than physical detention at their disposal by which they may monitor civil detainees and ensure that they are present at removal proceedings, including remote monitoring and routine check-ins. Physical detention itself will place a burden on community healthcare systems and will needlessly endanger Petitioners, prison employees, and the greater community.” See p.11 No.

-1-

Case 7:20-cv-00062-CDL-MSH Document 9-1 Filed 04/08/20 Page 2 of 8

Court found: “Petitioner may nonetheless bring her claim under 28 U.S.C. § 2241 because she seeks immediate release from confinement as a result of there being no conditions of confinement sufficient to prevent irreparable constitutional injury under the facts of her case.” See p 8

Court found: “Petitioner’s

claim must therefore be

considered as a challenge to

the continued validity of

confinement itself.

Accordingly, Petitioner’s

claim is properly brought

under 28 U.S.C. § 2241, and

the Court has jurisdiction.”

See p.12

Coreas v. Bounds,

TRO denied without prejudice. Court notes that “Petitioners No.

8:20-cv-00780-TDC

are not challenging their

(D. Maryland Apr. 3, “Petitioners may renew the

[conditions of confinement].

2020), ECF No. 57. Motion, without leave of the

Instead, they are seeking

Court, in the event of (1)

release from the facility

evidence that a detainee or staff entirely.” See p.14

member at HCDC or WCDC has

COVID 19; (2) the failure of

Respondents to file a Testing

Certification by Wednesday,

-2-

Case 7:20-cv-00062-CDL-MSH Document 9-1 Filed 04/08/20 Page 3 of 8

April 8, 2020 that HCDC and

WCDC have COVID-19 tests

and will administer a test to any

individual at HCDC or WCDC

with suspected COVID-19

symptoms; (3) the postponement

of a Petitioner’s currently

scheduled immigration hearing;

or (4) other materially changed

circumstances. Any renewed

Motion will be handled on an

extremely expedited basis and

may be decided without a

hearing. Respondents will be

ORDERED to (1) immediately

inform the Court and Petitioners

of any evidence that a detainee

or staff member at HCDC or

WCDC has COVID 19; and (2)

immediately provide to the Court

and Petitioners, upon execution,

the above-described Testing

Certifications as to both HCDC

and

WCDC.”

Perez Cruz v. Barr, TRO granted: Respondents shall No.

No.

Case No. 5:20-cv-

release petitioner, petitioner shall

006680-TJH-KES

not violate laws or use/ possess

(C.D. Cal. Apr. 3,

alcohol or illegal drugs

2020), ECF No. 8;

Singh v. Barr, Case

No. 5:20-cv-00653-

TJH-MAA (C.D. Cal.

-3-

Case 7:20-cv-00062-CDL-MSH Document 9-1 Filed 04/08/20 Page 4 of 8

Apr. 3, 2020) Nguyen v. Marin, Case No. 5:20-cv-000646TJH-AGR (C.D. Cal. Apr. 3, 2020); Martin Munoz v. Wolf, Case No. 20-cv-00625-TJHSHK (C.D. Cal. Apr. 2, 2020), ECF No. 14; Sudney v. Wolf, Case No. 5:20-cv-006260TJH-JC (C.D. Cal. Apr. 2, 2020), ECF No. 12; Arellano v. Wolf, Case No. 5:20cv-00627-TJH-GJS (C.D.Cal. Apr. 2, 2020), ECF No. 35; Robles Rodriguez v. Wolf, 5:20-cv-00627TJH-GJS (C.D. Cal. Apr. 2, 2020), ECF No. 37 Jones et al v. Wolf, 20cv-00361-LJV (W.D. N.Y April 2, 2020)

TRO granted: Respondents shall release Petitioner, Petitioner shall reside and shelter in place at a fixed address, respondents transport petitions to address, petition to not leave address except to obtain medical care, petitioner shall not violate the law or use/ possess alcohol or illegal drugs, ICE has discretion to choose surveillance/ alternatives to detention
TRO granted in part/ denied in part: current conditions of confinement constitute a due process violation; so “the respondents shall submit a detailed plan to the Court by 5:00 p.m. on April 3, 2020, demonstrating how they will provide those petitioners who are vulnerable individuals, as

No.
Court cites to Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir. 2008) to support habeas as a vehicle for challenging detention conditions.

No.
Did not order specific conditions to mitigate risk; acknowledged that respondents might take a number of steps to facilitate social distancing. See p.30-31. In review of the reports ordered by the court, the could held that “housing any vulnerable individuals in dormitorystyle setting is insufficient to remedy

-4-

Case 7:20-cv-00062-CDL-MSH Document 9-1 Filed 04/08/20 Page 5 of 8

Hernandez v. Wolf, 5:20-cv-00617-TJHKS (C.D. Cal. Apr. 1, 2020), ECF No. 17
Thakker v. Doll, No. 1:20-cv-00480-JEJ (M.D. Pa. Mar. 31,

defined by the Centers for Disease Control and Prevention (‘CDC’), with a living situation that facilitates “social distancing.” No later than 9:00 a.m. on April 6, 2020, the respondents shall report to the Court as to whether any or all of the steps outlined in the plan have been taken and, if so, which ones. They also shall identify for which petitioners the measures have been taken and provide a brief explanation why any petitioner does not meet the CDC’s high-risk criteria respondents’ failure to take these steps is a violation of their substantive rights under the Due Process Clause.” TRO granted: Respondents shall release Petitioner by end of the next day, Petitioner shall reside at a fixed address and not leave except to obtain medical care, Petitioner shall no use or possess illegal drugs or otherwise violate the law, ICE may monitor Petitioner upon release at its discretion TRO granted: Respondents shall release Petitions same day on recognizance.

“[W]e note that federal courts, including the Third Circuit, have condoned conditions of

the previously-identified Due Process violations.” ECF No. 54 at 3. It found Respondent’s response about social distancing to be “vague.” Id. The court ordered additional information, including affidavits that the detention center at issue cannot comply with the Court’s orders. A hearing is scheduled for April 9, 2020.
No.

-5-

Case 7:20-cv-00062-CDL-MSH Document 9-1 Filed 04/08/20 Page 6 of 8

2020), ECF No. 47
Fraihat v. Wolf, No. ED CV 20-00590 TJH (KSx) (C.D. Cal. Mar. 30, 2020)
O.M.G. v. Wolf, Case No. 1:20-cv-00786 (D.D.C. Mar. 30, 2020) oral hearing transcript
Sacal Micha v. Longoria, Case No. 1:20-CV-37, 2020 WL 1518861 (S.D. Tex.

TRO granted: Petitioner to be released same day, Respondents to transport him to his sponsor’s house and he shall not leave the residence except to obtain medical care; Petitioner shall not violate the law or use or possess alcohol or illegal drugs, whereabouts may be monitored at ICE’s discretion by ankle monitor or other electronic monitoring. TRO denied without prejudice to refile in a week after government has provided evidence about living conditions.
TRO denied

confinement challenges through habeas. See Aamer v. Obama, 742 F.3d 1023, 1032 (D.C. Cir. 2014); see also Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 242-44 (3d Cir. 2005); see also Ali v. Gibson, 572 F.2d 971, 975 n.8 (3d Cir. 1978).” At 5. Discussed conditions of detention and concluded that release was the proper remedy.
No.
Although a “district court possesses inherent authority to grant bail based on a petition for habeas relief, if

No.
No, but ordered the Judge Gee’s order related to guidelines for children in detention applies to adults in family detention centers; ordered reports by April 6 about capacity, living conditions, and video of the detention centers as well as reports about steps it is taking to release the families. No.

-6-

Case 7:20-cv-00062-CDL-MSH Document 9-1 Filed 04/08/20 Page 7 of 8

March 27, 2020)

doing so is required to protect

the court's ability to consider

the petitioner's claim that has

been properly brought before

it,” see *3, “[a]llegations that

challenge rules, customs, and

procedures affecting

conditions of confinement are

properly brought in civil

rights actions.” See *4

(internal cite omitted). Court

determined that the petition

challenged conditions of

detention and that allegations

about Respondents’ inability

to provide safe conditions did

not contain information

specific to the detention

center in question. See *5-6.

Castillo v. Barr, Case TRO granted: release pending Discussed conditions of

No.

No. 5:20-cv-00605- further order of the court.

detention and concluded that

TJH-AFM, 2020 WL

release was the proper

1502864 (C.D. Cal.

remedy.

March 27, 2020)

Coronel v. Decker,

TRO granted: Petitioners to be Cites to Mapp v. Reno, 241 No.

Case No. 1:20-cv-

released on reasonable

F.3d 221 (2d Cir. 2001) for

02472-AJN, 2020 WL conditions (ordered parties to authority to release. Re:

1487274 (S.D.N.Y. meet and confer about conditions conditions states, “the

Mar. 27, 2020)

the same day)

carceral setting in which they

are detained means that

preventative strategies like

social

distancing are difficult to

-7-

Case 7:20-cv-00062-CDL-MSH Document 9-1 Filed 04/08/20 Page 8 of 8

implement, thus creating a

‘significantly higher” risk for

spread of infectious diseases

like COVID-19” and

“Petitioners’ medical needs

remain unmet.” See *4.

Moreover, although “ICE has

taken some steps,” “’[n]one of

these steps are adequate to

mitigate the transmission of

the virus when there’s already

documented community-

based

transmission.’” See *5.

Basank v. Decker,

TRO granted: Petitioners

Court cites to Roba v. United No.

Case No. 1:20-cv-

released on recognizance

States, 604 F.2d 215, 218–19

02518-AT, 2020 WL immediately and respondents (2d Cir. 1979) (habeas

1481503 (S.D.N.Y. restrained from re-arresting them appropriate vehicle for

Mar. 26, 2020)

during pendency of proceedings. conditions that pose threat to

wellbeing). See *4

Dawson v. Asher, Case TRO denied

Court states that nothing in No.

No. 2:20-cv-00409-

the record suggests that a

JLR-MAT, 2020 WL

change in conditions would

1304557 (W.D. Wash.

not remedy the alleged

Mar. 19, 2020)

violation. See *2.

-8-

 
 Case 7:20-cv-00062-CDL-MSH Document 14 Filed 04/10/20 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION

A.S.M., et al.,

*

Petitioners,

*

vs.

*

CASE NO. 7:20-CV-62 (CDL)

WARDEN MICHAEL DONAHUE, et al., *

Respondents.

*

O R D E R Petitioners are detainees at the Stewart Detention Center (“Stewart”) and Irwin County Detention Center (“Irwin”) either awaiting deportation from the United States pursuant to a final order of removal or awaiting resolution of their claim not to be removed. They seek emergency preliminary equitable relief temporarily releasing them from custody. They allege that continued detention at Stewart and Irwin exposes them to the substantial risk of infection with the COVID-19 virus, which given their underlying health conditions seriously endangers their health and safety. They maintain that these conditions violate their constitutional right to substantive due process under the Fifth Amendment and their right to be free from cruel and unusual punishment under the Eighth Amendment. Petitioners’ pending motion seeks a temporary restraining order, which the Court converts to a motion for preliminary

1

Case 7:20-cv-00062-CDL-MSH Document 14 Filed 04/10/20 Page 2 of 5
injunction now that Defendants have responded to it. See Levine v. Comcoa Ltd., 70 F.3d 1191, 1193 (11th Cir. 1995). The standard for the two is the same. To obtain such preliminary injunctive relief, Petitioners must establish the following: (1) that they have a substantial likelihood of succeeding on the merits; (2) that they face an imminent and substantial threat of irreparable harm unless relief is granted; (3) that the threatened injury to them outweighs the harm the relief may cause defendants; and (4) the relief is not against the public interest. Levi Strauss & Co. v. Sunrise Int’l Trading Inc., 51 F.3d 982, 985 (11th Cir. 1995).
Before the Court decides whether Petitioners have satisfied the requirements for preliminary injunctive relief, it must determine whether it has jurisdiction to decide the matter. Petitioners maintain that because they seek a writ of habeas corpus releasing them from custody the Court has jurisdiction pursuant to 28 U.S.C. § 2241. Alternatively, they argue that the Court has jurisdiction under 28 U.S.C. § 1331 to determine their implied cause of action for equitable relief to remedy constitutional violations. Although the Eleventh Circuit has not addressed the issue in a published opinion, an unpublished opinion in this Circuit has concluded that a petition for a writ of habeas corpus is not the appropriate mechanism for contesting a prisoner’s conditions of confinement. See Vaz v. Skinner, 634 F. App’x 778, 781 (11th Cir. 2015) (per curiam) (finding § 2241 is “not the
2

Case 7:20-cv-00062-CDL-MSH Document 14 Filed 04/10/20 Page 3 of 5
appropriate vehicle for . . . a claim challeng[ing] the conditions of confinement”). The circuits that have squarely addressed the issue are split on how they resolve it. See Wilborn v. Mansukhani, 795 F. App’x 157, 162-64 (4th Cir. 2019) (per curiam) (describing circuit split). The Court is persuaded that the Eleventh Circuit would likely follow the unpublished decision of its fellow colleagues who have decided the issue consistent with a majority of the other circuits. Accordingly, the Court finds that a writ of habeas corpus is not the appropriate mechanism for seeking the relief Petitioners request. And the Court may not exercise jurisdiction pursuant to 28 U.S.C. § 2241. The Court has considered Petitioners’ argument that an exception should be made to the general principle that writs of habeas corpus cannot be used to remedy conditions of confinement claims when release from detention is the only meaningful remedy for the constitutional violation. The Court agrees that the general principle eschewing habeas relief as a means for remedying condition of confinement constitutional violations rests upon the assumption that eliminating the contested confinement conditions is possible without releasing the detainee from detention. And if the present record supported Petitioners’ contention that they face substantial risk of serious physical harm and/or death from unconstitutional conditions that cannot be modified to reasonably eliminate those risks, the Court may find Petitioners’ argument
3

Case 7:20-cv-00062-CDL-MSH Document 14 Filed 04/10/20 Page 4 of 5
for habeas relief persuasive. But based upon the present record, the Court does not find that the only way to remedy Petitioners’ alleged constitutional violations is to release them from custody. Therefore, even if this narrow exception to the “no habeas for constitutional confinement claims” was recognized in this circuit, it does not apply here.
Petitioners have a stronger argument for jurisdiction pursuant to 28 U.S.C. § 1331 arising from their implied cause of action for equitable relief to remedy constitutional violations. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 404 (1971) (Harlan, J., concurring) (“[There is a] presumed availability of federal equitable relief against threatened invasions of constitutional interests.”). The remedy for this type of claim, however, is modification of the conditions of confinement to eliminate the constitutional violation. Release from custody is not a remedy for this type of claim. See 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. . . . [R]elief of an Eighth Amendment violation does not include release from confinement.”). Because the only remedy Petitioners seek in their presently pending motion for emergency
4

Case 7:20-cv-00062-CDL-MSH Document 14 Filed 04/10/20 Page 5 of 5
preliminary equitable relief is release from detention, this claim does not support granting that relief.
Based on the foregoing, Petitioners’ motion for emergency preliminary injunctive relief is denied. The Court emphasizes the narrow scope of today’s ruling. Based upon the present record, Petitioners are not entitled to release from custody in the form of preliminary injunctive relief because: (1) the Court has no jurisdiction to decide Petitioners’ writ of habeas corpus claim that is based upon allegedly unconstitutional conditions of confinement, and (2) release from custody is not an appropriate remedy for Petitioners’ implied equitable relief cause of action to remedy constitutional violations. Petitioners may amend their motion to seek remedies other than release from detention.
IT IS SO ORDERED, this 10th day of April, 2020. S/Clay D. Land CLAY D. LAND CHIEF U.S. DISTRICT COURT JUDGE MIDDLE DISTRICT OF GEORGIA
5

 
 Case 7:20-cv-00062-CDL-MSH Document 94 Filed 06/03/20 Page 1 of 32

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION

A.S.M., et al.,

*

Petitioners,

*

vs.
WARDEN, Stewart County Detention Center, et al.,
Respondents.

*

CASE NO. 7:20-CV-62 (CDL)

*

*

*

O R D E R The Court presently has pending before it Petitioners’ motion

for preliminary injunctive relief (ECF Nos. 28 & 70). Petitioners

are immigration detainees at the Stewart Detention Center

(“Stewart”) and the Irwin County Detention Center (“Irwin”), which

are operated by private contractors under the auspices of the U.S.

Immigration and Customs Enforcement (“ICE”). Petitioners claim

that their continued detention at these facilities under current

conditions violates their constitutional rights and that they must

be released or, in the alternative, Respondents must be ordered to

institute measures that reasonably protect them from the risk of

infection with the coronavirus. For the reasons explained in the

remainder of this Order, Petitioners’ motion is denied.

1

Case 7:20-cv-00062-CDL-MSH Document 94 Filed 06/03/20 Page 2 of 32
BACKGROUND I. The COVID-19 Pandemic
In early 2020, the general public became aware of an outbreak of a virus in Wuhan, China that has been designated in the scientific community as SARS-CoV-2 but is often referred to as “novel coronavirus” or the shorthand “coronavirus.” This virus can cause the disease known as “COVID-19.” The virus is generally believed to be spread by the transmission of body fluids through the respiratory tract, typically from a sneeze or cough. But it can also survive on certain surfaces and be contracted through human contact with the contaminated surface and subsequent contact with the face in a manner that allows it to enter the respiratory tract through the nose or mouth. If the virus produces COVID-19, the symptoms may include coughing, malaise, fatigue, fever, and respiratory distress, and it may cause death, particularly in persons with underlying medical conditions that make them vulnerable to respiratory distress.
The spread of the virus has risen to the level of a global pandemic. In order to stave off further spread, national, state and local governments have declared national and local emergencies and encouraged (and in some cases ordered) that citizens remain in their homes, that businesses be closed, and that traffic from other countries into the United States be restricted. The United States economy has essentially shut down for the last sixty days with
2

Case 7:20-cv-00062-CDL-MSH Document 94 Filed 06/03/20 Page 3 of 32

many people losing their jobs. Unprecedented financial resources

have been made available by the United States Congress through

loans, direct payments to taxpayers, and other financial stimuli.

The federal and state judiciaries have been forced to conduct

proceedings remotely in order to minimize person-to-person

contact. Over 107,000 persons in the United States have lost their

lives with an estimated 1.85 million having become sick from the

disease. With no vaccine presently available, the primary method

of prevention includes an emphasis on identification of those who

may be infected with the virus, social distancing, wearing masks

in public, and aggressive hand hygiene. Increased vigilance is

vital for those at high risk because of compromised immune and

respiratory systems and other severe underlying health conditions.

II. Response by ICE, Stewart, and Irwin The coronavirus presents a particularly daunting challenge

for prisons and detention centers where large numbers of detainees

live in close proximity to each other. The Centers for Disease

Control and Prevention (“CDC”) has made recommendations for

reducing the risk of virus transmission in these types of

facilities. See Isted Decl. Ex. 19, Interim Guidance on Management

of Coronavirus Disease 2019 (COVID-19) in Correctional and

Detention Facilities (Mar. 23, 2020), ECF No. 65-7 [“CDC

Guidance”].

These recommendations address operational

preparedness, prevention, and management. Id. at 5. ICE attempts

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to follow these recommendations. Nevertheless, detainees in its facilities are not immune from infection. Like other victims of COVID-19, some detainees in ICE facilities have contracted the coronavirus, developed COVID-19, and subsequently died. As of May 26, 2020, twenty-two detainees at Stewart and seven detainees at Irwin have tested positive for COVID-19. Fourth Washburn Decl. ¶ 22 (May 27, 2020), ECF No. 79 [“Washburn Decl.”]; Musante Decl. ¶ 19, ECF No. 76.
Petitioners maintain that the CDC Guidance is not being followed at Stewart and Irwin. They contend that this failure to follow the Guidance places them at great risk of being infected with coronavirus and developing serious health complications from COVID-19, including permanent injury and death. They ask the Court to rescue them, preferably by releasing them from detention. In the alternative, they seek court oversight of Stewart and Irwin to ensure that the CDC Guidance is followed. The Court will briefly summarize some of the measures taken at Stewart and Irwin to contain the spread of coronavirus in these facilities.1
1 The Court acknowledges that Petitioners have presented some evidence from themselves and other detainees disputing the claims of the administrations at Stewart and Irwin regarding measures being taken at the two facilities to ensure compliance with CDC Guidance. While the Court does not doubt that 100% compliance is not being achieved, the Court finds that Petitioners have not carried their burden of showing a lack of substantial compliance.
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A. Procedures in Place at Stewart As of May 26, 2020, Stewart has a population of 1,158 detainees, meaning the facility is operating at a reduced 57% capacity. Washburn Decl. ¶ 21. Stewart has resumed transferring, removing, and releasing detainees. But detainees arriving at Stewart are “subjected to symptom screening and temperature check before being admitted into the intake area.” Id. ¶ 182. At Stewart, “[f]ollowing the booking process, detainees are isolated and housed in a dedicated housing pod for new intakes, where they remain in cohort quarantine status for a 7-14 day period.” Id. ¶ 183. If a detainee in the cohort displays symptoms of COVID-19 or tests positive for it, the cohort’s release date is extended fourteen days. Id. ¶ 187. Stewart provides detainees access to sanitation supplies including disinfectants, hand sanitizer, and soap in every unit at the facility. Id. ¶¶ 117, 119, 125-26; Murray Expert Report 6, ECF No. 75-1 (noting detainees have access to hand sanitizer dispensers throughout the facility). Stewart also checks sanitation supplies daily and reorders them as needed. Washburn Decl. ¶¶ 113-114. Extra disinfection is performed on high touch areas in Stewart, and porters clean communal restrooms and showers throughout the day. Id. ¶¶ 132, 134. On May 4, 2020, Stewart received a floor-to-ceiling sanitization in all areas except food and medication storage areas. Id. ¶ 142.
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Stewart posts educational materials about COVID-19 throughout its facility in multiple languages. Id. ¶ 68; see also Murray Expert Report 7. And it hosts town hall meetings with bilingual staff members to discuss the subject. Washburn Decl. ¶¶ 69-73.
As of April 10, 2020, Stewart staff and detainees have been required to wear masks except in showers, bunks, or while eating. Id. ¶ 150. Stewart distributes replacement masks to detainees weekly and masks may be obtained upon request as needed. Id. ¶ 151. Stewart reviews surveillance video to confirm employee compliance with personal protective equipment (“PPE”) requirements, and staff have begun issuing disciplinary reports to detainees who refuse to wear masks. Id. ¶¶ 153-54.
Stewart suspended in-person visitation to the facility except for legal visitation. Id. ¶ 75. Staff, contractors, and visitors who enter Stewart are screened before entering and their body temperature is taken. Id. ¶ 76. Since April 10, 2020, individuals who enter Stewart must wear a mask. Id. ¶¶ 85, 87.
On March 31, 2020, sixty-seven detainees were moved into cohort housing areas that were designed to be protective housing for high-risk medically vulnerable detainees. Id. ¶¶ 160-61. If a detainee in the general population tests positive for COVID-19, he remains in the medical unit until he has been symptom-free for seventy-two hours. Id. ¶ 168. When possible, the original housing pod of the detainee who tests positive for COVID-19 or is
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symptomatic of COVID-19 is placed on a fourteen-day cohort/quarantine status. Id. ¶ 175.
Stewart has instructed staff to maintain six feet of physical distance from detainees or other staff where possible. Id. ¶ 89. Detainee movement has also been restricted significantly to reduce COVID-19 exposure in hallways. Id. ¶¶ 90, 110. When non-cohorted detainees use mail services, commissary, and pill call, they are transported in groups of fewer than ten detainees and red tape has been placed on the ground to indicate that they should stand six feet apart in line. Id. ¶ 92. The medical unit and waiting room have also been designed to promote social distancing. Id. ¶¶ 9496. Religious services and contact sports during recreation time have been suspended. Id. ¶¶ 103-04. And, “detainees assigned to bunk-beds have been instructed to lay in a ‘crisscross’ or ‘headto-toe’ fashion, with one detainee’s head at one end of the bunk, and the other detainee[’]s head at the other end of the bunk, to create more distance should a detainee sneeze or cough.” Id. ¶ 109. “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.” Id.
B. Procedures in Place at Irwin As of May 20, 2020, Irwin is operating at a reduced 53% capacity with only 503 ICE detainees. Third Paulk Decl. ¶ 4, ECF
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No. 78 [“Paulk Decl.”]. New detainees are screened at intake at

Irwin and wear PPE during transport. Id. ¶ 21. Any new detainee

who is symptomatic of COVID-19 is immediately referred to medical

personnel. Id. Transferred detainees are placed into protective

cohort housing for fourteen days. Id. ¶ 22. Detainees in cohort

status are only transferred for necessary medical care, lack of

quarantine space, or security concerns. Id. ¶ 58.

If a detainee reports COVID-19 symptoms, medical staff assess

the individual. Id. ¶ 55. And if medical staff find that symptoms

do exist, the detainee is tested for COVID-19 and placed in medical

isolation. Id. That individual’s housing unit is then placed in

cohort status for at least fourteen days. Id.

Irwin provides free cleaning products to housing units. Id.

¶ 48; Murray Expert Report 6 (noting that Irwin provides alcohol-

based sanitizer in community areas). All detainees have been

provided with two cloth face masks, and additional masks are

available for replacement. Paulk Decl. ¶ 50. Detainees are

encouraged to wear face masks in community areas.

Id.

“Recreational areas and the chow hall are thoroughly sanitized

between uses employing a CDC recommended cleaning agent or one of

similar efficacy, as are common use items, such as telephones and

[video telecommunication] devices.” Id. ¶ 46. “Open housing

unit showers are sanitized and pressure-washed daily, and showers

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in closed-cell housing units are sprayed as well.” Id. Irwin staff members must wear PPE, including masks and gloves. Id. ¶ 51.
Irwin staff have instructed multiple housing units on how to properly wash hands, maintain social distancing, and be aware of COVID-19-related issues. Id. ¶ 33. Irwin has also posted signage in multiple languages throughout the facility to educate staff and detainees on COVID-19. Id. ¶¶ 33, 47; Murray Expert Report 7.
All non-professional visits at Irwin have been suspended, and professional visits are only permitted in non-contact visitation rooms or via Skype. Paulk Decl. ¶¶ 8, 15-16, 20. Professionals are required to wear masks during visits. Id. ¶ 16. And all entrants, including Irwin staff, are thoroughly screened before entering the facility through body temperature checks and COVID19 questionnaires. Id. ¶¶ 9, 23.
Irwin officials have restricted the number of detainees who can eat at tables together in chow hall and staggered meals, recreation time, and other group activities to encourage social distancing. Id. ¶¶ 35-36, 38. They have also posted signage regarding social distancing. Id. ¶ 37. And they have “assign[ed] sleeping arrangements so detainees can sleep on alternate levels of adjacent bunks where possible, head-to-foot, to prevent the spread of COVID-19.” Id. ¶ 40.
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C. Custody Re-Evaluations at Stewart and Irwin As part of its overall management of its detainee population in light of COVID-19, “ICE has reviewed its detained ‘at risk’ population . . . to determine if detention remains appropriate, considering the detainee’s health, public safety and mandatory detention requirements.” Moten Decl. ¶ 33, ECF No. 77; Musante Decl. ¶ 26. For example, ICE released Petitioner A.S.M. pursuant to this re-evaluation on April 17, 2020. Moten Decl. ¶ 163. In addition, Respondents considered all remaining Petitioners, except one, for release pursuant to the preliminary injunction issued in the Central District of California case, Fraihat v. U.S. Immigration & Customs Enforcement, No. EDCV 19-1546 JGB (SHKx), 2020 WL 1932570 (C.D. Cal. Apr. 20, 2020). See id. ¶¶ 62, 78, 130, 145; Musante Decl. ¶¶ 36, 57, 82, 103, 122, 135. Respondents declined to release Petitioners during this review for a variety of individualized reasons, including the respective danger they pose to the community and the high likelihood they will flee. Id.
DISCUSSION To obtain preliminary injunctive relief, Petitioners must establish the following: (1) that they have a substantial likelihood of succeeding on the merits; (2) that they face an imminent and substantial threat of irreparable harm unless relief is granted; (3) that the threatened injury to them outweighs the harm the relief may cause respondents; and (4) that the relief is
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not against the public interest. Levi Strauss & Co. v. Sunrise Int’l Trading Inc., 51 F.3d 982, 985 (11th Cir. 1995).
Preliminarily, the Court finds, as it has found before, that it does not have jurisdiction to consider Petitioners’ habeas corpus remedy and that Petitioners are not otherwise entitled to release from confinement. Release from detention is not available as a remedy for unconstitutional conditions of confinement claims. See A.S.M. v. Donahue, No. 7:20-CV-62 (CDL), 2020 WL 1847158, at *1-*2 (M.D. Ga. Apr. 10, 2020); Vaz v. Skinner, 634 F. App’x 778, 781 (11th Cir. 2015) (per curiam) (finding a writ of habeas corpus is “not the appropriate vehicle for . . . a claim challeng[ing] the conditions of confinement”); 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. . . . [R]elief of an Eighth Amendment violation does not include release from confinement.”). Even if an exception to that rule exists where the unconstitutional conditions cannot be remedied in some other way, the Court finds that, based on the present record, release from confinement is not the only way to remedy the alleged unconstitutional conditions of confinement here. Petitioners essentially concede this fact by suggesting that if Respondents followed the CDC Guidance, the risk
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of infection would be substantially reduced. Accordingly, Petitioners are not entitled to release from detention even if the current conditions violate their constitutional rights.
Regarding Petitioners’ alternative request for declaratory or injunctive relief, in order to show a substantial likelihood of success on the merits, Petitioners must point to a constitutional violation. They allege three separate Fifth Amendment violations. The first two are closely connected. Petitioners claim that the current conditions of confinement amount to unconstitutional punishment of civil detainees and deliberate indifference to the health and safety of detainees in violation of the Fifth Amendment. Petitioners’ third claim, which they describe as an Accardi claim, alleges that Respondents’ failure to comply with the CDC Guidance violates their Fifth Amendment right to due process. The Court addresses each claim in turn. I. Unconstitutional Punishment
Conditions of confinement violate the Fifth Amendment Due Process Clause when they “amount to punishment of the detainee.” Bell v. Wolfish, 441 U.S. 520, 535 (1979).2 “[W]hether a condition of . . . detention amounts to punishment turns on whether the condition is imposed for the purpose of punishment or whether it is incident to some legitimate government purpose.” Jacoby v.
2 For purposes of this Order, the Court assumes without deciding that the Fifth Amendment impermissible punishment standard would apply to immigration detainees’ conditions of confinement claims.
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Baldwin Cty., 835 F.3d 1338, 1345 (11th Cir. 2016) (quoting Magluta v. Samples, 375 F.3d 1269, 1273 (11th Cir. 2004)). Petitioners can show punishment either through an express intent to punish or courts “‘may infer that the purpose of the governmental action is punishment’ if the ‘restriction or condition is not reasonably related to a legitimate goal—if it is arbitrary or purposeless.’” Id. (quoting Bell, 441 U.S. at 539). When conducting this analysis, the Court first “must ask whether any ‘legitimate goal’ was served by the [facility’s] conditions.” Id. Next, the Court “must ask whether the conditions are ‘reasonably related’ to that goal.” Id.
No evidence exists in the present record suggesting any “express intent” to punish Petitioners. And it cannot be reasonably disputed that Respondents have a legitimate interest in detaining aliens to ensure that they appear for removal and for public safety purposes. 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.”); Jennings v. Rodriguez, 138 S. Ct. 830, 836 (2018) (“Detention during [immigration] proceedings gives immigration officials time to determine an alien’s status without
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running the risk of the alien’s either absconding or engaging in criminal activity before a final decision can be made.”).3
Petitioners argue, however, that their continued detention in the current conditions is not reasonably related to the government’s interest because of the risk that they will contract the coronavirus in detention when alternatives to detention are reasonably available. The Court rejects this argument. Detention always carries with it the risk of communicable disease outbreak given the close communal living spaces in such facilities. Based upon the present record, the Court finds that, although the coronavirus pandemic is a particularly daunting challenge, Respondents have taken extensive and reasonable measures to reduce the risk of coronavirus spread at Stewart and Irwin. Petitioners’ continued detention there is necessary and certainly does not cross the line from civil detention to impermissible punishment. For these reasons, their detention does not constitute an impermissible punishment in violation of the Fifth Amendment. II. Deliberate Indifference
Petitioners’ second claim asserts that they are being denied the level of care required under the Eighth Amendment’s standard
3 Petitioners claim that Respondents have openly admitted to an illegitimate purpose in detention—general deterrence—based on comments in a press release by the Acting Director of ICE. Even if these comments are construed as evidence of one illegitimate motive, they do not negate all of the other undisputed legitimate interests in detention.
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prohibiting cruel and unusual punishment.4 This standard “has two components: one objective and the other subjective.” Swain v. Junior, 958 F.3d 1081, 1088 (11th Cir. 2020). “First, to satisfy the ‘objective component,’ the [detainee] must show ‘an objectively intolerable risk of harm.’” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 846, (1994)). “He must show that the challenged conditions were ‘extreme’ and presented an ‘“unreasonable risk of serious damage to his future health” or safety.’” Id. (quoting Chandler v. Crosby, 379 F.3d 1278, 1289 (11th Cir. 2004)). It is doubtful that Petitioners have shown a substantial likelihood that they can satisfy this objective prong. While COVID-19 certainly presents a risk of serious harm to persons who are detained in any prison or detention center, the Court cannot find from the present record that this risk is objectively unreasonable at Stewart or Irwin in light of the measures that have been implemented there. But even if Petitioners could show a substantial likelihood of satisfying this objective prong, they clearly have failed to satisfy the subjective element of this claim.
“[T]o satisfy the ‘subjective component,’ the [detainee] must show that the . . . official acted with deliberate indifference.”
4 The Fifth Amendment requires facilities to provide certain detainees a level of care that not only meets the impermissible punishment standard but also meets the standard applied to Eighth Amendment claims. See Hamm v. DeKalb Cty., 774 F.2d 1567, 1574 (11th Cir. 1985).
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Id. at 1088-89 (quoting Chandler, 379 F.3d at 1289). An official “acts with deliberate indifference when he ‘knows of and disregards an excessive risk to inmate health or safety.’” Id. at 1089 (quoting Farmer, 511 U.S. at 837). An “official may escape liability for known risks ‘if [he] responded reasonably to the risk, even if the harm ultimately was not averted.’” Id. (quoting Chandler, 379 F.3d at 1290). “Deliberate indifference requires the defendant to have a subjective ‘state of mind more blameworthy than negligence,’ . . . closer to criminal recklessness.” Id. (quoting Farmer, 511 U.S. at 835).
Here, Petitioners have not pointed to sufficient evidence of Respondents’ deliberate indifference. The Eleventh Circuit’s recent COVID-19 conditions of confinement decision in Swain v. Junior is instructive. Concluding that the inmates in Swain likely had not shown deliberate indifference, the Eleventh Circuit found: (1) an increase in COVID-19 infections is not proof of deliberate indifference; (2) the measures that the defendants were taking (including increased screening, providing protective equipment, adopting social distancing when possible, quarantining symptomatic inmates, and enhancing cleaning procedures) demonstrated they were taking the risk of COVID-19 seriously; (3) although it was impossible for defendants to implement social distancing measures effectively in all situations, the district court cited no evidence to establish that the defendants subjectively believed that the
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measures they were taking were inadequate; (4) although the social distancing policies were not uniformly enforced, the district court made no finding that defendants ignored or approved of the lapses in enforcement; and (5) “the inability to take a positive action [like social distancing] likely does not constitute ‘a state of mind more blameworthy than negligence.’” Id. at 1089 (quoting Farmer, 511 U.S. at 835). Based upon these findings, the Court concluded that the district judge abused her discretion when she granted preliminary injunctive relief.
The circumstances described in the Court of Appeals’ Swain opinion are remarkably similar to those existing at Stewart and Irwin. Respondents have taken extensive measures to prevent the spread of coronavirus, and the Court finds that they have substantially complied with the CDC’s recommendations. Even if Petitioners can point to isolated violations of the CDC Guidance and even if that Guidance is the general standard of care, such breaches do not support a constitutional violation. See Steele v. Shah, 87 F.3d 1266, 1269 (11th Cir. 1996) (finding that for there to be a constitutional violation, there must be more than a breach of the applicable standard of care; there must be deliberate indifference which requires a finding of subjective awareness of the risk accompanied by a conscious disregard of it). The present record does not support a finding that Petitioners have a
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substantial likelihood of succeeding on their deliberate indifference claim. III. Accardi Claim
Petitioners maintain that they are entitled to the relief they seek even if they cannot prove that the conditions of confinement amount to punishment or that Respondents have acted with deliberate indifference to their health and safety. They contend that if they can prove that Respondents have failed to follow CDC Guidance, then that failure violates their due process rights, and that due process violation can be redressed by altering their conditions of confinement, either by releasing them from detention or modifying the confinement conditions. Petitioners rely upon United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954) for this proposition. Therefore, an analysis of that decision is the appropriate place to start.
The Supreme Court’s decision in Accardi is not remarkable. But the extension of it by some courts has created confusion and provided ammunition for creative lawyers. Lifting isolated phrases from the various opinions is unhelpful. The fundamental first step is to completely understand what the Supreme Court decided, which, as explained in the following discussion, is a far cry from Petitioners’ claim in reliance upon it.
At its core, Accardi involved procedural due process. The Supreme Court held that when an agency adopts regulations pursuant
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to proper statutory delegation that specify the procedures that shall be followed in matters before the agency, the agency must follow its own procedures. 347 U.S. at 268. An examination of the facts helps place Accardi in the proper context and demonstrates how it is distinguishable from the claim asserted here. Edward Shaughnessy, who was born in Italy and entered the United States by train from Canada without immigration inspection or a visa, applied to the Board of Immigration Appeals for the suspension of his deportation under the Immigration Act. Prior to the Board’s decision on his application, the Attorney General of the United States released a confidential list of “unsavory characters” whom he believed should be deported. That list was publicly disclosed and circulated to the members of the Board. Mr. Shaughnessy was on that list. Mr. Shaughnessy claimed that the release of this “unsavory characters” list amounted to a prejudgment of his right to have his deportation suspended by the Board and made his right to fair consideration of his application by the Board impossible. Id. at 264. When his application was denied, he filed a petition for habeas corpus. As stated by the Supreme Court, the “crucial question [was] whether the alleged conduct of the Attorney General deprived petitioner of any of the rights guaranteed him by the statute or by the regulations issued pursuant thereto.” Id. at 265.
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The Supreme Court began its analysis by noting that the regulations in question had been properly promulgated pursuant to statutory delegation and were published in the Code of Federal Regulations. Id. at 265 n.6. It then stated the unremarkable principle that “[r]egulations with the force and effect of law supplement the bare bones of [the statute].” Id. at 265. The Supreme Court confirmed that the applicable regulations “prescribe the procedure to be followed in processing an alien’s application for suspension of deportation.” Id. Thus, Congress statutorily delegated authority to the appropriate executive agency to promulgate regulations that would set out the procedure for such proceedings. And that agency did so. Those regulations mandated that the Board of Immigration Appeals shall exercise its own judgment when considering appeals such as Mr. Shaughnessy’s. Therefore, the regulations prevented the Attorney General from sidestepping the Board when making determinations on applications for suspension of deportation. As interpreted by the Supreme Court, Mr. Shaughnessy’s petition for habeas corpus “charge[d] the Attorney General with precisely what the regulations forb[ade] him to do: dictating the Board’s decision.” Id. at 267. When the Attorney General publicly disclosed the list of unsavory persons that he planned to deport and circulated the list to the Board, he, as a practical matter, deprived Mr. Shaughnessy of a fair hearing in which the Board was required by the regulations to
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exercise its own independent discretion. Id. The Court concluded that if Mr. Shaughnessy proved his allegations, he could establish that he was denied the “due process required by the regulations in such proceedings.” Id. at 268. Accordingly, the denial of his petition for habeas corpus was reversed.
The principle announced in Accardi has been applied in this Circuit. See, e.g., Washington v. Comm’r of Soc. Sec., 906 F.3d 1353, 1361 (11th Cir. 2018) (finding the Social Security Administration is bound in administrative appeals by its own interpretive rulings regarding how administrative law judges must weigh certain evidence when those interpretive rulings are made pursuant to authority provided by properly promulgated regulations and when failure to enforce the regulation would adversely affect substantive rights of individuals); United States v. Teers, 591 F. App’x 824, 840 (11th Cir. 2014) (suggesting, although finding it unnecessary to decide, that an Accardi due process violation requires that the person “reasonably relied on the agency regulations promulgated for his guidance or benefit and suffered substantially because of their violation by the agency”); Jean v. Nelson, 727 F.2d 957, 976, 978-979 (11th Cir. 1984) (finding that the court had authority to review whether the immigration officials involved in denying petitioner’s request for parole acted within the scope of their delegated powers and, in making this determination, the court may consider whether the decision to deny
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parole was consistent with the statutory grant of discretion by Congress, the regulations promulgated by the agencies involved, and the policies which had been established by the President and Attorney General).
Relying upon snippets extracted from distinguishable judicial opinions, Petitioners seek to unmoor Accardi from its analytical anchor—due process. Petitioners make no contention that some “process” was due or denied them. Instead, they seek to convert a constitutional conditions of confinement claim into a negligence-type action, using operating policies for maintaining safe and healthy facilities as the standard of care. Petitioners have pointed the Court to no circuit court opinion holding that an executive branch agency’s operational policy relating to conditions of confinement for its detainees is the type of regulation contemplated by Accardi to support a due process violation. Recognizing its duty to apply the law and not make it up, the Court declines Petitioners’ invitation to extend Accardi, particularly given that it would have so little company in doing so.5
5 The Court acknowledges that one district judge in this circuit has recognized an Accardi claim under similar circumstances. See Gayle v. Meade, No. 20-21553-CIV, 2020 WL 2086482 (S.D. Fla. Apr. 30, 2020), order clarified, No. 20-21553-CIV, 2020 WL 2203576 (S.D. Fla. May 2, 2020). For the reasons explained in today’s order, the Court finds that judge’s reasoning unpersuasive, as have other judges in this circuit. See Gayle v. Meade, No. 20-21553-CIV, 2020 WL 1949737, at *28 (S.D. Fla. Apr. 22, 2020), report and recommendation adopted in part, No. 20-21553-CIV, 2020 WL 2086482 (S.D. Fla. Apr. 30, 2020), order clarified, No. 20-21553-CIV,
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The contrast between Accardi and the present case is striking. Unlike the formally promulgated and properly delegated regulation in Accardi, the CDC Guidance that ICE voluntarily agreed to try to follow here was never promulgated as a regulation pursuant to the Administrative Procedures Act. Furthermore, Petitioners have not explained the source of statutory authority that would even permit such agency rule-making delegation under these circumstances. Even if an Accardi-type claim may theoretically exist absent a formally adopted regulation, the voluntary decision to follow nonbinding “guidance” from another agency of the Executive Branch certainly does not for Accardi purposes bind the agency that chooses to follow the guidance.
The Court recognizes that ICE, Stewart, and Irwin vaguely indicated an intent to be bound by CDC guidelines. As Petitioners note, Respondents operate Stewart pursuant to ICE’s 2011 Performance-Based National Detention Standards (“2011 Standards”), as amended in 2016, which contemplate that “[CDC] guidelines for the prevention and control of infectious and communicable diseases shall be followed” and “[f]acilities shall comply with current and future plans implements by federal, state or local authorities
2020 WL 2203576 (S.D. Fla. May 2, 2020) (magistrate judge’s finding that Petitioners were not likely to succeed on their Accardi claim given the substantial amount of flexibility in the CDC Guidance); Matos v. Lopez Vega, No. 20-CIV-60784-RAR, 2020 WL 2298775, at *12 (S.D. Fla. May 6, 2020) (disagreeing with the conclusion in Gayle and finding Respondents did not violate the CDC Guidance by failing to space bunks six-feet apart given the non-mandatory language in the Guidance).
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addressing specific public health issues including communicable disease reporting requirements.” Isted Decl. Ex. 44, 2011 Standards §§ 4.3(2)(10), 4.3(V)(C)(1), ECF No. 65-12, at 7, 1011. And Respondents operate Irwin pursuant to ICE’s 2008 Performance-Based National Detention Standards (“2008 Standards”), and those standards also specify that “[f]acilities shall comply with current and future plans implemented by federal, state or local authorities addressing specific public health issues including communicable disease reporting requirements.” Isted Decl. Ex. 43, 2008 Standards § 4.22(V)(C)(1), ECF No. 65-11 at 7. ICE also released agency guidance on April 10, 2020 stating that dedicated and non-dedicated ICE detention facilities must comply with the CDC Guidance. Isted Decl. Ex. 24, ICE Enforcement and Removal Operations: COVID-19 Pandemic Response Requirements 5, ECF No. 65-8. But the mere voluntary decision to try to operate its detention facilities consistent with the best available practices, as evidenced by the CDC Guidance, does not subject Respondents to an Accardi conditions of confinement claim.
Abundant evidence exists that the CDC did not intend to bind facilities by its Guidance. For example, the Guidance leaves facilities significant discretion in choosing how to adapt the recommendations to their needs. The front page of the Guidance states in bold: “The guidance may need to be adapted based on individual facilities’ physical space, staffing, population,
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operations, and other resources and conditions.” CDC Guidance 1. The next page provides, “[a]dministrators and agencies should adapt these guiding principles to the specific needs of their facility.” Id. at 2. And it explains that “[t]he majority of the guidance . . . is designed to be applied to any correction or detention facility, either as written or with modifications based on a facility’s individual structure and resources.” Id. at 5 (emphasis added). The Guidance is also full of qualifiers and non-mandatory language. See, e.g., id. at 11 (“If space allows,” facilities should “reassign bunks . . . ideally 6 feet.” (emphasis added)); id. at 14 (“If possible, consider . . . .” (emphasis added)); id. at 3 (“Ideally . . . .” (emphasis added)). Additionally, the Guidance was implemented early in a pandemic when information about best practices was continually evolving and, therefore, binding facilities to strictly follow the best practices as they were known at that time would have been unwise. And, finally, the Guidance was not promulgated pursuant to a formal notice and comment rulemaking process. These circumstances suggest that the CDC likely did not intend to bind facilities through its Guidance. These guidelines are simply suggested best practices based on the best available evidence known at the time of their release. Their adoption by ICE does not make them anything more than that. ICE simply decided that it would follow these recommendations in its facilities. They became part of their
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operational guidelines. It is absurd to suggest that any time a detention facility fails to follow an internal operating procedure that a detainee can file a lawsuit in federal court. “Where . . . regulations . . . simply function as internal operating instructions, . . . they are deemed to be solely for inhouse agency use and are not judicially enforceable against the agency.” First Ala. Bank N.A. v. United States, 981 F.2d 1226, 1230 n.5 (11th Cir. 1993); see Wilderness Soc. v. Norton, 434 F.3d 584, 595-96 (D.C. Cir. 2006) (finding an agency’s “management policies” constituted non-binding internal guidance by looking at the language of the policy, the fact that the policy reserved agency discretion to change or reject the policy, and the fact that the policy did not go through notice and comment rulemaking).
The adopted CDC Guidance is simply not the type of mandatory “regulation” contemplated in Accardi. Respondents’ decision to try to follow the CDC Guidance does not somehow convert operational guidelines into procedural guarantees with due process implications. To hold otherwise would establish a standard for detention centers and prisons to meet that is far more rigorous than well accepted constitutional requirements. Every federal detention facility and prison in the country would be subjected to an Accardi claim any time they failed to follow an operational procedure. It seems clear that the Justices who decided Accardi would have never contemplated this consequence of their straight-
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forward attempt to make sure Mr. Shaughnessy had the right to have his application heard independently by the Board of Immigration Appeals as the properly promulgated procedural regulations required. Moreover, it seems even clearer that neither the CDC nor ICE ever dreamed that by adopting these best practices, they were establishing a guarantee that these practices were going to be followed, and if they were not, they would be deemed to have violated a detainee’s right to due process.
Petitioners’ arguments fail for perhaps an even more fundamental reason. They cannot explain how a failure to follow a policy designed to reduce transmission of an infectious disease implicates procedural due process. Accardi involved a procedure that the agency failed to follow which resulted in the denial of a fair hearing. Other Accardi type cases in this Circuit address situations in which an agency failed to follow certain formally adopted procedures that are designed for the benefit of persons relying upon them. The Guidance here has nothing to do with this type of procedural process. These substantive guidelines suggest how a detention facility can be maintained in a safe and healthy manner. While the CDC guidelines are certainly relevant to Petitioners’ constitutional condition of confinement claims, they have no relevance to whether Petitioners received procedural due process. Quite simply, Petitioners’ claim is not authorized under Accardi or its progeny.
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Even if an imaginative judge could distort Accardi to theoretically apply here, Petitioners have not shown based on the present record a substantial likelihood that the CDC Guidance has actually been “violated.” As previously explained, the CDC Guidance reiterates numerous times that facilities will need to adapt the principles in the Guidance to meet their specific needs. CDC Guidance 1, 2, 5. Thus, as their name confirms, these principles are guidance and not mandated directives.
Consistent with the flexible nature of the Guidance, most of the provisions that Petitioners claim Respondents are violating are phrased as recommendations, not requirements. For example, Petitioners complain that the bunk beds are not six feet apart and that detainees cannot maintain six feet of separation in dining areas, but the CDC Guidance does not mandate social distancing at all times in all situations. The Guidelines provide that “[i]f space allows,” facilities should “reassign bunks to provide more space between individuals, ideally 6 feet or more in all directions.” Id. at 11 (emphasis added). And the Guidance recognizes that social distancing “[s]trategies 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.” Id. As another example, Petitioners complain that Respondents are only quarantining new intakes for five to six days, but the provision of the CDC Guidance Respondents are accused
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of violating says “[i]f possible, consider quarantining all new intakes for 14 days before they enter the facility’s general population.” Id. at 14 (emphasis added). Again, the Guidance does not mandate such action. And, as a final example, Petitioners complain about Respondents’ use of cohorting to medically isolate detainees, but the CDC Guidance does not prohibit such conduct. It only states that “[i]deally, cases should be isolated individually, and close contacts should be quarantined individually. However, some . . . detention centers do not have enough individual cells to do so and must consider cohorting as an alternative.” Id. at 3 (emphasis added).
Petitioners also argue that Respondents continue to transfer detainees in violation of CDC Guidance. The CDC Guidance advises facilities to “[r]estrict transfers of . . . 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.” Id. at 9. Both Irwin and Stewart concede that they have resumed transferring and removing detainees under limited circumstances. Contrary to Petitioners’ interpretation of the applicable Guidance, Respondents may consistent with that Guidance adapt provisions based on Stewart and Irwin’s “physical space, staffing, population, operations, and other resources and conditions.” Id. at 1. By resuming transfers of detainees but incorporating
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heightened screening and health safety precautions in the transfer process, Respondents reasonably adapted the CDC’s Guidance on transfers.6
In summary, creative lawyering cannot reduce the heavy burden that a detainee must carry when asserting a conditions of confinement claim. A detainee must establish that the conditions amount to impermissible punishment or that Respondents have demonstrated a deliberate indifference to the detainee’s health

6 The Court also rejects Petitioners’ claim based on Stewart and Irwin’s

alleged failure to conduct custody re-evaluations for Petitioners

despite ICE’s Guidance. See U.S. Immigration & Customs Enforcement,

Updated Guidance: COVID-19 Detained Docket Review 2 (Apr. 4, 2020),

https://www.ice.gov/doclib/coronavirus/attk.pdf

(directing

field

officer directors and deputy field officer directors to identify all

detainees who have certain health conditions, ensure the conditions are

still present, and “review [those] case[s] to determine whether continued

detention remains appropriate in light of the COVID-19 pandemic”); U.S.

Immigration & Customs Enforcement, ERO COVID-19 Pandemic Response

Requirements (Version 1.0, April 10, 2020), at 14,

https://www.ice.gov/doclib/coronavirus/eroCOVID19responseReqsCleanFaci

lities.pdf. Petitioners do not believe that they were identified for

custody re-evaluation or received meaningful individualized custody

reviews because they did not receive medical evaluations and were not

given the opportunity to provide supplemental medical records concerning

their risk factors. They ask the Court to order Stewart and Irwin to

conduct meaningful custody re-evaluations for them. To the extent

Petitioners claim that the ICE Guidance constitutes a regulation that

Stewart and Irwin were required under Accardi to follow, the Court notes

that they have not provided any non-speculative evidence that Respondents

failed to conduct these evaluations for detainees who met the Guidance’s

qualifications and nothing in the ICE Guidance indicates that Stewart

and Irwin were required to provide detainees new medical evaluations or

opportunities to supplement medical records when conducting these

custody reviews. Therefore, they are unlikely to succeed on Accardi

claims pursuant to the ICE Guidance. And, they are unlikely to succeed

on any argument that Respondents’ failure to conduct a custody re-

evaluation for them otherwise violates the Constitution because, as

previously discussed, Stewart and Irwin’s continued detention of

individuals does not constitute impermissible punishment or deliberate

indifference.

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and safety. While substantial deviations from an accepted standard of care based upon violations of operational policies may be considered in determining whether this burden has been carried, the mere violation of such non-binding policies does not give rise to a separate stand-alone Accardi claim.
CONCLUSION The Court is sensitive to Petitioners’ predicament. Their legal status has placed them in an unenviable position. But the Court has no authority to act as their caretaker, unless their legal rights have been violated. Based on the present record, the Court cannot make that finding. Petitioners have failed to demonstrate a substantial likelihood that they will be able to prove that they are being subjected to unconstitutional conditions of confinement that can only be remedied by their release from detention. Therefore, the Court does not have jurisdiction over their claims for immediate habeas corpus relief, and they are not otherwise entitled to preliminary injunctive relief that requires their release from detention. Furthermore, because Petitioners have also failed to demonstrate a substantial likelihood that they will be able to prove that they are being subjected to impermissible punishment, that Respondents have been deliberately indifferent to their safety and health, or that they have a viable Accardi claim, they are not entitled to any other injunctive or
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declaratory relief.

Accordingly, Petitioners’ motion for

preliminary injunction is denied in its entirety.7

IT IS SO ORDERED, this 3rd day of June, 2020.

S/Clay D. Land CLAY D. LAND CHIEF U.S. DISTRICT COURT JUDGE MIDDLE DISTRICT OF GEORGIA

7 The Court finds it unnecessary to address the other requirements for obtaining preliminary injunctive relief in light of the Court’s conclusion that Petitioners have failed to demonstrate a substantial likelihood of succeeding on the merits of their claims.
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 Case 7:20-cv-00062-CDL-MSH Document 109 Filed 07/23/20 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION

A.S.M., et al.,

*

Petitioners,

*

vs.
WARDEN, Stewart Detention Center, et al.,
Respondents.

*

CASE NO. 7:20-CV-62 (CDL)

*

*

*

O R D E R

Petitioners are immigration detainees at the Stewart

Detention Center (“Stewart”) and Irwin County Detention Center

(“Irwin”). They allege that the conditions at Stewart and Irwin

expose them to a substantial risk of infection from the COVID-19

virus and seek equitable relief either releasing them from custody

or requiring the facilities to correct the allegedly

unconstitutional conditions. On June 3, 2020, the Court denied

Petitioners’ motion for a preliminary injunction. Order (June 3,

2020), ECF No. 94. Petitioners now move for reconsideration of

that order based on newly discovered evidence. For the following

reasons, the Court denies Petitioners’ motion (ECF No. 102).

DISCUSSION

Petitioners seek relief from the Court’s order under either

Federal Rule of Civil Procedure 60(b)(2), which allows courts to

grant relief from a final order, or Local Rule 7.6, which arguably

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does the same for interlocutory orders. Fed. R. Civ. P. 60(b); M.D. Ga. R. 7.6. Both rules permit relief from a previous order when the movant presents “newly discovered evidence that, with reasonable diligence, could not have been discovered” before. Fed. R. Civ. P. 60(b)(2); see also Rhodes v. MacDonald, 670 F. Supp. 2d 1363, 1378 (M.D. Ga. 2009) (noting that Local Rule 7.6 permits reconsideration if the movant demonstrates that “new evidence has been discovered”). For reconsideration, Petitioners must show that: (1) they discovered the new evidence after the order was entered; (2) they exercised due diligence in discovering the evidence; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material; and (5) the evidence is likely to produce a new result. See Waddell v. Hendry Cty. Sheriff’s Office, 329 F.3d 1300, 1309 (11th Cir. 2003) (discussing Rule 60(b)(2) requirements).
Petitioners point to the following newly discovered evidence in support of their motion: (1) Petitioner Michael Robinson’s recent COVID-19 diagnosis; and (2) Petitioners’ allegation that COVID-19 is spreading quickly through Irwin. The Court finds that this newly discovered evidence is cumulative, immaterial, and unlikely to produce a new result. Therefore, reconsideration is not appropriate under either Rule 60(b)(2) or Local Rule 7.6.
In its previous order denying preliminary injunctive relief, the Court concluded that (1) there was insufficient evidence
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demonstrating Respondents were deliberately indifferent to the risk of a COVID-19 outbreak in Stewart and Irwin, (2) Petitioners’ continued detention did not constitute impermissible punishment, and (3) Petitioners’ Accardi claim failed. The record at that time included evidence indicating that COVID-19 infections were increasing at both Stewart and Irwin and detainees were becoming infected. Nevertheless, the Court found that “an increase in COVID-19 infections is not proof of deliberate indifference,” “[d]etention always carries with it the risk of communicable disease outbreak,” and “although the coronavirus pandemic is a particularly daunting challenge, Respondents have taken extensive and reasonable measures to reduce the risk of coronavirus spread at Stewart and Irwin.” Order 14, 16 (June 3, 2020). Petitioners’ “newly discovered evidence” does not change the Court’s previous findings or rationale in a material way. Petitioners’ “new” evidence still does not support their contention that Respondents have been deliberately indifferent or have subjected Petitioners to impermissible punishment; nor does it bolster their Accardi claim. It also does not convince the Court that habeas corpus relief is otherwise appropriate. Because this evidence does not change the Court’s previous findings and conclusions in a material way, it does not authorize reconsideration of the Court’s denial
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Case 7:20-cv-00062-CDL-MSH Document 109 Filed 07/23/20 Page 4 of 4 of Petitioners’ motion for preliminary injunctive relief. Accordingly, Petitioners’ motion for reconsideration is denied.1
IT IS SO ORDERED, this 23rd day of July, 2020. S/Clay D. Land CLAY D. LAND U.S. DISTRICT COURT JUDGE MIDDLE DISTRICT OF GEORGIA
1 Respondents also argue that Petitioners’ motion for reconsideration is untimely under Local Rule 7.6. But because the Court denies the motion on other grounds, it need not decide this issue.
4