U.S. District Court SOUTHERN DISTRICT OF TEXAS (Laredo) CIVIL DOCKET FOR CASE #: 5:20-cv-00054

HABEAS

Olvera Amezcua et al v. Garcia et al Assigned to: Judge Marina Garcia Marmolejo Referred to: Magistrate Judge John A Kazen Related Case: 1:20-cv-00076 Cause: 8:1105(a) Aliens: Habeas Corpus to Release INS Det

Date Filed: 04/15/2020 Jury Demand: None Nature of Suit: 463 Habeas Corpus Alien Detainee Jurisdiction: U.S. Government Defendant

Petitioner
Raul Garza Marroquin TERMINATED: 05/13/2020

represented by Carlos Moctezuma Garcia Garcia & Garcia Attorneys at Law P.O. Box 4545 McAllen, TX 78502 956-630-3889 Fax: 956-630-3899 Email: cgarcia@garciagarcialaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew George Udelsman Texas Civil Rights Project 1017 W Hackberry Ave Alamo, TX 78516 512-474-5073 Email: andy@texascivilrightsproject.org ATTORNEY TO BE NOTICED

Carolyn O'Connor Texas Civil Rigts Project (TCRP) 1017 W. Hackberry Ave. Alamo, TX 78516 609-240-1928 Email: carrie@texascivilrightsproject.org PRO HAC VICE ATTORNEY TO BE NOTICED

Petitioner Rafael Olvera Amezcua

Daniel Ali Hatoum Mexican American Legal Defense and Educational Fund (MALDEF) 110 Broadway Suite 300 San Antonio, TX 78205 210-224-5476 Email: dhatoum@maldef.org ATTORNEY TO BE NOTICED
Efren Carlos Olivares South Texas Civil Rights Project 1017 W. Hackberry Ave. Alamo, TX 78516 956-212-4963 Fax: 956-787-6348 Email: efren.olivares@splcenter.org ATTORNEY TO BE NOTICED
Fatima Menendez Mexican American Legal Defense and Educational Fund (MALDEF) 110 Broadway Suite 300 San Antonio, TX 78205 210-224-5476 Email: fmenendez@maldef.org ATTORNEY TO BE NOTICED
Nina Perales MALDEF 110 Broadway Ste 300 San Antonio, TX 78205 210-224-5476 Fax: 210-224-5382 Email: nperales@maldef.org ATTORNEY TO BE NOTICED
represented by Javier N Maldonado Attorney at Law 8620 N. New Braunfels Ste. 605 San Antonio, TX 78217 210-277-1603

Petitioner Giorge Gonzalez

Fax: 210-587-4001 Email: jmaldonado.law@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carlos Moctezuma Garcia (See above for address) ATTORNEY TO BE NOTICED
Daniel Ali Hatoum (See above for address) ATTORNEY TO BE NOTICED
Efren Carlos Olivares (See above for address) ATTORNEY TO BE NOTICED
Fatima Menendez (See above for address) ATTORNEY TO BE NOTICED
Nina Perales (See above for address) ATTORNEY TO BE NOTICED
represented by Carlos Moctezuma Garcia (See above for address) ATTORNEY TO BE NOTICED
Daniel Ali Hatoum (See above for address) ATTORNEY TO BE NOTICED
Efren Carlos Olivares (See above for address) ATTORNEY TO BE NOTICED
Fatima Menendez (See above for address) ATTORNEY TO BE NOTICED
Nina Perales (See above for address) ATTORNEY TO BE NOTICED

V. Respondent Jose Garcia Longoria , Jr.
Respondent Mario Garcia
Respondent

Peter Eammon McGraw TX Rio Grande Legal Aide Inc 316 South Closner Blvd Edinburg, TX 78539 956-393-6230 Email: pmcgraw@trla.org ATTORNEY TO BE NOTICED
represented by Ariel Nicole Wiley US Attorney's Office 1000 Louisiana Street #2300 Houston, TX 77002 713-567-9344 Email: ariel.wiley@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Annalisa L. Cravens United States Attorney's Office 1000 Louisiana Street Suite 2300 Houston, TX 77002 713-567-9489 Fax: 713-718-3303 Email: Annalisa.Cravens@usdoj.gov ATTORNEY TO BE NOTICED
represented by Ariel Nicole Wiley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Annalisa L. Cravens (See above for address) ATTORNEY TO BE NOTICED

Javier Aleman
Respondent Daniel Bible
Respondent Matthew T. Albence
Respondent Chad Wolf
Respondent United States Immigration and Customs Enforcement

represented by Ariel Nicole Wiley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Annalisa L. Cravens (See above for address) ATTORNEY TO BE NOTICED
represented by Ariel Nicole Wiley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Annalisa L. Cravens (See above for address) ATTORNEY TO BE NOTICED
represented by Ariel Nicole Wiley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Annalisa L. Cravens (See above for address) ATTORNEY TO BE NOTICED
represented by Ariel Nicole Wiley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Annalisa L. Cravens (See above for address) ATTORNEY TO BE NOTICED
represented by Ariel Nicole Wiley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Annalisa L. Cravens (See above for address) ATTORNEY TO BE NOTICED

Date Filed 04/15/2020 04/16/2020 04/16/2020 04/16/2020
04/16/2020 04/16/2020
04/17/2020

# Docket Text

1 PETITION for Writ of Habeas Corpus (Filing fee $ 5 receipt number 0541-24552727) filed by Giorge Gonzalez, Rafael Olvera Amezcua, Raul Garza Marroquin. (Attachments: # 1 Civil Cover Sheet)(McGraw, Peter) (Entered: 04/15/2020)

MOTION for Daniel Hatoum to Appear Pro Hac Vice by Raul

2

Garza Marroquin, Giorge Gonzalez, Rafael Olvera Amezcua, filed.

Motion Docket Date 5/7/2020. (Perales, Nina) (Entered:

04/16/2020)

3 MOTION for Fatima Menendez to Appear Pro Hac Vice by Raul Garza Marroquin, Giorge Gonzalez, Rafael Olvera Amezcua, filed. Motion Docket Date 5/7/2020. (Perales, Nina) (Entered: 04/16/2020)

4 ORDER granting 2 Motion for Daniel Hatoum to Appear Pro Hac Vice. (Signed by Magistrate Judge John A Kazen) Parties notified. (JessicaGRodriguez, 5) (Main Document 4 replaced on 4/30/2020) (JessicaGRodriguez, 5). (Entered: 04/16/2020)

5 ORDER granting 3 Motion for Fatima Menendez to Appear Pro Hac Vice. (Signed by Magistrate Judge John A Kazen) Parties notified. (JessicaGRodriguez, 5) (Main Document 5 replaced on 4/30/2020) (JessicaGRodriguez, 5). (Entered: 04/16/2020)

6 ORDER. Respondents are ORDERED to file an answer or other appropriate responsive pleading no later than April 24, 2020. Petitioners may file a reply by April 27, 2020. (Signed by Judge Marina Garcia Marmolejo) Parties notified.(EricaLopez, 5) (Entered: 04/16/2020)

7 Request for Issuance of Summons as to Matthew T. Albence, Javier Aleman, Daniel Bible, Mario Garcia, Jose Garcia Longoria, Jr, United States Immigration and Customs Enforcement, Chad Wolf, filed. (Attachments: # 1 Continuation, # 2 Continuation, # 3 Continuation, # 4 Continuation, # 5 Continuation, # 6 Continuation)(McGraw, Peter) (Entered: 04/17/2020)

04/20/2020 04/20/2020

8 NOTICE of Appearance by Efren Carlos Olivares on behalf of Raul Garza Marroquin, filed. (Olivares, Efren) (Entered: 04/20/2020)
Summons Issued as to Matthew T. Albence, Javier Aleman, Daniel Bible, Mario Garcia, Jose Garcia Longoria, Jr, United States Immigration and Customs Enforcement, Chad Wolf. Issued summons delivered to plaintiff by First-class mail, filed.(sgonzalez, 5) (Entered: 04/20/2020)

04/20/2020

9 NOTICE of Appearance by Andrew Udelsman on behalf of Raul Garza Marroquin, filed. (Udelsman, Andrew) (Entered: 04/20/2020)

04/21/2020 10

MOTION for Carolyn O'Connor to Appear Pro Hac ViceMotions referred to John A Kazen. by Raul Garza Marroquin, filed. Motion Docket Date 5/12/2020. (Olivares, Efren) (Entered: 04/21/2020)

04/21/2020

11 ORDER granting 10 Motion for Carolyn O'Connor to Appear Pro Hac Vice. (Signed by Magistrate Judge John A Kazen) Parties notified. (JessicaGRodriguez, 5) (Entered: 04/21/2020)

04/22/2020 12

Opposed MOTION for DiscoveryMotions referred to John A Kazen. by Raul Garza Marroquin, Giorge Gonzalez, Rafael Olvera Amezcua, filed. Motion Docket Date 5/13/2020. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Garcia, Carlos) (Entered: 04/22/2020)

04/23/2020 13

Opposed MOTION to Sever Mr. Garza Marroquin and Transfer His Petition to the Brownsville DivisionMotions referred to John A Kazen. by Matthew T. Albence, Javier Aleman, Daniel Bible, Mario Garcia, Jose Garcia Longoria, Jr, United States Immigration and Customs Enforcement, Chad Wolf, filed. Motion Docket Date 5/14/2020. (Attachments: # 1 Affidavit, # 2 Exhibit Notice to Appear, # 3 Proposed Order)(Cravens, Annalisa) (Entered: 04/23/2020)

04/24/2020 14

MOTION to Dismiss 1 Petition for Writ of Habeas Corpus and Response to Gonzalez's and Olvera's Petitions for Immediate Injunctive Relief Motions referred to John A Kazen. by Matthew T. Albence, Javier Aleman, Daniel Bible, Mario Garcia, Jose Garcia Longoria, Jr, United States Immigration and Customs Enforcement, Chad Wolf, filed. Motion Docket Date 5/15/2020. (Attachments:

# 1 Exhibit Exhibit 13 (unsealed), # 2 Exhibit Exhibit 14 (unsealed), # 3 Proposed Order)(Wiley, Ariel) (Entered: 04/24/2020)

04/24/2020
04/24/2020 04/24/2020 04/25/2020 04/27/2020

15 SEALED EXHIBITS 1 through 12 re: 14 MOTION to Dismiss 1 Petition for Writ of Habeas Corpus and Response to Gonzalez's and Olvera's Petitions for Immediate Injunctive Relief by Matthew T. Albence, Javier Aleman, Daniel Bible, Mario Garcia, Jose Garcia Longoria, Jr, United States Immigration and Customs Enforcement, Chad Wolf, filed. (Attachments: # 1 Exhibit Ex. 1 Gonzalez Medical Records, # 2 Exhibit Ex. 2 Gonzalez Letter Dated 4-6-2020, # 3 Exhibit Ex. 3 Gonzalez Immigration Files, # 4 Affidavit Ex. 4 Cerna Declaration, # 5 Affidavit Ex. 5 Aleman Declaration, # 6 Exhibit Ex. 6 Olvera Webb County Medical Records, # 7 Exhibit Ex. 7 Olvera Pearsall Medical Records, # 8 Exhibit Ex. 8 Olvera Immigration Files, # 9 Affidavit Ex. 9 Cerna Declaration II, # 10 Affidavit Ex. 10 Warden Garcia Declaration and Attachments, Part I, # 11 Affidavit Ex. 10 Warden Garcia Declaration Attachments Part II, # 12 Affidavit Ex. 11 Dr. Ivens Declaration, # 13 Affidavit Ex. 12 Huron Declaration) (Wiley, Ariel) (Entered: 04/24/2020)
16 MOTION to Dismiss 1 Petition for Writ of Habeas Corpus and Response to Garza's Petition for Immediate Injunctive Relief Motions referred to John A Kazen. by Matthew T. Albence, Javier Aleman, Daniel Bible, Mario Garcia, Jose Garcia Longoria, Jr, United States Immigration and Customs Enforcement, Chad Wolf, filed. Motion Docket Date 5/15/2020. (Attachments: # 1 Exhibit Exhibit 6 (Unsealed), # 2 Exhibit Exhibit 7 (Unsealed), # 3 Proposed Order)(Wiley, Ariel) (Entered: 04/24/2020)
17 SEALED EXHIBITS 1 through 5 re: 16 MOTION to Dismiss 1 Petition for Writ of Habeas Corpus and Response to Garza's Petition for Immediate Injunctive Relief by Matthew T. Albence, Javier Aleman, Daniel Bible, Mario Garcia, Jose Garcia Longoria, Jr, United States Immigration and Customs Enforcement, Chad Wolf, filed. (Attachments: # 1 Exhibit Ex. 1 Garza A-File, # 2 Exhibit Ex. 2 Garza Criminal Records, # 3 Exhibit Ex. 3 Garza Medical Records, # 4 Affidavit Ex. 4 Dr. Cantu Declaration, # 5 Affidavit Ex. 5 Longoria Declaration) (Wiley, Ariel) (Entered: 04/24/2020)
18 NOTICE of Appearance by Javier N. Maldonado on behalf of Rafael Olvera Amezcua, filed. (Maldonado, Javier) (Entered: 04/25/2020)
19 Unopposed MOTION for Extension of Time TO FILE A RESPONSE TO THE GOVERNMENTS MOTION TO DISMISSMotions referred to John A Kazen. by Raul Garza

Marroquin, Giorge Gonzalez, Rafael Olvera Amezcua, filed. Motion Docket Date 5/18/2020. (Attachments: # 1 Proposed Order)(Perales, Nina) (Entered: 04/27/2020)

04/27/2020

20 ORDER granting 19 Motion for Extension of Time. Petitioners may file a response to Respondents motion to dismiss by May 15, 2020. Respondents may file a reply by May 29, 2020..(Signed by Judge Marina Garcia Marmolejo) Parties notified.(EricaLopez, 5) (Entered: 04/27/2020)

04/27/2020

21 RESPONSE in Opposition to 13 Opposed MOTION to Sever Mr. Garza Marroquin and Transfer His Petition to the Brownsville Division, filed by Raul Garza Marroquin, Giorge Gonzalez, Rafael Olvera Amezcua. (Attachments: # 1 Proposed Order)(Olivares, Efren) (Entered: 04/27/2020)

04/27/2020

22 NOTICE of Supplemental Declaration by Robert L. Cerna by Matthew T. Albence, Javier Aleman, Daniel Bible, Mario Garcia, Jose Garcia Longoria, Jr, United States Immigration and Customs Enforcement, Chad Wolf, filed. (Attachments: # 1 Affidavit Supplemental Declaration by Robert L. Cerna)(Cravens, Annalisa) (Entered: 04/27/2020)

05/05/2020

23 NOTICE of Appearance by Rebecca Sheff on behalf of Giorge Gonzalez, filed. (McGraw, Peter) (Entered: 05/05/2020)

05/13/2020

24 RESPONSE in Opposition to 12 Opposed MOTION for Discovery, filed by Matthew T. Albence, Javier Aleman, Daniel Bible, Mario Garcia, Jose Garcia Longoria, Jr, United States Immigration and Customs Enforcement, Chad Wolf. (Attachments: # 1 Proposed Order)(Wiley, Ariel) (Entered: 05/13/2020)

05/13/2020 25

ORDER granting 13 Motion to Sever. Petitioner Raul Garza Marroquin's case is TRANSFERRED to the Brownsville Division of the Southern District of Texas. Petitioner's Amezcua and Gonzalez's claims remain pending in this Court..(Signed by Judge Marina Garcia Marmolejo) Parties notified.(sgonzalez, 5) (Entered: 05/13/2020)

05/15/2020

26 Unopposed MOTION for Leave to File Excess PagesMotions referred to John A Kazen. by Giorge Gonzalez, Rafael Olvera Amezcua, filed. Motion Docket Date 6/5/2020. (Attachments: # 1 Proposed Order)(McGraw, Peter) (Entered: 05/15/2020)

05/15/2020
05/15/2020 05/17/2020 05/29/2020
06/09/2020 06/23/2020 06/23/2020 06/23/2020

27 RESPONSE in Opposition to 14 MOTION to Dismiss 1 Petition for Writ of Habeas Corpus and Response to Gonzalez's and Olvera's Petitions for Immediate Injunctive Relief, filed by Giorge Gonzalez, Rafael Olvera Amezcua. (Attachments: # 1 Proposed Order)(McGraw, Peter) (Entered: 05/15/2020)
28 SEALED EXHIBITS re: 27 Response in Opposition to Motion, by Giorge Gonzalez, Rafael Olvera Amezcua, filed. (Attachments: # 1 Exhibit B, # 2 Exhibit C, # 3 Exhibit D) (McGraw, Peter) (Attachment 1 replaced on 5/21/2020) (JessicaGRodriguez, 5). (Entered: 05/15/2020)
29 ORDER granting 26 Motion for Leave to File Excess Pages.(Signed by Judge Marina Garcia Marmolejo) Parties notified.(EricaLopez, 5) (Entered: 05/17/2020)
30 REPLY in Support of 14 MOTION to Dismiss 1 Petition for Writ of Habeas Corpus and Response to Gonzalez's and Olvera's Petitions for Immediate Injunctive Relief, filed by Matthew T. Albence, Javier Aleman, Daniel Bible, Mario Garcia, Jose Garcia Longoria, Jr, United States Immigration and Customs Enforcement, Chad Wolf. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Wiley, Ariel) (Entered: 05/29/2020)
31 NOTICE of Supplemental Authority by Matthew T. Albence, Javier Aleman, Daniel Bible, Mario Garcia, Jose Garcia Longoria, Jr, United States Immigration and Customs Enforcement, Chad Wolf, filed. (Attachments: # 1 Exhibit 1)(Wiley, Ariel) (Entered: 06/09/2020)
32 Other EXHIBITS re: 27 Response in Opposition to Motion, by Rafael Olvera Amezcua. Attached documents may be viewed in the Office of the Clerk., filed.(Perales, Nina) (Entered: 06/23/2020)
33 NOTICE of Filing of Corrected Exhibit to Petitioner's Response in Opposition to Respondent's Motion to Dismiss by Rafael Olvera Amezcua, filed. (Perales, Nina) (Entered: 06/23/2020)
34 Unopposed MOTION to Amend Motions referred to John A Kazen. by Rafael Olvera Amezcua, filed. Motion Docket Date 7/14/2020. (Attachments: # 1 Proposed Order)(Perales, Nina) (Entered: 06/23/2020)

06/23/2020 07/08/2020 07/21/2020 07/21/2020 07/24/2020 07/31/2020
08/11/2020 08/13/2020
08/17/2020 12/24/2020

35 ORDER granting 34 Motion to Amend the Case Caption. (Signed by Judge Marina Garcia Marmolejo) Parties notified.(dmorales, 5) (Entered: 06/24/2020)
36 NOTICE of Supplemental Authorities by Matthew T. Albence, Javier Aleman, Daniel Bible, Mario Garcia, Jose Garcia Longoria, Jr, United States Immigration and Customs Enforcement, Chad Wolf, filed. (Wiley, Ariel) (Entered: 07/08/2020)
37 NOTICE of Plaintiff Gonzalez's Duplicative Case Filing in 5:20-cv119 by Matthew T. Albence, Javier Aleman, Daniel Bible, Mario Garcia, Jose Garcia Longoria, Jr, United States Immigration and Customs Enforcement, Chad Wolf, filed. (Cravens, Annalisa) (Entered: 07/21/2020)
38 RESPONSE to 37 Notice (Other), of Duplicative Filing, filed by Giorge Gonzalez. (McGraw, Peter) (Entered: 07/21/2020)
39 NOTICE OF SUPPLEMENTAL AUTHORITY by Rafael Olvera Amezcua, filed. (Perales, Nina) (Entered: 07/24/2020)
40 Opposed MOTION for Temporary Restraining OrderMotions referred to John A Kazen. by Giorge Gonzalez, filed. Motion Docket Date 8/21/2020. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Proposed Order)(McGraw, Peter) (Entered: 07/31/2020)
41 Unopposed MOTION for Leave to File Supplemental ExhibitMotions referred to John A Kazen. by Giorge Gonzalez, filed. Motion Docket Date 9/1/2020. (Attachments: # 1 Exhibit 1, # 2 Proposed Order)(McGraw, Peter) (Entered: 08/11/2020)
42 RESPONSE in Opposition to 40 Opposed MOTION for Temporary Restraining Order, filed by Matthew T. Albence, Javier Aleman, Daniel Bible, Mario Garcia, Jose Garcia Longoria, Jr, United States Immigration and Customs Enforcement, Chad Wolf. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Proposed Order)(Wiley, Ariel) (Entered: 08/13/2020)
43 REPLY to 42 Response in Opposition to Motion, for Temporary Restraining Order and Preliminary Injunction, filed by Giorge Gonzalez. (McGraw, Peter) (Entered: 08/17/2020)
44 STIPULATION of Dismissal by Giorge Gonzalez, filed.(McGraw, Peter) (Entered: 12/24/2020)

02/03/2021

45 NOTICE of Binding Authority by Matthew T. Albence, Javier Aleman, Daniel Bible, Mario Garcia, Jose Garcia Longoria, Jr, United States Immigration and Customs Enforcement, Chad Wolf, filed. (Attachments: # 1 Exhibit 1)(Wiley, Ariel) (Entered: 02/03/2021)

PACER Service Center
Transaction Receipt

PACER Login:
Description:
Billable Pages:

02/04/2021 14:35:03

CRClearinghouse:2563377:0 Client Code: Peach

Docket Report

Search Criteria:

5:20-cv00054

8

Cost:

0.80

 
 Case 5:20-cv-00054 Document 1 Filed on 04/15/20 in TXSD Page 1 of 39

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
LAREDO DIVISION

RAUL GARZA MARROQUIN, RAFAEL

§

OLVERA AMEZCUA, and GIORGE

§

GONZALEZ,

§

§

Petitioners-Plaintiffs,

§

§

v.

§

§

JOSE GARCIA LONGORIA JR., Officer in

§ CIVIL ACTION NO. _________

Charge, Port Isabel Service Processing Center; §

MARIO GARCIA, Warden, Webb County

§ PETITION FOR WRIT OF HABEAS

Detention Center; JAVIER ALEMAN, Warden, § CORPUS PURSUANT TO 28 U.S.C.

Rio Grande Detention Center; DANIEL BIBLE, § § 2241 AND COMPLAINT FOR

Field Office Director, San Antonio Field Office, § DECLARATORY AND INJUNCTIVE

U.S. Immigration and Customs Enforcement; § RELIEF

MATTHEW T. ALBENCE, Acting Director of §

U.S. Immigration and Customs Enforcement; §

CHAD WOLF, Acting Secretary, U.S.

§

Department of Homeland Security; and UNITED §

STATES IMMIGRATION AND CUSTOMS §

ENFORCEMENT,

§

§

Respondents-Defendants. §

PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT This is a petition for a writ of habeas corpus and complaint filed on behalf of PetitionersPlaintiffs Raul Garza Marroquin, Rafael Olvera Amezcua, and Giorge Gonzalez (“Petitioners”). Petitioners are uniquely vulnerable to contracting the novel coronavirus disease (“COVID-19”) while in the physical custody of Respondents-Defendants (“Respondents”) at the Port Isabel Service Processing Center, the Webb County Detention Center, and the Rio Grande Detention Center (“Detention Centers”) in South Texas. By continuing to detain Petitioners in conditions that expose them to an impermissibly high risk of contracting COVID-19, Respondents violate Petitioners’ rights under the Fifth Amendment to the U.S. Constitution. Petitioners also bring a

1

Case 5:20-cv-00054 Document 1 Filed on 04/15/20 in TXSD Page 2 of 39
claim under the Rehabilitation Act of 1973, 29 U.S.C. § 794. Petitioners seek a declaration and injunction to redress Respondents’ unlawful civil detention and to ameliorate all conditions that preclude Petitioners from implementing the only known means of preventing their contraction of COVID-19 including, if necessary, an order requiring their immediate release from detention.
INTRODUCTION 1. On March 13, 2020, Governor Abbott declared a State of Emergency in Texas due to COVID-19, a global pandemic that has infected over 580,000 people in the United States and over 14,000 people in Texas. COVID-19 can have devastating effects on individuals’ physical health. It can cause severe damage to lung tissue, kidney damage, liver damage, sepsis, respiratory failure, acute cardiac injury, heart failure, and death. Over 10% of infected people require hospitalization. COVID-19 has killed over 23,000 people in the United States in the past month, including over 300 Texans. 2. Older individuals, immunocompromised individuals, and people with certain chronic health conditions including diabetes, asthma, heart conditions, and lung disease are at greater risk of contracting severe cases of COVID-19. Many fatalities in the United States due to COVID-19 have been older individuals and individuals with chronic underlying medical conditions. 3. There is no vaccine or cure for COVID-19. The U.S. Centers for Disease Control and Prevention (“CDC”) recommends preventative strategies like social distancing, intensive hand washing, decontamination of surfaces, wearing of masks or face coverings, and isolation of people who are ill as the only known ways to avoid COVID-19.1
1 Centers for Disease Control and Prevention, “How to Protect Yourself,” Mar. 18, 2020, available at: https://www.cdc.gov/coronavirus/2019-ncov/prepare/prevention.html (accessed Apr. 12, 2020).
2

Case 5:20-cv-00054 Document 1 Filed on 04/15/20 in TXSD Page 3 of 39
4. Each Petitioner is at heightened risk of severe illness from COVID-19 due to their age or chronic underlying health conditions. Respondents prevent Petitioners from being able to practice even the most basic precautions while detained. Petitioners urge this Court to enjoin Respondents’ ongoing unlawful detention so that Petitioners can practice the preventative strategies necessary to avoid becoming victims of this historic global pandemic.
CUSTODY 5. Petitioner-Plaintiff Raul Garza Marroquin is detained at the Port Isabel Service Processing Center in the physical and legal custody of the following Respondents: Jose Garcia Longoria Jr., Officer in Charge, Port Isabel Service Processing Center; Daniel Bible, Field Office Director, San Antonio Field Office, U.S. Immigration and Customs Enforcement (“ICE”); Matthew T. Albence, Acting Director of ICE; Chad Wolf, Acting Secretary, U.S. Department of Homeland Security (“DHS”). Petitioner-Plaintiff Raul Garza Marroquin is under the direct control of Respondents and their agents. 6. Petitioner-Plaintiff Rafael Olvera Amezcua is detained at the Webb County Detention Center in the physical and legal custody of the following Respondents: Mario Garcia, Warden, Webb County Detention Center; Daniel Bible, Field Office Director, San Antonio Field Office, ICE; Matthew T. Albence, Acting Director of ICE; Chad Wolf, Acting Secretary, DHS. Petitioner-Plaintiff Rafael Olvera Amezcua is under the direct control of Respondents and their agents. 7. Petitioner-Plaintiff Giorge Gonzalez is detained at the Rio Grande Detention Center in the physical and legal custody of the following Respondents: Javier Aleman Warden, Rio Grande Detention Center; Daniel Bible, Field Office Director, San Antonio Field Office, ICE;
3

Case 5:20-cv-00054 Document 1 Filed on 04/15/20 in TXSD Page 4 of 39
Matthew T. Albence, Acting Director of ICE; Chad Wolf, Acting Secretary, DHS. PetitionerPlaintiff Giorge Gonzalez is under the direct control of Respondents and their agents.
JURISDICTION 8. This case arises under the United States Constitution and the Rehabilitation Act of 1973, 29 U.S.C. § 794(a). 9. The Court has jurisdiction over this habeas petition and complaint pursuant to 28 U.S.C. § 2241 (habeas corpus statute), 28 U.S.C. § 1651 (All Writs Act), 28 U.S.C. § 1331 (federal questions), 28 U.S.C. § 1361 (Mandamus Act), and Article 1, Section 9, clause 2 of the United States Constitution. 10. Pursuant to 28 U.S.C. § 2241, district courts have jurisdiction to hear habeas petitions by noncitizens who challenge the lawfulness of their detention under federal law. Demore v. Kim, 538 U.S. 510, 516–17 (2003); Zadvydas v. Davis, 533 U.S. 678, 687 (2001); Maldonado v. Macias, 150 F. Supp. 3d 788, 794 (W.D. Tex. 2015). 11. The Court has authority to grant declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202, and Fed. R. Civ. P. 57. 12. The United States has waived sovereign immunity for this action for declaratory and injunctive relief against one of its agencies, and that agency’s officers are sued in their official capacities. 5 U.S.C. § 702; 29 U.S.C. § 794.
VENUE 13. Venue in the Southern District of Texas is proper pursuant to 28 U.S.C. § 1391(b), because the Wardens and Officers in Charge of the detention centers where Petitioners are detained reside in this District, Petitioners are currently detained in this District, and a substantial part of the events and omissions giving rise to Petitioners’ claims occurred in this District.
4

Case 5:20-cv-00054 Document 1 Filed on 04/15/20 in TXSD Page 5 of 39
EXHAUSTION OF ADMINISTRATIVE REMEDIES 14. Petitioners have exhausted their administrative remedies to the extent required by law, and their only remedy is by way of this judicial action. 15. There is no statutory obligation for Petitioners to exhaust their administrative remedies prior to filing this habeas petition and complaint, since they are not requesting review of a final order of removal. 8 U.S.C. § 1252(d)(1) (requiring exhaustion of administrative remedies prior to challenging removal order in circuit court). 16. Petitioners have no administrative remedies to exhaust through ICE because no process exists to challenge the unconstitutional conditions of their detention. Even if meaningful administrative remedies were available, Petitioners, as noncitizens challenging the lawfulness of their ongoing immigration detention, are not required to exhaust them under 8 U.S.C. § 2241.
PARTIES 17. Petitioner-Plaintiff RAUL GARZA MARROQUIN is an immigration detainee at the Port Isabel Service Processing Center, more commonly known as the Port Isabel Detention Center (“PIDC”) in Los Fresnos, Texas. He is a 78-year-old lawful permanent resident who has lived in the United States since 1980 and has several serious medical conditions. The U.S. government has never issued a Notice to Appear for Mr. Garza, yet Respondents have held him at PIDC for five weeks while the number of COVID-19 cases grows exponentially in Texas, and one contractor at PIDC has already tested positive for COVID-19. 18. If he contracts COVID-19, Mr. Garza is at high risk of serious injury or death. As there is no vaccine or cure for COVID-19, the CDC recommends self-isolation, staying six feet apart from other people, and following strict hygienic precautions. Mr. Garza cannot employ these precautions while detained at PIDC, where he must eat communally, use shared bathrooms, and
5

Case 5:20-cv-00054 Document 1 Filed on 04/15/20 in TXSD Page 6 of 39
sleep in a communal space with dozens of other people, some of whom are within arm’s reach. Although frequent handwashing is necessary to prevent COVID-19, Respondents and their agents refuse to provide him with regular access to soap, hand sanitizer, or other hygienic materials such as disposable paper towels or tissues. Despite the serious threat to his life and his need for disability accommodations, officials have denied Mr. Garza’s request to be released to his home in Edinburg, Texas, where he could safely self-isolate.
19. Mr. Garza suffers from hypertension, mixed hyperlipidemia, polyosteoarthritis, and pre-diabetes. These conditions substantially limit his major life activities including, but not limited to, functioning of his immune, circulatory, and endocrine systems. Mr. Garza has a record of and is regarded as having such impairments and limitations. He is at high risk for severe illness and death, exacerbated by the imminent risk of exposure to COVID-19 and the lack of precautions at PIDC. Mr. Garza has informed Respondent ICE that he is at higher risk for serious illness from exposure to COVID-19 due to these medical conditions.
20. On March 27, 2020, undersigned counsel for Mr. Garza advised Assistant Field Officer Jose Longoria Jr. of Mr. Garza’s grave health conditions and requested his immediate release. On March 31, 2020, Respondent Longoria Jr. denied Mr. Garza’s request for release without providing a reason. To date, Respondents have not released Mr. Garza.
21. Petitioner-Plaintiff RAFAEL OLVERA AMEZCUA is an immigration detainee at the Webb County Detention Center in Laredo, Texas. He is a 62-year-old applicant for asylum and adjustment to permanent resident status and has lived in the United States since 2014. Mr. Olvera was detained in the South Texas ICE Processing Center in Pearsall, Texas from May 24, 2019 until April 2, 2020 when ICE transferred him to the Webb County Detention Center.
6

Case 5:20-cv-00054 Document 1 Filed on 04/15/20 in TXSD Page 7 of 39
22. Mr. Olvera suffers from multiple medical conditions including but not limited to Type 1 diabetes (insulin dependent), hypertension (abnormally high blood pressure), hyperlipidemia (abnormally high concentration of fats or lipids in the blood), benign prostatic hypertrophy (enlarged prostate), depression, and osteoarthrosis (degenerative joint disease). These medical conditions substantially limit Mr. Olvera’s major life activities including, but not limited to, the functioning of his immune, cardiovascular, circulatory, and endocrine systems. Mr. Olvera has a record of and is regarded as having such impairments and limitations. To prevent his health from deteriorating he must take several medications, avoid eating certain foods, and take insulin. Failure to do any of these could result in fatal repercussions. Mr. Olvera’s medical conditions also require close monitoring of his endocrine system, cardiovascular system, and mental state. Respondents are aware that Mr. Olvera may be at higher risk for serious illness from exposure to COVID-19 due to these medical conditions.
23. Mr. Olvera cannot employ the precautions necessary to avoid contracting COVID19 while detained at the Webb County Detention Center, where he shares a communal eating, restroom and recreation space with other people, some of whom are within arm’s reach. Although frequent handwashing is necessary to prevent COVID-19, Respondents and their agents refuse to provide Mr. Olvera regular access to a sufficient quantity of soap, hand sanitizer, or other hygienic materials such as disposable tissues. Despite the serious threat to his life and his need for disability accommodations, officials have denied Mr. Olvera’s request to be released to his home in San Antonio, Texas, where he could safely self-isolate.
24. ICE is aware of Mr. Olvera’s health conditions because he has been detained by ICE for close to a year. In addition, on October 9, 2019, Mr. Olvera’s attorney sent a letter informing ICE of Mr. Olvera’s underlying medical conditions and stating that Mr. Olvera had not
7

Case 5:20-cv-00054 Document 1 Filed on 04/15/20 in TXSD Page 8 of 39
been receiving the proper medication or dosages. Mr. Olvera’s attorney sent a second letter to ICE on March 20, 2020 describing and documenting Mr. Olvera’s medical conditions. The March 20 letter also requested Mr. Olvera’s release in light of the extraordinary risk Mr. Olvera faces if he contracts COVID-19.
25. Petitioner-Plaintiff GIORGE GONZALEZ is an immigration detainee at the Rio Grande Detention Center in Laredo, Texas. He is 28 years old. Mr. Gonzalez fled persecution and torture based on his political opinion in his home country of Cuba and sought refuge in the United States. He requested asylum at the port of entry in Laredo, Texas on or about July 2, 2019, and has been detained ever since.
26. Giorge Gonzalez has experienced chronic and severe asthma since he was about two years old. This condition substantially limits Mr. Gonzalez’s major life activities including, but not limited to, the functioning of his respiratory system. He has a record of and is regarded as having such an impairment and limitations. Mr. Gonzalez suffers frequent and severe asthma attacks and has been advised by medical professionals that he is particularly vulnerable to contracting airborne viruses as a result of his asthma. Although he has been prescribed and used medication to control his asthma for years, Respondents have deprived Giorge Gonzalez of his medication for months while he has been detained. Mr. Gonzalez has suffered multiple recent asthma attacks at the Rio Grande Detention Center. He is at high risk of contracting a severe case of COVID-19.
27. Giorge Gonzalez has repeatedly informed Respondents and their agents about his chronic and severe asthma since he was first detained in July of 2019. On or about March 25, 2020, Mr. Gonzalez informed Respondents and their agents that he is at higher risk for serious illness from exposure to COVID-19 due to his medical condition, requested to be isolated from other
8

Case 5:20-cv-00054 Document 1 Filed on 04/15/20 in TXSD Page 9 of 39
detainees, and made a written request for treatment and medication to better manage his asthma during the COVID-19 pandemic. As of the date of filing, Respondents have not responded to Mr. Gonzalez’s request.
28. Respondent-Defendant JOSE GARCIA LONGORIA, JR. is sued in his official capacity as the Acting Officer in Charge of the PIDC. He is an employee of DHS. As the Acting Officer in Charge, he is the immediate physical custodian of Mr. Garza.
29. Respondent-Defendant MARIO GARCIA is sued in his official capacity as Warden of the Webb County Detention Center. As the Warden of the Webb County Detention Center, he oversees, directs, and controls the Detention Center. He is the immediate physical custodian of Mr. Olvera.
30. Respondent-Defendant JAVIER ALEMAN is sued in his official capacity as Warden of the Rio Grande Detention Center. As the Warden of the Rio Grande Detention Center, he oversees, directs, and controls the Detention Center. He is the immediate physical custodian of Giorge Gonzalez
31. Respondent-Defendant DANIEL BIBLE is sued in his official capacity as the Field Office Director for the San Antonio ICE office. He oversees all ICE/ERO functions and detainees in the San Antonio area, including detainees at PIDC, the Webb County Detention Center, and the Rio Grande Detention Center. He has legal custody over Petitioners and is authorized to release them.
32. Respondent-Defendant MATTHEW T. ALBENCE is sued in his official capacity as the Acting Director of ICE. In that capacity, he exercises authority over all ICE policies, procedures, and practices relating to ICE enforcement operations and detention facilities. He is responsible for ensuring that all people held in ICE custody are detained in accordance with law.
9

Case 5:20-cv-00054 Document 1 Filed on 04/15/20 in TXSD Page 10 of 39
33. Respondent-Defendant CHAD WOLF is sued in his official capacity as the acting Secretary of DHS. He is responsible for enforcing federal laws concerning border control and immigration. Defendant Wolf has direct authority over ICE, which is responsible for the civil detention of immigrants in the United States.
34. Defendant U.S. Immigration and Customs Enforcement is a component agency of DHS. ICE detains Petitioners at the Detention Centers as part of a program or activity of an Executive agency and pursuant to federal immigration law.
STATEMENT OF FACTS i. COVID-19 is Spreading Quickly and Poses a Grave Risk of Serious Illness or
Death, Especially for Particularly Vulnerable People. 35. COVID-19 is a highly infectious disease caused by a novel coronavirus, officially known as SARS-CoV-2. 36. On March 11, 2020, the World Health Organization declared that the outbreak of COVID-19 had reached pandemic status. 37. COVID-19 is easily transmitted. The numbers of confirmed cases and deaths in the United States continues to grow. At the time of filing, the total number of confirmed cases of COVID-19 in the United States is expected to double every seven days.2 38. All persons in the United States are at some risk of COVID-19 given the increase in community transmission throughout the United States.3
2 Max Roser, Hannah Ritchie, and Esteban Ortiz-Ospina, “Coronavirus Disease (COVID-19) – Statistics and Research,” updated Apr. 14, 2020, available at: https://ourworldindata.org/coronavirus (accessed Apr. 14, 2020). 3 Centers for Disease Control and Prevention, “Public Health Recommendations for Community-Related Exposure,” available at https://www.cdc.gov/coronavirus/2019-ncov/php/public-health-recommendations.html (accessed Apr. 13, 2020).
10

Case 5:20-cv-00054 Document 1 Filed on 04/15/20 in TXSD Page 11 of 39
39. Any adult who contracts the virus may experience life-threatening symptoms and death. The fatality rate is higher in men and increases significantly for people with advanced age and certain pre-existing medical conditions.
40. COVID-19 can severely damage lung tissue, which requires an extensive period of hospitalization and rehabilitation, and in some cases, can cause permanent loss of respiratory capacity.
41. COVID-19 may also target the heart, causing cardiac injury such as myocarditis, or inflammation of the heart muscle. Myocarditis can affect the heart muscle and electrical system, reducing the heart’s ability to pump. This reduction can lead to rapid or abnormal heart rhythms in the short term, and long-term heart failure.
42. People with serious cases of COVID-19 describe painful symptoms, including vomiting, severe diarrhea, relentless shivering, and suffocating shortness of breath. Those infected with COVID-19 may only experience a fever intermittently, however, and fever may not be present at all for some people such as the elderly, immunosuppressed, or those taking certain medications.4
43. COVID-19 may also cause permanent kidney and neurological injury. 44. These complications can manifest at an alarming pace. Individuals can show the first symptoms of COVID-19 infection in as little as two days after exposure, and conditions can seriously deteriorate in five days or sooner. 45. People experiencing no symptoms can still spread COVID-19, making testing or seclusion of only those who are symptomatic an ineffective solution.
4 Centers for Disease Control and Prevention, “Public Health Recommendations for Community-Related Exposure,” available at https://www.cdc.gov/coronavirus/2019-ncov/php/public-health-recommendations.html (accessed Apr. 13, 2020).
11

Case 5:20-cv-00054 Document 1 Filed on 04/15/20 in TXSD Page 12 of 39
46. Most people who develop serious COVID-19 illness will need advanced medical support. This level of supportive care requires highly specialized equipment that is in limited supply, even in non-detention settings, and a team of dedicated medical care providers. People who recover from serious cases may need extensive rehabilitation.
47. There is no vaccine against COVID-19 nor is there any known medication to prevent or treat infection.
48. The only known effective measures to reduce the risk of illness, injury, or death from COVID-19 are to prevent individuals from being infected in the first place. The CDC advises that COVID-19 spreads mainly between people who are in close contact with another, through respiratory droplets produced when someone speaks, coughs, or sneezes, and through aerosolized fecal contact, as well as through the touching of shared surfaces. The virus may remain viable from hours to days on surfaces made from a variety of materials.5
49. The primary effective measures for protecting people from COVID-19 are (1) social distancing, i.e., remaining physically separated from others regardless of their symptoms or lack of symptoms; and (2) vigilant sanitation and hygiene, including frequent hand washing with soap and water. The CDC now recommends that individuals who are in close proximity to others should wear cloth face coverings to mitigate the risk of transmission.
50. The CDC recommends that older adults and those at higher risk for severe illness from COVID-19 stay home, wash their hands often, avoid close contact (within 6 feet), and clean and disinfect frequently touched services.6 The CDC also recommends that older people have
5 Centers for Disease Control and Prevention, “Public Health Recommendations for Community-Related Exposure,” available at https://www.cdc.gov/coronavirus/2019-ncov/php/public-health-recommendations.html (accessed Apr. 13, 2020). 6 Center for Disease Control, Coronavirus Disease 2019 (COVID-19): Older Adults, Apr. 7, 2020, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/older-adults.html (accessed Apr. 14, 2020).
12

Case 5:20-cv-00054 Document 1 Filed on 04/15/20 in TXSD Page 13 of 39
access to a support structure, and take care of their bodies, such as through balanced meals, regular exercise, and sufficient sleep.7
51. Usage of personal protective equipment (“PPE”) is only effective if accompanied by adequate training, including proper donning and doffing procedures.
52. In recent days, the number of reported cases of COVID-19 infection in many parts of the country, including Cameron and Webb counties, have significantly increased and public officials estimate the reported number of hospitalizations and deaths may soon follow suit.
53. Even when prevention and mitigation techniques are implemented, as of March 29, 2020, the nation’s leading expert on infectious disease estimates that this pandemic could kill between 100,000 and 200,000 people in the United States.8
54. At the time of filing, there are more than 580,000 confirmed COVID-19 cases in the United States and over 23,000 deaths.9 The Texas Department of State Health Services (“DSHS”) reports that there are more than 14,600 confirmed COVID-19 cases in Texas with 216 of those cases occurring in Cameron County and 206 occurring in Webb County.10 Confirmation of COVID-19 cases is subject to the availability of accurate tests and the use of sufficiently inclusive testing protocols. Relatively few individuals have been tested for COVID-19 in Cameron and Webb counties and the number of individuals infected by COVID-19 may be much higher.
7 Id. 8 Bob Allyn, NPR, “Fauci Estimates That 100,000 To 200,000 Americans Could Die From The Coronavirus,” Mar. 29, 2020, available at: https://www.npr.org/sections/coronavirus-live-updates/2020/03/29/823517467/fauciestimates-that-100-000-to-200-000-americans-could-die-from-the-coronavirus (accessed Apr. 14. 2020). 9 Max Roser, Hannah Ritchie, and Esteban Ortiz-Ospina, “Coronavirus Disease (COVID-19) – Statistics and Research,” updated Apr. 14, 2020, available at: https://ourworldindata.org/coronavirus (accessed Apr. 14, 2020). 10 Tex. Dep’t of State Health Services, “Texas Case Counts COVID-109: Coronavirus Disease 2019” available at: https://txdshs.maps.arcgis.com/apps/opsdashboard/index.html#/ed483ecd702b4298ab01e8b9cafc8b83 (accessed Apr. 14, 2020).
13

Case 5:20-cv-00054 Document 1 Filed on 04/15/20 in TXSD Page 14 of 39
55. States have taken extraordinary and unprecedented measures to ensure residents practice “social distancing” in order to halt the spread of COVID-19. On March 13, 2020, Governor Abbott declared a State of Emergency in Texas due to COVID-19.11 On March 27, 2020, Webb County Judge Tano E. Tijerina ordered all Webb County residents to “shelter at their place of residence” and that “the social distancing requirement of 6 feet shall be followed at all times.”12 On March 23, 2020, Cameron County Judge Eddie Treviño required all Cameron County residents to shelter in place to ensure as many people as possible self-isolated in order to slow the spread of COVID-19. When individuals use shared or outdoor spaces, the order requires that they “maintain social distancing of at least six feet from any other person . . . .”13
56. Recognizing the extraordinary circumstances of COVID-19 and its major risk of spreading throughout institutionalized settings, the Texas Department of Criminal Justice (“TDCJ”) has stopped the intake of inmates from county jails. In a letter to county sheriffs on April 11, 2020, TDCJ Executive Director Bryan Collier cited COVID-19 prevention and said halting the transfers was “necessary and temporary” to protect employees and inmates.14
11 Proclamation by the Governor of the State of Texas Certifying that COVID-19 Poses an Imminent Threat of Disaster in the State and Declaring a State of Disaster for All Counties in Texas, Mar. 13, 2020, available at: https://gov.texas.gov/uploads/files/press/DISASTER_covid19_disaster_proclamation_IMAGE_03-13-2020.pdf (accessed Apr. 14, 2020). 12 County Judge Tano E. Tijerina, Shelter in Place, Stay At Home/Work Safe Emergency Order, Mar. 27, 2020, available at: http://webbcountytx.gov/COVID-19/EmergencyOrder/3-27-2020Shelterinplace.pdf (accessed Apr. 14, 2020). 13 County Judge Eddie Treviño, Jr., Third Supplemental Emergency Management Order with Mandatory Countywide Shelter in Place, Mar. 23, 2020, available at: http://www.cameroncounty.us/wpcontent/uploads/2020/03/03.23.2020-Third-Supplemental-Emergency-Management-Order-with-CountywideShelter-in-Place.pdf (accessed Apr. 14, 2020). 14 Jacob Helker, “Texas state prisons halt intake of inmates from county jails,” ABC 7 News Online, Apr. 13, 2020, available at: https://abc7amarillo.com/news/local/tdcj-halts-intake-of-inmates-from-county-jails (accessed Apr. 14, 2020).
14

Case 5:20-cv-00054 Document 1 Filed on 04/15/20 in TXSD Page 15 of 39
ii. Respondents Expose Petitioners to COVID-19 Infection, Serious Illness, and Possible Death by Detaining Petitioners at the Detention Centers.
57. Immigration detention facilities are “congregate environments,” — places where people live and sleep in close proximity to each other. Infectious diseases that are communicated by air or touch are quickly spread in these confined settings. Respondents’ ongoing detention of Petitioners in these crowded environments during the COVID-19 pandemic presents an imminent danger of severe infection, illness, and death to Petitioners.
58. The CDC has issued guidance for correctional facilities and detention centers for preventing and managing the COVID-19 pandemic to ensure the safety of detained individuals, staff, contractors, and visitors to detention centers.15
59. The CDC recommends that detention centers restrict transfers of detainees to and from other facilities and limit the amount of “operational entrances and exits to the facility.”16 Respondents do not follow this guidance. New detainees enter the Detention Centers at issue every day. Guards, ICE Deportation Officers, and contractors enter the facilities on a shift basis multiple times per day without adequate screening for COVID-19. Despite the CDC’s guidance, Respondents continue to transfer detainees, including Mr. Olvera, between detention centers without engaging in the CDC’s recommended screening process.17
60. The failure to perform tests of staff or contractors who have ongoing community contacts presents a daily risk of introduction of the virus into the Detention Centers. The possibility of asymptomatic transmission means that monitoring only staff, contractors, and detainees who have fevers will fail to prevent transmission.
15 CDC, “Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities,” Mar. 23, 2020, available at: https://www.cdc.gov/coronavirus/2019ncov/downloads/guidance-correctional-detention.pdf (accessed Apr. 14, 2020). 16 Id., at 9. 17 Id.
15

Case 5:20-cv-00054 Document 1 Filed on 04/15/20 in TXSD Page 16 of 39
61. The CDC recommends that detention centers practice “intensified cleaning and disinfecting procedures” including disinfecting commonly used surfaces and objects “several times per day.”18 Respondents do not follow these directives at the Detention Centers. Individuals detained at the Detention Centers frequently use pay phones, tablets, toilets, showers, appliances like microwave ovens and common surfaces like chairs and dining tables without adequate disinfection between uses. The CDC recommends that detention centers provide adequate soap and hand sanitizer at no cost to detained individuals to encourage frequent hand washing.19 Respondents routinely fail to provide sufficient free soap or hand sanitizer to detained individuals to permit compliance with the CDC’s recommendation of frequent handwashing. Often additional soap is available for purchase at immigration detention center commissaries. Many detained individuals lack funds to purchase this basic hygiene product, especially if they have recently been forced to flee violence and persecution in their home country and seek refuge in the United States.
62. The CDC also recommends that detention centers “implement social distancing strategies” in common areas, during recreation time, and during meals.20 Nevertheless, Petitioners spend nearly all of their days in crowded dormitories with other detainees.
63. Once COVID-19 is introduced to the Detention Centers under current conditions, it will be impossible to stop the spread of the virus within the facility, where social distancing is unachievable.
64. Detention centers are integral components of the public health systems in the communities in which they are located. Detainees who contract severe cases of COVID-19 will require hospitalization in the community. This threatens to overwhelm local resources. The
18 Id. 19 Id. 20 Id., at 11.
16

Case 5:20-cv-00054 Document 1 Filed on 04/15/20 in TXSD Page 17 of 39
problem is particularly acute in areas such as the Rio Grande Valley, where medical supplies are
limited and healthcare facilities may be quickly overwhelmed. The Texas Department of State
Health Services confirms that the Rio Grande Valley has only 72 available intensive care unit beds and 143 ventilators.21
65. Prior outbreaks of infectious diseases among immigrants detained in the Rio
Grande Valley have overwhelmed local healthcare infrastructure. For example, during a flu
outbreak in the Rio Grande Valley in the summer of 2019, DHS officials testified that the hospitals
in the Rio Grande Valley became “inundated” with individuals from CBP detention facilities who had flu-like symptoms.22
66. Immigration detention facilities in Texas have faced outbreaks of infectious
diseases in recent years due to overcrowding, poor hygiene measures, medical negligence, and
poor access to resources and medical care. For example, based on a review of a mumps outbreak
in Texas facilities run by ICE Health Service Corps (“IHSC”), the CDC found that immigrant detention facilities in Texas, including PIDC,23 exposed hundreds of detained migrants to mumps,
leading the CDC to recommend that IHSC work with health departments, the CDC, and facility
health administration to “develop appropriate control measures based on local epidemiology and the specific needs of each facility.”24 Mumps, unlike COVID-19, can be prevented through
vaccination.
21 Matthew Wilson, “DSHS: RGV Has 72 Available ICU Beds, 143 Ventilators,” THE MONITOR, Mar. 27, 2020, available at: https://www.themonitor.com/2020/03/27/dshs-rgv-72-available-icu-beds-143-ventilators/ (accessed Apr. 14, 2020). 22 Gonzalez-Recinos v. McAleenan, Case No. 1:19-CV-00138, Dkt No. 124, at 26 (S.D. Tex. 2020). 23 Elizabeth Trovall, “ICE Confirms 27 Cases of Mumps in Detention Facilities Across Texas,” HOUSTON PUB. MEDIA, Feb. 14, 2019, available at: https://www.houstonpublicmedia.org/articles/news/2019/02/14/321862/icesays-there-are-27-confirmed-cases-of-mumps-in-detention-facilities-across-texas/ (accessed Apr. 14, 2020). 24 Jessica Leung et al., “Notes from the Field: Mumps in Detention Facilities That House Detained Migrants— United States, September 2018—August 2019,” 68 U.S. DEP’T OF HEALTH & HUM. SERV. MORBIDITY & MORTALITY WEEKLY REP. 749, 749, Aug. 30, 2019, available at: https://www.cdc.gov/mmwr/volumes/68/wr/pdfs/mm6834a4-H.pdf (accessed Apr. 14, 2020).
17

Case 5:20-cv-00054 Document 1 Filed on 04/15/20 in TXSD Page 18 of 39
67. In June 2019, the IHSC informed Congress of 308 infectious disease outbreaks across 51 facilities in a single year. Three of the facilities experiencing outbreaks that year were PIDC, Webb County Detention Center, and Rio Grande Detention Center.25
68. On April 4, 2020, ICE determined that its Field Office Directors should reassess custody of detainees “over 60 years old” and detainees who are “immune-compromised,” including individuals with “heart disease.”26 “The presence of one of those factors . . . should be a significant discretionary factor weighing in favor of release,” unless release would pose a danger to property or persons.27 Even for detainees with past criminal convictions, the Directors should look at the age of the arrest as a mitigation factor.28
69. On or about April 13, 2020, thirty-three days after the World Health Organization declared COVID-19 to be a global pandemic, Respondent ICE issued a policy document for ICE detention facilities requiring detention facilities to take certain measures regarding COVID-19 (“ERO PRR”).29
70. The ERO PRR is inadequate to provide safe conditions for Petitioners. It lacks deadlines, lacks a reporting or oversight structure by which to monitor compliance by detention facilities, lacks information on how detention facilities can procure hygiene supplies, PPE, or medical supplies, and it acknowledges but then ignores the fact that the coronavirus can be transmitted by asymptomatic and pre-symptomatic individuals. It fails to outline specific actions to be taken regarding medical monitoring, the provision of medical care within the detention
25 “USA: ‘We are Adrift, About to Sink,’ Amnesty International, Apr. 7 2020, available at: https://www.amnesty.org/en/documents/amr51/2095/2020/en/ (accessed Apr. 14, 2020). 26 Letter from Peter B. Berg, Assistant Director, Field Operations, to Field Office Directors and Deputy Field Office Directors entitled “COVID-19 Detained Docket Review,” at 2-3, Apr. 04, 2020. 27 Id. at 3. 28 Id. 29 ICE Enforcement and Removal Operations, “COVID-19 Pandemic Response Requirements,” available at: https://www.ice.gov/doclib/coronavirus/eroCOVID19responseReqsCleanFacilities.pdf (accessed Apr. 14, 2020).
18

Case 5:20-cv-00054 Document 1 Filed on 04/15/20 in TXSD Page 19 of 39
facility, or the transfer of an individual requiring more intensive medical services or hospitalization.
71. The Detention Centers where Petitioners are detained do not and cannot meet many of the requirements set out in the ERO PRR.
72. As early as February 25, 2020, Dr. Scott Allen and Dr. Josiah Rich, medical experts for the U.S. Department of Homeland Security, shared concerns about the specific risks to immigrant detainees as a result of COVID-19 with the agency. These experts warned of the danger of rapid spread of coronavirus in immigration detention facilities. In a whistleblower letter to Congress, Dr. Allen and Dr Rich recommended that “[m]inimally DHS should consider releasing all detainees in high risk medical groups such as older people and those with chronic diseases.” They concluded that “acting immediately will save lives not only of those detained, but also detention staff and their facilities, and the community-at-large.”30
a. The Port Isabel Service Processing Center 73. Respondents confine Petitioner Garza and hundreds of other civil immigration detainees at PIDC. Currently, PIDC has capacity to hold up to 1,200 adult detainees and, when ICE adds plastic beds in cells as it has done as recently as July 2019, has a capacity of 1,550 individuals.31 PIDC is operated by Ahtna Support and Training Services.
30 Letter from Dr. Scott Allen & Dr. Josiah Rich to the Senate and House Committees on Homeland Security and Oversight and Reform, at 5-6, Mar. 19, 2020, available at: https://www.documentcloud.org/documents/6816336032020-Letter-From-Drs-Allen-Rich-to-Congress-Re.html (accessed Apr. 14, 2020). 31 Dep’t of Homeland Sec’y Office of Inspector General, Management Alert—DHS Needs to Address Dangerous Overcrowding and Prolonged Detention of Children and Adults in the Rio Grande Valley OIG-19-51, at 9, July 02, 2019, available at: https://www.oig.dhs.gov/sites/default/files/assets/2019-07/OIG-19-51-Jul19_.pdf (accessed Apr. 14, 2020).
19

Case 5:20-cv-00054 Document 1 Filed on 04/15/20 in TXSD Page 20 of 39
74. Data from the Transactional Records Access Clearinghouse at Syracuse University shows that, recently, as many as 36,000 individuals were detained in PIDC during one calendar year, suggesting that many people are frequently transferred into and out of the facility.
75. The conditions in PIDC contravene medical and public health directives for risk mitigation. Incoming detainees are inadequately screened for COVID-19. Until very recently no detainees were provided gloves, masks, or any other PPE. Guards, Deportation Officers, contractors, court staff, and others who enter the facility rarely wear PPE. Commonly used items and surfaces like telephones in the visitation area are infrequently disinfected. Respondents have limited detainees’ access to basic hygiene products such as soap. Respondents detain individuals at PIDC in “pods,” small areas that house several dozen individuals at a time. Detainees are forced to sleep just a few feet from one another in bunk beds.
76. Up to 140 individuals detained at PIDC had been placed in “lockdown” due to illness. According to the group, some immigrants held in PIDC reported that they were on a hunger strike due to their concerns about the government’s failure to respond to the COVID-19 threat to their safety.32
77. On March 30, 2020, a contractor who works at PIDC tested positive for COVID19. The individual’s last shift at PIDC was that same day, March 30, 2020.33 ICE has not reported the contractor’s positive COVID-19 test on its public website. On information and belief, ICE does not include information on its website regarding positive COVID-19 test results of contractors at any ICE detention facilities.
32 Press Release, RGV Detention Facilities Must Release Migrants Now, Mar. 30, 2020, available at: https://rgvequalvoice.org/pressreleases1/2020/3/30/rgv-detention-facilities-must-release-migrants-now (accessed Apr. 14, 2020). 33 Valerie Gonzalez, “Valley Immigration Detention Contractor Tests Positive for Coronavirus,” KRGV, Apr. 9, 2020, available at https://www.krgv.com/news/valley-immigration-detention-contractor-tests-positive-forcoronavirus/ (accessed Apr. 14, 2020).
20

Case 5:20-cv-00054 Document 1 Filed on 04/15/20 in TXSD Page 21 of 39
b. Mr. Garza Is Elderly, Frail, and Has Disabilities that Make Him Particularly Likely to Suffer Severe Complications Related to COVID-19.
78. Mr. Garza is a lawful permanent resident. He has a well-established community and support system in the United States. He has lived in the United States for approximately 40 years and, since 2000, has made his home in Edinburg, Texas, with his wife and their nine children. Mr. Garza has strong social ties within the United States and is a long-integrated member of his community. His two youngest children, including one of whom he adopted, have mental disabilities and rely on Mr. Garza and his wife for care. Deeply attached to his father, Mr. Garza’s adult child with disabilities continues to search for him on a daily basis.
79. Mr. Garza was detained on March 13, 2020, weeks after DHS became aware of the risk of COVID-19 to elderly immigrants and immigrants with disabilities. The CDC warned that certain people are at higher risk for severe COVID-19 illness, particularly people aged 65 years and older, people with serious heart conditions, and people who are immunocompromised.34 Approximately 80% of deaths reported in the United States were adults 65 years and older.35 For adults who are above 65 years old, many require hospitalization and admission to intensive care units.36
80. Mr. Garza has multiple risk factors that make him more likely to develop a severe illness and even die from COVID-19.
34 Center for Disease Control, Coronavirus Disease 2019 (COVID-19): People Who are At Higher Risk, available at: https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higherrisk.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fspecificgroups%2Fhigh-risk-complications.html (accessed Apr. 14, 2020). 35 Center for Disease Control, Coronavirus Disease 2019 (COVID-19): Older Adults, available at: availahttps://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/older-adults.html (accessed Apr. 14, 2020). 36 Id.
21

Case 5:20-cv-00054 Document 1 Filed on 04/15/20 in TXSD Page 22 of 39
81. Mr. Garza is 78 years old with serious, well-documented health problems. He suffers from hypertension, mixed hyperlipidemia, and pre-diabetes—conditions that place him at greater risk of heart damage and failure. Mr. Garza also has been diagnosed with polyosteoarthritis, a degenerative condition that heightens the risk of lung complications. These medical conditions impair his ability to perform some everyday tasks.
82. Despite being held for five weeks, ICE has not issued a Notice to Appear for Mr. Garza. The Notice to Appear is the charging document that DHS must file in order to proceed with the case before the immigration court. Mr. Garza is eligible to seek relief before an immigration judge by applying for cancellation of removal for lawful permanent resident under 8 USC 1229b(a).
83. Mr. Garza’s age and disabilities were readily apparent when DHS detained Mr. Garza and sent him to PIDC. DHS made this decision even though its officials were aware that COVID-19 was spreading across the United States and that people like Mr. Garza were at heightened risk.
84. Due to the conditions of detention at PIDC, Mr. Garza finds it impossible to maintain the recommended distance of six feet from others. Defendants hold Mr. Garza in conditions where he sleeps less than six feet away from others in a room full of people with whom he shares a bathroom and eating space. He must also touch shared objects and surfaces that are not disinfected after others’ use.
85. Due to these conditions, Mr. Garza is not able to follow the CDC’s recommendations, such as social distancing, rigorous hygiene, separated sleeping and eating, getting plenty of sleep, and accessing support structures.
22

Case 5:20-cv-00054 Document 1 Filed on 04/15/20 in TXSD Page 23 of 39
86. Respondents’ actions and failures to act have placed Mr. Garza directly in harm’s way. Mr. Garza is in the same room, or “pod,” with 65 to 70 other people. As recently as two weekends ago, three individuals in Mr. Garza’s pod were sick with COVID-19-like symptoms. One slept two beds away from him.
87. Starting on March 28, 2020, Mr. Garza repeatedly asked the guards to help one of the men who was ill with a fever and asked the guards to take the ill man to the doctor. The guards refused. Finally, on March 29, 2020, officials wearing protective gear took the three men from the room, leaving Mr. Garza and dozens of others in the potentially infected room. Despite likely being exposed to a person with coronavirus symptoms, the only step that officials took was to give Mr. Garza a mask. Officials did not even disinfect the room.
88. At that point, Mr. Garza’s room was placed under “quarantine.” Under “quarantine,” Mr. Garza and the other 65-70 detainees were prohibited from leaving the potentially contaminated room for more than a few minutes at a time. Mr. Garza and his fellow detainees were forced to eat meals within that room. Officials did not check the temperatures of individuals under “quarantine” to evaluate whether an infection was spreading.
c. The Webb County Detention Center 89. Defendants confine Petitioner Olvera and other civil immigration detainees at the Webb County Detention Center, a privately-owned facility operated by CoreCivic, formerly known as the Corrections Corporation of America. CoreCivic maintains that the Webb County Detention Center has the capacity to hold up to 480 adult detainees but as recently as July 2019 it held 526 detainees.37
37 Transactional Records Access Clearinghouse, “ICE Data Snapshots as of July 2019,” available at: https://trac.syr.edu/phptools/immigration/detention/ (accessed Apr. 13, 2020).
23

Case 5:20-cv-00054 Document 1 Filed on 04/15/20 in TXSD Page 24 of 39
90. At the Webb County Detention Center, detainees are provided with only a small bottle of shampoo, a small bar of soap, and toilet paper once a week. Detainees must use the soap to wash their bodies in the shower and to wash their hands after they use the restroom. Sometimes detainees use their own soap to clean the tables in their communal living areas and cells. In order to obtain more soap or shampoo, detainees must purchase them. Some detainees run out of shampoo and soap before the week ends and they are forced to shower and wash their hands with only water. Some detainees also run out of toilet paper before the week ends and they have to use the restroom without any toilet paper until they are given more by the guards.
91. Mr. Olvera is detained in a living area (“pod”) that currently holds seven people. Mr. Olvera sleeps in a cell and shares a common area with the other six individuals in the pod; the common area contains a sink, shower, two toilets, three tables with seats, a microwave oven, and two telephones. There are no paper towels or disposable tissues in the common area. There is no shampoo or soap provided in the shower other than the small soap and small shampoo issued to each detainee on a weekly basis.
92. Three times a day, a guard pushes a cart containing meals to the door of the communal area of the pod. The guard does not wear any protective equipment, such as gloves or a facemask. The cart also contains trays for other pods and none of the food trays, cups, or utensils are covered. The guard passes the uncovered trays and cups through an opening in the door.
93. The three tables and seats are the only places to sit in the common area of the pod and they are bolted in place with the seats affixed less than six feet apart. The telephones are also attached to the wall less than six feet apart. Mr. Olvera and his fellow detainees frequently touch the shared surfaces in the common area, including the sink, shower, toilets, microwave oven, seats, tables and television remote control.
24

Case 5:20-cv-00054 Document 1 Filed on 04/15/20 in TXSD Page 25 of 39
94. Each morning a guard brings a mop, broom, dustpan, bucket, cleaning liquids, and a trash bag to the pod so that Mr. Olvera and the other detainees can clean their cells, community area, and shower. Detainees are not provided any protective equipment for cleaning, including gloves or facemasks. One detainee uses the cleaning supplies to clean his cell and then passes the supplies to the next detainee until they have all used the same equipment and supplies to clean their cells. The detainees in the pod also clean the community area and shower.
95. Mr. Olvera is not aware of any social distancing rules in place at the Webb County Detention Center. He has not seen any signage in the detention center about washing hands because of COVID-19. He has not seen any disinfecting spray or wipes for detainees to use.
96. On the morning of April 14, 2020, Mr. Olvera observed guards enter his pod’s common area and spray liquid. The guards then offered flu shots to the detainees in the pod and gave them each one paper mask, without instructions on how or when to use the mask. The guards handed the detainees a substance described as hand sanitizer but then later returned and took back the substance and instead gave the detainees liquid soap.
97. Twice a day, a guard escorts Mr. Olvera from his pod down a long hallway to the clinic to receive his insulin medication. Mr. Olvera routinely passes other detainees and guards when he is escorted to the clinic. Mr. Olvera has never seen any detainees or guards wear protective equipment such as gloves or masks, other than one guard who wore a face mask inside the clinic on one occasion.
98. Mr. Olvera has not seen the guards or other staff take detainees’ temperature daily to determine if any of them have a fever. He has not seen any posters or other materials in the Webb County Detention Center regarding COVID-19 or instructing the detainees to see the doctor
25

Case 5:20-cv-00054 Document 1 Filed on 04/15/20 in TXSD Page 26 of 39
if they develop COVID-19 symptoms. Mr. Olvera has not seen doctors or nurses at the Webb County Detention Center giving the detainees any information on COVID-19.
99. Mr. Olvera is not allowed to leave his pod except for twice daily visits to the clinic for his insulin medication. He has not been outdoors since his arrival at the Webb County Detention Center.
100. The conditions at the Webb County Detention Center contravene medical and public health directives for risk mitigation.
d. Mr. Olvera’s Health Conditions and age Make him Particularly Likely to Suffer Severe Complications Related to COVID-19.
101. Mr. Olvera is a 62-year-old applicant for asylum and adjustment to permanent resident status. He has strong community ties in the United States where he has lived since 2014. He lives in San Antonio with his wife; his son, daughter-in-law and grandchildren live nearby in the same neighborhood.
102. From May 24, 2019 to April 2, 2020, Mr. Olvera was detained by ICE at the South Texas ICE Processing Center in Pearsall, Texas. On April 2, 2020, ICE transferred Mr. Olvera by van 113 miles to the Webb County Detention Center in Laredo, Texas. Mr. Olvera rode in the van with eight other detainees and two guards, none of whom wore face masks or gloves.
103. ICE transferred Mr. Olvera to the Webb County Detention Center after ICE announced that it had confirmed cases of COVID-19 infection among immigration detainees in New Jersey and Arizona and after the CDC issued its guidance urging specific safety practices at detention facilities. The CDC warned that certain people are at higher risk for severe illness from COVID-19, particularly people with diabetes (like Mr. Olvera), people with serious heart conditions, and people who are immunocompromised.38 The CDC also identified individuals with
38 Supra, at note 31. 26

Case 5:20-cv-00054 Document 1 Filed on 04/15/20 in TXSD Page 27 of 39
hypertension (such as Mr. Olvera) as being at higher risk for increased illness severity and adverse outcomes with COVID-19.39
104. Mr. Olvera has multiple risk factors that make him more likely to develop a severe illness and even die from COVID-19. Mr. Olvera suffers from serious, well-documented health problems including but not limited to Type 1 diabetes (insulin dependent), hypertension (abnormally high blood pressure), hyperlipidemia (abnormally high concentration of fats or lipids in the blood), benign prostatic hypertrophy (enlarged prostate), depression, and osteoarthrosis (degenerative joint disease).
105. Due to his conditions of detention, Mr. Olvera cannot maintain the recommended distance of six feet from others. Respondents hold Mr. Olvera in conditions where he shares a restroom, food preparation, eating and recreation area with others in close quarters. He must also frequently touch or share objects used by others.
106. Due to these conditions, Mr. Olvera is not able to follow the CDC’s recommended approaches, such as social distancing, rigorous hygiene, and separated sleeping and eating areas. Respondents’ actions and failure to act have placed Mr. Olvera directly in harm’s way.
e. The Rio Grande Detention Center 107. Defendants detain Giorge Gonzalez at the Rio Grande Detention Center in Laredo, Texas. Rio Grande Detention Center is a facility operated by GEO Group, Inc. on behalf of ICE and the U.S. Marshals Service. Rio Grande Detention Center houses civil immigration detainees and federal criminal detainees. The facility has capacity to hold up to approximately 1,900 total detainees. As of July 2019, 707 individuals were detained at Rio Grande Detention Center in ICE
39 Center for Disease Control, “Coronavirus Disease 2019 (COVID-19): Clinical Care,” available at: https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html (accessed on April 13, 2020).
27

Case 5:20-cv-00054 Document 1 Filed on 04/15/20 in TXSD Page 28 of 39
custody.40 More than 13,000 individuals were detained at Rio Grande Detention Center during a recent calendar year.41
108. People detained at Rio Grande Detention Center in ICE custody share small pods with as many as 80 other individuals. Mr. Gonzalez’s pod held 84 individuals until approximately April 13, 2020, when several detainees were removed. Two new detainees were assigned to Mr. Gonzalez’s pod on about April 15, 2020. As of the time of filing, there are approximately 63 individuals in Mr. Gonzalez’s pod. New detainees are brought to the facility and assigned to crowded pods at Rio Grande Detention Center nearly every day, without proper screening for COVID-19.
109. The detainees sleep on bunk beds just a few feet from one another. Meals are served to all detainees at once. The detainees eat together at the same time at the same tables in their living space. Apart from brief periods of recreation time when the detainees leave their pods, Mr. Gonzalez must constantly remain in close proximity with dozens of other detainees. He is not able to comply with CDC recommendations regarding social distancing to prevent the spread of COVID-19 under the current conditions at Rio Grande Detention Center.
110. The individuals detained in Mr. Gonzalez’s pod share many common items and surfaces without any means of disinfecting them between uses. For example, all of the detainees share pay phones that they use to communicate directly with their family members and attorneys outside of the detention center. There are no cleaning products available to disinfect the phone between uses. The individuals in Mr. Gonzalez’s pod also share tablets for sending paid messages to people outside of the detention center via a web-based application, toilets, and many other
40 Transactional Records Access Clearinghouse, “Immigration and Customs Enforcement Detention” available at: https://trac.syr.edu/phptools/immigration/detention/ (accessed Apr. 13, 2020). 41 Transaction Records Access Clearinghouse, “Detainees Leaving ICE Detention from the Rio Grande Detention Center,” available at: https://trac.syr.edu/immigration/detention/201509/RGRNDTX/exit/ (accessed Apr. 13, 2020).
28

Case 5:20-cv-00054 Document 1 Filed on 04/15/20 in TXSD Page 29 of 39
common surfaces. These commonly-used items are not disinfected between use and become a potential source of transmission of COVID-19.
111. Typically the detainees at Rio Grande Detention Center are required to clean their own dormitories. The detainees in Mr. Gonzalez’s pod have been provided a rag, a broom, a mop, and bucket of water, but no other cleaning solvent for cleaning the floor or other surfaces in the dormitory.
f. Giorge Gonzalez’s Health Condition Makes Him Particularly Likely to Suffer Severe Complications Related to COVID-19.
112. Giorge Gonzalez is a 28-year-old man from Cuba. He fled persecution and torture based on his political opinion in his home country and applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”) after presenting himself to U.S. immigration officials at the port of entry in Laredo, Texas on July 2, 2019. He has been detained at Rio Grande Detention Center since approximately July 4, 2019.
113. Giorge Gonzalez has chronic and severe asthma. He was originally diagnosed as a young child. Throughout his life Mr. Gonzalez’s asthma has required constant monitoring and treatment by medication. As an adult Mr. Gonzalez has been prescribed medication to treat and manage his asthma. As a result of his asthma, Mr. Gonzalez is unable to play sports or run even short distances without experiencing extreme shortness of breath, pain, and tightness in his chest. He must avoid air containing dust particles and strong fumes that exacerbate his condition and can cause acute asthma attacks.
114. Respondents are well aware of Mr. Gonzalez’s chronic condition. On or about July 4, 2019, shortly after immigration officials transferred him to Rio Grande Detention Center, Mr. Gonzalez informed medical personnel of his asthma. He has repeatedly requested that ICE provide
29

Case 5:20-cv-00054 Document 1 Filed on 04/15/20 in TXSD Page 30 of 39
treatment and medication to him so that he can properly manage his condition but Respondents have failed to provide him any asthma medications while he has been detained.
115. Giorge Gonzalez has experienced multiple acute asthma attacks during his detention at the Rio Grande Detention Center.
116. Shortly after he learned of the rapid spread of COVID-19, Giorge Gonzalez made a written request to medical personnel for appropriate treatment and medication so that he would better be able to manage his condition during this period of heightened risk of infectious disease. He has also requested to be isolated from other detainees as fear of a confirmed case of COVID19 has spread throughout the detention center. Respondents refuse or are unable to accommodate Mr. Gonzalez’s requests.
117. Mr. Gonzalez is detained in close quarters with about 63 other detainees. He sleeps on a bunk bed just a few feet from other detainees. All of the detainees eat at the same time at the same tables, use the same pay phones without disinfection between uses, use the same toilets, and share numerous other items. Until recently when his dorm was placed under quarantine, no detainees or guards or other contractors who entered his dormitory wore gloves or masks to protect against the release of respiratory droplets known to efficiently spread COVID-19.
118. No soap or hand sanitizer has been provided for detainees to use to clean their hands in Mr. Gonzalez’s dorm. He and the other detainees are infrequently assigned a small amount of shampoo. That amount is insufficient for practicing the frequent and aggressive hand-washing recommended by public health officials for preventing the spread of COVID-19.
119. On or about April 6, 2020, a detainee in Mr. Gonzalez’s dorm became ill and feverish. The sick detainee was removed from the dorm room that day. In the early morning hours of April 9, 2020, the entire dorm was placed under quarantine and detainees in Mr. Gonzalez’s pod were provided face masks. On or about April 10, 2020, guards came into Mr. Gonzalez’s pod
30

Case 5:20-cv-00054 Document 1 Filed on 04/15/20 in TXSD Page 31 of 39
and took the masks away. Mr. Gonzalez remains confined in close proximity with approximately 63 other detainees.
120. Respondents continue to detain Giorge Gonzalez in dangerous conditions despite the availability of family and close friends who have offered to support Mr. Gonzalez upon his release from detention. Mr. Gonzalez submitted a parole request indicating that his brother-in-law, who is a lawful permanent resident living in Houston, Texas, offered to sponsor and support Mr. Gonzalez while his immigration case is adjudicated. Mr. Gonzalez and his brother-in-law were close friends in Cuba and have remained close friends since Mr. Gonzalez’s brother-in-law relocated to the United States. Another close family friend from Cuba, who is now a lawful permanent resident of the United States residing in Miami, Florida, has also offered to support Mr. Gonzalez if he is released.
121. Giorge Gonzalez poses no flight risk or danger to the community if he is released from Rio Grande Detention Center and received by one of his sponsors.
122. On about August 29, 2019, an asylum officer determined that Mr. Gonzalez has a credible fear of further persecution and torture if he is returned to Cuba and referred him for removal proceedings under 8 U.S.C. § 1229a.
123. On March 9, 2020, an Immigration Judge denied Mr. Gonzalez’s requests for relief from removal and ordered him removed to Cuba. Giorge Gonzalez has appealed this decision to the Board of Immigration Appeals (“BIA”) where he is represented by counsel. There is no final order of removal in his immigration case. 8 U.S.C. § 1101(a)(47)(B) (removal orders “shall become final upon the earlier of (1) a determination by the [BIA] affirming such order; or (ii) the expiration of the period in which the alien is permitted to seek review of such order by the [BIA].”). His immigration proceedings are expected to continue for several more months.
31

Case 5:20-cv-00054 Document 1 Filed on 04/15/20 in TXSD Page 32 of 39
CLAIMS FOR RELIEF CLAIM ONE
Fifth Amendment to the U.S. Constitution (Due Process Clause) 124. Petitioners repeat and incorporate by reference the allegations made above. 125. The Fifth Amendment to the U.S. Constitution requires that all individuals who are detained by the State be afforded conditions of reasonable health and safety including food, shelter, and medical care. 126. Respondents subject Petitioners to conditions of confinement that heighten their risk of contracting COVID-19. 127. Respondents act with deliberate indifference to the excessive risk of harm to Petitioners’ health and safety posed by COVID-19. Respondents are aware of Petitioners’ advanced age and underlying health conditions and of their heightened risk of serious illness or death if infected with COVID-19. Respondents are aware that the conditions at the Detention Centers expose Petitioners to greater risk of infection. By subjecting Petitioners to this risk, Respondents fail to ensure safety and health in violation of Petitioners’ due process rights. Respondents further violate Petitioners’ due process rights by failing to take action to ameliorate the conditions that prevent Petitioners from adopting the only known means of protecting themselves from infection, or by failing to release them. 128. The Fifth Amendment to the U.S. Constitution also requires that civil detainees must not be subjected to conditions that amount to punishment. The government violates this substantive due process right when it subjects civil immigration detainees to cruel treatment and conditions of confinement that amount to punishment, and fails to ensure detainees’ health and safety.
32

Case 5:20-cv-00054 Document 1 Filed on 04/15/20 in TXSD Page 33 of 39
129. Separately and cumulatively, regardless of Respondents’ intent, the following conditions amount to a violation of due process rights of Petitioners who are civil detainees:
a. denial of soap, hand sanitizer, and other hygiene products to Petitioners; b. failure to clean and decontaminate adequately frequently used common items
and surfaces; c. continuous detention of Petitioners in crowded conditions that preclude social
distancing; d. failure to monitor detainees for COVID-19 on a regular basis; e. failure to screen adequately incoming detainees, guards, ICE Deportation
Officers, contractors and visitors for COVID-19 before they enter the Detention Centers; and f. denial of access to the outdoors and natural light sunlight; and g. failure to provide treatment or medication to Petitioner Giorge Gonzalez to manage his chronic underlying health condition. 130. The conditions of confinement are not reasonably related to a legitimate goal of detention. 131. Respondents’ actions amount to and are intended as punishment and violate Petitioners’ due process rights. 132. Respondents hold Petitioners in custody in violation of the Fifth Amendment to the United States Constitution. A writ of habeas corpus, pursuant to 28 U.S.C. § 2241, is necessary to remedy the constitutional violations, to ensure Petitioners receive necessary medical care, and to remove the unreasonable risk that Petitioners will contract COVID-19 and suffer serious physical injury and harm.
33

Case 5:20-cv-00054 Document 1 Filed on 04/15/20 in TXSD Page 34 of 39
133. Alternatively, if the Court denies a writ of habeas corpus, declaratory and injunctive relief to compel Respondents to provide safe conditions is needed to remedy Respondents’ violation of the Fifth Amendment and to prevent serious, imminent, irreparable physical injury to Petitioners.
CLAIM TWO Violation of the Rehabilitation Act—Failure to Provide Reasonable Accommodation
to Persons with Disabilities 134. Petitioners reallege and incorporate by reference the allegations made above. 135. Section 504 of the Rehabilitation Act (“Section 504”) provides that “No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.” 29 U.S.C. § 794. 136. Section 504 of the Rehabilitation Act requires federal agencies to provide “reasonable accommodations” to individuals with disabilities so they can fully participate in benefits administered by these agencies. 29 U.S.C. § 794(a). 137. DHS regulations implementing the Rehabilitation Act mandate that “[n]o qualified individual with a disability in the United States, shall, by reason of his or her disability, be excluded from participation in, be denied benefits of, or otherwise be subjected to discrimination under any program or activity conducted by the Department.” 6 C.F.R. § 15.30; see also 29 U.S.C. § 794(a). The regulations implementing Section 504 prohibit entities receiving federal financial assistance from utilizing “criteria or methods of administration (i) that have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap, (ii) that have the purpose or effect
34

Case 5:20-cv-00054 Document 1 Filed on 04/15/20 in TXSD Page 35 of 39
of defeating or substantially impairing the accomplishment of the objectives of the recipient’s program or activity with respect to handicapped persons.” 34 C.F.R. § 104.4(b)(4).
138. Defendant ICE is an Executive agency within the meaning of the Rehabilitation Act.
139. Petitioners are qualified individuals with disabilities for the purposes of Section 504.
140. The services, programs, and activities within the Detention Centers receive substantial federal financial assistance and are programs and activities conducted by an Executive agency. The removal process, including adjudications of applications for relief from removal, is a benefit administered by DHS. Plaintiffs are entitled to participate in that benefit.
141. By failing to take account of Petitioners’ vulnerability to severe illness or death if they contract COVID-19 and by exposing Petitioners to a heightened risk of contracting COVID19, Respondents intentionally prevent Petitioners from participating in the removal process and the services, programs, and activities within the detention centers by reason of their disabilities.
142. Respondents’ actions have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of removal proceedings and the services, programs, and activities within the detention facilities with respect to Petitioners.
143. Respondents fail to “reasonably accommodate” Petitioner’s disabilities by failing to ameliorate the conditions that prevent Petitioners’ from employing the only known means of protecting themselves from infection or by failing to release Petitioners from the Detention Centers.
144. Respondents’ disparate treatment of Petitioners based on their disabilities, Respondents’ use of criteria or methods of administration with respect to the removal process and
35

Case 5:20-cv-00054 Document 1 Filed on 04/15/20 in TXSD Page 36 of 39

the services, programs, and activities within the Detention Centers, and Respondents’ failure to

provide Petitioners’ with reasonable accommodations constitute disability discrimination in

violation of Section 504.

PRAYER FOR RELIEF

WHEREFORE, Petitioners pray that this Court grant the following relief:

A. Assume jurisdiction over this matter;

B. Declare Petitioners’ detention to be unlawful and unconstitutional;

C. Order the immediate release of Petitioners or their placement in community-based

alternatives to detention such as conditional release, with appropriate precautionary health

measures;

D. In the alternative, if the Court does not grant a writ of habeas corpus, order Respondents to

provide Petitioners with protection from the risk of contracting COVID-19 by ameliorating

all conditions that prevent Petitioners from implementing the public health

recommendations that are the only known means of preventing against and mitigating the

effects of COVID-19;

E. Enjoin Respondents from transferring Petitioners outside of this judicial district pending

litigation of this matter or their removal proceedings;

F. Award to Petitioners reasonable costs and attorneys’ fees; and,

G. Grant any other relief that this Court deems just and proper.

Dated: April 15, 2020

Respectfully submitted,

GARCÍA & GARCÍA ATTORNEYS AT LAW, P.L.L.C. By: /s/ Carlos Moctezuma Garcia Carlos Moctezuma García Attorney in Charge Texas Bar No. 24065265

36

Case 5:20-cv-00054 Document 1 Filed on 04/15/20 in TXSD Page 37 of 39
SDTX Bar No. 1081768 P.O. Box 4545 McAllen, TX 78502 Phone: 956-630-3889 Facsimile: 956-630-3899 Email: cgarcia@garciagarcialaw.com Attorney for Petitioner Raul Garza Marroquin
TEXAS CIVIL RIGHTS PROJECT By: /s/ Efrén C. Olivares Efrén C. Olivares State Bar No. 24065844 SDTX Bar No. 1015826 Email: efren@texascivilrightsproject.org Carolyn O’Connor* CT State Bar No. 441082 Email: carrie@texascivilrightsproject.org Andrew Udelsman NY State Bar No. 5612544 SDTX Bar No. 3467581 Email: andy@texascivilrightsproject.org 1017 W. Hackberry Ave. Alamo, Texas 78516 Tel: (956) 787-8171 ext. 121 Attorneys for Petitioner Raul Garza Marroquin
TEXAS RIOGRANDE LEGAL AID, INC. By: /s/ Peter McGraw Peter McGraw State Bar No. 24081036 S.D. Tex. No. 2148236 Email: pmcgraw@trla.org Rebecca Sheff State Bar No. 24113476 S.D. Tex. No. 3428184 Email: rsheff@trla.org 1206 East Van Buren St. Brownsville, Texas 78520 Phone: (956) 982-5543 Fax: (956) 541-1410 Attorneys for Petitioner Giorge Gonzalez
37

Case 5:20-cv-00054 Document 1 Filed on 04/15/20 in TXSD Page 38 of 39
LAW OFFICE OF JAVIER N. MALDONADO, PC By: /s/ Javier N. Maldonado _ Javier N. Maldonado Tex. Bar No. 00794216 Fed. Adm. No. 20113 8620 N. New Braunfels, Ste. 6-5 San Antonio, Texas 78217 Tel.: (210) 277-1603 Fax: (210) 587-4001 Email: jmaldonado.law@gmail.com Attorney for Petitioner Rafael Olvera Amezcua
MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND By: /s/ Nina Perales Nina Perales Tex. Bar No. 24005046 SD of Tex. No. 21127 Email: nperales@maldef.org Daniel Hatoum* State Bar No. 24099136 Email: dhatoum@maldef.org Fátima Menéndez* State Bar No. 24090260 Email: fmenendez@maldef.org 110 Broadway, Suite 300 San Antonio, Texas 78205 Phone: (210) 224-5476 Facsimile: (210) 224-5382 Attorneys for Petitioner Rafael Olvera Amezcua
*Application to appear pro hac vice forthcoming
38

Case 5:20-cv-00054 Document 1 Filed on 04/15/20 in TXSD Page 39 of 39

Verification Pursuant to 28 U.S.C. § 2242

The undersigned counsel submit this verification on behalf of the Petitioners. Undersigned counsel have discussed with Petitioners the events described in this Petition for Writ of Habeas Corpus and Complaint and, on the basis of those discussions, verify that the statements in the Petition and Complaint are true and correct to the best of our knowledge.

Dated: April 15, 2020

/s/ Carlos Moctezuma Garcia Carlos Moctezuma García Attorney for Petitioner Raul Garza Marroquin

/s/ Peter McGraw Peter McGraw /s/ Paulina Baca Paulina Baca (paralegal) Attorney for Petitioner Giorge Gonzalez

/s/ Javier N. Maldonado Javier N. Maldonado Attorney for Petitioner Rafael Olvera Amezcua

39

 
 Case 5:20-cv-00054 Document 14 Filed on 04/24/20 in TXSD Page 1 of 34

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
LAREDO DIVISION

Raul Garza Marroquin, et al., Petitioners/Plaintiffs, v.
Jose Longoria, Jr., et al., Respondents/Defendants.

§ § § § § Civil Action No. 5:20-cv-54 § § § §

DEFENDANTS’ MOTION TO DISMISS AND RESPONSE TO GIORGE GONZALEZ’S AND RAFAEL OLVERA’S PETITIONS FOR IMMEDIATE
INJUNCTIVE RELIEF
RYAN K. PATRICK United States Attorney
By: Ariel N. Wiley Assistant United States Attorney Attorney-in-Charge Southern District No. 2554283 Texas Bar No. 24093366 Annalisa L. Cravens Assistant United States Attorney Southern District No. 2791281 Texas Bar No. 24092298 1000 Louisiana Street, Suite 2300 Houston, Texas 77002 Tel.: (713) 567-9000 Fax: (713) 718-3303 Email: Ariel.Wiley@usdoj.gov Email: Annalisa.Cravens@usdoj.gov
Counsel for Respondents/Defendants

Case 5:20-cv-00054 Document 14 Filed on 04/24/20 in TXSD Page 2 of 34

Table of Contents

Table of Authorities ........................................................................................................................ ii Exhibits ......................................................................................................................................... vii Introduction and Summary ............................................................................................................. 1 Factual and Procedural Background ............................................................................................... 2 Issues............................................................................................................................................... 9 Standard ........................................................................................................................................ 10 Argument ...................................................................................................................................... 11
I. Under Fifth Circuit precedent, Plaintiffs cannot invoke habeas corpus to challenge the conditions of their confinement. ....................................................................................... 11
II. Plaintiffs’ direct constitutional claims seeking release are not cognizable, and, even if they were, the facts here do not support a constitutional violation................................... 13 a. Plaintiffs do not plead a constitutional violation. .............................................. 13

b. The proactive measures Defendants have taken to prevent COVID-19 show that they are neither punishing Plaintiffs nor deliberately indifferent to their needs. ................................................................................................................. 15

III. Plaintiffs do not state claims under the Rehabilitation Act............................................... 18
a. Courts across the country do not recognize Rehabilitation Act claims by federal detainees, and Plaintiffs’ claims relating to their removal procedures are barred…………………………………………………………………………....18

b. Even if they could bring Rehabilitation Act claims, Plaintiffs allege in only conclusory fashion that they have been excluded from activities or programs because of their disabilities. ................................................................................ 21

IV.

This Court should not micromanage the detention centers’ measures to prevent

COVID-19. ................................................................................................................ 24

V.

The public interest favors Plaintiffs’ continued detention. ....................................... 25

Conclusion .................................................................................................................................... 25

Certificate of Service .................................................................................................................... 26

i

Case 5:20-cv-00054 Document 14 Filed on 04/24/20 in TXSD Page 3 of 34
Table of Authorities
Page(s) Cases Alexander v. Sandoval,
532 U.S. 275 (2001) .................................................................................................................. 19 Alexander v. Trump,
753 F. App’x 201 (5th Cir. 2018) ............................................................................................. 14 Arce v. Louisiana,
226 F. Supp. 3d 643 (E.D. La. 2016) ........................................................................................ 21 Ashcroft v. Iqbal,
556 U.S. 662 (2009) .................................................................................................................. 10 Bell v. Wolfish,
441 U.S. 520 (1979) .................................................................................................................. 14 Bellikoff v. Eaton Vance Corp.,
481 F.3d 110 (2d Cir. 2007)...................................................................................................... 19 Bennett–Nelson v. Louisiana Board of Regents,
431 F.3d 448 (5th Cir.2005)...................................................................................................... 21 Bivens v. Six Unknown Federal Narcotics Agents,
403 U.S. 388 (1971) ............................................................................................................ 11, 14 Bryant v. Madigan,
84 F.3d 246 (7th Cir.1996)........................................................................................................ 21 Cadena v. El Paso County,
946 F.3d 717 (5th Cir. 2020)..................................................................................................... 21 Carlson v. Landon,
342 U.S. 524 (1952) .................................................................................................................. 23 Dawson v. Asher,
2020 WL 1704324 (W.D. Wash. Apr. 8, 2020) ........................................................................ 18
ii

Case 5:20-cv-00054 Document 14 Filed on 04/24/20 in TXSD Page 4 of 34
De Dandrade v. U.S. Dep’t of Homeland Sec., 367 F. Supp. 3d 174 (S.D.N.Y. 2019) ....................................................................................... 19
Demore v. Kim, 538 U.S. 510 (2003) .................................................................................................................. 23
Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752 (5th Cir. 2001)..................................................................................................... 14
EEOC v. Agro Distrib., 555 F.3d 462 (5th Cir. 2009)..................................................................................................... 21
Fraihat v. U.S. Immigration & Customs, Enf’t, 2020 WL 1932570 (C.D. Cal. Apr. 20, 2020)..................................................................... 24, 25
Garrett v. Thaler, 560 F. App’x 375 (5th Cir. 2014) ............................................................................................. 21
Gobert v. Caldwell, 463 F.3d 339 (5th Cir. 2006)..................................................................................................... 14
Hearth, Inc. v. Dep’t of Public Welfare, 617 F.2d 381 (5th Cir. 1980)..................................................................................................... 14
Hernandez v. Garrison, 916 F.2d 291 (5th Cir. 1990)..................................................................................................... 11
Hurtado v. Reno, 34 F. Supp. 2d 1261 (D. Colo. 1999) ........................................................................................ 19
Inko-Tariah v. Lappin, 2009 WL 8652932 (E.D.N.C. Apr. 1, 2009) ............................................................................. 20
Jorge V. S. v. Green, 2020 WL 1921936 (D.N.J. Apr. 21, 2020) ............................................................................... 18
Khan v. Fort Bend Indep. Sch. Dist., 561 F. Supp. 2d 760 (S.D. Tex. 2008) ...................................................................................... 10
Livas v. Myers, 2020 WL 1939583 (W.D. La. Apr. 22, 2020) ..................................................................... 11, 13
Martinez v. Mathews, 544 F.2d 1233 (5th Cir.1976).................................................................................................... 10
iii

Case 5:20-cv-00054 Document 14 Filed on 04/24/20 in TXSD Page 5 of 34
Mathis, v. GEO Group, Inc., 2009 WL 10736631 (E.D.N.C. Nov. 9, 2009) .......................................................................... 19
Nken v. Holder, 556 U.S. 418 (2009) .................................................................................................................. 25
Northup v. Thaler, 2012 WL 4068676 (S.D. Tex. Aug. 7, 2012)............................................................................ 12
Nottingham v. Richardson, 499 F. App’x 368 (5th Cir. 2012) ............................................................................................. 21
Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999) ............................................................................................................ 21, 22
P.L. v. U.S. Immigration & Customs, Enf’t, 2019 WL 2568648 (S.D.N.Y. June 21, 2019)........................................................................... 20
Patrick v. Whitaker, 2019 WL 588465 (S.D. Tex. 2019)........................................................................................... 12
Pierre v. United States, 525 F.2d 933 (5th Cir. 1976)............................................................................................... 11, 13
Poree v. Collins, 866 F.3d 235 (5th Cir. 2017)..................................................................................................... 11
Rivera Rosa v. McAleenan, 2019 WL 5191095 (S.D. Tex. 2019)......................................................................................... 12
Roark v. Flanery, 2014 WL 4447451 (E.D. Tex. Sept. 9, 2014) ........................................................................... 19
Rourke v. Thompson, 11 F.3d 47 (5th Cir. 1993)................................................................................................... 11, 13
Sacal-Micha v. Longoria, 2020 WL 1815691 (S.D. Tex. Apr. 9, 2020) ..................................................................... passim
Sacal-Micha, 2020 WL 1518861..................................................................................................................... 18
Sandler v. Anderson, 2008 WL 2610130 (W.D. Mo. July 2, 2008) ............................................................................ 20
iv

Case 5:20-cv-00054 Document 14 Filed on 04/24/20 in TXSD Page 6 of 34
Sarres Mendoza v. Barr, 2019 WL 1227494 (S.D. Tex. 2019)......................................................................................... 12
Schipke v. Van Buran, 239 F. App’x 85 (5th Cir. 2007)................................................................................................ 11
Sepulvado v. Jindal, 729 F.3d 413 (5th Cir. 2013)..................................................................................................... 10
Shepherd v. Dallas Cty., 591 F.3d 445 (5th Cir. 2009)............................................................................................... 14, 15
Spencer v. Bragg, 310 F. App’x 678 (5th Cir. 2009) ............................................................................................. 12
United States v. Martinez-Fuerte, 428 U.S. 543 (1976) .................................................................................................................. 25
United States v. Robinson, 2009 WL 1507130 (S.D. Tex. 2009)......................................................................................... 11
Valentine v. Collier, No. 20-20207, 2020 WL 1934431 (5th Cir. Apr. 22, 2020) ................................... 15, 16, 17, 24
Wells v. Thaler, 460 F. App’x 303 (5th Cir. 2012) ............................................................................................. 21
Williams v. Meese, 926 F.2d 994 (10th Cir. 1991)................................................................................................... 20
Wolcott v. Sebelius, 635 F.3d 757 (5th Cir. 2011)..................................................................................................... 10
Wong Wing v. United States, 163 U.S. 228 (1896) .................................................................................................................. 23
Youngberg v. Romeo, 457 U.S. 307 (1982) .................................................................................................................. 25
Statutes 8 U.S.C. § 1252(b)(9) ................................................................................................................... 20
28 U.S.C. § 2241........................................................................................................................... 12
v

Case 5:20-cv-00054 Document 14 Filed on 04/24/20 in TXSD Page 7 of 34 29 U.S.C. § 794a(a)(2) .................................................................................................................. 19 42 U.S.C. § 1983........................................................................................................................... 11 U.S.C. § 1983................................................................................................................................ 11 Rules FED. R. CIV. P. 201 ..................................................................................................................... 10 Regulations 8 C.F.R. § 1231(a)(1) .................................................................................................................. 2, 4 8 C.F.R. § 1241.1 ........................................................................................................................ 2, 4
vi

Case 5:20-cv-00054 Document 14 Filed on 04/24/20 in TXSD Page 8 of 34

Exhibits

Number Plaintiff

1

Gonzalez

2

Gonzalez

3

Gonzalez

4

Gonzalez

5

Gonzalez

6

Olvera

7

Olvera

8

Olvera

9

Olvera

10 Olvera 11 Olvera 12 Olvera

13 Both 14 Both

Description Medical records from Rio Grande Detention Center Letter to Deportation Officer re: alleged asthma, dated 4-6-2020 Select immigration records Declaration by Assistant Field Office Director Cerna (ICE) re: Rio Grande Detention Center Declaration by Facility Administrator Javier Aleman re: Rio Grande Detention Center Medical records from Webb County Detention Center Medical records from South Texas ICE Processing Center Select immigration records Declaration by Assistant Field Office Director Cerna (ICE) re: Webb County Detention Center Declaration by Warden Garcia re: Webb County Detention Center Declaration by Dr. Ivens Declaration by Officer in Charge Andrew Huron (ICE) re: transfer to Webb County Detention Center ICE Guidance re: Custody Review, dated 4-4-2020 ICE ERO COVID-19 Pandemic Response Requirements, dated 4-102020

vii

Case 5:20-cv-00054 Document 14 Filed on 04/24/20 in TXSD Page 9 of 34
Introduction and Summary Plaintiffs essentially allege that immigration detention is now unconstitutional and ask the Court to order their immediate release. Plaintiffs Giorge Gonzalez and Rafael Olvera Amezcua bring habeas corpus claims alleging that their continued detention at the Rio Grande Detention Center and the Webb County Detention Center, respectively, violate the Fifth Amendment to the Constitution. Their claims focus on their alleged medical vulnerabilities: Olvera suffers from diabetes and hypertension, among other ailments; and although otherwise young and healthy, Gonzalez claims that “since he was about two years old,” he has experienced “chronic and severe asthma”—a condition he denied having until a few weeks ago. Even assuming Plaintiffs’ allegations are true, they do not state a claim. The Fifth Circuit does not recognize a conditions-of-confinement habeas corpus claim. And a cause of action against the federal government directly under the Constitution is similarly not cognizable. Even if these claims could be brought in the Fifth Circuit, Plaintiffs have pled merely the potential introduction of a disease coupled with typical conditions of a densely populated detention facility—allegations the Fifth Circuit has made clear do not amount to a constitutional violation. Moreover, the evidence submitted here shows that these allegations are without merit. Plaintiffs also do not state claims under the Rehabilitation Act where courts across the country have held that federal detainees may not bring Rehabilitation Act claims and where Plaintiffs do not articulate what programs or services they allegedly have been excluded from. This case—with dubious claims and a detailed record of the actions Defendants are taking to prevent COVID-19—does not warrant this Court’s intervention into Defendants’ management of their detention centers. Defendants’ evolving proactive measures show that they are responsive to the ever-changing threat of COVID-19 and are working to protect their detainees.
1

Case 5:20-cv-00054 Document 14 Filed on 04/24/20 in TXSD Page 10 of 34
Factual and Procedural Background Giorge Gonzalez. Gonzalez is a 28-year-old native and citizen of Cuba who applied for admission into the United States at the Gateway to the Americas Port of Entry in Laredo, Texas, on July 2, 2019, and claimed fear of returning to Cuba. (Ex. 3 at 1–2.) He was placed in expedited removal, referred for a credible fear interview, and transferred to the Rio Grande Detention Center in Laredo, Texas, where he remains. (Id. at 1, 24.) After an asylum officer found that Gonzalez had a credible fear of returning to Cuba, Gonzalez was issued a Notice to Appear and placed in removal proceedings under INA section 240. (Id. at 23, 35.) On December 30, 2019, Gonzalez filed a Form I-589 seeking asylum, withholding of removal, and protection under the Convention Against Torture. (See id. at 4.) On March 9, 2020, after the merits hearing, the immigration judge denied Gonzalez’s petitions and ordered him removed to Cuba. (Id.) On March 30, 2020, Gonzalez appealed to the Board of Immigration Appeals (BIA). (Id. at 30.) The appeal remains pending. While he awaits his appeal, Gonzalez’s removal order is not administratively final. 8 C.F.R. § 1241.1. As a result, the 90-day removal period has not begun. See 8 C.F.R. § 1231(a)(1). Gonzalez reported no history of asthma while in ICE custody until April 2020. When Gonzalez entered the country, he claimed to be in good health, he was not taking any medication, and he did not request any medical attention. (Ex. 3 at 3.) During his initial assessment on July 17, 2019, Gonzalez stated that he did not have asthma. (Ex. 1 at 48.) The first time Gonzalez claimed that he had asthma was on April 6, 2020, when he sent a letter asking for salbutamol, an asthma medication. (Ex. 2 at 1.) On April 9, 2020, he submitted a request for the same medication. (Ex. 1 at 7.) When examined, the medical providers did not find any shortness of breath, and Gonzalez’s
2

Case 5:20-cv-00054 Document 14 Filed on 04/24/20 in TXSD Page 11 of 34
lungs were clear. (Ex. 5 ¶ 10.) Gonzalez has not had any asthma attacks or made any other asthmarelated complaints during his detention. (Id.)
Even after filing this lawsuit based on his alleged chronic and severe asthma, Gonzalez has since stated under oath that he has no medical conditions. On April 17, 2020, Gonzalez provided a sworn statement in connection with his application for admission. (Ex. 3 at 26.) When asked if he had any medical issues, he testified “no.” (Id. at 27.)
Rafael Olvera. Rafael Olvera is a native and citizen of Mexico who was admitted in the United States at Laredo, Texas, on November 8, 2014, as a nonimmigrant L-1 (Intra Company Transferee) with authorization to remain in the United States for a temporary period not to exceed October 3, 2017. (Ex. 8 at 1-2.) However, he remained in the United States beyond October 3, 2017, without authorization from the Department of Homeland Security (DHS). (Id.)
On May 24, 2019, Enforcement and Removal Operations (ERO) officers arrested Olvera. (Id.) On the same day, DHS issued a Notice to Appear alleging that Olvera had remained in the United States beyond the authorized period and was removable under section 237(a)(1)(B) of the INA. (Id.) Olvera expressed fear of returning to Mexico and filed a Form I-589 asking for asylum, withholding of removal, and protection under the Convention Against Torture. (See id. at 4.) Additionally, Olvera filed an application to adjust his status to become a lawful permanent resident (Form I-485). (Id.)
In July 2019, the immigration judge denied Olvera’s request to be released on bond, finding that he is a flight risk. (Id. at 3–4.) The court noted that there was “serious reason to believe that [Olvera] has committed a crime involving moral turpitude” and that there was an “Interpol ‘Red Notice’ out on behalf of the Mexican government seeking to arrest and prosecute [Olvera] for the crime of generic fraud.” (Id. at 4.) The court determined that Olvera presented a flight risk because
3

Case 5:20-cv-00054 Document 14 Filed on 04/24/20 in TXSD Page 12 of 34
of his limited eligibility for relief, his pending arrest warrant in Mexico, and his access to “tremendous financial resources.” (Id.) On August 19, 2019, Olvera again requested release on bond. On September 13, 2019, the immigration judge denied the request, concluding no circumstances had changed. The court noted that Olvera had four active warrants against him and determined him to be a “high flight risk.” (Id. at 8–9.) On December 17, 2019, the BIA affirmed the immigration judge’s determination that the petitioner if a flight risk and that “no bond amount will mitigate that risk.” (Id. at 16.)
On December 4, 2019, the immigration court in Pearsall, Texas, held Olvera’s merits hearing, denied Olvera’s applications, and ordered him removed to Mexico. (Id. at 13.) On December 13, 2019, Olvera appealed that decision to the BIA. (Id. at 20.) The appeal remains pending, and therefore the order of removal is not administratively final. 8 C.F.R. § 1241.1. As a result, the 90-day removal period has not begun. See 8 C.F.R. § 1231(a)(1).
In an effort to provide Olvera a more segregated detention setting, ICE decided to transfer him to Webb County Detention Center because it has the capacity to house individuals in smaller dormitories. (See Ex. 12.) On April 2, 2020, Olvera arrived at WCDC with his prescribed medications and, prior to booking, was screened for chicken pox, mumps, influenza, and COVID19. (Ex. 11 ¶ 20.) An intake, Olvera consented to a full medical screening and medical examination to determine his health status and acknowledged the receipt of a Detainee Handbook containing, among other things, medical information including his access to medical care. (Id. ¶ 21.) WCDC personnel confirmed that Olvera had not been in close contact with any individual with a confirmed COVID-19 diagnosis within the past 14 days. (Id. ¶ 22.) His temperature was 97.3 degrees, and he exhibited no symptoms of any type of respiratory illness. (Id.) He was counseled on the importance of proper hygiene, including proper handwashing for at least 20 seconds, coughing into his sleeve
4

Case 5:20-cv-00054 Document 14 Filed on 04/24/20 in TXSD Page 13 of 34
or a tissue, avoiding touching his eyes, nose, and mouth, and the signs of hypertension, hypotension, hyperglycemia, and hypoglycemia. (Id.)
Olvera participates in the medical unit’s chronic care clinic for treatment of Type II Diabetes, hypertension (high blood pressure), and dyslipidemia (high cholesterol). (Id. ¶ 19.) He is prescribed various medications for these conditions, which are administered to him at the requisite times on a daily basis. (Id.) Chronic care patients typically are scheduled to see a medical provider at least every six months, or more frequently as designated by a provider, to provide heightened care in order to prevent complications due to certain health conditions. (Id.)
Olvera has received consistent medical care at the facility since his arrival. (Id. ¶¶ 21–26.) He has not exhibited or complained of any COVID-19 symptoms, and his B/S and B/P levels have dramatically improved since his arrival. (Id. ¶ 27.) Since his arrival, Olvera has been in a protective cohort setting and separated from the general population. (Id. ¶ 17.)
ICE Guidance Regarding Custody Reviews. On April 4, 2020, Peter Berg, an Assistant Director of Field Operations with ICE, circulated guidance to ICE officers regarding the review of cases of aliens who may be at higher risk for serious illness from COVID-19. (Ex. 13.) Expanding on its earlier instruction to review the cases of aliens over age 70 or who are pregnant, ICE Enforcement and Removal Operations (ERO) identified several categories of cases to be reviewed to re-assess custody: pregnant detainees or those having recently delivered babies; detainees over 60 years old; detainees of any age with chronic illness, including blood disorders, chronic kidney disease, compromised immune systems, endocrine disorders, metabolic disorders, heart disease, lung disease, and neurological or neurodevelopment conditions. (Id. at 1–2.) The guidance notes, however, that the presence of one of these favors “may not always be determinative.” (Id. at 2.)
5

Case 5:20-cv-00054 Document 14 Filed on 04/24/20 in TXSD Page 14 of 34
ICE ERO COVID-19 Pandemic Response Requirements. On April 10, 2020, ICE expanded on its earlier guidance and issued COVID-19 Pandemic Response Requirements (PRR) setting forth expectations and assisting ICE detention facility operators to sustain detention operations while mitigating the risk of COVID-19. (Ex. 14 at 3.) The PRR was “developed in consultation with the Centers for Disease Control and Prevention and is a dynamic document that will be updated as additional/revised information and best practices become available.” (Id.) Among other requirements, the PRR mandates that all ICE detention facilities comply with CDC guidance. (Id. at 5–6.) It sets forth in detail specific requirements for staffing, supplies, hygiene, and cleaning practices. (Id. at 8–10.) It also provides screening questions for all staff and new entrants. (Id. at 12.) And it provides measures to encourage social distancing. (Id. at 13–14.) Finally, it sets forth procedures in the event of a positive COVID-19 case. (Id. at 14–16.)
Rio Grande Detention Center. Gonzalez is detained at ICE’s Rio Grande Detention Center. RGDC is following ICE ERO’s COVID-19 Pandemic Response Requirements. (Ex. 4 ¶ 9.) Social visitation has been suspended, and necessary visitors are screened. (Ex. 5 ¶ 14.) All detainees are likewise screened at intake. (Ex. 4 ¶¶ 10–11.) They are assessed for fever and respiratory symptoms, are asked to confirmed if they have had close contact with a person with COVID-19, and whether they have traveled through areas with his rates of the virus. (Id. ¶ 11.) Any detainee presenting with symptoms would be isolated and tested. (Id. ¶ 12.) If positive, the detainee would remain isolated and receive treatment. (Id.) If necessary, the detainee would be transported to a local hospital for treatment. (Id.)
In the case of known exposure, asymptomatic detainees would be placed in cohorts with restricted movement for 14 days. (Id. ¶ 13.) Cohorting is an infection-prevention strategy that
6

Case 5:20-cv-00054 Document 14 Filed on 04/24/20 in TXSD Page 15 of 34

houses detainees together who were potentially exposed to a person with an infectious organism but are asymptomatic. (Id.)
At RGDC, the medical facility provides daily access to sick calls in clinical settings and has an onsite medical infirmary. (Id. ¶ 14.) The facility currently has no suspected cases of COVID19 among the detainee population. (Id. ¶ 15.) One employee previously tested positive for COVID19, but that employee had self-isolated for 20 days before she tested positive. (Ex. 5 ¶ 12.) She has had no contact with RGDC staff or detainees and has not yet returned to work. (Id.)
RGDC is currently operating at just 19% capacity. (Id. ¶ 8.) Gonzalez’s individual dorm is at 35% capacity. (See id. ¶ 9.)
RGDC has increased its sanitation efforts in response to COVID-19. Cleaning is continuous throughout the day: shared equipment is cleaned several times per day, transport vehicles are cleaned thoroughly before, during, and after use. (Ex. 4 ¶ 17.) Every week, every housing area is disinfected with a foaming agent from the ceiling to the floor. (Ex. 5 ¶ 13.) Detainees are given three masks per week. (Id. ¶ 3.) Detainees are also given double the normal allotment of soap. (Id. ¶ 5.) If they ask for more, they will receive it. (Id.) Gonzalez has not requested any additional soap or masks. (Id. ¶¶ 4, 6.) Detainees are also educated on COVID-19 prevention procedures. (Ex. 4 ¶ 21.)
Gonzalez has displayed no symptoms of COVID-19, and therefore he has not met the criteria for testing per CDC guidance. (Id. ¶ 24.)
Webb County Detention Center. The Webb County Detention Center (WCDC), where Olvera is detained, has taken numerous steps to prevent the introduction of COVID-19 into the facility.1 The facility, which is operated by CoreCivic, is following both CoreCivic’s Pandemic

1

The attached declarations (Exs. 9–11) provide extensive details and evidence of Webb County

Detention Center’s preventative measures, which are too long to recite within this motion’s page limitation.

7

Case 5:20-cv-00054 Document 14 Filed on 04/24/20 in TXSD Page 16 of 34
Coronavirus Plan and ICE ERO’s COVID-19 Pandemic Response Requirements. (Ex. 10 ¶¶ 14, 19.) The facility is operating at 74% capacity and houses only 17 ICE detainees at the moment. (Id. ¶ 20.) WCDC has had zero confirmed cases of COVID-19 among staff and detainees. (Id. ¶ 22.) There are no suspected cases, and no detainees are on medical observation or on quarantine status. (Id. ¶ 23.) Following CDC and ICE guidelines, WCDC has suspended social visitation, as well as volunteer entry. (Id. ¶ 32.) All persons entering the facility are subject to health screening, which consists of a screening questionnaire and temperature check. (Id. ¶ 33.) Attorneys visiting WCDC must bring their own personal protective equipment, and a glass barrier separates attorneys from their clients during their meetings. (Id. ¶ 39.) Alternatively, attorneys may speak with their clients by telephone or email. (Id. ¶ 42.)
As with visitors and staff, incoming detainees are also screened. (Id. ¶ 44.) The new detainees are then housed together for 14 days after intake before being integrated into the facility population. (Id. ¶ 47.) During this period, they are monitored daily for potential symptoms. (Id.) Detainees are also educated on COVID-19 prevention measures. (Id. ¶¶ 48, 52–55.)
WCDC has taken measures to promote social distancing and the spread of germs. ICE detainees are provided two hours of recreation each day, and they are instructed to maintain six feet of physical distance during recreation or free time. (Id. ¶ 61.) Also, detainees are provided masks and are encouraged to wear them. (Id. ¶ 64.) WCDC has also enhanced its sanitation practices. For example, detainees are given hand sanitizer as well as disinfectant and paper towels to clean their immediate living areas. (Id. ¶¶ 71–72, 75.)
Olvera was moved to WCDC because of his age and health. (Id. ¶ 25.) WCDC has smaller housing units and thus increased separation capacity. (Id. ¶ 29.) Olvera is housed in a protective cohort setting in a twelve-detainee dorm that is currently occupied by only five detainees. (Id.
8

Case 5:20-cv-00054 Document 14 Filed on 04/24/20 in TXSD Page 17 of 34
¶¶ 26–27.) He is separated from the rest of the population and not intermixing with other populations. (Id. ¶ 27.) Staff entering protective cohort units wear masks and gloves, meals are provided on-unit, and protective cohort detainees recreate together and do not mix with other housing units. (Id. ¶ 28.) Olvera has not made any requests for extra supplies like soap, masks, or gloves, or to be housed in an even less populated area. (Id.) Olvera has displayed no symptoms of COVID-19, and therefore he has not met the criteria for testing per CDC guidance. (Ex. 4 ¶ 23.)
Plaintiffs filed a habeas corpus petition in this Court on April 15, 2020, seeking their immediate release because they claim that their detention violates their substantive due process rights under the Fifth Amendment. (See generally Dkt. 1.) Alternatively, they seek improved conditions. (Id.) The U.S. Attorney’s Office was served on April 23, 2020. Defendants now move to dismiss Plaintiffs’ claims and respond to their request for immediate injunctive relief, in accordance with this Court’s order.
Issues 1. Whether Plaintiffs may seek release under habeas corpus due to the conditions of their confinement when the Fifth Circuit has made clear such a claim is not cognizable. 2. Whether Plaintiffs may bring claims directly under the Constitution to seek their release where the Fifth Circuit does not recognize such a claim. 3. Whether Plaintiffs state claims under the Rehabilitation Act where courts across the country have not allowed Rehabilitation Act claims by federal detainees and where Plaintiffs do not actually allege they cannot participate in their removal proceedings. 4. Whether this Court should order certain conditions at ICE detention centers where (i) the Central District of California is already doing so; (ii) Plaintiffs do not articulate what improved conditions they would deem satisfactory; and (iii) the Fifth Circuit recently stayed an injunction against the Texas Department of Criminal Justice that imposed detailed COVID-19 prevention measures on the state prisons.
9

Case 5:20-cv-00054 Document 14 Filed on 04/24/20 in TXSD Page 18 of 34
Standard Rule 12(b)(6) provides for the dismissal of a complaint that fails to state a claim upon which relief can be granted. In ruling on a 12(b)(6) motion, courts may consider the complaint, its attachments and documents incorporated by reference, and matters of which the court may take judicial notice. Wolcott v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011); see also FED. R. CIV. P. 201. Courts need not accept a plaintiff’s legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Wolcott, 635 F.3d at 763. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678–79. “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. Preliminary injunctive relief is an extraordinary remedy that should not be granted unless the movant establishes the following four elements by a preponderance of the evidence: “(1) there is a substantial likelihood of success on the merits; (2) there is a substantial threat that irreparable injury will result if the injunction is not granted; (3) the threatened injury outweighs the threatened harm to the defendant; and (4) granting the preliminary injunction will not disserve the public interest.” Khan v. Fort Bend Indep. Sch. Dist., 561 F. Supp. 2d 760, 763 (S.D. Tex. 2008) (citation omitted). The movant must unequivocally show the need for preliminary injunctive relief. Sepulvado v. Jindal, 729 F.3d 413, 417 (5th Cir. 2013), cert. denied, 134 S. Ct. 1789 (2014) (internal citations and quotations omitted). The standard is heightened further when a party seeks mandatory preliminary relief that alters the status quo. Martinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir.1976). Although Plaintiffs have not yet filed a separate motion for a temporary restraining order or for a preliminary injunction, Defendants respond to their arguments preliminarily. Should they file a motion, Defendants would ask to be given the opportunity to respond more fully.
10

Case 5:20-cv-00054 Document 14 Filed on 04/24/20 in TXSD Page 19 of 34
Argument I. Under Fifth Circuit precedent, Plaintiffs cannot invoke habeas corpus to
challenge the conditions of their confinement. Plaintiffs invoke habeas corpus to challenge the constitutionality of their conditions of confinement and seek release. But habeas corpus is not a means by which to challenge conditions of confinement. “Simply stated, habeas is not available to review questions unrelated to the cause of detention.” Pierre v. United States, 525 F.2d 933, 935 (5th Cir. 1976). In other words, a plaintiff “cannot avail himself of the writ of habeas corpus when seeking injunctive relief unrelated to the cause of his detention.” Rourke v. Thompson, 11 F.3d 47, 49 (5th Cir. 1993) (emphasis added). The Fifth Circuit, and district courts within this Circuit, have long recognized that habeas corpus actions are the proper vehicle to “challenge the fact or duration of confinement,” whereas allegations that challenge an individual’s “conditions of confinement” are “properly brought in civil rights actions.” Schipke v. Van Buran, 239 F. App’x 85, 85–86 (5th Cir. 2007); see also Poree v. Collins, 866 F.3d 235, 243 (5th Cir. 2017) (noting the “instructive principle that challenges to the fact or duration of confinement are properly brought under habeas, while challenges to the conditions of confinement are properly brought under [civil rights actions]”) (citations omitted); Hernandez v. Garrison, 916 F.2d 291, 293 (5th Cir. 1990) (holding that claims of overcrowding, denial of medical treatment, and access to an adequate law library were not proper subjects of a habeas corpus petition); Livas v. Myers, 2020 WL 1939583, at *8 (W.D. La. Apr. 22, 2020) (“Neither party nor this Court found a single precedential case in the Fifth Circuit . . . allowing conditions of confinement claims to be brought under § 2241.”); United States v. Robinson, 2009 WL 1507130, at *4 (S.D. Tex. 2009) (“Claims concerning the conditions of confinement are actionable, if at all, under 42 U.S.C. § 1983 or Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), and not under the habeas corpus statutes.”).
11

Case 5:20-cv-00054 Document 14 Filed on 04/24/20 in TXSD Page 20 of 34
Even when a petitioner alleges that inadequate conditions of confinement create the risk of serious physical injury, illness, or death, a petition for a writ of habeas corpus is not the proper vehicle for such a claim. See, e.g., Spencer v. Bragg, 310 F. App’x 678, 679 (5th Cir. 2009) (affirming the lower court’s dismissal of petitioner’s habeas claim even though he alleged that the conditions of confinement endangered his life); Northup v. Thaler, 2012 WL 4068676, at *2 (S.D. Tex. Aug. 7, 2012), rep. & rec. adopted, 2012 WL 4068997 (S.D. Tex. Sept. 14, 2012) (dismissing petitioner’s habeas claim based on alleged risk of abuse by other inmates).
The same is true in the civil immigration context. When a Mexican national sought release from ICE custody due to concerns for COVID-19, another member of this Court dismissed the petition, noting, “The Fifth Circuit has not recognized [habeas corpus as a permissible avenue for relief from alleged inadequate conditions of confinement].” Sacal-Micha v. Longoria, 2020 WL 1815691, at *5 n.6 (S.D. Tex. Apr. 9, 2020) (Rodriguez, J.). Likewise, when civil Border Patrol detainees sought release from custody to cure allegedly unconstitutional conditions, that Court noted, “Any person in custody can obtain relief from allegedly inadequate conditions by being released, but this fact does not create a permissible habeas corpus claim when the complaint turns on the conditions of confinement.” Rivera Rosa v. McAleenan, 2019 WL 5191095, at *18 (S.D. Tex. 2019). See also Sarres Mendoza v. Barr, 2019 WL 1227494, at *2 (S.D. Tex. 2019) (denying Honduran detainee’s motion for leave to amend because the proposed claims on “conditions of confinement may not be brought in a habeas corpus proceeding, and are actionable, if at all, in a civil rights action”); Patrick v. Whitaker, 2019 WL 588465, at *4, n.36 (S.D. Tex. 2019), appeal dismissed, 2019 WL 4668409 (5th Cir. 2019) (ICE detainee’s “motion for leave to file supplemental pleadings concerning the conditions of his confinement” is denied because “Petitioner’s proposed claims are not actionable under 28 U.S.C. § 2241.”).
12

Case 5:20-cv-00054 Document 14 Filed on 04/24/20 in TXSD Page 21 of 34
“A detention facility’s protocols for isolating individuals, controlling the movement of its staff and detainees, and providing medical care are part and parcel of the conditions in which the facility maintains custody over detainees.” Sacal-Micha, 2020 WL 1815691, at *4. These conditions of confinement are precisely what Plaintiffs challenge here. (See, e.g., Dkt. 1 ¶ 63 (“Once COVID-19 is introduced to the Detention Centers under current conditions, it will be impossible to stop the spread . . . .”); id. ¶ 70 (“The ERO PRR is inadequate to provide safe conditions for Petitioners”); id. ¶ 100 (“The conditions at the Webb County Detention Center contravene medical and public health directives for risk mitigation.”).) Because their request for release is due to the conditions, the Fifth Circuit has barred their claims. If their habeas claims are allowed here, any detainee could simply seek release to sidestep the Fifth Circuit’s express admonition that habeas corpus is not a means to challenge conditions of confinement. This loophole would swallow the rule.
Finally, habeas corpus is meant to correct only unlawful detention. Plaintiffs do not challenge the lawfulness of their custody or the cause of their detention. See Pierre, 525 F.2d at 935–36; Livas, 2020 WL 1939583, at *7–8 (denying prisoners’ requests for home confinement because of concerns of COVID-19 and noting that they incorrectly invoked habeas corpus to challenge their lawful imprisonment). Thus, Plaintiffs cannot invoke habeas to seek relief unrelated to the cause of their detention. See Rourke, 11 F.3d at 49.
II. Plaintiffs’ direct constitutional claims seeking release are not cognizable, and, even if they were, the facts here do not support a constitutional violation. a. Plaintiffs do not plead a constitutional violation.
To the extent Plaintiffs bring direct constitutional claims seeking their release, they may not do so in the Fifth Circuit. “Although there have been a few notable exceptions, the federal courts, and this Circuit in particular, have been hesitant to find causes of action arising directly
13

Case 5:20-cv-00054 Document 14 Filed on 04/24/20 in TXSD Page 22 of 34
from the Constitution.” Alexander v. Trump, 753 F. App’x 201, 206 (5th Cir. 2018) (rejecting a freestanding constitutional complaint against the FBI seeking injunctive relief). See also Hearth, Inc. v. Dep’t of Public Welfare, 617 F.2d 381, 382 (5th Cir. 1980) (citing Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), as one “notable exception”). Recognizing a claim directly under the Fifth Amendment to order Plaintiffs’ release would be a departure from Fifth Circuit precedent. See Sacal-Micha, 2020 WL 1815691, at *5–6.
Even if a direct constitutional claim were cognizable in this Circuit, Plaintiffs have not pled it. In a conditions-of-confinement case, “the proper inquiry is whether those conditions amount to punishment of the detainee.” Bell v. Wolfish, 441 U.S. 520, 535 (1979). Under Fifth Circuit case law, “isolated examples of illness, injury, or death, standing alone, cannot prove that conditions of confinement are constitutionally adequate. Nor can the incidence of diseases or infections, standing alone, . . . since any densely populated residence may be subject to outbreaks.” Shepherd v. Dallas Cty., 591 F.3d 445, 454 (5th Cir. 2009). A detainee does not establish a case simply by alleging that the detention center has disease or infection present or that it may in the future. “Rather, a detainee . . . must demonstrate a pervasive pattern of serious deficiencies in providing for his basic human needs.” Id.
Alternatively, if the detainee challenges an officer’s episodic act or omission, he must demonstrate that the official acted with deliberate indifference to his medical needs or safety. See, e.g., Gobert v. Caldwell, 463 F.3d 339, 345 (5th Cir. 2006). Officials disregard a risk to an inmate when they “refuse[] to treat him, ignore[] his complaints, intentionally treat[] him incorrectly, or engage[] in any similar conduct that would clearly evince a wanton disregard for any serious medical needs.” Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001). Plaintiffs seem to allege both theories simultaneously. (See Dkt. 1 ¶¶ 127–28.)
14

Case 5:20-cv-00054 Document 14 Filed on 04/24/20 in TXSD Page 23 of 34
But Plaintiffs’ allegations here do not support either a “pervasive pattern of serious deficiencies in providing for basic human needs” or a “wanton disregard for serious medical needs.” Neither Plaintiff alleges that Defendants have failed to provide them with any medical care they may require. Rather, their allegations focus on the fact that they are detained with others in typical detention-facility conditions and cannot exercise social distancing. But, even taking these allegations as true, Fifth Circuit expressly forecloses Plaintiffs’ claim: “any densely populated residence may be subject to outbreaks,” and the existence of a disease does not state a constitutional violation. Shepherd, 591 F.3d at 454. The Fifth Circuit recently reaffirmed this principle in the context of COVID-19 in staying the preliminary injunction order against the Texas Department of Criminal Justice (TDCJ) relating to its COVID-19 prevention procedures. Valentine v. Collier, No. 20-20207, 2020 WL 1934431, at *3 (5th Cir. Apr. 22, 2020) (citing Shepherd, 591 F.3d at 454). Where the district court imposed detailed procedures on TDCJ, going beyond CDC guidance and impeding TDCJ’s ability to adapt to changing circumstances, the Fifth Circuit noted that TDCJ is likely to prevail on the merits of its appeal. See id. at *3–4.
b. The proactive measures Defendants have taken to prevent COVID-19 show that they are neither punishing Plaintiffs nor deliberately indifferent to their needs.
In staying the district court’s injunction against TDCJ, the Fifth Circuit found that Texas prisoners challenging the prisons’ COVID-19 measures failed to show deliberate indifference because “the evidence shows that TDCJ has taken and continues to take measures—informed by guidance from the CDC and medical professionals—to abate and control the spread of the virus.” Valentine, 2020 WL 1934431, at *4. The same is true here.
Webb County Detention Center has taken extensive measures to prevent COVID-19: • CoreCivic is providing ongoing instruction to its facilities consistent with CDC guidelines
and state and local health authorities (Ex. 10 ¶ 9.) Recommendations are changing as often as daily. (Id.)
15

Case 5:20-cv-00054 Document 14 Filed on 04/24/20 in TXSD Page 24 of 34
• Every day the facilities participate in a CoreCivic Emergency Operations Center conference call to review current and new protocols and receive updates. (Id. ¶ 10.)
• All CoreCivic facility administrators have access to a SharePoint cite with all updated protocols. (Id.)
• CoreCivic has activated its Incident Command Center for more effective communication. (Id. ¶ 11.)
• CoreCivic issued an initial Pandemic Coronavirus Plan in February 2020. (Id. ¶ 14.) • CoreCivic’s daily COVID-19 checklist ensures personnel monitor precaution measures,
engage in ongoing communication, monitor and verify supply amounts, and conduct sanitation inspections. (Id. ¶ 18.) • WCDC is operating at 74% capacity, and there are only 17 ICE detainees. (Id. ¶ 20.) • WCDC has placed high-risk ICE detainees in protective cohorts. (Id. ¶ 27.) There are currently seven detainees assigned to a twelve-person dorm. (Id.) • WCDC has limited contact between vulnerable detainees and the general population. (Id. ¶ 28.) All staff entering protective cohorts wear personal protective equipment, including masks and gloves. (Id.) • Meals and medical services are provided on-unit. (Id.) • Social visitation, community facility tours, volunteers, and facility audits have been suspended since March 13, 2020. (Id. ¶ 32.) • All persons entering WCDC are subject to health screening consistent with CDC guidelines. (Id. ¶ 33.) • Attorney visitors must bring their own personal protective equipment, and attorney visits are non-contact with a glass barrier. (Id. ¶ 39.) • Detainees wear facial masks during escort and visits. (Id. ¶ 41.) • Newly received detainees are screened at intake in accordance with CDC guidelines. Specifically, they are tested for fever and respiratory illnesses. (Id. ¶ 44.) If necessary, they are referred to a health provider. (Id. ¶ 45.) • Intake groups are housed together for the initial 14 days. During this period, they are monitored daily for fever or respiratory symptoms. (Id. ¶ 47.) • Detainees are educated on COVID-19 symptoms and prevention measures, including handwashing and the use of surgical masks, with flyers, televisions broadcasts, and biweekly meetings. (Id. ¶ 51–55.) • Social distancing is encouraged. (See id. ¶ 61.) • Detainees are provided free facial masks. (Id. ¶ 64.) • Cleaning supply inventories are checked and restocked daily. (Id. ¶ 67.) • Detainees are given access to liquid soap, paper towels, and sanitation supplies. (Id. ¶¶ 70, 75.)
16

Case 5:20-cv-00054 Document 14 Filed on 04/24/20 in TXSD Page 25 of 34
• Detainees have been given hand sanitizer. (Id. ¶ 71.) • Recreational equipment is cleaned before and after every recreation period. (Id. ¶ 79.) • Frequently touched surfaces are cleaned several times per day. (Id. ¶ 80.) • Detainees and staff have been educated on the appropriate steps to take if they believe they
are infected. (Id. ¶ 83.) • Any detainee with symptoms is to be isolated in the medical unit pending results. At-risk
detainees are to be put in protective cohort housing. (Id. ¶¶ 84–87.)
The Rio Grande Detention Center has similarly taken actions to minimize the risk of COVID-19:
• RGDC is following ICE ERO’s COVID-19 Pandemic Response Requirements. (Ex. 4 ¶ 9.)
• Social visitation has been suspended, and necessary visitors are screened. (Ex. 5 ¶ 14.) • All detainees are likewise screened at intake. (Ex. 4 ¶¶ 10–11.) They are assessed for fever
and respiratory symptoms, are asked to confirmed if they have had close contact with a person with COVID-19, and whether they have traveled through areas with his rates of the virus. (Id. ¶ 11.) • Any detainee presenting with symptoms would be isolated and tested. (Id. ¶ 12.) If positive, the detainee would remain isolated and receive treatment. (Id.) If necessary, the detainee would be transported to a local hospital for treatment. (Id.) • In the case of known exposure, asymptomatic detainees would be placed in cohorts with restricted movement for 14 days. (Id. ¶ 13.) • At RGDC, the medical facility provides daily access to sick calls in clinical settings and has an onsite medical infirmary. (Id. ¶ 14.) • The facility currently has no suspected cases of COVID-19 among the detainee population. (Id. ¶ 15.) • One employee previously tested positive for COVID-19, but that employee had selfisolated for 20 days before she tested positive. (Ex. 5 ¶ 12.) She has had no contact with RGDC staff or detainees and has not yet returned to work. (Id.) • RGDC is currently operating at just 19% capacity. (Id. ¶ 8.) Gonzalez’s individual dorm is at 35% capacity. (See id. ¶ 9.) • RGDC has increased its sanitation efforts in response to COVID-19. Cleaning is continuous throughout the day: shared equipment is cleaned several times per day, transport vehicles are cleaned thoroughly before, during, and after use. (Ex. 4 ¶ 17.) • Every week, every housing area is disinfected with a foaming agent from the ceiling to the floor. (Ex. 5 ¶ 13.) • Detainees are given three masks per week. (Id. ¶ 3.) Detainees are also given double the normal allotment of soap. (Id. ¶ 5.) If they ask for more, they will receive it. (Id.) • Detainees are also educated on COVID-19 prevention procedures. (Ex. 4 ¶ 21.)
17

Case 5:20-cv-00054 Document 14 Filed on 04/24/20 in TXSD Page 26 of 34
Based on these steps that Defendants have taken to protect detainees during the pandemic, Plaintiffs cannot show a constitutional violation. See Sacal-Micha, 2020 WL 1815691, at *6 (“But ultimately, Sacal does not assert that Respondents are doing nothing to protect him, other detainees, and staff members from COVID-19, but only that Respondents are not doing enough. . . . Courts have refused to provide habeas relief even when the claimed inadequacies allegedly placed the petitioner in grave peril.”). Further, to the extent Plaintiffs argue that all the steps taken by Defendants are still inadequate to “fully guarantee [Plaintiffs’] safety,” that is not the applicable standard, and release is still not warranted. See Sacal-Micha, 2020 WL 1518861, at *6. (“[I]t is possible that despite ICE's best efforts, Sacal may be exposed and contract the virus. . . . But the fact that ICE may be unable to implement the measures that would be required to fully guarantee Sacal’s safety does not amount to a violation of his constitutional rights and does not warrant his release.”). See also Jorge V. S. v. Green, 2020 WL 1921936, at *3 (D.N.J. Apr. 21, 2020) (“That these steps [by ICE in accordance with CDC guidance for detention facilities] do not guarantee Petitioner will remain healthy and free of the disease is immaterial, the constitution requires no such perfection.”); Dawson v. Asher, 2020 WL 1704324, at *12 (W.D. Wash. Apr. 8, 2020) (“No one can entirely guarantee safety in the midst of a global pandemic. However, the standard under which the court evaluates Petitioners’ second TRO motion is not guaranteed safety—an impossible standard to meet no matter the circumstances—but rather a likelihood of irreparable harm.”).
III. Plaintiffs do not state claims under the Rehabilitation Act. a. Courts across the country do not recognize Rehabilitation Act claims by federal detainees, and Plaintiffs’ claims relating to their removal procedures are barred.
Plaintiffs bring claims under Section 504 of the Rehabilitation Act and allege that Defendants have failed to provide reasonable accommodations for their disabilities and have excluded them from federal programs or activities because of their disabilities. They seek either
18

Case 5:20-cv-00054 Document 14 Filed on 04/24/20 in TXSD Page 27 of 34
improved conditions or release from custody. Plaintiffs do not state what improved conditions they would find satisfactory; rather, they simply allege that Defendants have failed to “employ[] the only known means of protecting [Plaintiffs] from infection.” (Dkt. 1 ¶ 143.)
The Rehabilitation Act’s remedies section does not provide for a private right of action for Plaintiffs. See 29 U.S.C. § 794a(a)(2) (providing causes of action only to those aggrieved by an action of a recipient of federal assistance or a federal provider of assistance); see also De Dandrade v. U.S. Dep’t of Homeland Sec., 367 F. Supp. 3d 174, 190–91 (S.D.N.Y. 2019). “[P]rivate rights of action to enforce federal law must be created by Congress.” Alexander v. Sandoval, 532 U.S. 275, 286 (2001). Where there is no express private right, courts “begin with the presumption that Congress did not intend one.” Bellikoff v. Eaton Vance Corp., 481 F.3d 110, 116 (2d Cir. 2007). Here, where the Rehabilitation Act expressly provides for causes of action and remedies for certain aggrieved persons but not for those aggrieved by Executive agencies, “there is strong indication that Congress did not intend for a private remedy to accompany the right to be free from discrimination from any Executive agency.” De Dandrade, 367 F. Supp. 3d at 192. If Plaintiffs have a cause of action here, it would be implied only. See Mathis, v. GEO Group, Inc., 2009 WL 10736631, at *6 (E.D.N.C. Nov. 9, 2009) (analyzing in depth the availability of a Rehabilitation Act claim by a federal detainee against his detention center).
Though Defendants are unaware of a Fifth Circuit ruling on the issue, courts across the country—including a court in this Circuit—have held that federal detainees may not bring Rehabilitation Act claims against the federal agencies housing them. See, e.g., Roark v. Flanery, 2014 WL 4447451, at *27 (E.D. Tex. Sept. 9, 2014) (“[T]he Bureau of Prisons does not fit within the definition of ‘programs or activities’ governed by § 794(a).”); Hurtado v. Reno, 34 F. Supp. 2d 1261, 1264 (D. Colo. 1999) (holding that an immigration detainee could not bring a
19

Case 5:20-cv-00054 Document 14 Filed on 04/24/20 in TXSD Page 28 of 34
Rehabilitation Act claim against INS, the predecessor to ICE); Williams v. Meese, 926 F.2d 994, 997 (10th Cir. 1991) (holding that Rehabilitation Act does not apply to federal prisons); InkoTariah v. Lappin, 2009 WL 8652932, at *1 (E.D.N.C. Apr. 1, 2009), aff’d, 346 F. App’x 915 (4th Cir. 2009) (“Upon a thorough review of cases interpreting the application of the Rehabilitation Act, the court concludes that the Act does not provide a cause of action for inmates in federal prisons.”); Sandler v. Anderson, 2008 WL 2610130, at *2 (W.D. Mo. July 2, 2008) (“[T]he Rehabilitation Act does not apply to federal inmates.”).
Moreover, even if the Rehabilitation Act provided a claim as a general matter, Plaintiffs’ claims here would be barred under 8 U.S.C. § 1252(b)(9) and (g). Those sections bar district courts from reviewing challenges to the removal process. When aliens brought due process, Administrative Procedure Act, and Rehabilitation Act claims challenging the holding of removal proceedings through video teleconferencing because the VTC policy harmed their “ability to meaningfully participate in their removal proceedings,” the District Court for the Southern District of New York ruled that it did not have jurisdiction to hear their claims. P.L. v. U.S. Immigration & Customs Enf’t, 2019 WL 2568648, at *2 (S.D.N.Y. June 21, 2019). The court held that challenges to “[h]ow immigrants appear for removal proceedings constitutes part of the process of these proceedings” and therefore are barred under § 1252(b)(9). Id. at *3. Because the plaintiffs were challenging “part of the process by which . . . removability will be determined,” the court did not have jurisdiction. Id. To the extent Plaintiffs actually plead a lack of access to their removal proceedings, the same would be true here. If COVID-19 is somehow preventing Plaintiffs from pursuing their appeals (as discussed infra), that challenge falls squarely within § 1252’s bar.
20

Case 5:20-cv-00054 Document 14 Filed on 04/24/20 in TXSD Page 29 of 34
b. Even if they could bring Rehabilitation Act claims, Plaintiffs allege in only conclusory fashion that they have been excluded from activities or programs because of their disabilities.
The Fifth Circuit has held that claims under Title II of the ADA and claims under § 504 of the Rehabilitation Act be treated identically from a jurisprudential standpoint. Bennett–Nelson v. Louisiana Board of Regents, 431 F.3d 448, 454–55 (5th Cir.2005). To make out a prima facie case under Title II or the Rehabilitation Act, a plaintiff must show “(1) that he is a qualified individual within the meaning of the ADA; (2) that he is being excluded from participation in, or being denied benefits of, services, programs, or activities for which the public entity is responsible, or is otherwise being discriminated against by the public entity; and (3) that such exclusion, denial of benefits, or discrimination is by reason of his disability.” Cadena v. El Paso County, 946 F.3d 717, 723 (5th Cir. 2020) (citation omitted).
A public entity’s failure to make reasonable modifications or accommodations may constitute denial of services. Garrett v. Thaler, 560 F. App’x 375, 382 (5th Cir. 2014). But “[t]he ADA provides for reasonable accommodation, not preferred accommodation.” Arce v. Louisiana, 226 F. Supp. 3d 643, 651 (E.D. La. 2016) (citing EEOC v. Agro Distrib., 555 F.3d 462, 471 (5th Cir. 2009)). The accommodation of an inmate’s disability need not be ideal; instead, it need only be reasonable and effective. Id. (citations omitted). Further, courts generally accord detention settings deference in determining the appropriate accommodations. See Wells v. Thaler, 460 F. App’x 303, 313 (5th Cir. 2012) (“[O]ur conclusion that the provided auxiliary aids and services are sufficient is informed by the context of this suit—a correctional facility—and we accord the officials at the Estelle Unit deference in their determination of an appropriate accommodation.”).
“The ADA is not violated by ‘a prison’s simply failing to attend to the medical needs of its disabled prisoners.’” Nottingham v. Richardson, 499 F. App’x 368, 377 n.7 (5th Cir. 2012) (citing Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir.1996) and Olmstead v. L.C. ex rel. Zimring,
21

Case 5:20-cv-00054 Document 14 Filed on 04/24/20 in TXSD Page 30 of 34
527 U.S. 581, 603 n.14 (1999) (“We do not in this opinion hold that the ADA imposes on the States a ‘standard of care’ for whatever medical services they render, or that the ADA requires States to ‘provide a certain level of benefits to individuals with disabilities.’”)). Instead, Plaintiffs must allege that they were “discriminated against based on th[eir] disability.” Id. (denying Rehabilitation Act claim because “[t]here is no evidence that the allegedly improper action of leaving Nottingham on the floor of the transit van had any connection to his alleged disability” of having a “limited ability to walk”).
Here, Plaintiffs have failed to allege any facts that they have been treated differently by reason of their alleged disabilities. They allege only in conclusory fashion that they are being excluded from the “removal process” and the detention centers’ programs and activities because of their disabilities. (Dkt. 1 ¶ 141.) Plaintiffs do not allege, however, that they have actually been unable to attend a court hearing, or to submit any filings, or to speak with their counsel. Both Gonzalez and Olvera have been ordered removed and have appeals pending before the Board of Immigration Appeals—they have no reason to attend removal proceedings in person. Plaintiffs also do not set forth the detention center activities or programs in which they have not been able to participate or explain how releasing them would allow for their participation. Indeed, under Plaintiffs’ logic, every detainee claiming a disability must be released under the Rehabilitation Act so that they may participate in the services of the detention facility. This proposed solution defeats its own purpose and shows why the Rehabilitation Act is an improper vehicle for Plaintiffs’ grievances: release would totally deny Plaintiffs access to detention center services.
Further, Plaintiffs’ failure-to-accommodate allegations are conclusory. They allege that ICE failed to “reasonably accommodate” Plaintiffs’ “disabilities by failing to ameliorate the conditions that prevent [them] from employing the only known means of protecting themselves
22

Case 5:20-cv-00054 Document 14 Filed on 04/24/20 in TXSD Page 31 of 34
from infection or by failing to release Petitioners from the Detention Centers.” (Dkt. 1 ¶ 143.) Even if Plaintiffs otherwise had Rehabilitation Act claims, these allegations are insufficient to show that ICE’s actions have been less than reasonable for several reasons.
First, Plaintiffs fail to cite any authority that remotely suggests that detainees subject to detention under the INA are entitled to release under the Rehabilitation Act so that they can participate in their removal proceedings. Second, the argument that release is a required “reasonable accommodation” so that detainees can participate in removal proceedings is absurd on its face because, as the Supreme Court has recognized, “detention during deportation proceedings [is] a constitutionally valid aspect of the deportation process.” Demore v. Kim, 538 U.S. 510, 523 (2003). This is because “deportation proceedings ‘would be vain if those accused could not be held in custody pending the inquiry into their true character.’” Id. (quoting Wong Wing v. United States, 163 U.S. 228, 235 (1896)); Carlson v. Landon, 342 U.S. 524, 538 (1952) (“Detention is necessarily a part of . . . deportation.”).
Moreover, Plaintiffs acknowledge that ICE has taken numerous steps to protect detainees. (See e.g., Dkt. 1 ¶ 68 (“On April 4, 2020, ICE determined that its Field Office Directors should reassess custody of detainees ‘over 60 years old’ and detainees who are ‘immune-compromised,’ including individuals with ‘heart disease.’”); id. ¶ 69 (“On or about April 13, 2020, . . . Respondent ICE issued a policy document for ICE detention facilities requiring detention facilities to take certain measures regarding COVID-19 . . .”).) These documents provide guidance and directives as to individuals whose custody status should be re-assessed, as well as the mandated practices regarding “social distancing” measures, “hygiene,” “cleaning/disinfecting practices,” “signage,” and other requirements. While Plaintiffs may argue nothing short of release is adequate, the Rehabilitation Act requires “reasonable” accommodations, not their preferred accommodation.
23

Case 5:20-cv-00054 Document 14 Filed on 04/24/20 in TXSD Page 32 of 34
IV. This Court should not micromanage the detention centers’ measures to prevent COVID-19.
This Court should not force the detention centers to implement particular measures in response to COVID-19. First, as a matter of judicial comity, this Court should not order improved conditions while the Central District of California is already in the process. See Fraihat v. U.S. Immigration & Customs Enf’t, 2020 WL 1932570, at *16, 29 (C.D. Cal. Apr. 20, 2020) (certifying a nationwide class of vulnerable ICE detainees with Fifth Amendment and Rehabilitation Act claims, and ordering preliminary relief). A different ruling here risks conflicting instructions.
Second, at this stage, any improvements ordered by the Court would be sua sponte. Plaintiffs vaguely ask the Court to “order Respondents to provide Petitioners with protection from the risk of contracting COVID-19 by ameliorating all conditions that prevent Petitioners from implementing the public health recommendations that are the only known means of preventing against and mitigating the effects of COVID-19.” (Dkt. 1 at 36.) But Plaintiffs do not articulate what this order might look like.
Third, assuming Plaintiffs would ask this Court to order detailed preventative measures, the Fifth Circuit recently ruled that doing so is improper. The Fifth Circuit stayed an injunction against TDCJ that “regulates in minute detail the cleaning intervals for common areas, the types of bleach-based disinfectants the prison must use, the alcohol content of hand sanitizer that inmates must receive, mask requirements for inmates, and inmates’ access to tissues (among many other things).” Valentine, 2020 WL 1934431, at *1. Finding that TDCJ was likely to succeed in its appeal, the Fifth Circuit noted, “Although the district court might do things differently, mere ‘disagreement’ with TDCJ’s medical decisions does not establish deliberate indifference.” Id. at *4. The court further noted that the harm to TDCJ was “particularly acute” because the order “interferes with the rapidly changing and flexible system-wide approach that TDCJ has used to
24

Case 5:20-cv-00054 Document 14 Filed on 04/24/20 in TXSD Page 33 of 34

respond to the pandemic so far.” Id. at *5. The same would be true here where ICE’s response is continually evolving to combat COVID-19. (See Ex. 10 ¶ 14 & Ex. 14 at 3.)
V. The public interest favors Plaintiffs’ continued detention. Concern for potential exposure to COVID-19 is shared by all, but mandating release of
ICE detainees is against the public interest. The public interest in enforcement of immigration laws is significant. United States v. Martinez-Fuerte, 428 U.S. 543, 556–58 (1976); Nken v. Holder, 556 U.S. 418, 435 (2009). Here, an immigration judge and the BIA have determined that Olvera is a flight risk due to his criminal history, tremendous financial resources, and the likelihood that he will fail in challenging his removal.2 See Sacal-Micha, 2020 WL 1815691, at *8 (“Sacal also admits that he possesses significant financial resources, which despite his counsel's best efforts, could provide him with options that pose a flight risk, especially when considering that he faces possible deportation and has already fled his home country to avoid prosecution.”). Gonzalez, who is in a similar position appealing his removal order, also presents a risk of flight.
The public interest is also best served by allowing the orderly medical processes and protocols implemented by government professionals to remain in place. See Youngberg v. Romeo, 457 U.S. 307, 322–23 (1982). The detention centers at issue here have taken extensive proactive steps to try to prevent the introduction of COVID-19 into the facilities.
Conclusion Defendants respectfully request that the Court dismiss Plaintiffs’ claims in their entirety.

2

See also Doris Gómora, “Mexico has requested the arrest of Olvera Amezcua to the US,” EL

UNIVERSAL (Jan. 16, 2015), https://archivo.eluniversal.com.mx/in-english/2015/mexico-ficrea-rafael-

antonio-olvera-amezcua-arrest-order-extradition-us-100202.html (“The Mexican government requested

the arrest of Rafael Olvera Amezcua, main stockholder of Ficrea, to the US authorities, in order to extradite

him to face charges for fraud for over 2.7 billion pesos (US$184.9 million) against 6,848 savers.”); Braulio

Carbajal, “Por Covid-19, ex dueño de Ficrea pide seguir su proceso en libertad,” LA JORNADA (Apr. 16,

2020), https://www.jornada.com.mx/ultimas/economia/2020/04/16/por-covid-19-ex-dueno-de-ficrea-pide-

seguir-su-proceso-en-libertad-3000.html.

25

Case 5:20-cv-00054 Document 14 Filed on 04/24/20 in TXSD Page 34 of 34
Respectfully submitted, RYAN K. PATRICK United States Attorney By: /s/ Ariel N. Wiley Ariel N. Wiley Assistant United States Attorney Attorney-in-Charge Southern District No. 2554283 Texas Bar No. 24093366 Annalisa L. Cravens Assistant United States Attorney Southern District No. 2791281 Texas Bar No. 24092298 1000 Louisiana Street, Suite 2300 Houston, Texas 77002 Tel.: (713) 567-9000 Fax: (713) 718-3303 Email: Ariel.Wiley@usdoj.gov Email: Annalisa.Cravens@usdoj.gov Counsel for Respondents/Defendants
Certificate of Service I certify that on April 24, 2020, this document was filed by CM/ECF, which will serve a copy on all counsel registered.
/s/ Ariel N. Wiley Ariel N. Wiley Assistant United States Attorney
26

Case 5:20-cv-00054 Document 14-1 Filed on 04/24/20 in TXSD Page 1 of 4

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
LAREDO DIVISION

Raul Garza Marroquin, et al., Petitioners/Plaintiffs, v.
Jose Longoria, Jr., et al., Respondents/Defendants.

§ § § § § Civil Action No. 5:20-cv-54 § § § §

DEFENDANTS’ MOTION TO DISMISS AND RESPONSE TO GIORGE GONZALEZ’S AND RAFAEL OLVERA’S PETITIONS FOR IMMEDIATE
INJUNCTIVE RELIEF

Government’s Exhibit 13

Case 5:20-cv-00054 Document 14-1 Filed on 04/24/20 in TXSD Page 2 of 4
From: To: Cc:
Subject: Date:
Please see the updated guidance below. The previous version of this guidance is

This message is sent from Peter B. Berg, (a)Assistant Director, Field Operations

To:

Field Office Directors and Deputy Field Office Directors

Subject:

COVID-19 Detained Docket Review

Background:

U.S. Immigration and Customs Enforcement (ICE) has taken a number of significant and proactive measures in response to the Coronavims Disease 2019 (COVID-19) pandemic, in order to mitigate the spread of COVID-19 to aliens detained in its custody, its workforce, and stakeholders at its detention facilities. As more becomes known about the vims, ERO will continue to update its practices and guidance in this regard. General ICE COVID-19 guidance is available here and will be updated and supplemented on an ongoing basis.

On March 18, 2020, you were directed to review the cases of aliens detained in your area of responsibility who were over the age of 70 or pregnant to detennine whether continued detention was appropriate. The Centers for Disease Contrnl and Prevention (CDC) has developed a list of categories of individuals identified as potentially being at higher-risk for serious illness from COVID-19. Expanding on that list, ERO has identified the following categories of cases that should be reviewed to re-assess custody:

• Pregnant detainees or those having delivered in the last two weeks • Detainees over 60 years old • Detainees of any age having chronic illnesses which would make them
immune-compromised, including but not limited to: o Blood Disorders o Chronic Kidney Disease o Compromised immune system (e.g., ongoing treatment such as chemotherapy or radiation, received an organ or bone manow transplant, taking high doses of co1iicosteroids or other immunosuppressant medications) o Endocrine disorders

Government's Ex. 13 - 001

Case 5:20-cv-00054 Document 14-1 Filed on 04/24/20 in TXSD Page 3 of 4
Metabolic disorders Heart disease Lung disease Neurological and neurologic and neurodevelopment conditions
As part of your ongoing application of the CDC’s Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (available here), please identify all cases within your AOR that meet any of the criteria above and validate that list with assistance from IHSC or your Field Medical Coordinator to ensure the conditions listed are still present and do result in the detainee potentially having a higher risk for serious illness from COVID-19. After identifying a case as meeting any of the above criteria, you should review the case to determine whether continued detention remains appropriate in light of the COVID-19 pandemic.
The presence of one of the factors listed above should be considered a significant discretionary factor weighing in favor of release. To be clear, however, it may not always be determinative. Field offices must remain cognizant of the requirements of mandatory detention. Section 236(c) of the Immigration and Nationality Act (INA) mandates the detention of certain categories of criminal and terrorist aliens during the pendency of removal proceedings. Such aliens may not be released in the exercise of discretion during the pendency of removal proceedings even if potentially higher-risk for serious illness from COVID-19. INA § 236(c); 8 C.F.R. § 236.1(c)(1)(i). Such aliens may only be released following a final order issued by an immigration judge, the Board of Immigration Appeals, or a federal court granting the alien relief, dismissing proceedings, or terminating proceedings. Similarly, pursuant to section 241(a)(2), certain criminal and terrorist aliens subject to a final order of removal may not be released during the 90-day removal period even if potentially higher-risk for serious illness from COVID-19. INA § 241(a)(2). For alien’s subject to discretionary detention under section 236(a), please remember that release is prohibited, even if the alien is potentially higher-risk for serious illness from COVID-19, if such release would pose a danger to property or persons. 8 C.F.R. § 236.1(c)(8).
When reviewing cases of alien’s subject to discretionary detention under 236(a), the following must be completed:
Cases involving any arrests or convictions for any crimes that involve risk to the public regardless of the date of arrest or conviction must be reviewed and approved by a Deputy Field Office Director (DFOD) or higher before a determination is made to release.
Examples of crimes that involve a risk to the public include any crime that: involves any form of violence, driving while intoxicated, threatening behaviors, terroristic threats, stalking, domestic violence, harm to a child, or any form of assault or battery. This list is not intended to be
Government's Ex. 13 - 002

Case 5:20-cv-00054 Document 14-1 Filed on 04/24/20 in TXSD Page 4 of 4
comprehensive. If there is any doubt whether a crime involves risk to the public, consult with your Office of the Principal Legal Advisor (OPLA) field location and your respective Deputy Assistant Director for Domestic Operations before a custody redetermination is completed. You may consider the age of an arrest or conviction as a mitigating or an aggravating factor, but the age of an arrest or a conviction does not automatically outweigh public safety concerns.
With regard to arriving aliens and certain other aliens eligible for consideration of parole from custody, under current circumstances and absent significant adverse factors, the fact that an alien is potentially higher-risk for serious illness from COVID-19, may form the basis for a determination that “continued detention is not in the public interest,” justify release under 8 C.F.R. § 212.5(b) (5).
For other aliens for whom there is discretion to release, field offices remain responsible for articulating individualized custody determinations, taking into consideration the totality of the circumstances presented in the case. The fact that an alien is potentially higher-risk for serious illness from COVID-19 should be considered a factor weighing in favor of release. You may also consider alternatives to detention consistent with ICE ATD policies, if ATD is determined to sufficiently mitigate the risk of flight.
Any releases attributed to reviews of COVID-19 susceptibility shall be documented in the ENFORCE Alien Removal Module (EARM) under Special Class - COVID-19 Chronic Care Release. As previously communicated, these individuals should be placed on ATD if possible.
Please contact your local OPLA field location should you have any questions or concerns regarding your authority to release in any individual case.
For any questions on this guidance, please contact your respective Deputy Assistant Director for Domestic Operations.
Limitation on the Applicability of this Guidance. This message is intended to provide internal guidance to the operational components of U.S. Immigration and Customs Enforcement. It does not, is not intended to, shall not be construed to, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any person in any matter, civil or criminal.
Government's Ex. 13 - 003

Case 5:20-cv-00054 Document 14-2 Filed on 04/24/20 in TXSD Page 1 of 19

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
LAREDO DIVISION

Raul Garza Marroquin, et al., Petitioners/Plaintiffs, v.
Jose Longoria, Jr., et al., Respondents/Defendants.

§ § § § § Civil Action No. 5:20-cv-54 § § § §

DEFENDANTS’ MOTION TO DISMISS AND RESPONSE TO GIORGE GONZALEZ’S AND RAFAEL OLVERA’S PETITIONS FOR IMMEDIATE
INJUNCTIVE RELIEF

Government’s Exhibit 14

Case 5:20-cv-00054 Document 14-2 Filed on 04/24/20 in TXSD Page 2 of 19

ERO
U.S. Immigration and Customs Enforcement Enforcement and Removal Operations
COVID-19 Pandemic Response Requirements

ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020)

1

Government's Ex. 14 - 001

Case 5:20-cv-00054 Document 14-2 Filed on 04/24/20 in TXSD Page 3 of 19
Table of Contents
PURPOSE AND SCOPE .......................................................................................................................... 3 INTRODUCTION ................................................................................................................................... 3 OBJECTIVES ........................................................................................................................................ 4 CONCEPT OF OPERATIONS................................................................................................................... 5
DEDICATED ICE DETENTION FACILITIES ........................................................................................ 5 NON-DEDICATED ICE DETENTION FACILITIES ............................................................................... 6 ALL FACILITIES HOUSING ICE DETAINEES ..................................................................................... 7
PREPAREDNESS ........................................................................................................................... 7 PREVENTION ............................................................................................................................. 11 MANAGEMENT .......................................................................................................................... 14 ATTACHMENTS ................................................................................................................................. 18

ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020)

2

Government's Ex. 14 - 002

Case 5:20-cv-00054 Document 14-2 Filed on 04/24/20 in TXSD Page 4 of 19
PURPOSE AND SCOPE
The U.S. Immigration and Customs Enforcement (ICE) Enforcement and Removal Operations (ERO) Coronavirus Disease 2019 (COVID-19) Pandemic Response Requirements (PRR) sets forth expectations and assists ICE detention facility operators to sustain detention operations, while mitigating risk to the safety and well-being of detainees, staff, contractors, visitors, and stakeholders due to COVID-19. Consistent with ICE’s overall adjustments to its immigration enforcement posture,1 the ERO PRR builds upon previously issued guidance and sets forth specific mandatory requirements expected to be adopted by all detention facilities housing ICE detainees, as well as best practices for such facilities, to ensure that detainees are appropriately housed and that available mitigation measures are implemented during this unprecedented public health crisis. The ERO PRR has been developed in consultation with the Centers for Disease Control and Prevention (CDC) and is a dynamic document that will be updated as additional/revised information and best practices become available.
INTRODUCTION
As the CDC has explained:
COVID-19 is a communicable disease caused by a novel (new) coronavirus, SARSCoV-2, that was first identified as the cause of an outbreak of respiratory illness that began in Wuhan Hubei Province, People’s Republic of China (China).
COVID-19 appears to spread easily and sustainably within communities. The virus is thought to transfer primarily by person-to-person contact through respiratory droplets produced when an infected person coughs or sneezes; it may transfer through contact with surfaces or objects contaminated with these droplets. There is also evidence of asymptomatic transmission, in which an individual infected with COVID-19 is capable of spreading the virus to others before exhibiting symptoms. The ease of transmission presents a risk of a surge in hospitalizations for COVID19, which would reduce available hospital capacity. Such a surge has been identified as a likely contributing factor to the high mortality rate for COVID-19 cases in Italy and China.
Symptoms include fever, cough, and shortness of breath, and typically appear 2-14 days after exposure. Manifestations of severe disease include severe pneumonia, acute respiratory distress syndrome (ARDS), septic shock, and multi-organ failure. According to the [World Health Organization], approximately 3.4% of reported COVID-19 cases have resulted in death globally. This mortality rate is higher among older adults or those with compromised immune systems. Older adults and people who have severe chronic medical conditions like heart, lung or kidney disease are also at higher risk for more serious COVID-19 illness. Early data suggest older people are twice as likely to have serious COVID-19 illness.

1 See, e.g., Attachment A, U.S. Immigration and Customs Enforcement, Updated ICE statement on COVID19 (Mar. 18, 2020), https://www.ice.gov/news/releases/updated-ice-statement-covid-19.

ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020)

3

Government's Ex. 14 - 003

Case 5:20-cv-00054 Document 14-2 Filed on 04/24/20 in TXSD Page 5 of 19

Notice of Order Under Sections 362 and 365 of the Public Health Service Act Suspending Introduction of Certain Persons From Countries Where a Communicable Disease Exists, 85 Fed. Reg. 17060 (Mar. 26, 2020) (internal citations omitted).
Given the seriousness and pervasiveness of COVID-19, ICE is taking necessary and prompt measures in response. ICE is providing guidance on the minimum measures required for facilities housing ICE detainees to implement to ensure consistent practices throughout its detention operations and the provision of medical care across the full spectrum of detention facilities to mitigate the spread of COVID-19. The ICE detention standards applicable to all facilities used to house ICE detainees have long required that each such facility have written plans that address the management of infectious and communicable diseases, including, but not limited to, testing, isolation, prevention, treatment, and education. Those requirements include reporting and collaboration with local or state health departments in accordance with state and local laws and recommendations.2 The measures set forth in the PRR, allow ICE personnel and detention providers to properly discharge their obligations under those standards in light of the unique challenges posed by COVID-19.
OBJECTIVES
The ERO PRR is designed to establish consistency across ICE detention facilities by establishing mandatory requirements and best practices all detention facilities housing ICE detainees are expected to follow during the COVID-19 pandemic. Consistent with ICE detention standards, all facilities housing ICE detainees are required to have a COVID-19 mitigation plan that meets the following four objectives:
• To protect employees, contractors, detainees, visitors to the facility, and stakeholders from exposure to the virus;
• To maintain essential functions and services at the facility throughout the pendency of the pandemic;
• To reduce movement and limit interaction of detainees with others outside their assigned housing units, as well as staff and others, and to promote social distancing within housing units; and
• To establish means to monitor, cohort, quarantine, and isolate the sick from the well.3
2 See, e.g., Attachment B, ICE National Detention Standards 2019, Standard 4.3, Medical Care, at II.D.2 (p. 114), https://www.ice.gov/doclib/detention-standards/2019/4_3.pdf; Attachment C, 2011 ICE Performance-Based National Detention Standards (PBNDS), Revised 2016, Standard 4.3, Part V.C.1 (p. 261), https://www.ice.gov/doclib/detentionstandards/2011/4-3.pdf; Attachment D, 2008 ICE PBNDS, Standard 4-22, Medical Care, V.C.1 (pp. 5-6), https://www.ice.gov/doclib/dro/detention-standards/pdf/medical_care.pdf.
3 A cohort is a group of persons with a similar condition grouped or housed together for observation over a period of time. Isolation and quarantine are public health practices used to protect the public from exposure to individuals who have or may have a contagious disease. For purposes of this document, and as defined by the CDC, quarantine as the separation of a person or group of people reasonably believed to have been exposed to a communicable disease but not yet symptomatic, from others who have not been

ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020)

4

Government's Ex. 14 - 004

Case 5:20-cv-00054 Document 14-2 Filed on 04/24/20 in TXSD Page 6 of 19
CONCEPT OF OPERATIONS
The ERO PRR is intended for use across ICE’s entire detention network, applying to all facilities housing ICE detainees, including ICE-owned Service Processing Centers, facilities operated by private vendors, and facilities operated by local government agencies that have mixed populations of which ICE detainees comprise only a small fraction.
DEDICATED ICE DETENTION FACILITIES
All ICE dedicated detention facilities4 must:
• Comply with the provisions of their relevant ICE contract or service agreement. • Comply with the ICE national detention standards applicable to the facility,
generally the Performance-Based National Detention Standards 2011 (PBNDS 2011). • Comply with the CDC’s Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (Attachment E). • Follow ICE’s March 27, 2020 Memorandum to Detention Wardens and Superintendents on COVID-19 Action Plan Revision 1, and subsequent updates (Attachment F). • Report all confirmed and suspected COVID-19 cases to the local ERO Field Office Director (or designee), Field Medical Coordinator, and local health department immediately. • Notify both the local ERO Field Office Director (or designee) and the Field Medical Coordinator as soon as practicable, but in no case more than 12 hours after identifying any detainee who meets the CDC’s identified populations potentially being at higher-risk for serious illness from COVID-19, including:
o People aged 65 and older o People of all ages with underlying medical conditions, particularly if not well
controlled, including: ▪ People with chronic lung disease or moderate to severe asthma ▪ People who have serious heart conditions ▪ People who are immunocompromised

exposed, to prevent the possible spread of the communicable disease. For purposes of this document, and as defined by the CDC, isolation as the separation of a person or group of people known or reasonably believed to be infected with a communicable disease and potentially infectious from others to prevent the spread of the communicable disease.
4 Dedicated detention facilities are facilities that house only ICE detainees. Dedicated facilities may be ICE-owned Service Processing Centers, privately owned Contract Detention Facilities, or facilities operated by state or local governments that hold no other detention populations except ICE detainees.

ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020)

5

Government's Ex. 14 - 005

Case 5:20-cv-00054 Document 14-2 Filed on 04/24/20 in TXSD Page 7 of 19
• Many conditions can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications
▪ People with severe obesity (body mass index [BMI] of 40 or higher) ▪ People with diabetes ▪ People with chronic kidney disease undergoing dialysis ▪ People with liver disease
Notification shall be made via e-mail from the facility’s Health Services Administrator (HSA) (or equivalent) and contain the following subject line for ease of identification: “Notification of COVID-19 High Risk Detainee (A-Number).” At a minimum the HSA will provide the following information:
• Detainee name • Detention location • Current medical issues as well as medications currently prescribed • Facility medical Point of Contact (POC) and phone number
NON-DEDICATED ICE DETENTION FACILITIES
All non-dedicated detention facilities and local jails housing ICE detainees must:
• Comply with the provisions of their relevant ICE contract or service agreement.
• Comply with the ICE national detention standards applicable to the facility, generally PBNDS 2011.
• Comply with the CDC Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities.
• Report all confirmed and suspected COVID-19 cases to the local ERO Field Office Director (or designee), Field Medical Coordinator, and local health department immediately.
• Notify both the ERO Field Office Director (or designee) and Field Medical Coordinator as soon as practicable, but in no case more than 12 hours after identifying any detainee who meets the CDC’s identified populations potentially being at higher-risk for serious illness from COVID-19, including: o People aged 65 and older o People of all ages with underlying medical conditions, particularly if not well controlled, including: ▪ People with chronic lung disease or moderate to severe asthma ▪ People who have serious heart conditions ▪ People who are immunocompromised

ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020)

6

Government's Ex. 14 - 006

Case 5:20-cv-00054 Document 14-2 Filed on 04/24/20 in TXSD Page 8 of 19

• Many conditions can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications
▪ People with severe obesity (body mass index [BMI] of 40 or higher) ▪ People with diabetes ▪ People with chronic kidney disease undergoing dialysis ▪ People with liver disease
Notification should be made via e-mail from the facility’s HSA (or equivalent) and should contain the following subject line for ease of identification: “Notification of COVID-19 High Risk Detainee (A-Number).” Other standardized means of communicating this information to ICE are acceptable. At a minimum the HSA will provide the following information:
• Detainee name • Detention location • Current medical issues as well as medications currently prescribed • Facility medical POC and phone number

ALL FACILITIES HOUSING ICE DETAINEES

In addition to the specific measures listed above, all detention facilities housing ICE detainees must also comply with the following:
PREPAREDNESS
Administrators can plan and prepare for COVID-19 by ensuring that all persons in the facility know the symptoms of COVID-19 and how to respond if they develop symptoms. Other essential actions include developing contingency plans for reduced workforces due to absences, coordinating with public health and correctional partners, and communicating clearly with staff and detainees about these preparations and how they may temporarily alter daily life.
➢ Develop information-sharing systems with partners.
• Identify points of contact in relevant state, local, tribal, and/or territorial public health department before cases develop.
• Communicate with other correctional and detention facilities in the same geographic area to share information including disease surveillance and absenteeism patterns among staff.
➢ Review existing pandemic, influenza, all-hazards, and disaster plans, and revise for COVID-19, and ensure that they meet the requirements of ICE’s detention standards.

ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020)

7

Government's Ex. 14 - 007

Case 5:20-cv-00054 Document 14-2 Filed on 04/24/20 in TXSD Page 9 of 19
➢ Offer the seasonal influenza vaccine to all detained persons (existing populations and new intakes) and staff throughout the influenza season, where possible.
➢ Staffing
• Review sick leave policies to ensure that staff can stay home when sick and determine which officials will have the authority to send symptomatic staff home. Staff who report for work with symptoms of COVID-19 must be sent home and advised to follow CDC-recommended steps for persons exhibiting COVID-19 symptoms.
• Staff who test positive for COVID-19 must inform their workplace and personal contacts immediately. If a staff member has a confirmed COVID-19 infection, the relevant employers will inform other staff of their possible exposure to COVID-19 in the workplace consistent with any legal limitations on the sharing of such information. Exposed employees must then self-monitor for symptoms (i.e., fever, cough, or shortness of breath).
• Identify staff whose duties would allow them to work from home and allow them to work from home in order to promote social distancing and further reduce the risk of COVID-19 transmission.
• Determine minimum levels of staff in all categories required for the facility to function safely.
• Follow the Public Health Recommendations for Community-Related Exposure.5
➢ Supplies
• Ensure that sufficient stocks of hygiene supplies (soap, hand sanitizer, tissues), personal protective equipment (PPE) (to include facemasks, N95 respirators, eye protection, disposable medical gloves, and disposable gowns/one-piece coveralls), and medical supplies (consistent with the healthcare capabilities of the facility) are on hand, and have a plan in place to restock as needed if COVID-19 transmission occurs within the facility.
• Note that shortages of N95 respirators are anticipated during the COVID-19 response. Based on local and regional situational analysis of PPE supplies, face masks should be used when the supply chain of N95 respirators cannot meet the demand.
• Follow COVID-19: Strategies for Optimizing the Supply of PPE.6
• Soiled PPE items should be disposed in leak-proof plastic bags that are tied at the top and not re-opened. Bags can be disposed of in the regular solid waste stream.

5 Attachment G, Centers of Disease Control and Prevention, Public Health Recommendations for Community-Related Exposure, https://www.cdc.gov/coronavirus/2019-ncov/php/public-health-recommendations.html (last visited Apr. 9, 2020).
6 Attachment H, Centers for Disease Control and Prevention, Strategies to Optimize the Supply of PPE and Equipment, https://www.cdc.gov/coronavirus/2019-ncov/hcp/ppe-strategy/ (last visited Apr. 9, 2020).

ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020)

8

Government's Ex. 14 - 008

Case 5:20-cv-00054 Document 14-2 Filed on 04/24/20 in TXSD Page 10 of 19
• Cloth face coverings should be worn by detainees and staff (when PPE supply is limited) to help slow the spread of COVID-19. Cloth face masks should:
• fit snugly but comfortably against the side of the face • be secured with ties or ear loops where possible or securely tied • include multiple layers of fabric • allow for breathing without restriction • be able to be laundered and machine dried without damage or change to shape.
➢ Hygiene
• Reinforce healthy hygiene practices and provide and restock hygiene supplies throughout the facility, including in bathrooms, food preparation and dining areas, intake areas, visitor entries and exits, visitation rooms, common areas, medical, and staff-restricted areas (e.g., break rooms).
• Require all persons within the facility to cover their mouth and nose with their elbow (or ideally with a tissue) rather than with their hand when they cough or sneeze, and to throw all tissues in the trash immediately after use. Provide detainees and staff no-cost access to tissues and no-touch receptacles for disposal.
• Require all persons within the facility to maintain good hand hygiene by regularly washing their hands with soap and water for at least 20 seconds, especially after coughing, sneezing, or blowing their nose; after using the bathroom; before eating or preparing food; before taking medication; and after touching garbage.
• Provide detainees and staff no-cost, unlimited access to supplies for hand cleansing, including liquid soap, running water, hand drying machines or disposable paper towels, and no-touch trash receptacles.
• Provide alcohol-based hand sanitizer with at least 60% alcohol where permissible based on security restrictions.
• Require all persons within the facility to avoid touching their eyes, nose, or mouth without cleaning their hands first.
• Post signage throughout the facility reminding detained persons and staff to practice good hand hygiene and cough etiquette (printable materials for community-based settings can be found on the CDC website). Signage must be in English and Spanish, as well as any other common languages for the detainee population at the facility.
• Prohibit sharing of eating utensils, dishes, and cups.
• Prohibit non-essential personal contact such as handshakes, hugs, and high-fives.
➢ Cleaning/Disinfecting Practices

ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020)

9

Government's Ex. 14 - 009

Case 5:20-cv-00054 Document 14-2 Filed on 04/24/20 in TXSD Page 11 of 19
• Adhere to CDC recommendations for cleaning and disinfection during the COVID-19 response.7
• Several times a day using household cleaners and Environmental Protection Agency-registered disinfectants, clean and disinfect surfaces and objects that are frequently touched, especially in common areas (e.g., doorknobs, light switches, sink handles, countertops, toilets, toilet handles, recreation equipment). The Environmental Protection Agency’s (EPA) list of certified cleaning products is located here.
• Staff should clean shared equipment several times per day and on a conclusion of use basis (e.g., radios, service weapons, keys, handcuffs).
• Ensure that transport vehicles are thoroughly cleaned after carrying a confirmed or suspected COVID-19 case.
• Facility leadership will ensure that there is adequate oversight and supervision of all individuals responsible for cleaning and disinfecting these areas.
CDC Recommended Cleaning Tips
Hard (Non-porous) Surfaces
• If surfaces are dirty, they should be cleaned using a detergent or soap and water prior to disinfection.
• For disinfection, most common EPA-registered household disinfectants should be effective.
o A list of products that are EPA-approved for use against the virus that causes COVID-19 is available here. Follow the manufacturer’s instructions for all cleaning and disinfection products for concentration, application method and contact time, etc.
o Additionally, diluted household bleach solutions (at least 1000ppm sodium hypochlorite) can be used if appropriate for the surface. Follow manufacturer’s instructions for application, ensuring a contact time of at least 1 minute, and allowing proper ventilation during and after application. Check to ensure the product is not past its expiration date. Never mix household bleach with ammonia or any other cleanser. Unexpired household bleach will be effective against coronaviruses when properly diluted. ▪ Prepare a bleach solution by mixing:
• 5 tablespoons (1/3 cup) bleach per gallon of water or • 4 teaspoons bleach per quart of water
Soft (Porous) Surfaces

7 Attachment I, Centers for Disease Control and Prevention, Cleaning and Disinfection for Community Facilities, https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/cleaning-disinfection.html (last visited Apr. 9, 2020).

ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020)

10

Government's Ex. 14 - 010

Case 5:20-cv-00054 Document 14-2 Filed on 04/24/20 in TXSD Page 12 of 19
• For soft (porous) surfaces such as carpeted floor, rugs, and drapes, remove visible contamination if present and clean with appropriate cleaners indicated for use on these surfaces. After cleaning:
o If the items can be laundered, launder items in accordance with the manufacturer’s instructions using the warmest appropriate water setting for the items and then dry items completely.
o Otherwise, use products that are EPA-approved for use against the virus that causes COVID-19 and that are suitable for porous surfaces.8
Electronics
• For electronics such as tablets, touch screens, keyboards, remote controls, and ATM machines, remove visible contamination if present. o Follow the manufacturer’s instructions for all cleaning and disinfection products.
o Consider use of wipeable covers for electronics.
o If no manufacturer guidance is available, consider the use of alcohol-based wipes or sprays containing at least 70% alcohol to disinfect touch screens. Dry surfaces thoroughly to avoid pooling of liquids.
Linens, Clothing, and Other Items That Go in the Laundry
• In order to minimize the possibility of dispersing virus through the air, do not shake dirty laundry.
• Wash items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely. Dirty laundry that has been in contact with an ill person can be washed with other people’s items.
• Clean and disinfect hampers or other carts for transporting laundry according to guidance above for hard or soft surfaces.
PREVENTION
Detention facilities can prevent introduction of COVID-19 from the community and reduce transmission if it is already inside by reinforcing good hygiene practices among incarcerated/detained persons, staff, and visitors (including increasing access to soap and paper towels), intensifying cleaning/disinfection practices, and implementing social distancing strategies.
Because many individuals infected with COVID-19 do not display symptoms, the virus could be present in facilities before cases are identified. Both good hygiene practices and social distancing are critical in preventing further transmission.

8 Attachment J, U.S. Environmental Protection Agency, List N: Disinfectants for Use Against SARS-CoV-2, https://www.epa.gov/pesticide-registration/list-n-disinfectants-use-against-sars-cov-2 (last visited Apr. 9, 2020).

ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020)

11

Government's Ex. 14 - 011

Case 5:20-cv-00054 Document 14-2 Filed on 04/24/20 in TXSD Page 13 of 19
➢ Perform pre-intake screening for all staff and new entrants for symptoms of COVID-19.
Screening should take place before staff and new intakes enter the facility or just inside the facility, where practicable. For new admissions, this should occur before beginning the intake process, in order to identify and immediately isolate any detainee with symptoms before the individual comingles with others or is placed in the general population. This should include temperature screening of all staff and new entrants, as well as a verbal symptoms check.
• Verbal screening for symptoms of COVID-19 and contact with COVID-19 cases should include the following questions based on Interim Guidance: Managing COVID-19 in Correctional/Detention Facilities:
o Today or in the past 24 hours, have you had any of the following symptoms?
▪ Fever, felt feverish, or had chills?
▪ Cough?
▪ Difficulty breathing?
o In the past 14 days, have you had contact with a person known to be infected with COVID-19 where you were not wearing the recommended proper PPE?
• If staff have symptoms of COVID-19 (fever, cough, shortness of breath): they must be denied access to the facility.
• If any new intake has symptoms of COVID-19:
o Require the individual to wear a face mask.
o Ensure that staff interacting with the symptomatic individual wears recommended PPE.
o Isolate the individual and refer to healthcare staff for further evaluation.
o Facilities without onsite healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective isolation and necessary medical care.
• If an individual is a close contact of a known COVID-19 case or has traveled to an affected area (but has no COVID-19 symptoms), quarantine the individual and monitor for symptoms two times per day for 14 days.
➢ Visitation
• During suspended (social) or modified (legal) visitation programs, provide access to virtual visitation options where available. When not possible, verbally screen all visitors on entry for symptoms of COVID-19 and perform temperature checks, when possible. ICE continues to explore opportunities to enhance attorney access while legal visits are being impacted. For facilities at which immigration hearings are conducted or where detainees are otherwise held who have cases pending immigration proceedings, this may include:

ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020)

12

Government's Ex. 14 - 012

Case 5:20-cv-00054 Document 14-2 Filed on 04/24/20 in TXSD Page 14 of 19
o Adding all immigration attorneys of record to the Talton Pro-bono platform.
o Requiring facilities to establish a process for detainees/immigration attorneys to schedule appointments and facilitate the calls.
o Leveraging technology (e.g., tablets, smartphones) to facilitate attorney/client communication.
o Working with the various detention contractors and telephone service providers to ensure that all detainees receive some number of free calls per week.
• Communicate with the public about any changes to facility operations, including visitation programs. Facilities are encouraged to prohibit or, at a minimum, significantly adopt restricted visitation programs, and to suspend all volunteer work assignments for detainees assigned to food service, and other assignments where applicable.
➢ Where possible, restrict transfers of detained non-ICE populations to and from other jurisdictions and facilities unless necessary for medical evaluation, isolation/quarantine, clinical care, or extenuating security concerns.
➢ Consider suspending work release programs for inmates at shared facilities to reduce overall risk of introduction and transmission of COVID-19 into the facility.
➢ When feasible and consistent with security priorities, encourage staff to maintain a distance greater than six feet from an individual that appears feverish or ill and/or with respiratory symptoms while interviewing, escorting, or interacting in other ways, unless wearing PPE.
➢ Additional Measures to Facilitate Social Distancing
• Although strict social distancing may not be possible in congregate settings such as detention facilities, all facilities housing ICE detainees should implement the following measures to the extent practicable:
o Efforts should be made to reduce the population to approximately 75% of capacity.
o Where detainee populations are such that such cells are available, to the extent possible, house detainees in individual rooms.
o Recommend that detainees sharing sleeping quarters sleep “head-to-foot.”
o Extend recreation, law library, and meal hours and stagger detainee access to the same in order to limit the number of interactions between detainees from other housing units.
o Staff and detainees should be directed to avoid congregating in groups of 10 or more, employing social distancing strategies at all times.

ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020)

13

Government's Ex. 14 - 013

Case 5:20-cv-00054 Document 14-2 Filed on 04/24/20 in TXSD Page 15 of 19

o Whenever possible, all staff and detainees should maintain a distance of six feet from one another.
o If practicable, beds in housing units should be rearranged to allow for sufficient separation during sleeping hours.
MANAGEMENT
If there has been a suspected COVID-19 case inside the facility (among incarcerated/detained persons, staff, or visitors who have recently been inside), begin implementing Management strategies while test results are pending. Essential Management strategies include placing cases and individuals with symptoms under medical isolation, quarantining their close contacts, and facilitating necessary medical care, while observing relevant infection control and environmental disinfection protocols and wearing recommended PPE.
ICE Custody Review for Potentially High-Risk Detainees
Upon being informed of a detainee who may potentially be at higher risk for serious illness from exposure to COVID-19, ERO will review the case to determine whether continued detention is appropriate.9 ICE will make such custody determinations on a case-by-case basis, pursuant to the applicable legal standards, with due consideration of the public health considerations implicated.
➢ Considerable effort should be made to quarantine all new entrants for 14 days before they enter the general population.
• To do this, facilities should consider cohorting daily intakes; two days of new intakes, or multiple days on new intakes, in designated areas prior to placement into the general population. Given the significant variance in facility attributes and characteristics, cohorting options and capabilities will differ across the various detention facilities housing ICE detainees. ICE encourages all facilities to adopt the most effective cohorting methods practicable based on the individual facility characteristics taking into account the number new intakes anticipated per day.
➢ For suspected or confirmed COVID-19 cases:
• Isolate the individual immediately in a separate environment from other individuals. Facilities should make every possible effort to isolate persons individually. Each isolated individual should be assigned his or her own housing space and bathroom where possible. Cohorting should only be practiced if there are no other available options. Only individuals who are laboratory-confirmed COVID-19 cases should be isolated as a cohort. Do not cohort confirmed cases with suspected cases or case contacts.
• Ensure that the individual is always wearing a face mask (if it does not restrict breathing) when outside of the isolation space, and whenever another individual
9 Attachment K, Assistant Director Peter Berg, Enforcement and Removal Operations, Updated Guidance: COVID-19 Detained Docket Review (Apr. 4, 2020).

ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020)

14

Government's Ex. 14 - 014

Case 5:20-cv-00054 Document 14-2 Filed on 04/24/20 in TXSD Page 16 of 19

enters the isolation room. Masks should be changed at least daily, and when visibly soiled or wet.
• If the number of confirmed cases exceeds the number of individual isolation spaces available in the facility, then ICE must be promptly notified so that transfer to other facilities, transfers to hospitals, or release can be coordinated immediately. Until such time as transfer or release is arranged, the facility must be especially mindful of cases that are at higher risk of severe illness from COVID-19. Ideally, ill detainees should not be cohorted with other infected individuals. If cohorting of ill detainees is unavoidable, make all possible accommodations until transfer occurs to prevent transmission of other infectious diseases to the higher-risk individual (For example, allocate more space for a higher-risk individual within a shared isolation room).
• Review the CDC’s preferred method of medically isolating COVID-19 cases here depending on the space available in a particular facility. In order of preference, individuals under medical isolation should be housed:
o Separately, in single cells with solid walls (i.e., not bars) and solid doors that close fully.
o Separately, in single cells with solid walls but without solid doors.
o As a cohort, in a large, well-ventilated cell with solid walls and a solid door that closes fully. Employ social distancing strategies related to housing in the Prevention section above.
o As a cohort, in a large, well-ventilated cell with solid walls but without a solid door. Employ social distancing strategies related to housing in the Prevention section above.
o As a cohort, in single cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. (Although individuals are in single cells in this scenario, the airflow between cells essentially makes it a cohort arrangement in the context of COVID-19.)
o As a cohort, in multi-person cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. Employ social distancing strategies related to housing in the Prevention section above.
• Maintain isolation until all the CDC criteria have been met:
o The individual has been free from fever for 72 hours without the use of fever-reducing medications.
o The individual’s other symptoms have improved (e.g., cough, shortness of breath).
o The individual has tested negative in at least two consecutive respiratory specimens collected at least 24 hours apart.

ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020)

15

Government's Ex. 14 - 015

Case 5:20-cv-00054 Document 14-2 Filed on 04/24/20 in TXSD Page 17 of 19
o At least 7 days have passed since the date of the individual’s first positive COVID-19 test and he or she has had no subsequent illness.
• Meals should be provided to COVID-19 cases in their isolation rooms. Isolated cases should throw disposable food service items in the trash in their isolation room. Non-disposable food service items should be handled with gloves and washed with hot water or in a dishwasher. Individuals handling used food service items must clean their hands after removing gloves.
• Laundry from a COVID-19 case can be washed with other individuals’ laundry.
o Individuals handling laundry from COVID-19 cases should wear disposable gloves, discard gloves after each use, and clean their hands after handling.
o Do not shake dirty laundry. This will minimize the possibility of dispersing the virus through the air.
o Launder items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely.
o Clean and disinfect clothes hampers according to guidance above for surfaces. If permissible, consider using a bag liner that is either disposable or can be laundered.

ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020)

16

Government's Ex. 14 - 016

Case 5:20-cv-00054 Document 14-2 Filed on 04/24/20 in TXSD Page 18 of 19

ATTACHMENT LETTER A B C D
E
F
G
H
I

ATTACHMENTS
DOCUMENT NAME AND CITATION
U.S. Immigration and Customs Enforcement, Updated ICE statement on COVID-19 (Mar. 18, 2020), https://www.ice.gov/news/releases/updated-ice-statement-covid-19.
ICE National Detention Standards 2019, Standard 4.3, Medical Care, https://www.ice.gov/doclib/detention-standards/2019/4_3.pdf.
2011 ICE Performance-Based National Detention Standards, Revised 2016, Standard 4.3, https://www.ice.gov/doclib/detentionstandards/2011/4-3.pdf.
2008 ICE Performance-Based National Detention Standards, Standard 4-22, Medical Care, https://www.ice.gov/doclib/dro/detentionstandards/pdf/medical_care.pdf.
Centers of Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidancecorrectional-detention.pdf.
Memorandum from Executive Associate Director Enrique Lucero, Enforcement and Removal Operations, Memorandum on Coronavirus 2019 (COVID-19) Action Plan, Revision 1 (Mar. 27. 2020).
Centers of Disease Control and Prevention, Public Health Recommendations for Community-Related Exposure, https://www.cdc.gov/coronavirus/2019-ncov/php/public-healthrecommendations.html (last visited Apr. 9, 2020).
Centers for Disease Control and Prevention, Strategies to Optimize the Supply of PPE and Equipment, https://www.cdc.gov/coronavirus/2019-ncov/hcp/ppe-strategy/ (last visited Apr. 9, 2020).
Centers for Disease Control and Prevention, Cleaning and Disinfection for Community Facilities, https://www.cdc.gov/coronavirus/2019ncov/community/organizations/cleaning-disinfection.html (last visited Apr. 9, 2020).

ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020)

17

Government's Ex. 14 - 017

Case 5:20-cv-00054 Document 14-2 Filed on 04/24/20 in TXSD Page 19 of 19

J

U.S. Environmental Protection Agency, List N: Disinfectants for Use

Against SARS-CoV-2, https://www.epa.gov/pesticide-registration/list-

n-disinfectants-use-against-sars-cov-2 (last visited Apr. 9, 2020).

K

Assistant Director Peter Berg, Enforcement and Removal

Operations, Updated Guidance: COVID-19 Detained Docket Review

(Apr. 4, 2020).

ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020)

18

Government's Ex. 14 - 018

Case 5:20-cv-00054 Document 14-3 Filed on 04/24/20 in TXSD Page 1 of 1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
LAREDO DIVISION

Raul Garza Marroquin, et al., Petitioners/Plaintiffs, v.
Jose Longoria, Jr., et al., Respondents/Defendants.

§ § § § § Civil Action No. 5:20-cv-54 § § § §

ORDER Before the Court is Defendants’ motion to dismiss the claims brought by Giorge Gonzalez and Rafael Olvera Amezcua. Having reviewed the motion and the record before the Court, the Court finds that the motion has merit and grants the motion. IT IS ORDERED that Gonzalez’s and Olvera’s claims are DISMISSED WITH PREJUDICE.
Signed this _____ day of ______________ 2020.
__________________________________ Hon. Marina Garcia Marmolejo United States District Judge

 
 Case 5:20-cv-00054 Document 16 Filed on 04/24/20 in TXSD Page 1 of 29

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
LAREDO DIVISION

Raul Garza Marroquin, et al., Petitioners/Plaintiffs, v.
Jose Longoria, Jr., et al., Respondents/Defendants.

§ § § § § Civil Action No. 5:20-cv-54 § § § §

DEFENDANTS’ MOTION TO DISMISS AND RESPONSE TO RAUL GARZA MARROQUIN’S PETITIONS FOR IMMEDIATE
INJUNCTIVE RELIEF
RYAN K. PATRICK United States Attorney
By: Ariel N. Wiley Assistant United States Attorney Attorney-in-Charge Southern District No. 2554283 Texas Bar No. 24093366 Annalisa L. Cravens Assistant United States Attorney Southern District No. 2791281 Texas Bar No. 24092298 1000 Louisiana Street, Suite 2300 Houston, Texas 77002 Tel.: (713) 567-9000 Fax: (713) 718-3303 Email: Ariel.Wiley@usdoj.gov Email: Annalisa.Cravens@usdoj.gov
Counsel for Respondents/Defendants

Case 5:20-cv-00054 Document 16 Filed on 04/24/20 in TXSD Page 2 of 29
Table of Contents
Table of Authorities ........................................................................................................................ ii Exhibits ......................................................................................................................................... vii Introduction and Summary ............................................................................................................. 1 Factual and Procedural Background ............................................................................................... 2 Issues............................................................................................................................................... 5 Standard .......................................................................................................................................... 5 Argument ........................................................................................................................................ 6
I. Under Fifth Circuit precedent, Plaintiff cannot invoke habeas corpus to challenge the conditions of his confinement. .......................................................................................... 6
II. Plaintiff’s direct constitutional claims seeking release are not cognizable, and, even if they were, the facts here do not support a constitutional violation. .................................. 9 a. Plaintiff does not plead a constitutional violation. ............................................. 9 b. The proactive measures Defendants have taken to prevent COVID-19 show that they are neither punishing Plaintiff nor deliberately indifferent to his needs. ................................................................................................................ 11
III. Plaintiff does not state a claim under the Rehabilitation Act. ......................................... 13 a. Courts across the country do not recognize Rehabilitation Act claims by federal detainees, and Plaintiff’s claim relating to his removal procedures are barred. ......................................................................................................... 13 b. Even if he could bring a Rehabilitation Act claim, Plaintiff alleges in only conclusory fashion that he has been excluded from activities or programs because of his disabilities. ................................................................................ 15
IV. This Court should not micromanage PIDC’s measures to prevent COVID-19. ............. 18 V. The public interest favors Plaintiff’s continued detention. ............................................. 19 Conclusion .................................................................................................................................... 20 Certificate of Service .................................................................................................................... 21
i

Case 5:20-cv-00054 Document 16 Filed on 04/24/20 in TXSD Page 3 of 29
Table of Authorities Page(s)
Cases Alexander v. Sandoval,
532 U.S. 275 (2001) .................................................................................................................. 13
Alexander v. Trump, 753 F. App’x 201 (5th Cir. 2018) ............................................................................................... 9
Arce v. Louisiana, 226 F. Supp. 3d 643 (E.D. La. 2016) ........................................................................................ 16
Ashcroft v. Iqbal, 556 U.S. 662 (2009) .................................................................................................................... 5
Bell v. Wolfish, 441 U.S. 520 (1979) .................................................................................................................... 9
Bellikoff v. Eaton Vance Corp., 481 F.3d 110 (2d Cir. 2007)...................................................................................................... 14
Bennett–Nelson v. Louisiana Board of Regents, 431 F.3d 448 (5th Cir.2005)...................................................................................................... 15
Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971) ................................................................................................................ 7, 9
Blackie’s House of Beef, Inc. v. Castillo, 659 F.2d 1211 (D.C. Cir. 1981) ................................................................................................ 19
Bryant v. Madigan, 84 F.3d 246 (7th Cir.1996)........................................................................................................ 16
Cadena v. El Paso County, 946 F.3d 717 (5th Cir. 2020)..................................................................................................... 15
Carlson v. Landon, 342 U.S. 524 (1952) .................................................................................................................. 17
ii

Case 5:20-cv-00054 Document 16 Filed on 04/24/20 in TXSD Page 4 of 29
Dawson v. Asher, 2020 WL 1704324 (W.D. Wash. Apr. 8, 2020) ........................................................................ 13
De Dandrade v. U.S. Dep’t of Homeland Sec., 367 F. Supp. 3d 174 (S.D.N.Y. 2019) ................................................................................. 13, 14
Demore v. Kim, 538 U.S. 510 (2003) .................................................................................................................. 17
Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752 (5th Cir. 2001)..................................................................................................... 10
EEOC v. Agro Distrib., 555 F.3d 462 (5th Cir. 2009)..................................................................................................... 16
Fraihat v. U.S. Immigration & Customs, Enf’t, 2020 WL 1932570 (C.D. Cal. Apr. 20, 2020)........................................................... 18, 19
Garrett v. Thaler, 560 F. App’x 375 (5th Cir. 2014) ............................................................................................. 15
Gobert v. Caldwell, 463 F.3d 339 (5th Cir. 2006)..................................................................................................... 10
Hearth, Inc. v. Dep’t of Public Welfare, 617 F.2d 381 (5th Cir. 1980)....................................................................................................... 9
Hernandez v. Garrison, 916 F.2d 291 (5th Cir. 1990)....................................................................................................... 7
Hurtado v. Reno, 34 F. Supp. 2d 1261 (D. Colo. 1999) ........................................................................................ 14
Inko-Tariah v. Lappin, 2009 WL 8652932 (E.D.N.C. Apr. 1, 2009) ............................................................................. 14
Jorge V. S. v. Green, 2020 WL 1921936 (D.N.J. Apr. 21, 2020) ............................................................................... 13
iii

Case 5:20-cv-00054 Document 16 Filed on 04/24/20 in TXSD Page 5 of 29
Khan v. Fort Bend Indep. Sch. Dist., 561 F. Supp. 2d 760 (S.D. Tex. 2008) ........................................................................................ 6
Livas v. Myers, 2020 WL 1939583 (W.D. La. Apr. 22, 2020) ......................................................................... 7, 9
Martinez v. Mathews, 544 F.2d 1233 (5th Cir.1976)...................................................................................................... 6
Mathis, v. GEO Group, Inc., 2009 WL 10736631 (E.D.N.C. Nov. 9, 2009) .......................................................................... 14
Nken v. Holder, 556 U.S. 418 (2009) .................................................................................................................. 19
Northup v. Thaler, 2012 WL 4068676 (S.D. Tex. Aug. 7, 2012).............................................................................. 7
Nottingham v. Richardson, 499 F. App’x 368 (5th Cir. 2012) ............................................................................................. 16
Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999) .................................................................................................................. 16
P.L. v. U.S. Immigration & Customs, Enf’t, 2019 WL 2568648 (S.D.N.Y. June 21, 2019)................................................................. 15
Patrick v. Whitaker, 2019 WL 588465 (S.D. Tex. 2019)............................................................................................. 8
Pierre v. United States, 525 F.2d 933 (5th Cir. 1976)................................................................................................... 6, 9
Poree v. Collins, 866 F.3d 235 (5th Cir. 2017)....................................................................................................... 7
Rivera Rosa v. McAleenan, 2019 WL 5191095 (S.D. Tex. 2019)........................................................................................... 8
iv

Case 5:20-cv-00054 Document 16 Filed on 04/24/20 in TXSD Page 6 of 29
Roark v. Flanery, 2014 WL 4447451 (E.D. Tex. Sept. 9, 2014) ........................................................................... 14
Rourke v. Thompson, 11 F.3d 47 (5th Cir. 1993)....................................................................................................... 6, 9
Sacal-Micha v. Longoria, 2020 WL 1815691 (S.D. Tex. Apr. 9, 2020) .................................................................... 8, 9, 12
Sacal-Micha v. Longoria, 2020 WL 1518861 (S.D. Tex. Mar. 27, 2020) .......................................................................... 12
Sandler v. Anderson, 2008 WL 2610130 (W.D. Mo. July 2, 2008) ............................................................................ 14
Sarres Mendoza v. Barr, 2019 WL 1227494 (S.D. Tex. 2019)........................................................................................... 8
Schipke v. Van Buran, 239 F. App’x 85 (5th Cir. 2007).................................................................................................. 7
Sepulvado v. Jindal, 729 F.3d 413 (5th Cir. 2013)....................................................................................................... 6
Shepherd v. Dallas Cty., 591 F.3d 445 (5th Cir. 2009)................................................................................................. 9, 10
Spencer v. Bragg, 310 F. App’x 678 (5th Cir. 2009) ............................................................................................... 7
United States v. Martinez-Fuerte, 428 U.S. 543 (1976) .................................................................................................................. 19
United States v. Robinson, 2009 WL 1507130 (S.D. Tex. 2009)........................................................................................... 7
Valentine v. Collier, No. 20-20207, 2020 WL 1934431 (5th Cir. Apr. 22, 2020) ................................... 10, 11, 12, 19
v

Case 5:20-cv-00054 Document 16 Filed on 04/24/20 in TXSD Page 7 of 29
Wells v. Thaler, 460 F. App’x 303 (5th Cir. 2012) ............................................................................................. 16
Williams v. Meese, 926 F.2d 994 (10th Cir. 1991)................................................................................................... 14
Wolcott v. Sebelius, 635 F.3d 757 (5th Cir. 2011)....................................................................................................... 5
Wong Wing v. United States, 163 U.S. 228 (1896) .................................................................................................................. 17
Youngberg v. Romeo, 457 U.S. 307 (1982) .................................................................................................................. 20
Statutes 8 U.S.C. § 1252(b)(9) ................................................................................................................... 14 28 U.S.C. § 2241............................................................................................................................. 8 29 U.S.C. § 794a(a)(2) .................................................................................................................. 13 42 U.S.C. § 1983............................................................................................................................. 7 U.S.C. § 1983.................................................................................................................................. 7 Rules FED. R. CIV. P. 201 ....................................................................................................................... 5
vi

Case 5:20-cv-00054 Document 16 Filed on 04/24/20 in TXSD Page 8 of 29

Exhibits

Number Description

1

Garza’s A-File

2

Garza’s Criminal History Records

3

Garza’s Medical Records from PIDC

4

Declaration of Dr. Maribel Cantú, M.D.

5

Declaration of Officer in Charge José García Longoria

6

ICE Guidance re: Custody Review, dated 4-4-2020

7

ICE ERO COVID-19 Pandemic Response Requirements, dated 4-10-

2020

vii

Case 5:20-cv-00054 Document 16 Filed on 04/24/20 in TXSD Page 9 of 29
Introduction and Summary Out of an abundance of caution and to avoid the risk of violating this Court’s order mandating Defendants’ response, Defendants respectfully move to dismiss Plaintiff Raul Garza Marroquin’s petition here even though it should be litigated in the Brownsville Division. (See Dkt. 13.) Defendants ask, however, that the Court grant their motion to sever and transfer Garza’s claims to the Brownsville Division and deny this motion as moot. This motion largely duplicates arguments made in the motion to dismiss that is properly before this Court. Plaintiff essentially alleges that immigration detention is now unconstitutional and asks the Court to order his immediate release. Plaintiff brings a habeas corpus claim alleging that his continued detention at the Port Isabel Detention Center violates the Fifth Amendment to the Constitution. Even assuming Plaintiff’s allegations are true, they do not state a claim. The Fifth Circuit does not recognize a conditions-of-confinement habeas corpus claim. And a cause of action against the federal government directly under the Constitution is similarly not cognizable. Even if these claims could be brought in the Fifth Circuit, Plaintiff has pled merely the potential introduction of a disease coupled with typical conditions of a densely populated detention facility—allegations the Fifth Circuit has made clear do not amount to a constitutional violation. Moreover, the evidence submitted here shows that these allegations are without merit. Plaintiff also does not state a claim under the Rehabilitation Act where courts across the country have held that federal detainees may not bring Rehabilitation Act claims and where Plaintiff does not articulate what programs or services he allegedly has been excluded from. This case does not warrant this Court’s intervention into Defendants’ management of their detention centers. Defendants’ evolving proactive measures show that they are responsive to the ever-changing threat of COVID-19 and are working to protect their detainees.
1

Case 5:20-cv-00054 Document 16 Filed on 04/24/20 in TXSD Page 10 of 29
Factual and Procedural Background Raul Garza. Garza, a 77-year-old native of Mexico, has been in ICE custody since March 14, 2020. (Dkt. 1 ¶ 79.) He is detained at the Port Isabel Detention Center in Los Fresnos, Texas. (Id. ¶ 5.) Garza is removable because of his lengthy criminal history: he has four convictions for driving while intoxicated, the most recent from September 2015, as well as a March 2017 assault conviction. (Ex. 1 at 3 (charging Garza as removable under Section 212(a)(2)(B) of the INA because he has been convicted of two or more offenses for which the aggregate sentences were five years or more and summarizing the convictions).) In his most recent DWI, which occurred in 2015, Garza was so intoxicated that he drove into a wooden fence. (Ex. 2 at 26–30, 38.) His most recent criminal conviction was for the assault of his girlfriend in March 2017. (Id. at 42–45.) Given his numerous convictions, Garza is subject to mandatory detention. (See Ex. 1 at 3.) Garza has been receiving consistent medical care. (See Ex. 3 at 64–66.) On April 6, 2020, Garza was examined specifically for COVID-19 symptoms. (Id. at 9.) Garza denied that he was experiencing any symptoms of COVID-19, and was educated on social distancing, covering a cough, and frequent a proper hand hygiene. (Id.) Garza verbalized that he understood the instructions. (Id.) ICE Guidance Regarding Custody Reviews. On April 4, 2020, Peter Berg, an Assistant Director of Field Operations with ICE, circulated guidance to ICE officers regarding the review of cases of aliens who may be at higher risk for serious illness from COVID-19. (Ex. 13.) Expanding on its earlier instruction to review the cases of aliens over age 70 or who are pregnant, ICE Enforcement and Removal Operations (ERO) identified several categories of cases to be reviewed to re-assess custody: pregnant detainees or those having recently delivered babies; detainees over
2

Case 5:20-cv-00054 Document 16 Filed on 04/24/20 in TXSD Page 11 of 29
60 years old; detainees of any age with chronic illness, including blood disorders, chronic kidney disease, compromised immune systems, endocrine disorders, metabolic disorders, heart disease, lung disease, and neurological or neurodevelopment conditions. (Id. at 1–2.) The guidance notes, however, that the presence of one of these favors “may not always be determinative.” (Id. at 2.)
ICE ERO COVID-19 Pandemic Response Requirements. On April 10, 2020, ICE expanded on its earlier guidance and issued COVID-19 Pandemic Response Requirements (PRR) setting forth expectations and assisting ICE detention facility operators to sustain detention operations while mitigating the risk of COVID-19. (Ex. 14 at 3.) The PRR was “developed in consultation with the Centers for Disease Control and Prevention and is a dynamic document that will be updated as additional/revised information and best practices become available.” (Id.) Among other requirements, the PRR mandates that all ICE detention facilities comply with CDC guidance. (Id. at 5–6.) It sets forth in detail specific requirements for staffing, supplies, hygiene, and cleaning practices. (Id. at 8–10.) It also provides screening questions for all staff and new entrants. (Id. at 12.) And it provides measures to encourage social distancing. (Id. at 13–14.) Finally, it sets forth procedures in the event of a positive COVID-19 case. (Id. at 14–16.)
Port Isabel Detention Center. ICE epidemiologists have been tracking the outbreak, regularly updating infection-prevention and control protocols, and issuing guidance to field staff on screening and management. (Ex. 4 ¶ 5.) ICE and PIDC are following CDC guidance. (Id. ¶ 6.) Each detainee is screened for disabilities upon admission. (Id. ¶ 8.) Those disabilities are further evaluated for reasonable accommodations. (Id.) At intake at PIDC, detainees are assessed for fever and respiratory illnesses, asked to confirm whether they have had recent contact with a person with COVID-19, and whether they have traveled through areas with sustained community transmission. (Id. ¶ 9.) Detainees with potential COVID-19 symptoms are placed in isolated and
3

Case 5:20-cv-00054 Document 16 Filed on 04/24/20 in TXSD Page 12 of 29
tested. (Id. ¶ 10.) If they test positive, they will be given appropriate medical treatment, including being taken to a local hospital if necessary. (Id.) In cases of known exposure, asymptomatic detainees are placed in cohorts with restricted movement for 14 days. (Id. ¶ 11.) They are monitored daily for fever or symptoms of respiratory illness. (Id.) Patients have access to healthcare via a daily sick-call process. (Id.) All individuals with fever or respiratory symptoms are referred to in-house medical providers. (Id.) On-call providers are available after hours to address any concerns. (Id.)
There are no confirmed cases of COVID-19 among the detainee population. (Id. ¶ 13.) There are no ICE detainees suspected of having COVID-19 and none pending medical testing. (Id.) One contact maintenance worker tested positive for COVID-19 on April 1, 2020. (Ex. 5 ¶ 7.) All contract workers who had been in contact with him tested negative and were sent home for a 14-day quarantine. (Id.) He did not have any contact with the PIDC detainees. (Id.)
PIDC is within its capacity. (Ex. 4 ¶ 14.) PIDC is screening all staff and vendors, including by checking their body temperatures. (Id. ¶ 15.) PIDC is screening all detainees at intake, including travel history, medical history, and checking body temperatures. (Id. ¶ 16.) PIDC is educating staff and detainees about COVID-19, including the importance of handwashing and hand hygiene, covering coughs, and requesting to seek medical care when needed. (Id. ¶ 17.) PIDC has identified housing units to quarantine patients who are suspected or who have tested positive for COVID-19. (Id. ¶ 18.)
Plaintiff filed a habeas corpus petition in this Court on April 15, 2020, seeking his immediate release because he claims that his detention violates his substantive due process rights under the Fifth Amendment. (See generally Dkt. 1.) Alternatively, he seeks improved conditions at PIDC. (Id.) The U.S. Attorney’s Office was served on April 23, 2020, and Defendants moved
4

Case 5:20-cv-00054 Document 16 Filed on 04/24/20 in TXSD Page 13 of 29
on that day to sever and transfer Garza’s claims to the Brownsville Division. (Dkt. 13.) Because that motion remains pending, Defendants now move to dismiss Plaintiff’s claims and respond to his request for immediate injunctive relief, in accordance with this Court’s order.
Issues 1. Whether Plaintiff may seek release under habeas corpus due to the conditions of his confinement when the Fifth Circuit has made clear such a claim is not cognizable. 2. Whether Plaintiff may bring a claim directly under the Constitution to seek his release where the Fifth Circuit does not recognize such a claim. 3. Whether Plaintiff states a claim under the Rehabilitation Act where courts across the country have not allowed Rehabilitation Act claims by federal detainees and where Plaintiff does not actually allege he cannot participate in his removal proceedings. 4. Whether this Court should order certain conditions at Port Isabel Detention Center where (i) the Central District of California is already doing so; (ii) Plaintiff does not articulate what improved conditions he would deem satisfactory; and (iii) the Fifth Circuit recently stayed an injunction against the Texas Department of Criminal Justice that imposed detailed COVID-19 prevention measures on the state prisons.
Standard Rule 12(b)(6) provides for the dismissal of a complaint that fails to state a claim upon which relief can be granted. In ruling on a 12(b)(6) motion, courts may consider the complaint, its attachments and documents incorporated by reference, and matters of which the court may take judicial notice. Wolcott v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011); see also FED. R. CIV. P. 201. Courts need not accept a plaintiff’s legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Wolcott, 635 F.3d at 763. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678–79. “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. Preliminary injunctive relief is an extraordinary remedy that should not be granted unless the movant establishes the following four elements by a preponderance of the evidence: “(1) there
5

Case 5:20-cv-00054 Document 16 Filed on 04/24/20 in TXSD Page 14 of 29
is a substantial likelihood of success on the merits; (2) there is a substantial threat that irreparable injury will result if the injunction is not granted; (3) the threatened injury outweighs the threatened harm to the defendant; and (4) granting the preliminary injunction will not disserve the public interest.” Khan v. Fort Bend Indep. Sch. Dist., 561 F. Supp. 2d 760, 763 (S.D. Tex. 2008) (citation omitted). The movant must unequivocally show the need for preliminary injunctive relief. Sepulvado v. Jindal, 729 F.3d 413, 417 (5th Cir. 2013), cert. denied, 134 S. Ct. 1789 (2014) (internal citations and quotations omitted).
The standard is heightened further when a party seeks mandatory preliminary relief that alters the status quo. Martinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir.1976). Although Plaintiff has not yet filed a separate motion for a temporary restraining order or for a preliminary injunction, Defendants respond to his arguments preliminarily. Should Garza’s claims remain in this Court, and should he file a motion, Defendants would ask to be given the opportunity to respond more fully.
Argument I. Under Fifth Circuit precedent, Plaintiff cannot invoke habeas corpus to challenge
the conditions of his confinement. Plaintiff invokes habeas corpus to challenge the constitutionality of his conditions of confinement and seeks release. But habeas corpus is not a means by which to challenge conditions of confinement. “Simply stated, habeas is not available to review questions unrelated to the cause of detention.” Pierre v. United States, 525 F.2d 933, 935 (5th Cir. 1976). In other words, a plaintiff “cannot avail himself of the writ of habeas corpus when seeking injunctive relief unrelated to the cause of his detention.” Rourke v. Thompson, 11 F.3d 47, 49 (5th Cir. 1993) (emphasis added). The Fifth Circuit, and district courts within this Circuit, have long recognized that habeas corpus actions are the proper vehicle to “challenge the fact or duration of confinement,” whereas
6

Case 5:20-cv-00054 Document 16 Filed on 04/24/20 in TXSD Page 15 of 29
allegations that challenge an individual’s “conditions of confinement” are “properly brought in civil rights actions.” Schipke v. Van Buran, 239 F. App’x 85, 85–86 (5th Cir. 2007); see also Poree v. Collins, 866 F.3d 235, 243 (5th Cir. 2017) (noting the “instructive principle that challenges to the fact or duration of confinement are properly brought under habeas, while challenges to the conditions of confinement are properly brought under [civil rights actions]”) (citations omitted); Hernandez v. Garrison, 916 F.2d 291, 293 (5th Cir. 1990) (holding that claims of overcrowding, denial of medical treatment, and access to an adequate law library were not proper subjects of a habeas corpus petition); Livas v. Myers, 2020 WL 1939583, at *8 (W.D. La. Apr. 22, 2020) (“Neither party nor this Court found a single precedential case in the Fifth Circuit . . . allowing conditions of confinement claims to be brought under § 2241.”); United States v. Robinson, 2009 WL 1507130, at *4 (S.D. Tex. 2009) (“Claims concerning the conditions of confinement are actionable, if at all, under 42 U.S.C. § 1983 or Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), and not under the habeas corpus statutes.”).
Even when a petitioner alleges that inadequate conditions of confinement create the risk of serious physical injury, illness, or death, a petition for a writ of habeas corpus is not the proper vehicle for such a claim. See, e.g., Spencer v. Bragg, 310 F. App’x 678, 679 (5th Cir. 2009) (affirming the lower court’s dismissal of petitioner’s habeas claim even though he alleged that the conditions of confinement endangered his life); Northup v. Thaler, 2012 WL 4068676, at *2 (S.D. Tex. Aug. 7, 2012), rep. & rec. adopted, 2012 WL 4068997 (S.D. Tex. Sept. 14, 2012) (dismissing petitioner’s habeas claim based on alleged risk of abuse by other inmates).
The same is true in the civil immigration context. When a Mexican national sought release from ICE custody due to concerns for COVID-19, another member of this Court dismissed the petition, noting, “The Fifth Circuit has not recognized [habeas corpus as a permissible avenue for
7

Case 5:20-cv-00054 Document 16 Filed on 04/24/20 in TXSD Page 16 of 29
relief from alleged inadequate conditions of confinement].” Sacal-Micha v. Longoria, 2020 WL 1815691, at *5 n.6 (S.D. Tex. Apr. 9, 2020) (Rodriguez, J.). Likewise, when civil Border Patrol detainees sought release from custody to cure allegedly unconstitutional conditions, that Court noted, “Any person in custody can obtain relief from allegedly inadequate conditions by being released, but this fact does not create a permissible habeas corpus claim when the complaint turns on the conditions of confinement.” Rivera Rosa v. McAleenan, 2019 WL 5191095, at *18 (S.D. Tex. 2019). See also Sarres Mendoza v. Barr, 2019 WL 1227494, at *2 (S.D. Tex. 2019) (denying Honduran detainee’s motion for leave to amend because the proposed claims on “conditions of confinement may not be brought in a habeas corpus proceeding, and are actionable, if at all, in a civil rights action”); Patrick v. Whitaker, 2019 WL 588465, at *4, n.36 (S.D. Tex. 2019), appeal dismissed, 2019 WL 4668409 (5th Cir. 2019) (ICE detainee’s “motion for leave to file supplemental pleadings concerning the conditions of his confinement” is denied because “Petitioner’s proposed claims are not actionable under 28 U.S.C. § 2241.”).
“A detention facility’s protocols for isolating individuals, controlling the movement of its staff and detainees, and providing medical care are part and parcel of the conditions in which the facility maintains custody over detainees.” Sacal-Micha, 2020 WL 1815691, at *4. These conditions of confinement are precisely what Plaintiff challenges here. (See, e.g., Dkt. 1 ¶ 63 (“Once COVID-19 is introduced to the Detention Centers under current conditions, it will be impossible to stop the spread . . . .”); id. ¶ 70 (“The ERO PRR is inadequate to provide safe conditions for Petitioners”).) Because his request for release is due to the conditions, the Fifth Circuit has barred his claims. If his habeas claims are allowed here, any detainee could simply seek release to sidestep the Fifth Circuit’s express admonition that habeas corpus is not a means to challenge conditions of confinement. This loophole would swallow the rule.
8

Case 5:20-cv-00054 Document 16 Filed on 04/24/20 in TXSD Page 17 of 29
Finally, habeas corpus is meant to correct only unlawful detention. Plaintiff does not challenge the lawfulness of his custody or the cause of his detention. See Pierre, 525 F.2d at 935– 36; Livas, 2020 WL 1939583, at *7–8 (denying prisoners’ requests for home confinement because of concerns of COVID-19 and noting that they incorrectly invoked habeas corpus to challenge their lawful imprisonment). Thus, Plaintiff cannot invoke habeas to seek relief unrelated to the cause of his detention. See Rourke, 11 F.3d at 49.
II. Plaintiff’s direct constitutional claims seeking release are not cognizable, and, even if they were, the facts here do not support a constitutional violation. a. Plaintiff does not plead a constitutional violation.
To the extent Plaintiff brings a direct constitutional claim seeking his release, he may not do so in the Fifth Circuit. “Although there have been a few notable exceptions, the federal courts, and this Circuit in particular, have been hesitant to find causes of action arising directly from the Constitution.” Alexander v. Trump, 753 F. App’x 201, 206 (5th Cir. 2018) (rejecting a freestanding constitutional complaint against the FBI seeking injunctive relief). See also Hearth, Inc. v. Dep’t of Public Welfare, 617 F.2d 381, 382 (5th Cir. 1980) (citing Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), as one “notable exception”). Recognizing a claim directly under the Fifth Amendment to order Plaintiff’s release would be a departure from Fifth Circuit precedent. See Sacal-Micha, 2020 WL 1815691, at *5–6.
Even if a direct constitutional claim were cognizable in this Circuit, Plaintiff has not pled it. In a conditions-of-confinement case, “the proper inquiry is whether those conditions amount to punishment of the detainee.” Bell v. Wolfish, 441 U.S. 520, 535 (1979). Under Fifth Circuit case law, “isolated examples of illness, injury, or death, standing alone, cannot prove that conditions of confinement are constitutionally adequate. Nor can the incidence of diseases or infections, standing alone, . . . since any densely populated residence may be subject to outbreaks.” Shepherd
9

Case 5:20-cv-00054 Document 16 Filed on 04/24/20 in TXSD Page 18 of 29
v. Dallas Cty., 591 F.3d 445, 454 (5th Cir. 2009). A detainee does not establish a case simply by alleging that the detention center has disease or infection present or that it may in the future. “Rather, a detainee . . . must demonstrate a pervasive pattern of serious deficiencies in providing for his basic human needs.” Id.
Alternatively, if the detainee challenges an officer’s episodic act or omission, he must demonstrate that the official acted with deliberate indifference to his medical needs or safety. See, e.g., Gobert v. Caldwell, 463 F.3d 339, 345 (5th Cir. 2006). Officials disregard a risk to an inmate when they “refuse[] to treat him, ignore[] his complaints, intentionally treat[] him incorrectly, or engage[] in any similar conduct that would clearly evince a wanton disregard for any serious medical needs.” Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001). Plaintiff seems to allege both theories simultaneously. (See Dkt. 1 ¶¶ 127–28.)
But Plaintiff’s allegations here do not support either a “pervasive pattern of serious deficiencies in providing for basic human needs” or a “wanton disregard for serious medical needs.” Plaintiff does not allege that Defendants have failed to provide him with any medical care he may require. Rather, his allegations focus on the fact that he is detained with others in typical detention-facility conditions and cannot exercise social distancing. But, even taking these allegations as true, Fifth Circuit expressly forecloses Plaintiff’s claim: “any densely populated residence may be subject to outbreaks,” and the existence of a disease does not state a constitutional violation. Shepherd, 591 F.3d at 454. The Fifth Circuit recently reaffirmed this principle in the context of COVID-19 in staying the preliminary injunction order against the Texas Department of Criminal Justice (TDCJ) relating to its COVID-19 prevention procedures. Valentine v. Collier, No. 20-20207, 2020 WL 1934431, at *3 (5th Cir. Apr. 22, 2020) (citing Shepherd, 591 F.3d at 454). Where the district court imposed detailed procedures on TDCJ, going beyond CDC
10

Case 5:20-cv-00054 Document 16 Filed on 04/24/20 in TXSD Page 19 of 29
guidance and impeding TDCJ’s ability to adapt to changing circumstances, the Fifth Circuit noted
that TDCJ is likely to prevail on the merits of its appeal. See id. at *3–4.
b. The proactive measures Defendants have taken to prevent COVID-19 show that they are neither punishing Plaintiff nor deliberately indifferent to his needs.
In staying the district court’s injunction against TDCJ, the Fifth Circuit found that Texas
prisoners challenging the prisons’ COVID-19 measures failed to show deliberate indifference
because “the evidence shows that TDCJ has taken and continues to take measures—informed by
guidance from the CDC and medical professionals—to abate and control the spread of the virus.”
Valentine, 2020 WL 1934431, at *4. The same is true here.
Port Isabel Detention Center has taken extensive measures to prevent COVID-19:
• ICE epidemiologists have been tracking the outbreak, regularly updating infectionprevention and control protocols, and issuing guidance to field staff on screening and management. (Ex. 4 ¶ 5.)
• ICE and PIDC are following CDC guidance. (Id. ¶ 6.) • On April 10, 2020, ICE released the ICE ERO COVID-19 Pandemic Responsive
Requirements (Ex. 7). • Each detainee is screened for disabilities upon admission. (Ex. 4 ¶ 8.) Those disabilities
are further evaluated for reasonable accommodations. (Id.) • At intake at PIDC, detainees are assessed for fever and respiratory illnesses, asked to
confirm whether they have had recent contact with a person with COVID-19, and whether they have traveled through areas with sustained community transmission. (Id. ¶ 9.) • Detainees with potential COVID-19 symptoms are placed in isolated and tested. (Id. ¶ 10.) If they test positive, they will be given appropriate medical treatment, including being taken to a local hospital if necessary. (Id.) • In cases of known exposure, asymptomatic detainees are placed in cohorts with restricted movement for 14 days. (Id. ¶ 11.) They are monitored daily for fever or symptoms of respiratory illness. (Id.) • Patients have access to healthcare via a daily sick-call process. (Id.)
11

Case 5:20-cv-00054 Document 16 Filed on 04/24/20 in TXSD Page 20 of 29
• All individuals with fever or respiratory symptoms are referred to in-house medical providers. (Id.)
• On-call providers are available after hours to address any concerns. (Id.) • There are no confirmed cases of COVID-19 among the detainee population. (Id. ¶ 13.) • There are no ICE detainees suspected of having COVID-19 and none pending medical
testing. (Id.) • One contact maintenance worker tested positive for COVID-19 on April 1, 2020. (Ex. 5 ¶
7.) All contract workers who had been in contact with him tested negative and were sent home for a 14-day quarantine. (Id.) He did not have any contact with the PIDC detainees. (Id.) • PIDC is within its capacity. (Ex. 4 ¶ 14.) • PIDC is screening all staff and vendors, including by checking their body temperatures. (Id. ¶ 15.) • PIDC is screening all detainees at intake, including travel history, medical history, and checking body temperatures. (Id. ¶ 16.) • PIDC is educating staff and detainees about COVID-19, including the importance of handwashing and hand hygiene, covering coughs, and requesting to seek medical care when needed. (Id. ¶ 17.) • PIDC has identified housing units to quarantine patients who are suspected or who have tested positive for COVID-19. (Id. ¶ 18.) Based on these steps that Defendants have taken to protect detainees during the pandemic,
Plaintiff cannot show a constitutional violation. See Sacal-Micha, 2020 WL 1815691, at *6 (“But
ultimately, Sacal does not assert that Respondents are doing nothing to protect him, other
detainees, and staff members from COVID-19, but only that Respondents are not doing enough.
. . . Courts have refused to provide habeas relief even when the claimed inadequacies allegedly placed the petitioner in grave peril.”). Further, to the extent Plaintiff argues that all the steps taken
by Defendants are still inadequate to “fully guarantee [Plaintiff’s] safety,” that is not the applicable
standard, and release is still not warranted. See Sacal-Micha v. Longoria, 2020 WL 1518861, at
*6 (S.D. Tex. Mar. 27, 2020). (“[I]t is possible that despite ICE's best efforts, Sacal may be exposed
12

Case 5:20-cv-00054 Document 16 Filed on 04/24/20 in TXSD Page 21 of 29
and contract the virus. . . . But the fact that ICE may be unable to implement the measures that would be required to fully guarantee Sacal’s safety does not amount to a violation of his constitutional rights and does not warrant his release.”). See also Jorge V. S. v. Green, 2020 WL 1921936, at *3 (D.N.J. Apr. 21, 2020) (“That these steps [by ICE in accordance with CDC guidance for detention facilities] do not guarantee Petitioner will remain healthy and free of the disease is immaterial, the constitution requires no such perfection.”); Dawson v. Asher, 2020 WL 1704324, at *12 (W.D. Wash. Apr. 8, 2020) (“No one can entirely guarantee safety in the midst of a global pandemic. However, the standard under which the court evaluates Petitioners’ second TRO motion is not guaranteed safety—an impossible standard to meet no matter the circumstances—but rather a likelihood of irreparable harm.”).
III. Plaintiff does not state a claim under the Rehabilitation Act. a. Courts across the country do not recognize Rehabilitation Act claims by federal detainees, and Plaintiff’s claim relating to his removal procedures are barred.
Plaintiff brings claims under Section 504 of the Rehabilitation Act and alleges that Defendants have failed to provide reasonable accommodations for his disabilities and have excluded him from federal programs or activities because of his disabilities. He seeks either improved conditions or release from custody. Plaintiff do not state what improved conditions he would find satisfactory; rather, he simply alleges that Defendants have failed to “employ[] the only known means of protecting [Plaintiff] from infection.” (Dkt. 1 ¶ 143.)
The Rehabilitation Act’s remedies section does not provide for a private right of action for Plaintiff. See 29 U.S.C. § 794a(a)(2) (providing causes of action only to those aggrieved by an action of a recipient of federal assistance or a federal provider of assistance); see also De Dandrade v. U.S. Dep’t of Homeland Sec., 367 F. Supp. 3d 174, 190–91 (S.D.N.Y. 2019). “[P]rivate rights of action to enforce federal law must be created by Congress.” Alexander v. Sandoval, 532 U.S.
13

Case 5:20-cv-00054 Document 16 Filed on 04/24/20 in TXSD Page 22 of 29
275, 286 (2001). Where there is no express private right, courts “begin with the presumption that Congress did not intend one.” Bellikoff v. Eaton Vance Corp., 481 F.3d 110, 116 (2d Cir. 2007). Here, where the Rehabilitation Act expressly provides for causes of action and remedies for certain aggrieved persons but not for those aggrieved by Executive agencies, “there is strong indication that Congress did not intend for a private remedy to accompany the right to be free from discrimination from any Executive agency.” De Dandrade, 367 F. Supp. 3d at 192. If Plaintiff has a cause of action here, it would be implied only. See Mathis, v. GEO Group, Inc., 2009 WL 10736631, at *6 (E.D.N.C. Nov. 9, 2009) (analyzing in depth the availability of a Rehabilitation Act claim by a federal detainee against his detention center).
Though Defendants are unaware of a Fifth Circuit ruling on the issue, courts across the country—including a court in this Circuit—have held that federal detainees may not bring Rehabilitation Act claims against the federal agencies housing them. See, e.g., Roark v. Flanery, 2014 WL 4447451, at *27 (E.D. Tex. Sept. 9, 2014) (“[T]he Bureau of Prisons does not fit within the definition of ‘programs or activities’ governed by § 794(a).”); Hurtado v. Reno, 34 F. Supp. 2d 1261, 1264 (D. Colo. 1999) (holding that an immigration detainee could not bring a Rehabilitation Act claim against INS, the predecessor to ICE); Williams v. Meese, 926 F.2d 994, 997 (10th Cir. 1991) (holding that Rehabilitation Act does not apply to federal prisons); InkoTariah v. Lappin, 2009 WL 8652932, at *1 (E.D.N.C. Apr. 1, 2009), aff’d, 346 F. App’x 915 (4th Cir. 2009) (“Upon a thorough review of cases interpreting the application of the Rehabilitation Act, the court concludes that the Act does not provide a cause of action for inmates in federal prisons.”); Sandler v. Anderson, 2008 WL 2610130, at *2 (W.D. Mo. July 2, 2008) (“[T]he Rehabilitation Act does not apply to federal inmates.”).
14

Case 5:20-cv-00054 Document 16 Filed on 04/24/20 in TXSD Page 23 of 29
Moreover, even if the Rehabilitation Act provided a claim as a general matter, Plaintiff’s claims here would be barred under 8 U.S.C. § 1252(b)(9) and (g). Those sections bar district courts from reviewing challenges to the removal process. When aliens brought due process, Administrative Procedure Act, and Rehabilitation Act claims challenging the holding of removal proceedings through video teleconferencing because the VTC policy harmed their “ability to meaningfully participate in their removal proceedings,” the District Court for the Southern District of New York ruled that it did not have jurisdiction to hear their claims. P.L. v. U.S. Immigration & Customs Enf’t, 2019 WL 2568648, at *2 (S.D.N.Y. June 21, 2019). The court held that challenges to “[h]ow immigrants appear for removal proceedings constitutes part of the process of these proceedings” and therefore are barred under § 1252(b)(9). Id. at *3. Because the plaintiffs were challenging “part of the process by which . . . removability will be determined,” the court did not have jurisdiction. Id. To the extent Plaintiff actually pleads a lack of access to his removal proceedings, the same would be true here.
b. Even if he could bring a Rehabilitation Act claim, Plaintiff alleges in only conclusory fashion that he has been excluded from activities or programs because of his disabilities.
The Fifth Circuit has held that claims under Title II of the ADA and claims under § 504 of the Rehabilitation Act be treated identically from a jurisprudential standpoint. Bennett–Nelson v. Louisiana Board of Regents, 431 F.3d 448, 454–55 (5th Cir.2005). To make out a prima facie case under Title II or the Rehabilitation Act, a plaintiff must show “(1) that he is a qualified individual within the meaning of the ADA; (2) that he is being excluded from participation in, or being denied benefits of, services, programs, or activities for which the public entity is responsible, or is otherwise being discriminated against by the public entity; and (3) that such exclusion, denial of benefits, or discrimination is by reason of his disability.” Cadena v. El Paso County, 946 F.3d 717, 723 (5th Cir. 2020) (citation omitted).
15

Case 5:20-cv-00054 Document 16 Filed on 04/24/20 in TXSD Page 24 of 29
A public entity’s failure to make reasonable modifications or accommodations may constitute denial of services. Garrett v. Thaler, 560 F. App’x 375, 382 (5th Cir. 2014). But “[t]he ADA provides for reasonable accommodation, not preferred accommodation.” Arce v. Louisiana, 226 F. Supp. 3d 643, 651 (E.D. La. 2016) (citing EEOC v. Agro Distrib., 555 F.3d 462, 471 (5th Cir. 2009)). The accommodation of an inmate’s disability need not be ideal; instead, it need only be reasonable and effective. Id. (citations omitted). Further, courts generally accord detention settings deference in determining the appropriate accommodations. See Wells v. Thaler, 460 F. App’x 303, 313 (5th Cir. 2012) (“[O]ur conclusion that the provided auxiliary aids and services are sufficient is informed by the context of this suit—a correctional facility—and we accord the officials at the Estelle Unit deference in their determination of an appropriate accommodation.”).
“The ADA is not violated by ‘a prison’s simply failing to attend to the medical needs of its disabled prisoners.’” Nottingham v. Richardson, 499 F. App’x 368, 377 n.7 (5th Cir. 2012) (citing Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir.1996) and Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 603 n.14 (1999) (“We do not in this opinion hold that the ADA imposes on the States a ‘standard of care’ for whatever medical services they render, or that the ADA requires States to ‘provide a certain level of benefits to individuals with disabilities.’”)). Instead, Plaintiff must allege that he was “discriminated against based on [his] disability.” Id. (denying Rehabilitation Act claim because “[t]here is no evidence that the allegedly improper action of leaving Nottingham on the floor of the transit van had any connection to his alleged disability” of having a “limited ability to walk”).
Here, Plaintiff has failed to allege any facts that he has been treated differently by reason of his alleged disabilities. He alleges only in conclusory fashion that he is being excluded from the “removal process” and the detention centers’ programs and activities because of their disabilities.
16

Case 5:20-cv-00054 Document 16 Filed on 04/24/20 in TXSD Page 25 of 29
(Dkt. 1 ¶ 141.) Plaintiff does not allege, however, that he has actually been unable to attend a court hearing, or to submit any filings, or to speak with his counsel. Plaintiff also does not set forth the detention center activities or programs in which he has not been able to participate or explain how releasing him would allow for their participation. Indeed, under Plaintiff’s logic, every detainee claiming a disability must be released under the Rehabilitation Act so that they may participate in the services of the detention facility. This proposed solution defeats its own purpose and shows why the Rehabilitation Act is an improper vehicle for Plaintiff’s grievances: release would totally deny Plaintiff access to detention center services.
Further, Plaintiff’s failure-to-accommodate allegations are conclusory. He alleges that ICE failed to “reasonably accommodate” his “disabilities by failing to ameliorate the conditions that prevent [him] from employing the only known means of protecting [himself] from infection or by failing to release [him] from the Detention Center[].” (Dkt. 1 ¶ 143.) Even if Plaintiff otherwise had a Rehabilitation Act claim, these allegations are insufficient to show that ICE’s actions have been less than reasonable for several reasons.
First, Plaintiff fails to cite any authority that remotely suggests that detainees subject to detention under the INA are entitled to release under the Rehabilitation Act so that they can participate in their removal proceedings. Second, the argument that release is a required “reasonable accommodation” so that detainees can participate in removal proceedings is absurd on its face because, as the Supreme Court has recognized, “detention during deportation proceedings [is] a constitutionally valid aspect of the deportation process.” Demore v. Kim, 538 U.S. 510, 523 (2003). This is because “deportation proceedings ‘would be vain if those accused could not be held in custody pending the inquiry into their true character.’” Id. (quoting Wong
17

Case 5:20-cv-00054 Document 16 Filed on 04/24/20 in TXSD Page 26 of 29
Wing v. United States, 163 U.S. 228, 235 (1896)); Carlson v. Landon, 342 U.S. 524, 538 (1952) (“Detention is necessarily a part of . . . deportation.”).
Moreover, Plaintiff acknowledges that ICE has taken numerous steps to protect detainees. (See e.g., Dkt. 1 ¶ 68 (“On April 4, 2020, ICE determined that its Field Office Directors should reassess custody of detainees ‘over 60 years old’ and detainees who are ‘immune-compromised,’ including individuals with ‘heart disease.’”); id. ¶ 69 (“On or about April 13, 2020, . . . Respondent ICE issued a policy document for ICE detention facilities requiring detention facilities to take certain measures regarding COVID-19 . . .”).) These documents provide guidance and directives as to individuals whose custody status should be re-assessed, as well as the mandated practices regarding “social distancing” measures, “hygiene,” “cleaning/disinfecting practices,” “signage,” and other requirements. While Plaintiff may argue nothing short of release is adequate, the Rehabilitation Act requires “reasonable” accommodations, not his preferred accommodation of release.
IV. This Court should not micromanage PIDC’s measures to prevent COVID-19. This Court should not force PIDC to implement particular measures in response to COVID-
19. First, as a matter of judicial comity, this Court should not order improved conditions while the Central District of California is already in the process. See Fraihat v. U.S. Immigration & Customs Enf’t, 2020 WL 1932570, at *16, 29 (C.D. Cal. Apr. 20, 2020) (certifying a nationwide class of vulnerable ICE detainees with Fifth Amendment and Rehabilitation Act claims, and ordering preliminary relief). A different ruling here risks conflicting instructions.
Second, at this stage, any improvements ordered by the Court would be sua sponte. Plaintiff vaguely asks the Court to “order Respondents to provide Petitioners with protection from the risk of contracting COVID-19 by ameliorating all conditions that prevent Petitioners from
18

Case 5:20-cv-00054 Document 16 Filed on 04/24/20 in TXSD Page 27 of 29
implementing the public health recommendations that are the only known means of preventing against and mitigating the effects of COVID-19.” (Dkt. 1 at 36.) But Plaintiff does not articulate what this order might look like.
Third, assuming Plaintiff would ask this Court to order detailed preventative measures, the Fifth Circuit recently ruled that doing so is improper. The Fifth Circuit stayed an injunction against TDCJ that “regulates in minute detail the cleaning intervals for common areas, the types of bleachbased disinfectants the prison must use, the alcohol content of hand sanitizer that inmates must receive, mask requirements for inmates, and inmates’ access to tissues (among many other things).” Valentine, 2020 WL 1934431, at *1. Finding that TDCJ was likely to succeed in its appeal, the Fifth Circuit noted, “Although the district court might do things differently, mere ‘disagreement’ with TDCJ’s medical decisions does not establish deliberate indifference.” Id. at *4. The court further noted that the harm to TDCJ was “particularly acute” because the order “interferes with the rapidly changing and flexible system-wide approach that TDCJ has used to respond to the pandemic so far.” Id. at *5. The same would be true here where ICE’s response is continually evolving to combat COVID-19. (See Ex. 10 ¶ 14 & Ex. 14 at 3.)
V. The public interest favors Plaintiff’s continued detention. Concern for potential exposure to COVID-19 is shared by all, but mandating release of
ICE detainees is against the public interest. The public interest in enforcement of immigration laws is significant. 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.”); 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
19

Case 5:20-cv-00054 Document 16 Filed on 04/24/20 in TXSD Page 28 of 29 streamlined removal proceedings IIRIRA established, and permit[s] and prolong[s] a continuing violation of United States law.”) (internal marks omitted).
The public interest is also best served by allowing the orderly medical processes and protocols implemented by government professionals to remain in place. See Youngberg v. Romeo, 457 U.S. 307, 322–23 (1982). PIDC has taken extensive proactive steps to try to prevent the introduction of COVID-19 into the facility.
Conclusion If the Court transfers Garza’s claims to the Brownsville Division, Defendants respectfully ask that the Court deny this motion as moot. Otherwise, Defendants respectfully request that the Court grant this motion and dismiss Garza’s claims in their entirety.
20

Case 5:20-cv-00054 Document 16 Filed on 04/24/20 in TXSD Page 29 of 29
Respectfully submitted, RYAN K. PATRICK United States Attorney By: /s/ Ariel N. Wiley Ariel N. Wiley Assistant United States Attorney Attorney-in-Charge Southern District No. 2554283 Texas Bar No. 24093366 Annalisa L. Cravens Assistant United States Attorney Southern District No. 2791281 Texas Bar No. 24092298 1000 Louisiana Street, Suite 2300 Houston, Texas 77002 Tel.: (713) 567-9000 Fax: (713) 718-3303 Email: Ariel.Wiley@usdoj.gov Email: Annalisa.Cravens@usdoj.gov Counsel for Respondents/Defendants
Certificate of Service I certify that on April 24, 2020, this document was filed by CM/ECF, which will serve a copy on all counsel registered.
/s/ Ariel N. Wiley Ariel N. Wiley Assistant United States Attorney
21

Case 5:20-cv-00054 Document 16-1 Filed on 04/24/20 in TXSD Page 1 of 4

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
LAREDO DIVISION

Raul Garza Marroquin, et al., Petitioners/Plaintiffs, v.
Jose Longoria, Jr., et al., Respondents/Defendants.

§ § § § § Civil Action No. 5:20-cv-54 § § § §

DEFENDANTS’ MOTION TO DISMISS AND RESPONSE TO RAUL GARZA MARROQUIN’S PETITIONS FOR IMMEDIATE
INJUNCTIVE RELIEF

Government’s Exhibit 6

Case 5:20-cv-00054 Document 16-1 Filed on 04/24/20 in TXSD Page 2 of 4
From: To: Cc:
Subject: Date:
Please see the updated guidance below. The previous version of this guidance is

This message is sent from Peter B. Berg, (a)Assistant Director, Field Operations

To:

Field Office Directors and Deputy Field Office Directors

Subject:

COVID-19 Detained Docket Review

Background:

U.S. Immigration and Customs Enforcement (ICE) has taken a number of significant and proactive measures in response to the Coronavims Disease 2019 (COVID-19) pandemic, in order to mitigate the spread of COVID-19 to aliens detained in its custody, its workforce, and stakeholders at its detention facilities. As more becomes known about the vims, ERO will continue to update its practices and guidance in this regard. General ICE COVID-19 guidance is available here and will be updated and supplemented on an ongoing basis.

On March 18, 2020, you were directed to review the cases of aliens detained in your area of responsibility who were over the age of 70 or pregnant to detennine whether continued detention was appropriate. The Centers for Disease Contrnl and Prevention (CDC) has developed a list of categories of individuals identified as potentially being at higher-risk for serious illness from COVID-19. Expanding on that list, ERO has identified the following categories of cases that should be reviewed to re-assess custody:

• Pregnant detainees or those having delivered in the last two weeks • Detainees over 60 years old • Detainees of any age having chronic illnesses which would make them
immune-compromised, including but not limited to: o Blood Disorders o Chronic Kidney Disease o Compromised immune system (e.g., ongoing treatment such as chemotherapy or radiation, received an organ or bone manow transplant, taking high doses of co1iicosteroids or other immunosuppressant medications) o Endocrine disorders

Government's Ex. 6 - 001

Case 5:20-cv-00054 Document 16-1 Filed on 04/24/20 in TXSD Page 3 of 4
Metabolic disorders Heart disease Lung disease Neurological and neurologic and neurodevelopment conditions
As part of your ongoing application of the CDC’s Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (available here), please identify all cases within your AOR that meet any of the criteria above and validate that list with assistance from IHSC or your Field Medical Coordinator to ensure the conditions listed are still present and do result in the detainee potentially having a higher risk for serious illness from COVID-19. After identifying a case as meeting any of the above criteria, you should review the case to determine whether continued detention remains appropriate in light of the COVID-19 pandemic.
The presence of one of the factors listed above should be considered a significant discretionary factor weighing in favor of release. To be clear, however, it may not always be determinative. Field offices must remain cognizant of the requirements of mandatory detention. Section 236(c) of the Immigration and Nationality Act (INA) mandates the detention of certain categories of criminal and terrorist aliens during the pendency of removal proceedings. Such aliens may not be released in the exercise of discretion during the pendency of removal proceedings even if potentially higher-risk for serious illness from COVID-19. INA § 236(c); 8 C.F.R. § 236.1(c)(1)(i). Such aliens may only be released following a final order issued by an immigration judge, the Board of Immigration Appeals, or a federal court granting the alien relief, dismissing proceedings, or terminating proceedings. Similarly, pursuant to section 241(a)(2), certain criminal and terrorist aliens subject to a final order of removal may not be released during the 90-day removal period even if potentially higher-risk for serious illness from COVID-19. INA § 241(a)(2). For alien’s subject to discretionary detention under section 236(a), please remember that release is prohibited, even if the alien is potentially higher-risk for serious illness from COVID-19, if such release would pose a danger to property or persons. 8 C.F.R. § 236.1(c)(8).
When reviewing cases of alien’s subject to discretionary detention under 236(a), the following must be completed:
Cases involving any arrests or convictions for any crimes that involve risk to the public regardless of the date of arrest or conviction must be reviewed and approved by a Deputy Field Office Director (DFOD) or higher before a determination is made to release.
Examples of crimes that involve a risk to the public include any crime that: involves any form of violence, driving while intoxicated, threatening behaviors, terroristic threats, stalking, domestic violence, harm to a child, or any form of assault or battery. This list is not intended to be
Government's Ex. 6 - 002

Case 5:20-cv-00054 Document 16-1 Filed on 04/24/20 in TXSD Page 4 of 4
comprehensive. If there is any doubt whether a crime involves risk to the public, consult with your Office of the Principal Legal Advisor (OPLA) field location and your respective Deputy Assistant Director for Domestic Operations before a custody redetermination is completed. You may consider the age of an arrest or conviction as a mitigating or an aggravating factor, but the age of an arrest or a conviction does not automatically outweigh public safety concerns.
With regard to arriving aliens and certain other aliens eligible for consideration of parole from custody, under current circumstances and absent significant adverse factors, the fact that an alien is potentially higher-risk for serious illness from COVID-19, may form the basis for a determination that “continued detention is not in the public interest,” justify release under 8 C.F.R. § 212.5(b) (5).
For other aliens for whom there is discretion to release, field offices remain responsible for articulating individualized custody determinations, taking into consideration the totality of the circumstances presented in the case. The fact that an alien is potentially higher-risk for serious illness from COVID-19 should be considered a factor weighing in favor of release. You may also consider alternatives to detention consistent with ICE ATD policies, if ATD is determined to sufficiently mitigate the risk of flight.
Any releases attributed to reviews of COVID-19 susceptibility shall be documented in the ENFORCE Alien Removal Module (EARM) under Special Class - COVID-19 Chronic Care Release. As previously communicated, these individuals should be placed on ATD if possible.
Please contact your local OPLA field location should you have any questions or concerns regarding your authority to release in any individual case.
For any questions on this guidance, please contact your respective Deputy Assistant Director for Domestic Operations.
Limitation on the Applicability of this Guidance. This message is intended to provide internal guidance to the operational components of U.S. Immigration and Customs Enforcement. It does not, is not intended to, shall not be construed to, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any person in any matter, civil or criminal.
Government's Ex. 6 - 003

Case 5:20-cv-00054 Document 16-2 Filed on 04/24/20 in TXSD Page 1 of 19

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
LAREDO DIVISION

Raul Garza Marroquin, et al., Petitioners/Plaintiffs, v.
Jose Longoria, Jr., et al., Respondents/Defendants.

§ § § § § Civil Action No. 5:20-cv-54 § § § §

DEFENDANTS’ MOTION TO DISMISS AND RESPONSE TO RAUL GARZA MARROQUIN’S PETITIONS FOR IMMEDIATE
INJUNCTIVE RELIEF

Government’s Exhibit 7

Case 5:20-cv-00054 Document 16-2 Filed on 04/24/20 in TXSD Page 2 of 19

ERO
U.S. Immigration and Customs Enforcement Enforcement and Removal Operations
COVID-19 Pandemic Response Requirements

ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020)

1

Government's Ex. 7 - 001

Case 5:20-cv-00054 Document 16-2 Filed on 04/24/20 in TXSD Page 3 of 19
Table of Contents
PURPOSE AND SCOPE .......................................................................................................................... 3 INTRODUCTION ................................................................................................................................... 3 OBJECTIVES ........................................................................................................................................ 4 CONCEPT OF OPERATIONS................................................................................................................... 5
DEDICATED ICE DETENTION FACILITIES ........................................................................................ 5 NON-DEDICATED ICE DETENTION FACILITIES ............................................................................... 6 ALL FACILITIES HOUSING ICE DETAINEES ..................................................................................... 7
PREPAREDNESS ........................................................................................................................... 7 PREVENTION ............................................................................................................................. 11 MANAGEMENT .......................................................................................................................... 14 ATTACHMENTS ................................................................................................................................. 18

ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020)

2

Government's Ex. 7 - 002

Case 5:20-cv-00054 Document 16-2 Filed on 04/24/20 in TXSD Page 4 of 19
PURPOSE AND SCOPE
The U.S. Immigration and Customs Enforcement (ICE) Enforcement and Removal Operations (ERO) Coronavirus Disease 2019 (COVID-19) Pandemic Response Requirements (PRR) sets forth expectations and assists ICE detention facility operators to sustain detention operations, while mitigating risk to the safety and well-being of detainees, staff, contractors, visitors, and stakeholders due to COVID-19. Consistent with ICE’s overall adjustments to its immigration enforcement posture,1 the ERO PRR builds upon previously issued guidance and sets forth specific mandatory requirements expected to be adopted by all detention facilities housing ICE detainees, as well as best practices for such facilities, to ensure that detainees are appropriately housed and that available mitigation measures are implemented during this unprecedented public health crisis. The ERO PRR has been developed in consultation with the Centers for Disease Control and Prevention (CDC) and is a dynamic document that will be updated as additional/revised information and best practices become available.
INTRODUCTION
As the CDC has explained:
COVID-19 is a communicable disease caused by a novel (new) coronavirus, SARSCoV-2, that was first identified as the cause of an outbreak of respiratory illness that began in Wuhan Hubei Province, People’s Republic of China (China).
COVID-19 appears to spread easily and sustainably within communities. The virus is thought to transfer primarily by person-to-person contact through respiratory droplets produced when an infected person coughs or sneezes; it may transfer through contact with surfaces or objects contaminated with these droplets. There is also evidence of asymptomatic transmission, in which an individual infected with COVID-19 is capable of spreading the virus to others before exhibiting symptoms. The ease of transmission presents a risk of a surge in hospitalizations for COVID19, which would reduce available hospital capacity. Such a surge has been identified as a likely contributing factor to the high mortality rate for COVID-19 cases in Italy and China.
Symptoms include fever, cough, and shortness of breath, and typically appear 2-14 days after exposure. Manifestations of severe disease include severe pneumonia, acute respiratory distress syndrome (ARDS), septic shock, and multi-organ failure. According to the [World Health Organization], approximately 3.4% of reported COVID-19 cases have resulted in death globally. This mortality rate is higher among older adults or those with compromised immune systems. Older adults and people who have severe chronic medical conditions like heart, lung or kidney disease are also at higher risk for more serious COVID-19 illness. Early data suggest older people are twice as likely to have serious COVID-19 illness.

1 See, e.g., Attachment A, U.S. Immigration and Customs Enforcement, Updated ICE statement on COVID19 (Mar. 18, 2020), https://www.ice.gov/news/releases/updated-ice-statement-covid-19.

ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020)

3

Government's Ex. 7 - 003

Case 5:20-cv-00054 Document 16-2 Filed on 04/24/20 in TXSD Page 5 of 19

Notice of Order Under Sections 362 and 365 of the Public Health Service Act Suspending Introduction of Certain Persons From Countries Where a Communicable Disease Exists, 85 Fed. Reg. 17060 (Mar. 26, 2020) (internal citations omitted).
Given the seriousness and pervasiveness of COVID-19, ICE is taking necessary and prompt measures in response. ICE is providing guidance on the minimum measures required for facilities housing ICE detainees to implement to ensure consistent practices throughout its detention operations and the provision of medical care across the full spectrum of detention facilities to mitigate the spread of COVID-19. The ICE detention standards applicable to all facilities used to house ICE detainees have long required that each such facility have written plans that address the management of infectious and communicable diseases, including, but not limited to, testing, isolation, prevention, treatment, and education. Those requirements include reporting and collaboration with local or state health departments in accordance with state and local laws and recommendations.2 The measures set forth in the PRR, allow ICE personnel and detention providers to properly discharge their obligations under those standards in light of the unique challenges posed by COVID-19.
OBJECTIVES
The ERO PRR is designed to establish consistency across ICE detention facilities by establishing mandatory requirements and best practices all detention facilities housing ICE detainees are expected to follow during the COVID-19 pandemic. Consistent with ICE detention standards, all facilities housing ICE detainees are required to have a COVID-19 mitigation plan that meets the following four objectives:
• To protect employees, contractors, detainees, visitors to the facility, and stakeholders from exposure to the virus;
• To maintain essential functions and services at the facility throughout the pendency of the pandemic;
• To reduce movement and limit interaction of detainees with others outside their assigned housing units, as well as staff and others, and to promote social distancing within housing units; and
• To establish means to monitor, cohort, quarantine, and isolate the sick from the well.3
2 See, e.g., Attachment B, ICE National Detention Standards 2019, Standard 4.3, Medical Care, at II.D.2 (p. 114), https://www.ice.gov/doclib/detention-standards/2019/4_3.pdf; Attachment C, 2011 ICE Performance-Based National Detention Standards (PBNDS), Revised 2016, Standard 4.3, Part V.C.1 (p. 261), https://www.ice.gov/doclib/detentionstandards/2011/4-3.pdf; Attachment D, 2008 ICE PBNDS, Standard 4-22, Medical Care, V.C.1 (pp. 5-6), https://www.ice.gov/doclib/dro/detention-standards/pdf/medical_care.pdf.
3 A cohort is a group of persons with a similar condition grouped or housed together for observation over a period of time. Isolation and quarantine are public health practices used to protect the public from exposure to individuals who have or may have a contagious disease. For purposes of this document, and as defined by the CDC, quarantine as the separation of a person or group of people reasonably believed to have been exposed to a communicable disease but not yet symptomatic, from others who have not been

ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020)

4

Government's Ex. 7 - 004

Case 5:20-cv-00054 Document 16-2 Filed on 04/24/20 in TXSD Page 6 of 19
CONCEPT OF OPERATIONS
The ERO PRR is intended for use across ICE’s entire detention network, applying to all facilities housing ICE detainees, including ICE-owned Service Processing Centers, facilities operated by private vendors, and facilities operated by local government agencies that have mixed populations of which ICE detainees comprise only a small fraction.
DEDICATED ICE DETENTION FACILITIES
All ICE dedicated detention facilities4 must:
• Comply with the provisions of their relevant ICE contract or service agreement. • Comply with the ICE national detention standards applicable to the facility,
generally the Performance-Based National Detention Standards 2011 (PBNDS 2011). • Comply with the CDC’s Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (Attachment E). • Follow ICE’s March 27, 2020 Memorandum to Detention Wardens and Superintendents on COVID-19 Action Plan Revision 1, and subsequent updates (Attachment F). • Report all confirmed and suspected COVID-19 cases to the local ERO Field Office Director (or designee), Field Medical Coordinator, and local health department immediately. • Notify both the local ERO Field Office Director (or designee) and the Field Medical Coordinator as soon as practicable, but in no case more than 12 hours after identifying any detainee who meets the CDC’s identified populations potentially being at higher-risk for serious illness from COVID-19, including:
o People aged 65 and older o People of all ages with underlying medical conditions, particularly if not well
controlled, including: ▪ People with chronic lung disease or moderate to severe asthma ▪ People who have serious heart conditions ▪ People who are immunocompromised

exposed, to prevent the possible spread of the communicable disease. For purposes of this document, and as defined by the CDC, isolation as the separation of a person or group of people known or reasonably believed to be infected with a communicable disease and potentially infectious from others to prevent the spread of the communicable disease.
4 Dedicated detention facilities are facilities that house only ICE detainees. Dedicated facilities may be ICE-owned Service Processing Centers, privately owned Contract Detention Facilities, or facilities operated by state or local governments that hold no other detention populations except ICE detainees.

ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020)

5

Government's Ex. 7 - 005

Case 5:20-cv-00054 Document 16-2 Filed on 04/24/20 in TXSD Page 7 of 19
• Many conditions can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications
▪ People with severe obesity (body mass index [BMI] of 40 or higher) ▪ People with diabetes ▪ People with chronic kidney disease undergoing dialysis ▪ People with liver disease
Notification shall be made via e-mail from the facility’s Health Services Administrator (HSA) (or equivalent) and contain the following subject line for ease of identification: “Notification of COVID-19 High Risk Detainee (A-Number).” At a minimum the HSA will provide the following information:
• Detainee name • Detention location • Current medical issues as well as medications currently prescribed • Facility medical Point of Contact (POC) and phone number
NON-DEDICATED ICE DETENTION FACILITIES
All non-dedicated detention facilities and local jails housing ICE detainees must:
• Comply with the provisions of their relevant ICE contract or service agreement.
• Comply with the ICE national detention standards applicable to the facility, generally PBNDS 2011.
• Comply with the CDC Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities.
• Report all confirmed and suspected COVID-19 cases to the local ERO Field Office Director (or designee), Field Medical Coordinator, and local health department immediately.
• Notify both the ERO Field Office Director (or designee) and Field Medical Coordinator as soon as practicable, but in no case more than 12 hours after identifying any detainee who meets the CDC’s identified populations potentially being at higher-risk for serious illness from COVID-19, including: o People aged 65 and older o People of all ages with underlying medical conditions, particularly if not well controlled, including: ▪ People with chronic lung disease or moderate to severe asthma ▪ People who have serious heart conditions ▪ People who are immunocompromised

ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020)

6

Government's Ex. 7 - 006

Case 5:20-cv-00054 Document 16-2 Filed on 04/24/20 in TXSD Page 8 of 19

• Many conditions can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications
▪ People with severe obesity (body mass index [BMI] of 40 or higher) ▪ People with diabetes ▪ People with chronic kidney disease undergoing dialysis ▪ People with liver disease
Notification should be made via e-mail from the facility’s HSA (or equivalent) and should contain the following subject line for ease of identification: “Notification of COVID-19 High Risk Detainee (A-Number).” Other standardized means of communicating this information to ICE are acceptable. At a minimum the HSA will provide the following information:
• Detainee name • Detention location • Current medical issues as well as medications currently prescribed • Facility medical POC and phone number

ALL FACILITIES HOUSING ICE DETAINEES

In addition to the specific measures listed above, all detention facilities housing ICE detainees must also comply with the following:
PREPAREDNESS
Administrators can plan and prepare for COVID-19 by ensuring that all persons in the facility know the symptoms of COVID-19 and how to respond if they develop symptoms. Other essential actions include developing contingency plans for reduced workforces due to absences, coordinating with public health and correctional partners, and communicating clearly with staff and detainees about these preparations and how they may temporarily alter daily life.
➢ Develop information-sharing systems with partners.
• Identify points of contact in relevant state, local, tribal, and/or territorial public health department before cases develop.
• Communicate with other correctional and detention facilities in the same geographic area to share information including disease surveillance and absenteeism patterns among staff.
➢ Review existing pandemic, influenza, all-hazards, and disaster plans, and revise for COVID-19, and ensure that they meet the requirements of ICE’s detention standards.

ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020)

7

Government's Ex. 7 - 007

Case 5:20-cv-00054 Document 16-2 Filed on 04/24/20 in TXSD Page 9 of 19
➢ Offer the seasonal influenza vaccine to all detained persons (existing populations and new intakes) and staff throughout the influenza season, where possible.
➢ Staffing
• Review sick leave policies to ensure that staff can stay home when sick and determine which officials will have the authority to send symptomatic staff home. Staff who report for work with symptoms of COVID-19 must be sent home and advised to follow CDC-recommended steps for persons exhibiting COVID-19 symptoms.
• Staff who test positive for COVID-19 must inform their workplace and personal contacts immediately. If a staff member has a confirmed COVID-19 infection, the relevant employers will inform other staff of their possible exposure to COVID-19 in the workplace consistent with any legal limitations on the sharing of such information. Exposed employees must then self-monitor for symptoms (i.e., fever, cough, or shortness of breath).
• Identify staff whose duties would allow them to work from home and allow them to work from home in order to promote social distancing and further reduce the risk of COVID-19 transmission.
• Determine minimum levels of staff in all categories required for the facility to function safely.
• Follow the Public Health Recommendations for Community-Related Exposure.5
➢ Supplies
• Ensure that sufficient stocks of hygiene supplies (soap, hand sanitizer, tissues), personal protective equipment (PPE) (to include facemasks, N95 respirators, eye protection, disposable medical gloves, and disposable gowns/one-piece coveralls), and medical supplies (consistent with the healthcare capabilities of the facility) are on hand, and have a plan in place to restock as needed if COVID-19 transmission occurs within the facility.
• Note that shortages of N95 respirators are anticipated during the COVID-19 response. Based on local and regional situational analysis of PPE supplies, face masks should be used when the supply chain of N95 respirators cannot meet the demand.
• Follow COVID-19: Strategies for Optimizing the Supply of PPE.6
• Soiled PPE items should be disposed in leak-proof plastic bags that are tied at the top and not re-opened. Bags can be disposed of in the regular solid waste stream.

5 Attachment G, Centers of Disease Control and Prevention, Public Health Recommendations for Community-Related Exposure, https://www.cdc.gov/coronavirus/2019-ncov/php/public-health-recommendations.html (last visited Apr. 9, 2020).
6 Attachment H, Centers for Disease Control and Prevention, Strategies to Optimize the Supply of PPE and Equipment, https://www.cdc.gov/coronavirus/2019-ncov/hcp/ppe-strategy/ (last visited Apr. 9, 2020).

ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020)

8

Government's Ex. 7 - 008

Case 5:20-cv-00054 Document 16-2 Filed on 04/24/20 in TXSD Page 10 of 19
• Cloth face coverings should be worn by detainees and staff (when PPE supply is limited) to help slow the spread of COVID-19. Cloth face masks should:
• fit snugly but comfortably against the side of the face • be secured with ties or ear loops where possible or securely tied • include multiple layers of fabric • allow for breathing without restriction • be able to be laundered and machine dried without damage or change to shape.
➢ Hygiene
• Reinforce healthy hygiene practices and provide and restock hygiene supplies throughout the facility, including in bathrooms, food preparation and dining areas, intake areas, visitor entries and exits, visitation rooms, common areas, medical, and staff-restricted areas (e.g., break rooms).
• Require all persons within the facility to cover their mouth and nose with their elbow (or ideally with a tissue) rather than with their hand when they cough or sneeze, and to throw all tissues in the trash immediately after use. Provide detainees and staff no-cost access to tissues and no-touch receptacles for disposal.
• Require all persons within the facility to maintain good hand hygiene by regularly washing their hands with soap and water for at least 20 seconds, especially after coughing, sneezing, or blowing their nose; after using the bathroom; before eating or preparing food; before taking medication; and after touching garbage.
• Provide detainees and staff no-cost, unlimited access to supplies for hand cleansing, including liquid soap, running water, hand drying machines or disposable paper towels, and no-touch trash receptacles.
• Provide alcohol-based hand sanitizer with at least 60% alcohol where permissible based on security restrictions.
• Require all persons within the facility to avoid touching their eyes, nose, or mouth without cleaning their hands first.
• Post signage throughout the facility reminding detained persons and staff to practice good hand hygiene and cough etiquette (printable materials for community-based settings can be found on the CDC website). Signage must be in English and Spanish, as well as any other common languages for the detainee population at the facility.
• Prohibit sharing of eating utensils, dishes, and cups.
• Prohibit non-essential personal contact such as handshakes, hugs, and high-fives.
➢ Cleaning/Disinfecting Practices

ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020)

9

Government's Ex. 7 - 009

Case 5:20-cv-00054 Document 16-2 Filed on 04/24/20 in TXSD Page 11 of 19
• Adhere to CDC recommendations for cleaning and disinfection during the COVID-19 response.7
• Several times a day using household cleaners and Environmental Protection Agency-registered disinfectants, clean and disinfect surfaces and objects that are frequently touched, especially in common areas (e.g., doorknobs, light switches, sink handles, countertops, toilets, toilet handles, recreation equipment). The Environmental Protection Agency’s (EPA) list of certified cleaning products is located here.
• Staff should clean shared equipment several times per day and on a conclusion of use basis (e.g., radios, service weapons, keys, handcuffs).
• Ensure that transport vehicles are thoroughly cleaned after carrying a confirmed or suspected COVID-19 case.
• Facility leadership will ensure that there is adequate oversight and supervision of all individuals responsible for cleaning and disinfecting these areas.
CDC Recommended Cleaning Tips
Hard (Non-porous) Surfaces
• If surfaces are dirty, they should be cleaned using a detergent or soap and water prior to disinfection.
• For disinfection, most common EPA-registered household disinfectants should be effective.
o A list of products that are EPA-approved for use against the virus that causes COVID-19 is available here. Follow the manufacturer’s instructions for all cleaning and disinfection products for concentration, application method and contact time, etc.
o Additionally, diluted household bleach solutions (at least 1000ppm sodium hypochlorite) can be used if appropriate for the surface. Follow manufacturer’s instructions for application, ensuring a contact time of at least 1 minute, and allowing proper ventilation during and after application. Check to ensure the product is not past its expiration date. Never mix household bleach with ammonia or any other cleanser. Unexpired household bleach will be effective against coronaviruses when properly diluted. ▪ Prepare a bleach solution by mixing:
• 5 tablespoons (1/3 cup) bleach per gallon of water or • 4 teaspoons bleach per quart of water
Soft (Porous) Surfaces

7 Attachment I, Centers for Disease Control and Prevention, Cleaning and Disinfection for Community Facilities, https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/cleaning-disinfection.html (last visited Apr. 9, 2020).

ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020)

10

Government's Ex. 7 - 010

Case 5:20-cv-00054 Document 16-2 Filed on 04/24/20 in TXSD Page 12 of 19
• For soft (porous) surfaces such as carpeted floor, rugs, and drapes, remove visible contamination if present and clean with appropriate cleaners indicated for use on these surfaces. After cleaning:
o If the items can be laundered, launder items in accordance with the manufacturer’s instructions using the warmest appropriate water setting for the items and then dry items completely.
o Otherwise, use products that are EPA-approved for use against the virus that causes COVID-19 and that are suitable for porous surfaces.8
Electronics
• For electronics such as tablets, touch screens, keyboards, remote controls, and ATM machines, remove visible contamination if present. o Follow the manufacturer’s instructions for all cleaning and disinfection products.
o Consider use of wipeable covers for electronics.
o If no manufacturer guidance is available, consider the use of alcohol-based wipes or sprays containing at least 70% alcohol to disinfect touch screens. Dry surfaces thoroughly to avoid pooling of liquids.
Linens, Clothing, and Other Items That Go in the Laundry
• In order to minimize the possibility of dispersing virus through the air, do not shake dirty laundry.
• Wash items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely. Dirty laundry that has been in contact with an ill person can be washed with other people’s items.
• Clean and disinfect hampers or other carts for transporting laundry according to guidance above for hard or soft surfaces.
PREVENTION
Detention facilities can prevent introduction of COVID-19 from the community and reduce transmission if it is already inside by reinforcing good hygiene practices among incarcerated/detained persons, staff, and visitors (including increasing access to soap and paper towels), intensifying cleaning/disinfection practices, and implementing social distancing strategies.
Because many individuals infected with COVID-19 do not display symptoms, the virus could be present in facilities before cases are identified. Both good hygiene practices and social distancing are critical in preventing further transmission.

8 Attachment J, U.S. Environmental Protection Agency, List N: Disinfectants for Use Against SARS-CoV-2, https://www.epa.gov/pesticide-registration/list-n-disinfectants-use-against-sars-cov-2 (last visited Apr. 9, 2020).

ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020)

11

Government's Ex. 7 - 011

Case 5:20-cv-00054 Document 16-2 Filed on 04/24/20 in TXSD Page 13 of 19
➢ Perform pre-intake screening for all staff and new entrants for symptoms of COVID-19.
Screening should take place before staff and new intakes enter the facility or just inside the facility, where practicable. For new admissions, this should occur before beginning the intake process, in order to identify and immediately isolate any detainee with symptoms before the individual comingles with others or is placed in the general population. This should include temperature screening of all staff and new entrants, as well as a verbal symptoms check.
• Verbal screening for symptoms of COVID-19 and contact with COVID-19 cases should include the following questions based on Interim Guidance: Managing COVID-19 in Correctional/Detention Facilities:
o Today or in the past 24 hours, have you had any of the following symptoms?
▪ Fever, felt feverish, or had chills?
▪ Cough?
▪ Difficulty breathing?
o In the past 14 days, have you had contact with a person known to be infected with COVID-19 where you were not wearing the recommended proper PPE?
• If staff have symptoms of COVID-19 (fever, cough, shortness of breath): they must be denied access to the facility.
• If any new intake has symptoms of COVID-19:
o Require the individual to wear a face mask.
o Ensure that staff interacting with the symptomatic individual wears recommended PPE.
o Isolate the individual and refer to healthcare staff for further evaluation.
o Facilities without onsite healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective isolation and necessary medical care.
• If an individual is a close contact of a known COVID-19 case or has traveled to an affected area (but has no COVID-19 symptoms), quarantine the individual and monitor for symptoms two times per day for 14 days.
➢ Visitation
• During suspended (social) or modified (legal) visitation programs, provide access to virtual visitation options where available. When not possible, verbally screen all visitors on entry for symptoms of COVID-19 and perform temperature checks, when possible. ICE continues to explore opportunities to enhance attorney access while legal visits are being impacted. For facilities at which immigration hearings are conducted or where detainees are otherwise held who have cases pending immigration proceedings, this may include:

ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020)

12

Government's Ex. 7 - 012

Case 5:20-cv-00054 Document 16-2 Filed on 04/24/20 in TXSD Page 14 of 19
o Adding all immigration attorneys of record to the Talton Pro-bono platform.
o Requiring facilities to establish a process for detainees/immigration attorneys to schedule appointments and facilitate the calls.
o Leveraging technology (e.g., tablets, smartphones) to facilitate attorney/client communication.
o Working with the various detention contractors and telephone service providers to ensure that all detainees receive some number of free calls per week.
• Communicate with the public about any changes to facility operations, including visitation programs. Facilities are encouraged to prohibit or, at a minimum, significantly adopt restricted visitation programs, and to suspend all volunteer work assignments for detainees assigned to food service, and other assignments where applicable.
➢ Where possible, restrict transfers of detained non-ICE populations to and from other jurisdictions and facilities unless necessary for medical evaluation, isolation/quarantine, clinical care, or extenuating security concerns.
➢ Consider suspending work release programs for inmates at shared facilities to reduce overall risk of introduction and transmission of COVID-19 into the facility.
➢ When feasible and consistent with security priorities, encourage staff to maintain a distance greater than six feet from an individual that appears feverish or ill and/or with respiratory symptoms while interviewing, escorting, or interacting in other ways, unless wearing PPE.
➢ Additional Measures to Facilitate Social Distancing
• Although strict social distancing may not be possible in congregate settings such as detention facilities, all facilities housing ICE detainees should implement the following measures to the extent practicable:
o Efforts should be made to reduce the population to approximately 75% of capacity.
o Where detainee populations are such that such cells are available, to the extent possible, house detainees in individual rooms.
o Recommend that detainees sharing sleeping quarters sleep “head-to-foot.”
o Extend recreation, law library, and meal hours and stagger detainee access to the same in order to limit the number of interactions between detainees from other housing units.
o Staff and detainees should be directed to avoid congregating in groups of 10 or more, employing social distancing strategies at all times.

ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020)

13

Government's Ex. 7 - 013

Case 5:20-cv-00054 Document 16-2 Filed on 04/24/20 in TXSD Page 15 of 19

o Whenever possible, all staff and detainees should maintain a distance of six feet from one another.
o If practicable, beds in housing units should be rearranged to allow for sufficient separation during sleeping hours.
MANAGEMENT
If there has been a suspected COVID-19 case inside the facility (among incarcerated/detained persons, staff, or visitors who have recently been inside), begin implementing Management strategies while test results are pending. Essential Management strategies include placing cases and individuals with symptoms under medical isolation, quarantining their close contacts, and facilitating necessary medical care, while observing relevant infection control and environmental disinfection protocols and wearing recommended PPE.
ICE Custody Review for Potentially High-Risk Detainees
Upon being informed of a detainee who may potentially be at higher risk for serious illness from exposure to COVID-19, ERO will review the case to determine whether continued detention is appropriate.9 ICE will make such custody determinations on a case-by-case basis, pursuant to the applicable legal standards, with due consideration of the public health considerations implicated.
➢ Considerable effort should be made to quarantine all new entrants for 14 days before they enter the general population.
• To do this, facilities should consider cohorting daily intakes; two days of new intakes, or multiple days on new intakes, in designated areas prior to placement into the general population. Given the significant variance in facility attributes and characteristics, cohorting options and capabilities will differ across the various detention facilities housing ICE detainees. ICE encourages all facilities to adopt the most effective cohorting methods practicable based on the individual facility characteristics taking into account the number new intakes anticipated per day.
➢ For suspected or confirmed COVID-19 cases:
• Isolate the individual immediately in a separate environment from other individuals. Facilities should make every possible effort to isolate persons individually. Each isolated individual should be assigned his or her own housing space and bathroom where possible. Cohorting should only be practiced if there are no other available options. Only individuals who are laboratory-confirmed COVID-19 cases should be isolated as a cohort. Do not cohort confirmed cases with suspected cases or case contacts.
• Ensure that the individual is always wearing a face mask (if it does not restrict breathing) when outside of the isolation space, and whenever another individual
9 Attachment K, Assistant Director Peter Berg, Enforcement and Removal Operations, Updated Guidance: COVID-19 Detained Docket Review (Apr. 4, 2020).

ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020)

14

Government's Ex. 7 - 014

Case 5:20-cv-00054 Document 16-2 Filed on 04/24/20 in TXSD Page 16 of 19

enters the isolation room. Masks should be changed at least daily, and when visibly soiled or wet.
• If the number of confirmed cases exceeds the number of individual isolation spaces available in the facility, then ICE must be promptly notified so that transfer to other facilities, transfers to hospitals, or release can be coordinated immediately. Until such time as transfer or release is arranged, the facility must be especially mindful of cases that are at higher risk of severe illness from COVID-19. Ideally, ill detainees should not be cohorted with other infected individuals. If cohorting of ill detainees is unavoidable, make all possible accommodations until transfer occurs to prevent transmission of other infectious diseases to the higher-risk individual (For example, allocate more space for a higher-risk individual within a shared isolation room).
• Review the CDC’s preferred method of medically isolating COVID-19 cases here depending on the space available in a particular facility. In order of preference, individuals under medical isolation should be housed:
o Separately, in single cells with solid walls (i.e., not bars) and solid doors that close fully.
o Separately, in single cells with solid walls but without solid doors.
o As a cohort, in a large, well-ventilated cell with solid walls and a solid door that closes fully. Employ social distancing strategies related to housing in the Prevention section above.
o As a cohort, in a large, well-ventilated cell with solid walls but without a solid door. Employ social distancing strategies related to housing in the Prevention section above.
o As a cohort, in single cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. (Although individuals are in single cells in this scenario, the airflow between cells essentially makes it a cohort arrangement in the context of COVID-19.)
o As a cohort, in multi-person cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. Employ social distancing strategies related to housing in the Prevention section above.
• Maintain isolation until all the CDC criteria have been met:
o The individual has been free from fever for 72 hours without the use of fever-reducing medications.
o The individual’s other symptoms have improved (e.g., cough, shortness of breath).
o The individual has tested negative in at least two consecutive respiratory specimens collected at least 24 hours apart.

ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020)

15

Government's Ex. 7 - 015

Case 5:20-cv-00054 Document 16-2 Filed on 04/24/20 in TXSD Page 17 of 19
o At least 7 days have passed since the date of the individual’s first positive COVID-19 test and he or she has had no subsequent illness.
• Meals should be provided to COVID-19 cases in their isolation rooms. Isolated cases should throw disposable food service items in the trash in their isolation room. Non-disposable food service items should be handled with gloves and washed with hot water or in a dishwasher. Individuals handling used food service items must clean their hands after removing gloves.
• Laundry from a COVID-19 case can be washed with other individuals’ laundry.
o Individuals handling laundry from COVID-19 cases should wear disposable gloves, discard gloves after each use, and clean their hands after handling.
o Do not shake dirty laundry. This will minimize the possibility of dispersing the virus through the air.
o Launder items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely.
o Clean and disinfect clothes hampers according to guidance above for surfaces. If permissible, consider using a bag liner that is either disposable or can be laundered.

ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020)

16

Government's Ex. 7 - 016

Case 5:20-cv-00054 Document 16-2 Filed on 04/24/20 in TXSD Page 18 of 19

ATTACHMENT LETTER A B C D
E
F
G
H
I

ATTACHMENTS
DOCUMENT NAME AND CITATION
U.S. Immigration and Customs Enforcement, Updated ICE statement on COVID-19 (Mar. 18, 2020), https://www.ice.gov/news/releases/updated-ice-statement-covid-19.
ICE National Detention Standards 2019, Standard 4.3, Medical Care, https://www.ice.gov/doclib/detention-standards/2019/4_3.pdf.
2011 ICE Performance-Based National Detention Standards, Revised 2016, Standard 4.3, https://www.ice.gov/doclib/detentionstandards/2011/4-3.pdf.
2008 ICE Performance-Based National Detention Standards, Standard 4-22, Medical Care, https://www.ice.gov/doclib/dro/detentionstandards/pdf/medical_care.pdf.
Centers of Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidancecorrectional-detention.pdf.
Memorandum from Executive Associate Director Enrique Lucero, Enforcement and Removal Operations, Memorandum on Coronavirus 2019 (COVID-19) Action Plan, Revision 1 (Mar. 27. 2020).
Centers of Disease Control and Prevention, Public Health Recommendations for Community-Related Exposure, https://www.cdc.gov/coronavirus/2019-ncov/php/public-healthrecommendations.html (last visited Apr. 9, 2020).
Centers for Disease Control and Prevention, Strategies to Optimize the Supply of PPE and Equipment, https://www.cdc.gov/coronavirus/2019-ncov/hcp/ppe-strategy/ (last visited Apr. 9, 2020).
Centers for Disease Control and Prevention, Cleaning and Disinfection for Community Facilities, https://www.cdc.gov/coronavirus/2019ncov/community/organizations/cleaning-disinfection.html (last visited Apr. 9, 2020).

ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020)

17

Government's Ex. 7 - 017

Case 5:20-cv-00054 Document 16-2 Filed on 04/24/20 in TXSD Page 19 of 19

J

U.S. Environmental Protection Agency, List N: Disinfectants for Use

Against SARS-CoV-2, https://www.epa.gov/pesticide-registration/list-

n-disinfectants-use-against-sars-cov-2 (last visited Apr. 9, 2020).

K

Assistant Director Peter Berg, Enforcement and Removal

Operations, Updated Guidance: COVID-19 Detained Docket Review

(Apr. 4, 2020).

ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020)

18

Government's Ex. 7 - 018

Case 5:20-cv-00054 Document 16-3 Filed on 04/24/20 in TXSD Page 1 of 1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
LAREDO DIVISION

Raul Garza Marroquin, et al., Petitioners/Plaintiffs, v.
Jose Longoria, Jr., et al., Respondents/Defendants.

§ § § § § Civil Action No. 5:20-cv-54 § § § §

ORDER Before the Court is Defendants’ motion to dismiss the claims brought by Raul Garza Marroquin. Having reviewed the motion and the record before the Court, the Court finds that the motion has merit and grants the motion. IT IS ORDERED that Garza’s claims are DISMISSED WITH PREJUDICE.
Signed this _____ day of ______________ 2020.
__________________________________ Hon. Marina Garcia Marmolejo United States District Judge