1 WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org
2 SEAN RIORDAN (SBN 255752) sriordan@aclunc.org
3 ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org
4 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN
5 CALIFORNIA 39 Drumm Street
6 San Francisco, CA 94111 Telephone: (415) 621-2493
7 Facsimile: (415) 255-8437
8 Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page
9

MANOHAR RAJU (SBN 193771) Public Defender MATT GONZALEZ (SBN 153486) Chief Attorney FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.orga GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: 415-553-9319 Fax: 415-553-9810

10

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12
Sofia Bahena Ortuño; Gennady Valeryevich 13 Lavrus; Claude Bent; Charles Joseph;
Salomon Medina Calderon; Ricardo Vasquez 14 Cruz; J. Elias Solorio Lopez; Olvin Said
Lopez; Olvin Said Torres Murillo; Julio 15 Cesar Buendia Alas; Marco Montoya
Amaya; Mauricio Ernesto Quinteros Lopez; 16 Roxana del Carmen Trigueros Acevedo;
Ernesto Ambrocio Uc Encarnacion, 17
Petitioners-Plaintiffs, 18
v. 19
DAVID JENNINGS, Acting Director of the 20 San Francisco Field Office of U.S. Immigration
and Customs Enforcement; MATTHEW T. 21 ALBENCE, Deputy Director and Senior
Official Performing the Duties of the Director 22 of the U.S. Immigration and Customs
Enforcement; U.S. IMMIGRATION AND 23 CUSTOMS ENFORCEMENT,

Case No.
PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

24

Respondents-Defendants.

25

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27

28

PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT

1 BREE BERNWANGER** (NY SBN 5036397) JORDAN WELLS (SBN 326491)

bbernwanger@lccrsf.org

jwells@aclusocal.org

2 TIFANEI RESSL-MOYER* (SBN 319721) STEPHANIE PADILLA (SBN 321568)

tresslmoyer@lccrsf.org

spadilla@aclusocal.org

3 HAYDEN RODARTE* (SBN 329432)

MICHAEL KAUFMAN (SBN 254575)

hrodarte@lccrsf.org

mkaufman@aclusocal.org

4 LAWYERS’ COMMITTEE FOR

AMERICAN CIVIL LIBERTIES UNION

CIVIL RIGHTS OF

FOUNDATION OF SOUTHERN

5 SAN FRANCISCO BAY AREA

CALIFORNIA

131 Steuart St #400

1313 West Eighth Street

6 San Francisco, CA 94105

Los Angeles, CA 90017

Telephone: (415) 814-7631

Telephone: (213) 977-9500

7

Facsimile: (213) 977-5297

JUDAH LAKIN (SBN 307740)

8 judah@lakinwille.com

Attorneys for Petitioners-Plaintiffs

AMALIA WILLE (SBN 293342)

*Admission to the bar of this Court Pending

9 amalia@lakinwille.com

**Motion for Admission Pro Hac Vice

LAKIN & WILLE LLP

Forthcoming

10 1939 Harrison Street, Suite 420

Oakland, CA 94612

11 Telephone: (510) 379-9216

Facsimile: (510) 379-9219

12

13

14

15

16

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18

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PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT

1

TABLE OF CONTENTS

2 INTRODUCTION .......................................................................................................................... 1

3 PARTIES ........................................................................................................................................ 5

4

Plaintiffs .............................................................................................................................. 5

5

Defendants .......................................................................................................................... 7

6 JURISDICTION AND VENUE ..................................................................................................... 8

7 INTRADISTRICT ASSIGNMENT................................................................................................ 8

ADDITIONAL FACTUAL BACKGROUND ............................................................................... 8

8

COVID-19 Poses Grave Risk of Harm, Including Serious Illness or Death ...................... 8

9

People Detained at Mesa Verde and Yuba Face an Elevated Risk of COVID-19

10

Transmission. .................................................................................................................... 10

11

Population Reduction Through Release, Prioritizing the Release of Those Most

Vulnerable to Severe Cases of COVID-19, Will Reduce the Risk of a COVID-19

12

Outbreak in Mesa Verde and Yuba................................................................................... 11

13 LEGAL FRAMEWORK .............................................................................................................. 13

14

Plaintiffs Have a Constitutional Right to Reasonable Safety in Custody. ........................ 13

15

ICE Has the Authority to Release Detained People in Its Custody. ................................. 15

16

This Court Has Authority to Order Plaintiffs’ Release to Vindicate Their Fifth

Amendment Rights, and Such Relief Is Appropriate Here............................................... 16 17

18 Injunctive and declaratory RELIEF allegations............................................................................ 16 CLAIM FOR RELIEF .................................................................................................................. 17

19 Violation of Fifth Amendment Right to Substantive Due Process (Unlawful Punishment;

20

Freedom from Cruel Treatment and Conditions of Confinement) ................................... 17

21 PRAYER FOR RELIEF ............................................................................................................... 18

22

23

24

25

26

27

28

PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT

INTRODUCTION 1

2

1. This action is being filed in the midst of a rapidly evolving global pandemic of frightening

3 proportions, by immigrants whose continued civil detention by the San Francisco Field Office Defendant

4 U.S. Customs and Immigration Enforcement (“ICE”) places them at extraordinary risk of infection, illness,

5 and death.

6

2. The clock is ticking. On March 22, 2020, the number of worldwide diagnoses of the

7 coronavirus reached 300,000. This is double the number from a week before. The United States has the third

8 largest number of diagnoses in the world. As of Monday, March 22, there were more than 30,000 diagnosed

9 cases within the United States, and more than 375 deaths. By the time this Court reads this complaint, there

10 will be more diagnoses, and more deaths, with no end in sight.

11

3. It is effectively impossible for Plaintiffs to protect themselves against COVID-19 infection in

12 the two immigration detention centers where ICE is holding them: Mesa Verde ICE Processing Facility

13 (“Mesa Verde”) and Yuba County Jail (“Yuba”). Each of the Plaintiffs is of advanced age and/or suffers

14 underlying health conditions which make them particularly vulnerable to severe and rapidly progressing

15 effects of COVID-19, including death. Yet these Plaintiffs remain detained with the general population in

16 both facilities, sleeping in bunks within arms-reach of other detainees and with no choice but to use shared

17 communal dining, bathing, and recreation areas. Facility staff have rebuffed their inquiries about COVID-19

18 risks and precautions, and Defendants have rejected their attorneys’ requests for humanitarian release.

19

4. During this global pandemic, the Center for Disease Control and Prevention (“CDC”) and

20 other public health experts advise that the only effective means of limiting transmission of the virus are

21 practicing “social distancing,” with a recommended minimum of six feet between people and reduced

22 frequency of contact, and maintaining rigorous personal hygiene. People in congregate environments—

23 places where people live, eat, and sleep in close proximity—face increased risk of contracting COVID-19, as

24 already evidenced by the rapid spread of the virus in cruise ships and nursing homes. For people such as

25 Plaintiffs, who are confined in Mesa Verde and Yuba, it is effectively impossible to engage in the social

26 distancing and hygiene practices necessary to mitigate the risk of transmission.

27

5. The grave threats of the spread of COVID-19, and of a spiraling cascade of illness and deaths,

28 have convinced public health and government officials worldwide to undertake extraordinary measures. For

1 PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT

1 example, within the past week, “shelter in place” orders have been issued throughout the Bay Area, in the

2 State of California, and in a growing number of jurisdictions nationwide, requiring people to severely limit or

3 eliminate non-essential activities and to maintain social distancing of at least six feet from other people to the

4 maximum extent possible. One in four people in the country are now governed by a shelter in place directive.

5 The land borders with Mexico and Canada have largely been sealed to travel deemed “non-essential.”

6

6. Recognizing the urgency of present circumstances, judges, prosecutors and correctional

7 authorities across the country have been ordering releases to protect individuals and the public health. Such

8 releases not only protect the people with the greatest vulnerability to serious illness and death COVID-

9 19 from transmission of the virus, they also contribute to greater risk mitigation for all people in custody or

10 working in a prison, jail, or detention center, and reduces the burden on the surrounding region’s

11 limited health care infrastructure, as it lessens the likelihood that an overwhelming number of people will

12 become seriously ill from COVID-19 at the same time. Many of California’s largest jails have released

13 people detained in the criminal justice system to protect those people and the community from COVID-19.

14 Alameda County’s Santa Rita Jail released 300 people. Los Angeles County released over 1,000 people from

15 its jails. The Kern County Jail, located fifteen minutes from Mesa Verde, has released dozens of detainees.

16 Law enforcement and jail officials in New Jersey, New York City, Cleveland, Nashville, Houston, San

17 Antonio, Charlotte, and numerous other jurisdictions are releasing both civil detainees and, in many cases,

18 people serving sentences for criminal convictions, because of the threat COVID-19 poses inside jails. For

19 example, on March 22 the New Jersey Supreme Court issued a consent order presumptively ordering the

20 release of every person serving a county jail sentence by no later than Thursday morning, March 26.1 And

21 Magistrate Judge Thomas S. Hixson of this Court recently altered the conditions of bail for an individual to

22 postpone incarceration, after taking into account his risk of vulnerability to the coronavirus. In the Matter of

23 the Extradition of Alejandro Toledo Manrique, Case No. 19-mj-71055, 2020 WL 1307109, at *1 (N. D. Cal.

24 March 19, 2020).

25

7. ICE’s response to the threats the pandemic poses to immigrants, by contrast, has been

26 abysmal and haphazard. As Californians began to shelter in their homes in compliance with public health

27

28 1 Consent Order, In the Matter of the Request to Commute or Suspend County Jail Sentences, No. 084230 (N.J. March 22,
2020) available at https://www.aclu-nj.org/files/5415/8496/4744/2020.03.22_-_Consent_Order_Filed_Stamped_Copy-1.pdf. 2
PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT

1 directives to practice social distancing on Monday, March 16, ICE’s Los Angeles Field Office executed pre-

2 dawn raids to cram even more immigrants into detention centers. The Field Office Director stated to the L.A.

3 Times: “We couldn’t factor this in, right? This COVID-19 and the precautions that everybody’s taking . . . .

4 We just have to continue to go with the same game plan that we’ve been doing.”2 Following public outcry,

5 the next day ICE issued a statement that it would modify its enforcement efforts in apparent recognition of

6 the need for alternatives to detention to protect public health.3 The day after, however, in response to a

7 lawsuit for the release of vulnerable ICE detainees, the agency again demonstrated its failure to appreciate

8 the threats the COVID-19 pandemic presents, asserting that “Plaintiffs’ assertion that detention per se poses

9 an increased risk of health complications or death from COVID-19 is purely speculative.”4 ICE’s head-in-

10 the-sand response to the threats of this pandemic will prove deadly to immigrant detainees if it is not

11 remedied through this Court’s intervention.

12

8. The following day, Thursday, March 19, 2020, two medical subject matter experts for the

13 Department of Homeland Security’s Office of Civil Rights and Civil Liberties blew the whistle to Congress,

14 writing “regarding the need to implement immediate social distancing to reduce the likelihood of exposure to

15 detainees, facility personnel, and the general public, it is essential to consider releasing all detainees who do

16 not pose an immediate risk to public safety.”5 On multiple occasions since at least February 25, 2020, these

17 experts had sounded the alarm within the agency on the imminent risks to the health of immigrant detainees

18 and the public at large presented by COVID-19 unless swift mitigation measures, including decreasing the

19 number of immigrant detainees, are taken.

20

9. Inside the facilities, moreover, immigrants say that ICE is not consistently taking even the less

21 aggressive precautionary measures the agency claims it is taking. To take one critical example, ICE is

22 introducing daily new detainees in with the general population without any mandatory quarantine period.

23 This echoes a concern of the two DHS experts, who say that “the track record of ICE facilities implementing

24 [early screening, testing, isolation and quarantine] protocols historically has been inconsistent.” Moreover,

25
2 https://www.latimes.com/california/story/2020-03-17/for-ice-agents-its-business-as-unusual-day-after-sweeping-coronavirus-
26 order
3 https://www.ice.gov/covid19.
27 4 Respondents—Defendants’ Opposition at 8, Dawson v. Asher, ECF No. 28, Case No. 20-0409 (W.D. Wash. Mar. 18, 2020).
5 Letter from Scott A. Allen, MD and Josiah Rich, MD, MPH to Congressional Committee Chairpersons, dated Mar. 19, 2020,
28 available at https://assets.documentcloud.org/documents/6816336/032020-Letter-From-Drs-Allen-Rich-to-Congress-Re.pdf
(emphasis in original).
3 PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT

1 even if ICE was consistently taking these precautions, the DHS experts have explained that they “won’t be

2 enough” without rapidly “releas[ing] those who do not pose an immediate danger to public safety.”6

3 Defendants stubbornly refuse to heed the advice of public health experts, including their own.

4

10. Plaintiffs, like all civil immigration detainees, are not being detained pursuant to a conviction

5 of any offense. Although some of the Plaintiffs have prior criminal histories, they have completed their

6 sentences. Rather, they are currently in civil detention because they are awaiting the completion of their

7 immigration proceedings.

8

11. ICE has significant discretion to release immigration detainees, see 8 U.S.C. § 1226(a), and

9 has a long-standing practice of releasing for humanitarian reasons even those whose detention has been

10 mandated under particular immigration detention statutes, see 8 U.S.C. §§ 1182(d)(5); 1225(b); 1226(c).

11 According to John Sandweg, a former acting head of ICE, “[t]he overwhelming majority of people in ICE

12 detention don’t pose a threat to public safety and are not an unmanageable flight risk.”7 ICE also regularly

13 uses alternatives to detention, such as electronic ankle monitors and telephonic monitoring, under appropriate

14 circumstances.

15

12. Even where a statute mandates a person’s detention, it is settled law that ICE cannot detain a

16 person if that application of the statute violates the Constitution. Defendants cannot justify continuing to

17 subject Plaintiffs to extraordinary risk of illness and death with any legitimate government objective,

18 particularly in light of the alternatives available to them. The danger posed by Plaintiffs’ detention during the

19 current outbreak of COVID-19 is “so grave that it violates contemporary standards of decency to

20 expose anyone unwillingly to such a risk” and violates their constitutional right to safety in

21 government custody. Helling v. McKinney, 509 U.S. 25, 36 (1993). Plaintiffs bring this action to remedy

22 grave violations of their constitutional rights that imminently threaten them with serious illness and death.

23

13. Unless this Court intervenes to order the release of the Plaintiffs, they, along with many other

24 detained individuals, will face dramatically increased chances of contracting COVID-19, becoming seriously

25 ill, and dying.

26
6 See, “We must release prisoners to lessen the spread of coronavirus,” Washington Post
27 https://www.washingtonpost.com/opinions/2020/03/17/we-must-release-prisoners-lessen-spread-coronavirus/.
7 Camilo Montoya-Galvez, Powder Kegs: Calls Grow for ICE to Release Immigrants to Avoid Coronavirus Outbreak, CBS News,
28 Mar. 19, 2020, https://www.cbsnews.com/amp/news/coronavirus-ice-release-immigrants-detention-
outbreak/?__twitter_impression=true.
4
PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT

1 2 Plaintiffs

PARTIES

3

14. Plaintiff Sofia Bahena Ortuño is a 64-year-old woman who suffers from hypothyroidism and

4 diabetes. Ms. Bahena Ortuño is currently in civil detention at Mesa Verde pending her application for

5 withholding of removal, which is based on her fear of return following her son’s murder. She has six U.S.

6 citizen grandchildren whom she helps support. She cries every day because of her concerns about COVID-19

7 and her health; she does not want to die in detention without seeing her family.

8

15. Plaintiff Gennady Valeryevich Lavrus is a 43-year-old Russian national and son of a U. S.

9 citizen. He has now been in civil detention at Yuba for over one year. Mr. Lavrus suffers from diabetes and

10 hypertension. His diabetes causes him dizziness and has led to neuropathy in his feet. His U.S. citizen mother

11 awaits his release to care for him.

12

16. Plaintiff Claude Bent is a 58-year-old Lawful Permanent Resident (“LPR”) originally from

13 Jamaica. He is the father of 3 United States citizen children and has extensive immediate U. S. citizen and

14 LPR family. He is currently in civil detention at Mesa Verde and awaiting his next immigration court hearing

15 after remand from the Ninth Circuit. He suffers from severe asthma and is forced to clean his own and

16 communal spaces in cramped conditions. His mother and brother in Washington D.C. await his release to

17 care for him.

18

17. Plaintiff Charles Joseph is a 34-year-old Fijian national who has resided lawfully in the

19 United States for nearly twenty years. He is currently in civil detention pending his immigration proceedings

20 at Mesa Verde. Mr. Joseph suffers from asthma and was exposed to tuberculosis while in detention. His U.S.

21 citizen wife, mother, and children await him at home.

22

18. Plaintiff Salomon Medina Calderon is a 56-year-old Mexican national, father of 6, grandfather

23 of 6, and husband of 38 years, residing in the United States for the last 35 years. He is currently in civil

24 detention at Yuba, pending his immigration proceedings. Mr. Medina Calderon suffers from diabetes and

25 diabetes-related organ complications, near-complete blindness, and severe anemia. His wife and family await

26 his release to care for him at their home in Greenfield, CA.

27

19. Plaintiff Ricardo Vasquez Cruz is a 45-year-old Salvadoran national who fled his country of

28 birth after criminal gangs murdered his brother. He received Temporary Protected Status which he held until

5 PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT

1 2018. Mr. Vasquez Cruz is currently in civil detention at Yuba County Jail while his immigration case is

2 pending review at the Ninth Circuit Court of Appeals. He suffers from diabetes, which often causes him to

3 feel weak and exhausted. His U.S. citizen son, who was abandoned by his mother, is ready to welcome him

4 home.

5

20. Plaintiff J. Elias Solorio Lopez is an 82-year old Mexican national and U.S. lawful permanent

6 resident. Mr. Solorio Lopez is currently in civil detention at Mesa Verde pending his removal proceedings.

7 He has been diagnosed with significant medical and neurological illnesses which require immediate care in a

8 specialized facility. Mr. Solorio Lopez is hoping to be released to his U.S. citizen daughter and live with

9 supportive community members.

10

21. Plaintiff Olvin Said Torres Murillo is a 43-year-old Honduran national, and a husband and

11 father of two young daughters. He is an asylum-seeker and is currently in civil detention at Yuba pending the

12 resolution of his immigration proceedings. Mr. Torres Murillo suffers from high blood pressure and

13 depression.

14

22. Plaintiff Julio Cesar Buendia Alas is a 41-year-old Mexican national, son of a U.S. citizen,

15 and resident of Southern California for the last 17 years. He is currently in civil detention at Mesa Verde. He

16 suffers from hypertension, high cholesterol, and an undiagnosed severely painful testicular mass. His father

17 and siblings await his release to care for him at their home in Pomona, California.

18

23. Plaintiff Marco Montoya Amaya is a 42-year-old Honduran national seeking relief under the

19 Convention Against Torture. He is currently in civil detention at Mesa Verde pending the resolution of his

20 immigration proceedings. Mr. Montoya Amaya has been diagnosed with tuberculosis for which he has

21 received no treatment and is housed in close quarters with 100 or more other detainees. He suffers from

22 severe mental issues, including PTSD, major depression, and mild neurocognitive disorder.

23

24. Plaintiff Mauricio Ernesto Quinteros Lopez is a 28-year-old Salvadoran national from

24 Alameda County. He is in civil detention at Mesa Verde Detention Facility. Mr. Quinteros Lopez suffers

25 from hypertension, and presents symptoms consistent with COVID-19. His extensive family in Alameda

26 County are ready to receive him at home and care for him.

27

25. Plaintiff Roxana del Carmen Trigueros Acevedo is a 49-year-old Salvadoran national married

28 to Plaintiff Carolina del Carmen Espinoza Ayala. She is currently in civil detention with her partner Carolina

6 PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT

1 at Mesa Verde. She and Carolina fled persecution based on their sexual orientation, presented themselves at a

2 U.S. Port of Entry, and are now seeking asylum in immigration court. She suffers from hypertension and

3 colitis, which have both worsened due to her detention and the stress from the high-risk of coronavirus

4 infection in her cramped dormitory conditions. Upon release, her family, who have resided in Houston, TX

5 for 25 years, will welcome and take care of her and her partner Carolina.

6

26. Plaintiff Ernesto Ambrocio Uc Encarnacion is a 31-year-old Mexican national. He is in civil

7 detention at Yuba County Jail pending the resolution of his immigration proceedings. He has suffered from

8 asthma since childhood and currently presents symptoms consistent with COVID-19. He is surrounded by

9 others with similar symptoms in extremely cramped conditions. Mr. Uc Encarnacion has requested and been

10 refused a face mask to stem contagion. His mother has lived in San Francisco for 19 years and awaits his

11 release to care for him.

12

27. Plaintiffs seek issuance of a writ of habeas corpus ordering their release from Mesa Verde and

13 Yuba, and declaratory and injunctive relief to prevent Defendants from continuing to detain them under

14 conditions that pose an imminent threat of irreparable harm, in that their continued detention exposes them to

15 greatly increased risks of contracting COVID-19, resulting in severe illness or death.

16 Defendants

17

28. Respondent-Defendant David Jennings is the Acting Field Officer Director for the San

18 Francisco Field Office of ICE and maintains his office in San Francisco, California, within this judicial

19 district. The San Francisco Field Office is responsible for carrying out ICE’s immigration detention

20 operations at Mesa Verde and Yuba. Defendant Jennings is a legal custodian of Plaintiffs. He is sued in his

21 official capacity.

22

29. Respondent-Defendant Matthew T. Albence is the Deputy Director and Senior Official

23 Performing the Duties of the Director of ICE. Defendant Albence is responsible for ICE’s policies, practices,

24 and procedures, including those relating to the detention of immigrants. Defendant Albence is a legal

25 custodian of Plaintiffs. He is sued in his official capacity.

26

30. Respondent-Defendant ICE is a federal law enforcement agency within the Department of

27 Homeland Security. ICE is responsible for the criminal and civil enforcement of immigration laws, including

28

7 PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT

1 the detention and removal of immigrants. Enforcement and Removal Operations (“ERO”), a division of ICE,

2 manages and oversees the immigration detention system. Defendant ICE is a legal custodian of Plaintiffs.

3

JURISDICTION AND VENUE

4

31. This Court has subject matter jurisdiction over this matter under 28 U.S.C. § 1331 (federal

5 question), 28 U.S.C. § 1346 (original jurisdiction), 28 U.S.C. §§ 2201-02 (declaratory relief); 28 U.S.C. §

6 2241 (habeas jurisdiction), and Article I, Section 9, clause 2 of the United States Constitution (the

7 Suspension Clause).

8

32. The United States has waived sovereign immunity for this action for declaratory and

9 injunctive relief against one of its agencies and that agency’s officers are sued in their official capacities. See

10 5 U.S.C. § 702.

11

33. Venue lies in this judicial district, under 28 U.S.C. § 1391, as venue is proper in any district in

12 which a defendant resides. Venue also is proper in the Northern District of California because Defendants are

13 officers or employees of the United States and a Defendant resides in this District, see 28 U.S.C.

14 §1391(e)(1)(A). 15

INTRADISTRICT ASSIGNMENT

16

34. Pursuant to Civil L. R. 3-2(c), this case is properly assigned to the San Francisco Division of

17 this Court because the action arises in the City and County of San Francisco.

18

ADDITIONAL FACTUAL BACKGROUND

19 COVID-19 Poses Grave Risk of Harm, Including Serious Illness or Death

20

35. COVID-19 is a virus that has reached pandemic status. Because COVID-19 is easily

21 transmitted, and because testing is increasingly available, the numbers of confirmed cases and deaths are

22 expected to grow exponentially in the near term.

23

36. All human beings share an equal risk of contracting and, upon contraction, transmitting the

24 virus that causes COVID-19. Any adult who contracts the virus may experience life-threatening symptoms.

25 However, people over the age of fifty and those with certain medical conditions face greater chances of

26 serious illness or death from COVID-19. Certain underlying medical conditions increase the risk of serious

27 COVID-19 disease for people of any age, including lung disease, heart disease, hypertension, chronic liver or

28 kidney disease (including hepatitis and dialysis patients), diabetes, epilepsy, hypertension, compromised

8 PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT

1 immune systems (such as from cancer, HIV, or an autoimmune disease), blood disorders (including sickle

2 cell disease), inherited metabolic disorders, stroke, developmental delay, and pregnancy. New information

3 regarding COVID-19 risk factors is coming out daily. Other categories of individuals may have conditions

4 that predispose them to complications from COVID-19, but are not yet identified by the medical literature.

5

37. The COVID-19 virus can severely damage lung tissue, which requires an extensive period of

6 rehabilitation, and in some cases, can cause a permanent loss of respiratory capacity. COVID-19 may also

7 target the heart muscle, causing a medical condition called myocarditis, or inflammation of the heart muscle.

8 Myocarditis can affect the heart muscle and electrical system, reducing the heart’s ability to pump. This

9 reduction can lead to rapid or abnormal heart rhythms in the short term, and long-term heart failure that

10 limits exercise tolerance and the ability to work. People of all ages and medical backgrounds who have

11 experienced serious cases of COVID-19 describe painful symptoms including vomiting, severe diarrhea,

12 relentless shivering, and suffocating shortness of breath.

13

38. Emerging evidence suggests that COVID-19 can also trigger an over-response of the immune

14 system, further damaging tissues in a cytokine release syndrome that can result in widespread damage to

15 other organs, including permanent injury to the kidneys and neurologic injury.

16

39. These complications can manifest at an alarming pace. Individuals can show the first

17 symptoms of COVID-19 infection in as little as two days after exposure, and their condition can seriously

18 deteriorate in as little as five days or sooner. People can also spread COVID-19 but be asymptomatic.

19

40. Most people who develop serious disease will need advanced support. This level of supportive

20 care requires highly specialized equipment that is in limited supply, and an entire team of care providers,

21 including 1:1 or 1:2 nurse to patient ratios, respiratory therapists, and intensive care physicians. This level of

22 support can quickly exceed local health care resources.

23

41. The need for care, including intensive care, and the likelihood of death, is much higher from

24 COVID-19 infection than from influenza. According to recent estimates, the fatality rate of people infected

25 with COVID-19 is about ten times higher than a severe seasonal influenza, even in advanced countries with

26 highly effective health care systems. For people in the highest risk populations, the fatality rate of COVID-19

27 infection is about 15 percent—ten times the average rate. Preliminary data from China showed that 20

28 percent of people in high-risk categories who have contracted COVID-19 there have died.

9 PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT

1

42. People who experience serious cases of COVID-19 who do not die from COVID-19 should

2 expect a prolonged recovery, including the need for extensive rehabilitation for profound reconditioning, loss

3 of digits, neurologic damage, and the loss of respiratory capacity.

4

43. There is no vaccine against COVID-19, nor is there any known medication to prevent or treat

5 infection. The only known effective measures to reduce the risk for vulnerable people from injury or death

6 from COVID-19 are to prevent them from being infected in the first place, and to limit community spread.

7 Social distancing or remaining physically separated from known or potentially infected individuals, and

8 vigilant sanitation and hygiene, including repeatedly and thoroughly washing hands with soap and water, are

9 the only known effective measures for protecting vulnerable people from COVID-19.

10

44. Nationally, projections by the CDC indicate that over 200 million people in the United States

11 could be infected with COVID-19 over the course of the epidemic without effective public health

12 intervention, with as many as 1.5 million deaths in the most severe projections.

13

45. In recent days, the number of reported cases of infection in many parts of the country have

14 shown a frightening increase, and numerous media outlets and public officials estimate that the reported

15 number of deaths could soon follow suit.

16 People Detained at Mesa Verde and Yuba Face an Elevated Risk of COVID-19 Transmission.

17 46. In institutional settings such as immigration detention centers, people who are over the age of
18 50, or who have medical conditions that put them at high risk of illness if infected by COVID-19, are at
19 grave risk of severe illness and death. Immigration detention facilities are “congregate environments,” or
20 places where people live and sleep in close proximity. Infectious diseases that are communicated by air or
21 touch are more likely to spread in these environments. This presents an increased danger for the spread of
22 COVID-19 if and when it is introduced into a facility. This is why enclosed group environments, like cruise
23 ships or nursing homes, have become the sites for the most severe outbreaks of COVID-19.
24 47. The conditions of immigration detention facilities pose a heightened public health risk for the
25 spread of COVID-19 that is even greater than in non-carceral institutions. Immigration detention facilities
26 have even greater risk of infectious spread because of crowding, the proportion of vulnerable people
27 detained, and often scant medical care resources. People live in close quarters and as a result, cannot achieve
28

10 PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT

1 the social distancing needed to effectively prevent the spread of COVID-19. They may be unable to maintain

2 the recommended distance of 6 feet from others and may share or touch objects used by others.

3

48. For Plaintiffs, it is near impossible for them and others detained in Yuba and Mesa Verde to

4 practice social distancing. Most sleep in barracks-style cells with dozens of others only a few feet away.

5 They endure inadequate hygiene and sanitation which raises the risk of infection and an outbreak. Toilets,

6 sinks, showers are shared, without disinfection between each use. Detainees report frequently not being

7 provided soap, or having to share a single bar of soap among many people, and having to wash their soiled

8 laundry in the shower. Food preparation and service is communal with little opportunity for surface

9 disinfection. Staff arrive and leave on a shift basis, new detainees are introduced into the environment daily

10 without quarantine, and there is limited ability, and little effort, to adequately screen staff, contractors, and

11 visitors for new, asymptomatic infection.

12

49. To make matters worse, immigration detention facilities lack adequate medical infrastructure

13 to address the spread of infectious disease and treatment of people most vulnerable to illness in detention.

14 During the H1N1 influenza epidemic in 2009, jails and prisons were sites of severe outbreaks. It is

15 reasonable to expect COVID-19 will also readily spread in detention centers, especially when people cannot

16 engage in proper hygiene and isolate themselves from infected residents or staff.

17

50. Detention centers are integral components of the public health systems in the communities in

18 which they are located. If many contract COVID-19 in such a facility they will require hospitalization in the

19 community, threatening to overwhelm the community’s resources. This problem is particularly acute in rural

20 communities, such as Bakersfield and Marysville, California, in which Mesa Verde and Yuba are situated. In

21 the event of an outbreak of COVID-19 in either Mesa Verde or Yuba, the surrounding communities would be

22 unable to provide adequate medical treatment to infected persons.

23 Population Reduction Through Release, Prioritizing the Release of Those Most Vulnerable to Severe Cases of COVID-19, Will Reduce the Risk of a COVID-19 Outbreak in Mesa Verde and Yuba.
24

25

51. Because risk mitigation is the only known strategy that can protect vulnerable groups from

26 COVID-19, and ICE has demonstrated over and over again that it is both unwilling and unable to implement

27 meaningful risk mitigation measures. Accordingly, public health experts with experience in immigration

28

11 PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT

1 detention and correctional settings have recommended that detention centers immediately reduce their

2 populations, beginning with the release of detainees most vulnerable to severe cases of COVID-19.

3

52. Dr. Marc Stern, a correctional health expert, has concluded that “[f]or detainees who are at

4 high risk of serious illness or death should they contract the COVID-19 virus, release from detention is a

5 critically important way to meaningfully mitigate that risk.” For that reason, Dr. Stern has recommended

6 broad release, beginning with the “release of eligible individuals from detention, with priority given to the

7 elderly and those with underlying medical conditions most vulnerable to serious illness or death if infected

8 with COVID-19.”

9

53. Dr. Robert Greifinger, a correctional health expert, has concluded that “even with the best-laid

10 plans to address the spread of COVID-19 in detention facilities, release is a key part of a risk mitigation

11 strategy. Accordingly, “[i]n [his] opinion, the public health recommendation is to release high-risk people

12 from detention, given the heightened risks to their health and safety, especially given the lack of a viable

13 vaccine for prevention or effective treatment at this stage.”

14

54. On the basis of information he has reviewed, Dr. Stern recommends immediate consideration

15 of downsizing of Mesa Verde and Yuba, with priority given to those in high risk of harm due to their age and

16 health status. He further recommends that these two facilities begin planning now to downsize further as

17 conditions change. In Dr. Stern’s view, downsizing has a number of valuable effects on public health and

18 public safety, and is the only measure that can effectively protect the health and safety of the people who

19 remain in detention. It allows for social distancing; it allows easier provision of preventive measures such as

20 soap for handwashing, cleaning supplies for surfaces, and more frequent laundering and showering; and

21 reduces the overall workload of detention staff so that they can focus on continuing to ensure the safety of

22 detainees.

23

55. Dr. Stern has also concluded that the release of detainees serves the broader community

24 because detention centers are integral parts of a community public health infrastructure. Reducing the spread

25 and severity of infection in such a center slows, if not reduces, the number of people who will become ill

26 enough to require hospitalization, which in turn reduces the health and economic burden to the local

27 community.

28

12 PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT

1

56. For at least the past month, the Department of Homeland Security’s own medical experts, who

2 have personally investigated numerous detention facilities, have sounded the alarm on the imminent risks to

3 the health of immigrant detainees and the public at large presented by COVID-19 unless swift mitigation

4 measures, including decreasing the number of immigrant detainees, are taken. Alarmed by ICE’s failure to

5 take appropriate action, these experts, each of whom has a served in senior capacities within the DHS,

6 became whistleblowers, writing to Congress, “regarding the need to implement social distancing to reduce

7 the likelihood of exposure to detainees, facility personnel, and the general public, it is essential to consider

8 releasing all detainees who do not pose an immediate risk to public safety.”8 They also made their concerns

9 public in an op-ed, explaining that screening incoming detainees and isolating groups exposed to the virus

10 “won’t be enough” without rapidly “releas[ing] those who do not pose an immediate danger to public

11 safety.”9

12

57. In the event that a scenario unfolds where vulnerable detainees have already been exposed to

13 COVID-19, the DHS experts recommend the release of detainees to a quarantine setting outside of detention

14 in coordination with local health authorities. Dr. Sandra Hernandez, a public health expert, has identified

15 such release as consistent with the public health and the guidance and directives of state and local public

16 health authorities. 17

LEGAL FRAMEWORK

18 Plaintiffs Have a Constitutional Right to Reasonable Safety in Custody.

19

58. Whenever the government detains or incarcerates someone, it has an affirmative duty to

20 provide conditions of reasonable health and safety. As the Supreme Court has explained, “when the State

21 takes a person into its custody and holds him there against his will, the Constitution imposes upon it a

22 corresponding duty to assume some responsibility for his safety and general well-being.” DeShaney v.

23 Winnebago County Dept. of Soc. Servs., 489 U.S. 189, 199-200 (1989). As a result, the government must

24 provide those in its custody with “food, clothing, shelter, medical care, and reasonable safety.” Id. at 200.

25

26
8 Letter from Scott A. Allen, MD and Josiah Rich, MD, MPH to Congressional Committee Chairpersons, dated Mar. 19, 2020,
27 available at https://assets.documentcloud.org/documents/6816336/032020-Letter-From-Drs-Allen-Rich-to-Congress-Re.pdf
(emphasis in original).
28 9 See, “We must release prisoners to lessen the spread of coronavirus,” Washington Post
https://www.washingtonpost.com/opinions/2020/03/17/we-must-release-prisoners-lessen-spread-coronavirus/.
13
PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT

1

59. Conditions that pose an unreasonable risk of future harm violate the Eighth Amendment’s

2 prohibition against cruel and unusual punishment, even if that harm has not yet come to pass. The Eighth

3 Amendment requires that “inmates be furnished with the basic human needs, one of which is ‘reasonable

4 safety.’” Helling v. McKinney, 509 U.S. at 33 (quoting DeShaney, 489 U.S. at 200). Accordingly, “[i]t would

5 be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their

6 prison on the ground that nothing yet had happened to them.” Id.

7

60. The Supreme Court has explicitly recognized that the risk of contracting a communicable

8 disease may constitute such an “unsafe, life-threatening condition” that threatens “reasonable safety.” Id. The

9 Supreme Court also has instructed courts to consider “contemporary standards of decency” when evaluating

10 conditions of confinement. Helling v. McKinney, 509 U.S. 25, 36 (1993).

11

61. The constitutional protections afforded to immigration detainees are more comprehensive than

12 those afforded to criminal defendants. Immigrant detainees, even those with prior criminal convictions,

13 are civil detainees held pursuant to civil immigration laws. Zadvydas v. Davis, 533 U.S. 678, 690 (2001).

14 Even those who in the past were convicted of crimes are solely being detained pursuant to their immigration

15 status, having completed their criminal sentences. Because detained immigrants are civil detainees, their

16 constitutional protections while in custody are derived from the Fifth Amendment. The Eighth Amendment

17 prohibits punishment that is “cruel and unusual,” whereas the Due Process Clause of the Fifth Amendment

18 prohibits any punishment at all.

19

62. The Ninth Circuit has applied this principle to make clear that civil detainees, like Plaintiffs

20 here, are entitled to conditions of confinement that are superior to those of convicted prisoners and to those

21 of criminal pretrial detainees. Jones v. Blanas, 393 F.3d 918, 933-34 (9th Cir. 2004), cert. denied, 546 U.S.

22 820 (2005); see also King v. Cnty. of Los Angeles, 885 F.3d 548, 557 (9th Cir. 2018) (finding presumption of

23 punitive, and thus unconstitutional, treatment where conditions of confinement for civil detainees are similar

24 to those faced by pre-trial criminal detainees). Conditions of confinement violate this standard when they

25 deprive people in civil custody of a basic human need, including safety, and the risk of deprivation cannot be

26 justified by a legitimate governmental interest or is excessive despite a legitimate governmental interest.

27

63. The risk that Plaintiffs fear—that the unsafe conditions in Mesa Verde and Yuba cause them

28 to actually contract COVID-19, and that they will face a heightened risk of morbidity or mortality—does not

14 PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT

1 need to become a reality for there to be a violation of their constitutional rights. A Due Process violation may

2 arise, and a court may fashion remedies even before a plaintiff has contracted a communicable disease or

3 such disease has spread within a facility. See Helling v. McKinney, 509 U.S. 25, 33 (1993); Lareau v.

4 Manson, 651 F.2d 96, 105 (2d Cir. 1981); Hernandez v. Cnty. of Monterey, 110 F.Supp.3d 929, 957 (N.D.

5 Cal. 2015) (finding need for injunction where civil detainees kept at “heightened risk of contracting” a

6 communicable disease).

7 ICE Has the Authority to Release Detained People in Its Custody.

8

64. It is well within ICE’s authority to comply with these constitutional requirements by releasing

9 people to remedy the conditions of confinement in Mesa Verde and Yuba that put Plaintiffs and others 10 detained there at an unreasonably high risk of contracting COVID-19. In fact, ICE has routinely exercised

11 this discretion to release particularly vulnerable detainees like Plaintiffs. As former Deputy Assistant

12 Director for Custody Programs in ICE Enforcement and Removal Operations Andrew Lorenzen-Strait has

13 stated, “ICE has exercised and still exercises discretion for purposes of releasing individuals with serious

14 medical conditions from detention.” In fact, “ICE exercises humanitarian parole authority all the time for 15 serious medical reasons.” This exercise of discretion comes from a long line of agency directives explicitly 16 instructing officers to exercise favorable discretion in cases involving severe medical concerns and other

17 humanitarian equities militating against detention.

18

65. ICE’s discretion applies regardless of the statutory basis for a noncitizen’s detention.

19

66. When conditions of confinement in an immigration detention facility lead to uniformly unsafe

20 conditions that rise to the level of a constitutional violation, the only available remedy is to reduce levels of

21 detention unless and until conditions can be brought in line with constitutional standards. For example, in a

22 recent case challenging conditions of confinement in Border Patrol detention facilities along the Arizona

23 border, Judge David C. Bury ordered that the Constitution prohibited Border Patrol from continuing to detain

24 any person to whom it did not provide a bed, shower, nutritious food, and a screening by a medical 25 professional within 48 hours of book-in. Unknown Parties v. Nielsen, CV-15-00250-TUC-DCB, 2020 WL 26 813774, *1 (D. Az. Feb. 19, 2020).

27

28

15 PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT

1 This Court Has Authority to Order Plaintiffs’ Release to Vindicate Their Fifth Amendment Rights, and Such Relief Is Appropriate Here.
2

3

67. While the circumstances of this case are novel and emerging, the Court’s authority to order

4 Plaintiffs’ release to ensure their constitutional rights are protected is not. “Federal courts possess whatever

5 powers are necessary to remedy constitutional violations because they are charged with protecting these

6 rights.” Stone v. City & Cnty. of San Francisco, 968 F.2d 850, 861 (9th Cir. 1992). As a result, “[w]hen

7 necessary to ensure compliance with a constitutional mandate, courts may enter orders placing limits on a

8 prison’s population.” Brown v. Plata, 563 U.S. 493, 511 (2011).

9

68. Courts have regularly exercised this authority to remedy constitutional violations caused by

10 overcrowding. Duran v. Elrod, 713 F.2d 292, 297-98 (7th Cir. 1983), cert. denied, 465 U.S. 1108 (1984)

11 (concluding that court did not exceed its authority in directing release of low-bond pretrial detainees as

12 necessary to reach a population cap).

13

69. The same principle applies here. As the constitutional principles and public health experts

14 make clear, releasing Plaintiffs is the only viable remedy to ensure their safety from the threat to their health

15 that COVID-19 poses. Plaintiffs are older adults and/or people with medical conditions who are at

16 particularly grave risk of severe illness or death if they contract COVID-19.

17

70. In the face of this great threat, social distancing and hygiene measures are Plaintiffs’ only

18 defense against COVID-19. Those protective measures are exceedingly difficult, if not impossible, in the

19 environment of an immigration detention center, where Plaintiffs share toilets, sinks, and showers, eat in

20 communal spaces, and are in close contact with the many other detainees and officers around them. These

21 conditions pose even greater risk of infectious spread, and as a result, Plaintiffs face unreasonable harm from

22 continued detention. It is also well documented that even in “normal” times, ICE has been ineffective in

23 ceasing the spread of communicable diseases within detention centers. And, these are not normal times.

24

INJUNCTIVE AND DECLARATORY RELIEF ALLEGATIONS

25

71. Plaintiffs repeat and reallege the allegations contained in all preceding paragraphs as though

26 fully set forth herein.

27

72. An actual and substantial controversy exists between Plaintiffs and Defendants regarding their

28 respective legal rights and duties. Plaintiffs contend that Defendants have violated Plaintiffs’ constitutional

16 PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT

1 rights as alleged above. Defendants deny that their conduct violates any such rights and intend to continue

2 such conduct.

3

73. Moreover, in view of Defendants’ policies and practices, Plaintiffs are threatened with

4 continuing and future deprivations of their rights.

5

74. Defendants’ conduct as alleged above has caused and, absent injunctive relief or a writ of

6 habeas corpus, will continue to cause irreparable harm to Plaintiffs by exposing Plaintiffs to unacceptably

7 increased risk of irreparable harm, including serious injury and death. In the absence of immediate relief,

8 Plaintiffs will continue to be deprived of these rights.

9

75. There is no adequate remedy at law for the continuing violations by Defendants of Class

10 members’ constitutional and statutory rights.

11

CLAIM FOR RELIEF

12 Violation of Fifth Amendment Right to Substantive Due Process (Unlawful Punishment; Freedom from Cruel Treatment and Conditions of Confinement)
13

14

76. Plaintiffs repeat and reallege the allegations contained in all preceding paragraphs as though

15 fully set forth herein.

16

77. The Fifth Amendment to the U.S. Constitution guarantees that civil detainees, including all

17 immigrant detainees, may not be subjected to punishment. The federal government violates this substantive

18 due process right when it subjects civil detainees to conditions of confinement that amount to punishment or

19 create an unreasonable risk to detainees’ safety and health.

20

78. Defendants’ conditions of confinement subject Plaintiffs to heightened risk of contracting

21 COVID-19, for which there is no vaccine, known treatment, or cure. Defendants are subjecting Plaintiffs to a

22 substantial risk of serious harm.

23

79. For these reasons, Defendants’ ongoing detention of Plaintiffs constitutes punishment and

24 violates the Due Process Clause of the Fifth Amendment.

25

26

27

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17 PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT

PRAYER FOR RELIEF 1

2

WHEREFORE, the Plaintiffs respectfully ask this Court to grant the following relief:

3

1. Issue a Writ of Habeas Corpus and order the immediate release of Plaintiffs, with appropriate

4

precautionary public health measures, on the ground that their continued detention violates the

5

Due Process Clause;

6

2. In the alternative, issue injunctive relief ordering Defendants to immediately release Plaintiffs,

7

with appropriate precautionary public health measures, on the grounds that their continued

8

detention violates the Due Process Clause;

9

3. Issue a declaration that the conditions under which Plaintiffs and others are confined at Mesa

10

Verde and Yuba place Plaintiffs at an unreasonable risk of contracting serious illness and

11

death, in violation of the Due Process Clause;

12

4. Award Plaintiffs reasonable attorneys’ fees, costs, and other disbursements in this action

13

permitted under the Equal Access to Justice Act (“EAJA”), as amended, 5 U.S.C. § 504 and

14

28 U.S.C. § 2412, and on any other basis justified under law; and

15

5. Grant any and all other such relief that this Court deems just and equitable.

16 Dated: March 24, 2020

Respectfully submitted,

17

/s/ William S. Freeman

18

William S. Freeman Sean Riordan

19

Angélica Salceda

AMERICAN CIVIL LIBERTIES UNION

20

FOUNDATION OF NORTHERN CALIFORNIA

21

Manour Raju

22

Matt Gonzalez Francisco Ugarte

23

Genn Ellis Beier

Emilou H. Maclean

24

OFFICE OF THE PUBLIC DEFENDER

SAN FRANCISCO 25

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27

28

18 PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT

1 Bree Bernwanger

Tifanei Ressl-Moyer 2 Hayden Rodarte

3

LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF

4 SAN FRANCISCO BAY AREA

5 Judah Lakin
6 Amalia Wille 7 LAKIN & WILLE LLP

Jordan Wells Stephanie Padilla Michael Kaufman AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA
Attorneys for Petitioners-Plaintiffs

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19 PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT

 
 1 WILLIAM S. FREEMAN (SBN 82002) wfreeman@aclunc.org
2 SEAN RIORDAN (SBN 255752) sriordan@aclunc.org
3 ANGÉLICA SALCEDA (SBN 296152) asalceda@aclunc.org
4 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN
5 CALIFORNIA 39 Drumm Street
6 San Francisco, CA 94111 Telephone: (415) 621-2493
7 Facsimile: (415) 255-8437
8 Attorneys for Petitioners-Plaintiffs Additional Counsel Listed on Following Page
9
10

MANOHAR RAJU (SBN 193771) Public Defender manahar.raju@sfgov.org MATT GONZALEZ (SBN 153486) Chief Attorney matt.gonzalez@sfgov.org FRANCISCO UGARTE (CA SBN 241710) francisco.ugarte@sfgov.orga GENNA ELLIS BEIER (CA SBN 300505) genna.beier@sfgov.org EMILOU H. MACLEAN (CA SBN 319071) emilou.maclean@sfgov.org OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO 555 Seventh Street San Francisco, CA 94103 Direct: 415-553-9319 Fax: 415-553-9810

11

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

12

SAN FRANCISCO DIVISION

13 Sofia Bahena Ortuño; Gennady Valeryevich Lavrus; Claude Bent; Charles Joseph;
14 Salomon Medina Calderon; Ricardo Vasquez Cruz; J Elias Solorio Lopez; Olvin Said
15 Torres Murillo; Julio Cesar Buendia Alas; Marco Montoya Amaya; Mauricio Ernesto
16 Quinteros Lopez; Roxana del Carmen Trigueros Acevedo; Ernesto Ambrocio Uc
17 Encarnacion;

18

Petitioners-Plaintiffs,

Case No.
NOTICE OF MOTION AND MOTION FOR TEMPORARY RESTRAINING ORDER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

19

v.

20 DAVID JENNINGS, Acting Director of the San Francisco Field Office of U.S. Immigration
21 and Customs Enforcement; MATTHEW T. ALBENCE, Deputy Director and Senior
22 Official Performing the Duties of the Director of the U.S. Immigration and Customs
23 Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT,
24
Respondents-Defendants. 25

26

27

28
NOTICE OF MOTION, MOTION AND MEMO IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER

1 BREE BERNWANGER** (NY SBN 5036397) JORDAN WELLS (SBN 326491)

bbernwanger@lccrsf.org

jwells@aclusocal.org

2 TIFANEI RESSL-MOYER* (SBN 319721) STEPHANIE PADILLA (SBN 321568)

tresslmoyer@lccrsf.org

spadilla@aclusocal.org

3 HAYDEN RODARTE* (SBN 329432)

MICHAEL KAUFMAN (SBN 254575)

hrodarte@lccrsf.org

mkaufman@aclusocal.org

4 LAWYERS’ COMMITTEE FOR

AMERICAN CIVIL LIBERTIES UNION

CIVIL RIGHTS OF

FOUNDATION OF SOUTHERN

5 SAN FRANCISCO BAY AREA

CALIFORNIA

131 Steuart St #400

1313 West Eighth Street

6 San Francisco, CA 94105

Los Angeles, CA 90017

Telephone: (415) 814-7631

Telephone: (213) 977-9500

7

Facsimile: (213) 977-5297

JUDAH LAKIN (SBN 307740)

8 judah@lakinwille.com

Attorneys for Petitioners-Plaintiffs

AMALIA WILLE (SBN 293342)

*Admission to the bar of this Court Pending

9 amalia@lakinwille.com

**Motion for Admission Pro Hac Vice

LAKIN & WILLE LLP

Forthcoming

10 1939 Harrison Street, Suite 420

Oakland, CA 94612

11 Telephone: (510) 379-9216

Facsimile: (510) 379-9219

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NOTICE OF MOTION, MOTION AND MEMO IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER

1

TABLE OF CONTENTS

2 NOTICE OF MOTION AND MOTION ........................................................................................ 1

3

I. INTRODUCTION .................................................................................................. 2

4

II. FACTUAL BACKGROUND ................................................................................. 3

5

A. COVID-19 Has Killed Thousands of People, and While the

Effort to Stop the Outbreak Has Transformed Human Behavior

6

Around the World, ICE’s Response Has Been Haphazard and

Wholly Inadequate. ..................................................................................... 3

7

B. COVID-19 Poses Grave Risk of Harm, Including Serious Illness

8

or Death, to Older Adults and Those with Certain Medical

Conditions. .................................................................................................. 6

9

C. People Detained at Mesa Verde and Yuba Face an Elevated

10

Risk of COVID-19 Transmission. .............................................................. 7

11

D. Plaintiffs Are Vulnerable to Serious Illness or Death if Infected

by COVID-19.............................................................................................. 9

12

E. In Light of Current Conditions, Public Health Experts Agree that

13

People Most Vulnerable to COVID-19 Should Be Released from

ICE Detention Facilities Immediately. ..................................................... 12

14

III. DETENTION PUTS PLAINTIFFS AT AN UNCONSTITUTIONALLY

15

HIGH RISK OF COVID-19 AND THE EQUITIES STRONGLY

FAVOR RELEASE UNDER CURRENT EXTRAORDINARY

16

CIRCUMSTANCES. ............................................................................................ 13

17

A. Legal Standard .......................................................................................... 13

18

B. Plaintiffs Are Likely to Succeed on the Merits......................................... 14

19

1. The Constitution Protects Immigrant Detainees Against

Exposure to Harmful Diseases...................................................... 14

20

2. The Harm to Plaintiffs from the Threat of COVID-19 is

21

Excessive in Relation to the Government’s Interest,

in Violation of Substantive Due Process. ..................................... 16

22

3. The Court Has Authority to Order Plaintiffs’ Release as

23

the Sole Effective Remedy for the Constitutional

Violation. ...................................................................................... 18

24

C. The Remaining Factors Weigh Heavily in Favor of Granting a

25

Temporary Restraining Order. .................................................................. 20

26

1. Plaintiffs Are Likely to Suffer Irreparable Harm Absent

the Temporary Restraining Order. ................................................ 20

27

28

i NOTICE OF MOTION, MOTION AND MEMO IN SUPPORT OF MOTION FOR TEMPORARY
RESTRAINING ORDER

1

2. The Public Interest and Balance of Equities Weigh

Heavily in Plaintiffs’ Favor. ......................................................... 21

2

3. The Court Should Not Require Plaintiffs to Provide

3

Security Prior to Issuing a Temporary Restraining Order. ........... 23

4

IV. CONCLUSION..................................................................................................... 23

5

6

7

8 9 10 11 12

13 14 15 16 17

18 19 20 21 22

23 24 25 26 27

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ii NOTICE OF MOTION, MOTION AND MEMO IN SUPPORT OF MOTION FOR TEMPORARY
RESTRAINING ORDER

1

TABLE OF AUTHORITIES

2

Page(s)

3 CASES

4 Bell v. Wolfish, 441 U.S. 520 (1979).................................................................................................................. 15
5 Brown v. Plata,
6 563 U.S. 493 (2011).................................................................................................................. 19

7 Cooper v. Aaron, 358 U.S. 1 (1958)...................................................................................................................... 17
8 D’Alessandro v. Mukasey,
9 628 F.Supp.2d 368 (W.D.N.Y. 2009) ....................................................................................... 16

10 Dawson v. Asher, 2020 WL 1304557 (W.D. Wash. 2020) .......................................................................... 5, 17, 18
11 DeShaney v. Winnebago County Dept. of Soc. Servs.,
12 489 U.S. 189 (1989).................................................................................................................. 14

13 Duran v. Elrod, 713 F.2d 292 (7th Cir. 1983) .................................................................................................... 19
14 Farmer v. Brennan,
15 511 U.S. 825 (1994).................................................................................................................. 15

16 Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974) .................................................................................................. 14
17 Helling v. McKinney,
18 509 U.S. 25 (1993)...................................................................................................... 2, 4, 14, 15

19 Hernandez v. Sessions, 872 F.3d 976 (9th Cir. 2017) .............................................................................................. 21, 22
20 Hutto v. Finney,
21 437 U.S. 678 (1978).................................................................................................................. 14

22 In re Brichard Securities Litigation, 788 F. Supp. 1098 (N.D. Cal. 1992) ......................................................................................... 17
23 In the Matter of the Extradition of Alejandro Toledo Manrique,
24 2020 WL 1307109 (N.D. Cal. 2020) ................................................................................. passim

25 Indep. Living Cent. of S. California, Inc. v. Shewry, 543 F.3d 1047 (9th Cir. 2008) .................................................................................................. 21
26 Jennings v. Rodriguez,
27 2016 WL 6276890 (U.S. 2016)................................................................................................. 23

28

iii NOTICE OF MOTION, MOTION AND MEMO IN SUPPORT OF MOTION FOR TEMPORARY
RESTRAINING ORDER

1 Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004) ........................................................................................................ 15
2 Jorgensen v. Cassiday,
3 320 F.3d 906 (9th Cir. 2003) .................................................................................................... 23
4 Judalang v. Chertoff, 562 F.Supp.2d 1119 (S.D. Cal. 2008)....................................................................................... 20
5 King v. Cty. of Los Angeles,
6 885 F.3d 548 (9th Cir. 2018) .................................................................................................... 15
7 Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015) .............................................................................................................. 16
8 Lopez v. Heckler,
9 713 F.2d 1432 (9th Cir. 1983) .................................................................................................. 21
10 M.R. v. Dreyfus, 663 F.3d 1100 (9th Cir. 2011) .................................................................................................. 21
11 Melendres v. Arpaio,
12 695 F.3d 990 (9th Cir. 2012) .............................................................................................. 20, 21
13 Munaf v. Geren, 553 U.S. 674 (2008).................................................................................................................. 19
14 Orantes–Hernandez v. Smith,
15 541 F. Supp. 351 (C.D. Cal. 1982) ........................................................................................... 23
16 Padilla v. U.S. Immigration & Customs Enforcement, 387 F.Supp.3d 1219 (W.D. Wash. 2019).................................................................................. 20
17 Ramos v. Sessions,
18 293 F.Supp.3d 1021 (N.D. Cal. Mar. 13, 2018) ....................................................................... 20
19 Rodriguez v. Marin, 909 F.3d 252 (9th Cir. 2018) .................................................................................................... 17
20 Sales v. Johnson,
21 2017 WL 6855827 (N.D. Cal. 2017) ........................................................................................ 20
22 Stone v. City & Cty. of San Francisco, 968 F.2d 850 (9th Cir. 1992) .................................................................................................... 18
23 Stuhlbarg Int’l Sales Co. v. John D. Brush & Co.,
24 240 F.3d 832 (9th Cir. 2001) .................................................................................................... 13
25 All. for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) ............................................................................................ 13, 14
26 Toussaint v. Rushen,
27 553 F. Supp. 1365 (N.D. Cal. 1983) ......................................................................................... 23
28
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1 United States v. Barkman, 2020 U.S. Dist. LEXIS 45628 *3, 8 (D. Nev. March 17, 2020)............................................... 19
2 United States v. Raihan,
3 No. 20-cr-68, ECF. No. 20 (E.D.N.Y. Mar. 12, 2020) ............................................................. 19
4 United States v. Salerno, 481 U.S. 739 (1987).................................................................................................................. 17
5 United States v. Stephens,
6 2020 WL 1295155 (S.D.N.Y. 2020)......................................................................................... 19
7 Unknown Parties v. Johnson, 2016 WL 8188563 (D. Ariz. 2016)........................................................................................... 16
8 Unknown Parties v. Nielsen,
9 2020 WL 813774 (D. Ariz. 2020)............................................................................................. 17
10 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008)...................................................................................................................... 13
11 Xochihua-Jaimes v. Barr,
12 F.3d 18-71460 (9th Cir. 2020) .............................................................................................. 2, 18
13 Youngberg v. Romeo, 457 U.S. 307 (1982).................................................................................................................. 15
14 Zadvydas v. Davis,
15 533 U.S. 678 (2001)............................................................................................................ 14, 16
16 Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) .............................................................................................................. 19
17 STATUTES
18 8 U.S.C. § 1226................................................................................................................. 17, 18, 20
19 8 U.S.C. § 1182............................................................................................................................. 20
20 REGULATIONS
21 8 C.F.R. § 212 ............................................................................................................................... 20
22 OTHER AUTHORITIES
23 N.D. Cal. Civ. L. R. 7 ..................................................................................................................... 1
24 N.D. Cal. Civ. L.R. 65 .................................................................................................................... 1
25 U.S. Gov’t Accountability Office, GAO-15-26, Alternatives to Detention:
26 Improved Data Collection and Analyses Needed to Better Assess Program Effectiveness 10-11 (Nov. 2014)............................................................................................... 22
27
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NOTICE OF MOTION AND MOTION 1

2

PLEASE TAKE NOTICE that, as soon as they may be heard, Plaintiffs will and hereby

3 do move, pursuant to Civil L. R. 7-1 and 65-1, for a temporary restraining order directing that

4 they be immediately released from their current confinement at the Mesa Verde ICE Processing

5 Facility and the Yuba County Jail, under appropriate conditions as may be deemed necessary by

6 the Court. This motion is supported by the following Memorandum of Points and Authorities, by

7 the Petition for Writ of Habeas Corpus and Complaint for Injunctive and Declaratory Relief, and

8 by declarations of each of the Plaintiffs, or their attorneys on their behalf, and various experts, all

9 of which are filed contemporaneously.

10

Pursuant to Civil L.R. 65-1(b), on March 24, 2020 at 9 a.m., counsel for Plaintiffs left a

11 voice message for Assistant U.S. Attorney Sara Winslow at the U.S. Attorney’s Office for the

12 Northern District of California and sent an e-mail to Ms. Winslow to advise of the emergency

13 reasons requiring them to seek a temporary restraining order. In addition, Plaintiffs’ Counsel e-

14 mailed copies of (1) the Petition for a Writ of Habeas Corpus, (2) Complaint and Motion for

15 Temporary Restraining Order, and (3) [Proposed] Order to Ms. Winslow.

16

17

18

19

20

21

22

23

24

25

26

27

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MEMORANDUM OF POINTS AND AUTHORITIES 1

2 I. INTRODUCTION

3

Plaintiffs, civil immigration detainees whose age and/or underlying medical conditions

4 place them at elevated risk of serious illness or death from contracting COVID-19, seek

5 emergency relief from this Court. Despite an overwhelming consensus of public health experts—

6 including two doctors contracted by the Department of Homeland Security—Defendants have

7 inexplicably and unjustifiably refused to reduce the number of people in detention in the face of

8 COVID-19, beginning with the most medically vulnerable. Authorities nationwide are taking 9 drastic measures necessary to contain this deadly pandemic. California jails released thousands 10 of people incarcerated in the criminal justice system to avoid risking the lives of detainees and 11 the community at large. “In light of the rapidly escalating public health crisis, which public 12 health authorities predict will especially impact immigration detention centers,” the Ninth Circuit

13 yesterday “order[ed] that [an immigration detainee] be immediately released from detention[.]”

14 Xochihua-Jaimes v. Barr, -- F.3d --, No. 18-71460 (9th Cir., March 23, 2020) (for publication).

15 Plaintiffs ask this Court to follow suit and order their immediate release.

16

Plaintiffs’ health conditions make them exceptionally vulnerable to serious illness or

17 death if they contract COVID-19. The Eighth Amendment protects against “a condition of

18 confinement that is sure or very likely to cause serious illness and needless suffering the next

19 week or month or year.” Helling v. McKinney, 509 U.S. 25, 33 (1993). As civil detainees,

20 Plaintiffs enjoy greater protections under the Due Process Clause than prisoners do under the

21 Eighth Amendment. COVID-19’s danger renders Plaintiffs’ ongoing detention unconstitutional.

22

This is the quintessential scenario in which emergency relief is necessary to avert

23 irreparable harm. Public health experts agree that Plaintiffs will experience serious injury or 24 death if infected by COVID-19, and that the spread of COVID-19 to immigration detention 25 facilities is inevitable. Those experts agree, moreover, that reducing the number of people 26 detained, starting with those who are most vulnerable to COVID-19, serves the public interest by 27

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1 reducing the risk of widespread infection in a closed environment that will overwhelm demands

2 on the local health care infrastructure, especially intensive care units. With ankle-monitoring and

3 other alternatives to detention available, if necessary, ICE’s interest in Plaintiffs’ current

4 detention pales in comparison to the extraordinary equities in favor of release. The Court should

5 grant this motion and order Plaintiffs’ release.

6 II. FACTUAL BACKGROUND

7

A. COVID-19 Has Killed Thousands of People, and While the Effort to Stop the

Outbreak Has Transformed Human Behavior Around the World, ICE’s

8

Response Has Been Haphazard and Wholly Inadequate.

9

The medical information described below is based on the accompanying declarations of

10 five physicians with first-hand knowledge of detainee health in immigration detention facilities:

11 Robert Greifinger, MD, who has a long career of managing medical care for inmates (Greifinger 12 ¶ 11); Marc Stern, MD, who has deep experience with the immigration detention system (Stern ¶

13 1); Ranit Mishori, MD, MHS, FAAFP, who has studied medical outcomes of individuals in

14 correctional facilities (Mishori ¶ 2); Jonathan Louis Golob, a professor specializing in infections

15 in immunocompromised patients (Golob ¶ 2); and Allen S. Keller, MD, who has deep experience

16 reporting on conditions of detention in ICE facilities (Keller ¶¶ 2-3). Plaintiffs also present the

17 declarations of public health expert Sandra Hernandez, President and CEO of the California

18 Healthcare Foundation and the former Director of Health for the City and County of San

19 Francisco (Hernandez ⁋ 1); and Andrew Lorenzen-Strait, former Deputy Assistant Director of

20 Enforcement and Removal Operations for ICE (Lorenzen-Strat ⁋ 2).

21

It is now beyond dispute that COVID-19 is a rapidly escalating global pandemic with

22 devastating effects, particularly on the elderly and immunocompromised. Golob ⁋⁋ 3, 8; Stern ⁋

23 5; Mishori ⁋ 9. The numbers of confirmed diagnoses and deaths cited on any given day quickly

24 lose meaning as the figures grow exponentially. Golob ⁋ 2; Mishori ⁋ 6. In any event, the actual

25 number of infected is far higher that what is reported, due to a shortage of diagnostic tests.

26 1 All of the declarations submitted herewith will be cited using this shorthand, e.g., name of
27 declarant followed by paragraph number.
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1 Hernandez ⁋⁋ 8, 11; Mishori ⁋ 6. Alarming projections by the Centers for Disease Control and

2 Prevention (“CDC”) indicate that over 200 million people in the United States could become

3 infected with COVID-19 over the course of the epidemic without effective public health

4 intervention, with as many as 1.5 million deaths in the most severe projections. Golob Decl. ¶ 11.

5

There is no known vaccine, treatment, or cure for COVID-19. Golob ¶ 10. Because the

6 virus has not been contained, the only available measures to effectively reduce the risk of

7 infection are social distancing and improved hygiene. Id.; Hernandez ¶ 14.

8

In a matter of days, COVID-19’s threat of mass fatalities has transformed American life.

9 Recognizing the public health threats posed by interpersonal proximity, cities and states have

10 responded by imposing unprecedented restrictions on human interaction. On March 16, seven

11 Bay Area counties established “shelter in place” orders, and the entire State of California

12 followed three days later. Hernandez ¶ 18.

13

Many of the state’s largest jails have released people detained in the criminal justice

14 system to protect those people and the community from COVID-19. Alameda County’s Santa 15 Rita Jail released 250 people;2 Los Angeles County released more than 1,000;3 Kern County,

16 where Mesa Verde is located, has released dozens.4 The New York Board of Corrections called

17 for “bold and urgent action” to “drastically reduce the [] jail population.”5 The Supreme Court of

18 New Jersey issued an order creating a presumption of release for every person serving a sentence

19

20

21 2 See Maura Dolan, et al., California releases more jail inmates amid coronavirus crisis, L.A. Times (March 20, 2020), https://www.latimes.com/california/story/2020-03-20/california-
22 releases-more-jail-inmates-amid-coronavirus-crisis? 3 See Alene Tchekmedyian, et al., L.A. County releasing some inmates from jail to combat
23 coronavirus, L.A. Times (March 16, 2020), https://www.latimes.com/california/story/2020-0316/la-jail-population-arrests-down-amid-coronavirus
24 4 See Quinn Wilson, KCSO: Inmate releases based on mitigating spread of COVID-19, reserved for non-violent offenders, Bakersfield Californian (March 19, 2020),
25 https://www.bakersfield.com/news/breaking/kcso-inmate-releases-based-on-mitigating-spreadof-covid-/article_10ffc8a2-6a3d-11ea-b7b5-7b06de300554.html
26 5 Board of Correction City of New York, Letter from BOC re NYC Jails and Covid-19 (March 19, 2020) available at https://www1.nyc.gov/assets/boc/downloads/pdf/News/covid-19/Letter-
27 from-BOC-re-NYC-Jails-and-COVID-19-2020-03-21.pdf
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1 in New Jersey’s county jails.6 “These are extraordinary times,” Magistrate Judge Thomas S.

2 Hixson recently observed, in ordering the release of an individual on bail after taking into

3 account his risk of vulnerability to COVID-19. In the Matter of the Extradition of Alejandro

4 Toledo Manrique, Case No. 19-mj-71055, 2020 WL 1307109, at *1 (N. D. Cal. March 19, 2020).

5

ICE’s response to the threats the pandemic poses to immigrants, by contrast, has been

6 singularly resistant. Last week as Californians began sheltering in place in compliance with

7 public health directives, ICE’s Los Angeles Field Office executed pre-dawn home raids to cram

8 even more immigrants into ICE detention centers. The Field Office Director stated to the L.A.

9 Times: “We couldn’t factor this in, right? This COVID-19 and the precautions that everybody’s

10 taking . . . . We just have to continue to go with the same game plan that we’ve been doing.”7

11 Following public outcry, ICE issued a statement recognizing the need for alternatives to

12 detention for new arrestees to protect public health, but has inexplicably refused to apply that

13 same logic to its current detainees.8 ICE went so far as to claim, in response to a lawsuit for the

14 release of vulnerable ICE detainees, that “Plaintiffs’ assertion that detention per se poses an

15 increased risk of health complications or death from COVID-19 is purely speculative.” Defs’

16 Opp. at 8, Dawson v. Asher, ECF No. 28, Case No. 20-409 (W.D. Wash. Mar. 18, 2020).

17

While ICE refused to act to protect detainees, on March 19, 2020, two medical subject

18 matter experts for the Department of Homeland Security’s Office of Civil Rights and Civil

19 Liberties wrote to Congress that, in order “to implement immediate social distancing to reduce

20 the likelihood of exposure to detainees, facility personnel, and the general public, it is essential

21 to consider releasing all detainees who do not pose an immediate risk to public safety.” Ltr.

22 from Scott A. Allen, MD and Josiah Rich, MD, MPH to Cong’l Cmte. Chairpersons (March 19,

23

24 6 https://www.aclu-nj.org/files/5415/8496/4744/2020.03.22__Consent_Order_Filed_Stamped_Copy-1.pdf
25 7 Brittny Mejia, With masks at the ready, ICE agents make arrests on first day of California coronavirus lockdown, L.A. Times, Mar. 18, 2020,
26 https://www.latimes.com/california/story/2020-03-17/for-ice-agents-its-business-as-unusual-dayafter-sweeping-coronavirus-order.
27 8 See https://www.ice.gov/covid19.
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1 2020) (“Allen & Rich Ltr.”) (Exh. A to Freeman Decl.). On multiple occasions since at least

2 February 25, 2020, these experts have sounded the alarm within the agency on the imminent

3 risks to the health of immigrant detainees and the public at large presented by COVID-19 unless

4 swift mitigation measures, including decreasing the number of immigrant detainees, are taken.

5 Id.

6

Inside the facilities, moreover, immigrants say that ICE is not consistently taking even

7 the less aggressive precautionary measures the agency claims it is taking. As set forth more fully

8 below, the declarations of the Plaintiffs and other residents of Mesa Verde and Yuba, as well as

9 attorneys who have recently visited there, demonstrate the frightening consequences of ICE’s

10 stubborn resistance to taking meaningful steps to mitigate the risk of infection. According to the

11 two DHS whistleblower experts, “the track record of ICE facilities implementing [early

12 screening, testing, isolation and quarantine] protocols historically has been inconsistent.” Allen

13 & Rich Ltr. Moreover, even if ICE was consistently taking these precautions, the DHS experts

14 explain that they “won’t be enough” without rapidly “releas[ing] those who do not pose an 15 immediate danger to public safety.”9

16

B. COVID-19 Poses Grave Risk of Harm, Including Serious Illness or Death, to

Older Adults and Those with Certain Medical Conditions. 17

18

People over the age of fifty face greater chances of serious illness or death from COVID-

19 19. Golob ¶ 3; Stern ¶ 5. The Centers for Disease Control has concluded that certain underlying

20 medical conditions increase the risk of serious COVID-19 symptoms for people of any age.

21 These include lung disease, heart disease, chronic liver or kidney disease, diabetes, epilepsy,

22 compromised immune systems (such as from cancer, HIV, or an autoimmune disease), blood

23 disorders (including sickle cell disease), inherited metabolic disorders, stroke, developmental

24

25 9 Josiah Rich, Scott Allen & Mavis Noah, We Must Release Prisoners to Lessen the Spread of
26 Coronavirus, The Washington Post, Mar. 17 2020, https://www.washingtonpost.com/opinions/2020/03/17/we-must-release-prisoners-lessen-spread-
27 coronavirus/.
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1 delay, and pregnancy.10 Id. For people with these risk factors, the consequences of COVID-19

2 can be severe, including temporary or permanent damage to the heart and lungs or death. Golob

3 ¶ 7. These complications can manifest at an alarming pace. Although individuals may be

4 asymptomatic for up to 14 days and may transmit the virus during this time, they can show the

5 first symptoms of infection in as little as two days after exposure, and their condition can

6 seriously deteriorate in as little as five days or sooner. Stern ¶ 4.

7

Most people in higher risk categories who develop severe effects of COVID-19 will need

8 advanced supportive care, requiring highly specialized equipment that is in limited supply, and

9 an entire team of care providers, including 1:1 or 1:2 nurse to patient ratios, respiratory

10 therapists, and intensive care physicians. Golob ¶ 8.11 Because severe COVID-19 cases require

11 intensive medical care, an outbreak can “quickly overwhelm a health system,” particularly in

12 medically under-resourced rural areas. Greifinger ¶ 9; Hernandez ⁋ 23.

13

The need for care, including intensive care, and the likelihood of lasting complications

14 and death, is about ten times higher from COVID-19 infection than from influenza. Golob ¶ 4.

15 For people in the highest risk populations, the fatality rate of COVID-19 infection is about

16 fifteen percent. Id.

17

C. People Detained at Mesa Verde and Yuba Face an Elevated Risk of COVID-

19 Transmission. 18

19

People in congregate environments—places where people live, eat, and sleep in close

20 proximity—face increased danger of contracting COVID-19, as evidenced by the rapid spread of

21 the virus in cruise ships and nursing homes. Golob ¶ 12. Immigration detention facilities have

22 even an even greater risk of infectious spread than in the community and other congregate

23 settings because of crowding, the proportion of vulnerable people detained, often deficient

24 10 This list is evolving. On March 23, 2020, the CDC updated its previous list as to who is at
25 higher risk of serious illness if they were to contract COVID-19. See https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/people-at-higher-risk.html
26 11 Even some younger and healthier people who contract COVID-19 may require supportive care, which includes supplemental oxygen, positive pressure ventilation, and in extreme cases,
27 extracorporeal mechanical oxygenation. Golob ¶ 5; Greifinger ¶ 6.
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1 hygiene and sanitation, and scant medical resources. Greifinger ¶¶ 14-20; Mishori ¶¶ 16-22;

2 Keller ¶¶ 6-11. People live in close quarters and may be unable to maintain the recommended

3 distance of six feet from others; there is often insufficient capacity for isolation of potentially or

4 actually infected people; people share or touch objects used by others; toilets, sinks, and showers

5 are shared, without disinfection between each use; food preparation and service is communal

6 with little opportunity for surface disinfection; detainees and staff come and go frequently. Id.

7 This is particularly problematic because people can transmit the disease while they are still

8 asymptomatic. Keller ¶ 13. Dr. Keller concludes that even under normal conditions, the health

9 care provided in immigration detention facilities is often unsafe, and this conclusion is backed up

10 by numerous recent governmental, non-governmental and investigative reports. Keller ¶ 14. Dr.

11 Greifinger, who currently monitors medical care for federal courts in three large county jails,

12 concludes it is “highly likely, and perhaps inevitable” that COVID-19 will reach immigration

13 detention facilities in California, and that these facilities “are not prepared to prevent the spread

14 of COVID-19, treat those who are most medically vulnerable, and contain any outbreak.”

15 Greifinger ¶¶ 13, 23. In fact, because the virus is communicated by air or touch, it is more likely

16 to spread in these congregate environments; for this reason, detention facilities and jails have

17 repeatedly been the sites of past outbreaks of infectious diseases. Mishori ¶¶ 24, 26-27. During 18 the H1N1 influenza epidemic in 2009, jails and prisons were sites of severe outbreaks. Id.12

19 There have already been COVID-19 outbreaks in jails which are ill-equipped to respond.

20 Greifinger ⁋ 24.

21

Recently observed conditions at Mesa Verde and Yuba confirm experts’ worst fears.

22 Mesa Verde is an extremely compact facility where people sleep in bunk beds spaced only a few

23 feet apart and spend most of their time during the day in dorms that house up to 100 detainees.

24 Knox ¶ 9. Sanitary practices are poor; visitors are not routinely screened; cleaning is done by

25 12 See also J. David McSwane, ICE Has Repeatedly Failed to Contain Contagious Diseases, Our
26 Analysis Shows. It’s a Danger to the Public, Pro Publica (Mar. 20, 2020), available at: https://www.propublica.org/article/ice-has-repeatedly-failed-to-contain-contagious-diseases-our-
27 analysis-shows-its-a-danger-to-the-public
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1 detainees sharing rags; and soap and shampoo are not sufficient unless detainees can pay

2 exorbitant prices to buy them. Id. ¶¶ 11-13. Dormitory bathrooms lack basic hygiene supplies

3 such as toilet paper and soap. Id. ¶ 5. One client reported that these conditions had not changed

4 as recently as March 19, 2020. Id. ¶ 15. At Mesa Verde, an attorney visiting as recently as March

5 13, 2020 was denied a request to bring sanitizer with her and observed no hand sanitizer

6 anywhere in the facility or any place to wash hands in the room where attorney visits are

7 conducted. Id. ¶ 6. On this same day, no one was observed wearing masks; no signs were posted

8 providing any information about coronavirus; and some detainees had not even been given any

9 soap. Id. ¶¶ 7-8. The facility lacks the medical resources to respond to even basic medical issues,

10 with detainees being denied necessary medications, or the wrong medication being given. Id. ¶ 4.

11

At Yuba, based on the direct observations of an attorney who conducts frequent site

12 visits, detainees typically sleep in bunks that are less than three feet from each other; many of the

13 housing units are extremely compact. Kavanagh ¶¶ 1, 3, 5, 10-11. Meals are served in group

14 settings by detainees or county jail inmates with no instruction concerning sanitation. Id. ¶¶ 3-4.

15 Cleaning is done by the detainees themselves, using dirty buckets of mop water and reused rags.

16 Id. ¶ 4. Yuba regularly fails to provide adequate medical care to ICE detainees suffering from

17 serious conditions such as lymphoma, skin cancer and head injuries; detainees consistently

18 complaint that requests for medical visits are ignored. Id. ¶¶ 14-15

19

D. Plaintiffs Are Vulnerable to Serious Illness or Death if Infected by COVID-

19.

20

21

Plaintiffs’ experiences, and those of non-Plaintiff declarants13 confirm, in the starkest of

22 terms, what the experts and attorney visitors are saying. It is difficult, if not impossible, within

23 the confines of this brief, to adequately convey the nightmarish effects on Plaintiffs of their

24 ongoing detention by Defendants during the current pandemic. In light of their age and/or

25 compromised health, Plaintiffs live in constant terror of contracting COVID-19.

26 13 Most of the accompanying detainees’ declarations are submitted by Plaintiffs; several
27 additional declarations are submitted by detainees who are not Plaintiffs.
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1

Plaintiffs’ detention is imposing an unspeakable physical and mental toll on each of

2 them.14 Plaintiffs already know what the experts are saying: that the conditions of their

3 confinement—including living in close quarters with 100 or more other detainees,15 close contact

4 with guards and staff,16 the constant influx and transfer of new detainees,17 being forced to clean 5 toilets and common areas without adequate protective gear,18 and being denied adequate personal

6 hygiene supplies or clean clothing19—increase their likelihood of contracting the virus. They also

7 understand, and are terrified of, the high likelihood that, if they do contract the virus, they would 8 suffer serious or even fatal consequences.20 They already suffer from a serious lack of adequate

9

10

11 14 Due to the difficulty of getting signed declarations from Plaintiff detainees on short notice,
12 some declarations have been submitted by their attorneys, attesting to statements made by their clients. In these instances, the declaration is referenced using the attorney name and, in
13 parentheses, the client name. E.g., “Knox (Trigueros Acevedo) ⁋ _.” 15 Medina Calderon ⁋ 16 (50 people in sleeping area, less than 6 feet apart); Bent ⁋ 8 (dorms
14 contain 90-100 people, with more arriving daily); Bent ⁋ 11 (“There is no room for the other detainees and me to stay apart from each other …. we are like sardines together….”); Yamane
15 (Uc Encarnacion) ⁋ 12 (“near to 50 people crammed into the same room….”); Bahena Ortuño ⁋ 12 (50 beds in dormitory with “less than the space of a chair between each bed. It is impossible
16 not to be close to people.”); Joseph ⁋⁋ 9-10 (90-100 people in unit; “if I stretch my arms out while lying down in my bunk bed, I can touch the other bunks on both sides of me.”); id. ⁋⁋ 11-
17 12 (social distancing impossible at mealtimes); Upshaw (Lavrus) ⁋ 10; Minchaca Ramos ⁋ 12 (80-90 in dorm, “very close together”).
18 16 Buendia Alas ⁋ 8; Upshaw (Lavrus) ⁋ 12; Minchaca Ramos ⁋ 12. 17 Knox (Trigueros Acevedo) ⁋ 15; Ruiz Tovar ⁋⁋ 7-8; Bent ⁋ 8; Vasquez Cruz ⁋ 11; Patel
19 (Quinteros) ⁋ 9; Martinez Lopez ⁋ 8; Minchaca Ramos ⁋ 12 (“as soon as they deport 5 or 6 people, they replace them right away.”).
20 18 Ruiz Tovar ⁋ 13 (told to clean bathrooms and dorms without protective gear); Medina Calderon ⁋ 15 (required to clean toilets and sinks without adequate protection); Claude Bent ⁋⁋
21 9-10 (paid a dollar a day to clean dorms, including bathrooms, but denied bleach or hand sanitizer); Vasquez Cruz ⁋ 8 (required to clean common areas and bathrooms without “any real
22 supplies to do this”); id. ⁋ 11 (while on cleaning crew, required to sign that ICE provided rubber gloves and work boots, but ICE does not provide them; cleaning crews wear cloth shoes that get
23 wet.). 19 Medina Calderon ⁋⁋ 17-18 (detainees have to wash their underwear in communal shower;
24 detainees issued used clothing from previous detainees); Medina Calderon ⁋ 25 (for five days, 50 inmates had to share one 2-inch piece of soap); Vasquez Cruz ⁋ 10 (detainees often have to buy
25 their own soap); Yamane (Uc Encarnacion) ⁋ 12 (allowed to change clothing only twice per week); Bahena Ortuño ⁋ 9; Martinez Lopez ⁋ 7.
26 20 Wolfe-Roubatis (Montoya Amaya) ⁋ 12; Buendia Alas ⁋ 7; Knox (Espinoza Ayala) ⁋ 10; Weisner (Torres Murillo) ⁋ 10; Ruiz Tovar ⁋ 14; Medina Calderon ⁋ 20; Bent ⁋ 7; Yamane (Uc
27 Encarnacion) ⁋ 14; Bahena Ortuño ⁋⁋ 8, 14; Patel (Quinteros) ⁋ 8; Upshaw (Lavrus) ⁋ 15.
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1 medical care.21 They are understandably frightened that they will contract the virus,22 and that, in

2 the event of an outbreak of the virus in their detention centers, there is little or no hope that they

3 will receive appropriate treatment.23

4

Plaintiffs range in age from 28 to 82.24 They suffer from a variety of physical and

5 emotional disorders, including tuberculosis,25 neurocysticercosis (a parasitic infection affecting

6 the brain),26 depression and PTSD,27 hypertension,28 colitis,29 diabetes,30 and asthma.31 Some

7 Plaintiffs and non-plaintiff declarants have recently experienced symptoms including vomiting, 8 diarrhea, abdominal pain, coughing,32 or respiratory problems,33 but have not received any

9 definitive diagnosis or testing for coronavirus.34

10

All of them have friends or family eagerly waiting to care for them upon their release

11 from detention and help them comply with any “shelter in place” requirements and public health 12 guidelines.35

13

14 21 Wolfe-Roubatis (Montoya Amaya) ⁋ 11; Ruiz Tovar ⁋ 11; Medina Calderon ⁋⁋ 9, 13-14; Medina Calderon ⁋⁋ 23-24; Vasquez Cruz ⁋ 7 (“It is like the guards think we are animals; they
15 do not care about our health.”); Bahena Ortuño ⁋⁋ 6-7 (denied medications); Martinez Lopez ⁋ 5 (medical equipment not cleaned between uses); Joseph ⁋ 18 (“Medical care is limited … If
16 someone is sick, they don’t have a place to go, they just stay in their bunk.”). 22 Buendia Alas ⁋ 7; Medina Calderon ⁋ 19 (“The coronavirus has caused worry, anxiety, and
17 panic among the detainees at Yuba”); Joseph ⁋⁋ 15, 17 (“I am extremely stressed … we are living in a petri dish.”).
18 23 Ruiz Tovar ⁋ 14 (“As more detainees have symptoms, there are more requests [for medical treatment], medical gets overwhelmed and their response delays [sic].”); Vasquez Cruz ⁋ 12 (“I
19 do not think there are enough doctors and nurses to give us care if many of us get sick at once.”). 24 Knox (Espinoza Ayala) ⁋ 3; Waldron (Solorio Lopez) ⁋ 3.
20 25 Wolfe-Roubatis (Montoya Amaya) ⁋ 6; Joseph ⁋ 14. 26 Wolfe-Roubatis (Montoya Amaya) ⁋⁋ 8-9.
21 27 Wolfe-Roubatis (Montoya Amaya) ⁋ 14; Weisner (Torres Murillo) ⁋ 8. 28 Buendia Alas ⁋ 5; Weisner (Torres Murillo) ⁋ 8; Vasquez Cruz ⁋ 4; Bahena Ortuño ⁋ 6; Patel
22 (Quinteros) ⁋ 5; Upshaw (Lavrus) ⁋ 5. 29 Knox (Trigueros Acevedo) ⁋ 14.
23 30 Medina Calderon ⁋ 6; Vasquez Cruz ⁋ 3; Bahena Ortuño ⁋ 6; Upshaw (Lavrus) ⁋ 5. 31 Bent ⁋ 4; Joseph ⁋ 13; Yamane (Uc Encarnacion) ⁋ 5.
24 32 Ruiz Tovar ⁋ 10; Patel (Quinteros) ⁋ 8. 33 Ruiz Tovar ⁋ 10; Yamane (Uc Encarnacion) ⁋ 11; Minchaca Ramos ⁋ 16.
25 34 Knox (Espinoza Ayala) ⁋⁋ 6-8; Yamane (Uc Encarnacion) ⁋ 11; Patel (Quinteros) ⁋ 8; Martinez Lopez ⁋ 9; Upshaw (Lavrus) ⁋ 9; Minchaca Ramos ⁋⁋ 7, 11.
26 35 Wolfe-Roubatis (Montoya Amaya) ⁋ 17; Buendia Alas ⁋⁋ 12-13; Knox (Espinoza Ayala) ⁋ 12; Knox (Trigueros Acevedo) ⁋ 18; Weisner (Torres Murillo) ⁋ 12; Beaty (Moncada) ⁋ 10;
27 Medina Calderon ⁋ 29; Bent ⁋ 14; Vasquez Cruz ⁋ 13; Yamane (Uc Encarnacion) ⁋⁋ 16-17;
28
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E. In Light of Current Conditions, Public Health Experts Agree that People

1

Most Vulnerable to COVID-19 Should Be Released from ICE Detention

Facilities Immediately. 2

3

Because risk mitigation is the only known strategy that can protect vulnerable groups

4 from COVID-19, and because it is virtually impossible to engage in the necessary social

5 distancing and hygiene required to mitigate the risk of transmission in a congregate environment,

6 public health experts with experience in immigration detention and correctional settings agree

7 that “the most effective mitigation strategy” is to reduce crowding by releasing detainees from

8 custody. Greifinger ¶ 27; Hernandez ¶ 28; Stern ¶¶ 11; Allen & Rich Ltr. at 5 (“it is essential to

9 consider releasing all detainees who do not pose an immediate risk to public safety”) (emphasis

10 in original). Dr. Stern recommends “downsizing of these detention facilities, with priority given

11 to those in high risk of harm due to their age and health status.” Stern ¶ 11. Dr. Greifinger

12 likewise has concluded that “[t]he most urgent need is to remove those who are medically

13 vulnerable, and at risk of the most severe effects of COVID-19 from the heightened risk of

14 transmission found in the congregate setting of the immigration detention facility.” Greifinger ¶

15 25. Dr. Keller reviewed the medical conditions that Plaintiffs report having been diagnosed with

16 and concluded that each of them is “at risk of severe effects of COVID-19 if infected, because of

17 their underlying medical conditions, their advanced age, or both.” Keller ¶ 24.36

18

The release of detainees from Mesa Verde and Yuba is also important for a second

19 reason: it reduces the risk of the spread of disease within the facilities and mitigates the possible

20 effects on the public health systems of the surrounding communities. Reducing the population in

21 a facility allows for greater social distancing, allows easier provision of preventive measures

22 such as soap for handwashing and cleaning supplies for surfaces, and helps the detention staff to

23 Waldron (Solorio Lopez) ⁋ 19; Bahena Ortuño ⁋ 15; Patel (Quinteros) ⁋⁋ 12-13; Martinez Lopez
24 ⁋ 10; Joseph ⁋⁋ 22-23; Upshaw (Lavrus) ⁋ 17; Minchaca Ramos ⁋⁋ 17-18. 36 In the event that vulnerable detainees have been exposed to COVID-19, these experts
25 recommend testing where possible and releasing detainees to a quarantine setting outside of detention in coordination with local health authorities. Greifinger ¶¶ 29-30; Stern ¶ 17. Release
26 would be appropriate even if individuals have symptoms of COVID-19. Released detainees could rest and recuperate at home and should not be in a congregate living situation where they
27 expose others to potential infection. Hernandez ¶ 32.
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1 continue to ensure detainees’ safety, all of which reduce the likelihood of spread of the disease.

2 Stern ¶ 9.37 These measures therefore not only protect the remaining detainee population but also

3 the staff and employees of ICE, who work at these facilities, along with their families and

4 contacts. Id.; Greifinger ¶ 21.

5

Moreover, detention facilities are integral parts of the public health infrastructure of their

6 surrounding communities. The spread of COVID-19 at Mesa Verde or Yuba will have ripple

7 effects in the surrounding community as detainees will need intensive care at local hospitals

8 which would “quickly become overwhelmed in the face of an infectious disease outbreak.”

9 Greifinger ¶ 19; Hernandez ¶¶ 23-25. Reducing the spread and severity of infection inside Mesa

10 Verde and Yuba slows, if not reduces, the number of people who will become ill enough to

11 require hospitalization, which would strain the health and economies of those medically under-

12 resourced communities. Id.

13 III. 14 15

DETENTION PUTS PLAINTIFFS AT AN UNCONSTITUTIONALLY HIGH RISK OF COVID-19 AND THE EQUITIES STRONGLY FAVOR RELEASE UNDER CURRENT EXTRAORDINARY CIRCUMSTANCES.
A. Legal Standard

16

On a motion for a temporary restraining order, the plaintiff “must establish that he is

17 likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of

18 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the

19 public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); Stuhlbarg Int’l

20 Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001) (noting that preliminary

21 injunction and temporary restraining order standards are “substantially identical”). A temporary

22 restraining order may likewise issue where “serious questions going to the merits [are] raised and

23 the balance of hardships tips sharply in [plaintiff’s] favor.” All. for the Wild Rockies v. Cottrell,

24 632 F.3d 1127, 1131 (9th Cir. 2011) (citation omitted). To succeed under the “serious question”

25 37 See also Rich, et al., We Must Release Prisoners to Lessen the Spread of Coronavirus, The
26 Washington Post, Mar. 17 2020 (explaining that “[i]t is essential to understand that, despite being physically secure, jails and prisons are not isolated from the community” and “people
27 continuously enter and leave.”).
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1 test, plaintiffs must show that they are likely to suffer irreparable injury and that an injunction is

2 in the public’s interest. Id. at 1132.

3

B. Plaintiffs Are Likely to Succeed on the Merits.

4

1. The Constitution Protects Immigrant Detainees Against Exposure to

Harmful Diseases.

5

6

Immigrant detainees, even those with prior criminal convictions, are civil detainees held

7 pursuant to civil immigration laws. Zadvydas v. Davis, 533 U.S. 678, 690 (2001). Their

8 constitutional protections while in custody are derived from the Due Process Clause of the Fifth

9 Amendment, which provides protection significantly greater than the Eighth Amendment’s ban

10 on cruel and unusual punishment.

11

Even the Eighth Amendment, however, imposes on the government an affirmative duty

12 to provide conditions of reasonable health and safety to the people it holds in its custody:

13

[W]hen the State takes a person into its custody and holds him there against his

will, the Constitution imposes upon it a corresponding duty to assume some

14

responsibility for his safety and general well-being . . . . The rationale for this

principle is simple enough: when the State by the affirmative exercise of its power

15

so restrains an individual’s liberty that it renders him unable to care for himself,

and at the same time fails to provide for his basic human needs—e.g., food,

16

clothing, shelter, medical care, and reasonable safety—it transgresses the

substantive limits on state action set by the Eighth Amendment[.]

17

18 DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189, 199-200 (1989). Conditions

19 that pose an unreasonable risk of future harm violate the Eighth Amendment’s prohibition

20 against cruel and unusual punishment, even if that harm has not yet come to pass. Thus, prison

21 authorities cannot “ignore a condition of confinement that is sure or very likely to cause serious

22 illness and needless suffering the next week or month or year.” Helling, 509 U.S. at 33. For

23 example, inmates cannot be comingled with others having infectious maladies such as hepatitis

24 and venereal disease. Hutto v. Finney, 437 U.S. 678, 682 (1978); Gates v. Collier, 501 F.2d 1291

25 (5th Cir. 1974). An Eighth Amendment violation is established even though the plaintiff cannot

26 yet “prove that he is currently suffering serious medical problems caused by” the exposure.

27 Helling, 509 U.S. at 32.

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1

The Due Process Clause of the Fifth Amendment provides even greater protection to civil

2 immigrant detainees. While the Eighth Amendment prohibits punishment that is “cruel and

3 unusual,” the Fifth Amendment’s due process protections do not allow “punishment” at all. Bell

4 v. Wolfish, 441 U.S. 520, 535 n.16 (1979) (“Due process requires that a pretrial detainee not be

5 punished.”).

6

Civil detainees are entitled to “more considerate treatment” than their criminal

7 counterparts. Youngberg v. Romeo, 457 U.S. 307, 321-22 (1982); Jones v. Blanas, 393 F.3d 918,

8 933-34 (9th Cir. 2004), cert. denied, 546 U.S. 820 (2005); See also King v. Cty. of Los Angeles,

9 885 F.3d 548, 557 (9th Cir. 2018) (finding presumption of punitive, and thus unconstitutional,

10 treatment where conditions of confinement for civil detainees are similar to those faced by pre-

11 trial criminal detainees). And while convicted persons must show “deliberate indifference” on

12 the part of prison officials to establish a violation of the Eighth Amendment, Farmer v. Brennan,

13 511 U.S. 825, 828 (1994), there is no such requirement for civil detainees challenging their

14 conditions of confinement. Jones, 393 F.3d at 934 (“[T]o prevail on a [Due Process] claim

15 regarding conditions of confinement, the confined individual need not provide ‘deliberate

16 indifference’ on the part of government officials.”) (emphasis added).

17

If placing an inmate in a situation creating an elevated risk of potentially lethal infection

18 constitutes “cruel and unusual punishment” in violation of the Eighth Amendment, as was found

19 in Hutto and Gates, placing a civil detainee in a situation presenting a serious risk of lethal

20 infection is certainly unconstitutional in violation of the Fifth Amendment.38

21

22 38 Notably, the risk of infection need not depend on a current positive test for COVID-19. Cf. In the Matter of the Extradition of Alejandro Toledo Manrique, 2020 WL 1307109, at *1 (“The
23 Court is glad to hear that there are currently no reported cases of COVID-19 at Maguire, but is unsure what that means if people are not being tested. And, . . . symptoms of COVID-19 can
24 begin to appear 2-14 days after exposure, so screening people based on observable symptoms is just a game of catch up. That’s why the Bay Area is on lockdown. We don’t know who’s
25 infected. Accordingly, the government’s suggestion that [petitioner] should wait until there is a confirmed outbreak of COVID-19 in [the detention facility] before seeking release, . . . is
26 impractical. By then it may be too late.”); Golob ⁋ 7 (“A lack of proven cases of COVID-19 in the context of a lack of testing is functionally meaningless for determining if there is a risk of
27 COVID-19 transmission in a community or institution.”).
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2. The Harm to Plaintiffs from the Threat of COVID-19 is Excessive in

1

Relation to the Government’s Interest, in Violation of Substantive

Due Process. 2

3

A condition of confinement for a civil immigration detainee violates the Fifth

4 Amendment “if it imposes some harm to the detainee that significantly exceeds or is independent

5 of the inherent discomforts of confinement and is not reasonably related to a legitimate

6 governmental objective or is excessive in relation to the legitimate governmental objective.”

7 Unknown Parties v. Johnson, No. CV-15-00250-TUC-DCB, 2016 WL 8188563, at *5 (D. Ariz.

8 Nov. 18, 2016), aff’d sub nom. Doe v. Kelly, 878 F.3d 710 (9th Cir. 2017) (citing Kingsley v.

9 Hendrickson, 135 S. Ct. 2466, 2473-74 (2015)). As Dr. Keller concluded, Plaintiffs are each “at

10 risk of severe effects of COVID-19 if infected, because of their underlying medical conditions,

11 their advanced age, or both.” Keller ¶ 24. The risk of serious illness or death from COVID-19

12 unquestionably exceeds “the inherent discomforts of confinement.” Id. In normal times,

13 crowding and close quarters, the sharing of toilets, sinks, and showers, and communal food

14 preparation and service may be considered uncomfortable. But in light of COVID-19, these

15 conditions present a deadly threat to Plaintiffs’ lives. See supra Section II.B-E.

16

This threat vastly outweighs any government interest in Plaintiffs’ confinement. Because

17 immigration proceedings are civil and non-punitive, “[t]here is no sufficiently strong special

18 justification . . . for indefinite civil detention.” Zadvydas, 533 U.S. at 690. If the government’s

19 interest in effectuating removal and protecting the community cannot justify indefinite detention,

20 it surely cannot justify the “potentially permanent” medical harm and death that Plaintiffs could

21 face. See id. at 690-91; cf. D’Alessandro v. Mukasey, 628 F. Supp. 2d 368, 399 (W.D.N.Y. 2009)

22 (considering immigrant’s age and “constellation of serious, debilitating, and progressive health

23 problems” to weigh against flight risk concerns and interest in continued detention).

24

That criminal justice authorities have released masses of people from jails to prevent

25 COVID-19 harms further indicates that Plaintiffs’ confinement violates due process. See supra

26 Section II.A. The relatively higher COVID-19 danger that Plaintiffs now face renders their

27 custody unconstitutional. See Unknown Parties v. Nielsen, CV-15-00250-TUC-DCB, 2020 WL

28
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1 813774, *7 (D. Ariz., Feb. 19, 2020) (holding that Border Patrol conditions of confinement

2 presumptively violated due process because they were more restrictive than conditions for

3 pretrial detainees in jails and prisons).

4

Plaintiffs are likely to prevail regardless of the particular detention authority that

5 Defendants might invoke. Even for those plaintiffs subject to “mandatory” detention under 8

6 U.S.C. § 1226(c), the due process violation presented by these exceptional circumstances would

7 override any general detention mandate. See Cooper v. Aaron, 358 U.S. 1, 18 (1958) (explaining

8 U.S. Constitution’s role as “supreme law of the land”); In re Brichard Securities Litigation, 788

9 F. Supp. 1098, 1112 (N.D. Cal. 1992) (“[C]oncerns” about legislative intent “cannot override the

10 Constitution.”). Indeed, the Ninth Circuit recently noted in another immigration detention case

11 that due process overrides § 1226(c) in certain common circumstances. See Rodriguez v. Marin,

12 909 F.3d 252, 256 (9th Cir. 2018) (“We have grave doubts that any statute that allows for

13 arbitrary prolonged detention without any process is constitutional or that those who founded our

14 democracy precisely to protect against the government’s arbitrary deprivation of liberty would

15 have thought so.”). In any event, ICE has released detainees held pursuant to § 1226(c) for

16 humanitarian reasons, See Lorenzen-Strait ¶ 11, and cannot then object that such relief here

17 would be problematic.39 The exceptional risk COVID-19 poses to Plaintiffs exceeds any interest 18 Defendants might otherwise have in their detention.40

19 39 Plaintiffs acknowledge that some of them have prior criminal convictions for which they have
20 already served their criminal sentences. Plaintiffs anticipate that Defendants may seize on these convictions to argue against release, but prior convictions have no bearing on the question of
21 whether their conditions of civil confinement violate their constitutional rights. Past convictions alone also cannot show that a person currently poses an “identified and articulable threat to an
22 individual or the community.” United States v. Salerno, 481 U.S. 739, 751 (1987) (finding Bail Reform Act to be constitutional on its face only because it was narrowly drawn and contained
23 rebuttable presumptions in favor of detention for certain people accused of serious crimes, as opposed to categorical detention mandates). In any event, conditions of release could mitigate
24 any danger Defendants might fear would be caused by release. See infra Section III.C.2. 40 Another district court recently denied a TRO to immigration detainees who sought release
25 because of COVID-19. See Dawson v. Asher, Case No. 20-cv-409, 2020 WL 1304557 (W.D. Wash. Mar. 19, 2020). That case was wrongly decided and rested on a materially distinguishable
26 record. The Dawson court accepted ICE’s claims that its preventive measures were adequate. But the DHS medical-expert whistleblowers’ have since shown that those measures are insufficient
27 absent the release of detainees to enable necessary social distancing and isolation. Moreover,
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3. The Court Has Authority to Order Plaintiffs’ Release as the Sole

1

Effective Remedy for the Constitutional Violation.

2

In this case, the release of Plaintiffs from detention is the only effective remedy for the 3
constitutional violation they face. Cf. Stone v. City & Cty. of San Francisco, 968 F.2d 850, 861 4
(9th Cir. 1992) (“Federal courts possess whatever powers are necessary to remedy constitutional

5 violations because they are charged with protecting these rights.”). Yesterday, the Ninth Circuit

6 sua sponte ordered the “immediate” release of an immigration detainee, “[i]n light of the rapidly
7 escalating public health crisis, which public health authorities predict will especially impact
8

immigration detention centers[.]” Xochihua-Jaimes v. Barr, -- F.3d --, No. 18-71460 (9th Cir.,

9 March 23, 2020) (for publication).41 Here too, release is the only way to address the
10 constitutional violations Plaintiffs face. Preventive measures that may be effective in the
11 community, such as maintaining a distance of six feet from other persons and frequent

12

disinfection, are simply not possible in the detention setting.

13

Risk mitigation is the only viable public health strategy available to limit

14

transmission of infection, morbidity and mortality in immigration detention

centers, and to decrease the likely public health impact outside of the detention

15

centers. Even with the best-laid plans to address the spread of COVID-19 in

detention facilities, the release of individuals, prioritizing the most medically

16

vulnerable individuals, is a key part of a risk mitigation strategy.

17 Greifinger ¶ 22.
18 Release is also the typical habeas remedy. See Munaf v. Geren, 553 U.S. 674, 693 (2008).
19 As the Supreme Court recently stated, a detainee may seek expedited relief from unconstitutional
20 conditions of confinement through habeas. See Ziglar v. Abbasi, 137 S. Ct. 1843, 1863 (2017)
21

22 Plaintiffs’ declarations here show that ICE is not consistently undertaking the measures it cited in Dawson. For example, the agency is introducing new detainees into the general population
23 without any mandatory quarantine period and not placing detainees “who meet the CDC criteria for epidemiologic risk of exposure to COVID-19 … separately from the general population” or
24 ensuring those exhibiting COVID-19 symptoms are placed “in a single medical housing room.” See ICE Guidance on COVID-19, https://www.ice.gov/covid19. Finally, the Ninth Circuit’s
25 order in Xochihua-Jaimes, based on public health authorities’ consensus that the escalating crisis “will especially impact immigration detention centers,” directly undermines the Dawson court’s
26 approach of waiting for an outbreak before ordering release. 41 The Ninth Circuit ordered the detainee’s immediate release even though that person’s felony
27 criminal history would have subjected them to “mandatory” detention under § 1226(c).
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1 (noting that “the habeas remedy, if necessity required its use, would have provided a faster and

2 more direct route to relief” for detainees because “[a] successful habeas petition would have

3 required officials to place respondents in less-restrictive conditions immediately”). Moreover, the

4 principle that a federal court may release individuals to remedy unconstitutional conditions is

5 well established. See Brown v. Plata, 563 U.S. 493, 511 (2011) (“When necessary to ensure

6 compliance with a constitutional mandate, courts may enter orders placing limits on a prison’s

7 population.”); Duran v. Elrod, 713 F.2d 292, 297-98 (7th Cir. 1983), cert. denied, 465 U.S. 1108

8 (1984) (concluding that court did not exceed its authority in directing release of low-bond

9 pretrial detainees as necessary to reach a population cap).

10

Courts in this District and elsewhere have also recognized the severe harm that the risk of

11 COVID-19 transmission poses to detainees, and released them from confinement or modified

12 their conditions of probation accordingly. See, e.g., In the Matter of the Extradition of Alejandro

13 Toledo Manrique, 2020 WL 1307109, at *1 (Hixson, M. J.) (ordering release of vulnerable 74-

14 year-old on bail in light of “risk of serious illness or death if he remains in custody”); United

15 States v. Barkman, No. 3:19-cr-0052-RCJ-WGC, 2020 U.S. Dist. LEXIS 45628 *3, 8 (D. Nev.

16 March 17, 2020) (modifying conditions of probation to suspend requirement of intermittent

17 confinement where jail “simply lack[s] the resources necessary to engage in aggressive screening

18 and testing of inmates” and concluding that “we must take every necessary action to protect

19 vulnerable populations and the community at large”); United States v. Stephens, No. 15-cr-95

20 (AJN), 2020 WL 1295155, at *1 (S.D.N.Y. Mar. 19, 2020) (granting reconsideration of bail

21 determination and ordering release of criminal defendant previously found to be inappropriate

22 for release on danger grounds because of risk posed by COVID-19 in detention); United States v.

23 Raihan, No. 20-cr-68, ECF. No. 20, at 10:12-19 (E.D.N.Y. Mar. 12, 2020) (continuing defendant

24 on pretrial release rather than remanding him in part due to recognition that “[t]he more people

25 we crowd into that facility, the more we’re increasing the risk to the community”).

26

This Court and other courts also regularly grant outright release to immigrants in civil

27 custody when continued detention would violate their due process rights. See Jimenez v. Wolf,

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1 No. 19-cv-07996-NC, 2020 WL1082648 (N.D. Cal. 2020) (granting motion to enforce habeas of

2 immigrant detainee charged with drug trafficking and convicted of accessory after the fact and

3 ordering release of petitioner with appropriate conditions of supervision); Ramos v. Sessions, 293

4 F.Supp.3d 1021, 1030-31 (N.D. Cal. Mar. 13, 2018); (same for immigrant detainee with two

5 prior DUI convictions); Sales v. Johnson, No. 16-cv-01745-EDL, 2017 WL 6855827, at *6

6 (N.D. Cal. 2017) (same for immigrant detainee with prior second-degree murder conviction);

7 Judalang v. Chertoff, 562 F.Supp.2d 1119 (S.D. Cal. 2008) (same for immigrant detainee with 8 prior voluntary manslaughter conviction). This case should be no different.42

9

C. The Remaining Factors Weigh Heavily in Favor of Granting a Temporary

Restraining Order. 10

1. Plaintiffs Are Likely to Suffer Irreparable Harm Absent the

11

Temporary Restraining Order.

12 The Ninth Circuit has made clear that “the deprivation of constitutional rights
13 unquestionably constitutes irreparable injury.” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir.
14 2012) (internal quotation marks omitted). The dangerous conditions of detention that Plaintiffs
15 face also constitute irreparable harm supporting injunctive relief. See Padilla v. U.S. Immigration
16 & Customs Enforcement, 387 F.Supp.3d 1219, 1231 (W.D. Wash. 2019) (recognizing that
17 “substandard physical conditions, [and] low standards of medical care” in immigration detention
18 constitute irreparable harm justifying injunctive relief); See also Hernandez v. Sessions, 872 F.3d
19 976, 995 (9th Cir. 2017) (explaining the “irreparable harms imposed on anyone subject to
20 immigration detention” including the “evidence of subpar medical and psychiatric care in ICE
21 detention facilities”). The Ninth Circuit also has recognized that irreparable harm exists where
22

23 42 ICE presently has, and routinely exercises, the discretion to release particularly vulnerable
24 individuals from custody on humanitarian grounds. Lorenzen-Strait ¶¶ 3-8; 8 U.S.C. §§ 1182(d)(5); 1226(a), 1231(a)(3), 8 C.F.R. § 212.5(b)(1). Importantly, ICE’s discretion applies
25 regardless of the statutory basis for the noncitizen’s detention. Id. ¶ 11 (“[I]ndividuals held under mandatory detention, pursuant to [8 U.S.C. § 1226(c)], were also eligible for release”). In
26 particular, ICE has taken into consideration factors such as whether the detainees faced a heightened risk of medical harm in detention, id. ¶¶ 5-7, and would release individuals where
27 appropriate medical care was not available in custody, id. ¶ 9.
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1 government actions threaten an individual’s health. See M.R. v. Dreyfus, 663 F.3d 1100, 1111

2 (9th Cir. 2011), as amended by 697 F.3d 706 (9th Cir 2012); Indep. Living Cent. of S. California,

3 Inc. v. Shewry, 543 F.3d 1047, 1050 (9th Cir. 2008) (recognizing that Medi-Cal beneficiaries

4 would suffer irreparable harm where new policy would limit their access to pharmaceuticals).

5 The conditions of Plaintiffs’ detention threaten not only their health, but their lives.

6

2. The Public Interest and Balance of Equities Weigh Heavily in

Plaintiffs’ Favor. 7

8

Both the balance of equities and the public interest heavily favor the Plaintiffs. “[I]t is

9 always in the public interest to prevent the violation of a party’s constitutional rights.”

10 Melendres, 695 F.3d at 1002 (quotation omitted). Moreover, there can be no public interest in

11 exposing vulnerable persons to increased risks of severe illness and death. “Faced with . . .

12 preventable human suffering, [the Ninth Circuit] ha[s] little difficulty concluding that the balance

13 of hardships tips decidedly in plaintiffs’ favor.” Hernandez v. Sessions, 872 F.3d 976, 996 (9th

14 Cir. 2017) (quoting Lopez v. Heckler, 713 F.2d 1432, 1437 (9th Cir. 1983)).

15

It is in both the Defendants’ and the broader public interest to release detainees with

16 particular medical vulnerabilities. The release of people most vulnerable to COVID-19 reduces

17 the overall health risk for detainees and facility staff alike at Mesa Verde and Yuba. Stern ¶¶ 10-

18 13; See also Allen & Rich Ltr. at 5 (“it is essential to consider releasing all detainees who do not

19 pose an immediate risk to public safety”) (emphasis in original). ICE has an interest in

20 preventing any potential spread of COVID-19 in its detention facilities, particularly because

21 detainees face great difficulty engaging in proper hygiene and social distancing in a detention

22 environment. Id. ¶ 9. Immigration detention facilities face greater risk of infectious spread

23 because of crowding, the high percentage of detained people vulnerable to serious illness in the

24 event of COVID-19 transmission, and limited availability of medical care. Greifinger ¶¶ 26-27.

25 Public health officials have explained that even with the best-laid plans, the release of vulnerable

26 individuals is key to the risk mitigation strategy of any detention facility because it reduces the

27 total number of detainees, allows for greater social distancing, and prevents overloading the

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1 work of detention staff. Stern ¶¶ 11-12; Greifinger ¶ 21. Plaintiffs’ release not only imposes

2 minimal harm to the government, but also furthers ICE’s interests in maintaining a healthy and

3 orderly environment at Mesa Verde and Yuba.

4

Last, releasing Plaintiffs is clearly in the broader public’s interest. Here, “the impact of [a

5 temporary restraining order] reaches beyond the parties, carrying with it a potential for public

6 consequences.” Hernandez, 872 F.3d at 996 (quotation omitted). An outbreak of COVID-19

7 could put significant pressure on or exceed the capacity of local health infrastructure. Stern ¶ 6.

8 The COVID-19 outbreak has already resulted in the need for unprecedented public health

9 measures and caused a strain on local health care systems. Greifinger ¶ 12. The release of people

10 most vulnerable to serious illness from COVID-19 reduces the health and economic burden on

11 the local community and health infrastructure at large. Greifinger ¶ 28; Stern ¶ 13; See also

12 Hernandez, 872 F.3d at 996-97 (“[T]he general public’s interest in efficient allocation of the

13 government’s fiscal resources favors granting [relief]”).

14

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

15 be achieved through fashioning reasonable release conditions, which might include electronic

16 monitoring. See e.g., Hernandez, 872 F.3d at 995 (finding that ICE had put forth no evidence

17 regarding the administrative burdens of considering alternatives to detention). Such conditions

18 are routine in both criminal and immigration release settings and are effective. A government-

19 contracted evaluation of a program that featured monitoring instead of immigration detention

20 reported a 99% attendance rate at all immigration court hearings and a 95% attendance rate at

21 final hearings. See U.S. Gov’t Accountability Office, GAO-15-26, Alternatives to Detention:

22 Improved Data Collection and Analyses Needed to Better Assess Program Effectiveness 10-11

23 (Nov. 2014). Another program studied in 2011 saw fewer than 1% of participants removed from

24 the program due to arrest by another law enforcement agency. See Jennings v. Rodriguez, 2016

25 WL 6276890, at *36-37 (U.S. 2016) (Brief of Amicus Curiae).

26

27

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3. The Court Should Not Require Plaintiffs to Provide Security Prior to

1

Issuing a Temporary Restraining Order.

2

“Rule 65(c) invests the district court with discretion as to the amount of security required,

3 if any.” Jorgensen v. Cassiday, 320 F.3d 906, 919 (9th Cir. 2003) (internal quotation marks and

4 citation omitted). District courts routinely exercise this discretion to require no security in cases

5 brought by indigent and/or incarcerated people. See, e.g., Toussaint v. Rushen, 553 F. Supp.

6 1365, 1383 (N.D. Cal. 1983) (state prisoners); Orantes–Hernandez v. Smith, 541 F. Supp. 351,

7 385 n. 42 (C.D. Cal. 1982) (detained immigrants). This Court should do the same here.

8 IV. 9

CONCLUSION Plaintiffs’ motion for a temporary restraining order should be granted.

10

11 Dated: March 23, 2020 12 13 14 15 16

Respectfully submitted,
/s/ William S. Freeman William S. Freeman Sean Riordan Angélica Salceda AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA

17 Bree Bernwanger Tifanei Ressl-Moyer
18 Hayden Rodarte LAWYERS’ COMMITTEE FOR
19 CIVIL RIGHTS OF SAN FRANCISCO BAY AREA
20
21 Judah Lakin Amalia Wille
22 LAKIN & WILLE LLP
23 Jordan Wells
24 Stephanie Padilla Michael Kaufman
25 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN
26 CALIFORNIA
27

Manohar Raju Public Defender Matt Gonzalez Chief Attorney Francisco Ugarte Genna Ellis Beier Emilou H. MacLean OFFICE OF THE PUBLIC DEFENDER SAN FRANCISCO
Attorneys for Petitioners-Plaintiffs

28
23 NOTICE OF MOTION, MOTION AND MEMO IN SUPPORT OF MOTION FOR TEMPORARY
RESTRAINING ORDER

 
 U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:20-cv-02064-MMC

APPEAL

Bahena Ortuno et al v. Jennings et al

Date Filed: 03/24/2020

Assigned to: Judge Maxine M. Chesney

Jury Demand: None

Cause: 8:1105(a) Aliens: Habeas Corpus to Release INS Nature of Suit: 465 Other

Detainee

Immigration Actions

Jurisdiction: U.S. Government

Defendant

Plaintiff Sofia Bahena Ortuno

represented by William S. Freeman ACLU Foundation of Northern California 39 Drumm St. San Francisco, CA 94111 415 621-2493 Fax: 415 255-1478 Email: wfreeman@aclunc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amalia Margarete Wille Lakin & Wille LLP 1939 Harrison Street, Suite 420 Oakland, CA 94612 510-379-9216 Fax: 510-379-9219 Email: amalia@lakinwille.com ATTORNEY TO BE NOTICED

Angelica Salceda ACLU of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 (415) 621-2493 Fax: (415) 255-8437 Email: asalceda@aclunc.org ATTORNEY TO BE NOTICED

Bree Ann Bernwanger

Lawyers' Committee for Civil Rights of the San Francisc 131 Steuart Street Ste 400 San Francisco, CA 94105 415-543-9444 Email: bbernwanger@lccrsf.org PRO HAC VICE ATTORNEY TO BE NOTICED
Emilou MacLean 555 Seventh Street San Francisco, CA 94103 510-473-6343 Fax: 415-553-9810 Email: emi.maclean@sfgov.org ATTORNEY TO BE NOTICED
Francisco Ugarte SF Public Defender's Office 555 7th Street San Francisco, CA 94103 415-553-9319 Fax: 415-553-9810 Email: francisco.ugarte@sfgov.org ATTORNEY TO BE NOTICED
Genna Ellis Beier San Francisco Office of the Public Defender 555 7th Street San Francisco, CA 94103 703-470-8111 Email: genna.beier@sfgov.org ATTORNEY TO BE NOTICED
Hayden Miles Rodarte Lawyers' Committee for Civil Rights, San Francisco 131 Steuart Street, Suite 400 San Francisco, CA 94105 415-814-7631 Fax: 415-543-0296 Email: hrodarte@lccrsf.org ATTORNEY TO BE NOTICED
Jordan Samuel Wells

ACLU of Southern California 1313 West Eighth Street Los Angeles, CA 90017 661-426-7867 Email: jwells@aclusocal.org ATTORNEY TO BE NOTICED
Judah Ben Lakin Lakin & Wille LLP 1939 Harrison Street Suite 420 Oakland, CA 94612 United Sta 510-379-9216 Email: judah@lakinwille.com ATTORNEY TO BE NOTICED
Michael Bryan Kaufman ACLU of Southern California 1313 West 8th Street Los Angeles, CA 90017 213-977-5284 Fax: 213-977-5297 Email: mkaufman@aclusocal.org ATTORNEY TO BE NOTICED
Sean Connor Riordan ACLU Foundation of Northern California 39 Drumm Street San Francisco, CA 94105 (415) 621-2493 Fax: (415) 255-1478 Email: sriordan@aclunc.org ATTORNEY TO BE NOTICED
Stephanie Padilla ACLU of Southern California 1430 Truxtun Ave., Ste. 707 Bakersfield, CA 93301 (661) 426-7868 Email: spadilla@aclusocal.org ATTORNEY TO BE NOTICED
Tifanei Nikol Ressl-Moyer Lawyers' Committee for Civil Rights

Plaintiff Gennady Valeryevich Lavrus

of San Francisco Bay Area 131 Steuart Street #400 San Francisco, CA 94105 415 814-7631 Email: tresslmoyer@lccrsf.org ATTORNEY TO BE NOTICED
represented by William S. Freeman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amalia Margarete Wille (See above for address) ATTORNEY TO BE NOTICED
Angelica Salceda (See above for address) ATTORNEY TO BE NOTICED
Bree Ann Bernwanger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emilou MacLean (See above for address) ATTORNEY TO BE NOTICED
Francisco Ugarte (See above for address) ATTORNEY TO BE NOTICED
Genna Ellis Beier (See above for address) ATTORNEY TO BE NOTICED
Hayden Miles Rodarte (See above for address) ATTORNEY TO BE NOTICED
Jordan Samuel Wells (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Claude Bent TERMINATED: 03/25/2020

Judah Ben Lakin (See above for address) ATTORNEY TO BE NOTICED
Michael Bryan Kaufman (See above for address) ATTORNEY TO BE NOTICED
Sean Connor Riordan (See above for address) ATTORNEY TO BE NOTICED
Stephanie Padilla (See above for address) ATTORNEY TO BE NOTICED
Tifanei Nikol Ressl-Moyer (See above for address) ATTORNEY TO BE NOTICED
represented by William S. Freeman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amalia Margarete Wille (See above for address) ATTORNEY TO BE NOTICED
Angelica Salceda (See above for address) ATTORNEY TO BE NOTICED
Bree Ann Bernwanger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emilou MacLean (See above for address) ATTORNEY TO BE NOTICED
Francisco Ugarte (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Charles Joseph

Genna Ellis Beier (See above for address) ATTORNEY TO BE NOTICED
Hayden Miles Rodarte (See above for address) ATTORNEY TO BE NOTICED
Jordan Samuel Wells (See above for address) ATTORNEY TO BE NOTICED
Judah Ben Lakin (See above for address) ATTORNEY TO BE NOTICED
Michael Bryan Kaufman (See above for address) ATTORNEY TO BE NOTICED
Sean Connor Riordan (See above for address) ATTORNEY TO BE NOTICED
Stephanie Padilla (See above for address) ATTORNEY TO BE NOTICED
Tifanei Nikol Ressl-Moyer (See above for address) ATTORNEY TO BE NOTICED
represented by William S. Freeman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amalia Margarete Wille (See above for address) ATTORNEY TO BE NOTICED
Angelica Salceda (See above for address) ATTORNEY TO BE NOTICED

Plaintiff

Bree Ann Bernwanger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emilou MacLean (See above for address) ATTORNEY TO BE NOTICED
Francisco Ugarte (See above for address) ATTORNEY TO BE NOTICED
Genna Ellis Beier (See above for address) ATTORNEY TO BE NOTICED
Hayden Miles Rodarte (See above for address) ATTORNEY TO BE NOTICED
Jordan Samuel Wells (See above for address) ATTORNEY TO BE NOTICED
Judah Ben Lakin (See above for address) ATTORNEY TO BE NOTICED
Michael Bryan Kaufman (See above for address) ATTORNEY TO BE NOTICED
Sean Connor Riordan (See above for address) ATTORNEY TO BE NOTICED
Stephanie Padilla (See above for address) ATTORNEY TO BE NOTICED
Tifanei Nikol Ressl-Moyer (See above for address) ATTORNEY TO BE NOTICED

Salomon Medina Calderon

represented by William S. Freeman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amalia Margarete Wille (See above for address) ATTORNEY TO BE NOTICED
Angelica Salceda (See above for address) ATTORNEY TO BE NOTICED
Bree Ann Bernwanger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emilou MacLean (See above for address) ATTORNEY TO BE NOTICED
Francisco Ugarte (See above for address) ATTORNEY TO BE NOTICED
Genna Ellis Beier (See above for address) ATTORNEY TO BE NOTICED
Hayden Miles Rodarte (See above for address) ATTORNEY TO BE NOTICED
Jordan Samuel Wells (See above for address) ATTORNEY TO BE NOTICED
Judah Ben Lakin (See above for address) ATTORNEY TO BE NOTICED
Michael Bryan Kaufman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Ricardo Vasquez Cruz

Sean Connor Riordan (See above for address) ATTORNEY TO BE NOTICED
Stephanie Padilla (See above for address) ATTORNEY TO BE NOTICED
Tifanei Nikol Ressl-Moyer (See above for address) ATTORNEY TO BE NOTICED
represented by William S. Freeman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amalia Margarete Wille (See above for address) ATTORNEY TO BE NOTICED
Angelica Salceda (See above for address) ATTORNEY TO BE NOTICED
Bree Ann Bernwanger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emilou MacLean (See above for address) ATTORNEY TO BE NOTICED
Francisco Ugarte (See above for address) ATTORNEY TO BE NOTICED
Genna Ellis Beier (See above for address) ATTORNEY TO BE NOTICED
Hayden Miles Rodarte (See above for address) ATTORNEY TO BE NOTICED

Plaintiff J. Elias Solorio Lopez

Jordan Samuel Wells (See above for address) ATTORNEY TO BE NOTICED
Judah Ben Lakin (See above for address) ATTORNEY TO BE NOTICED
Michael Bryan Kaufman (See above for address) ATTORNEY TO BE NOTICED
Sean Connor Riordan (See above for address) ATTORNEY TO BE NOTICED
Stephanie Padilla (See above for address) ATTORNEY TO BE NOTICED
Tifanei Nikol Ressl-Moyer (See above for address) ATTORNEY TO BE NOTICED
represented by William S. Freeman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amalia Margarete Wille (See above for address) ATTORNEY TO BE NOTICED
Angelica Salceda (See above for address) ATTORNEY TO BE NOTICED
Bree Ann Bernwanger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emilou MacLean (See above for address)

Plaintiff Olvin Said Torres Murillo

ATTORNEY TO BE NOTICED
Francisco Ugarte (See above for address) ATTORNEY TO BE NOTICED
Genna Ellis Beier (See above for address) ATTORNEY TO BE NOTICED
Hayden Miles Rodarte (See above for address) ATTORNEY TO BE NOTICED
Jordan Samuel Wells (See above for address) ATTORNEY TO BE NOTICED
Judah Ben Lakin (See above for address) ATTORNEY TO BE NOTICED
Michael Bryan Kaufman (See above for address) ATTORNEY TO BE NOTICED
Sean Connor Riordan (See above for address) ATTORNEY TO BE NOTICED
Stephanie Padilla (See above for address) ATTORNEY TO BE NOTICED
Tifanei Nikol Ressl-Moyer (See above for address) ATTORNEY TO BE NOTICED
represented by William S. Freeman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amalia Margarete Wille (See above for address)

ATTORNEY TO BE NOTICED
Angelica Salceda (See above for address) ATTORNEY TO BE NOTICED
Bree Ann Bernwanger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emilou MacLean (See above for address) ATTORNEY TO BE NOTICED
Francisco Ugarte (See above for address) ATTORNEY TO BE NOTICED
Genna Ellis Beier (See above for address) ATTORNEY TO BE NOTICED
Hayden Miles Rodarte (See above for address) ATTORNEY TO BE NOTICED
Jordan Samuel Wells (See above for address) ATTORNEY TO BE NOTICED
Judah Ben Lakin (See above for address) ATTORNEY TO BE NOTICED
Michael Bryan Kaufman (See above for address) ATTORNEY TO BE NOTICED
Sean Connor Riordan (See above for address) ATTORNEY TO BE NOTICED
Stephanie Padilla (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Julio Cesar Buendia Alas

Tifanei Nikol Ressl-Moyer (See above for address) ATTORNEY TO BE NOTICED
represented by William S. Freeman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amalia Margarete Wille (See above for address) ATTORNEY TO BE NOTICED
Angelica Salceda (See above for address) ATTORNEY TO BE NOTICED
Bree Ann Bernwanger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emilou MacLean (See above for address) ATTORNEY TO BE NOTICED
Francisco Ugarte (See above for address) ATTORNEY TO BE NOTICED
Genna Ellis Beier (See above for address) ATTORNEY TO BE NOTICED
Hayden Miles Rodarte (See above for address) ATTORNEY TO BE NOTICED
Jordan Samuel Wells (See above for address) ATTORNEY TO BE NOTICED
Judah Ben Lakin (See above for address)

Plaintiff Marco Montoya Amaya

ATTORNEY TO BE NOTICED
Michael Bryan Kaufman (See above for address) ATTORNEY TO BE NOTICED
Sean Connor Riordan (See above for address) ATTORNEY TO BE NOTICED
Stephanie Padilla (See above for address) ATTORNEY TO BE NOTICED
Tifanei Nikol Ressl-Moyer (See above for address) ATTORNEY TO BE NOTICED
represented by William S. Freeman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amalia Margarete Wille (See above for address) ATTORNEY TO BE NOTICED
Angelica Salceda (See above for address) ATTORNEY TO BE NOTICED
Bree Ann Bernwanger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emilou MacLean (See above for address) ATTORNEY TO BE NOTICED
Francisco Ugarte (See above for address) ATTORNEY TO BE NOTICED
Genna Ellis Beier

Plaintiff Mauricio Ernesto Quinteros Lopez

(See above for address) ATTORNEY TO BE NOTICED
Hayden Miles Rodarte (See above for address) ATTORNEY TO BE NOTICED
Jordan Samuel Wells (See above for address) ATTORNEY TO BE NOTICED
Judah Ben Lakin (See above for address) ATTORNEY TO BE NOTICED
Michael Bryan Kaufman (See above for address) ATTORNEY TO BE NOTICED
Sean Connor Riordan (See above for address) ATTORNEY TO BE NOTICED
Stephanie Padilla (See above for address) ATTORNEY TO BE NOTICED
Tifanei Nikol Ressl-Moyer (See above for address) ATTORNEY TO BE NOTICED
represented by William S. Freeman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amalia Margarete Wille (See above for address) ATTORNEY TO BE NOTICED
Angelica Salceda (See above for address) ATTORNEY TO BE NOTICED
Bree Ann Bernwanger

Plaintiff

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emilou MacLean (See above for address) ATTORNEY TO BE NOTICED
Francisco Ugarte (See above for address) ATTORNEY TO BE NOTICED
Genna Ellis Beier (See above for address) ATTORNEY TO BE NOTICED
Hayden Miles Rodarte (See above for address) ATTORNEY TO BE NOTICED
Jordan Samuel Wells (See above for address) ATTORNEY TO BE NOTICED
Judah Ben Lakin (See above for address) ATTORNEY TO BE NOTICED
Michael Bryan Kaufman (See above for address) ATTORNEY TO BE NOTICED
Sean Connor Riordan (See above for address) ATTORNEY TO BE NOTICED
Stephanie Padilla (See above for address) ATTORNEY TO BE NOTICED
Tifanei Nikol Ressl-Moyer (See above for address) ATTORNEY TO BE NOTICED

Roxana del Carmen Trigueros Acevedo

represented by William S. Freeman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amalia Margarete Wille (See above for address) ATTORNEY TO BE NOTICED
Angelica Salceda (See above for address) ATTORNEY TO BE NOTICED
Bree Ann Bernwanger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emilou MacLean (See above for address) ATTORNEY TO BE NOTICED
Francisco Ugarte (See above for address) ATTORNEY TO BE NOTICED
Genna Ellis Beier (See above for address) ATTORNEY TO BE NOTICED
Hayden Miles Rodarte (See above for address) ATTORNEY TO BE NOTICED
Jordan Samuel Wells (See above for address) ATTORNEY TO BE NOTICED
Judah Ben Lakin (See above for address) ATTORNEY TO BE NOTICED
Michael Bryan Kaufman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Ernesto Ambrocio Uc Encarnacion

Sean Connor Riordan (See above for address) ATTORNEY TO BE NOTICED
Stephanie Padilla (See above for address) ATTORNEY TO BE NOTICED
Tifanei Nikol Ressl-Moyer (See above for address) ATTORNEY TO BE NOTICED
represented by William S. Freeman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amalia Margarete Wille (See above for address) ATTORNEY TO BE NOTICED
Angelica Salceda (See above for address) ATTORNEY TO BE NOTICED
Bree Ann Bernwanger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emilou MacLean (See above for address) ATTORNEY TO BE NOTICED
Francisco Ugarte (See above for address) ATTORNEY TO BE NOTICED
Genna Ellis Beier (See above for address) ATTORNEY TO BE NOTICED
Hayden Miles Rodarte (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Acting Director David Jennings
Defendant Deputy Director Matthew T Albence Defendant

Jordan Samuel Wells (See above for address) ATTORNEY TO BE NOTICED
Judah Ben Lakin (See above for address) ATTORNEY TO BE NOTICED
Michael Bryan Kaufman (See above for address) ATTORNEY TO BE NOTICED
Sean Connor Riordan (See above for address) ATTORNEY TO BE NOTICED
Stephanie Padilla (See above for address) ATTORNEY TO BE NOTICED
Tifanei Nikol Ressl-Moyer (See above for address) ATTORNEY TO BE NOTICED
represented by Sara Winslow United States Attorney's Office Northern District of California 450 Golden Gate Avenue, 9th Floor Box 36055 San Francisco, CA 94102 (415) 436-6925 Fax: (415) 436-6748 Email: sara.winslow@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sara Winslow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

U.S. Immigration and Customs Enforcement

represented by Sara Winslow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/24/2020
03/24/2020 03/24/2020 03/24/2020

# Docket Text
1 COMPLAINT against Matthew T Albence, David Jennings, U.S. Immigration and Customs Enforcement (Filing fee $ 400, receipt number 0971-14310838.). Filed by Sofia Bahena Ortuno. (Attachments: # 1 Civil Cover Sheet)(Freeman, William) (Filed on 3/24/2020) Modified on 3/25/2020 (slhS, COURT STAFF). (Entered: 03/24/2020)
2 Proposed Summons. (Freeman, William) (Filed on 3/24/2020) (Entered: 03/24/2020)
3 NOTICE of Appearance by Stephanie Padilla for PetitionersPlaintiffs (Padilla, Stephanie) (Filed on 3/24/2020) (Entered: 03/24/2020)
4 First MOTION for Temporary Restraining Order filed by Sofia Bahena Ortuno, Claude Bent, Julio Cesar Buendia Alas, Charles Joseph, Salomon Medina Calderon, Marco Montoya Amaya, Mauricio Ernesto Quinteros Lopez, J. Elias Solorio Lopez, Olvin Said Torres Murillo, Roxana del Carmen Trigueros Acevedo, Ernesto Ambrocio Uc Encarnacion, Gennady Valeryevich Lavrus, Ricardo Vasquez Cruz. (Attachments: # 1 Proposed Order [Proposed] Order, # 2 Declaration Declaration of Sofia Behena Ortuno, # 3 Declaration Declaration of Hayley Upshaw, # 4 Declaration Declaration of Charles Joseph, # 5 Declaration Declaration of Salomon Medina, # 6 Declaration Declaration of Ricardo Vasquez Cruz, # 7 Declaration Declaration of Siobhan Waldron, # 8 Declaration Declaration of Matthew Weisner, # 9 Declaration Declaration of Julio Cesar Buendia Alas, # 10 Declaration Declaration of Eleni Wolfe-Roubatis, # 11 Declaration Declaration of Priya A. Patel, # 12 Declaration Declaration of Lisa Knox, # 13 Declaration Declaration of Jessica S. Yamane, # 14 Declaration Declaration of Susan Beaty, # 15 Declaration Declaration of Brenda Rubi Ruiz Tovar, # 16 Declaration Declaration of Juan Carlos Minchaca Ramos, # 17 Declaration Declaration of Alan Marcelo Martinez Lopez, # 18 Declaration Declaration of William S. Freeman, # 19 Declaration Declaration of Dr. Jonathan Louis Golob, # 20 Declaration Declaration of Dr. Marc Stern, # 21 Declaration Declaration of Dr. Ranit Mishori (MD, MHS, FAAFP)- Withdrawn, see 64 , # 22 Declaration Declaration of Robert B. Greifinger, MD, # 23 Declaration Declaration of Sandra Hernandez, # 24 Declaration Declaration of Allen S. Keller, MD, # 25 Declaration Declaration of Andrew Lorenzen-Strait, # 26 Declaration Declaration of Lisa Knox, # 27 Declaration Declaration of Kathleen Anne Kavanagh, # 28 Declaration Declaration of Claude Bent)(Freeman, William) (Filed on 3/24/2020) Modified on 5/4/2020 (elyS, COURT STAFF). (Entered: 03/24/2020)

03/24/2020 03/24/2020
03/24/2020 03/24/2020 03/25/2020 03/25/2020
03/25/2020 03/25/2020 03/25/2020 03/25/2020

5 NOTICE of Appearance by Jordan Samuel Wells for PetitionersPlaintiffs (Wells, Jordan) (Filed on 3/24/2020) (Entered: 03/24/2020)
6 CERTIFICATE OF SERVICE by Sofia Bahena Ortuno, Claude Bent, Julio Cesar Buendia Alas, Charles Joseph, Salomon Medina Calderon, Marco Montoya Amaya, Mauricio Ernesto Quinteros Lopez, J. Elias Solorio Lopez, Olvin Said Torres Murillo, Roxana del Carmen Trigueros Acevedo, Ernesto Ambrocio Uc Encarnacion, Gennady Valeryevich Lavrus, Ricardo Vasquez Cruz re 4 First MOTION for Temporary Restraining Order , 2 Proposed Summons, 1 Complaint (Freeman, William) (Filed on 3/24/2020) (Entered: 03/24/2020)
7 NOTICE of Appearance by Judah Ben Lakin (Lakin, Judah) (Filed on 3/24/2020) (Entered: 03/24/2020)
8 NOTICE of Appearance by Judah Ben Lakin (Lakin, Judah) (Filed on 3/24/2020) (Entered: 03/24/2020)
9 NOTICE of Appearance by Sara Winslow (Winslow, Sara) (Filed on 3/25/2020) (Entered: 03/25/2020)
10 CLERK'S NOTICE. Correction of Civil cover sheet needed before assignment can be made. Please file amended civil cover sheet. (This is a text-only entry generated by the court. There is no document associated with this entry.) (as, COURT STAFF) (Filed on 3/25/2020) (Entered: 03/25/2020)
11 Civil Cover Sheet by Sofia Bahena Ortuno Amended Civil Cover Sheet. (Freeman, William) (Filed on 3/25/2020) (Entered: 03/25/2020)
12 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Sofia Bahena Ortuno.. (Freeman, William) (Filed on 3/25/2020) (Entered: 03/25/2020)
13 NOTICE of Appearance by Michael Bryan Kaufman for PetitionersPlaintiffs (Kaufman, Michael) (Filed on 3/25/2020) (Entered: 03/25/2020)
14 Case assigned to Judge Maxine M. Chesney.

Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E-Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.

Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5-1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. (as, COURT STAFF) (Filed on 3/25/2020) (Entered: 03/25/2020)

03/25/2020 03/25/2020
03/25/2020 03/25/2020

15 NOTICE of Appearance by Emilou MacLean (MacLean, Emilou) (Filed on 3/25/2020) (Entered: 03/25/2020)
16 Summons Issued as to Matthew T Albence, David Jennings, U.S. Immigration and Customs Enforcement. (wsnS, COURT STAFF) (Filed on 3/25/2020) (Entered: 03/25/2020)
17 NOTICE of Appearance by Francisco Ugarte (Ugarte, Francisco) (Filed on 3/25/2020) (Entered: 03/25/2020)
18 ***FILED IN ERROR. PLEASE IGNORE.***

03/25/2020 03/25/2020 03/25/2020
03/25/2020 03/25/2020 03/25/2020 03/30/2020
03/31/2020

Immigration Mandamus Case Procedural Order. (slhS, COURT STAFF) (Filed on 3/25/2020) Modified on 3/25/2020 (tlS, COURT STAFF). (Entered: 03/25/2020)
19 NOTICE of Appearance by Genna Ellis Beier (Beier, Genna) (Filed on 3/25/2020) (Entered: 03/25/2020)
20 NOTICE of Appearance by Hayden Miles Rodarte (Rodarte, Hayden) (Filed on 3/25/2020) (Entered: 03/25/2020)
21 Minute Entry for proceedings held before Judge Maxine M. Chesney: Telephone Conference re: Setting briefing schedule as to Plaintiffs' Motion for Temporary Restraining Order held on 3/25/2020. Opposition due by 3/30/2020. Reply due by 4/1/2020.Total Time in Court: 15 minutes. Not Reported or Recorded. Plaintiff Attorney: William Freeman and Emilou Maclean. Defendant Attorney: Sara Winslow. Attachment: Civil Minutes. (tlS, COURT STAFF) (Date Filed: 3/25/2020) (Entered: 03/25/2020)
22 NOTICE of Appearance by Angelica Salceda (Salceda, Angelica) (Filed on 3/25/2020) (Entered: 03/25/2020)
23 NOTICE of Appearance by Sean Connor Riordan (Riordan, Sean) (Filed on 3/25/2020) (Entered: 03/25/2020)
24 NOTICE of Voluntary Dismissal by Claude Bent (Freeman, William) (Filed on 3/25/2020) (Entered: 03/25/2020)
25 OPPOSITION/RESPONSE (re 4 First MOTION for Temporary Restraining Order ) filed byMatthew T Albence, David Jennings, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Declaration, # 2 Declaration, # 3 Declaration, # 4 Declaration, # 5 Declaration)(Winslow, Sara) (Filed on 3/30/2020) (Entered: 03/30/2020)
26 REPLY (re 4 First MOTION for Temporary Restraining Order ) filed bySofia Bahena Ortuno, Claude Bent, Julio Cesar Buendia Alas, Charles Joseph, Salomon Medina Calderon, Marco Montoya Amaya, Mauricio Ernesto Quinteros Lopez, J. Elias Solorio Lopez, Olvin Said Torres Murillo, Roxana del Carmen Trigueros Acevedo, Ernesto Ambrocio Uc Encarnacion, Gennady Valeryevich Lavrus, Ricardo Vasquez Cruz.

(Attachments: # 1 Declaration SUPPLEMENTAL DECLARATION OF ATTORNEY HAYLEY UPSHAW IN SUPPORT OF PETITION FOR HABEAS CORPUS AND MOTION FOR TEMPORARY RESTRAINING ORDER, # 2 Declaration SUPPLEMENTAL DECLARATION OF CHARLES JOSEPH IN SUPPORT OF PETITION FOR HABEAS CORPUS AND MOTION FOR TEMPORARY RESTRAINING ORDER, # 3 Declaration DECLARATION OF ATTORNEY HAYDEN RODARTE IN SUPPORT OF PETITION FOR HABEAS CORPUS AND MOTION FOR TEMPORARY RESTRAINING ORDER, # 4 Declaration DECLARATION OF ROHINI J. HAAR IN SUPPORT OF PETITION FOR HABEAS CORPUS AND MOTION FOR TEMPORARY RESTRAINING ORDER, # 5 Declaration SUPPLEMENTAL DECLARATION OF ATTORNEY MATTHEW WEISNER IN SUPPORT OF PETITION FOR HABEAS CORPUS AND MOTION FOR TEMPORARY RESTRAINING ORDER, # 6 Declaration SUPPLEMENTAL DECLARATION OF JULIO CESAR BUENDIA ALAS IN SUPPORT OF PETITION FOR HABEAS CORPUS AND MOTION FOR TEMPORARY RESTRAINING ORDER, # 7 Declaration SUPPLEMENTAL DECLARATION OF ATTORNEY ELENI WOLFEROUBATIS IN SUPPORT OF PETIOTION FOR HABEAS CORPUS AND MOTION FOR TEMPORARY RESTRAINING ORDER, # 8 Declaration SUPPLEMENTAL DECLARATION OF ATTORNEY LISA KNOX IN SUPPORT OF PETITION FOR HABEAS CORPUS AND MOTION FOR TEMPORARY RESTRAINING ORDER, # 9 Declaration SUPPLEMENTAL DECLARATION OF ATTORNEY JESSICA S. YAMANE IN SUPPORT OF PETITION FOR HABEAS CORPUS AND MOTION FOR TEMPORARY RESTRAINING ORDER, # 10 Declaration DECLARATION OF ATTORNEY HECTOR VEGA IN SUPPORT OF PETITION FOR HABEAS CORPUS AND MOTION FOR TEMPORARY RESTRAINING ORDER, # 11 Declaration SUPPLEMENTAL DECLARATION OF ATTORNEY KATHLEEN ANNE KAVANAGHIN SUPPORT OF PETITION FOR HABEAS CORPUS AND MOTION FOR TEMPORARY RESTRAINING ORDER, # 12 Declaration DECLARATION OF WILLIAM ALEXANDER MATAS RAUDA IN SUPPORT OF PETITION FOR HABEAS CORPUS AND MOTION FOR TEMPORARY RESTRAINING ORDER, # 13 Declaration SUPPLEMENTAL DECLARATION OF ATTORNEY JORDAN WELLS IN SUPPORT OF PETITION FOR HABEAS CORPUS AND MOTION FOR TEMPORARY RESTRAINING ORDER, # 14 Declaration DECLARATION OF JORDAN WELLS IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER, # 15 Declaration SUPPLEMENTAL DECLARATION OF ROBERT B. GREIFINGER, MD IN SUPPORT OF PETITION FOR HABEAS CORPUS AND MOTION FOR TEMPORARY RESTRAINING ORDER, # 16 Declaration SUPPLEMENTAL DECLARATION OF ALLEN S. KELLER, M.D. IN SUPPORT OF PETITION FOR HABEAS CORPUS AND MOTION FOR

04/02/2020 04/02/2020 04/02/2020 04/02/2020
04/03/2020 04/06/2020
04/06/2020

TEMPORARY RESTRAINING ORDER, # 17 Certificate/Proof of Service PROOF OF SERVICE)(Freeman, William) (Filed on 3/31/2020) (Entered: 03/31/2020)
27 MOTION for Leave to File filed by Matthew T Albence, David Jennings, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Declaration)(Winslow, Sara) (Filed on 4/2/2020) (Entered: 04/02/2020)
28 ORDER. Respondents shall file the supplemental declaration by April 3, 2020, no later than 10:00 a.m. Signed by Judge Maxine M. Chesney on April 2, 2020.(mmclc1, COURT STAFF) (Filed on 4/2/2020) (Entered: 04/02/2020)
29 NOTICE by Matthew T Albence, David Jennings, U.S. Immigration and Customs Enforcement OF FILING (Attachments: # 1 Declaration, # 2 Declaration)(Winslow, Sara) (Filed on 4/2/2020) (Entered: 04/02/2020)
30 First ADMINISTRATIVE MOTION FILE OBJECTIONS TO DEFENDANTS SUPPLEMENTAL DECLARATIONS re 29 Notice (Other), 27 MOTION for Leave to File filed by Sofia Bahena Ortuno, Claude Bent, Julio Cesar Buendia Alas, Charles Joseph, Salomon Medina Calderon, Marco Montoya Amaya, Mauricio Ernesto Quinteros Lopez, J. Elias Solorio Lopez, Olvin Said Torres Murillo, Roxana del Carmen Trigueros Acevedo, Ernesto Ambrocio Uc Encarnacion, Gennady Valeryevich Lavrus, Ricardo Vasquez Cruz. Responses due by 4/3/2020. (Freeman, William) (Filed on 4/2/2020) (Entered: 04/02/2020)
31 ORDER DEEMING MOTION FOR TEMPORARY RESTRAINING ORDER SUBMITTED IN PART; DIRECTING RESPONDENTS TO SUPPLEMENT OPPOSITION AS TO TWO PETITIONERS. Signed by Judge Maxine M. Chesney on April 3, 2020. (mmclc1, COURT STAFF) (Filed on 4/3/2020) (Entered: 04/03/2020)
32 Second ADMINISTRATIVE MOTION LEAVE TO RESPOND TO DEFENDANTS SUPPLEMENT TO OPPOSITION re 29 Notice (Other), 27 MOTION for Leave to File filed by Sofia Bahena Ortuno, Claude Bent, Julio Cesar Buendia Alas, Charles Joseph, Salomon Medina Calderon, Marco Montoya Amaya, Mauricio Ernesto Quinteros Lopez, J. Elias Solorio Lopez, Olvin Said Torres Murillo, Roxana del Carmen Trigueros Acevedo, Ernesto Ambrocio Uc Encarnacion, Gennady Valeryevich Lavrus, Ricardo Vasquez Cruz. Responses due by 4/7/2020. (Attachments: # 1 Proposed Order STIPULATION AND [PROPOSED] ORDER GRANTING PETITIONERS-PLAINTIFFS ADMINISTRATIVE MOTION FOR LEAVE TO RESPOND TO DEFENDANTS SUPPLEMENT TO OPPOSITION)(Freeman, William) (Filed on 4/6/2020) (Entered: 04/06/2020)
33 Statement re 26 Reply to Opposition/Response,,,,,,,,,,, Statement of Recent Decisions by Sofia Bahena Ortuno, Claude Bent, Julio Cesar Buendia Alas, Charles Joseph, Salomon Medina Calderon, Marco Montoya Amaya,

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Mauricio Ernesto Quinteros Lopez, J. Elias Solorio Lopez, Olvin Said Torres Murillo, Roxana del Carmen Trigueros Acevedo, Ernesto Ambrocio Uc Encarnacion, Gennady Valeryevich Lavrus, Ricardo Vasquez Cruz. (Freeman, William) (Filed on 4/6/2020) (Entered: 04/06/2020)
34 Statement re 25 Opposition/Response to Motion, OF RECENT DECISION by Matthew T Albence, David Jennings, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Exhibit)(Winslow, Sara) (Filed on 4/6/2020) (Entered: 04/06/2020)
35 ORDER GRANTING PETITIONERS-PLAINTIFF'S ADMINISTRATIVE MOTION FOR LEAVE TO RESPOND TO DEFENDANTS' SUPPLEMENT TO OPPOSITION. Plaintiffs' response shall be filed within one court day after Defendants file their Supplement. Signed by Judge Maxine M. Chesney on April 7, 2020. (mmclc1, COURT STAFF) (Filed on 4/7/2020) (Entered: 04/07/2020)
36 ORDER GRANTING PETITIONERS' ADMINISTRATIVE MOTION TO FILE OBJECTIONS TO DEFENDANTS' SUPPLEMENTAL DECLARATIONS. The Court will consider the objections made in the Administrative Motion when ruling on petitioners' motion for a temporary restraining order. Signed by Judge Maxine M. Chesney on April 7, 2020. (mmclc1, COURT STAFF) (Filed on 4/7/2020) (Entered: 04/07/2020)
37 RESPONSE re 31 Order DIRECTING SUPPLEMENTAL BRIEFING by Matthew T Albence, David Jennings, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Declaration, # 2 Declaration, # 3 Declaration)(Winslow, Sara) (Filed on 4/8/2020) (Entered: 04/08/2020)
38 ORDER RE: PETITIONERS' MOTION FOR TEMPORARY RESTRAINING ORDER; DIRECTIONS TO PARTIES. To the extent the motion is brought on behalf of petitioners Sofia Bahena Ortuo and Roxana del Carmen Trigueros Acevedo, the motion is denied as moot. To the extent the motion is brought on behalf of petitioners Ricardo Vasquez Cruz, Ernesto Abroncio Uc Encarnacion, Julio Cesar Buendia Alas, and Marco Montoya Amaya, the motion is denied. To the extent the motion is brought on behalf of petitioners Salomon Medina Calderon, Gennady V. Lavrus, Charles Joseph, and J Elias Solorio Lopez, the motion is granted, and said petitioners shall be released upon issuance of an order setting conditions of release. The parties' respective counsel are directed to meet and confer forthwith and to propose, in a joint statement to be filed no later than April 10, 2020, at 11:00 a.m., any additional reasonable conditions. Respondents are directed to show cause, no later than April 22, 2020, why, as to Salomon Medina Calderon, Gennady V. Lavrus, Charles Joseph, and J Elias Solorio Lopez, a preliminary injunction should not issue. Petitioners' reply shall be filed no later than seven days after any such response is filed. As of the date the reply is filed, the Court, unless the parties are otherwise

04/09/2020
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advised, will take the matter under submission. Signed by Judge Maxine M. Chesney on April 8, 2020. (mmclc1, COURT STAFF) (Filed on 4/8/2020) (Entered: 04/08/2020)
39 REPLY (re 4 First MOTION for Temporary Restraining Order ) PETITIONERS-PLAINTIFFS RESPONSE TO DEFENDANTS SUPPLEMENT TO OPPOSITION TO MOTION FOR TEMPORARY RESTRAINING ORDER filed bySofia Bahena Ortuno, Claude Bent, Julio Cesar Buendia Alas, Charles Joseph, Salomon Medina Calderon, Marco Montoya Amaya, Mauricio Ernesto Quinteros Lopez, J. Elias Solorio Lopez, Olvin Said Torres Murillo, Roxana del Carmen Trigueros Acevedo, Ernesto Ambrocio Uc Encarnacion, Gennady Valeryevich Lavrus, Ricardo Vasquez Cruz. (Attachments: # 1 Declaration SUPPLEMENTAL DECLARATION OF WILLIAM S. FREEMAN IN SUPPORT OF PETITIONERS-PLAINTIFFS MOTION FOR TEMPORARY RESTRAINING ORDER, # 2 Declaration DECLARATION OF THOMAS J. BOERMAN, PH.D IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER, # 3 Declaration DECLARATION OF THOMAS R. PARKER IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER)(Freeman, William) (Filed on 4/9/2020) (Entered: 04/09/2020)
40 Statement re 38 Order,,,,, by Sofia Bahena Ortuno, Claude Bent, Julio Cesar Buendia Alas, Charles Joseph, Salomon Medina Calderon, Marco Montoya Amaya, Mauricio Ernesto Quinteros Lopez, J. Elias Solorio Lopez, Olvin Said Torres Murillo, Roxana del Carmen Trigueros Acevedo, Ernesto Ambrocio Uc Encarnacion, Gennady Valeryevich Lavrus, Ricardo Vasquez Cruz. (Riordan, Sean) (Filed on 4/10/2020) (Entered: 04/10/2020)
41 AMENDED DOCUMENT by Sofia Bahena Ortuno, Claude Bent, Julio Cesar Buendia Alas, Charles Joseph, Salomon Medina Calderon, Marco Montoya Amaya, Mauricio Ernesto Quinteros Lopez, J. Elias Solorio Lopez, Olvin Said Torres Murillo, Roxana del Carmen Trigueros Acevedo, Ernesto Ambrocio Uc Encarnacion, Gennady Valeryevich Lavrus, Ricardo Vasquez Cruz. Amendment to 40 Statement, Amended Joint Statement. (Riordan, Sean) (Filed on 4/10/2020) (Entered: 04/10/2020)
42 NOTICE by Sofia Bahena Ortuno, Claude Bent, Julio Cesar Buendia Alas, Charles Joseph, Salomon Medina Calderon, Marco Montoya Amaya, Mauricio Ernesto Quinteros Lopez, J. Elias Solorio Lopez, Olvin Said Torres Murillo, Roxana del Carmen Trigueros Acevedo, Ernesto Ambrocio Uc Encarnacion, Gennady Valeryevich Lavrus, Ricardo Vasquez Cruz re 41 Amended Document, PETITIONERS NOTICE OF SUPPLEMENTAL INFORMATION TO AMENDED JOINT STATEMENT (Riordan, Sean) (Filed on 4/10/2020) (Entered: 04/10/2020)
43 ORDER RE: JOINT STATEMENT REGARDING RELEASE CONDITIONS. Signed by Judge Maxine M. Chesney on April 13,

04/13/2020 04/13/2020 04/13/2020 04/13/2020 04/13/2020

2020.(mmclc1, COURT STAFF) (Filed on 4/13/2020) (Entered: 04/13/2020)
44 ORDER OF RELEASE AS TO PETITIONER SALOMON MEDINA CALDERON. Signed by Judge Maxine M. Chesney on April 13, 2020. (mmclc1, COURT STAFF) (Filed on 4/13/2020) (Entered: 04/13/2020)
45 ORDER OF RELEASE AS TO PETITIONER CHARLES JOSEPH. Signed by Judge Maxine M. Chesney on April 13, 2020. (mmclc1, COURT STAFF) (Filed on 4/13/2020) (Entered: 04/13/2020)
46 ORDER OF RELEASE AS TO PETITIONER J ELIAS SOLORIO LOPEZ. Signed by Judge Maxine M. Chesney on April 13, 2020. (mmclc1, COURT STAFF) (Filed on 4/13/2020) (Entered: 04/13/2020)
47 ORDER OF RELEASE AS TO PETITIONER GENNADY V. LAVRUS. Signed by Judge Maxine M. Chesney on April 13, 2020. (mmclc1, COURT STAFF) (Filed on 4/13/2020) (Entered: 04/13/2020)
48 STIPULATION WITH PROPOSED ORDER re 44

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Order, 41 Amended Document, Joint Stipulation and [Proposed] Order filed by Sofia Bahena Ortuno, Claude Bent, Julio Cesar Buendia Alas, Charles Joseph, Salomon Medina Calderon, Marco Montoya Amaya, Mauricio Ernesto Quinteros Lopez, J. Elias Solorio Lopez, Olvin Said Torres Murillo, Roxana del Carmen Trigueros Acevedo, Ernesto Ambrocio Uc Encarnacion, Gennady Valeryevich Lavrus, Ricardo Vasquez Cruz. (Freeman, William) (Filed on 4/13/2020) (Entered: 04/13/2020)
49 ORDER APPROVING JOINT STIPULATION. Signed by Judge Maxine M. Chesney on April 13, 2020. (mmclc1, COURT STAFF) (Filed on 4/13/2020) (Entered: 04/13/2020)
50 AMENDED ORDER OF RELEASE AS TO PETITIONER SALOMON MEDINA CALDERON. Signed by Judge Maxine M. Chesney on April 13, 2020. (mmclc1, COURT STAFF) (Filed on 4/13/2020) (Entered: 04/13/2020)
51 ORDER RE: DEFERRED PORTION OF PETITIONERS' MOTION FOR TEMPORARY RESTRAINING ORDER; DIRECTIONS TO PETITIONERS. Signed by Judge Maxine M. Chesney on April 14, 2020. (mmclc1, COURT STAFF) (Filed on 4/14/2020) (Entered: 04/14/2020)
52 NOTICE by Sofia Bahena Ortuno, Claude Bent, Julio Cesar Buendia Alas, Charles Joseph, Salomon Medina Calderon, Marco Montoya Amaya, Mauricio Ernesto Quinteros Lopez, J. Elias Solorio Lopez, Olvin Said Torres Murillo, Roxana del Carmen Trigueros Acevedo, Ernesto Ambrocio Uc Encarnacion, Gennady Valeryevich Lavrus, Ricardo Vasquez Cruz

re 51 Order on Motion for TRO NOTICE RE RELEASE OF PETITIONERS TORRES MURILLO AND QUINTEROS (Freeman, William) (Filed on 4/14/2020) (Entered: 04/14/2020)

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04/16/2020

53 ORDER OF RELEASE AS TO PETITIONER OLVIN SAID TORRES MURILLO. Signed by Judge Maxine M. Chesney on April 15, 2020. (mmclc1, COURT STAFF) (Filed on 4/15/2020) (Entered: 04/15/2020)
54 ORDER OF RELEASE AS TO MAURICIO ERNESTO QUINTEROS LOPEZ. Signed by Judge Maxine M. Chesney on April 15, 2020. (mmclc1, COURT STAFF) (Filed on 4/15/2020) (Entered: 04/15/2020)
55 First MOTION for Leave to File PETITIONERS-PLAINTIFFS MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION RE CERTAIN PETITIONERS filed by Sofia Bahena Ortuno, Claude Bent, Julio Cesar Buendia Alas, Charles Joseph, Salomon Medina Calderon, Marco Montoya Amaya, Mauricio Ernesto Quinteros Lopez, J. Elias Solorio Lopez, Olvin Said Torres Murillo, Roxana del Carmen Trigueros Acevedo, Ernesto Ambrocio Uc Encarnacion, Gennady Valeryevich Lavrus, Ricardo Vasquez Cruz. (Attachments: # 1 Declaration DECLARATION OF GENNA ELLIS BEIER IN SUPPORT OF MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION, # 2 ***FILED IN ERROR. SEE 56 FOR CORRECTION *** Declaration SECOND SUPPLEMENTAL DECLARATION OF ALLEN KELLER, MD IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER)(Freeman, William) (Filed on 4/15/2020) Modified on 4/20/2020 (ecgS, COURT STAFF). (Entered: 04/15/2020)
56 Declaration of ALLEN KELLER, MD in Support of 55 First MOTION for Leave to File PETITIONERS-PLAINTIFFS MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION RE CERTAIN PETITIONERS CORRECTION OF DOCKET # [55-2] filed bySofia Bahena Ortuno, Claude Bent, Julio Cesar Buendia Alas, Charles Joseph, Salomon Medina Calderon, Marco Montoya Amaya, Mauricio Ernesto Quinteros Lopez, J. Elias Solorio Lopez, Olvin Said Torres Murillo, Roxana del Carmen Trigueros Acevedo, Ernesto Ambrocio Uc Encarnacion, Gennady Valeryevich Lavrus, Ricardo Vasquez Cruz. (Related document(s) 55 ) (Freeman, William) (Filed on 4/16/2020) (Entered: 04/16/2020)
57 Proposed Order re 55 First MOTION for Leave to File PETITIONERSPLAINTIFFS MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION RE CERTAIN PETITIONERS by Sofia Bahena Ortuno, Claude Bent, Julio Cesar Buendia Alas, Charles Joseph, Salomon Medina Calderon, Marco Montoya Amaya, Mauricio Ernesto Quinteros Lopez, J. Elias Solorio Lopez, Olvin Said Torres Murillo, Roxana del Carmen Trigueros Acevedo, Ernesto Ambrocio Uc Encarnacion, Gennady Valeryevich Lavrus, Ricardo Vasquez Cruz. (Freeman, William) (Filed on 4/16/2020) (Entered: 04/16/2020)

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58 STIPULATION WITH PROPOSED ORDER re 46 Order Joint Stipulation and [PROPOSED] Order filed by Sofia Bahena Ortuno, Claude Bent, Julio Cesar Buendia Alas, Charles Joseph, Salomon Medina Calderon, Marco Montoya Amaya, Mauricio Ernesto Quinteros Lopez, J. Elias Solorio Lopez, Olvin Said Torres Murillo, Roxana del Carmen Trigueros Acevedo, Ernesto Ambrocio Uc Encarnacion, Gennady Valeryevich Lavrus, Ricardo Vasquez Cruz. (Riordan, Sean) (Filed on 4/17/2020) (Entered: 04/17/2020)
59 ORDER APPROVING JOINT STIPULATION. Petitioner J. Elias Solorio Lopez is to reside at 7256 Millwood Ave. #3, Canoga Park, California, 91303. The other conditions of release ordered by the Court remain unchanged. Signed by Judge Maxine M. Chesney on April 20, 2020. (mmclc1, COURT STAFF) (Filed on 4/20/2020) (Entered: 04/20/2020)
60 ORDER DENYING PETITIONERS' MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION. Signed by Judge Maxine M. Chesney on April 20, 2020. (mmclc1, COURT STAFF) (Filed on 4/20/2020) (Entered: 04/20/2020)
61 RESPONSE TO ORDER TO SHOW CAUSE by Matthew T Albence, David Jennings, U.S. Immigration and Customs Enforcement . (Attachments: # 1 Declaration Bonnar 4/22/20, # 2 Declaration Bonnar 4/2/20, # 3 Declaration Bonnar 3/30/20, # 4 Declaration Moon 3/27/20, # 5 Declaration Kaiser 4/22/20, # 6 Declaration Kaiser 4/2/20, # 7 Declaration Kaiser 3/26/20, # 8 Declaration Moon 3/26/20, # 9 Declaration Winslow 4/22/20)(Winslow, Sara) (Filed on 4/22/2020) (Entered: 04/22/2020)
62 NOTICE by Sofia Bahena Ortuno, Claude Bent, Julio Cesar Buendia Alas, Charles Joseph, Salomon Medina Calderon, Marco Montoya Amaya, Mauricio Ernesto Quinteros Lopez, J. Elias Solorio Lopez, Olvin Said Torres Murillo, Roxana del Carmen Trigueros Acevedo, Ernesto Ambrocio Uc Encarnacion, Gennady Valeryevich Lavrus, Ricardo Vasquez Cruz Notice of Withdrawal of Declaration of Dr. Ranit Mishori (ECF 412)*Incorrect Document reference- see 64 for correction. (Freeman, William) (Filed on 4/24/2020) Modified on 5/4/2020 (elyS, COURT STAFF). (Entered: 04/24/2020)
63 Statement of Recent Decision by Matthew T Albence, David Jennings, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Exhibit)(Winslow, Sara) (Filed on 4/28/2020) (Entered: 04/28/2020)
64 NOTICE by Sofia Bahena Ortuno, Claude Bent, Julio Cesar Buendia Alas, Charles Joseph, Salomon Medina Calderon, Marco Montoya Amaya, Mauricio Ernesto Quinteros Lopez, J. Elias Solorio Lopez, Olvin Said Torres Murillo, Roxana del Carmen Trigueros Acevedo, Ernesto Ambrocio Uc Encarnacion, Gennady Valeryevich Lavrus, Ricardo Vasquez Cruz

04/28/2020 04/29/2020 04/29/2020

re 62 Notice (Other), CORRECTION OF DOCKET # 62 (Freeman, William) (Filed on 4/28/2020) (Entered: 04/28/2020)
65 RESPONSE TO ORDER TO SHOW CAUSE by Matthew T Albence, David Jennings, U.S. Immigration and Customs Enforcement . (Attachments: # 1 Declaration Erik Bonnar 4/27/20, # 2 Declaration Erik Bonnar 4/2/20, # 3 Declaration Erik Bonnar 3/30/20, # 4 Declaration Jennifer Moon 3/27/20, # 5 Declaration Polly Kaiser 4/28/20, # 6 Declaration Polly Kaiser 4/2/20, # 7 Declaration Polly Kaiser 3/30/20, # 8 Declaration Jennifer Moon 3/26/20)(Winslow, Sara) (Filed on 4/28/2020) (Entered: 04/28/2020)
66 MOTION for leave to appear in Pro Hac Vice of Bree Bernwanger ( Filing fee $ 310, receipt number 0971-14423109.) filed by Sofia Bahena Ortuno, Julio Cesar Buendia Alas, Charles Joseph, Salomon Medina Calderon, Marco Montoya Amaya, Mauricio Ernesto Quinteros Lopez, J. Elias Solorio Lopez, Olvin Said Torres Murillo, Roxana del Carmen Trigueros Acevedo, Ernesto Ambrocio Uc Encarnacion, Gennady Valeryevich Lavrus, Ricardo Vasquez Cruz. (Bernwanger, Bree) (Filed on 4/29/2020) (Entered: 04/29/2020)
67 RESPONSE re 38 Order,,,,, PETITIONERS-PLAINTIFFS REPLY IN SUPPORT OF PRELIMINARY INJUNCTION RE PETITIONERS MEDINA CALDERON, LAVRUS, JOSEPH AND SOLORIO LOPEZ by Sofia Bahena Ortuno, Claude Bent, Julio Cesar Buendia Alas, Charles Joseph, Salomon Medina Calderon, Marco Montoya Amaya, Mauricio Ernesto Quinteros Lopez, J. Elias Solorio Lopez, Olvin Said Torres Murillo, Roxana del Carmen Trigueros Acevedo, Ernesto Ambrocio Uc Encarnacion, Gennady Valeryevich Lavrus, Ricardo Vasquez Cruz. (Attachments: # 1

Declaration Declaration of Hayden Rodarte, # 2 Declaration Second Supplemental Declaration of Robert B. Greifinger, MD, # 3

04/30/2020 05/03/2020 05/05/2020

Proposed Order [Proposed] Order)(Freeman, William) (Filed on 4/29/2020) (Entered: 04/29/2020)
68 ORDER GRANTING APPLICATION FOR ADMISSION OF ATTORNEY PRO HAC VICE. The application of Bree Bernwanger is granted. Signed by Judge Maxine M. Chesney on April 30, 2020. (mmclc1, COURT STAFF) (Filed on 4/30/2020) (Entered: 04/30/2020)
69 OBJECTIONS to re 67 Response ( Non Motion ),, OBJECTIONS TO EVIDENCE by Matthew T Albence, David Jennings, U.S. Immigration and Customs Enforcement. (Winslow, Sara) (Filed on 5/3/2020) (Entered: 05/03/2020)
70 RESPONSE TO ORDER TO SHOW CAUSE by Sofia Bahena Ortuno, Claude Bent, Julio Cesar Buendia Alas, Charles Joseph, Salomon Medina

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02/03/2021

Calderon, Marco Montoya Amaya, Mauricio Ernesto Quinteros Lopez, J. Elias Solorio Lopez, Olvin Said Torres Murillo, Roxana del Carmen Trigueros Acevedo, Ernesto Ambrocio Uc Encarnacion, Gennady Valeryevich Lavrus, Ricardo Vasquez Cruz PETITIONERS-PLAINTIFFS REPLY IN SUPPORT OF PRELIMINARY INJUNCTION RE PETITIONERS TORRES MURILLO AND QUINTEROS LOPEZ. (Attachments: # 1 Declaration Declaration of Hayden Rodarte In Support of Reply In Support of Preliminary Injunction Re Petitioners Torres Murillo and Quinteros Lopez, # 2 Proposed Order [Proposed] Order)(Freeman, William) (Filed on 5/5/2020) (Entered: 05/05/2020)
71 ORDER GRANTING PRELIMIINARY INJUNCTION AS TO PETITIONERS MEDINA CALDERON, LAVRUS, JOSEPH, SOLORIO LOPEZ, TORRES MURILLO, AND QUINTEROS. Signed by Judge Maxine M. Chesney on May 7, 2020. (mmclc1, COURT STAFF) (Filed on 5/7/2020) (Entered: 05/07/2020)
72 ORDER DIRECTING PARTIES TO FILE JOINT STATUS REPORT. The parties are directed to file a joint status report no later than May 18, 2020. Signed by Judge Maxine M. Chesney on May 7, 2020. (mmclc1, COURT STAFF) (Filed on 5/7/2020) (Entered: 05/07/2020)
73 STATUS REPORT by Matthew T Albence, David Jennings, U.S. Immigration and Customs Enforcement. (Winslow, Sara) (Filed on 5/18/2020) (Entered: 05/18/2020)
74 NOTICE by Matthew T Albence, David Jennings, U.S. Immigration and Customs Enforcement (Winslow, Sara) (Filed on 6/1/2020) (Entered: 06/01/2020)
75 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Matthew T Albence, David Jennings, U.S. Immigration and Customs Enforcement. (Appeal fee FEE WAIVED.) (Winslow, Sara) (Filed on 7/5/2020) (Entered: 07/05/2020)
76 USCA Case Number 20-16302 United States Court of Appeals for the Ninth Circuit (elyS, COURT STAFF) (Filed on 7/7/2020) (Entered: 07/08/2020)
77 ORDER of USCA (elyS, COURT STAFF) (Filed on 7/7/2020) (Entered: 07/08/2020)
78 ORDER of USCA as to 76 USCA Case Number 20-16302: The appellants unopposed motion for voluntarydismissal is granted. This appeal is dismissed. Fed. R. App. P. 42(b).A copy of this order sent to the district court shall act as and for the mandateof this court. (elyS, COURT STAFF) (Filed on 11/18/2020) (Entered: 11/24/2020)
79 ADMINISTRATIVE MOTION Status Conference filed by Sofia Bahena Ortuno, Claude Bent, Julio Cesar Buendia Alas, Charles Joseph, Salomon Medina Calderon, Marco Montoya Amaya, Mauricio Ernesto Quinteros Lopez, J. Elias Solorio Lopez, Olvin Said Torres Murillo, Roxana del

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02/12/2021

Carmen Trigueros Acevedo, Ernesto Ambrocio Uc Encarnacion, Gennady Valeryevich Lavrus, Ricardo Vasquez Cruz. Responses due by 2/8/2021. (Attachments: # 1 Proposed Order Granting Admin Motion Requesting Status Conference)(Wells, Jordan) (Filed on 2/3/2021) (Entered: 02/03/2021)
80 ORDER DENYING STIPULATED ADMINISTRATIVE MOTION REQUESTING STATUS CONFERENCE. Signed by Judge Maxine M. Chesney on February 4, 2021. (mmclc1, COURT STAFF) (Filed on 2/4/2021) (Entered: 02/04/2021)
81 MOTION Modify Conditions of Release by Plaintiffs-Petitioners filed by Sofia Bahena Ortuno, Claude Bent, Julio Cesar Buendia Alas, Charles Joseph, Salomon Medina Calderon, Marco Montoya Amaya, Mauricio Ernesto Quinteros Lopez, J. Elias Solorio Lopez, Olvin Said Torres Murillo, Roxana del Carmen Trigueros Acevedo, Ernesto Ambrocio Uc Encarnacion, Gennady Valeryevich Lavrus, Ricardo Vasquez Cruz. Motion Hearing set for 3/19/2021 09:00 AM in San Francisco, Courtroom 07, 19th Floor before Judge Maxine M. Chesney. Responses due by 2/26/2021. Replies due by 3/5/2021. (Attachments: # 1 Declaration Of Wells iso Motion to Modify Conditions of Release, # 2 Declaration Of Quinteros Lopez iso Motion to Modify Conditions of Release, # 3 Declaration Of Medina Calderon Calderon iso Motion to Modify Conditions of Release, # 4 Declaration Of Torres Murillo iso Motion to Modify Conditions of Release, # 5 Declaration Of Weisner iso Motion to Modify Conditions of Release, # 6 Declaration Of Upshaw iso Motion to Modify Conditions of Release, # 7 Declaration Of Joseph iso Motion to Modify Conditions of Release, # 8 Declaration Of Garcia iso Motion to Modify Conditions of Release, # 9 Proposed Order Granting Motion to Modify Conditions of Release)(Wells, Jordan) (Filed on 2/12/2021) (Entered: 02/12/2021)
82 STIPULATION WITH PROPOSED ORDER re 81 MOTION Modify Conditions of Release by Plaintiffs-Petitioners filed by Sofia Bahena Ortuno, Claude Bent, Julio Cesar Buendia Alas, Charles Joseph, Salomon Medina Calderon, Marco Montoya Amaya, Mauricio Ernesto Quinteros Lopez, J. Elias Solorio Lopez, Olvin Said Torres Murillo, Roxana del Carmen Trigueros Acevedo, Ernesto Ambrocio Uc Encarnacion, Gennady Valeryevich Lavrus, Ricardo Vasquez Cruz. (Attachments: # 1 Declaration Of Wells iso Stipulation and [Proposed] Order Granting Motion to Shorten Time)(Wells, Jordan) (Filed on 2/12/2021) (Entered: 02/12/2021)

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2.90

 
 Case 3:20-cv-02064-MMC Document 38 Filed 04/08/20 Page 1 of 10

United States District Court Northern District of California

1

2

3

4

5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE NORTHERN DISTRICT OF CALIFORNIA

7

8

SOFIA BAHENA ORTUÑO, et al.,

Case No. 20-cv-02064-MMC

9

Petitioners-Plaintiffs,

10

v.

11

DAVID JENNINGS, et al.,

ORDER RE: PETITIONERS' MOTION FOR TEMPORARY RESTRAINING ORDER; DIRECTIONS TO PARTIES

12

Respondents-Defendants.

13

14

Before the Court is petitioners' Motion, filed March 24, 2020, for a Temporary

15 Restraining Order, by which they seek an order releasing them from detention.

16 Respondents have filed opposition, to which petitioners have replied; in addition, with

17 leave of court, respondents have filed two supplemental declarations, to which petitioners

18 have filed their objections.

19

Having read and considered the above-referenced filings,1 the Court rules as

20 follows to the extent the motion is brought on behalf of all petitioners other than Olvin

21 Said Torres Murillo and Mauricio Ernesto Quinteros Lopez, as to whom the Court, for the

22 reasons stated in its order of April 3, 2020, has deferred ruling pending further briefing.

23

BACKGROUND

24

Petitioners are individuals who are being detained at either the Yuba County Jail

25 ("Yuba") or the Mesa Verde ICE Processing Facility ("Mesa Verde"), pending ongoing

26

27

1On April 6, 2020, petitioners filed a Statement of Recent Decisions and respondents filed a Statement of Recent Decision, both of which the Court has also

28 considered.

Case 3:20-cv-02064-MMC Document 38 Filed 04/08/20 Page 2 of 10

United States District Court Northern District of California

1 removal proceedings or effectuation of a final order of removal.2 Petitioners allege they

2 are being detained under circumstances that violate their due process rights, specifically,

3 their "substantive due process right" to be free from "conditions of confinement that

4 amount to punishment or create an unreasonable risk to detainees' safety and health."

5 As relief, petitioners seek, pursuant to 28 U.S.C. § 2241, an order of release from

6 detention.

7

LEGAL STANDARD

8

"Temporary restraining orders are governed by the same standard applicable to

9 preliminary injunctions." Quiroga v. Chen, 735 F. Supp. 2d 1226, 1228 (D. Nev. 2010).

10 "A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on

11 the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief,

12 that the balance of equities tips in his favor, and that an injunction is in the public

13 interest." Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24 (2008).

14 Additionally, where, as here, a plaintiff seeks a mandatory injunction, the plaintiff, to

15 establish the first factor, must show a "clear likelihood of success on the merits." See

16 Stanley v. University of Southern California, 13 F.3d 1313, 1316 (9th Cir. 1994).

17

DISCUSSION

18

The world is currently experiencing a global pandemic in light of the coronavirus

19 COVID-19. As of today's date, more than 419,000 persons in the United States have

20 become infected with COVID-19, more than 14,250 persons have died, and there is no

21 indication the pandemic has reached its peak.

22

In a very short period of time, and particularly in the past month, COVID-19 has

23 brought dramatic changes to the country, including the State of California's issuance of 24 an order directing all persons living in the state to "stay home" and to "at all times practice

25

26

2Although petitioners Sofia Bahena Ortuño and Roxana del Carmen Trigueros Acevedo were, at the time the motion was filed, being detained at Mesa Verde, both said

27

petitioners subsequently were released. (See Defs.' Opp. at 5:23-24; Supp. Bonnar Decl. ¶ 5.) Accordingly, to the extent the motion is brought on their behalf, it will be denied as

28 moot.

2

Case 3:20-cv-02064-MMC Document 38 Filed 04/08/20 Page 3 of 10

United States District Court Northern District of California

1 social distancing." See Cal. Executive Order N-33-20. The Centers for Disease Control

2 and Prevention ("CDC") likewise has advised all person to "stay home as much as

3 possible," to "take everyday precautions to keep space between yourself and others,"

4 and to "avoid crowds as much as possible," noting that the "risk of exposure . . . may

5 increase in crowded, closed-in settings with little air circulation." See

6 www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/get-ready.html.

7

Although there is no indication, at least in the record before the Court, that any

8 particular person or type of person is more susceptible to becoming infected with COVID-

9 19, the CDC has determined that certain types of persons who do became infected are

10 significantly more likely to have a severe illness or to die, including persons who are 65

11 years of age or older, and those who have certain medical conditions, such as moderate

12 to severe asthma, diabetes, chronic kidney disease, liver disease and hypertension. See

13 www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html;

14 www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html.

15

Petitioners argue that each of them has one or more of the above-described high-

16 risk factors, and that they are unable to engage in social distancing and to take other

17 steps to avoid infection. Under such circumstances, they seek release from detention

18 until the pandemic is over.

19

In opposing the motion, respondents make two threshold arguments, specifically,

20 (1) that petitioners lack Article III standing and (2) that a claim challenging conditions of

21 confinement cannot be brought under § 2241.

22

With respect to standing, respondents argue, in essence, that no petitioner

23 presently has COVID-19 and that any petitioner's likelihood of becoming infected is

24 speculative. COVID-19 infections, however, are rapidly increasing in the United States,

25 including California, and, when introduced into a confined space, such as a nursing home, a cruise ship, and, recently, a naval aircraft carrier, it can rapidly spread. Indeed,
26 it has quickly spread in a number of jails and prisons. (See Wells Decl. Exs. C-E.) Under
27 such circumstances, the Court finds petitioners have standing to assert their claims.
28

3

Case 3:20-cv-02064-MMC Document 38 Filed 04/08/20 Page 4 of 10

United States District Court Northern District of California

1

Turning to petitioner's reliance on § 2241, which provides district courts with the

2 power to issue writs of habeas corpus to persons being held in the custody of the United

3 States, the Court notes that the Ninth Circuit, as early as 1974, has found it "fairly well

4 established" that "federal habeas corpus actions are now available to deal with questions

5 concerning both the duration and the conditions of confinement." See Workman v.

6 Mitchell, 502 F.2d 1201, 1208 n.9 (9th Cir. 1974). Respondents have not cited any later

7 case holding to the contrary. Accordingly, the Court finds petitioners may seek, pursuant

8 to § 2241, relief from what they allege are unconstitutional conditions of confinement, and

9 next addresses the factors that are "pertinent in assessing the propriety of any injunctive

10 relief." See Winter, 555 U.S. at 32.

11

As to the first factor, likelihood of success on the merits, petitioner's claim, as

12 noted, is that their conditions of confinement, in light of the present COVID-19 pandemic,

13 are unconstitutional. In evaluating a claim that a detainee's conditions of confinement are

14 unconstitutional, "the proper inquiry is whether those conditions amount to punishment."

15 See Bell v. Wolfish, 441 U.S. 520, 535 (1979). "[P]unitive conditions," i.e., conditions

16 amounting to punishment, occur "(1) where the challenged restrictions are expressly

17 intended to punish, or (2) where the challenged restrictions serve an alternative, non-

18 punitive purpose but are nonetheless excessive in relation to the alternative purpose, or

19 are employed to achieve objectives that could be accomplished in

20 . . . alternative and less harsh methods." See Jones v. Blanas, 393 F.3d 918, 932 (9th

21 Cir. 2004) (internal quotations and citations omitted).

22

Here, petitioners do not assert respondents, by detaining them in the conditions

23 petitioners challenge, are intending to punish them. Nor do petitioners dispute

24 respondents' asserted purpose in detaining them, specifically, to ensure petitioners'

25 presence at immigration proceedings and the government's ability to effectuate any final orders of removal. Consequently, the issue here presented is whether petitioners are
26 likely to show that, given their alleged health concerns, their detention is excessive in
27 relation to the government's needs. In resolving that issue, the Court considers each
28

4

Case 3:20-cv-02064-MMC Document 38 Filed 04/08/20 Page 5 of 10

United States District Court Northern District of California

1 petitioner's showing separately, as "constitutional rights are personal." See Broadrick v.

2 Oklahoma, 413 U.S. 601, 610 (1973).

3

First, as to Ricardo Vasquez Cruz ("Vasquez Cruz"), Ernesto Abroncio Uc

4 Encarnacion ("Uc Encarnacion"), Julio Cesar Buendia Alas ("Buendia Alas"), and Marco

5 Montoya Amaya ("Montoya"), the Court finds petitioners have not shown a "clear 6 likelihood of success on the merits." See Stanley, 13 F.3d at 1316.3 Specifically, the
7 record lacks evidence clearly demonstrating a medical condition that places any of them 8 at a "higher risk for severe illness from COVID-19." See www.cdc.gov/coronavirus/20199 ncov/need-extra-precautions/people-at-higher-risk.html.4 Vasquez Cruz describes 10 himself as diabetic, but Yuba medical staff lists him as prediabetic (see Kaiser Decl. 11 ¶ 13), and he is taking metformin, a drug commonly used to treat prediabetics, see 12 www.mayoclinic.org/diseases-conditions/prediabetes/diagnosis-treatment/drc-20355284; 13 prediabetes has not been recognized by the CDC as a high-risk factor. Uc Encarnacion 14 told his immigration counsel he had asthma as a child (see Yamane Decl. ¶ 5), but he 15 has denied to the Yuba medical staff that he presently has asthma (see Kaiser Decl. 16 ¶ 11). Although Buendia Alas states that, on dates that are undisclosed, he had 17 "readings of high blood pressure" (see Buendia Alas Decl. ¶ 5), there is no showing he 18 has been diagnosed with hypertension, i.e., that his blood pressure "consistently ranges 19 from 130-139 systolic or 80-89 mm Hg diastolic," see www.heart.org/en/health20 topics/high-blood-pressure/understanding-blood-pressure-readings. Lastly, the parasitic 21 infection with which Montoya has been "tentatively diagnosed" (see Wolfe-Roubatis Decl.

22

23

3In making this finding and the findings set forth below, the Court has considered

24

hearsay evidence offered by petitioners and by respondents. See Flynt Distrib. Co. v. Harvey, 734 F. 2d 1389, 1394 (9th Cir. 1984) (holding district court did not err by

25

considering hearsay evidence offered in connection with motion for preliminary injunction; finding "trial court may give even inadmissible evidence some weight when to do so

26 serves the purpose of preventing irreparable harm before trial").

27

4Petitioners do not argue, and the Court does not consider whether, during the COVID-19 pandemic, it is unconstitutional for respondents to detain in crowded facilities

28 persons who are not at such increased risk.

5

Case 3:20-cv-02064-MMC Document 38 Filed 04/08/20 Page 6 of 10

United States District Court Northern District of California

1 ¶¶ 8-9), is not included in the list of conditions identified by the CDC as high risk factors,

2 and, although he states he has tuberculosis, his last chest x-ray was "within normal

3 limits" and his last skin test was "found negative for TB" (see Bonnar Decl. ¶ 15).

4 Accordingly, issuance of a temporary restraining order as to the above four petitioners

5 will be denied.

6

The Court finds, however, petitioners have clearly shown four other petitioners are

7 at high risk of severe illness if infected with COVID-19. The parties agree Salomon

8 Medina Calderon ("Medina Calderon") has been diagnosed with and receives treatment

9 for diabetes (see Medina Calderon Decl. ¶ 6; Kaiser Decl. ¶ 10); he has been

10 "hospitalized many times despite taking diabetic medication" and has lost all vision in one

11 eye and 70% of his vision in the other (see Medina Calderon ¶ 6). The parties agree

12 Gennady V. Lavrus ("Lavrus") likewise has been diagnosed with and receives treatment

13 for diabetes (see Upshaw Decl. ¶ 5; Kaiser Decl. ¶ 12); his condition is of a severity that

14 requires him to take insulin by injection (see Upshaw Decl. ¶¶ 5, 7). The parties agree

15 Charles Joseph ("Joseph") has asthma (see Joseph Decl. ¶ 13; Bonnar Decl. ¶ 10),

16 which condition has required him, for the past six years, to use albuterol (see Joseph

17 Decl. ¶ 13). Lastly, J Elias Solorio Lopez ("Solorio Lopez") is 82 years of age (see

18 Waldron Decl. ¶ 3; Bonnar Decl. ¶ 11), and, as reported by a physician who examined

19 him in January 2020, has a "history of hypertension" and "polycystic kidney disease," as

20 well as "severe malnutrition" and other ailments (see Waldron Decl. ¶ 8; Haar Decl.

21 ¶ 2 and attachment thereto).

22

The Court further finds petitioners have clearly shown the above-referenced four

23 petitioners cannot practice meaningful social distancing in their respective detention

24 facilities. Petitioners have offered evidence, undisputed by respondents, that detainees,

25 both at Yuba and Mesa Verde, are kept in close proximity, i.e., less than six feet apart, not only when in their living quarters (see Medina Calderon Decl. ¶ 16; Upshaw Decl.
26 ¶ 19; Minchaca Ramos ¶¶ 12, 15; Joseph Decl. ¶¶ 9-10; Knox Decl. ¶ 9), but also during
27 meals (see Supp. Weisner Decl. ¶ 4.ii; Rodarte ¶ 10; Knox Decl. ¶ 10; Bent Decl. ¶ 11;
28

6

Case 3:20-cv-02064-MMC Document 38 Filed 04/08/20 Page 7 of 10

United States District Court Northern District of California

1 Joseph Decl. ¶ 11), and, at Yuba, when lining up for temperature checks as well (see 2 Supp. Upshaw Decl. ¶ 6; Rodarte ¶ 10).5 Additionally, petitioners have offered evidence,

3 undisputed by respondents, that detainees at Yuba and Mesa Verde have not been

4 provided with masks (see Yamane Decl. ¶ 12; Rodarte Decl. ¶ 9; Bent Decl. ¶ 13; Wolfe-

5 Roubatis Decl. ¶ 13), and respondents do not assert they have any plans to do so.

6 Similarly, there is undisputed evidence that staff at Yuba and Mesa Verde, with limited

7 exception, do not wear masks or other protective equipment when in the immediate

8 vicinity of detainees. (See Yamane Decl. ¶ 12; Upshaw Decl. ¶¶ 12, 14; Supp. Upshaw

9 ¶¶ 7-8; Rodarte Decl. ¶ 9; Bent Decl. ¶ 13; Knox Decl. ¶¶ 7, 15; Supp. Joseph Decl. ¶ 7.)

10

Although, as noted, it is undisputed that respondents have a non-punitive purpose

11 in detaining Medina Calderon, Lavrus, Joseph, and Solorio Lopez, namely to ensure their

12 respective appearances at immigration proceedings and to effectuate any final orders of

13 removal, the Court finds petitioners have made a strong showing that respondents'

14 detaining them in the above-referenced conditions, in spite of their knowledge of said

15 petitioners' respective high-risk status, is "excessive in relation to [that] purpose." See

16 Jones, 393 F.3d at 932. Accordingly, with respect to these four petitioners, the Court

17 finds a clear showing has been made that they are likely to succeed on the merits of their

18 Fifth Amendment claim.

19

Next, with respect to the question of whether petitioners have shown a likelihood

20 of irreparable harm, the Court first notes the virus, as explained by the CDC, "is thought

21 to spread mainly from person-to-person, through respiratory droplets produced when an 22 infected person coughs or sneezes," and that such "droplets can land in the mouths or 23 noses of people who are nearby or be launched into the air and inhaled into someone's 24 lungs." See www.cdc.gov/coronavirus/2019-ncov/community/correction25 detention/faq.html. Further, the Court finds petitioners have shown Medina Calderon,
Lavrus, Joseph, and Solorio Lopez cannot meaningfully, if in any manner, adhere to the 26

27

5There is no evidence Mesa Verde conducts temperature checks of detainees,

28 other than one initially at "intake." (See Moon Decl. ¶ 18.)

7

Case 3:20-cv-02064-MMC Document 38 Filed 04/08/20 Page 8 of 10

United States District Court Northern District of California

1 advice the country's health officials, including those at the CDC, have repeatedly given to

2 all persons in the United States as to how to avoid becoming infected with COVID-19,

3 specifically, to engage at all times in social distancing, to use protective equipment such

4 as masks, gloves, or other coverings when in close contact with others, and to frequently

5 wash or otherwise sanitize one's hands.

6

Under such circumstances, the Court finds petitioners have made a sufficient

7 showing that Medina Calderon, Lavrus, Joseph, and Solorio Lopez, as persons at high

8 risk of severe illness or death if infected with COVID-19, are likely to incur irreparable

9 injury in the absence of any relief from their present conditions of confinement.

10

The Court next finds the balance of hardships tips in favor of Medina Calderon,

11 Lavrus, Joseph, and Solorio Lopez. As noted, none of these petitioners is in a position to

12 meaningfully limit his exposure to COVID-19 while at Yuba or Mesa Verde. Although 13 respondents may have concerns about flight risk or other matters,6 the Court intends to

14 address those issues by imposing reasonable conditions upon release, as discussed

15 below.

16

Lastly, the Court finds, under the highly unusual circumstances presented, i.e., a

17 global pandemic of a type not seen within recent memory, the public interest is served by

18 the requested injunction. Specifically, the public interest in promoting public health is

19 served by efforts to contain the further spread of COVID-19, particularly in detention

20 centers, which typically are staffed by numerous individuals who reside in nearby

21 communities.

22

Accordingly, the Court will grant the motion to the extent it is brought on behalf of

23 Medina Calderon, Lavrus, Joseph, and Solorio Lopez.

24 //

25 //

// 26

27

6To date, respondents have not identified any concern specific to any of these four

28 individuals.

8

Case 3:20-cv-02064-MMC Document 38 Filed 04/08/20 Page 9 of 10

United States District Court Northern District of California

1

The Court will not, however, order any such petitioner to be released without

2 reasonable conditions, and, as to each such petitioner, will include the following

3 conditions in its order of release:

4

(1) Petitioner is to reside and shelter in place at an address to be specified in said

5 order.7

6

(2) Petitioner shall be transported by a person to be specified in said order from

7 his place of detention to the residence where he will reside and shelter in place.8

8

(3) Pending further order of the Court, petitioner shall not leave the residence

9 where he will shelter in place, except to obtain medical care, to appear at immigration

10 court proceedings, or to obey any order issued by the Department of Homeland Security.

11

(4) Petitioner shall not violate any federal, state, or local law.

12

In addition, the Court will direct the parties' respective counsel to meet and confer,

13 by email, telephone, or other means, and to propose, in a joint statement any additional

14 reasonable conditions.

15 //

16 // 17 // 18 // 19 // 20 // 21 // 22 // 23 // 24 // 25 //

26

7The address for each petitioner is to be provided by petitioners' counsel.

27

8The name of the transporter of each petitioner is to be provided by petitioners'

28 counsel.

9

Case 3:20-cv-02064-MMC Document 38 Filed 04/08/20 Page 10 of 10

United States District Court Northern District of California

1

CONCLUSION

2

For the reasons stated, petitioners' motion is hereby GRANTED in part and

3 DENIED in part, as follows:9

4

1. To the extent the motion is brought on behalf of petitioners Sofia Bahena

5 Ortuño and Roxana del Carmen Trigueros Acevedo, the motion is DENIED as moot.

6

2. To the extent the motion is brought on behalf of petitioners Ricardo Vasquez

7 Cruz, Ernesto Abroncio Uc Encarnacion, Julio Cesar Buendia Alas, and Marco Montoya

8 Amaya, the motion is DENIED.

9

3. To the extent the motion is brought on behalf of petitioners Salomon Medina

10 Calderon, Gennady V. Lavrus, Charles Joseph, and J Elias Solorio Lopez, the motion is

11 hereby GRANTED, and said petitioners shall be released upon issuance of an order

12 setting conditions of release. The parties' respective counsel are hereby DIRECTED to

13 meet and confer forthwith and to propose, in a joint statement to be filed no later than

14 April 10, 2020, at 11:00 a.m., any additional reasonable conditions.

15

4. Respondents are hereby DIRECTED to show cause, no later than April 22,

16 2020, why, as to Salomon Medina Calderon, Gennady V. Lavrus, Charles Joseph, and J

17 Elias Solorio Lopez, a preliminary injunction should not issue. Petitioners' reply shall be

18 filed no later than seven days after any such response is filed. As of the date the reply is

19 filed, the Court, unless the parties are otherwise advised, will take the matter under

20 submission.

21

IT IS SO ORDERED.

22 23 Dated: April 8, 2020
24

MAXINE M. CHESNEY United States District Judge

25

26

27

9As noted in the Court's order of April 3, 2020, the Court has deferred ruling on the motion to the extent it is brought on behalf of Olvin Said Torres Murillo and Mauricio

28 Ernesto Quinteros Lopez. To such extent, the motion remains pending.

10

 
 Case 3:20-cv-02064-MMC Document 51 Filed 04/14/20 Page 1 of 5

United States District Court Northern District of California

1

2

3

4

IN THE UNITED STATES DISTRICT COURT

5

FOR THE NORTHERN DISTRICT OF CALIFORNIA

6

7

SOFIA BAHENA ORTUÑO, et al.,

8

Plaintiffs,

9

v.

10

DAVID JENNINGS, et al.,

11

Defendants.

Case No. 20-cv-02064-MMC
ORDER RE: DEFERRED PORTION OF PETITIONERS' MOTION FOR TEMPORARY RESTRAINING ORDER; DIRECTIONS TO PETITIONERS

12

13

On April 8, 2020, the Court issued its order granting in part and denying in part

14 petitioners' Motion, filed March 24, 2020, for a Temporary Restraining Order. Now before

15 the Court is the deferred portion thereof, specifically, petitioners' request that Olvin Said

16 Torres Murillo ("Torres Murillo") and Mauricio Ernesto Quinteros Lopez ("Quinteros") be

17 released from detention. As to these two petitioners, the parties, with leave of court,

18 have filed supplemental briefs and evidence. Having read and considered the parties'

19 respective written submissions, the Court rules as follows.

20

In its April 8 order, the Court ruled on the motion as to all petitioners other than

21 Torres Murillo and Quinteros. (See Doc. No. 38.) To the extent such order is applicable

22 to all petitioners, the Court incorporates said order herein.

23

In that same order, the Court identified and discussed the factors "pertinent in

24 assessing the propriety of any injunctive relief." See Winter v. Natural Resources

25 Defense Council, Inc., 555 U.S. 7, 32 (2008). This order considers the question of

26 whether those factors weigh in favor of or against the relief sought on behalf of Torres

27 Murillo and Quinteros.

28 //

Case 3:20-cv-02064-MMC Document 51 Filed 04/14/20 Page 2 of 5

United States District Court Northern District of California

1

Petitioners assert, and respondents do not dispute, that Torres Murillo has

2 hypertension and has been receiving medication for such condition while detained. (See

3 Weisner Decl. ¶¶ 8-10.) Petitioners also assert, and respondents do not dispute,

4 Quinteros has hypertension and that respondents have been aware of such condition as

5 of the date he was detained by ICE. (See Patel Decl. ¶ 5; Supp. Freeman Decl. Ex. B at

6 5.) Although respondents, citing a page of a Centers for Disease Control website, argue

7 persons with hypertension have not been recognized as being at a higher risk of severe

8 illness or death if infected with COVID-19, another page of the same website does

9 include persons with hypertension in that higher-risk group, see

10 www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html

11 (listing hypertension as condition "associated with increased illness severity and adverse

12 outcomes"), and, as petitioners point out, several medical studies have found persons

13 with hypertension are at such higher risk (see Supp. Keller Decl. ¶ 5).

14

Accordingly, for the same reasons as were found as to petitioners Salomon

15 Medina Calderon, Gennady V. Lavrus, Charles Joseph, and J Elias Solorio Lopez, the

16 Court finds a clear showing has been made by Torres Murillo and Quinteros as to the

17 four pertinent factors. Specifically, Torres Murillo and Quinteros have shown (1) they are

18 "likely to succeed on the merits" of their Fifth Amendment claim, (2) they are "likely to

19 suffer irreparable harm in the absence of preliminary relief" from their present conditions

20 of confinement, (3) the "balance of equities tips in [their] favor," and (4) "an injunction is in

21 the public interest." (See Doc. No. 38 at 2:10-13; see also id. at 6:22-8:21.)

22 Respondents argue Torres Murillo and Quinteros, for reasons specific to said petitioners,

23 nonetheless should not be released. The Court addresses below the circumstances

24 pertaining to these two petitioners.

25

Torres Murillo entered the country lawfully on a T-2 visa more than nine years ago,

26 has no criminal history, and, at the time of his detention by ICE, was residing lawfully in

27 the Bay Area with his wife and two children. See Torres Murillo v. Barr, Civil Case No.

28 19-5676 SK, Doc. No. 16 at 1:19-23; (Weisner Decl. ¶ 6). The sole basis for his

2

Case 3:20-cv-02064-MMC Document 51 Filed 04/14/20 Page 3 of 5

United States District Court Northern District of California

1 detention is a notice issued by Honduras requesting he be so held. Although an

2 immigration judge found the possibility of his involuntary return to Honduras made Torres

3 Murillo a potential flight risk, the notice was issued over a year and half ago, and

4 Honduras has taken no steps to seek Torres Murillo's extradition. (See Second Supp.

5 Kaiser Decl. ¶ 3.) Moreover, according to the Department of Justice, the United States

6 does not consider such notice "alone to be a sufficient basis for the arrest of a subject

7 because it does not meet the requirements for arrest under the 4th Amendment to the

8 Constitution." See https://www.justice.gov/interpol-washington/frequently-asked-

9 questions.

10

Quinteros entered the country legally on a six-month tourist visa but remained

11 after it expired, which extended stay was the basis for his detention. (See Bonnar Decl.

12 ¶ 13.) He subsequently was found by an immigration judge to pose a danger to the

13 community in light of a single vehicle code violation, which, although as Quinteros

14 conceded, involved his driving a motorcycle at a high rate of speed (see Supp. Freeman

15 Decl. Ex. B at 9), is his only encounter with law enforcement during the five years he has

16 been here. Further, although respondents state Quinteros's name is in an El Salvador

17 gang-membership database (see Second Supp. Bonnar Decl. ¶ 2), the immigration judge

18 found Quinteros was not a gang member (see Supp. Freeman Decl. Ex. B at 14).

19

Under the circumstances, the Court finds respondents' concerns do not warrant

20 denial of the relief sought by either petitioner.

21

Accordingly, the Court will grant the deferred portion of the motion, and, as to each

22 petitioner, will include the following conditions in its order of release:

23

(1) Petitioner is to reside and shelter in place at an address to be specified in said

24 order.1

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(2) Petitioner shall be transported by a person to be specified in said order from

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1The address for each petitioner is to be provided by petitioners' counsel.

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United States District Court Northern District of California

1 his place of detention to the residence where he will reside and shelter in place.2

2

(3) Pending further order of the Court, petitioner shall not leave the residence

3 where he will shelter in place, except to obtain medical care, to appear at immigration

4 court proceedings, or to obey any order issued by the Department of Homeland Security.

5

(4) Petitioner shall not violate any federal, state, or local law.

6

(5) Petitioner shall comply with the usual conditions of release set forth in ICE's

7 order of own recognizance, and if petitioner becomes subject to a final order of removal,

8 he shall comply with the usual conditions of release set forth in ICE's order of

9 supervision.

10

(6) At the election of DHS and/or ICE, petitioner's whereabouts may be monitored

11 by telephonic and/or electronic and/or GPS monitoring.

12

Additionally, as to Quinteros only, the Court will include a condition prohibiting him

13 from driving.

14

CONCLUSION

15

For the reasons stated, the deferred portion of petitioners' motion is hereby

16 GRANTED, as follows:

17

1. To the extent the motion is brought on behalf of petitioners Olvin Said Torres

18 Murillo and Mauricio Ernesto Quinteros Lopez, the motion is hereby GRANTED, and said

19 petitioners shall be released upon the filing of an order setting conditions of release,

20 which order will be issued following each petitioner's filing of a notice setting forth the

21 address at which he shall reside and shelter in place, as well as the name of his

22 transporter.

23

2. Respondents are hereby DIRECTED to show cause, no later than April 28,

24 2020, why, as to Olvin Said Torres Murillo and Mauricio Ernesto Quinteros Lopez, a

25 preliminary injunction should not issue. Petitioners' reply shall be filed no later than

26 seven days after any such response is filed. As of the date the reply is filed, the Court,

27

2The name of the transporter of each petitioner is to be provided by petitioners'

28 counsel.

4

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United States District Court Northern District of California

1 unless the parties are otherwise advised, will take the matter under submission.

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IT IS SO ORDERED.

3

4 Dated: April 14, 2020 5

MAXINE M. CHESNEY United States District Judge

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 Case 3:20-cv-02064-MMC Document 60 Filed 04/20/20 Page 1 of 2

United States District Court Northern District of California

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

6

7

SOFIA BAHENA ORTUNO, et al.,

8

Plaintiffs,

9

v.

10

DAVID JENNINGS, et al.,

11

Defendants.

Case No. 20-cv-02064-MMC
ORDER DENYING PETITIONERS' MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION Re: Doc. No. 55

12

13

Before the Court is petitioners' "Motion for Leave to File Motion for

14 Reconsideration Re: Certain Petitioners," filed April 15, 2020. Having read and

15 considered the motion, the Court rules as follows.

16

In an order filed April 8, 2020, the Court granted in part and denied in part

17 petitioners' Motion for a Temporary Restraining Order. By the instant motion, petitioners

18 seek leave to file a motion for reconsideration of said order to the extent the order denied

19 relief to petitioners Ricardo Vasquez Cruz ("Vasquez Cruz"), Julio Cesar Buendia Alas

20 ("Buendia Alas"), and Marco Montoya Amaya ("Montoya").

21

In support of their proposed motion for reconsideration, petitioners have filed new

22 evidence, in particular, a declaration by a physician who reviewed medical records

23 available for each of the above-referenced three petitioners, which declaration,

24 petitioners assert, demonstrates that each of those petitioners has at least one health

25 condition that places him at a high risk of contracting a severe illness if infected by

26 COVID-19.

27

Under the Local Rules of this District, a party seeking reconsideration of an

28 interlocutory order must show (1) "a material difference in fact or law exists from that

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United States District Court Northern District of California

1 which was presented to the Court before entry of the interlocutory order" and that "in the

2 exercise of reasonable diligence the party applying for reconsideration did not know such

3 fact or law at the time of the interlocutory order"; (2) "[t]he emergence of new material

4 facts or a change in law occurring after the time of such order"; or (3) "[a] manifest failure

5 by the Court to consider material facts or dispositive legal arguments which were

6 presented to the Court before such interlocutory order." See Civil L. R. 7-9(b).

7

Here, petitioners rely on the first two of the above-cited circumstances.

8 Petitioners, however, have not shown the subject medical records did not exist prior to

9 the date on which petitioners filed their Motion for a Temporary Restraining Order, nor

10 have they shown those records could not have been obtained prior to such date.

11

Accordingly, the Motion for Leave to File a Motion for Reconsideration is hereby

12 DENIED, without prejudice to the filing of a motion for a preliminary injunction. In any

13 such motion, petitioners are advised to address, in addition to the medical issues,1 the

14 question of whether the conditions existing in the detention facilities have changed, and,

15 in light of adverse findings made, as to Vasquez Cruz and Montoya, by an immigration

16 judge (see Kaiser Decl. ¶ 13; Bonnar Decl. ¶ 15), and, as to Buendia Alas, by

17 Immigration and Customs Enforcement (see Bonnar Decl. ¶ 12), whether release of the

18 above-referenced petitioners is in the public interest.

19

IT IS SO ORDERED.

20

21 Dated: April 20, 2020 22 23

MAXINE M. CHESNEY United States District Judge

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1In that regard, the Court notes the average of the blood pressure readings for both Vasquez Cruz and Buendia Alas falls within the normal range. (See Second Supp.

28 Keller Decl. ¶¶ 14, 25; see also id. n.5.)

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 Case 3:20-cv-02064-MMC Document 71 Filed 05/07/20 Page 1 of 6

United States District Court Northern District of California

1

2

3

4

IN THE UNITED STATES DISTRICT COURT

5

FOR THE NORTHERN DISTRICT OF CALIFORNIA

6

7

SOFIA BAHENA ORTUÑO, et al.,

Case No. 20-cv-02064-MMC

8

Petitioners-Plaintiffs

9

v.

10

DAVID JENNINGS, et al.,

ORDER GRANTING PRELIMIINARY INJUNCTION AS TO PETITIONERS MEDINA CALDERON, LAVRUS, JOSEPH, SOLORIO LOPEZ, TORRES MURILLO, AND QUINTEROS

11

Respondents-Defendants.

12

13

On March 24, 2020, petitioners filed a "Petition for Writ of Habeas Corpus

14 Pursuant to 28 U.S.C. § 2241." Subsequently, by order filed April 8, 2020 ("April 8

15 Order"), the Court granted petitioners' motion for a temporary restraining order as to

16 Salomon Medina Calderon ("Medina Calderon"), Gennady V. Lavrus ("Lavrus"), Charles

17 Joseph ("Joseph"), and J. Elias Solorio Lopez ("Solorio Lopez"), and directed

18 respondents to show cause why a preliminary injunction should not issue mandating the

19 continued release of those four petitioners. Thereafter, by order filed April 14, 2020

20 ("April 14 Order"), the Court granted petitioners' motion for a temporary restraining order

21 as to two additional petitioners, specifically, Olvin Said Torres Murillo ("Torres Murillo")

22 and Mauricio Ernesto Quinteros Lopez ("Quinteros"), and directed respondents to show

23 cause why a preliminary injunction should not issue as to those two petitioners as well.

24

Now before the Court are respondents' responses to the above-referenced orders

25 to show cause and petitioners' replies thereto.1 Having read and considered the parties'

26

27

1Unless otherwise specified, all references below to "petitioners" are to the six

28 individuals identified above.

Case 3:20-cv-02064-MMC Document 71 Filed 05/07/20 Page 2 of 6

United States District Court Northern District of California

1 respective written submissions, the Court rules as follows.

2

In their responses, respondents reiterate two threshold arguments set forth in their

3 opposition to the motion for a temporary restraining, specifically, that (1) petitioners lack

4 standing, and (2) petitioners may not proceed under § 2241. The Court has considered

5 these arguments anew and, for the reasons set forth in the Court's April 8 Order, finds

6 petitioners have standing to assert the claims alleged in their petition and that they may

7 proceed under § 2241.

8

Next, relying on 28 U.S.C. § 2241, respondents argue, for the first time, the Court

9 lacks jurisdiction to consider petitioners' claims. Section § 2241 provides that "[w]rits of

10 habeas corpus may be granted by the Supreme Court, any justice thereof, the district

11 courts and any circuit judge within their respective jurisdictions." See 28 U.S.C.

12 § 2241(a). Respondents contend the phrase "within their respective jurisdictions" is a

13 reference to subject-matter jurisdiction. As interpreted by the Supreme Court, however,

14 the phrase is used "not in the sense of subject-matter jurisdiction," see Rumsfeld v.

15 Padilla, 542 U.S. 426, 434 n.7 (2004), but, rather, "require[s] nothing more than that the

16 court issuing the writ have jurisdiction over the custodian," see id. at 442 (internal

17 quotation and citation omitted). In other words, "the question of the proper location for a

18 habeas petition is best understood as a question of personal jurisdiction or venue." See

19 id. at 451 (Kennedy, J., concurring)). The Court thus turns to the question of whether

20 petitioners have named a proper respondent, i.e., a custodian over whom the Court has

21 jurisdiction.2

22

At the time the instant action was filed, petitioners were detained either at Yuba

23 County Jail ("Yuba"), a county facility, or at Mesa Verde Detention Facility ("Mesa

24 Verde"), a privately run facility. As both facilities are located in the Eastern District of

25

26

2Petitioners contend respondents waived their right to raise this issue by not

27

addressing it in their response to petitioners' motion for a temporary restraining order. For purposes of the instant order, the Court assumes respondents have not waived their

28 ability to raise this issue.

2

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United States District Court Northern District of California

1 California, as would be the wardens or other officials who supervise the detainees

2 therein, respondents argue the instant action should have been filed in the Eastern

3 District. The Court finds persuasive, however, decisions holding that where, as here, a

4 detainee is, pursuant to a contract with Immigration and Customs Enforcement ("ICE"),

5 held in a county facility or a privately run facility, the proper custodian is the ICE official

6 who "oversee[s]" the facility. See Roman v. Ashcroft, 340 F.3d 314, 320-21 (6th Cir.

7 2003) (holding "District Director" who "oversee[s]" facility where petitioner is detained is

8 proper respondent in § 2241 action); Saravia v. Sessions, 280 F. Supp. 3d 1168, 1185

9 (N.D. Cal. 2017) (holding, in § 2241 action where "petitioner [is] held in federal detention

10 in a non-federal facility pursuant to a contract," proper respondent is "federal official most

11 directly responsible for overseeing that contract facility"); Zabadi v. Chertoff, 2005 WL

12 1514122, at *3 (N.D. Cal. June 17, 2005) (holding, where petitioner is detained by ICE in

13 county jail, ICE "district director," having "full authority to direct the local warden to

14 release petitioner," is proper respondent). Additionally, as those cases explain, the

15 district in which such ICE official is located is a proper forum in which to hear a detainee's

16 habeas petition. See, e.g., Saravia, 280 F. Supp. 3d at 1187 (finding § 2241 petition

17 "properly" heard in district in which it was filed, where respondent ICE official with

18 oversight over jail detaining petitioner was within court's "territorial jurisdiction").

19

Here, petitioners have named as a respondent David Jennings ("Jennings"), who,

20 petitioners allege, is "the Acting Field Director for the San Francisco Field Office of ICE"

21 and "responsible for carrying out ICE's immigration detention operations at Mesa Verde

22 and Yuba." (See Petition ¶ 28.) As respondents have not disputed Jennings' position,

23 and in light of the authorities set forth above, the Court finds, as have other judges in this

24 district, he is a proper respondent in § 2241 actions filed by detainees at Yuba and Mesa

25 Verde; accordingly, the Court finds the petition is properly filed in this district. See, e.g.,

26 Doe v. Barr, 2020 WL 1984266, at *5 (N.D. Cal. April 27, 2020) (finding Jennings is

27 "proper respondent" in § 2241 petition filed by Yuba detainee); see also Zepeda Rivas v.

28 Jennings, 2020 WL 2059848, at *2 (N.D. Cal. April 29, 2020) (finding Northern District of

3

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United States District Court Northern District of California

1 California "proper forum" for § 2241 petition filed by detainees at Yuba and Mesa Verde,

2 where petitioners named Jennings as respondent).

3

The Court next considers whether the temporary restraining orders previously

4 issued should be converted into a preliminary injunction. As set forth in the April 8 Order,

5 "'[a] plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed

6 on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary

7 relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the

8 public interest.'" (See April 8 Order at 2:10-13 (quoting Winter v. Natural Resources

9 Defense Council, Inc., 555 U.S. 7, 24 (2008)).)

10

The Court, in its April 8 and April 14 Orders, identified the evidence and reasons

11 why petitioners had shown the above-referenced four factors supported issuance of a

12 temporary restraining order, including their heightened risk of illness if infected with

13 COVID-19 and their inability to practice meaningful social distancing or otherwise

14 meaningfully adhere to the country's health official's advice as to how to avoid contracting

15 COVID-19. (See April 8 Order at 6:6 – 8:15; April 14 Order at 2:1-20.)

16

In response to the orders to show cause, respondents argue the four factors now

17 weigh against granting injunctive relief. In support thereof, respondents have submitted

18 evidence that, after the temporary restraining orders were issued, Yuba and Mesa Verde

19 increased supplies of soap and cleaning products available to detainees and provided

20 masks to detainees and staff. (See Kaiser Decl., filed April 28, 2020 ¶ 10; Bonnar Decl.,

21 filed April 28, 2020 ¶ 11.)

22

Although such new procedures alleviate some of the conditions identified in the

23 April 8 and April 14 Orders, individuals presently detained at Yuba and Mesa Verde

24 continue to lack the ability to engage in social distancing and, were the Court to direct

25 petitioners to return to said facilities, petitioners would encounter that same impediment,

26 which, given their respective medical conditions, would expose them to a heightened risk

27 of contracting a severe illness, a circumstance that outweighs the legitimate purposes

28 expressed by ICE in seeking their detention. Indeed, after taking account of the situation

4

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United States District Court Northern District of California

1 existing at Yuba and Mesa Verde as of April 29, 2020, another district court recently

2 certified a class consisting of all detainees at those two facilities, finding the conditions

3 existing therein warranted injunctive relief. See Zepeda Rivas, 2020 WL 2059848, at *2-

4 *3 (noting "it is undisputed that [ICE] has not come close to achieving social distancing for

5 most detainees"; further noting "people are regularly being transported from facilities with

6 COVID-19 cases," such as Santa Rita Jail, to Yuba and Mesa Verde).

7

Respondents have also offered evidence that, as to Solorio Lopez, Torres Murillo,

8 and Quinteros, immigration judges have continued each said alien's pending removal

9 proceedings, in order to give priority to cases in which the alien remains in detention.

10 (See Bonnar Decl., filed April 22, 2020, ¶ 17 (stating proceedings in Solorio Lopez's case

11 have been "delayed indefinitely"); see Kaiser Decl., filed April 28, 2020, ¶ 17 (stating

12 Torres Murillo's next hearing has been continued from April 29, 2020, to July 6, 2020);

13 see Bonnar Decl., filed April 28, 2020, ¶ 19 (stating Quinteros's next hearing has been

14 continued from April 30, 2020, to a date that will be set on June 30, 2020).) Although

15 respondents argue any such delay is an additional reason why, as to these three

16 petitioners, injunctive relief would not serve the public interest in enforcement of

17 immigration laws, the decisions to continue their hearings were made by immigration

18 judges who, assumedly having such public interest in mind, found the continuances were

19 in the interests of justice. Under the circumstances, the Court finds the above-referenced

20 continuances are not a factor weighing against issuance of a preliminary injunction.

21

In sum, the Court finds petitioners have continued to show that they are likely to

22 succeed on the merits of their claims, that they are likely to suffer irreparable injury if not

23 released during the COVID-19 pandemic, that the balance of hardships tips in their favor,

24 and that the public interest is served by the requested injunctive relief.

25

Accordingly, the Court finds issuance of a preliminary injunction as to the above-

26 referenced six petitioners is warranted.

27

The Court next considers whether, as respondents argue, the conditions set forth

28 in the existing orders of release should be revised.

5

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United States District Court Northern District of California

1

In that regard, respondents first reiterate their request, made in a statement filed

2 April 10, 2020, that ICE be allowed to detain a petitioner without advance notice to the

3 Court, if (1) ICE determines he has violated a condition of release, or (2) his removal

4 order becomes final and ICE obtains a travel document. The Court, by order filed April

5 13, 2020, having denied respondents' initial request to impose such conditions, again

6 finds insufficient cause exists to impose them.

7

Respondents next assert that any preliminary injunction should "expire when the

8 current state and local shelter-in-place orders are lifted." (See Response, filed April 22,

9 2020, at 24:10-11; Response, filed April 28, 2020, at 24:16-17.) The expiration of shelter-

10 in-place orders, however, would not necessarily compel a finding that the conditions at

11 Yuba and/or Mesa Verde have changed to the extent that the need for preliminary relief

12 would cease on that date. Consequently, the Court declines at this time to specify a date

13 on which the injunction will expire.

14

Lastly, respondents request that, should a petitioner subsequently seek court

15 approval to change the address at which he will shelter in place, such petitioner should

16 be required to state he has obtained approval for the move from his parole officer, if he

17 has one, and to provide respondents with identifying information as to the person(s) at

18 the new address who will be responsible for him. As petitioners do not object to this

19 request, the Court directs petitioners to include such information in any motion seeking

20 approval of a change of residence.

21

CONCLUSION

22

For the reasons stated above, the Court finds petitioners are entitled to a

23 preliminary injunction. Specifically, the terms of the existing orders of release issued as

24 to Medina Calderon, Lavrus, Joseph, Solorio Lopez, Torres Murillo, and Quinteros shall

25 remain in effect until further order of the Court.

26

IT IS SO ORDERED.

27 Dated: May 7, 2020 28

MAXINE M. CHESNEY United States District Judge
6